Povey v Qantas Airways Ltd & Anor [2004] HCATrans 490 (2 December 2004)

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Povey v Qantas Airways Ltd & Anor [2004] HCATrans 490 (2 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 490

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M167 of 2004

B e t w e e n -

BRIAN WILLIAM POVEY

Appellant

and

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

First Respondent

BRITISH AIRWAYS PLC (ARBN 002 747 597)

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 DECEMBER 2004, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR J.B.R. BEACH, QC: If the Court pleases, I appear for the appellant with MR B.F. QUINN. (instructed by Slater & Gordon)

MR J.L. SHER, QC: If your Honours please, I appear with my learned friend, MR S.A. O’MEARA, for the first respondent. (instructed by Minter Ellison)

MR A.J. MEAGHER, SC: May it please the Court, I appear for the second respondent with MR A.S. BELL. (instructed by Ebsworth & Ebsworth)

GLEESON CJ: Yes, Mr Beach.

KIRBY J: Mr Beach, just before you start – I should perhaps have done this before through the Registry – but I have a large number of points with Qantas as a result of flying many times with both of the respondents, and I have flown in all classes. Occasionally I have received gifts, not sought but received from Qantas, and I have received the benefit of upgrades from time to time from both of the respondents, never sought but sometimes given. I imagine other Justices are in similar positions, but in view of what I said in Ebner feel I should put that on the record. I do not feel that I am embarrassed and I will decide the case on its merits.

MR BEACH: Thank you, your Honour. We have no difficulty with that position whatsoever. The time allocation that counsel has agreed to has the appellant taking two hours for submissions in-chief. Each of the respondents is to take one hour for their submissions and then if appropriate up to half an hour for reply, if that is convenient.

GLEESON CJ: Thank you, Mr Beach.

MR BEACH: Your Honours, we say in summary that the cause of an injury which cause is unexpected from the perspective of a reasonable airline passenger is an accident. We say that the very essence of “accident” is the element of mishap, mischance or misadventure and that that is really to say no more or no less than that the focus on the concept of “accident” involves the element of unexpectedness of the cause.

HAYNE J: Do you therefore discard the definition or explanation given in Saks?

MR BEACH: No. In fact, we say Saks is perfectly consistent with - - -

HAYNE J: So there is an element of externality which must be taken into account in determining “accident”, is that right?

MR BEACH: Yes, that is so. We accept that. We accept Justice O’Connor’s negative formulation of “accident”. In terms of her positive formulation, we say that all that her Honour was concerned to make clear was that the relevant cause, whether it be described as occurrence, event, happenstance or whatever, had to be unexpected. Of course, that was the distinguishing feature between what the Supreme Court of the United States found from what was found below by the United States Court of Appeals, who had held that for an accident all that there needed to be was an occurrence. The Supreme Court disputed that interpretation and said, “No, there has to be an additional element, the element of unexpectedness”.

What her Honour did not do in Saks and what her Honour was not required to do in Saks was engage in the exercise of working out what was an occurrence or what was an event, or nice metaphysical distinctions between acts and omissions, or a specific episode as opposed to something continuous, or a one-off circumstance as distinct from a convergence of particular conditions, because in Saks, as we all know, the relevant external event or circumstance which took place was depressurisation upon the descent of the plane and there was no debate in Saks of the type that now arises in the DVT litigation.

MR BEACH: We also say that our formulation is consistent with Olympic Airways v Husain at all levels, for Olympic Airways in the Supreme Court makes it clear. We submit that distinctions between acts and omissions or sets of conditions, as opposed to a particular event or circumstance, are not distinctions that should define what an accident is, so we say our formulation is consistent with what is said is Husain. Interestingly, in Husain, the Supreme Court did not need to elaborate on what was meant by the concept of “unexpectedness” because in Husain it was accepted on the facts that the relevant element of unexpectedness had been made out because that in term was derived from a breach of the airline’s own procedures or industry standards and it was accepted in that case, taken to be conceded, that there was a relevant element of unexpectedness.

So what you have is, you have Saks, which adds the element of unexpectedness, but of course, there was no debate in Saks about unexpectedness because it was all agreed that depressurisation was not unusual or unexpected. You have in Husain the concept of unexpectedness being referred to but conceded on the facts, and really what we would describe or define to be the very essence of accident, namely, the concept of unexpectedness has not actually been elucidated at the highest of levels in the United States.

HAYNE J: Now there is a temptation and tendency, I suspect, in debating the problem to speak in shorthand, in particular, to focus on the concept of unexpectedness may obscure, may even elide unexpectedness of what, and although I understand that much of the debate today may take place using shorthand expressions, at some point in your argument, I would have thought earlier rather than late, (a) we have to look at the text, and (b) we have to relate each element of the text to the pleading which now is in issue, and in particular, where you say if the cause is unexpected that is an accident, what relevantly here is said to be the cause?

