Povey v Civil Aviation Safety Authority and Ors [2002] VSC 580

5. The plaintiff's claim against CASA is brought in negligence and breach of statutory duty. It is not the subject of any interlocutory application and CASA took no part in the applications with which this ruling is concerned. Accordingly the plaintiff's claim against CASA need not be further considered at present.

8. The plaintiff's claim against Qantas and British Airways is brought pursuant to the provisions of the Civil Aviation (Carriers Liability) Act 1959 (Cth), s 11 of which incorporates the international convention known as The Warsaw Convention as Amended at the Hague 1955 into Australian domestic law. This Convention provides rights of compensation to persons injured in certain circumstances in the course of international air travel. Section 13 of the Act provides that this right is in substitution for any right which an injured passenger may have had to compensation under any other law; that is to say a plaintiff's sole right to compensation is defined by the Convention. The right to compensation for personal injury is expressed in article 17 of the Convention thus:-

"17. The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

In order to succeed in an action for compensation under the Convention a plaintiff must establish that he or she sustained bodily injury in the course of an international air journey and that the damage sustained was caused by an accident that took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

13. In this case the plaintiff pleads in his statement of claim that he was a passenger on Qantas flight QF1 from Sydney to London via Bangkok on 15 and 16 February 2000 and on British Airways flight BA33 from London to Sydney via Kuala Lumpur from 18 to 20 February 2000. He says that the DVT which he suffered was caused by "the conditions of and procedures relating to passenger travel upon the flights". He supplied particulars of that allegation in the following terms:-

"The flight conditions included: (a) a confined and restricted physical environment in which the plaintiff was immobilised for long periods of time in a seated position; (b) impediments to the plaintiff getting out of his seat during the flights; (c) the offer and supply of alcoholic beverages, tea and coffee to the plaintiff during the flights; (d) discouraging the plaintiff from moving around the cabin of the aircraft and encouraging the plaintiff to remain seated during the flights; (e) the plaintiff not being provided with any information or warning about the risk of DVT or information about the measures which the plaintiff could take to reduce such risk."

17. In formulating his specific statutory claim against Qantas and British Airways pursuant to the Warsaw Convention the plaintiff alleged (as he had to) that his DVT and the injuries resulting therefrom were caused by an accident on board "the aircraft upon which the flights were undertaken". In further particulars supplied following a request from Qantas the plaintiff said that his DVT comprised the formation of a blood clot in the deep vein of his right leg and that he first experienced symptoms whilst flying on British Airways Flight BA33 from Kuala Lumpur to Sydney in the late evening (after about 10.00 pm Sydney time) on 19 February 2000. He further particularised the "conditions of passenger travel" to which he was subjected as comprising:-

"(1) A confined and restricted physical environment in which the plaintiff was immobilised for long periods of time in a seated position; (2) impediments to the plaintiff getting out of his seat during the flight; and (3) a dry environment likely to cause dehydration."

The "procedures relating to passenger travel" to which he says he was subjected, were described in the following terms:-

"(1) The offer and supply of alcoholic beverages, tea and coffee to the plaintiff during the flight; (2) discouraging the plaintiff from moving around the cabin of the aircraft and encouraging the plaintiff to remain seated during the flight; (3) the plaintiff not being provided with any information or warning about the risk of DVT or information about the measures which the plaintiff could take to reduce such risk."

23. In further particularising the "confined and restricted physical environment" the plaintiff said it was constituted by:-

"(1) The plaintiff being seated in a seat which was positioned so close to the seat in front that the plaintiff's capacity to extend his legs or to stand up and move from his seat was restricted; (2) the plaintiff being seated in a seat (namely seat 36K) between the wall of the cabin and two other persons such that he was unable to stand up and move from his seat without climbing past or over the person next to him; (3) the plaintiff being seated in a seat (namely seat 36K) surrounded by other passengers with the only space available for the plaintiff and such passengers to stand and walk being the narrow aisles between the rows of seats; (4) ceiling above the plaintiff's seat being so low that it was difficult for the plaintiff to stand up from his seat without stooping."

