Was There An "Accident"?
62. As stated above, the primary liability issue is whether or not an "accident" took place. On first impressions the plaintiff's fall would seem to logically be described as an accident. However, it is not necessarily the natural meaning of the word that is to be applied. I noted above that Section 28 of the Act is the adoption into Australian law of Article 17 of the Warsaw Convention. The task before me is to ascertain what the word "accident" means in Article 17. This involves, to some degree, the interpretation of an international instrument and for that purpose consideration may be given to the decisions of courts in other countries (Gulf Air Company GSC v Fattouh [2008] NSWCA at paragraphs 26 and 27). I have had the assistance of the parties in taking me to both foreign and local decisions which have examined Article 17. The Article has, in fact, received attention from the High Court of Australia in Povey v Qantas Airways Ltd 223 CLR 189. In Povey the Court was concerned with a passenger who had contracted a deep veinous thrombosis in the course of an international flight. This subject, namely the suffering of a DVT condition during a flight, has received considerable attention through a number of courts, including the House of Lords (In re Deep Vein Thrombosis v Air Travel Group Litigation [2006] 1 AC 495). There is obviously a distinguishable difference between a fall from aircraft steps and the suffering of a DVT condition but the interpretation of "accident" in the highest courts of Australia and England remains very relevant. In fact, it is clear that both these courts have proceeded on the basis that the interpretation of "accident" made in the United States of America, in its highest court, the Supreme Court, in Air France v Saks 1985 470 US 392 remains the appropriate test. I was also referred to some decisions of this Court which I will return to below.
63. In Saks a passenger on an international flight from Paris to Los Angeles suffered severe pain in her left ear from the pressure in the aircraft cabin as it descended to land. The unanimous decision of the court was delivered by Justice O'Connor. I think I should set out the following portions of her Honour's judgment:-
"We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries.
…
But when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident
…
Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.
…
The "accident" requirement of Article 17 is distinct from the defenses in Article 20(1), both because it is located in a separate article and because it involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury."
64. In the DVT case in the House of Lords the appellants did not suggest that the Saks decision was in error, but sought to bring their facts within the flexible approach suggested by Justice O'Connor. Lord Steyn put the matter succinctly in this way:-
"33. Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident."
In the same paragraph Lord Steyn refers to, in my understanding, the leading text in air law (in fact a loose leaf service), namely Air Law, Shawcross and Beaumont. In relation to the definition of an accident the learned authors (Volume II paragraph 693.3), commenting on Povey, said the following:-
"The meaning of 'accident' in art 17 was closely examined by the High Court of Australia in Povey v Qantas Airways Ltd. Following Saks , the leading judgment said of 'accident' that it was a concept which invited two questions: first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected? Showing only that while on board or in the course of embarking or disembarking a passenger sustained some adverse physiological change did not identify the occurrence of an accident."
65. Returning to the House of Lords decision the plaintiff took me, in support of his case, to the following passages:-
"Second, it is important to bear in mind that the "unintended and unexpected" quality of the happening in question must mean "unintended and unexpected" from the viewpoint of the victim of the accident. It cannot be to the point that the happening was not unintended or unexpected by the perpetrator of it or by the person sought to be made responsible for its consequences. It is the injured passenger who must suffer the "accident "" (Lord Scott of Foscote at paragraph 14).
"If I fall over during a flight to New York, and break an arm, I suspect that we would all agree that my broken arm was caused by the accident of my fall; and we would do so irrespective of the reason for my fall; if it was my own silly fault, article 21 may relieve the airline of some or all the liability imposed by article 17, but that is another matter. In reaching those conclusions, we should not be agonising too much over whether my fall was an event "external" to me. We should simply be asking whether it was an "accident" which led to my injury. My own synonym for "accident" would be "untoward event" but that is by the way" (Baroness Hale of Richmond at paragraph 49).