MR BEACH: Yes, I accept all of that. I, just at the outset, wanted to summarise what we say an accident is so that at least our formulation is clear at the outset. I suppose we nail our colours to that mast. What I then want to do is go to the text of the Convention and then I want to go through four points: the act/omission distinction, the temporal issue that seems to have arisen if one looks at Lord Phillips who looks at a specific event and would deny that an accident could be a continuous state of affairs for the duration of a flight.

I also then want to look at the question of what I will describe as a set of conditions which cumulatively may be the cause and may be unexpected, and what has been said by Justice Ormiston and Lord Phillips on that and then I want to, after that, go to the concept of unexpectedness and what the real debate is in this case on the concept of unexpectedness. The airlines would say as long as there were standard procedures, either of the specific airline or the industry that were followed, by definition that forecloses an argument of unexpectedness. We would put a case differently. We put the case that not following the airline’s policies and procedures or industry practice may be unexpected but that is not the only way to find unexpectedness.

I see that as being the real area of debate, and I say that for this reason. When this matter was before Justice Bongiorno and when we were given leave to file additional particulars, it was because originally we had not pleaded the concept of unexpectedness. The added particulars added unexpectedness. There were not really findings based upon the act/omission dichotomy or any of these other dichotomies. We go to the Victorian Court of Appeal and the English Court of Appeal and suddenly the debate shifts to metaphysical distinctions between act and omission of the type that I have dealt with. But then we move on from that and come to Husain, and Husain seems to undermine the metaphysical distinctions and returns to the concept of unexpectedness. Really, on one view the debate is really, we would say, taken a full circle back to the element of unexpectedness of the cause, and I agree that I will have to take your Honours to the pleadings to illuminate what we say the cause is, and then explain how we put our case on expectedness.

KIRBY J: This is, of course, an international issue and when more than a decade ago the Chief Justice and I sat in SS Pharmaceutical, we were taken to a whole range of cases from countries with which we do not normally have a legal relationship and do not normally look at. Is there any country in the world that has decided that the development of DVT in the circumstances of particular flights can be an accident? On the face of it, just looking at the words of the Convention, it appears to have a difficulty in squeezing it into that word – leave aside judicial elaboration.

MR BEACH: There have been a couple of single judge decisions in the United States in their District Court that are still standing. Of course, there were the cases of Blansett and Rodriguez that have now gone on appeal and both those intermediate courts of appeal have rejected it.

KIRBY J: I have read the submissions and I understand the state of the appellate authority seems to be uniformly against you so far as at least one can see that have dealt with DVT.

MR BEACH: That is so, but we make the point that one needs to look at how we put and plead the case and rather than - - -

KIRBY J: There is nothing peculiar in the Australian situation. Justice Gummow raised on the special leave the question of whether, by reason of the constitutional prohibition on taking away people’s property without just terms, one would read the statute that gives effect to the Convention in Australia possibly in a particular way. That has not been pursued and no constitutional point is raised and no notices have been given, so there does not seem to be any Australian peculiarity in the case, is that correct?

MR BEACH: No, and I indicated on the special leave application that the question of acquisition otherwise or on just terms may only arise if on the point of construction it is found - - -

KIRBY J: I realise that, but if you wish to pursue that you would have had to nail at least that particular colour to the mast. You have not done that and no notices have been given, so I am going to put that out of my mind.

MR BEACH: Yes, we would encourage that. We certainly do not put any point that the Convention should be interpreted otherwise than in the way international conventions are usually interpreted by this Court and overseas.

KIRBY J: It would be the statute of the Australian Parliament that one would be construing in a particular way for Australian constitutional reasons if there was substance in the constitutional point, but because you have not taken, I assume that you have thought about it and that that point is not presented to us.

MR BEACH: Yes, 25K of the Act, the constitutional point could not arise, because that just makes The Montreal No 4 Convention a law of the Commonwealth. The provision - - -

KIRBY J: Do not worry about the point any further, Mr Beach. I just wanted to, as it were, indicate that it was in my mind. I will now put it out.

MR BEACH: Yes. Could I go to the Convention and - - -

GUMMOW J: Why do we not start with the Act?

MR BEACH: Yes. If one goes to section 25K - - -

GUMMOW J: Is that the relevant manifestation of the Convention, Montreal No 4?

MR BEACH: It is, that is so. It is accepted now by all parties, your Honour. Section 25L picks up sections 35 to 39 and it is section 36 that essentially makes the rights given under the Convention the exhaustive remedy. Those are the two of three relevant provisions, sections 25K, 25L and 36.