27. In other particulars supplied pursuant to Qantas' request the plaintiff enumerated a number of impediments to his free movement on the aircraft including those which related to the physical environment in which he was seated as well as the activities of flight attendants moving food and drink trolleys in the aisles adjacent to his seat. He alleged being discouraged from moving around the cabin and being encouraged to remain seated during the flight by in-flight announcements to the effect that passengers ought remain seated during the flight.

30. Of particular importance to these applications was the plaintiff's specific particularisation of the "accident" which he alleges caused his injuries. He confined these particulars to the flight conditions set out in the particulars given under paragraph 6 of the statement of claim to which reference has been made in paragraph 4 above. He said that they occurred for the duration of each of the flights QF1 and BA33 and that they occurred on board the aircraft conducting the flight.

33. In response to a request for particulars made by British Airways the plaintiff supplied similar particulars to those supplied to Qantas. On the British Airways flight he says that he was seated in seat 33G.

36. It is against the pleading background outlined above that Qantas and British Airways, by summonses filed on 26 March 2002 each seek judgment against the plaintiff pursuant to Rule 23.01 of the Supreme Court Rules, a stay of the proceeding or that the plaintiff's statement of claim be struck out pursuant to Rule 23.02.

40. The defendants' primary submission is that the plaintiff's claim is groundless in that the statement of claim as presently formulated and particularised does not disclose a cause of action and that the plaintiff could not, by any proper amendment to his pleading, formulate a viable cause of action. Thus, say the defendants, the Court should give judgment for them under Rule 23.01. To make good this submission in the context of this case the defendants would have to show, as a matter of law, that the facts as pleaded and particularised by the plaintiff could not support a successful claim under Article 17 of the Convention.

43. The authority usually cited as establishing the criterion for summary disposition pursuant to Rule 23.01 is Dey v Victorian Railways Commissioners[1] and particularly the passage from the judgment of Dixon, J[2] wherein his Honour, speaking of the inherent jurisdiction of the Court to dismiss a claim as being frivolous or vexatious and an abuse of process, made it clear that such summary disposition should only be applied in the clearest case: see also Agar v Hyde[3]. Although Dey was concerned with the inherent jurisdiction of the Court, its reasoning may be readily applied to summary disposition under Rule 23.01. This is so even if to determine whether the facts pleaded give rise to a good cause of action it may be necessary to determine questions of law and consider, as in this case, extensive argument on both sides: General Steel Industries Inc v Commissioner for Railways (NSW)[4] per Barwick, CJ at 129 - 130.

46. The position with respect to Rule 23.02 is somewhat different. There the focus is on the adequacy of the pleading being considered rather than on the question as to whether the proceeding itself is fundamentally defective. If an amendment will cure a defect so as to express a claim properly the Rule empowers the Court to require such an amendment to be made and, of course, the Court can always order further particulars of a factual allegation made in a pleading if such are necessary to enable the real issues between the parties to be defined.

50. As a matter of form the plaintiff's statement of claim pleads a viable cause of action against both Qantas and British Airways. In paragraphs 19-23 and, in particular, paragraph 21 the plaintiff alleges an injury caused by an accident which occurred on an aircraft in the circumstances contemplated by Article 17 of the Convention. If each of the facts pleaded in those paragraphs is established (or admitted) at or before trial the plaintiff will have made out his cause of action. Thus, the applications by Qantas and British Airways to have the plaintiff's proceeding dismissed or stayed as not disclosing a cause of action whether under one or other of the Rules relied upon or in the inherent jurisdiction of the Court must, as a matter of form, fail. However, although the plaintiff makes that point in his submissions, the arguments by all parties before the Court on the defendants' applications were somewhat wider; the defendants' contention really being that even if the plaintiff makes out his case as presently pleaded and particularised he will not establish, as a matter of law, that his DVT and hence his injuries were caused by an accident as he must do to succeed in an action under the Convention. This is because, say the defendants, those particulars are incapable, as a matter of law, of providing the content necessary to satisfy the legal meaning of the word "accident" as it is used in Article 17 of the Convention.

