Negligence - duty of care - breach of duty - duty to warn of effects of environmental tobacco smoke on international flights - causation - general nature of warning pleaded - whether warning as pleaded would have been acted upon leading to avoidance of damage.

Practice and Procedure - representative proceeding - public interest litigation - proceeding instituted for perceived public benefit - relationship between public purpose of proceeding and individual group members' claims for damages for negligence - necessity of proof of all elements of tort.

Trade Practices Act 1974 (Cth), ss 51AA, 51AB, 51A, 52, 52A.

Mr P G Hely QC with Mr A Robertson SC of counsel instructed by Dunhill Madden Butler appeared for the appellant on the first appeal, respondent on the second appeal (Qantas).

Mr G K Downes QC with Mr N F Francey of counsel instructed by Cashman and Partners appeared for the respondent on the first appeal, appellant on the second appeal (Mrs Cameron).

2. THAT the cross-appeal be dismissed.

3. THAT the proceedings on the appeal and cross-appeal be

listed on a date and at a time by arrangement between the

parties and the Associate to Davies J for the making of such

further orders as may be appropriate.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DAVIES J This is an appeal and a cross-appeal from a judgment of a judge of the Court, Beaumont J.

2. The proceedings before the learned trial Judge were group proceedings brought by Leonie Cameron on behalf of herself and nine other persons, each of whom had been a passenger on international flights of the respondent, Qantas Airways Limited ("Qantas"). Each of the passengers had requested his or her travel agent or Qantas to provide a non-smoking seat. In the events which happened, each passenger was seated either in an area designated smoking or in an area adjacent to or close to a smoking area. Each suffered discomfort or ill health from smoke inhalation. The trial Judge ordered Qantas to pay the following damages:-

Leonie Cameron - $250

Bryan Norman Hooper - $200

Ian Ronald Lewis - $175

Eric Donald Glass - $ 50

Russell Jean Aroney - $750

Anita Louise Jacoby - $250

Paula Irene Underwood - $200

Paul Leslie McMahon - $175

Kenneth Charles Thomas - $750

Francis William Millane - $200

The trial Judge otherwise dismissed the application.

3. The notice of appeal lodged by Qantas challenged his Honour's findings on liability. The notice of cross-appeal lodged on behalf of Mrs Cameron complained that the trial Judge had failed to make findings of unconscionable conduct, failed to make certain findings of misleading or deceptive conduct, failed to make declarations and failed to grant injunctions or other relief as had been sought. The notice of cross-appeal also challenged the quantum of damages awarded by his Honour. The notice of appeal and the notice of cross-appeal both took issue with his Honour's orders as to costs.

4. I turn first to the question of whether Qantas owed a duty of care to its passengers, the group members, with respect to environmental tobacco smoke in the cabins of its aircraft.

5. The general principle relating to the existence of a duty of care was enunciated by Mason J in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 where his Honour said at 44:-

"According to Lord Atkin's statement of principle in

Donoghue v. Stevenson (1932) AC 562, at p 580, as it has been

refined in later decisions, prima facie a duty of care arises on

the part of a defendant to a plaintiff when there exists between

them a sufficient relationship of proximity, such that a

reasonable man in the defendant's position would foresee that

carelessness on his part may be likely to cause damage to the

plaintiff (Home Office v. Dorsett Yacht Co. Ltd ((1970) AC

1004, at pp 1027, 1034, 1054, 1060); Anns v. Merton London

Borough Council ((1978) AC 728, at pp 751-752)." (emphasis

added)

His Honour went on to explain that foreseeability of the risk of injury and the likelihood of that risk occurring are different things. His Honour said at 47:-

"A risk of injury which is quite unlikely to occur, such as

that which happened in Bolton v. Stone ((1951) AC 850), may

nevertheless be plainly foreseeable. Consequently, when we

speak of a risk of injury as being 'foreseeable' we are not

making any statement as to the probability or improbability of

its occurrence, save that we are implicitly asserting that the

risk is not one that is far-fetched or fanciful. Although it is

true to say that in many cases the greater the degree of

probability of the occurrence of the risk the more readily it

will be perceived to be a risk, it certainly does not follow

that a risk which is unlikely to occur is not foreseeable."

"The considerations to which I have referred indicate that a

risk of injury which is remote in the sense that it is extremely

unlikely to occur may nevertheless constitute a foreseeable

risk. A risk which is not far-fetched or fanciful is real and

therefore foreseeable. But, as we have seen, the existence of a

foreseeable risk of injury does not in itself dispose of the

question of a breach of duty. The magnitude of the risk and its

degree of probability remain to be considered with other

relevant factors." (emphasis added)

6. These principles were reaffirmed in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, where it was held that a duty of care arose only where there was both foreseeability of injury and a relationship of proximity as between the plaintiff and the defendant. At 585-6, Deane J said:-

"The general framework of common law negligence was

expounded in Donoghue v. Stevenson ((1932) AC 562) in the

context of a case involving physical injury in the form of

personal illness (gastro-enteritis aggravated by shock). As

explained by Lord Atkin, the components of an action in

negligence in such a case are a duty of care, determined by

reference to the related tests of reasonable foreseeability and

proximity, breach of that duty of care and damages. In the

context of subsequent development and refinement, those

components can be stated, in a form appropriate to the

circumstances of the present case, as being: (i) a relevant duty

owed by the defendant to the plaintiff to take reasonable care

resulting from the combination of (a) reasonable foreseeability

of a real risk that injury of the kind sustained by the

plaintiff would be sustained either by the plaintiff, as an

identified individual, or by a member of a class which included

the plaintiff, (b) existence of the requisite element of

proximity in the relationship between the parties with respect

to the relevant act or omission and the injury sustained, and

(c) absence of any statutory provision or other common law rule

(e.g., that relating to hazards inherent in a joint illegal

enterprise) which operates to preclude the implication of such a

duty of care to the plaintiff in the circumstances of the case;

(ii) a breach of that duty of care in that the doing of the

relevant act or the doing of it in the manner in which it was

done was, in the light of all relevant factors, inconsistent

with what a reasonable man would do by way of response to the

foreseeable risk (see Wyong Shire Council v. Shirt ((1980) 146

CLR, at pp 47-48); The Wagon Mound (No. 2) ((1967) 1 AC at

pp 641-643) and Schiller v. Mulgrave Shire Council ((1972) 129

CLR 116, at pp 131-132); and (iii) injury (of a kind which

the law recognizes as sounding in damages) which was caused by

the defendant's carelessness and which was within the limits of

reasonable foreseeability."

7. The duty of a carrier to take reasonable care for the safety of its passengers has long been established: Crofts v Waterhouse [1825] EngR 809; (1825) 3 Bing. 319; 230 ER 536; Readhead v Midland Railway Co (1869) LR 4 QB 379; East India Railway Co v Kalidas Mukerjee (1901) AC 396. Moreover, it has now been established that occupiers of premises, to which a large aircraft would seem analogous, may be sued under the ordinary principles of negligence: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

8. When the flights occurred, it was known that environmental tobacco smoke could cause discomfort and even health problems to passengers in aircraft. Professor A.B.X. Breslin, who was called on behalf of the applicant, said inter alia:-

"There is no doubt whatever that exposure to passive smoking

by individuals may cause physical symptoms and objectively

measurable changes in various parameters in some of those

individuals. I say this because of my own clinical experience,

because of studies that we have undertaken in my laboratory and

published and because of other studies in the scientific

literature. The harmful effects of passive smoking

(Environmental Tobacco Smoke - ETS) are well established and

well accepted both medically and legally (see Morling judgment

in the Federal Court of Australia and subsequent ruling of the

Full Bench).

...

My own clinical experience indicates to me that many individuals

complain of the physical effects of ETS in overseas aircraft. I

see many patients with respiratory disease who are adversely

affected by ETS and this exposure may occur on aircraft. ...

There is absolutely no doubt in my mind that the areas

designated 'Smoking' in aircraft have very significant levels of

ETS and even the areas designated 'Non Smoking', particularly if

they are adjacent to the 'Smoking' areas, also have significant

levels of ETS."

9. Dr William Isles, who reported to Qantas in February 1991 on the effect of tobacco smoke on flight attendants, said inter alia:-

"There is little doubt that passive smoking causes eye, nose

and throat irritation and annoyance particularly to non-smoking

passengers and crew. This factor is aggravated by the low

humidity in the aircraft cabin. Medical authorities (and soon,

perhaps the courts) now agree that there is sufficient evidence

to link passive smoking with aggravation of asthma in existing

asthmatics, respiratory disease in children, and from long term

exposure, lung cancer."

"By making a real and visible commitment to assessing and

controlling exposure of the cabin crew to ETS in the aircraft,

compensation and common law claims may be reduced and the push

by more radical elements to ban smoking completely, regardless

of the economic consequences, may be deflected."

11. Dr D.K. McKenzie, who gave evidence for Qantas, said inter alia:-

"Prolonged flight in a commercial aircraft is associated

with a number of environmental problems which may cause symptoms

in a number of individuals. Some of the problems may be severe

in people with pre-existing medical complaints such as severe

respiratory or cardiac disease.

The main problem is reduced barometric pressure. ...

...

Another potential problem is the extreme low humidity. This

results in drying of mucus membranes in the nose, throat and

eyes.

Finally, the risk of transmission of infectious agents including

respiratory viruses is increased when a large number of people

are confined in a relatively small space for prolonged periods.

This list of problems is not intended to be exhaustive but

covers many of the symptoms reported by the claimants in this

matter.

... For otherwise healthy adults it has proven extremely

difficult to show any clinically significant adverse health

affects (sic) from prolonged exposure to environmental tobacco

smoke. ...

In contrast to the above, it is well documented that perhaps the

bulk of non-smokers find exposure to environmental tobacco smoke

unpleasant and irritating. Typical symptoms include some

watering of the eyes with increased rates of blinking and

soreness and irritation of the throat. These symptoms are

transient and disappear within a matter of minutes to several

hours."

Where there was a conflict between the evidence of Professor Breslin and that of Dr McKenzie, the trial Judge preferred the evidence of Professor Breslin, but the above passage was not in dispute.

12. By 1992, the problems of environmental tobacco smoke were, indeed, well-known in the industry. Air navigation regulations had banned smoking on all internal Australian flights since 1 December 1987. Qantas itself did not permit smoking on its flights between Australia and London; but on flights to Asia and certain European cities, smoking was permitted. In October 1992, the International Civil Aviation Organisation called on its 173 member states to restrict smoking on international air services with the objection of implementing complete smoking bans by 1 July 1996. The previous Minister for Transport has announced that the regulations will now be amended so as to prohibit as from 1 July 1996 smoking on all international flights to and from Australia. The regulations have in fact, since 1 March 1995, banned smoking on international flights between Australia, the United States and Canada.

13. Thus, at a relevant time, it was known to Qantas that flights in pressurised jet aircraft could give rise to health problems from reduced barometric pressure, low humidity, environmental tobacco smoke and transmission of infectious agents. Moreover, one or more of these factors could op erate with another or others so as to create or exacerbate a condition in a passenger, thus leading to discomfort or distress. It was also known that smoking had been banned on internal flights and that the banning of smoking on international flights was under consideration.

14. In these circumstances, given the relationship between Qantas and its passengers and the foreseeability of injury arising from any lack of care on behalf of Qantas, it is clear that Qantas was under a duty of care to its passengers with respect to environmental tobacco smoke in aircraft cabins. The principal issue is whether or not there was a breach of this duty.

15. The test to be applied in determining whether there has been a breach of duty was stated by Mason J in Shirt's case as follows at 47:-

"In deciding whether there has been a breach of the duty of

care the tribunal of fact must first ask itself whether a

reasonable man in the defendant's position would have foreseen

that his conduct involved a risk of injury to the plaintiff or

to a class of persons including the plaintiff. If the answer be

in the affirmative, it is then for the tribunal of fact to

determine what a reasonable man would do by way of response to

the risk. The perception of the reasonable man's response calls

for a consideration of the magnitude of the risk and the degree

of the probability of its occurrence, along with the expense,

difficulty and inconvenience of taking alleviating action and

any other conflicting responsibilities which the defendant may

have. It is only when these matters are balanced out that the

tribunal of fact can confidently assert what is the standard of

response to be ascribed to the reasonable man placed in the

defendant's position." (emphasis added)

16. Qantas had taken some steps to mitigate against the risks which environmental tobacco smoke posed. On flights where smoking occurred, Qantas permitted passengers to express a preference for a non-smoking seat and allowed smoking only in the seats set aside as smoking seats, prohibiting the use of pipes and cigars even there. The number of seats allocated as smoking seats was relatively small. The seating arrangements, as shown in one of the several diagrams of aircraft configuration which are before the Court, show the seats allocated for smoking as four out of 16 in first class, twelve out of 60 in business class and 46 out of 330 in economy class. In this diagram, the smoking seats in economy are set in the rear of the plane, but the smoking seats in first class and business class are set along one side. There is no bulkhead or like division between the smoking seats and the remainder of the cabin and the air-conditioning system serves all parts of the aircraft. In the configurations of some other aircraft there are some smoking seats in the middle of the aircraft, or in the centre seats.

17. When it received and accepted a booking for a first class or business class seat, Qantas allocated a specific seat to the passenger. If the request was made for a non-smoking seat, such a seat would be allocated unless the passenger was otherwise advised. However, that seat could be adjacent to, or in the vicinity of, smoking seats. Like other international airlines, Qantas did not allocate a specific seat at the time of the acceptance of the booking of an economy class seat. Qantas allowed passengers to indicate a preference, such as for a window seat or an aisle seat, a seat towards the front or towards the rear of the plane and like matters. One of the matters which an intending passenger could request was a non-smoking seat. The actual allocation of seats was carried out through the use of a computer approximately 48 hours prior to the flight. The allocation so made could, at any time, be overridden manually. Because of the many requests made, because of changes in flight plans and because, on occasions of simple error, not all requests were granted.

18. Qantas also had a practice, described in one of its brochures, whereby persons with disabilities or medical conditions who produced a medical certificate could make a special request with respect to flight seating, which Qantas would, if possible, accommodate. However, this was not a satisfactory system to cope with the problems of environmental tobacco smoke. There are many people in the community who live a healthy life without encountering a problem from environmental tobacco smoke which necessitates the obtaining of a medical certificate. A long flight in an international aircraft poses special problems. The length of time the passengers are together in the aircraft and the impossibility of relief as well as the presence of low humidity, tobacco smoke and infectious agents can, as the hours go by, manifest or exacerbate a condition which otherwise would not have appeared or would have caused little or no trouble.

19. The learned trial Judge found that Qantas had breached its duty of care and expressed his reasons in this way:-

"What would a reasonable person in the respondent's position

do in response to the risk involved here? In my view, it was

reasonable to expect that the respondent would warn its

passengers that, although a passenger might be allocated a seat

in an area where smoking was not permitted, there was still a

risk of exposure to smoke drift from smoking in other areas of

the aircraft. This warning could, without any real difficulty,

or substantial expense, be placed in (1) the respondent's

timetable and information booklet and (2) on the passenger's

ticket. If such a warning were given, it would provide

passengers with smoke-sensitive disabilities with several

options, including the taking of pre-medication by way of

preparation for the flight, or choosing a smoke-free flight."

20. I agree with the substance of his Honour's view. Many passengers, especially Australian passengers who are accustomed to travelling in smoke-free aircraft, could fail to turn their mind to the problems of environmental smoke on an international flight. Qantas' system whereby a passenger could request a non-smoking seat, tended to distract attention from the need which some passengers had to be in an environment which was smoke-free. Moreover, many intending passengers would be quite unaware that there may be a particular problem with aircraft travel because of the combination of smoke, low humidity and infectious agents. In my opinion, had Qantas given adequate attention to the effects of tobacco smoke upon its passengers, not merely its flight attendants, it would have developed a response to the danger which would have, at least, included the warning of potential passengers that environmental tobacco smoke could be encountered, and of its dangers. It would also have had a system in place whereby those passengers who had a health problem which necessitated freedom from environmental tobacco smoke would be given a reasonable opportunity to obtain the allocation of a seat which was quite removed from the smoking seats.

21. Such precautions would appear to have been practicable, and not excessively onerous or inconvenient to introduce. After all, all the system would have required, apart from an adequate warning of the dangers, was the giving of primacy in the allocation of seats to the requests of passengers who suffered ill health from contact with environmental tobacco smoke. Such a system was already in place for these passengers with medical problems who made a specific request and supported it with a medical certificate.

22. Qantas has relied upon the fact that evidence was not adduced to show that, in its arrangements, Qantas was deficient by comparison with other airlines. Apparently there are only two airlines, Air Canada, as from January 1991, and Delta, as from January 1995, which prohibit smoking on all flights. Neither flies to Australia.