GUMMOW J: Section 35(2) does away with the common law, does it not?

MR BEACH: That does so in respect of death.

GUMMOW J: In your case it is what?

MR BEACH: We have injury for Mr Povey, so section 36 is the relevant provision for him although, as we indicate in our submissions, this is a lead proceeding and there some deaths that have arisen and claims pursued by States so section 35 might have relevance for them. If one then goes to the Montreal No 4 Convention – can I go back to the provision of the Act and to section 5 - - -

KIRBY J: It is only the carrier that is subject to this limitation and I see that you have some proceedings pursuing the Civil Aviation Authority, is that - - -

MR BEACH: We do, that is right. Yes.

KIRBY J: So that is a separate matter. We are not concerned with that at all.

MR BEACH: It is a separate matter under a separate Act, yes.

KIRBY J: What has happened to those proceedings? They are just pending this, are they?

MR BEACH: Nothing has happened. They have been held in abeyance. If one goes back to section 5 there is a definition of the Montreal No 4 Convention and essentially it is a:

Warsaw Convention as amended at The Hague, 1955, and by Protocol No. 4 –

I should say that one needs to be careful of United States jurisprudence because they were not signatories to the Hague Protocol so when you look at Saks and you look at Husain they are looking at the original form of the Warsaw Convention and they are also parties to the Montreal Agreement which waived the due diligence defence under Article 20, which I will come to later, so you need to bear that in mind in looking at what is said in the United States.

Can I then go to section 8(1)(3). That tells you that the text of the Montreal No 4 Convention that you need to refer to is contained in Schedule 5 of the Act. I should also just indicate section 8(2) which says that “If there is any inconsistency between the” English text, as set out in Schedule 5 and the French text then the French text is to prevail to the extent of any inconsistency. That is a different concept, of course, from saying that French law prevails in terms of what is meant by accident. It is dealing with the matter in a textual sense, not saying that you must pick up French law and give that paramountcy in terms of how the French have defined an accident.

Your Honours will have appreciated from Saks that there is very little difference between the French legal meaning of “accident” as it was at the time of the Warsaw Convention, at least, and the English version of “accident” at the time of the Warsaw Convention, as used, for example, in Fenton v Thorley.

KIRBY J: Anyway, you do not rely on any difference.

MR BEACH: No, we do not say that there is a difference. In summary, that then takes you to Schedule 5. Article 1.1 of Schedule 5 stipulates that:

This Convention applies to all international carriage –

That, in turn, is illuminated in paragraph 2. It certainly includes carriage between “the place of departure and the place of destination” between “two High Contracting Parties”. Of course, we have here Sydney, London, with a stopover at London, London/Sydney. That in Article 1.3 is taken to be one undivided carriage. British Airways issued the ticket. It was certainly the contracting party. Qantas performed the first leg of the journey, that is Sydney to London, and British Airways, London to Sydney, so that is one undivided carriage.

Just on that point, can I take Your Honours to Article 30 for a moment. Paragraph 1 of that stipulates that where there is carriage performed by successive carriers, each carrier “is deemed to be one of the contracting parties”, and in paragraph 2, it provided that each of the carriers is liable for their part of the journey, so notwithstanding that the ticket was issued by British Airways, Qantas has liability for the leg from Sydney to London and British Airways, London/Sydney.

Now I have not made reference to the Guadalajara Convention because that is separate and your Honours do not need to consider it because it does not amend the Warsaw Convention. As your Honours appreciate from recollection of the Schenker decision the Guadalajara Convention is separate and deals with the distinction between the contracting carrier and the actual carrier that you will see in Schedule 3 to this Act. The text of the Guadalajara Convention and the actual carrier has a definition in it which excludes successive carriers because article 30 of the Montreal No 4 Convention deals with successive carriage. The Guadalajara Convention does not.

So you can put the Guadalajara Convention to one side, and that is confirmed by section 25B of the Act, which makes reference to the Guadalajara Convention in the context of Part IIIC, which is dealing with the Montreal No 4 Convention but it excludes other than section 25K. We are looking at section 25K to pick up the Montreal No 4 Convention. It is just a roundabout way of saying you do not need consider the Guadalajara Convention for the purposes of this exercise, not only of section 25B, but because of the definition of “actual carrier” contained within the Guadalajara Convention itself, which excludes reference to successive carriage because of the existence of Article 30 of the Montreal No 4 Convention. Now, can I then go further into the text of - - -

GUMMOW J: How does Article 30.2 operate in this case, where you had Qantas to London and BA back to Sydney, and subsequent ill health suffered by your client?