53. Having regard to the principles discussed above, even if the defendants' contentions are correct it would not be appropriate to put an end to the plaintiff's case summarily (whether by judgment, stay or otherwise) unless there was no reasonable possibility that further particulars could be provided by the plaintiff which could satisfy the relevant legal definition of accident. If even the reasonable possibility of the plaintiff being able to particularise his claim so as to meet the necessary criteria for an accident within the Convention exists then he must be given the opportunity to formulate and serve those particulars.

56. I turn then to examine the viability of the plaintiff's case as presently put in his statement of claim and particulars.

60. There is no Australian authority binding on this Court as to the meaning of the word "accident" as it is used in Article 17 of the Convention. Accordingly it must be examined and construed by reference to the principles of construction appropriate to an international convention incorporated by statute into the domestic law of this country.

63. The judgment of Sackville, J in South Pacific Air Motive Pty Ltd v Magnus[5] provides a comprehensive technical review of the Warsaw Convention with its various amendments (The Hague Protocol 1955, the Guadaljara Convention 1961, the Guatemala City Protocol 1971 and the Montreal Protocols (Nos 3 and 4) 1975). These instruments or the Warsaw Convention as amended by them are reproduced in the schedules to the Civil Aviation (Carriers Liability) Act 1959 (Cth). However, it is only the version of the Warsaw Convention reproduced as Schedule 2 to the Act with which this Court is at present concerned.

66. In Sidhu v British Airways[6] Lord Hope of Craighead expounded the objects and structure of the Convention. He held that what was sought to be achieved by the Convention was a uniform international code which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. His Lordship continued:

"The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law. An answer to the question which leaves claimants without a remedy is not at first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy. That indeed is the foundation upon which much of our own common law has been built up. The broad principles which provide the foundation for the law of delict in Scotland and of torts in the English common law have been developed upon these lines. No system of law can attempt to compensate persons for all losses in whatever circumstances. But the assumption is that, where a breach of duty has caused loss, a remedy in damages ought to be available. Alongside these principles, however, there lies another great principle, which is that of freedom of contract. Any person is free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract. Exclusion and limitation clauses are a common feature of commercial contracts, and contracts of carriage are no exception. It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged. It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity."

See also Holmes v Bangladesh Biman[7] and Morris v KLM[8].

71. Further, in El Al Israel Airlines Ltd v Tsui Yuan Tseng[9] the Supreme Court of the United States, in rejecting the proposition that a passenger could maintain an action for damages for personal injuries under municipal law when her claim did not satisfy the conditions for liability under the Convention, accepted the reasoning of the House of Lords in Sidhu with respect to the character and purpose of the Convention as being to bring about a harmonisation of the rights and liabilities of carriers and passengers directed to the particular issues with which it deals. Of particular relevance to the present case was the Court's holding that in the areas in which it operates (eg, personal injuries to passengers) the Convention necessarily excludes the application of domestic law.

74. Although, in the Australian context, because of the existence of s. 13 of the Act the question of the exclusivity of the Convention in respect of personal injury suffered by a passenger (not being injury that has resulted in the death of the passenger) is undoubted, the expressions of unanimity by the highest courts of the United States and the United Kingdom on this aspect of the Convention's application lends considerable weight to the argument (if weight were needed) that this Court should not construe the Convention by reference to pre-existing notions of compensation for injury derived from domestic tort law, particularly, perhaps, from the law of negligence. The Convention establishes a no-fault scheme of compensation which imposes absolute (but limited) liability on air carriers in certain, fairly narrow, circumstances[10].