66. The defendant submitted that Baroness Hale's comments go somewhat further than the Saks formula and cautioned me against adopting it. In this regard I was referred to the strident description of comments made by counsel for the airline in Singhal v British Airways Plc, an appeal heard by Mr Recorder Bueno QC in the Wandsworth County Court on 23 October 2007. At paragraph 32 onwards the Recorder sets out the criticism of Baroness Hale's judgment and rejects it. He sets out, at paragraph 54, his interpretation of what Baroness Hale said:-
"54. She appears to me to be saying, simply and in summary form, what other members of the House of Lords were saying, namely, that for the purposes of Article 17 an injury must be the result of an unexpected or unusual event which was external to the passenger. Once established, such event must be regarded as "untoward", whereupon the article imposes absolute liability on the carrier, irrespective of the passenger's own fault in the matter. At that point, relief from liability can be considered in the context of Article 20. I am convinced that Baroness Hale was simply intending to say that, and no more, and that her reference to "own silly fault" was to emphasise that liability under Article 17 is not fault based. She supported the reasoning of the other members of the panel and did not in any way eschew the proper investigative requirements and the need to establish externality as a causative feature."
I was informed that Singhal is currently under appeal to the English Court of Appeal.
67. Without in any way seeking to place any further interpretation on Article 17 or on the judgments in the Supreme Court (USA), the House of Lords or the High Court of Australia I think that for purposes of the present case, in order for the plaintiff to succeed he must establish the following:-
(a) There must have been an unexpected or unusual event or happening.
(b) That unexpected or unusual event or happening must have been external to the plaintiff. Thus the injury must not have been the plaintiff's "own internal reaction to the usual, normal, and expected operation of the aircraft".
(c) There must be a causal link between the injury and the unusual or unexpected event.
68. I was referred to three cases in this Court which involved the question of whether there was an unusual event or happening. In Parkinson v Qantas Airways Ltd District Court of NSW unreported 17 October 2002, the plaintiff was a passenger on a flight from Sydney to Auckland. Upon arrival in Auckland, in order to avoid an apparent delay along one aisle of a two aisle cabin, the plaintiff, in disembarking from the aircraft, moved across a line of seats in order to access the right aisle. In moving between the rows of seats she caught her foot on what was a normal part of a seat's structure. The issue before his Honour Justice R O Blanch, Chief Judge of the District Court, was whether there had been an unusual and unexpected event within the definition of accident in Saks. He found there had not been. He said:-
"The queue of people in the left aisle may, on the evidence, have been caused by an elderly man having trouble opening his overhead locker to get his luggage. That, however, is a perfectly normal incident in disembarking from an aircraft. Moving sideways through centre seats is also a usual aspect of the ordinary operations of a plane."
69. In Carswell v Qantas Airways Ltd District Court of NSW 2 July 2004, Judge P R Bell also found for the defendant. In this case the plaintiff slipped or tripped when leaving her seat. She alleged that she had tripped over an armrest cover which had fallen to the floor. She said that happening, namely the armrest cover being on the floor, was an unexpected or unusual event. His Honour did not believe the plaintiff in her description of what happened and accordingly found against her. His Honour did, however, in case he was wrong on the credit issue, go onto say that an object, like a seat cover being dislodged during the flight, was not an unexpected or unusual event.
70. The third is the decision of Neilson DCJ in Hannah v Singapore Airlines Ltd [2007] NSWDC 288. In this matter the plaintiff had a pre-existing medical condition which caused her to request a seat in the emergency aisle of an aircraft so that she could elevate her feet. She alleged that a computer malfunction, during the process of checking in, resulted in her not being allocated the requested seat. His Honour found that a malfunction in the computer at the check in stage was not an occurrence in the course of embarking and accordingly the accident, if there was one, did not occur in the course of the plaintiff embarking on the flight. In addition, his Honour found that the computer malfunction was not an "accident" because it did not cause the plaintiff's medical condition. The plaintiff had suffered a pedal oedema when she was on board. Applying the same reasoning as in the DVT cases his Honour found that the condition was due to an internal problem in the plaintiff's body and not caused by some external event. Accordingly there had not been an "accident".