23. This is, of course, a matter of considerable significance. Yet, it is not a complete answer. If a carrier acts in a careless manner, as by driving at an excessive speed or by failing properly to maintain a vehicle, it is no answer to a claim for negligence that many other operators do the same. If the parties are in a relationship of proximity and if personal injury or damage can be reasonably foreseen if care is not exercised, there is a duty on the part of the carrier to take such reasonable precautions as the circumstances warrant. Qantas is an Australian carrier and carries on its business in the context that smoking was banned on internal flights. On its part, personal injury to some passengers from environmental tobacco smoke could readily be foreseen. Therefore, steps which could reasonably have been taken to protect against the danger should have been taken.

24. All ten of the group members suffered a degree of discomfort or ill health during, and in some cases, after their flight.

25. The trial Judge found that tobacco smoke was a causative factor of the symptoms encountered in each case. It is impossible to say that smoke inhalation was the sole or only cause of the condition of each of the group members. Equally, matters such as barometric pressure, low humidity and infection may have played a part and, in some cases, perhaps a major part. However, in each case the passenger felt that the smoke was adversely affecting him or her.

26. In Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, Rich ACJ pointed out that the Court may draw an inference from the sequence of events. His Honour said at 563-4:-

"I do not see why a court should not begin its

investigation, i.e., before hearing any medical testimony, from

the standpoint of the presumptive inference which this sequence

of events would naturally inspire in the mind of any

common-sense person uninstructed in pathology. When he finds

that a workman of the not-so-young standing attempts in a

posture calculated by reason of the pressure on the stomach to

disturb or arrest the rhythm of the heart a very strenuous task

not forming part of his ordinary work and then collapses almost

immediately and dies from a heart condition, why should not a

court say that here is strong ground for a preliminary

presumption of fact in favour of the view that the work

materially contributed to the cause of death? From this

standpoint the investigation of physiological and pathological

opinion shows no more than the current medical views find

insufficient reason for connecting coronary thrombosis with

effort. Be it so. That to my mind is not enough to overturn or

rebut the presumption which flows from the observed sequence of

events. If medical knowledge develops strong positive reasons

for saying that the lay common-sense presumption is wrong, the

courts, no doubt, would gladly give effect to this affirmative

information. But, while science presents us with no more than a

blank negation, we can only await its positive results and in

the meantime act on our own intuitive inferences."

Counsel for Qantas submitted that his Honour's remarks were made over 50 years ago. But that does not reduce their force. His Honour's remarks have been cited and applied by many courts and tribunals. They found support in the High Court of Australia from Mason J, with whom Barwick CJ and Gibbs J agreed, and by Murphy, J in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303. In that case, at 311-312, Mason J, after referring to remarks of Menzies J in Australian Iron and Steel Limited v Connell 102 CLR at 535-6, said:-

"His Honour was there directing his remarks to a situation

in which, in his view, the medical evidence called did not

establish a causal connection between exertion and cardiac

failure. He was denying the proposition that 'experience' or 'a

common sense approach' could make up for, or provide, a

substitute for deficiencies in the medical evidence. No doubt

his Honour was correct in so saying. But it is quite another

thing to suggest that these remarks lend support to the view

that confirmation of expert evidence cannot be sought in a

sequence of events which tend to support the probability of a

causal connection or that a sequence of events cannot be called

in aid of drawing an inference which, according to expert

evidence, is open." (emphasis added)

27. The trial Judge was thus entitled to take the sequence of events into account together with the medical evidence, as he did, and so to make a finding of causation.

28. In his written report, Professor Breslin expressed the view that the physical effects suffered by each of the group members on board the aircraft was probably caused by or was contributed to by the environmental smoke complained of. In his oral evidence, Professor Breslin conceded that other causes were equally possible. His evidence as a whole should be read as favouring a probability of causation on the basis expressed in Forst's case, namely, that there was an inference to be drawn from the presence of environmental tobacco smoke and the passengers' conscious response to it.

29. There is also the further point to be considered, namely, whether had Qantas instituted a proper system of warning and booking to protect against ill health such as the group members suffered, each of the group members would have been encompassed by and would have taken advantage of it. I shall consider this aspect when dealing with the individual circumstances. The trial Judge considered, and I agree, that a proper warning would have directed the attention of intending passengers to the option of pre-treatment, such as using an asthma inhaler, which, in Dr McKenzie's view, could be effective.

30. I turn now to the particular group members. In dealing with their evidence, allowance must be made for the fact that in these proceedings, as tends to occur in group proceedings, much attention was directed to the "big issues" and little was given to the circumstances of each group claimant.

31. On 3 July 1992, two hours prior to her departure to Bangkok, Mrs Cameron first requested a non-smoking economy class seat. She was informed that there were no available non-smoking seats. She was allocated an economy class seat in a designated smoking area. Mrs Cameron gave evidence that at least one person across the aisle and one person behind her were smoking. She described the air as "smelly". Mrs Cameron gave evidence that she felt nauseous, her eyes dried up, her throat became raspy and she did not feel like eating. Two days after arriving in Bangkok, Mrs Cameron retired to her bed due to problems with her eyes and throat and did not attend any further tours. Subsequently, on her return to Sydney, Mrs Cameron was prescribed antibiotics.

32. Professor Breslin gave evidence that Mrs Cameron's initial symptoms of nausea, dry eyes and irritated throat were due to exposure to environmental tobacco smoke and that the subsequent respiratory infection and illness from which she suffered was aggravated by, and may have become fully manifest because of the environmental tobacco smoke.

33. I am of the opinion that Qantas breached its duty of care to Mrs Cameron and that, had it had in place an adequate system which included a warning to intended passengers of the risks involved, it is probable that Mrs Cameron would have taken advantage thereof. I agree with the trial Judge's findings on these points.

34. In 1992, Mr Hooper booked a flight to Honolulu. He informed his travel agent that he wished to have a non-smoking, economy class seat. That request was passed on to Qantas which noted it in the Reservations Record. On returning to Australia on 19 December 1992, Mr Hooper was informed at the check-in counter that Qantas could not provide him with the non-smoking seat requested and would have to give him a smoking seat. Mr Hooper informed the staff that he could not fly in the smoking section because the smoke made him suffer from nausea. However, he was allocated a seat in the smoking section and his request on board the aircraft to be moved was refused as the aircraft was totally booked out. Over the first four to five hours of travel, Mr Hooper had to get up and walk about the aircraft and, on several occasions, went to the toilet to vomit. Approximately one and one-half hours outside Sydney, Mr Hooper was moved to a flight attendant's fold-down seat. About 20-30 minutes later, he was moved to a non-smoking seat in the forward business class section. Mr Hooper's symptoms subsided once he was moved away from the smoking section.

35. Professor Breslin considered that, on the balance of probabilities, the symptoms of nausea and vomiting from which Mr Hooper suffered were due to exposure to environmental tobacco smoke.

36. I agree with the trial Judge that Qantas breached its duty of care to Mr Hooper and that it is probable that, had Qantas had an adequate system in place to alleviate the effects of environmental tobacco smoke upon susceptible passengers, Mr Hooper would not have suffered his ill health.

37. In September 1992, Mr Lewis made arrangements to travel to Bali with his wife and two children. He asked his travel agent for economy class non-smoking seats. A week before the flight, Mr Lewis phoned Qantas to check the flight details and to check also that non-smoking seats had been requested. He was informed that they had.

38. Indeed, the Reservations Record showed that non-smoking seats were requested. Upon checking in, however, seats were allocated in the smoking section of the aircraft. Again, a request for non-smoking seats was refused on the aircraft. Mr Lewis experienced sinus problems, felt ill and suffered from irritation of the eyes. Other members of his group suffered likewise. Mr Lewis moved his wife and two children to the galley of the aircraft, putting them on blankets and pillows. Mr Lewis and his family returned to their allocated seats for landing.

39. Professor Breslin again thought it probable that Mr Lewis' eye irritation, nausea and nasal symptoms were due to exposure to environmental tobacco smoke.

40. On the evidence, an inference can and should be drawn that, had Qantas had an adequate system in place to protect persons known to react adversely to environmental tobacco smoke, Mr Lewis would have taken advantage of it.

41. In these circumstances, I agree with the findings of the trial Judge on liability and causation.

42. In 1993, Commander Glass booked a return trip from Melbourne to Frankfurt via Bangkok. He requested a non-smoking seat in the business class section of the aircraft. On the Frankfurt-Bangkok leg of his return trip to Sydney, Commander Glass was seated in Seat 24A which was a non-smoking seat in the business class section of the aircraft. He was aware that someone was smoking in the business class section. On the Bali-Melbourne leg of the trip, Commander Glass was seated in a non-smoking business class seat, Seat 27A. However, two seats in Row 27, located directly across the aisle in the centre of the aircraft, were designated smoking seats. The passengers in those two seats smoked constantly. As a result, Commander Glass was unable to sleep for the whole of the trip to Sydney.

43. In my opinion, it has not been shown in the case of Commander Glass that any further system instituted by Qantas would have been directed at a person such as Commander Glass. Commander Glass was allocated a non-smoking seat. He did not suffer from a sensitivity to smoke which required special treatment from Qantas. He suffered discomfort rather than ill health as a result of the environmental tobacco smoke. I am not satisfied that, had additional precautions including a warning been in place, Commander Glass would have been encompassed by those precautions and would have taken advantage of them.

44. In September 1993, Ms Aroney booked a round-the-world business class airline ticket. She informed her travel agent that she had to have a non-smoking seat due to the fact that she suffered from asthma. She requested seat 18A, which she was told by the agent that she could have from Los Angeles to Sydney. When Ms Aroney checked in with Qantas at Los Angeles airport, a Qantas staff member told her that he had no knowledge of her booked seat. He informed Ms Aroney that he would give her a different non-smoking seat, Seat 25A in business class. Ms Aroney's boarding pass so indicated. Once on board the aircraft, however, it appeared that Seat 25A was a smoking seat. The passenger seated behind Ms Aroney smoked. Ms Aroney found that the smoke affected her physically, her lips became swollen and trembling, her eyes watered and she commenced to wheeze. She moved to the attendant's jump-seat and remained there or on the floor of the aircraft for 8-10 hours of the flight. She returned to her own seat only to eat breakfast and to land in Sydney. On returning to Sydney, she developed an earache and sought medical attention.

45. Professor Breslin gave evidence that, in his opinion, Ms Aroney's watering eyes, her episode of asthma and her swollen lips, but not her later condition, resulted from her exposure to environmental tobacco smoke.

46. I see no error in the findings of the trial Judge on liability and causation. Had Qantas had in place a suitable system to protect presons such as Ms Aroney from exposure to tobacco smoke, Ms Aroney would have taken advantage of it and would not have suffered ill health.

47. In 1993, Ms Jacoby booked a non-smoking business class seat in the bulkhead of the aircraft. On 11 June 1993, Ms Jacoby and three persons with whom she was travelling decided to return to Sydney a day early. She was informed that non-smoking business class seats would be allocated and this was so indicated on her boarding pass. However, Ms Jacoby's seat, 23G, was in an area Qantas sometimes described in its records as a "no-preference buffer zone" rather than in a purely non-smoking zone. The no-preference buffer zone, a name given by Qantas to certain seats for its own purposes, was adjacent to a smoking zone. Ms Jacoby said that, after take-off, the smoke became unbearable. She started sneezing, her eyes were running, she suffered from inflammation and coughing. Ultimately, the flight services director found an economy class seat for her and she remained there for almost the entire trip from London to Bangkok. Ms Jacoby gave evidence that, on the flight, she felt really congested and that the symptoms remained with her for quite a period. She saw her local doctor twice to deal with her congestion.

48. Professor Breslin gave evidence that, in his opinion, it was probable that Ms Jacoby's upper respiratory tract symptoms were due at least in part to her exposure to environmental tobacco smoke, although low humidity in the aircraft may have contributed and there may also have been an added upper respiratory tract infection which may have been precipitated or aggravated by Ms Jacoby's exposure to the environmental tobacco smoke.

49. The evidence shows that, because of her sensitivity to tobacco smoke, Ms Jacoby sought and was allocated a non-smoking seat. However, she was not allocated a seat which was smoke-free or relatively so.

50. The findings of the trial Judge on liability and causation were well-founded on the evidence.

51. In June 1992, Ms Underwood saw a travel agent and requested a return economy class ticket from Brisbane to Bali. She requested a non-smoking seat. When she checked in, she asked for confirmation that the seat was a non-smoking seat and she was informed that it was. The seat was in a designated non-smoking zone, approximately three rows behind a designated smoking zone in economy class. Ms Underwood found that tobacco smoke was coming from the smoking area and drifting into the section where she was sitting. She found that her eyes watered, her nose became blocked and she found it hard to breathe. Upon arriving in Brisbane, she felt too ill to return home by bus. She stayed with a friend who drove her home the following day. Thereafter, she spent some days in bed taking cold and flu tablets.

52. Professor Breslin considered that the discomfort that Ms Underwood experienced on the plane was in part due to exposure to environmental tobacco smoke. He considered that there may well have been an added respiratory infection.

53. Ms Underwood had a known susceptibility to tobacco smoke. Had Qantas had an adequate system in place, it is probable that Ms Underwood would have taken advantage of it.

54. The trial Judge found that there was liability for negligence and causation. I agree with his Honour's findings.

55. In early 1993, Mr McMahon travelled from Sydney to the United States and Europe. He booked to travel in a non-smoking business class seat. His trip from Sydney was uneventful. His proposed departure date from London to Sydney was 20 February 1993. Approximately one week prior to this date, he checked the booking and it was confirmed. Some days later, he requested a change from 20 February 1993 to 19 February 1993. He was told that this could be done. On 19 February, he attended the check-in counter. He was informed that he was still booked on 20 February but that Qantas could put him on a later flight that day via Singapore. He was informed that it would be in business class and non-smoking. He was given three boarding passes for his flight to Sydney via Singapore and Brisbane. The boarding passes indicated that he was allocated non-smoking seats for three legs. However, on one sector, he found that passengers sitting in Row 27, across the aisle from him and in the centre seats were smoking. It appears that he had been seated in the area Qantas described as a "no-preference buffer zone". He felt distress, discomfort and unhappiness from the smoke. Later, within 24-48 hours after his arrival in Sydney, he found that he had a runny nose, coughing and sore throat which deteriorated to the point of bronchitis. He visited his doctor on five occasions and was sick over a three week period.

56. Professor Breslin reported that, on the balance of probabilities, the distress, discomfort and unhappiness suffered by Mr McMahon during the flight were due to his exposure to environmental tobacco smoke but that the illness which occurred following his arrival in Australia was not related to that exposure.

57. An inference can and should be drawn that, had Qantas had a proper system of care for persons susceptible to environmental tobacco smoke, Mr McMahon's illness would have been avoided.

58. I agree with the findings of the trial judge on liability and causation. Mr McMahon suffered from a sufficient degree of physical discomfort and distress to have suffered "personal injury" for the purposes of the law of negligence: Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94.

59. Dr Thomas suffered from asthma. He booked an economy class ticket with Qantas for travel from the United Kingdom to Australia in October 1992 but he did not then request a non-smoking seat as he was not aware that it was possible to do so before checking in. When he checked in, he requested a non-smoking seat and was informed that he had been given one. On board the aircraft, he became aware that he was close to the smoking area and informed a flight attendant that he was an asthmatic. The attendant replied that Dr Thomas would have to remain in his seat as the flight was full. Dr Thomas was distressed throughout the flight to Bangkok. On the subsequent Bangkok to Hong Kong sector and on the Hong Kong to Sydney sector, Dr Thomas was allocated a non-smoking economy class seat.

60. During his stay in Sydney, Dr Thomas saw a doctor with respect to his condition.

61. On 15 April 1993, Dr Thomas and his wife attended at the check-in counter at Sydney airport. They were informed that they had been upgraded to the business class non-smoking section. They were allocated seats 17A and 17B. They occupied these seats on the Sydney/Bangkok leg of the flight. However, on reboarding at Bangkok, they were informed that they had been reallocated seats 23A and 23B. It appears that they had been reallocated smoking seats as a young girl, who was an asthmatic and who had been separated from her parents and seated in a smoking seat, had suffered ill health and had been moved. During the flight, people in the seats directly behind Dr Thomas were smoking. The result of the change in seats was thus that Dr Thomas suffered ill health and had difficulty in breathing.

62. Doctor J.E. Hollins from Nottingham University Health Service has given a certificate that he treated Dr Thomas for asthma from 1984 onwards and that, in his opinion, environmental tobacco smoke would have worsened Dr Thomas' asthmatic condition during the course of the flight. Professor Breslin had no knowledge of the facts concerning Dr Thomas other than Dr Hollins' certificate but confirmed that it was well established that asthma can be made worse by exposure to environmental tobacco smoke.

63. Dr Thomas' problems arose because of the lack of an adequate system of warning and of booking which would protect persons such as Dr Thomas from experiencing ill health during their flight.