77. That this approach is correct is reinforced by a consideration of Australian cases on the construction of international treaties. In Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd[11] the High Court (Mason and Wilson, JJ with whom Gibbs and Aickin, JJ agreed) said with respect to the Hague Rules on the sea carriage of goods:-

"It has been recognized that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, "in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation", to repeat the words of Lord Wilberforce in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] A.C. 141 at 152; see also Stag Line Ltd v Foscolo Mango & Co Ltd [1932] A.C. 328 at 350.

It is important that we should adhere to this approach when we are interpreting rules which have been formulated for the purpose of regulating the rights and liabilities of parties to international mercantile transactions where great store is set upon certainty and uniformity of application.

To say this is not to assert that we should exclude from our consideration of the rules settled by an international convention the meaning which has been consistently assigned by a national court to words and expressions commonly used in the documentation by which international trade is transacted, when the convention in seeking to regulate the rights and liabilities of parties to international trading transactions, uses those words and expressions. There is a high probability that when such words and expressions have been incorporated in a convention, they have been incorporated with knowledge of the meaning which has been given to them by national courts. Nor do the principles of interpretation of an international convention exclude recourse to the antecedent municipal law of nations for the purpose of elucidating the meaning and effect of the convention and the new rules which it introduces. It would be extremely difficult to interpret the new rules as if they existed in a vacuum without taking into account antecedent municipal law and the problems which its application generated. However, in resorting to antecedent municipal law we need to recollect that it is the language of the Hague Rules that we are expounding, the antecedent law providing a background for that exposition by enabling us more readily to gauge the sense and direction of the new rules which the convention introduces."

83. The rules of interpretation of international treaties have now been codified by the Vienna Convention on the Law of Treaties to which Australia is a party. Article 31 of that Treaty provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of its object and purpose. Under Article 32, interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Article 31 or to determine the meaning of the treaty when the interpretation according to Article 31 leaves the meaning "ambiguous or obscure" or "leads to a result which is manifestly absurd or unreasonable". Those extrinsic sources include the travaux préparatoires and the circumstances of the conclusion and history of the negotiation of the treaty. Primacy must be given, however, to the natural meaning of the words in their context: see Thiel v Federal Commissioner of Taxation,[12] Applicant A v Minister for Immigration and Ethnic Affairs[13] and Great China Metal v Malaysian Shipping,[14] all per McHugh, J; Fothergill v Monarch Airlines Ltd[15] and The Commonwealth v Tasmania (the Tasmanian Dam case).[16]

86. That international treaties should be given a consistent construction by the courts of the several contracting parties is undoubted. As well as the cases already cited, see also Emery Airfreight Corporation v Merck Sharp & Dohme (Aust) Pty Ltd;[17] SS Pharmaceuticals Company Ltd v Qantas Airways Ltd.[18]

89. The attainment of some uniformity of approach to the construction of international conventions can be achieved by reference to international case law and, perhaps, the writings of jurists, whether of the common law or Civilian traditions. However the large number of jurisdictions to which the Warsaw Convention applies makes this task somewhat difficult, both by reason of a lack of familiarity with the legal systems concerned and the relative paucity of foreign judgments in acceptable translation. However that may be, and although reference has been made by counsel in this case to decisions from courts other than those in the common law tradition, the principal authority around which argument has centered has been a decision of the Supreme Court of the United States, namely Air France v Saks.[19] The plaintiff submits that, as this decision is not binding upon this Court, if it stands in the way of the plaintiff's claim it should not be followed. The defendants point to the importance of the decision to the question of construction facing this Court, the number of other courts which have either followed or distinguished it, the reputation and status of the court itself and the precedential effect of its decisions upon the courts of the United States. In Fothergill v Monarch Airlines Ltd[20] (approved by Lord Hope of Craighead in Sidhu v British Airways[21]), Lord Diplock drew attention to the criteria to be applied in determining the persuasive value of a particular foreign court's decision. Although there his Lordship was concerned with a decision of a French court, the application of those criteria to the Supreme Court of the United States when it was speaking on a question relating to the construction of a particular part of a relevant international treaty must be undoubted. Its position, as the final court of appeal within its jurisdiction and the binding nature of its decisions on the jurisprudence of the United States each suggest that an Australian court of first instance should be slow to dissent from one of its decisions on a question of construction of part of an international treaty to which both the United States of America and Australia are parties.

