In brief - Injury to passenger not caused by unexpected or unusual event
A recent decision in the Supreme Court of Queensland provides another example of the reluctance of courts to find that an "accident" has occurred in the course of air carriage in circumstances where there is not clear evidence of some unusual and unexpected event.
Passenger on flight claims he suffered injuries due to cramped seat
In the case of Nguyen v Qantas Airways Limited (2013) QSC 286, Justice Boddice in the Supreme Court of Queensland found that a plaintiff who claimed to have suffered injuries aboard a flight from Brisbane to Los Angeles as a result of a cramped seat had not suffered an "accident" within the meaning of the word as used in Article 17 of Montreal Protocol number 4 to the Warsaw Convention as scheduled to the Civil Aviation (Carriers' Liability) Act 1959.
Passenger claims that cabin crew failed to assist him
Dr Nguyen, a medical general practitioner, claimed that he was seated in seat 55G on the Qantas flight, that his seat would not fully recline and the passenger seated in front of him kept his seat fully reclined, as a result of which he became very cramped and was forced to contort and strain his body for lengthy periods. He claimed his comfort was further restricted by an audiovisual box under the seat in front.
He claimed to have become unwell during the flight and that, despite his distress, the cabin crew generally failed to assist him.
When is a carrier liable for injuries suffered by a passenger?
Article 17 of the Warsaw Convention provides that the carrier:
...is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injuries suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Justice Boddice accepted the test in Air France v Saks (1985) 470 US 392 at 405 that for compensation to be payable, there are three required elements:
- There must be a cause separate from the "injury" itself.
- There must be an "event or happening" that is unexpected or unusual.
- There must be an event that is external to the passenger.
He also noted that what is required is proof that the injury was caused by an unexpected or unusual event that is external to the passenger. (Povey v Qantas Airways Limited (2005) 223 CLR 189.)
Supreme Court finds that passenger's evidence is not reliable
Justice Boddice concluded that the plaintiff's evidence that his seat lacked full recline was inconsistent with documentation completed by him on arrival in Los Angeles. He did not accept the plaintiff's evidence in relation to the lack of seat recline and also did not accept his evidence in relation to the positioning of the audio entertainment box, which the Judge found was to the side on the other side of the leg strut rather than in front of the plaintiff's seat.
He was also not satisfied that the plaintiff's evidence and that of other family members as to what occurred on the flight was reliable.
The judge preferred the evidence of the cabin crew.
Passenger's seat operated normally and cabin crew did not ignore his complaints
He concluded that the injuries sustained by the plaintiff arose in the circumstances where his seat was operating in its normal manner. In those circumstances it could not be said that the injuries constituted an "unusual and/or unexpected event" that was external to the plaintiff. It did not constitute an accident within the meaning of Article 17.
Similarly, the judge did not accept that the cabin crew ignored or did not respond to the complaints from the passenger.