71. There are many hundreds of cases involving the question of an "accident" in different courts around the world. The closest case that I could identify, on a factual basis, to the present matter is Girard v American Airlines United States District Court, ED New York, Number 00-CV-4559 (ERK), August 21 2003. This is a decision of Chief Judge Korman dealing with a motion to strike out a claim because, inter alia, there was not sufficient evidence of a defect. There was a cross motion by the plaintiff alleging that the Warsaw Convention imposed strict liability on the defendant. The plaintiff was a passenger on a flight travelling from New York to Puerto Rico. There was a stopover in San Juan. When boarding the ongoing flight the plaintiff was taken on a bus from the airport terminal to the aircraft. As she was leaving the bus "she suddenly flipped forward on the stairs, landed on the ground on her right knee and then rolled to her right side". The plaintiff did not know what had caused her to fall but had felt something move under her feet just before she fell. It was this part of the case history that I thought drew a similarity to the present matter. There was one extra piece of evidence, however, which is missing in the present case. The plaintiff's daughter, by affidavit, gave evidence that she observed that the step was defective. His Honour found that the bus trip was in the course of embarkation and in relation to whether there had been an unusual or unexpected external event his Honour said the following:-
"The sole remaining question is whether the incident giving rise to Ms. Girard's injuries was indeed an unusual or unexpected external event. Ms. Girard testified in her deposition that as she was disembarking from the terminal bus, something moved underneath her feet and she flipped over (Girard Dep. at 10, 14). Although Ms. Girard was unable to determine exactly why she fell, her daughter Ursula St. Prix, stated that she could "see the step shift forward and it forced my mother to tumble forward off the bus and onto the ground below." (St. Prix. Aff. at ¶ 3). Ms. St. Prix also attested that the same step felt loose and moved when she put her foot on it subsequent to her mother's fall. ( Id.). Taking this evidence at face value, and applying the liberal construction of "accident" encouraged by the Supreme Court in Saks, Ms. Girard's injury was not a result of her own "internal reaction to the usual, normal, and expected operation of the aircraft." Saks, 470 U.S. at 406. It is not usual or expected that the stairs of a terminal bus would abruptly give way, nor would an injury incurred by such a defect be within the normal operation of an aircraft or airline. Thus, plaintiff's injury can be attributed to an event both external and unexpected, placing it within the purview of the Warsaw Convention."
72. I drew Girard to the attention of the parties to give them the opportunity to make any submissions which might assist their respective arguments. Both sides drew support from the case. The defendant made the point that the clear distinction between Girard and the present case is the evidence of the plaintiff's daughter that there was defective step. Firstly it was said that there was no evidence that the step upon which Mr Paterson fell was defective and secondly, and accordingly, it was submitted that in the present matter there was no evidence of an external event. The plaintiff said that I should adopt a liberal construction of "accident" as done by Korman J and said that it was not usual or expected that the aluminium stair would give way even if a specific defect could not be identified.
73. I should say at this stage that the plaintiff, as its primary submission, went even further than the approach taken in Girard in that it submitted that on the simple evidence of the plaintiff that he fell, he should succeed on the basis of the above statement of Baroness Hale in the DVT case.
74. In discussion I put the question to learned senior counsel for the defendant as to what his position would be if there was a clear defect identified in the step. He responded in this way:-
"WILLIAMS: I think so. I think if the step on which the plaintiff in this case gave way, and sooner or later we will get to more discrete and close matters, but to take an extreme example if the step broke as the plaintiff put his foot on it then, on our case, given that the step is part of the usual operation of the aircraft, that would be an accident." (Transcript page 310.3) .
"WILLIAMS: I now have to address your Honour's questions that you were putting to me before the morning tea adjournment. Yes, if as he stepped on one of the legs of the platform gave way, that would bring the plaintiff within the orbit of the convention, we would say." (Transcript page 328.20).
75. In my view the concession made by Mr Williams is not only fair but brings the matter down to the most important issue on which I have to find, namely whether or not anything "external" happened to the stair so that the plaintiff fell over. The defendant says that on the evidence before me I could not make a finding about any external event. In this regard the defendant submits that the differing histories given by the plaintiff to the doctors do have a relevance in that their inconsistency (eg slipping, tripping, etc) do not enable me to reach any firm conclusion arising from the plaintiff's evidence. Further, it is said that the plaintiff could not identify the nature of the ground where the step was placed because even if there was an uneven or sloping surface observed by the plaintiff as the aircraft drew to a halt, his observation would have been of an area of ground some distance from the aircraft and not, as he conceded, immediately below the door where the step was placed. In addition, Mr Molina could not give any evidence about what caused the step to "flip" as he did not actually see anything happen to the step and, moreover, the same step was used for the remainder of the passengers to disembark so that there was obviously nothing wrong with it. Further, the defendant submitted, the history of the use of the step was such that there had been, according to Mr Miller, no other incidents either with his airline or of which he had heard involving a step giving way.