92. In Saks, a passenger on an Air France aircraft travelling from Paris to Los Angeles felt severe pressure and pain in her left ear as the aircraft descended to land at Los Angeles airport. The pain continued after the aircraft landed, causing her to consult a doctor who concluded that she had become permanently deaf in her left ear caused by the change in cabin pressure as the aircraft descended. She sued Air France under the Convention.

95. After having her case dismissed on a motion for summary judgment in the Federal District Court the passenger appealed to the US Court of Appeals for the Ninth Circuit which held that the language, history and policy of the Warsaw Convention and the Montreal Agreement (a private agreement among airlines that has no application in Australia) impose absolute liability on airlines for injuries proximately caused by the risks inherent in air travel; and that normal cabin pressure changes qualify as an "accident".

98. The US Supreme Court granted certiorari [22] to resolve a conflict among Courts of Appeals as to the proper definition of the word "accident" as used in the Warsaw Convention. In the Supreme Court, Air France contended that the term "accident" in the context of the Convention, means an "abnormal, unusual or unexpected occurrence aboard the aircraft". The passenger conceded that:

"the sole question of law presented ... by the parties is whether a loss of hearing proximately caused by normal operation of the aircraft's pressurisation system is an 'accident' within the meaning of Article 17 of the Warsaw Convention ..."

She argued that "accident" should be defined as a "hazard of air travel" and that her injury had indeed been caused by such a hazard.

103. The opinion of the US Supreme Court was delivered by O'Connor, J. In construing Article 17[23] it emphasised two significant features. Firstly it contrasted the word "accident" in Article 17 with the word "occurrence" where it appears in Article 18 which deals with the liability of a carrier in respect of damage to baggage or cargo. Thus, the court held, there must be a material difference between those events which give rise to a carrier's liability for personal injury and those which give rise to its liability for the loss or destruction of baggage or cargo. "Occurrence" is a word of wider import than "accident".

106. Secondly, the judgment points out that the text of Article 17 refers to an accident "which caused" the passenger's injury and not to an accident which is the passenger's injury. It cited Lord Lindley in respect of a definition of the word "accident" in Fenton v J Thorley & Co[24] in terms of its being an "unintended and unexpected occurrence which produces hurt or loss". The Court went on to acknowledge that the term is often used to denote both the cause and the effect of an unintended or unexpected occurrence without any attempt being made to discriminate between them. However, as the US Court pointed out, Article 17 requires the accident to cause the passenger's injury before the carrier is liable. It considered this distinction important and, after considering a number of sources of information as to the sense in which the terms were used by the drafters of the Convention, finally held that in order to qualify under Article 17 a passenger's injury must be caused by an accident, and an accident must mean something different than an "occurrence" on the aircraft. Finally, it concluded 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. Thus, the ratio of Saks retains Lord Lindley's adjective "unexpected" as qualifying the occurrence which constitutes an accident but adds, in the alternative, the adjective "unusual" although why it did so is not altogether clear.[25] Whilst many accidents are unusual events, many, such as motor accidents, are not.

109. The Court considered that its definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries. It rejected Ms Saks' claim, holding that the injury to her ear resulted from her own internal reaction to the usual, normal and expected operation of the aircraft.

112. In finding for the airline the Court recognised that a degree of judgment would be required to distinguish causes that are "accidents" from causes that are "occurrences" and that there may be genuine differences between reasonable people as to where the line should be drawn. It concluded by holding that as any injury is the product of a chain of causes, in order to succeed under Article 17 all that a passenger had to prove was that some link in that chain was an unusual or unexpected event external to him or her.