64. I agree with the findings of the trial Judge on liability and causation.

65. Mr Millane had a chest complaint and his doctor had advised him to stay away from smokers. Mr Millane was originally booked on a flight from Singapore to Sydney on 21 November 1993. Mr Millane requested a change in the flight. On 20 November 1993, Mr Millane was waitlisted on two direct flights for his return to Sydney from Singapore. At Singapore Airport, Mr Millane spoke to the attendant who informed him that he could guarantee an economy seat in the non-smoking area on the flight to Sydney via Jakarta. Mr Millane did not accept the offer but requested the checking-in staff to continue to look for a non-smoking seat on a direct flight to Sydney. After waiting for some time in the lounge, Mr Millane spoke to staff in the lounge area who told him that he was on the 8 o'clock flight to Sydney. When he boarded the flight, he realised that he had been allocated a seat in the smoking area. He told a flight attendant that he could not sit in a smoking seat and requested a change. He was informed that there could be no change as there were only smoking seats left in the aircraft. As a result of the smoke which he inhaled, Mr Millane started coughing and then vomiting and was not able to eat the meal.

66. Mr Millane's problems did not arise principally from the lack of an adequate system on the part of Qantas but from an error at Singapore Airport on the part of an officer of Qantas who allocated to Mr Millane a smoking seat when a non-smoking seat had been requested. The officer failed to inform Mr Millane that this had been done. This was a negligent act in the context that Mr Millane had a medical problem and had communicated to Qantas his requirement of a non-smoking seat. The act of allocating a smoking seat to Mr Millane, a business class passenger, when he had requested a non-smoking seat, and of failing to inform him that this had been done was negligent.

67. I am of the view that all the group members other than Commander Glass have established that Qantas breached the duty of care which Qantas owed to them and that they suffered personal injury thereby.

68. In respect of these group members, the trial Judge awarded damages ranging from $175 to $750. It was submitted that those awards were too low. However, it has not been shown that his Honour misdirected himself as to any matter of principle or that the sums awarded were so low that justice was not done. His Honour had the advantage of seeing and hearing each of the group members give his or her evidence. I would not interfere with his Honour's discretionary judgment.

TRADE PRACTICES ACT 1974 (Cth)

69. Section 51AA of the Trade Practices Act provides: -

"51AA. (1) A corporation must not, in trade or commerce,

engage in conduct that is unconscionable within the meaning of

the unwritten law, from time to time, of the States and

Territories.

(2) This section does not apply to conduct that is prohibited

by section 51AB."

Section 51AB of the Trade Practices Act provides, inter alia:

"51AB. (1) A corporation shall not, in trade or commerce, in

connection with the supply or the possible supply of goods or

services to a person, engage in conduct that is, in all the

circumstances, unconscionable.

(2) Without in any way limiting the matters to which the

Court may have regard for the purpose of determining whether a

corporation has contravened subsection (1) in connection with

the supply or possible supply of goods or services to a person

(in this subsection referred to as the 'consumer'), the Court

may have regard to:

(a) the relative strengths of the bargaining positions of the

corporation and the consumer;

(b) whether, as a result of conduct engaged in by the

corporation, the consumer was required to comply with conditions

that were not reasonably necessary for the protection of the

legitimate interests of the corporation;

(c) whether the consumer was able to understand any documents

relating to the supply or possible supply of the goods or

services;

(d) whether any undue influence or pressure was exerted on, or

any unfair tactics were used against, the consumer or a person

acting on behalf of the consumer by the corporation or a person

acting on behalf of the corporation in relation to the supply or

possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which,

the consumer could have acquired identical or equivalent goods

or services from a person other than the corporation."

70. The trial Judge found that the conduct of Qantas was not unconscionable in allowing smoking on those flights on which there were likely to be a significant number of persons who wished to smoke. I agree with this view. Qantas operated in a competitive environment and flew to destinations where smoking was still popular. Passengers who wished to travel with it included both smokers and persons who wished to travel in a smoke-free environment. It took steps to diminish the problem which arose from having smokers on the flight, although the steps which it took to alleviate the problems of tobacco smoke were not adequate.

71. This is not an appropriate case in which to enunciate all possible denotations of the term "unconscionable" as it is used in ss.51AA and 51AB of the Trade Practices Act. It is sufficient for present purposes that the term carries the meaning given by the Shorter Oxford English Dictionary, "2. Of actions, etc: Showing no regard for conscience; irreconcilable with what is right or reasonable 1565."

72. The conduct of Qantas was not of this character. Qantas did not act in blatant disregard of the medical problems which environmental tobacco smoke might cause. It acted to diminish the risks but unfortunately it failed to take all those steps which, as a reasonable carrier having regard to the health of its passengers, it could and should have done.

73. Section 52 of the Trade Practices Act provides:-

"52 (1) A corporation shall not, in trade or commerce, engage

in conduct that is misleading or deceptive or is likely to

mislead or deceive.

(2) Nothing in the succeeding provisions of this Division shall

be taken as limiting by implication the generality of subsection

(1)."

74. I agree with the trial Judge that it was not misleading for Qantas to describe certain of its seats as non-smoking seats although they may have been adjacent to smoking seats or in the vicinity of smoking seats with the result that the passengers therein might be affected by tobacco smoke. The ordinary meaning of "non-smoking" is that smoking is not permitted. The term was used by Qantas as it is by restaurateurs. In an aircraft, as in a restaurant where smoking is permitted in an allocated area, there is no guarantee that the environment will be totally free of tobacco smoke. I agree with the trial Judge that there was no breach of s.52 of the Trade Practices Act in this respect.

75. It was further submitted that it was misleading of Qantas to offer non-smoking seats when it did not guarantee that a passenger who booked, particularly an economy class passenger, would be given one, or, if given one, would receive a seat away from the smoking area. In my opinion, as a term of each contract was that Qantas did not guarantee the availability of a seat, let alone the allocation of a seat which would be totally free of environmental tobacco smoke, Qantas did not relevantly act in a manner that was likely to mislead or deceive so as to breach s.52 of the Trade Practices Act. Indeed, the mere offering of non-smoking seats indicated that smoking occurred in the aircraft's cabin.

76. The trial Judge found that there was misleading and deceptive conduct on the part of Qantas in relation to Mr Hooper, Mr Lewis, Ms Aroney, Dr Thomas and Mr Millane. In respect of these group members, his Honour found that the breach of s.52 of the Trade Practices Act had been a cause of the personal injury suffered.

77. As I am of the view that Qantas is liable to pay damages for its negligence, I propose not to examine the findings of the trial Judge based on s.52 of the Trade Practices Act. The task of determining whether there was a breach of s.52 of the Trade Practices Act, including whether there was a relevant representation as to a future matter to which s.51A of the Trade Practices Act applied, and whether any such breach was causally related to personal injury suffered by the passenger in the aircraft is a more difficult task than that arising under the law of negligence. Liability having been established, it is unnecessary to enter into this complex area.

78. The trial Judge ordered Qantas to pay 70% of the applicant's costs of the proceedings, subject to and without disturbing the special orders for costs made in favour of Qantas on 14 July and 21 December 1993 and 19 April 1995. His Honour directed that Order 62 Rule 36A(1) of the Federal Court Rules not apply. I would not disturb his Honour's order. Although the applicant did not succeed in its principal contention which sought the imposition of a ban on smoking on all Qantas international flights, the applicant had success in demonstrating that Qantas' system was inadequate and that Qantas had breached its duty of care.

79. I would allow the appeal to the extent of setting aside the judgment in favour of Commander Glass. The appeal and the cross-appeal should otherwise be dismissed. Qantas should pay 70% of the applicants' costs of the appeal and cross-appeal.

LINDGREN J These are two appeals, in each case from the judgment of Beaumont J given on 16 June 1995 and his Honour's judgment as to costs given on 10 July 1995. The application was brought by Mrs Cameron as a representative party under Part IVA of the Federal Court of Australia Act 1976. The "group members" to whom the proceeding related were Mrs Cameron and nine other persons. All ten claimed to have suffered from "passive smoking" or "environmental tobacco smoke" ("ETS") when they were passengers on international flights of Qantas. The respective flights in respect of which complaint was made (some group members also took associated flights on which they did not suffer ill effects from ETS) were as follows:

Name Date of Travel Route of Travel

(a) Brian Norman Hooper 19 December 1992 Honolulu/Sydney

(b) Ian Ronald Lewis 19 January 1993 Sydney/Denpasar

(c) Dr Kenneth Charles Thomas 12 March 1993 London/Bangkok

15 April 1993 Bangkok/London

(d) Francis William Millane 20 November 1993 Singapore/Sydney

(e) Ms Russell Jean Aroney 20 November 1993 Los Angeles/Sydney

(f) Leonie Paula Cameron 3 July 1992 Sydney/Bangkok

10 July 1992 Bangkok/Sydney

(g) Cmr Eric Donald Glass 28 May 1993 Frankfurt/Bangkok

30 May 1993 Bangkok/Melbourne

(h) Anita Louise Jacoby 12 June 1993 London/Sydney

(i) Paula Irene Underwood 19 August 1992 Denpasar/Brisbane

(j) Paul Leslie McMahon 19 February 1993 Singapore/Brisbane

2. By his order dated 16 June 1995, the trial judge ordered that Qantas pay damages to the ten group members as follows:

(a) Brian Norman Hooper $200.00

(b) Ian Ronald Lewis $175.00

(c) Dr Kenneth Charles Thomas $750.00

(d) Francis William Millane $200.00

(e) Ms Russell Jean Aroney $750.00

(f) Leonie Paula Cameron $250.00

(g) Cmr Eric Donald Glass $50.00

(h) Anita Louise Jacoby $250.00

(i) Paula Irene Underwood $200.00

(j) Paul Leslie McMahon $175.00

$3,000.00

3. The trial judge refused Mrs Cameron declaratory and injunctive relief.

4. On 10 July 1995 his Honour ordered that Qantas pay 70% of Mrs Cameron's costs subject to, and without disturbing, certain earlier special orders for costs in favour of Qantas. He also ordered that notwithstanding the fact that the amounts of damages totalled only $3,000, far less than the sum of $100,000 mentioned in O 62 sub-r 36A (1), the reduction by one third for which that sub-rule provides should not apply.

5. The group members' complaints arose from the fact that Qantas permitted smoking on international flights at all (Qantas did not permit smoking on domestic flights), from its system of allocating "smoking" and "non-smoking" seats, and from the circumstances of their particular cases in which they contend that Qantas represented that they would be free from the effects of ETS. They asserted three "causes of action": that Qantas had engaged in unconscionable conduct and misleading and deceptive conduct in contravention of the Trade Practices Act 1974 ("the TP Act") and that it had breached a common law duty of care owed to them. In respect of the first and second they sought declaratory and injunctive relief. In respect of the second and third they sought statutory and common law damages.

6. The trial judge rejected the claim of unconscionable conduct, found that Qantas had engaged in conduct that was misleading and deceptive towards five group members (Hooper, Lewis, Thomas, Millane and Aroney) and not in relation to the other five (Cameron, Glass, Jacoby, Underwood and McMahon), and found that it had breached a duty of care owed to all ten which had caused them to suffer loss or damage. There being no difference, in his Honour's view (the contrary was not submitted), between the measure of damages for misleading or deceptive conduct in contravention of the TP Act and for tortious negligence, his Honour arrived at the amounts mentioned earlier by reference to Qantas's tortious negligence.

7. Qantas challenges the findings of misleading and deceptive conduct in respect of Hooper, Lewis, Thomas, Millane and Aroney, and the findings in favour of all ten group members that Qantas owed them a duty of care, that it had breached that duty and that the breach had caused them loss or damage. It appeals against the orders for payment of damages and the order that it pay 70% of Mrs Cameron's costs.

8. Mrs Cameron attacks his Honour's failure to find that Qantas had engaged in unconscionable conduct, to make findings of misleading or deceptive conduct in respect of Cameron, Glass, Jacoby, Underwood and McMahon and to grant declaratory or injunctive relief and the quantum of damages awarded and the order for payment of less than full costs.

9. Mrs Cameron pleads a case along the following lines in her fifth amended statement of claim (numerals in bold print are the numbers of paragraphs in that pleading).

10. At all material times as and from at least 5 March 1992, Qantas knew or should have known that the smoking of cigarettes and other tobacco products on board Qantas aircraft was a health and safety hazard in that cigarette or tobacco smoke circulating in the air on board could cause, or contribute to causing:

"(a) acute irritant effects including to the upper and lower

respiratory tracts, nose and eyes;

(b) acute attacks of asthma;

(c) upper and lower respiratory tract disease, or exacerbation

thereof, in children and adults including consequential ear

infection;

(d) lung cancer; and

(e) cardiovascular disease." (4)

11. Qantas knew or should have known that the allocation of seating designated "smoking" or "non-smoking" was not effective to prevent cigarette smoke being dispersed into the air circulating in the area of seats designated "non-smoking" (5). Qantas implemented a procedure by which prospective passengers could request to be seated in a designated "non-smoking" zone, either prior to presenting at the airport for seat allocation and/or a boarding pass, and "upon making such a request group members were informed that they have (sic) been or will (sic) be allocated a seat designated non-smoking" (6). In these circumstances Qantas made one or more of the following representations with respect to a future matter:

"(a) that the ticket holder or prospective passenger will (sic)

be seated in a seat designated non-smoking;

(b) that the said seat will (sic) be in a designated

non-smoking zone; and

(c) that by occupying the seat the ticket holder or prospective

passenger will (sic) not be exposed to cigarette smoke during

the flight." (7)

12. The group members were led to believe that these representations would be fulfilled (8), but they were not, in that:

"(a) group members were not allocated a seat designated

non-smoking for all or part of the flight;

(b) group members were allocated a seat which, whilst

designated non-smoking, was not in a designated non-smoking

zone, but was in a smoking zone or in a 'buffer zone'

immediately in front of, behind or beside seating in a zone

designated for smoking; and

(c) in occupying the allocated seat, the group members were

exposed to cigarette smoke during flights." (9)

13. Further and in the alternative, notwithstanding the making of a request as referred to in para 6, "ticket holders or prospective passengers" who had already booked and paid for a seat were informed that they could be allocated a seat only in a designated "smoking" zone (10). (I presume that the reference in para 10 is, like that in para 6, to "group members".)

14. The next paragraph (11) seems to have no function as part of the pleading of a cause of action. It pleads that in the circumstances set out in paras 6 and 10, passengers who received boarding passes later than a group member might be allocated a seat in a designated "non-smoking" zone even though they had not previously requested one, and even though group members, in the circumstances set out in paras 6 and 10, were allocated seats in the "smoking" zone or "buffer zone". (The "buffer zone" is a group of seats in which smoking is not permitted but which are near "smoking" seats. It is also called the "no preference buffer" zone and the "non-smoking least desirable" zone. Although it is one of the designations in Qantas's seat configurations which are supplied to travel agents, only "smoking" and "non-smoking" are mentioned to intending passengers as the preferences available to be expressed by them.) Group members, wherever seated, were exposed to cigarette smoke during their flights (12).

15. Paragraphs 13-33 of the fifth amended statement of claim plead the particular facts of Mrs Cameron's case. It need only be noted that the "loss or damage" particularised in para 26 was "acute irritant effects including in the respiratory tract" and "bronchitis" and loss of the enjoyment and benefit of a holiday.

16. It is pleaded that Qantas, in trade or commerce, engaged in unconscionable conduct in contravention of s 52A (now s 51AB) and s 51AA of the TP Act, engaged in misleading or deceptive conduct in contravention of s 52 of the TP Act, and breached a duty of care which it owed to the group members.

17. Unconscionable conduct is pleaded in paras 34-43. I reach the conclusion below that no reason is shown to disturb the trial judge's finding that Qantas did not engage in unconscionable conduct.

18. Misleading or deceptive conduct is pleaded in paras 44-51. The pleading is founded on the making of the representations pleaded in paras 6 and 7 and Qantas's conduct referred to in paras 10, 11 and 12 referred to earlier. In particular, the group members call in aid s 51A of the TP Act (see below).

19. Negligence is pleaded in para 59 (apparently paras 52-58 had pleaded a claim in contract - they were omitted from the fifth amended statement of claim) which, because of the importance which it will assume, I quote in full as follows:

"59. Further, or in the alternative, the said loss or

damage was occasioned to the Applicant and other group members

by the negligence and/or breach of duty on the part of the

Respondent, its servants or agents.

