(c) If the answer to subparagraph (a) is no, whether in transporting the plaintiff from flight ZL 167 to the terminal on 23 August 2007, in the circumstances in which the plaintiff suffered an alleged injury, the defendant was acting as a carrier of the plaintiff for the purposes of s 28 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth).
28The defendant submitted that the origin of its agency lay in the terms of the International Air Transport Association ("IATA") Standard Ground Handling Agreement 1998. This Agreement had been adopted by the defendant and by REH and it identified the nature of the services that the defendant was to provide to REH. These services included the following:
" Section 11
Surface Transport
11.1 General
11.1.1 Make all necessary arrangements for the transport of:
(a) Passengers
(b) Baggage
(c) Cargo and/or mail between:
(1) Airport and town terminal.
(2) Airport and other agreed points.
(3) Separate terminals at the same airport."
29The first point about Section 11 is that it does not mention the type of transport that the defendant said was being carried out pursuant to its terms. The various categories of transport do not include taking passengers between an aircraft and a terminal. Notwithstanding this apparent omission I am satisfied that, at least as far as the defendant was concerned, it considered that it transported Rex passengers pursuant to the IATA Ground Handling Agreement. Mr Todd, the defendant's General Manager, says so in his affidavit sworn on 9 December 2011 (paragraph 1). He was not challenged.
30Unlike her approach at the Notice of Motion the plaintiff concentrated her submissions on the existence of an agency agreement rather than any distinction of the principal as between Rex and REH. Ultimately I do not think the distinction makes any difference. The real question is whether the defendant was the agent of the carrier, be it Rex or REH.
31The defendant next maintained that it was the agent of the carrier in the manner envisaged by Section 33 of the Commonwealth Act. In effect the defendant said that in taking passengers from the aircraft to the terminal it was doing so on behalf of the carrier, which had the overall responsibility of transporting the passengers to the terminal. This interpretation reflected the purpose of Section 33, which was to ensure the passengers obtained the benefit of the carrier's liability under the legislation for the whole of their journey.
32The plaintiff submitted that a more formal 'common law' approach should to be taken in deciding if there was any agency. Thus there needed to be a contract of agency, a stipulated principal and agent and the agreement required the indices of agency, such as control and the capacity of the agent " to affect the legal position of the principal" (plaintiff's written submissions). These were absent here said the plaintiff. Therefore there was no agency within the scope of Section 33.
33The plaintiff pointed out that there was no evidence from Rex or REH asserting an agency agreement and subpoenas issued to these companies had not produced any such agreement.
34According to the plaintiff the defendant should be characterised as an " independent contractor that provided services when needed ." (Plaintiff's written submissions).
35In addition, the plaintiff submitted I should take a "parsimonious" approach to the interpretation of Section 33. This caution was derived from the judgment of Meagher JA in Kotsambasis v Singapore Airlines Ltd 148 ALR 498 at 505. His Honour was concerned with the process of embarking and disembarking. His judgment included this passage:
"I accept that location, activity and control are useful in determining whether, on the facts of any given case, an accident can be regarded as having occurred in the process of embarking or disembarking. They may not be the only factors and, in the end, the answer will lie in the facts of the particular case. However, I would stress that regard has to be directed to the intention of the contracting parties to the Convention and that intention was to impose absolute liability in certain, fairly narrow, circumstances. In interpreting the words ``embarking or disembarking'' it should be remembered that the Convention is to be read parsimoniously."
36With great respect to learned counsel I think that the plaintiff's reliance on this passage may be misplaced. The intention of the Convention, inter alia, is to provide compensation to passengers injured within certain limits of their journeys. It gives the passengers the benefit of strict liability but with a balance in limiting the amount of damages that may be recovered. If this plaintiff's case fell under the NSW and Commonwealth Acts she would be faced with a limit on her damages of $500,000. To the extent that I have been made aware of her damages claim I do not think it would exceed this amount. Falling under the legislation would therefore be to her benefit because she would be relieved of the task of proving negligence.
37This purpose of the Convention was concisely explained by Korman J in Girard v American Airlines District Court, 2003 WL 21989978 (E.D.N.Y.) His Honour said:
" In addition to burdening courts with the responsibility of delving into the highly fact-intensive determination of what risks are characteristic of air travel and to what degree such risks must pertain exclusively to aviation, the narrower definition of "accident" would unduly constrict Article 17's protection of injured passengers. One of the principal purposes of the Warsaw Convention was to limit the potential for catastrophic li ability of air carriers by imposing damage limita tions. In exchange, however, the Convention sought to accommodate the interests of injured passengers by providing more liberal recovery and a more streamlined process free from the en cumbrance of proving fault ."
38What I do think is important in Meagher JA's judgment in Kotsambasis is his reference to the intention of the contracting parties to the Convention.
39Consistent with my conclusion that the defendant is not a carrier, a finding that the defendant was an agent of the carrier achieves the purpose of the Convention to provide strict liability compensation to passengers who contract with an airline and expect to be safely conveyed both in the air and by whatever mode of travel is required from terminal to aircraft and then from aircraft to terminal.
40The plaintiff, in her oral evidence, said that she did not automatically assume that the bus was carrying passengers on behalf of Rex. She thought the bus may have been provided by Sydney Airport. This is as logical a conclusion as any other. The fact is, however, that the bus was not provided by Sydney Airport. It was present pursuant to an agreement between the airline (or its holding company) and the defendant.