115. Saks has been cited with approval in a significant number of cases, not only in the United States, but elsewhere. It was approved by the UK Court of Appeal in Chaudhari v British Airways plc[26] and in the House of Lords by Lord Hope of Craighead in King v Bristow Helicopters Ltd.[27] In this country it has been cited in American Airlines Inc v Georgeopoulos & Another (No 2).[28] In the course of argument a large number of cases were referred to by counsel. After the argument finished their diligent research, and that of their solicitors, continued such that I was supplied with further cases on Article 17 as they were decided. In the event, they each of those cases turned on its own facts. None of them particularised the plaintiff's case as it was put by counsel before this Court.

118. The plaintiff submits that Saks should be given no more than "considerable weight", being the phrase used by the US Supreme Court itself in the case to describe the deference which it was prepared to accord to decisions of "our sister signatories".[29] He goes on to argue that it ought not be followed in this case in favour of a more liberal definition of "accident" derived from what he submits is the natural meaning of the word in its context. Although I reject this submission, having regard to the decision which I have reached on these applications it is not strictly necessary for me to consider the authority of Saks in this jurisdiction further. On any reasonable definition of "accident" the plaintiff's case as presently particularised fails. If however his case was to be particularised as it was argued, somewhat beyond his pleaded particulars it could succeed even if the definition derived from Saks was to be applied.

121. The plaintiff has particularised the accident which he says caused his DVT as consisting of the five matters referred to in the particulars given under paragraph 6 of his statement of claim. He says it occurred for the duration of the flight consisting of QF1 from Sydney to London via Bangkok and BA33 from London to Sydney via Kuala Lumpur. Not even by the application of the most liberal definition of "accident" could this set of circumstances either together or separately be described as an accident. None of them singly nor all of them together could be described as an "unintended or unexpected occurrence which produces hurt or loss" so as to fit within Lord Lindley's definition in Fenton v J Thorley & Co[30] nor do any or all of them fit Lord MacNaughten's definition in the same case:

". . . an unlooked for mishap or an untoward event which is not expected or designed."

Nor could any or all of them fit within the definition of "accident" accepted by the majority of the High Court, in a different context, in Australian Casualty Co Ltd v Federico[31], even if the extended version of that definition, namely ". . . an unintended an unexpected characteristic or consequence of an intended act" is applied to them[32]. The situation is a fortiori against the plaintiff if the United States Supreme Court definition of "accident" in Saks is applied. Thus, on the plaintiff's case as currently particularised he cannot succeed as a matter of law in establishing that his DVT was caused by an accident.

126. However, the matter does not rest there. As I have already noted, the plaintiff's statement of claim pleads a viable cause of action under the Convention. The question then is whether there is any reasonable possibility of the plaintiff being able to particularise his allegation of an accident in such a way as to raise a triable issue as to whether his DVT was caused by an event falling within the appropriate legal definition of an accident.

129. In his written outline, and more extensively in his oral argument, senior counsel for the plaintiff expanded the particulars of the matters which he said constituted the relevant accident to add two allegations not included in the written particulars upon which he initially relied.[33] The first of these was that the defendants had certain knowledge concerning DVT, its causes, its relationship to the cramped conditions in economy class on their aircraft and precautions which could be taken to minimise the risk of its occurring to passengers travelling in that class. The second matter was that it was so usual and commonplace for airlines to issue warnings and advice to passengers concerning risks of which they had knowledge and to which they thought passengers might be exposed in flying on aircraft, that passengers expected such warnings and advice. He referred to warnings and advice concerning seat belts, evacuation procedures and the like. In effect the plaintiff argued that it was part of the objectively usual, normal and expected operation of the aircraft for such warnings and advice to be given.

