Qantas Airways Limited v Leonie Cameron [1996] FCA 1483

Qantas Airways Limited v Leonie Cameron [1996] FCA 1483 - FCA 1996 case summary — Zoe

[23]

"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."

[138]

"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) .........................................."

[322]

"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)

At a glance

Court

Decision date

Before

Source

Judgment (362 paragraphs)

Qantas Airways Limited v Leonie Cameron [1996] FCA 1483 (17 May 1996)

Parties

Legislation Cited (3)

Cases Cited (12)