41T he defendant referred me to a number of American cases, of which I think Johnson v Allied Eastern States Maintenance Corporation 488 A.2d 1341 (DC cir. 1985), a decision of the Court of Appeals for the District of Columbia, is most useful. This case was also concerned with the two year limitation period. It was about the use of skycap services provided by the airline. A skycap is a porter (Oxford English Dictionary) who, in this case, was pushing the plaintiff in a wheelchair that struck a metal strip and tipped over, injuring the plaintiff. The court said this:
"We hold instead that the test is merely whether the particular activity of the agent which resulted in injury was in furtherance of the contract of carriage. In this case that test is easily met. Putting the passenger on the plane is surely in furtherance of the contract of carriage. If there had been no skycap and no service contract between Allied and Eastern Airlines, the airline itself would have had to as- sist Mrs. Johnson in boarding the plane. Since Allied was performing part of the airline's duty un- der the contract of carriage, it is entitled to the same protection-no more and no less-that the air line would have under the Convention."
42In the present case the defendant was doing what Rex would otherwise have had to do, that is putting the passenger into the terminal.
43It may be that for other purposes the approach taken by the plaintiff would be correct and the allegation of agency on the defendant's part would be subject to the scrutiny submitted by the plaintiff.
44My task however is to examine the issue of agency within the parameters of the separate question, namely " within the meaning of s33 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth)"
45In paragraph 1077 of Air Law the authors state: "The agents within the scope of the Convention are those performing services in furtherance of the contract of carriage ..." . Once again I am of the view that the furtherance of the contract of carriage includes the delivery of passengers from the aircraft to the terminal.
46I would like to add another point at this stage. The plaintiff sought to rely on certain correspondence between the parties that had never raised the defendant's alleged status as a carrier or agent of a carrier nor of its entitlement to rely on the two year limitation period. I rejected the material as not being relevant to the questions I was answering. The point I would like to note here is that the plaintiff did not suggest that any estoppel arose which might have contained the defendant's capacity to rely on the terms of the legislation, but in particular the more restricted limitation provision.
47An estoppel argument was raised successfully in Air Tahiti Nui . I make no comment on whether a similar argument could be raised here.
48On the basis of what I have said above I am satisfied that the answer to Question 2(a) is that the defendant was acting as "an agent or servant of the carrier or carriers within the meaning of Section 33 of the Civil Aviation (Carriers Liability) Act 1959 (Cth)".
49Turning now to Question 2(b), the plaintiff submitted that if the defendant was an agent of the carrier it was not acting within the scope of its employment or authority. I do not need to deal with any issue of employment. Neither party, correctly, suggested that the defendant was an employee of the carrier.
50The plaintiff submitted that the defendant was acting outside the scope of its agency because, in substance, and on various bases, the service being provided by the defendant was not safe. Thus, for example, Clause 5.6 of the IATA Main Agreement was offended because due regard was not being paid to safety.
51The assumption in the plaintiff's submissions was that the defendant was using a bus known to be unsafe. I think an inference to this effect is probably available on the basis of the plaintiff's description of her conversation with the bus driver, which seems to indicate that the driver was aware of the problem. If this was the case, the plaintiff submitted, then not only would the defendant have been in breach of Clause 5.6 but also in breach of various statutory obligations requiring the provision of vehicles that were suited to the purpose for which they were being put.
52A vehicle with a dangerous door would obviously not be appropriate for use in the carriage of passengers. Therefore, continued the plaintiff, the use of such a bus drew the conduct of the defendant in the circumstances of the plaintiff's accident outside the scope of its authority as agent of the carrier.
53The defendant responded that, even allowing for previous knowledge of the defect on behalf of the defendant, the scope of the authority was still maintained. I was referred, as illustrating the type of conduct necessary to fall outside the scope of an agency authority, to the decision of the High Court in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at pages 46 and 50.
54As I understand the decision of the High Court a principal will remain liable for the wrongful acts of an agent provided they are being performed within the scope of the agency.
55The scope of the agency in the present case was the provision of the transport services. The use of a defective bus was an activity within that scope.
56I think the distinction can be illustrated by these examples. If the plaintiff had been injured as a result of an accident caused by the bus driver in travelling at an excessive speed between the aircraft and the terminal the accident would have been within the scope of the agency. However, if the bus driver had chosen, instead of going directly from the aircraft to the terminal, to first make an unauthorised stop elsewhere, in the course of which journey there was an accident which injured the plaintiff, then I think the accident would have fallen outside the scope of the agency.
57This use of an 'agency' case on the issue of scope of authority could be seen as contradictory to my finding on the existence of an agency of a type not conforming to the strict rules of agency that had been advocated by the plaintiff. There is some logic in such a criticism; however I do not see why a 'Section 33 agency' should be treated any differently on this point. Perhaps to the contrary, where the agency is intended to extend strict liability to an agent of a carrier, the scope of the agency should be viewed to the benefit of the passenger.
58Accordingly, the answer to Question 2(b) is that the defendant was acting within the scope of its authority.
59The effect of my answer to Question 2(a) is that Question 2(c) does not require attention.