132. In Husain v Olympic Airways[34] the US District Court for the Northern District of California considered a claim by the widow of a asthmatic who had died as a result of being exposed to cigarette smoke whilst seated near the smoking section of an Olympic Airways flight from Athens to New York. The Court held that the refusal of the flight attendant to provide a seat for the deceased away from the smoking section was an unusual and unexpected event as that term was used in Saks so that it constituted an accident. In reaching that conclusion the Court heard and accepted evidence of the usual standard of care from flight attendants, including evidence as to what was usual or objectively expected. It concluded that the attendant's failure to heed the deceased's wife's request that he be moved was, viewed objectively, an unexpected event even though the smoke which the Court found was the direct cause of the deceased's death was an ordinary incident of normal air travel.

135. Husain illustrates the point that an accident, as Saks uses the word, may include action or inaction by airline staff, just as it could, in an appropriate case, include action or inaction by an airline itself in relation to the procedures it adopts with respect to passenger safety. Where, objectively viewed, an airline would be expected to act in a particular way (or refrain from doing so) having regard to what is usual or expected in air travel at the time of injury, its failure to so act could constitute an accident for the purposes of Article 17 of the Warsaw Convention.

138. Part of the underlying basis of the no-fault system provided for by the Convention is the peculiar position of reliance and vulnerability of passengers on international air flights, the airlines' control over the passengers' environment and passengers' confinement in that environment. The expectations which passengers are entitled to have in such a situation may well include warnings of known risks and advice as to precautionary steps to avoid them. This arises both because warnings of at least some known risks are routinely given by airlines and because of that peculiar situation of reliance.

141. The defendants argued that because, at the relevant time, no warnings or advice were usually given about DVT, it was not unusual that no warning or advice was given to the plaintiff in this case. This argument depends upon a very narrow definition of what is usual or expected. It is for the airline, say the defendants, to decide what warnings or advice they will give, even in respect of dangers and precautions known to them. This leaves the question of whether a plaintiff receives compensation for injury suffered on board an aircraft almost entirely at the discretion of the airline. On the other hand if the question of what is usual or expected is directed not to the specific danger, but rather to dangers and precautions known to the airline, the objective requirement of the Saks test is more appropriately addressed.

144. It is not open to the defendants to argue that because, at the relevant time, their procedures did not provide for advice or warnings to be provided about DVT that there was therefore nothing unusual, abnormal or unexpected about a warning or advice not being given in this case. If that were to be the case the limits of an airline's liability, ostensibly part of the trade off for immunity from suit at common law, would be able to be determined by the airline simply changing its procedures. The question of normality must be judged objectively. It is a question of fact to be determined upon the evidence ultimately lead. If that evidence establishes that it is part of the normal operation of an airline to give warnings and advice to passengers concerning dangers which the airline is aware of, then the tribunal of fact could find a failure to do so, in appropriate factual circumstances, amounted to an accident.

147. If the plaintiff were to particularise his allegation of an accident to include the matters to which I have referred in paragraph 37 and, at trial, to lead evidence of them as matters of fact it would be open to the tribunal of fact trying this case to reach the conclusion that the defendants' failure to warn of the risks of DVT as they knew them and to advise as to the precautions which they knew a passenger could take to minimise or eliminate those risks constituted in all the circumstances ". . . an unexpected or unusual event or happening that is external to the passenger"; that is to say an accident within the Saks defintion. Such a finding would represent no more than a flexible application of the Saks defintion to the particular circumstances of a plaintiff who suffers DVT, as distinct from some other injury, in the course of an aeroplane journey. In this instance those circumstances would include such knowledge as the plaintiff proves the defendants had of DVT and its causes and the preventative measures which might have been taken to minimise the risk of its occurrence. Of course, even if the plaintiff satisfied the tribunal of fact that the matters (or some of them) which he had alleged constituted an accident, he would still have to prove causation in the ordinary sense; that is to say that there was a causal link, as a matter of common sense,[35] between that accident and the DVT which he suffered. But in doing so he would need to prove no more than that the accident was one link in the chain of events which together caused his DVT.[36]

150. The defendants submitted that a failure to warn, being an omission to act, could not be an event on board an aircraft. But such a submission not only depends upon the dubious distinction between acts and omissions, which is often more illusory than real, but also ignores that fact that Article 25 of the Convention (which lifts the usual limit on damages in circumstances of culpability by the carrier) specifically contemplates accidents which are constituted by omissions as well as those constituted by acts. It must also be remembered that the failure to warn is only one, even if the most important, of the many factors which the plaintiff includes in the particulars of the relevant accident as he argued it upon his expanded case.