Particulars

(a) Permitting smoking on Qantas aircraft and/or Qantas

flights;

(b) Failing to prevent smoking on Qantas aircraft and/or Qantas

flights;

(c) Implementing a policy or procedure in the allocation of

seating on Qantas aircraft designated smoking or non-smoking on

those Qantas flights where smoking was permitted such that

persons in designated non-smoking seats where nevertheless

exposed to cigarette smoke during the flight;

(d) Failing to warn or to adequately warn ticket holders or

prospective passengers that smoking was permitted on Qantas

flights and/or Qantas aircraft;

(e) Failing to warn or adequately warn ticket holders or

prospective passengers that they may be exposed to cigarette

smoke during the flights;

(i) where the allocated seat is not a designated non-smoking

seat;

(ii) where the allocated seat is designated as a non-smoking

seat, but is in a buffer zone;

(iii) where the allocated seat is designated as a non-smoking

seat and is in a designated non-smoking zone." (emphasis

supplied)

20. The Trade Practices Legislation Amendment Act 1992 (No 222 of 1992) commenced on 21 January 1993. Some of the group members' flights occurred before and the others' after that date. Prior to that date, the provisions of the TP Act prohibiting unconscionable conduct were found in the six sub-sections of s 52A. The amending Act added a new sub-s (7), re-numbered s 52A as s 51AB, and grouped s 51AB with a newly introduced s 51AA in a new PART IVA of the Act headed "UNCONSCIONABLE CONDUCT". Sections 51A and 52, the first two sections in PART V, were in the same form before and after the amending Act.

21. The relevant parts of ss 51AA, 51AB (formerly s 52A without sub-s (7)), 51A and 52 are as follows (the provisions introduced by the amending Act are in bold print):

"PART IVA - UNCONSCIONABLE CONDUCT

51AA(1) A corporation must not, in trade or commerce, engage in

conduct that is unconscionable within the meaning of the

unwritten law, from time to time, of the States and Territories.

(2) This section does not apply to conduct that is prohibited

by section 51AB.

51AB(1) A corporation shall not, in trade or commerce, in

connection with the supply or possible supply of ... services to

a person, engage in conduct that is, in all the circumstances,

unconscionable."

(2) Without in any way limiting the matters to which the Court

may have regard for the purpose of determining whether a

corporation has contravened sub-section (1) in connection with

the supply or possible supply of ... services to a person (in

this sub-section referred to as the 'consumer'), the Court may

have regard to --

(a) the relative strengths of the bargaining positions of the

corporation and the consumer;

(b) whether, as a result of conduct engaged in by the

corporation, the consumer was required to comply with conditions

that were not reasonably necessary for the protection of the

legitimate interests of the corporation;

(c) whether the consumer was able to understand any documents

relating to the supply or possible supply of the ... services;

(d) whether any undue influence or pressure was exerted on, or

any unfair tactics were used against, the consumer or a person

acting on behalf of the consumer by the corporation or a person

acting on behalf of the corporation in relation to the supply or

possible supply of the ... services; and

(e) the amount for which, and the circumstances under which,

the consumer could have acquired identical or equivalent ...

services from a person other than the corporation.

(3) ..........................................

(4) ..........................................

(5) A reference in this section to ... services is a reference

to ... services of a kind ordinarily acquired for personal,

domestic or household use or consumption.

(6) ...........................................

(7) Section 51A applies for the purposes of this section in the

same way as it applies for the purposes of Division 1 of Part V.

PART V - CONSUMER PROTECTION

Division 1 - Unfair Practices

51A (1) For the purposes of this Division, where a corporation

makes a representation with respect to any future matter

(including the doing of, or the refusing to do, any act) and the

corporation does not have reasonable grounds for making the

representation, the representation shall be taken to be

misleading.

(2) For the purposes of the application of sub-section (1) in

relation to a proceeding concerning a representation made by a

corporation with respect to any future matter, the corporation

shall, unless it adduces evidence to the contrary, be deemed not

to have had reasonable grounds for making the representation.

(3) .......................................

52 (1) A corporation shall not, in trade or commerce, engage in

conduct that is misleading or deceptive or is likely to mislead

or deceive.

(2) .........................................."

22. It was not suggested that the newly introduced provisions signify that the flights before and after 21 January 1993 are to be treated differently. It was not disputed that Qantas's conduct was in trade or commerce in connection with the supply of services for personal use or consumption. Accordingly, the prohibition found originally in s 52A and later in s 51AB applied respectively to Qantas's conduct before and after 21 January 1993, and s 51AA does not apply to the conduct (sub-s 51AA (2)). Contravention of the prohibition (or, for that matter, of the newly introduced general proscription of unconscionable conduct in s 51AA) does not give rise to a cause of action for damages, but affords a basis for declaratory and injunctive relief.

TRIAL JUDGE'S FINDINGS OF PRIMARY FACT WITH RESPECT TO THE DEALINGS BETWEEN

23. On 28 November 1994, 12 April 1995 and 18 April 1995, his Honour made findings of primary facts in relation to the ten group members. These were repeated in his final Reasons for Judgment. As well, in his final Reasons, the primary judge made findings of a general nature relevant to the group members as a whole, including findings relating to Qantas's system of allocation of seats, the progressive phasing out of smoking on international flights by Qantas and other international carriers, and the effect of ETS on aircraft passengers and Qantas's knowledge of this.

24. His Honour dealt with the claims of unconscionable conduct and negligence in relation to the ten applicants as a whole. I also find it convenient generally to deal with the facts and the grounds of appeal relating to those claims as a whole. But in relation to the claims that Qantas contravened s 52 and the issue of quantum of damages, it is necessary to give some account of his Honour's findings of primary fact in respect of the individual cases. Salient features of those findings are set out below. The five cases in which his Honour held that Qantas had engaged in misleading or deceptive conduct are addressed first.

25. His Honour accepted the passengers' evidence of the symptoms which they experienced (referred to below) "not as medical diagnoses or causation in any technical sense" (AB 769T-U). His Honour referred to letters of complaint written by seven of the group members to Qantas, and to comments written by Ms Underwood on a market research study form distributed during the flight, but I do not find it necessary to refer to them below.

THE FIVE FINDINGS OF CONTRAVENTION OF s 52 OF THE TP ACT: HOOPER; LEWIS; THOMAS; MILLANE; ARONEY.

(a) Brian Norman Hooper - 19 December 1992 - Honolulu/Sydney

26. Mr Hooper booked a flight from Sydney to and from Honolulu through a travel agent, Gary Fox of Travel Scene, and asked for a "non-smoking" economy class seat, to which Mr Fox said: "That should be fine" (AB 53R). Subsequently, Mr Fox told Mr Hooper that he had booked him on a particular flight from Sydney to Honolulu on 10 December 1992 and a return flight on 19 December, saying, "I've got you a non-smoking seat" (AB 53X). No complaint is made about the first flight.

27. On 19 December, when Mr Hooper attended at Honolulu airport to check in for his return flight to Sydney, one of Qantas's check-in staff said,

"I'm sorry, we cannot give you the non-smoking seat that you

requested. It is fully booked in that area (economy class) and

we will have to give you a smoking seat." (AB 54I-K)

28. Mr Hooper told the Qantas employee that he could not fly in the "smoking" section because it made him suffer from nausea. The Qantas staff member told him that he should raise the matter with the flight attendants on board to see whether something could be done.

29. Mr Hooper took his allocated economy class seat in the "smoking" section. People were smoking cigarettes from the time the plane took off and there was smoke in the cabin. Prior to take-off and several times afterwards, Mr Cooper requested to be moved to a "non-smoking" seat but was told that the plane was totally booked out in economy class. Over the next four to five hours he got up and walked around the aircraft and went to the toilets several times, in order to vomit. About an hour and a half outside Sydney he was moved to a flight attendant's fold-down seat. About 20-30 minutes later, he was moved to a "non-smoking" seat in the forward business class section of the aircraft where there were about ten empty seats. He saw two passengers there whom he recognised from the check-in area at the Honolulu airport where he had heard them told by Qantas check-in staff, "I'm sorry, we are fully booked. There are no seats available at this stage." The two passengers were seated in the business class section throughout the trip from Honolulu to Sydney, but the evidence did not show whether they paid an economy fare and were upgraded to business class by the check-in staff, or whether they paid a business class fare.

30. Mr Hooper wrote a letter of complaint to Qantas in which he asserted that he "would have preferred being off loaded than experiencing that flight again" (AB 509M).

31. A letter from Qantas to Mr Hooper in response to his letter of complaint referred to a record of a "generic" seating request by Mr Hooper indicating a "preference" for a window seat in a "non-smoking" zone. Accordingly, his Honour found that Qantas had accepted Mr Hooper's request for a "non-smoking" seat. He held that the agent's statement to Mr Hooper that he had "got" him such a seat meant no more than that Qantas had accepted the request. (I discuss later the significance of Qantas's "acceptance" or "recording" of a request.)

32. His Honour treated the agent's communication to Mr Hooper of Qantas's acceptance of the request as a representation by Qantas that Mr Hooper would be seated in a "non-smoking" zone (see later). Clearly, such a representation would be one "with respect to a future matter"; see sub-s 51A (1) of the TP Act quoted earlier. In Mr Hooper's case, as in the four cases following (Mr Lewis, Dr Thomas, Mr Millane and Ms Aroney), his Honour held that in the absence of countervailing evidence from Qantas, Qantas was deemed not to have had reasonable grounds for believing that it would have sufficient "non-smoking" seats on the flight (TP Act, sub-s 51A (2)), and so sub-s 51A (1) of the TP Act operated to deem the representation misleading.

33. A ground of appeal of Qantas specific to Mr Hooper is that there was no evidence to support his Honour's finding that at the time of Mr Hooper's reservation, Qantas did not have sufficient "non-smoking" seats to meet his request. A ground of appeal of Qantas peculiar to Messrs Hooper, Lewis and Millane is that his Honour erred in finding (a) that Qantas had represented to them that they would be seated in "non-smoking" seats, and (b) that the "request made (by them) of a travel agent that they be seated in a non-smoking seat conveyed a representation by (Qantas) that they would be so seated." A ground of appeal of Qantas common to all five of Messrs Hooper, Lewis, Thomas and Millane and Ms Aroney is that his Honour erred in finding that they had suffered damage in consequence of a contravention of s 52 of the TP Act.

(b) Ian Ronald Lewis - 19 January 1993 - Sydney/Denpasar

34. Mr Lewis booked flights from Sydney to Denpasar and return for a holiday in Bali with his wife and two children, through Warren Flower of National Mutual Travel. He requested economy class "non-smoking" seats. Mr Flower said: "That should be okay" (AB 68H). About a week before departure, he checked his flight details with Qantas over the telephone and he again requested "non-smoking" and was told: "Yes it's been requested." A letter from Qantas in response to Mr Lewis's complaint also acknowledged that non-smoking seats had been "requested" (AB 68L).

35. Upon checking in at Sydney Airport on 19 January 1993, Mr Lewis and his family were allocated "smoking" seats. Upon asking a member of Qantas's check-in staff what could be done about this, she told him that most of the plane had been "pre-booked" and that he should see what he could sort out on board. Once on board, Mr Lewis requested that he and his family be moved to "non-smoking" seats but the flight attendant said that nothing could be done.

36. Once airborne, "25 to 30 people" began smoking (AB 69S-T). Mr Lewis experienced sinus problems and irritation of the eyes and felt ill. He moved his wife and two children to the galley, putting them on blankets and pillows.

37. There was no evidence that Mr Lewis suffered from any physiological condition which rendered him particularly susceptible to the effects of ETS.

38. The trial judge's findings were relevantly the same as in Mr Hooper's case.

(c) Dr Kenneth Charles Thomas - 12 March 1993 - London/ Bangkok; 15 April 1993 - Bangkok/London

39. Dr Thomas arranged to travel economy class from London to Sydney and return via Bangkok. On 12 March 1993, on checking in at Heathrow Airport, London, he requested a "non-smoking" seat. He was told by the check-in staff that the seat number on his boarding pass represented a "non-smoking" seat (AB 193H-I). On board, he sat in his allocated seat (71H) in the "non-smoking" economy class section, but became concerned that he was close to the "smoking" section.

40. Shortly after take-off, both passengers on his right hand side started smoking. He complained to a flight attendant and said that he was an asthmatic. The attendant replied that he would have to remain in his seat as the flight was full. Throughout the flight from London to Bangkok, Dr Thomas experienced distress. No complaint is made in respect of the subsequent leg from Bangkok to Hong Kong or a later flight from Hong Kong to Sydney.

41. On 15 April 1993, when checking in at Sydney Airport for their return flight to London, Dr and Mrs Thomas were informed by Qantas staff that they had been upgraded to the business class "non-smoking" section. They were allocated seats 17A and 17B. No complaint is made in respect of the leg to Bangkok.

42. At Bangkok Airport they were reallocated to seats 23A and 23B. During the flight from Bangkok to London people sitting directly behind them smoked. Dr Thomas complained to the flight attendant and asked if he and his wife were in the "smoking" section and was at first told that they were not. But later, in response to further inquiry by Dr Thomas, the attendant informed him that they were indeed in "smoking" seats. Dr Thomas said that he was "an asthmatic" and that he could not "endure another 11 hour flight in a smoke filled environment" (AB 793M-O).

43. The flight attendant asked the flight director to speak to Dr Thomas. The flight director explained that a family had been split up during the flight from Sydney to Bangkok, that an asthmatic young girl in the family had been allocated a "smoking" seat, and that in order to resolve the family's problem Dr Thomas and his wife had been moved down since they had been "upgrades". During the flight, Dr Thomas "had difficulty breathing".

44. Beaumont J found no contravention of s 52 in respect of the London to Bangkok flight on 12 March 1993, but made this finding in respect of the Bangkok to London flight on 15 April 1993:

"... in the Bangkok/London flight in April 1993,

notwithstanding the representation made by the respondent's

staff at Sydney Airport (that Dr Thomas and his wife had been

allocated non-smoking seats, albeit on an 'up-grade'), they were

seated in the 'smoking zone' on this sector. In the absence of

any direct evidence from the respondent (I put aside the hearsay

material from the flight director, who was not called), the

respondent did not, in my view, have reasonable grounds for

making the representations." (AB 850G-N) (emphasis supplied)

45. The following three grounds of appeal relate exclusively to Dr Thomas:

"(7) His Honour erred in finding that the Appellant had no

reasonable grounds for representing to Dr Thomas at Sydney

Airport that he and his wife had been allocated non-smoking

seats on the flight to London.

(8) His Honour erred in ignoring the evidence of the change

to Dr Thomas' boarding pass in Bangkok.

(9) His Honour erred in putting aside 'the hearsay material

from the flight director' when this evidence was introduced by

Dr Thomas, no submission was put to his Honour that it should be

set aside and when his Honour's finding on primary facts

included a finding of that material."

46. The reason why the Thomases' seat allocation was altered at Bangkok from 17A and 17B to 23A and 23B, if proved by Qantas, would have negated the finding that there had not been reasonable grounds for the pre-flight representation at Sydney Airport that Dr and Mrs Thomas had been allocated "non-smoking" seats for the entirety of the flight to London. The split-up of the other family during the leg from Sydney to Bangkok and the allocation of the young girl to a "smoking" seat on that sector would have constituted an unforeseen supervening event.

47. However, in my view, Beaumont J did not err in "putting aside" the "hearsay material from the flight director". Qantas points to the facts that the evidence of what the flight director had said was given by Dr Thomas himself and that no submission was put to Beaumont J that it should be disregarded. But these considerations do not, in my view, make the flight director's statement evidence of the truth of the facts stated or enable it to be said that Qantas adduced evidence to the contrary of the proposition that it did not have reasonable grounds for making a representation that Dr and Mrs Thomas would have "non-smoking" seats for the whole of the flight from Sydney to London.

48. Similarly, although Dr and Mrs Thomas's boarding passes proved the change of seating from 17A and 17B to 23A and 23B, they did not establish the reason for the change.

(d) Francis William Millane - 20 November 1993 - Singapore/ Sydney

49. His Honour found that in respect of a Sydney/Los Angeles flight on 1 November 1993 and a Sydney/London flight in June 1994, Qantas accepted Mr Millane's requests for "non-smoking" business class seats in the "bubble" (upper deck). On both occasions, this did not eventuate. His Honour held that Qantas had made misleading representations because Qantas did not lead evidence that it had had reasonable grounds for the making of the representations. However, for reasons which do not matter, Mr Millane suffered no discomfort on those two flights.

50. Mr Millane was originally booked on a flight from Singapore to Sydney on 21 November 1993. He changed his flight in Zurich and on 20 November 1993 was "wait-listed" on two direct flights for the trip from Singapore to Sydney. At Singapore Airport, he spoke to the attendant at the Qantas business class check-in counter who told him that he could guarantee an economy seat in "non-smoking" on a flight to Sydney via Jakarta. Mr Millane requested that check-in staff continue to look for a "non-smoking" seat on a direct flight to Sydney, even if the seat was economy class.

51. After waiting in the lounge to be informed of his flight details, Mr Millane spoke to Qantas staff there who told him that he was on the 8 o'clock direct flight to Sydney. When Mr Millane boarded the aircraft he realised that he had been allocated a seat in the "smoking" area (seat 24B). He told the flight attendant that he could not sit in a "smoking" seat and asked for a change of seat. The flight attendant said that nothing could be done and that he would send a supervisor up. The supervisor told Mr Millane that only "smoking" seats were left in the plane.