76. The contrary argument put by the plaintiff is that if the accident cannot be attributed to any fault of the plaintiff himself, or by reason of any internal failure (eg a knee giving way) then there must have been some "misbehaviour" on the part of the step. To this end it says the report of Dr Olsen is at least indicative of a problem in the step, and further adds that the history of the step is in fact supportive of its position because, on this occasion, something must have happened to cause it to give way. In relation to the assorted histories to doctors the plaintiff submits that no reliance should be placed on the histories, for the reasons I have set out above. The plaintiff says there is one independent contemporaneous note which is significant because firstly it is close in time to the accident and secondly it is in a setting in which care would have been taken to provide an accurate description of the event. This is the letter from the plaintiff's then solicitors (McCowans) to the defendant. The letter is dated 11 November 1998. It includes the following:-
"The stairs in question were inherently unsafe, yet alone when, according to our instructions the stairs were placed on uneven ground thus resulting in one of the legs (of which there were four) not resting on the ground. As our client stepped on to the staircase, it gave way from underneath him thereby causing our client to fall to the ground" (Exhibit 8, Tab 1.2).
77. I think the plaintiff's point in relation to the solicitor's letter is well made. The history was obviously given at a time when the events would have been considerably more fresh in the plaintiff's mind and his recollection more clear, and secondly, a solicitor writing a letter of this type could be expected to take some care to put forward the facts which might ultimately need to be proved in litigation.
78. The plaintiff also draws some support from the failure of the defendant to plead contributory negligence which it is entitled to do under Section 39 of the Act. The argument is that even though the defendant's primary case is that there was no accident the fact that contributory negligence is not pleaded confirms the absence of any allegation on the part of the defendant, that any element in the manner in which the plaintiff descended the stairs contributed to his fall.
79. I also think support for the plaintiff's position can be drawn from the evidence of Mr Molina. He did not see what caused the step to flip. However, he did see it rolling over a distance of up to a metre and he said "I saw it actually rolling at a fast roll" (Transcript 126.8). Something obviously caused the step to behave as it did. I also think Mr Molina's recollection of the plaintiff stating immediately that the step was unsafe is important and consistent with the letter from his solicitors which I have referred to above. Something obviously caused the step to move. I cannot, on the evidence, conclude what that cause was. I think I can conclude, however, that whatever it was constituted an usual or unexpected event. As stated by Korman J in Girard: "It is not usual or expected that the stairs of a terminal bus would abruptly give way, nor would an injury incurred by such a defect be within the normal operation of an aircraft or airline". True it is that there is no direct evidence of a defect in the step (as given by the plaintiff's daughter in Girard) but there is also no evidence that the step gave way because of some act on the part of the plaintiff. Adopting the words in Saks at 406 the plaintiff's injury was not a result of his own "internal reaction to the usual, normal, and expected operation of the aircraft".
80. Taken with the plaintiff's statement to the pilot (Mr Kelly), the contents of the letter from his solicitors in November 1998, his own description of the step giving way and the effect of it giving way as described by Mr Molina, in my view I can conclude that the step gave way as a result of an external factor. I think this conclusion can be reached without even adopting a "liberal" approach and even though I could not say the step gave way because of an uneven surface or an incline on the ground. As to Dr Olsen's report I make no more use of it than to say that my conclusion is consistent with his opinion.
81. Accordingly, I am satisfied that the plaintiff has established that he was injured as a result of an "accident" as required by the Act (and under Article 17 of the Warsaw Convention) and therefore the plaintiff is entitled to a verdict against the defendant.
82. In case it should be thought that my interpretation of an "accident" is different to that of the Chief Judge of this Court and a fellow judge, I would reject that suggestion and refer to the clear distinction in the facts in the respective cases. In Parkinson there was nothing about the part of the seat on which the plaintiff tripped that had given way or was otherwise unusual and there was nothing unusual about a plaintiff making her way between seats from one aisle to another. In Carswell there was nothing unusual about detachable armrests falling onto the floor of an aircraft. In other words in both cases there was no element of an unusual event occurring in the normal course of an aircraft's operation (or in embarkation or disembarkation). It could never be said that a step used for passengers to reach the tarmac from an aircraft could be seen as behaving normally if it gave way.