153. It follows from the above that the defendants have not established that the plaintiff's case is such that it ought to be summarily terminated by judgment in their favour, a permanent stay or a striking out of the plaintiff's statement of claim, either under the rules relied upon or in the inherent jurisdiction of the Court. However, for the reasons which I have given, the plaintiff's present particulars of the accident which he alleges caused his DVT are insufficient to establish an accident as a matter of law. Accordingly the defendants' summonses should be dismissed and the plaintiff should be given leave to deliver further particulars of the acts, facts, matters or circumstances upon which he relies as constituting the accident which he alleges caused his DVT.

1. That the summons of each defendant filed 26 March 2002 be dismissed.

2. That the plaintiff have leave to file and serve particulars of the acts, facts, matters and circumstances upon which he relies as constituting the accident alleged in paragraph 21 of his statement of claim herein on or before 24 January 2003.

I shall hear counsel on the question of further directions in this matter and on the issue of the costs of these applications.

[1] [1949] HCA 1; (1949) 78 CLR 62.

[3] [2000] HCA 41; (2000) 201 CLR 552 at 575.

[4] [1964] HCA 69; (1964) 112 CLR 125 .

[5] [1998] FCA 1107; (1998) 87 FCR 301 at 327 et seq.

[6] [1996] UKHL 5; [1997] AC 430 at 453.

[7] Corpn [1989] AC 1112 at 1129 by Lord Bridge of Harwich.

[8] [2002] 2 WLR 578 at 601 per Lord Hope of Craighead.

[10] Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 119 per Meagher JA

[11] [1980] HCA 51; (1980) 147 CLR 142 at 159.

[12] [1990] HCA 37; (1990) 171 CLR 338 at 356.

[14] [1998] HCA 65; (1998) 196 CLR 161 at 186.

[15] [1980] UKHL 6; [1981] AC 251 at 276, 282 and 290.

[16] [1983] HCA 21; (1983) 158 CLR 1 at 222.

[17] [1999] NSWCA 415; (1999) 47 NSWLR 696 per Mason, P at 708.

[18] [1991] 1 Lloyd's Rep 288 per Kirby, P (although otherwise in dissent) at 294.

[19] [1985] USSC 43; 470 US 392 (1984).

[20] [1980] UKHL 6; [1981] AC 251 at 284.

[21] [1996] UKHL 5; [1997] AC 430 at 452.

[22] 469 US 815 (1984).

[23] The American translation of Article 17 is different to that in Schedule 2 of the Australian Act in that, in the American version, the liability of the carrier is expressed in the future tense ("the carrier shall be liable ...") whereas in the version scheduled to the Australian Act the words used are "the carrier is liable ..." The difference would appear to be immaterial, at least in the present context.

[24] [1903] AC 443 at 453.

[25] The word appears to have been used in the Air France brief (see p 392) and begins to be used in the judgment at p. 400.

[26] Unreported, The Times, 7 May 1997 (Transcript No 590 of 1997), referred to by Lord Phillips of Worth Matravers MR in Morris v KLM [2001] EWCA Civ 790; [2002] QB 100 at 110.

[27] [2002] UKHL 7; [2002] 2 All ER 565 at 590

[28] [1998] NSWSC 463 (5 August 1998).

[29] Air France v Saks [1985] USSC 43; 470 US 392 at 404 (1984).

[31] [1986] HCA 32; (1985) 160 CLR 513 at 527

[33] Although, a few days before the hearing of these applications the plaintiff's solicitors gave notice of intention to seek leave to amend the Statement of Claim by adding particulars under paragraph 21 which, in general terms, include those to which I have referred.

[35] March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506