52. The passenger in seat 24A, next to Mr Millane, was smoking. Mr Millane said that as a result of the smoke, he started coughing and then vomiting, that he was unable to eat his meal and that the flight was very uncomfortable because of all the smoke. The passenger in seat 24A realised that his smoking was having an impact on Mr Millane and reduced his smoking, after which "things improved".

53. Beaumont J noted that the flight from Singapore to Sydney was complicated by the fact that Mr Millane was "wait-listed". However, his Honour found that Qantas staff "did represent, without reasonable grounds, that the respondent could 'guarantee' a 'non-smoking' seat albeit in 'economy' class" (AB 851H-I).

54. The particular representation found to have been made is derived from the words spoken by Qantas staff at Singapore Airport. Qantas submits that the only "guarantee" then given was in respect of the indirect flight from Singapore to Sydney via Jakarta, rather than a direct flight as preferred by Mr Millane. I think that this is correct in relation to the express "guarantee" but I discuss the overall position later.

(e) Ms Russell Jean Aroney - 20 November 1993 - Los Angeles/ Sydney

55. Ms Aroney made arrangements through a travel agent, Mr Walker of Walker's Travel Centre, for a round-the-world business class airline ticket. Two flights were with Qantas: one from Sydney to Harare and one from Los Angeles to Sydney. She told the agent that she "had to have a non-smoking seat" due to the fact that she had asthma and she requested him to obtain seat 18A on the Qantas sectors, as a friend had told her that that seat had extra leg room. The agent told her that she could not have seat 18A from Sydney to Harare but that she could have it from Los Angeles to Sydney. In fact on the flight from Sydney to Harare, Ms Aroney occupied a "non-smoking" business class seat and she makes no complaint of discomfort on that flight.

56. When Ms Aroney checked in at Los Angeles Airport on 20 November 1993, a member of the Qantas staff told her that he had "no knowledge of (her) booked seat" (seat 18A) and that he would give her a different "non-smoking" seat (25A) in business class. Her boarding pass so indicated.

57. On the flight she was awakened by a sense of smoke around her and observed a lady smoking directly behind her. She protested to the flight attendant. He said, on inspecting her boarding pass, that she was in a "smoking" seat. He showed her a plan of the aircraft which indicated that seat 25A was "smoking". He told her that the woman seated behind her was also in a "smoking" seat and that Ms Aroney could not have another seat because there was none available, even in first class.

58. Ms Aroney then moved to the flight attendant's jump-seat "because the smoke was affecting (her) physically" in that her "lip was swollen and trembling, (her) eyes were watering and (she) had a wheeze" (AB 103I). She said that the wheeze was characteristic of her asthma in that "(she) wasn't able to take in enough oxygen" (AB 103J). She remained in the jump-seat or on the floor of the aircraft for eight to ten hours of the flight, returning to her seat only to eat breakfast and for landing in Sydney. A few days after returning to Sydney, Ms Aroney "developed an earache" and sought medical attention.

59. Beaumont J accepted that the travel agent told Ms Aroney that she "could have" "non-smoking" business class seat 18A from Los Angeles to Sydney. His Honour inferred that the agent purported to request seat 18A and that Qantas accepted the request but that its computer system did not properly treat the request. He held that the agent had authority from Qantas to confirm to Ms Aroney that Qantas had accepted the request. He held that in the absence of any explanation from Qantas as to why it was not possible to allocate seat 18A on the Sydney/Los Angeles sector, it must follow that Qantas had no reasonable grounds for its representation that it would be able to allocate that seat.

60. Qantas submits that the evidence shows that Ms Aroney was not seated in a "smoking" seat. It points out that her boarding pass, in evidence, recorded seat 25A as a business class "non-smoking" seat. It submits that it should be inferred that this was brought about by a "manual override" of the computer system. Beaumont J recorded that there was evidence before him that the "load controller" was able, by a "manual override", to increase the size of the non-smoking section by, for example, changing row 25 from "smoking" to "non-smoking". Finally, Qantas submits that seat 25A was therefore of the same designation as seat 18A, and that no particular consequence is shown to have flowed from the travel agent's statement that Ms Aroney could have "non-smoking" seat numbered 18A as distinct from "non-smoking" seat numbered 25A. In my view these submissions should be accepted.

THE FIVE FINDINGS OF "NO CONTRAVENTION": CAMERON; GLASS; JACOBY; UNDERWOOD; McMAHON.

(f) Leonie Paula Cameron - 3 July 1992 - Sydney/Bangkok; 10 July 1992 - Bangkok/Sydney

61. Mrs Cameron and two friends planned a holiday in Bangkok. One of the friends, Mrs Erickson, made the travel arrangements for them through Jetabout Travel, North Sydney, for a one week package holiday, departing Sydney on 3 July 1992.

62. On 3 July 1992 at check-in at Sydney Airport, Mrs Cameron requested a "non-smoking" seat and was told by Qantas staff that there were no "non-smoking" seats available. Mrs Cameron was allocated an economy seat (seat 75A) in a designated "smoking" area.

63. On board, she requested to be moved to a "non-smoking" seat. The flight attendant looked around the cabin and told her "that there were no seats available". At least one person across the aisle and one behind were smoking and Mrs Cameron described the air as "smelly". She said that she felt nauseous, her eyes dried up, her throat became "raspy" and she did not feel like eating.

64. Two days after arriving in Bangkok, Mrs Cameron "went to bed" in her hotel, due to problems with her eyes and throat, and did not attend any further tours with her two friends.

65. On 8 July 1992, Mrs Erickson telephoned Qantas in Bangkok and requested "non-smoking" seats for herself and her two friends for their return flight to Sydney on 10 July. A female member of Qantas staff said:

"You can rest assured, and tell your friend (Mrs Cameron) to go

back to bed and rest, it'll be OK, she won't have a smoking seat

going home." (AB 770G-H)

66. On 10 July, at check-in at Bangkok airport, Mrs Cameron was allocated a "smoking" seat. She protested, and one hour later was reallocated "non-smoking" economy seat 43J. She makes no complaint of discomfort on the flight from Bangkok to Sydney.

67. Back in Sydney, Mrs Cameron saw a doctor and was prescribed anti-biotics for her condition.

68. The trial judge said that although it was claimed that Jetabout was associated with Qantas, it was not suggested that Jetabout had made any material representation. In relation to the Sydney/Bangkok sector, his Honour found that Mrs Cameron had made no request for a "non-smoking" seat prior to check-in when she was promptly told that no such seat was available. A common misunderstanding by intending economy class passengers that if they arrive early at check-in counters they will have a better choice of seats was something of which, his Honour found, Qantas was aware but which it had done nothing to create. His Honour held that in these circumstances, the case was one of mere silence on the part of Qantas where there was no duty to speak, and accordingly he held that there was no contravention of s 52 in this respect.

69. In relation to the Bangkok/Sydney sector, his Honour found that despite initial problems, Mrs Cameron was eventually allocated, and received, a "non-smoking" seat. Accordingly, he held that in respect of this sector also, no contravention by Qantas had been established.

(g) Commander Eric Donald Glass - 28 May 1993 - Frankfurt/ Bangkok; 30 May 1993 - Bangkok/Melbourne

70. Commander Glass, who is employed by the Royal Australian Navy, telephoned Qantas to book a return flight from Melbourne to Frankfurt, via Bangkok. He requested a "non-smoking" seat in business class. His complaint relates to the Frankfurt/ Bangkok and Bangkok/Melbourne legs of the return flight to Sydney. On the Frankfurt/Bangkok leg, he was seated in a "non-smoking" seat (24A) in business class. He was aware that someone was smoking in the business class section.

71. On the Bangkok/Melbourne leg, the aircraft made a stop-over in Bali. From Bali to Melbourne he was seated in a "non-smoking" business class seat (seat 27A). The seat directly adjacent to his seat (seat 27B) appeared to him to be a "non-smoking" seat also. In fact, according to the relevant aircraft configuration diagram, seats 27A and 27B were in a "no preference buffer zone". The two seats in row 27 located directly across the aisle from Commander Glass, in the centre of the aircraft, were, according to the diagram, designated "smoking" seats. The passengers in those seats "commenced to chain smoke immediately (after) the no-smoking sign was switched off after take-off from Bali" (AB 82E).

72. Commander Glass was unable to sleep. He raised the matter with the flight attendant. The flight attendant offered to move him to another seat, but he declined the offer because, as he put it:

" ... the flight attendant agreed that there was smoke

throughout the cabin and that was the only option I was given.

It was also my impression that the cabin was full and I was

unable to see how that move could be done without causing

disturbance to other people which I felt was unnecessary as this

was 2 or 3 o'clock in the morning." (AB 93H-K)

73. The trial judge rejected a submission that it was misleading for the respondent to accept a reservation for a "non-smoking" seat, yet allocate a seat in the area designated "no preference buffer" or "non-smoking least desirable" zone. His Honour said:

"Although there may be questions of degree of exposure to smoke

drift involved, it remains true, both literally and as a matter

of substance, that such a seat is located in an area of seating

where smoking is not permitted." (AB 848X-849F)

(h) Anita Louise Jacoby - 12 June 1993 - London/Sydney

74. In 1993, Ms Jacoby, a producer for the television programme "60 Minutes" produced by Nine Network Australia Limited, booked a business trip through Show Travel, her itinerary being Sydney/Los Angeles/London/Morocco/London/Sydney. She arranged pre-allocated "non-smoking" business class seats in the bulkhead of the aircraft from Sydney to Los Angeles (seat 16B) and from London to Sydney (seat 18J), in order to have extra leg room.

75. Her complaint relates to her return from London to Sydney. On 11 June 1993 she telephoned a member of the Qantas London office staff and had a conversation which, she said, was as follows:

"'I wish to change the four seats that were booked on the

13th of June returning London Sydney to the 12th of June. She

(the staff member) said: 'What class?' I said: 'Business class.'

I indicated that we had those four seats booked on the 13th.

She said that we could have the four seats in business class

coming back on the 12th. I requested four seats that were in

the bulk head and that were non smoking. She said that we

should - that we'd get non smoking seats and that she would

endeavour to get us seats in the bulk head." (AB 177L-P)

76. On 12 June, about an hour before departure, Ms Jacoby and the three crew members attended the Qantas check-in at London's Heathrow Airport. A member of Qantas staff told her that she and the three crew members would be given four "non-smoking" seats in business class. The tickets and the boarding passes were issued at that time. Ms Jacoby boarded the flight and took seat 23G, a "non-smoking" seat according to her boarding pass, in the lower deck business class section of the aircraft.

77. According to the relevant aircraft configuration diagram, seat 23G was in a "no preference buffer zone". She said that she was never informed of this, and that if she had been she would have departed the following day in her pre-allocated seat (18J). She said that:

" ... after take-off or as soon as possible there were chain

smokers about two seats in the aisle away from me so the smoke

became unbearable." (AB 178N-O)

"I just started sneezing; my eyes were running; I had

inflammation; I was just coughing; it was really unpleasant."

(AB 179O)

78. She spoke to the flight services director, Geoff Hudson, and gave this evidence:

"(Mr Hudson) was going to endeavour to find me another seat

somewhere else. He - because the plane was full basically in

first class and in business class he was unable to find another

seat in either of those sections, so he proceeded to have a look

in economy for a seat for me and he found one and I subsequently

moved to the back of the plant (sic) (in economy class)." (AB

179H-J)

79. Ms Jacoby remained in that "non-smoking" economy class seat at the back of the plane for "almost the entire trip" from London to Bangkok. In Bangkok she was reallocated seat 12J in the upper deck "non-smoking" business class section and remained there for the trip from Bangkok to Sydney. She makes no complaint about this Bangkok to Sydney leg.

80. She said of her condition upon returning to Sydney:

" ... I was really congested. Those symptoms remained with me

for, you know, quite a period; it was almost up to a month that

I felt all blocked up. I actually went and saw my local doctor

to try and get something to deal with it." (AB 179W-180C)

81. The trial judge held that the position was the same, in principle, as in Commander Glass's case and accordingly held that there was no contravention of 52.

(i) Paula Irene Underwood - 19 August 1992 - Denpasar/ Brisbane

82. In June 1992 Ms Underwood booked a return economy class ticket with Qantas from Brisbane to Bali through a travel agent, Geoff Smith of Kelly Travelling, Coffs Harbour. She requested a "non-smoking" seat and he said: "I will make a note of that" (AB 143L). She later telephoned him and confirmed that he had noted her request.

83. On 19 August 1992 she and her two travelling companions attended check-in at Denpasar Airport for their return flight to Brisbane. She said that she confirmed with a male attendant at the check-in counter that her seat was a "non-smoking" seat. She and her two companions boarded the flight, taking their seats in the rear section (seats 59A, 59B and 59C).

84. According to the relevant aircraft configuration diagram, seats 59A, 59B and 59C were in a designated "non-smoking" zone in economy class, approximately three rows behind a designated "smoking" zone in the same class.

85. Ms Underwood said that smoke was coming towards the back of the plane where her seat was, that there was no barrier between the two sections and that there was nothing to stop the smoke coming back into the "non-smoking" area. She said that her eyes watered continually, her nose became blocked, she found it hard to breathe, and that at one stage she went to the toilet to get some smoke-free air. She informed a female flight attendant of her discomfort.

86. Upon arriving in Brisbane she felt too ill to travel home by bus to Lennox Head and a friend collected her. She stayed at the friend's place for the evening. The friend drove her home to Lennox Head the next day because she (Ms Underwood) was "too ill to get the bus, basically" (AB 147T). She purchased some cold and flu tablets and "spent the rest of (her) holiday in bed and (she) lost her voice" (AB 148C).

87. Beaumont J held that the agent had Qantas's authority to make the limited statement to Ms Underwood that he would make a note of her request for a "non-smoking" seat, but that no contravention of s 52 was established for the same reasons as his Honour gave in relation to Commander Glass and Ms Jacoby.

(j) Paul Leslie McMahon - 19 February 1993 - Singapore/ Brisbane

88. In early 1993, Mr McMahon booked a business class seat with Qantas from Sydney to Los Angeles and from London to Sydney through Westpac Travel. The agent asked him whether he wanted a "non-smoking" or "smoking" seat to which he replied: "Non-smoking". According to the ticket, the return flight from London to Sydney "was an open ended date, an approximate open ended date with the option to change if (he) didn't fly that date" (AB 787O-P).

89. About a week prior to his proposed departure date from London, 20 February 1993, Mr McMahon telephoned Qantas's London reservations office and told the staff that he "require(d) a return trip to Australia (on 20 February), business class, non-smoking." He said that the Qantas staff "confirmed availability" (AB 158U-W).

90. About three to four days before 19 February, he again telephoned Qantas's reservations staff in London and asked for the departure date to be changed from 20 February to 19 February to which the response was, "Yes" (AB 159E-G).

91. On 19 February, Mr McMahon attended the Qantas check-in at London/Heathrow Airport for the flight to Sydney. He was told that he was "still booked on 20 February" but that "(they) could get (him) on a later flight (that day) via Singapore" (AB 159M-O). Mr McMahon said that he asked whether the flight would be business class and whether it would be "non-smoking" to which the reply was, "Yes" (AB 159Q). The check-in staff gave Mr McMahon three boarding passes for his flight to Sydney via Singapore and Brisbane. The boarding passes indicated that he was indeed allocated "non-smoking" seats for all three legs of the trip.

92. He boarded the aircraft and travelled from London to Singapore without incident. On boarding in Singapore he sat in his allocated seat (27A) in the lower deck of the business class section. He said:

"After the flight commenced I noticed people lighting cigarettes

near me and I immediately conferred with the person sitting next

to me who was equally surprised." (AB 162B-C)

93. He raised the matter with the flight attendant in these terms:

"'Is this smoking or non-smoking?' and he said 'Smoking' ... I

showed him my boarding pass and said, 'It indicates that it is

non-smoking.' ... he said 'I'm sorry' and I said, 'How could

this happen?' and he said, 'It's possibly due to the change in

configuration of the plane, it is not compatible with this

boarding pass.' Then he (the flight attendant) said, 'I've

never seen this sort of thing happen before.'" (AB 163W-164F)

94. According to the relevant aircraft configuration diagram, seat 27A was in a "no preference buffer zone".

95. Mr McMahon said that smoke was coming from the passengers sitting in row 27 across the aisle from him, in the centre seats. According to the diagram, the centre seats in row 27 were in a "smoking" zone.

96. He said that he was aware of cigarette smoke in the air and felt "immediate distress and discomfort and unhappiness" but did not experience any physical effects on his body at that time (AB 164H-K). He remained in his seat for the duration of the flight to Brisbane. Under cross examination he agreed that if he had been seriously inconvenienced, it would have been the "natural thing" for him to ask to be relocated to another seat. He did not make such a request (AB 169K-M).

97. On the leg from Brisbane to Sydney, Mr McMahon sat in his allocated seat, 25B, and the trip was without incident.

98. Within 24 to 48 hours after arriving in Sydney he had "a runny nose, coughing, sore throat" which "deteriorated day by day to the point of bronchitis". He said that he could not speak or found difficulty in doing so, went to the doctor on at least five occasions and eventually began experiencing severe pains in his ribs as if he had a knife in them and was diagnosed as having pleurisy (AB 164R-T).

99. His Honour held that no contravention of s 52 had been established in respect of the flight from Singapore to Brisbane, for the reasons which he gave in respect of Commander Glass, Ms Jacoby and Ms Underwood.

TRIAL JUDGE'S FINDINGS OF PRIMARY FACT WITH RESPECT TO QANTAS'S SYSTEM FOR ALLOCATING "SMOKING" AND "NON-SMOKING" SEATS ON ITS INTERNATIONAL FLIGHTS

100. Non-contentious evidence was led by Qantas in relation to the nature of this system. The allocation of seats on Qantas's international flights is the subject of a "computerised departure control system". To all first and business class passengers and, in special cases, economy class passengers (examples of "special cases" are passengers travelling with infants and passengers suffering from a disability, as to which a medical certificate is usually required), Qantas offers pre-allocated seating. Pre-allocation is not available to other economy class passengers.

101. The computer system shows the configuration of the aircraft and the seats available. That information is available to the check-in clerk and, via the reservation system, to travel agents. The clerk or the agent enters any expressed preference, whether general or for a particular seat.

102. The computer system is programmed with the following fields:

(1) forward and "aft" search for an available seat;

(2) left and right search for an available seat;

(3) group requests;

(4) window or aisle seat;

(5) smoking or non-smoking seat.

103. If not all requests are able to be satisfied, the preferences drop off one at a time until a seat is allocated. The dropping off occurs in the following order:

(1) aisle or window seat;

(2) "smoking" or "non-smoking" seat;

(3) group seating;

(4) seat management;

(5) weight and balance considerations.

104. Some 24 hours prior to flight departure, "load controllers" complete an editing process in which they attempt to pre-allocate all passengers who have indicated seating preferences.

TRIAL JUDGE'S FINDINGS OF PRIMARY FACT WITH RESPECT TO QANTAS'S SYSTEM OF ALLOCATING "SMOKING" AND "NON-SMOKING" FLIGHTS

105. Garry Stephen Saunders of Qantas gave evidence that at the time of his giving evidence, 79% of all Qantas international flights were smoke-free and on most of the other flights, between 12-15% of seats were "smoking". He said that smoking was permitted on flights to continental Europe, Japan, Korea, Malaysia and South Africa. He gave detailed evidence which the trial judge accepted of the research which Qantas had carried out on international passenger air carriage. He said that there were only two international carriers which had prohibited smoking on all international flights, namely Air Canada (as from January 1991) and Delta (as from January 1995). He gave evidence of the international flights which Qantas had designated as "non-smoking" since March 1992. His evidence was that Qantas indicates, in its timetables and in the manuals which it supplies to travel agents, (1) which flights are smoke-free, and (2) the seat configuration on the aircraft. The trial judge found that on those flights on which smoking is permitted, "in an attempt to accommodate the problem of smoke drifting from the 'smoking' section to the 'non-smoking' area, the aircraft configuration allows for a number of seats adjoining the smoking section which are described as 'no preference buffer zone' or 'non-smoking least desirable'". (AB 803O-S).

106. Before Beaumont J, Mrs Cameron tendered a report of Dr William Isles, a member of Qantas's staff, dated 20 February 1991, that is to say, well before the subject flights taken by the ten group members. Dr Isles's report concluded as follows:

"There is little doubt that passive smoking causes eye, nose and

throat irritation and annoyance particularly to non-smoking

passengers and crew. This factor is aggravated by the low

humidity in the aircraft cabin. Medical authorities (and soon,

perhaps the courts) now agree that there is sufficient evidence

to link passive smoking with aggravation of asthma in existing

asthmatics, respiratory disease in children, and from long term

exposure, lung cancer." (AB 807N-R)

107. Mrs Cameron also called Professor Breslin, Clinical Associate Professor in Medicine at the University of Sydney and a consultant thoracic physician who has researched and published on the effects of passive smoking. His report dated 23 February 1995 was tendered. Professor Breslin said that studies showed that the effects of ETS in causing irritation, both streaming eyes and dry eyes, and nasal irritation are worse in conditions of low humidity such as the conditions which prevail on international flights. According to Professor Breslin, the low level of humidity in the aircraft cabin on such flights is apt to cause eye irritation and nasal irritation, breathing difficulties and nausea. He said that ETS had a marked effect on asthmatics, people with allergic rhinitis, people with respiratory disease and people who are atopic.

108. Qantas called Professor McKenzie, Associate Professor and Chairman of Respiratory Medicine, University of New South Wales. In his report dated 20 March 1995, he nominated as the major problem on lengthy flights in commercial aircraft, reduced barometric pressure which, he said, could cause pain in the sinuses or in the middle ear, and low humidity which resulted in the drying of mucus membranes in the nose, throat and eyes.

109. To the extent that there might be any conflict between the opinion evidence of Professor McKenzie and Professor Breslin, the trial judge accepted the views of Professor Breslin, given his greater experience in the particular area in question.

QANTAS'S RESPONSE TO GOVERNMENT PROPOSALS TO RESTRICT OR BAN SMOKI NG IN

110. The trial judge gave an account of correspondence between the Minister for Transport and the Chairman of Qantas. He noted that in February 1995, the then Minister for Transport announced that with Qantas's support, as from 1 March 1995, smoking would be banned on all non-stop flights between Australia, The United States and Canada, and that as from 1 July 1996, the ban would be extended to all Australian international flights, regardless of destination. The Minister said that the Government was "very concerned" about the adverse health effects of active and passive smoking which were "accentuated in enclosed environments such as aircraft cabins" (AB 819V-Y).

111. The trial judge discussed the meaning of "unconscionable" in ss 51AA and 51AB of the TP Act. He noted that the continuing provision, found formerly in s 52A and now in s 51AB, contains no definition of "unconscionable" but refers to certain matters to which, amongst others, a court may have regard for the purpose of determining whether a corporation's conduct has been "unconscionable". He noted that s 51AA, on the other hand, adopts the concept of unconscionability "within the meaning of the unwritten law, from time to time, of the States and Territories."

112. His Honour referred to various judicial and academic observations as to the signification of the concept of unconscionability. He referred, for example, to references to victimisation, manipulation, exploitation, unfairness, unreasonableness, unscrupulous taking of advantage, and to one person's taking advantage of another's special vulnerability or misadventure. His Honour concluded that Qantas's conduct in its policy of seat allocation did not bear any of these indicia of unconscionability.

113. The trial judge considered the case of each group member individually but also made some general observations. Some of the group members had made their bookings through travel agents. Mrs Cameron did not attempt to prove the authority of the respective travel agents, such as by calling them or a travel agent to prove industry practice, the tendering of agency agreements, or proof of a course of dealing between agents generally or the particular ones in question and Qantas. His Honour considered the position of the respective travel agents in the cases involving them.

114. Although each of the ten cases was necessarily considered separately, certain general conclusions drawn by his Honour affected all ten cases. In particular, his Honour concluded that acceptance by Qantas or by someone for whom Qantas was liable of a "booking" (to use what I intend to be a neutral and non-prejudicial term) of a "non-smoking" seat amounted to a representation by Qantas that the passenger would be seated in a "non-smoking" zone. On the appeal, Qantas submitted that such an "acceptance" constituted nothing more than a representation that Qantas would endeavour to meet the request having regard to other demands upon it.

115. The representation which his Honour so found to arise from a communicated acceptance by Qantas of such a booking was clearly a "representation with respect to (a) future matter" within sub-s 51A (1) of the TP Act and was required by that sub-section to be "taken to be misleading" if Qantas did "not have reasonable grounds for making the representation". Moreover, by reason of sub-s 51A (2), for this purpose Qantas was, unless it adduced evidence to the contrary, to be deemed not to have had reasonable grounds for making the representation. Qantas did not adduce evidence to the contrary, and his Honour's finding of misleading conduct was a necessary result in the five cases in which group members were in fact allocated "smoking" seats, given the effect which he gave to Qantas's communicated acceptance of a booking of a "non-smoking" seat.

116. The learned trial judge found that at all relevant times Qantas knew that passive smoking was apt to cause eye, nose and throat irritation and annoyance, particularly to non-smoking passengers, that the low humidity in the low pressure aircraft cabin aggravated the irritation and annoyance, and that passive smoking aggravated asthma in asthmatics and respiratory disease in children. His Honour concluded that Qantas was under a common law duty to take care for the health and safety of its passengers. On the appeal, it was not in dispute that Qantas owed its passengers such a duty.

117. The trial judge posed for himself the question, "What would a reasonable person in the respondent's position do in response to the risk involved here?" In an important passage which was the subject of attack by Qantas on the appeal, his Honour answered that question as follows:

"In my view, it was reasonable to expect that the respondent

would warn its passengers that, although a passenger might be

allocated a seat in an area where smoking was not permitted,

there was still a risk of exposure to smoke drift from smoking

in other areas of the aircraft." (AB 856Z-857H)

118. His Honour found, also in a passage the subject of attack, that such a warning could, without any real practical difficulty or substantial expense, be placed (1) in Qantas's timetable and information booklet and (2) on passengers' tickets. He considered that if such a warning were given, it would provide passengers with smoke-sensitive disabilities various options including that of taking pre-medication by way of preparation for a flight, or choosing a smoke-free flight. His Honour concluded that Qantas breached its duty of care.

119. Finally, his Honour considered that the breach caused the members of the group loss or damage. He so found by reference to the statement of principle by Deane, Dawson, Toohey and Gaudron JJ in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 127 ALR 180 at 183, to the effect that causation was a question "of fact to be resolved, on the probabilities, as a matter of common sense and experience". His Honour rejected a submission that causation had not been established and that this was demonstrated by the concession of Professor Breslin, under cross examination, that the symptoms which affected the group members were consistent with other causes such as low humidity and pressurisation. The trial judge said that,

" ... it does not follow that the applicant has failed to

establish that the respondent's failure to warn (of the risk of

exposure to ETS in the significant proportion of passengers with

smoke-sensitive disabilities, such as Mrs Cameron) caused the

damage in the form of aggravation of an existing condition which

was suffered by Mrs Cameron." (AB 858Y-859I)

120. Finally, his Honour awarded compensatory damages for aggravation of existing conditions and physical irritation and annoyance. He thought, however, that compensation was not to be awarded for disappointment at the loss of enjoyment of a holiday, and distinguished cases in which damages had been awarded for such a loss as being cases in which the cause of action was for breach of contract (his Honour referred to Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344).

121. In his Reasons for Judgment dated 16 June 1995, the trial judge expressed the provisional view that there should be no order for costs but reserved liberty to seek costs. In Reasons for Judgment published on 10 July 1995, his Honour decided that Qantas should pay 70% of the applicant's costs, without prejudice to earlier special orders for costs in favour of Qantas against Mrs Cameron. Beaumont J noted that on two issues each party had succeeded. Qantas had succeeded on the unconscionability issue and in those TP Act cases where there was silence and no specific representation. In the remaining five cases, the applicants had established misleading conduct but there was only an award of damages and no declaratory or injunctive relief. On the other hand the claim in negligence succeeded in the cases of all ten group members.

122. In the course of the hearing, counsel for the group members had said that the claims for damages were not as important for his clients as the claims for declaratory and injunctive relief. Nonetheless, Beaumont J noted that the claims for damages were never abandoned, were strongly contested and were the subject of a decision in an area which had not previously been considered by any court, not only in Australia, but, also, so far as counsel's researches went, in any other country. Moreover, his Honour took into account the fact that the applicants succeeded on proof of the primary facts and in the area of expert opinion evidence. Finally, he noted that although injunctive relief was refused for the established contraventions of s 52 of the TP Act, the refusal was a matter of discretion.

123. As noted earlier, the relevant prohibition is the continuing one formerly found in sub-s 52A (1) and now found in sub-s 51AB (1) of the TP Act to which I have referred, and s 51AA does not apply.

124. In my opinion, Mrs Cameron has not made out the ground of appeal that Beaumont J erred in failing to find that Qantas contravened that prohibition against unconscionable conduct.

125. In this respect, there is little that I can usefully add to what the trial judge and Davies J, a draft of whose Reasons for Judgment I have read, have said. I may, however, perhaps be excused for referring to what I have written on the statutory prohibition in The Laws of Australia, title 35.9, "Unconscionable Dealing", ch 3, paras (32)-(56).

126. Qantas attempted to devise and administer a system of seat allocation which fairly dealt with the interests of smokers and non-smokers, taking into account, as it had to do, many considerations including the lawfulness of smoking and the competitive international air travel market in which it operated. Its conduct is far from attracting the epithet "unconscionable" or the various suggested synonyms for that term noted earlier, all of them correctly importing a pejorative moral judgment.

127. Although each of the ten cases demands individual attention, there are two common issues: (a) the meaning of "non-smoking" as applied to passenger seats in the cabin of an aircraft and (b) the significance of a communicated "acceptance" or "recording" by Qantas of a request or preference for a "non-smoking" seat.

(a) The meaning of "non-smoking" as applied to passenger seats in the cabin of an aircraft

128. His Honour rejected, in my opinion correctly, a submission by Qantas that nothing more is conveyed by the expression "non-smoking" or "non-smoking seat" than that the occupant of a seat will not be permitted to smoke while occupying it. When an intending passenger expresses a preference for a "non-smoking" seat, he or she does so, and is understood by Qantas to do so, for self advantage, not self denial. The advantage sought, and understood by Qantas to be sought, is at least that the intending passenger's seat will be among like seats, that is, in an area of the aircraft in which smoking will not be permitted so that the occupant will be unaffected by smoking by passengers in that area.

129. Since the advantage being sought is freedom from ETS, questions of degree could arise. If there were only one "non-smoking" seat on an aircraft, the occupant would be subject to a restriction without enjoying the benefit of the imposition of a like restriction on others. In the present case, no "non-smoking" seat immediately adjoined a "smoking" seat. The case for Mrs Cameron was not, and apparently could not have been, conducted on the basis that the designated "non-smoking" seats involved in the case did not offer some advantage to their occupants. The case was conducted on the basis that the only relevant choice was between saying that "non-smoking" means "in an area of designated 'non-smoking' seats" or "in an area of designated 'non-smoking' seats which is also free of ETS originating outside that area".

130. Does "non-smoking" when applied to an aircraft seat have the latter significance? I think not. Although passengers will include "first timers" as well as "frequent flyers", it seems to me to be unreal to think that the expression is properly understood to indicate, even to a first time flyer, that the aircraft cabin will be physically divided so that ETS can not drift into any part of the area of "non-smoking" seats.

(b) The significance of a communicated "acceptance" or "recording" by Qantas of a request or preference for a "non-smoking" seat

131. As noted earlier, Beaumont J treated a communicated acceptance by Qantas of a request for a "non-smoking" seat as a representation by Qantas that such a seat will be allocated. The terms of the communications between Qantas and its agents on the one hand and the respective group members on the other hand will need to be closely considered. However, I do not think that the mere "acceptance", "recording" or "noting" (I treat them as synonyms in the present context) by Qantas of a "request" or "preference" for a "non-smoking" seat (or, for that matter, a "smoking" seat) signifies, immediately and without more, a representation by Qantas that the request or preference will be satisfied.

132. The number of seats on an aircraft is finite. The fact that there are, and are known to be, designated "smoking" and "non-smoking" areas signifies that it is, and is known to be, impossible to meet all conceivable distributions of requests for "smoking" and "non-smoking" seats. Once all presently designated "non-smoking" seats are filled, the next passenger requesting one must be told that there are none left, at least unless it is possible to re-designate an area of "smoking" seats as "non-smoking". What is important for present purposes is that the factors to which I have referred provide the background facts against which passengers are taken to know that Qantas accepts their "requests" or "preferences".

133. There remains the possibility, however, that on the facts of a particular case, the conduct of Qantas or its agents might rise higher than a mere noting of a request or preference. That conduct may, regarded as a whole, constitute a positive representation that the request or preference will be met. In particular, the question arises whether the passing of time accompanied by a failure by Qantas to advise that a request or preference previously recorded cannot be met may, in the circumstances of a particular case, constitute the making of such a positive representation.

134. Against the foregoing background, the ten cases can be considered.

135. Gary Fox of Travel Scene, told Mr Hooper: "I've got you a non-smoking seat" (AB 53X). Qantas had a record of a "generic" seating "request" indicating a "preference" for a "non-smoking" window seat. The trial judge construed the travel agent's words as meaning the same thing as Qantas's record, that is, that Mr Fox had caused Mr Hooper's request to be noted by Qantas. Although the contrary is arguable, I am not persuaded that his Honour was wrong.

136. Qantas must be taken to have known, in view of its awareness of the research into the effects of ETS in the artificial environment of an aircraft cabin on an international flight, that an expression of a preference for a "non-smoking" seat might, in the case of some passengers, be accompanied by a real concern on their part and be intended to have considerable significance. In fact, in Mr Hooper's case it was. We know that it was because he told the Qantas check-in staff at Honolulu Airport that he could not fly in the "smoking" section because it made him nauseous. But there is no evidence that he conveyed this to any relevant representative of Qantas previously. So far as Qantas knew previously, Mr Hooper's expressed preference for a "non-smoking" seat may have been nothing more than a casual and marginal preference as between the two seat designations. For present purposes, however, what matters is not this but the general consideration that Qantas must be taken to have known that an expression of a preference for a "non-smoking" seat might, in the case of some passengers, signify a choice of real importance to them. I will have occasion to refer to this "general consideration" when discussing the claims of other group members.

137. His Honour's findings do not reveal when the conversation between Mr Hooper and the agent took place, but it must have been prior to 10 December 1992, and the return flight in question occurred on 19 December 1992. Did the words spoken by the agent followed by Qantas's silence for at least seven days constitute a representation by it that Mr Hooper would have a "non-smoking" seat on the return flight from Honolulu to Sydney on 19 December? The answer is not obvious. If there was a representation, it arose from Qantas's conduct in accepting the booking and not disabusing Mr Hooper within a reasonable time after doing so. According to that view, and on the assumption that a reasonable time for disabuse had passed by the time when Qantas staff at Honolulu Airport told Mr Hooper that the "non-smoking" seats were fully booked, those staff were falsifying a representation by Qantas with respect to a future matter rather than giving Qantas's one and only answer to Mr Hooper's request.

138. In my view, however, a conclusion adverse to Qantas should not be reached in this way. A representation of the kind outlined was not pleaded. In all ten cases the representation was said to arise simply from the notified acceptance by or behalf of Qantas of the intending passengers' "request". This is one of several manifestations (see later) of the fact that the proceeding seems to have been conducted with an eye to establishing a precedent of universal application rather than as ten separate cases to be dealt with on their respective individual merits.

139. What is a reasonable time for notification by Qantas would be a matter for evidence about which no assumption could properly be made. It may be that a reasonable time would not expire prior to check-in time. If so, Qantas's conduct would not have "matured" into a representation before an intending passenger learned the true position.

140. It would be procedurally unfair to decide against Qantas on the basis outlined where Qantas has not been afforded the opportunity of adducing evidence in relation to the "failure to disclose within a reasonable time" issue.

141. Since mere acceptance of a request for a "non-smoking" seat does not, in my view, constitute a representation, I respectfully disagree with the learned trial judge that it provided a basis for a finding of misleading or deceptive conduct in Mr Hooper's case.

142. About a week before Mr Lewis's flight from Sydney to Denpasar on 19 January 1993, Qantas told Mr Lewis that a "non-smoking" seat as requested by the travel agent, Warren Flower of National Mutual Travel, had been "requested". He was not told during that week that the request could not be met. He learned of that fact only upon checking in at Sydney Airport for departure.

143. Although there was no evidence that Mr Lewis's request for a "non-smoking" seat had a special importance for him when it was made, let alone that Qantas was made aware of such importance, the general consideration to which I referred when discussing Mr Hooper's case applies. But so does the conclusion which I reached in respect of Mr Hooper.

144. Dr Thomas first requested a "non-smoking" seat at Heathrow Airport. Qantas staff represented that he would be in a "non-smoking" seat. He was: he was seated in an area where smoking was not permitted. His complaint was of smoke drift from "smoking" seats nearby. For reasons previously given, in my opinion there was no contravention of s 52 in this respect.

145. There was evidence that Dr Thomas suffered from an asthmatic condition. Therefore, for him his request for a "non-smoking" seat had a special importance. His evidence, challenged in cross-examination, was that he told Qantas staff at Heathrow Airport when checking in on 12 March 1993 that he suffered from asthma. The trial judge made no finding in this respect, although he found that Dr Thomas had informed a flight attendant of the fact on the flight from Bangkok to London. Whether or not Dr Thomas told the check-in attendant at Heathrow (I do not intend to imply a view that he did not do so), the general consideration mentioned above in respect of Mr Hooper applies.

146. In relation to the return trip from Sydney to London, Qantas staff at Sydney Airport represented, in effect, that Dr and Mrs Thomas would be in a "non-smoking" section throughout. But from Bangkok to London they were in "smoking" seats. Accordingly, Qantas made "a representation with respect to (a) future matter" for the purposes of sub-s 51A (1) of the TP Act. The representation is taken to be misleading if Qantas did not have reasonable grounds for making it (sub-s 51A (1)) and Qantas is deemed not have had reasonable grounds for making it if Qantas did not adduce evidence to the contrary (sub-s 51A (2)). I gave reasons earlier for concluding that Qantas did not adduce such evidence and also that there was not otherwise such evidence before the trial judge. Accordingly, in my view Beaumont J correctly found a contravention of s 52 (aided by s 51A) in relation to the Bangkok/London leg of the flight in the case of Dr Thomas.

147. As noted earlier, the express guarantee of a "non-smoking" seat related to an indirect flight from Singapore to Sydney via Jakarta. The trial judge found that Mr Millane had stated to Qantas that he had "a chest complaint" and that his doctor had told him to "stay away from smokers" but this was on the occasion of an earlier flight. There is no finding that he told the Qantas staff at Singapore Airport of these matters. However, he told them to continue to look for a "non-smoking" seat even if one was available only in economy class. This was probably calculated to convey to Qantas that it was important to Mr Millane to have a "non-smoking" seat. In any event, the general consideration identified above with respect to Mr Hooper applies.

148. Mr Millane left the Qantas staff searching for a "non-smoking" seat on a direct flight. When he was then told, without any qualification as to the kind of seating obtained, that he was on the 8.00 o'clock direct flight to Sydney, there was an implied representation that the search for a "non-smoking" seat on a direct flight had been successful. Mr Millane was allocated a "smoking" seat. Beaumont J's finding of a contravention of s 52 (aided by s 51A) was, with respect, correct.

149. In relation to the passenger's request, Ms Aroney's case is unusual. She alone of the group members requested a particular seat (18A) and the travel agent told her that she "could have the seat (18A) from Los Angeles to Sydney" (AB 97S-U). I see no reason to disturb the trial judge's conclusion that the travel agent was authorised by Qantas to make that representation on its behalf.

150. Ms Aroney told the travel agent that she had to have a "non-smoking" seat because she suffered from asthma and in any event the general consideration mentioned earlier in my discussion of Mr Hooper's case applies. These matters would be relevant to a failure by Qantas to give timely advice to Ms Aroney, if it had been the case that she was in fact to be in a "smoking" seat, although my conclusion in Mr Hooper's case in this respect would also have applied to Ms Aroney. However, in Ms Aroney's case, there was a contravention, albeit a "technical" one: she was, as noted earlier and below, seated in "non-smoking" seat 25A rather than in "non-smoking" seat 18A. Qantas did not adduce evidence showing why it was not possible to allocate seat 18A. Accordingly, Qantas contravened s 52 (aided by s 51A) of the TP Act.

151. As I indicated earlier, I think that Qantas's submission that the evidence shows that Ms Aroney was in fact in "non-smoking" seat 25A and that no loss flowed from her being in that seat rather than in "non-smoking" seat 18A, should be accepted.

152. In cases (g), (h), (i) and (j), the passengers were seated in areas of seats in which smoking was not permitted, although perhaps not as far as they would have liked from one or more "smoking" seats, and although, in some instances, in seats designated in the relevant aircraft configuration diagram as being in a "no preference buffer" or "non-smoking least desirable" zone. For reasons previously given, in my view contravention of s 52 was not established in these cases.

153. Nor was contravention established in case (f). Mrs Cameron first requested a "non-smoking" seat when checking in at Sydney Airport and was told that none were available. She accepted a "smoking" seat. Qantas had not in any way represented that each and every person requesting a "non-smoking" seat at check-in would be allocated one.

154. On the return flight from Bangkok to Sydney, Mrs Cameron's request for a non-smoking seat was, after an initial problem, duly satisfied.

155. The result of the foregoing is that, in my respectful view, the trial judge erred in finding contraventions of s 52 in the cases of Mr Hooper and Mr Lewis, but that no reason is shown to disturb any of his Honour's conclusions in respect of contravention or non-contravention of s 52 in the other eight cases.

156. I have not found it necessary to address alleged contraventions which it is not suggested caused loss or damage because of my view that the case is not one for declaratory or injunctive relief. It is not, for the reasons given by Beaumont J. Mrs Cameron had asked for declaration that Qantas had engaged in conduct, in trade or commerce, that was unconscionable in contravention of the various respective provisions of the TP Act "in relation to" its "policy of permitting smoking on aircraft flights operated by (it)" and its "policy and procedure in the allocation of seating on aircraft operated by (it) in which smoking is permitted". She also sought a declaration "as to the extent to which (Qantas) continues to engage in such conduct." As the trial judge observed, it would be quite inappropriate to make declarations in such sweeping terms. On the other hand, it would be impracticable to incorporate the necessary amount of detail which would be required to render a declaration certain in its meaning and not itself misleading.

157. In relation to injunctive relief, his Honour noted that by 1 July 1996, all of Qantas's flights would be smoke-free; that the injunctions sought would be likely to require supervision by the Court; that it would be difficult to formulate any injunction with sufficient precision; that because the precise scope of what was required by the injunction would not appear clearly on the face of the order, there would be a risk that persons might unwittingly fail to comply with it and so be at risk of penalty for contempt of court; and finally that it was unlikely that there would be further contravention of s 52 of the TP Act by Qantas. I have considered carefully the countervailing submissions made on behalf of Mrs Cameron on the appeal but do not think that they detract from the force of the matters mentioned by Beaumont J.

158. It remains for me to consider the issue of causation in relation to Qantas's contraventions of s 52 in respect of Dr Thomas and Mr Millane. As noted earlier, the particular contravention in respect of Ms Aroney (the allocation of "non-smoking" seat 25A rather than "non-smoking" seat 18A) did not cause her loss or damage.

159. In Dr Thomas's case, the relevant representation was made at Sydney Airport before he and Mrs Thomas boarded the aircraft for London. There was no evidence that the particular representation induced Dr Thomas to take the particular flight. Dr and Mrs Thomas were already at the airport and it cannot be inferred that the representation caused them to adhere to their plan to travel home on the particular flight for which they had a ticket as distinct from changing to a smoke-free flight.

160. Similarly, in Mr Millane's case, the relevant representation was made at the airport shortly before departure. However, the following exchanges in the course of the cross-examination of Mr Millane are relevant to the issue of causation in his case:

"Q. But you went to the airport on 20 November intending to

leave on that day, did you not?

A. Correct.

Q. You had changed from the 21st back to the 20th, true?

A. Right.

Q. Presumably the reason for the change was that you wanted to

go home on the 20th rather than on the 21st?

A. Correct.

Q. I suggest to you that when you got to Singapore Airport on

the 20th, firstly, that you were hoping you could get a seat,

second, that you were hoping it would be a non-smoking seat but,

thirdly, if you could not get a non-smoking seat you would take

what you would get. Do you agree?

A. No.

Q. Do you ask his Honour to accept that you would have gone to

Singapore Airport on the 20th and if you were told that you

could not get a non-smoking seat you would simply have gone back

to your hotel?

A. Yes.

Q. And taken a chance of getting home at some later point in

time?

A. Yes."

MR FRANCEY: Well, I object to that, your Honour.

HIS HONOUR: Just a moment.

MR FRANCEY: To say, 'take a chance' is inconsistent with the

witness's evidence. The witness has said that he had a flight

on the 21st and would have taken that flight.

MR HELY: You cannot assume that that is still there.

MR FRANCEY: Well, I think you can still assume it is still

there, rather more to the point, you cannot assume it is gone.

HIS HONOUR: Well, I will allow the question. It really goes to

credit and the answer has been given." (AB 215H-X)

161. The trial judge made no finding in this respect. In the ordinary course, the absence of a finding would point to a new trial limited to the issues of causation and quantum of damages in Mr Millane's case. Mr Millane was awarded damages of $200. If he should be entitled to damages, I see no reason to disturb this amount as an appropriate amount of compensation for the effects which the ETS had on Mr Millane.

162. If, in a new trial, Mr Millane again gave evidence to the effect of the passage quoted above and that evidence were accepted, at least the following further questions would arise:

(1) whether it can ever be appropriate to conclude that

personal injury or death is caused by a contravention of s 52 of

the TP Act for the purposes of recovery of damages under s 82 of

that Act (see Pritchard v Racecage Pty Ltd, unreported,

FCA/O'Loughlin J, 23 February 1996 and authorities there

referred to);

(2) whether the effects on Mr Millane's health and wellbeing

were, for the purposes of recovery of damages under s 82 of the

TP Act, caused by Qantas's misleading and deceptive conduct as

distinct from the smoking of other passengers and their

antecedent choice to smoke rather than not to smoke;

(3) whether a "non-smoking" seat on the flight on 21 November

would have been available to Mr Millane;

(4) whether the cost of Mr Millane's trip from Singapore

Airport to his hotel in the city, of his overnight accommodation

in Singapore and of his trip back to the Airport the following

morning, or some of those costs, would have to be deducted from

the sum of $200 as costs which he was saved by having acted on

Qantas's representation.

163. I do not express or imply any view in relation to any of these matters. I would propose that the parties have the opportunity of reaching an agreement in respect of causation and quantum in Mr Millane's case.

3. On a flight, passengers are "captives". More particularly, on Qantas's international flights, they are captives of Qantas for long periods in an artificial environment of low humidity and low air pressure. Some of them are first-time flyers. Others may not have previously experienced ETS in that artificial environment.

165. By the times of the flights taken by the ten group members, Qantas knew or must be taken to have known that passengers on its international flights who had certain predisposing conditions might well suffer substantial discomfort and at least temporary ill effects on health from the effect of ETS, low humidity and low air pressure. Qantas does not dispute that it owes a duty to all its passengers to take reasonable care for their health and safety. It disputes that in order to discharge that duty, it was incumbent upon it to give a warning for the benefit of passengers who were subject to such predisposing conditions. I think that it was, and for the reasons given by Beaumont J at first instance and by Davies J on the appeal.

166. Qantas submits that if it breached its common law duty of care, the trial judge was in error in finding that the breach caused the ill effects from which the group members suffered. It submits that the trial judge's reliance upon Professor Breslin failed to take into account the Professor's evidence in cross examination that ETS was no more than a possible cause of the symptoms complained of by the group members. In relation to the first of Qantas's attacks on the trial judge's finding of causation, the following passages from the cross examination of Professor Breslin are noteworthy:

"Q. Would you agree that the making of a positive diagnosis

of the cause of complaints in those circumstances (Professor

Breslin did not conduct a clinical examination of the group

members but had certain medical reports about them available to

him) is particularly difficult?

A. Yes, and I was at pains not to make a positive diagnosis but

to make a statement as to whether I thought environmental

tobacco smoke was consistent with some of the symptoms that they

had.

Q. Does it follow from what you have just said, professor, that

there could be other factors that are equally consistent with

some of the symptoms that these people had?

A. Yes.

Q. Is this right, professor, that you felt that as far as you

could responsibly go was to say that there was a possibility

that environmental tobacco smoke caused or impacted upon the

symptoms which these people complained of?

A. Correct." (AB 319K-R)

"Q. Would you agree that that infection may have developed into

a clinical illness whether or not she (Mrs Cameron) was seated

in smoking or non-smoking?

A. Oh, for certain, yes, absolutely.

Q. It may have developed into a clinical illness whether or not

she was exposed to environmental tobacco smoke on the flight or

not?

A. Yes.

Q. Would you agree that if she had such an incubating condition

it might have been aggravated by the conditions on the flight

apart altogether from environmental tobacco smoke?

A. Yes.

Q. So that even (sic - if) she had been flying the front

non-smoking cabin of economy the circumstances of flight may

nonetheless have aggravated an incubating condition. Is that

right?

A. Yes." (AB 320V-321G)

"Q. At the bottom line, so far as Mrs Cameron is concerned, is

this the position that you are not in a position to state

positively that any of the symptoms were caused by or aggravated

by exposure to environmental tobacco smoke as distinct from

other factors but you say that some of those symptoms could have

been exacerbated by that exposure?

A. Yes, having not seen the patient, particularly not seeing

the patient, Professor McKenzie and I are in the same boat. We

have not seen the patient particularly at the time of the acute

illness and therefore I believe that it could be one or the

other but quite consistent with environmental tobacco smoke.

David believes that because he didn't think environmental

tobacco smoke could do it, then he feels that the balance is in

favour of the other environmental factors. (AB 323E-J)

Q. Again, I do not want to misstate your position, Professor,

but I just want to make sure that I understand it in terms that

I am comfortable with. Is what you are telling his Honour that

it is conceivable that it was caused by environmental tobacco

smoke, it is conceivable that it was caused by a number of other

conditions and given the disadvantages under which you were

operating you are simply not in a position to say anything more

than that?

A. Yes, that's exactly right, it's consistent but not

diagnostic." (AB 324B-E)

"Q. Can we come back to Mr Hooper? I think you have agreed that

nausea and vomiting can result from causes other than

environmental tobacco smoke?

A. Correct.

Q. You have agreed that there are conditions on aircraft travel

other than environmental tobacco smoke which can produce those

symptoms, correct?

A. Yes, and sometimes before you get on the aircraft.

Q. Is it right to say that severe emotional and psychological

distress can produce those symptoms?

A. Yes." (AB 325F-J)

"Q. No, he (Commander Glass) did not, but would you not agree

that a patient who complains of symptoms can wrongly link those

symptoms to some stimulus to which he was exposed?

A. That's correct.

Q. One possibility is that Commander Glass for some reason or

another could not get to sleep and he rightly or wrongly

attributed to the presence of environmental tobacco smoke?

A. That's highly - that's a possibility, yes. It's highly

reasonable.

Q. So far as Mrs Aroney is concerned if I could ask you to turn

to her. Would you agree that her nasal sinus congestion and

painful left ear conditions are typical problems flowing from

changes in barometric pressure?

A. Yes, and I've said as much in my report.

Q. Yes. So that so far as those conditions are concerned is it

right to say that that is one possible cause of the problem and

in your view ETS is another possible contributor to the problem?

A. Correct." (AB 327H-O)

167. Notwithstanding the force of this effective cross examination of Professor Breslin, the passages from the judgment of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563-4 and from the judgment of Mason J, with whom Barwick CJ and Gibbs J agreed in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 at 311-312 referred to by Davies J persuade me that the trial judge was entitled to infer from the sequence of events (smoking followed by awareness of increasing discomfort) and the medical evidence as a whole, that ETS had caused the ill effects complained of.

168. There are however, other issues relating to causation. Before addressing these, it is appropriate to make four prefatory observations. Firstly, it is clear that Mrs Cameron's case was directed to what was perceived to be the public interest as distinct from the private interests of the ten group members. In particular, the recovery of monetary compensation was relatively unimportant. Before Beaumont J, counsel for the group members said so. It is difficult to avoid the impression that the necessity of proving all the essential elements of the ten claims for damages did not receive the close attention that it would have received in the familiar category of action in which a single plaintiff takes the trouble to sue to recover damages for personal injury.

169. Secondly, the case was not pleaded by reference to the special position of those prospective passengers who suffered from conditions which predisposed them to being affected by ETS. It is not pleaded specially that a duty of care was owed to them or that discharge of a duty of care owed to all passengers required special action by Qantas for the benefit of such individuals.

170. Thirdly, para 59 of the fifth amended statement of claim, quoted in full earlier in these Reasons, must be referred to again. In my view, negligence as particularised in paras (a), (b) and (c) of the particulars in para 59 was not made out, and it is only the particulars in paras (d) and (e) that call for further discussion. They merit repetition:

"(d) Failing to warn or to adequately warn ticket holders

or prospective passengers that smoking was permitted on Qantas

flights and/or Qantas aircraft;

(e) Failing to warn or adequately warn ticket holders or

prospective passengers that they may be exposed to cigarette

smoke during the flights;

(i) where the allocated seat is not a designated

non-smoking seat;

(ii) where the allocated seat is designated as a

non-smoking seat, but is in a buffer zone;

(iii) where the allocated seat is designated as a

non-smoking seat and is in a designated non-smoking zone."

(emphasis supplied)

171. For convenience, I will refer to "the para (d) warning" and "the para (e) warning". In relation to the para (d) warning, it must be borne in mind that prospective passengers were invited to express a preference as between "smoking" and "non-smoking" seats. Accordingly, all ten group members knew that smoking was permitted on the Qantas flights with which they were concerned. In my view Qantas was not in breach of the duty of care which it owed to the ten group members by reason of its not having done more to warn them that their flights were "smoking" flights.

172. It is therefore only the para (e) warning that merits further consideration. However, the para (e) warning implies the para (d) warning. Moreover, in the light of the view which I expressed earlier about the meaning of "non-smoking" as applied to aircraft passenger seats, the para (e) warning does no more than draw attention to certain matters which are inherent in the para (d) warning. It is merely a warning that passengers could be exposed to ETS during their flights notwithstanding the nature of their seat allocations.

173. Fourthly, the loss or damage particularised was the physical effects of ETS on health and well being of passengers and their sequelae.

174. Against the background of these four observations, I proceed to consider the case based on the failure to warn.

175. In any case based on an alleged negligent failure to warn or inform it is necessary (i) to identify with certainty the kind of warning or information which the circumstances called for, and (ii) to prove that if the warning or information called for had been given, the loss or injury alleged would not have been suffered. In the present case I am content to accept, without deciding, that the duty to warn incumbent on Qantas required the giving of the para (e) warning. This was, in effect, what the trial judge held. It must then be inquired what course the respective group members would have taken upon being given that warning.

176. One might have expected this question to be put directly to each group member. It was not. This is perhaps another illustration of the relative unconcern for the individual claims for damages. It may be, however, that other evidence relating to particular group members makes it proper to infer that they would have responded to the warning in a particular way. But it is evidence of the response which would have occurred to the particular hypothetical para (e) warning that matters: not, for example, evidence that if a group member had known what was in fact to befall him or her, he or she would have taken action to avoid the effects of ETS, such as by taking a different flight or taking medication.

177. In sum, if the evidence does not establish that it is more probable than not that a group member would have heeded the para (e) warning and taken a course in which he or she would not have suffered from the effects of ETS in the aircraft, that group member will have failed to establish a necessary element in the cause of action in negligence: Hotson v East Berkshire Health Authority [1988] UKHL 1; (1987) AC 750; Wilsher v Essex Area Health Authority [1987] UKHL 11; (1988) AC 1074; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 (CA) at 559 (Kirby P), 579-582 Samuels JA with whom Meagher JA agreed at 607); H v Royal Alexandra Hospital for Children (1990) Aust Torts Rep 81-000 (SC/NSW, Badgery-Parker J); Buchan v Ortho Pharmaceuticals (Canada) Ltd (1986) 25 DLR (4th) 658 (Ont CA) at 682; Smith v Barking, Havering and Brentwood Health Authority (1994) 5 Med LR 285 (QBD/Hutchison J); and see the recent discussion of failure to warn in a commercial context in Daniels v Anderson (1995) 37 NSWLR 438 (CA) at 525F-531A (Clarke and Sheller JJA, with whom Powell JA relevantly agreed at 586G) and the authorities there cited.

178. I digress to say that I do not think it proper to approach the case on the basis that the relevant duty of Qantas was not only to give a warning but also to have in place a system under which an intending passenger who responded to the warning by claiming to Qantas to suffer from a condition which predisposed him or her to the effects of ETS, would be assured of being located on the particular flight desired so far from smokers as not to be affected by their smoking. It suffices to say that the case in negligence was not pleaded or conducted on the basis of a duty addressed to the vulnerable, backed up by such a system. Moreover, in my respectful view, unless Qantas had the opportunity to lead evidence and make submissions directed to the point, it would be procedurally unfair to it to assume that such a system would be practicable.

179. When this point was raised in the course of argument on the appeal, Mr Hely QC who appeared for Qantas pointed to evidence of the fact that Qantas had had in place a system to cater for the special needs of, inter alia, passengers who suffered from disabilities or medical conditions and who produced a medical certificate. He was able to refer to a section of a Qantas timetable which had been in evidence before the trial judge headed "Air Travel for People with Disabilities". His submission was that it would be procedurally unfair to Qantas now to conclude that it should have had a system in place under which any intending passenger who, apparently at any point of time and without a medical certificate, claimed to suffer from a condition of health which made him or her peculiarly susceptible to the effects of ETS, would be assured of being allocated a seat sufficiently distant from "smoking" seats not to be affected by ETS. The point gains support from the following passage from the re-examination of Mr Handley:

"Q. Would there be any disadvantage or disadvantages if Qantas

attempted to offer a system of pre-allocation of seats to all

economy class passengers?

A. It's been proved in situations where that happens with other

airlines that they get themselves into all sorts of trouble by

doing so, numerically. It's the volume of seat requests that

are made that slows down the reservations process. In the case

of economy class in particular, the aircraft are frequently in

an oversale situation and therefore not all requests can be met

at any stage." (AB 264H-L)

180. Although this evidence was directed to the question of a general system of pre-allocation of economy class seats, it may be that evidence of the same general kind would have been led in respect of a more limited system of pre-allocation for the protection of passengers susceptible to the effects of ETS if the case had been pleaded and conducted by reference to their special position.

181. It may or may not be the case that further evidence would show that a practicable system could not have been instituted to meet the positions of such passengers. All that matters for present purposes is that it would be unjust at this stage, in the absence of any exploration of the issue at the trial, to assume against Qantas that it could have instituted and administered a practicable system to meet the needs of such individuals.

182. It will be recalled that the loss or damage particularised was the effects of ETS on health and their sequelae, not the loss of the opportunity to avoid them; cf CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47 (CA) at 56-57 (Kirby P). But even if a loss of opportunity had been particularised as the loss or damage in question, a group member would have had to prove, in order to establish causation of loss and thus liability, at least that probably he or she would have heeded the warning by attempting to take a course of avoidance and that the lost opportunity of avoidance had had some value: see Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 353 (Mason CJ, Dawson, Toohey, Gaudron JJ), 364, 368 (Brennan J); Daniels v Anderson, supra, at 528E-531A. I need not pursue this question further because the case was not pleaded or conducted as one of a lost chance or opportunity.

183. Even if a group member established on the balance of probabilities that he or she would have heeded a para (e) warning, it does not follow that he or she would have avoided the ill effects suffered or their sequelae. Many factors would have been relevant to a determination of this question in the case of any particular group member, such as the availability of appropriate medication and the readiness of a group member to use it, and the availability of conveniently timed "non-smoking" flights and the exigencies of commitments at the place of destination. Evidence relating to such matters was not led on behalf of the respective group members.

184. The trial judge's finding was a "global" one that as a matter of common sense and experience Qantas's failure to warn caused damage. With respect, I think that it is necessary to consider the facts relating to the ten group members.

185. In the light of the foregoing general principles I proceed to consider what effect, if any, the para (e) warning would probably have had on each of the ten group members. It will be recalled that the para (e) warning was in general terms, was addressed to all prospective passengers and was in substance this: although by the "non-smoking" designation a passenger could be assured that he or she would not be seated in a designated "smoking" area, he or she might be exposed to smoke drift from such an area.

186. Mr Hooper told the Qantas check-in staff at Honolulu Airport that he could not fly "in the smoking section" because it made him suffer from nausea. Clearly, he was sufficiently concerned to take steps directed to avoiding the certain fate of being seated among smokers. But given the fact that he knew that ETS would exist in the aircraft cabin and that, depending on one's proximity to the "smoking" section and on the extent, intensity and continuity of smoking on a flight, a passenger in a "non-smoking" seat might be affected to some extent, he might well have been prepared to take the chance that he would not be such a passenger. In the absence of any exploration of the question in evidence, in my respectful opinion it was not open to the learned trial judge to find even that Mr Hooper probably would have heeded the para (e) warning, let alone avoided the ill effects which he suffered.

187. What I have said in relation to Mr Hooper applies a fortiori to Mr Lewis. There was no evidence that Mr Lewis suffered from a relevant health problem or that he knew that ETS had a deleterious effect on his health.

188. Dr Thomas told the flight attendant that he was an asthmatic and could not endure an 11 hour flight (from Bangkok to London) in a smoke-filled environment. The para (e) warning might have caused momentary alarm to him but I doubt that it would have caused him to take medication or change to a smoke-free flight, particularly since the Qantas staff at the airport in Sydney told him (truly) that he and his wife had been upgraded to the business class "non-smoking" section. Dr Thomas's misfortune apparently arose from Qantas's attempt to accommodate the special needs of an asthmatic child on the Bangkok/London leg, a supervening event which would not have been indicated by the warning. It cannot be concluded that the para (e) warning would probably have caused Dr Thomas to act at all differently from the way in which he in fact acted.

189. I proceed on the basis that in fact Mr Millane had "a chest complaint" and that his doctor had advised him to "keep away from smokers" (see earlier). A para (e) warning, which, it must be borne in mind, was expressed in general terms and addressed to all prospective passengers, might have caused Mr Millane momentary alarm, but on reflection he would probably have appreciated that it merely drew his attention to something which he already knew. Would Mr Millane, as a result of being alerted to the possibility that even in a "non-smoking" seat, he might be affected by ETS, have taken a different course? He gave evidence that if he had known that he was to be allocated to a "smoking" seat he would have returned from the airport to his hotel in Singapore and travelled home to Sydney the following day on the flight on which he had been booked originally (AB 215). As noted earlier, that evidence was challenged in cross examination and there is no finding in relation to it. The present question is a different one: it is whether Mr Millane would have heeded the para (e) warning and if so, whether he would not have suffered as he did. In my opinion it could not properly be concluded on the evidence that the mere giving of the para (e) warning itself would probably have produced a different course of events for Mr Millane.

190. There is no reason to think that Ms Aroney would have acted differently from the way in which she did act if the para (e) warning had been given. Ms Aroney's asthmatic problem may have made her sensitive to the warning but in the absence of evidence from her on the point, it would be wrong to infer that it is more probable than not that it would have caused her to follow a different course from that which she in fact followed.

191. This is no basis for inferring that a para (e) warning would probably have caused Mrs Cameron to act differently from how she in fact acted.

192. My conclusion in relation to Mrs Cameron applies.

193. Ms Jacoby said that if she had been informed that she was to be seated in a "no preference buffer zone" rather than in a simple "non-smoking zone" she would have delayed her departure until the following day when she would have been seated in her pre-allocated seat (18J). She also gave evidence that she had suffered from hay fever and sinus problems since childhood and had always been allergic to cigarette smoke (AB 179Q-R). There was no finding in this respect. Ms Jacoby's evidence that she would have changed flights if she had known that she was to be seated in a "no preference buffer zone" does not conform to evidence of what she would have done if the para (e) warning had been given, that is to say, if she had been warned that there was a possibility or chance that she would be affected by smoke drift. It would not be proper to conclude, in the absence of evidence from Ms Jacoby on the matter, that she would, as a result of a para (e) warning, probably have avoided the ill effects from which she in fact suffered.

194. My conclusion in relation to Mrs Cameron applies.

195. My conclusion in relation to Mrs Cameron applies.

196. In the result, in my view although discharge of Qantas's duty of care required it to give a warning of an appropriate kind for the benefit of any intending passengers who were peculiarly susceptible to the effects of ETS, there was no evidence from which it could properly be inferred that if either of the general warnings pleaded had been given, any of the ten group members would probably have avoided the ill effects caused to them by ETS. Accordingly, with respect, it was not open to the learned trial judge to conclude, as he did, that Qantas's breach of its duty to warn caused loss. It follows that the group members were not entitled to recover damages for negligence.

197. In my view, the appeal by Qantas should be allowed and the appeal by Mrs Cameron should be dismissed. It was inappropriate for Qantas's notice of appeal to seek a setting aside of "findings".

198. The order for payment of damages to the ten group members should be set aside. So should the costs order made by the trial judge on 10 July 1995.

199. Opportunity should be allowed to the parties to reach agreement as to the outcome of Mr Millane's claim for damages for contravention of s 52 of the TP Act and as to the orders to be made in respect of the costs of the proceeding at first instance and of the appeal. It seems that whatever the result of Mr Millane's claim may be, Qantas should have the whole or most of its costs of the trial and of the appeal.

200. The parties should be directed to have the appeal listed, by arrangement with the Associate to the presiding judge, on a date convenient to the Court, for the making of consent orders in these respects, and if agreement is not reached, for the hearing of submissions as to what further orders should be made.

LEHANE J I have had the advantage of reading in draft the judgments of Davies J and of Lindgren J.

2. I agree with the conclusions reached by Lindgren J and with his Honour's reasons. Particularly, and with respect, I share his Honour's views about causation in relation to the alleged breaches of a duty to warn; I also share his Honour's view (on this aspect of the case respectfully differing from the opinion of Davies J) that on the pleadings and evidence it should not be held that Qantas' duty of care obliged it to have a system, different from that which now exists, enabling those who are particularly sensitive to tobacco smoke to reserve, in advance, a seat remote from any likely source of it.

3. The point has been made by Lindgren J, but is perhaps worth reiterating: the case illustrates in a number of ways the difficulties involved in doing justice, in group proceedings, to a number of individual claims for damages based on tort or on representations said to constitute misleading or deceptive conduct. Each member of the group must, in order to make good a claim for relief, establish that there is, in the circumstances of his or her dealings with the respondent, a factual basis supporting each element of the causes of action relied on. In my view, the group members in this case have not done so.

4. Accordingly, in my view the appropriate orders are those proposed by Lindgren J.