MR BEACH: It is the accident that one needs to look at under Article 17 and the place and temporal limitation of where the accident is. So, from Sydney to London, if an accident occurred on board that flight, even if the injury did not manifest itself until much later, Qantas would be liable if there is a causal connection between the injury, even though it occurred much later, as long as it is causally related to the accident that occurred on the airline from Sydney to London. So if you focus on where the accident occurred - - -

GUMMOW J: What was the accident in this case?

MR BEACH: We say the accident is the failure to warn in the context of the other flight conditions or it is the combination of the flight conditions, including the discouragement from moving around - - -

GUMMOW J: A failure to warn when?

MR BEACH: On board.

GUMMOW J: On board?

MR BEACH: Yes.

HAYNE J: And “failure” is a word which, wittingly or unwittingly, may carry with it concepts of obligation or duty. Is the point sufficiently made for your purposes by describing it simply as “absence of warning”, or is “failure to warn” important to your case?

GUMMOW J: The expression “failure to warn” has a lot of baggage in common law systems.

MR BEACH: Yes.

GUMMOW J: This Convention is not common law based.

MR BEACH: Yes. There has to be something unexpected about the - - -

HAYNE J: Just so.

MR BEACH: - - - omission or the failure. It cannot be just simply any failure or any omission. So we put - - -

HAYNE J: But what is the answer to my question? Is absence of warning sufficient for your purpose, or must more be shown than absence?

MR BEACH: Absence of warning which is unexpected would be sufficient for our purpose. Just to complete your Honour Justice Gummow’s question, I think I have answered it by saying that paragraph 2 of Article 30 would make Qantas liable for whatever accident occurred on board the flight from Sydney to London, even though the injury may not have manifested itself until the British Airways leg from London to Sydney.

Now, going back to earlier articles of the Convention, if one goes to Article 17, there is, of course, the article and its meaning, which is in issue. There is a distinction between - - -

GUMMOW J: Can we just go back to Article 30 for a minute, Mr Beach.

MR BEACH: I am sorry, your Honour.

GUMMOW J: Paragraph 1 says:

In the case of carriage to be performed by various successive carriers - - -

MR BEACH: Yes.

GUMMOW J: I could understand if your client had flown to Singapore on one carrier and then immediately pushed through transit onto another carrier and ended up in London. But is the carriage here two carriages?

MR BEACH: No, because if one - - -

GUMMOW J: They were three days apart, were they not?

MR BEACH: No, in fact it is all the one undivided carriage. That is what we - - -

GUMMOW J: Because of the ticket?

MR BEACH: No, because of paragraph 3 of Article 1.

HAYNE J: Well, what does the qualification “if it has been regarded by the parties as a single operation” mean in the context of these facts?

MR BEACH: That it is beyond doubt that you have successive carriage within the meaning of Article 30. Now, the ticket – and this is not before you – the ticket makes that clear. It is a British Airways ticket that has Sydney/London, London/Sydney. The ticket itself is not necessarily going to be definitive of the operation of Article 1 or Article 30. The ticket is dealt with in Chapter II of the Convention. If one goes to “Chapter II-Documents of Carriage, Section 1-Passenger Ticket” and looks at paragraph 2:

The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage.

So it does not really say much about successive carriage, but when you look at the ticket it does seem factually to make the assumption that you have - - -

HAYNE J: Can you remind me of the times involved? It is Sydney via Singapore.

MR BEACH: Yes.

HAYNE J: London, is it?

MR BEACH: It is.

HAYNE J: In the space, I take it, of 24 hours or thereabouts?

MR BEACH: You had Sydney via Bangkok to London, leaving Sydney on 15 February 2000 and arriving in London – and you have timing issues, but arriving in London on 16 February 2000. Then you have departure from London on a British Airways flight on 18 February 2000 and arriving in Sydney on 20 February 2000. You have the manifestation of the injury at 10.00 pm Sydney time on 19 February 2000, when Mr Povey was travelling on the British Airways leg of the flight from Kuala Lumpur to Sydney.

CALLINAN J: Sorry, just repeat the time and date, Mr Beach.

MR BEACH: The Sydney to London flight departed on the 15^th - - -

CALLINAN J: No, the manifestation.

MR BEACH: That was 10.00 pm Sydney time on 19 February 2000.

KIRBY J: So that if the manifestation had been after arrival in Sydney, which is, as I understand it, something that can happen with DVT, then that would fall outside the Convention, because it contemplates that the accident must happen on board.

MR BEACH: No, the injury can occur at any time. It could occur seven days after the last leg, but the accident must occur on board, not the injury. That is what Article 17 says. So you do not worry about when the injury occurs, although obviously there is a causation issue, the longer the injury occurred away from the flight. The liability, though, attaches temporally and geographically to where the injury is, as Article 17 - - -

KIRBY J: Saks makes the distinction between the accident and the injury.

MR BEACH: Yes, although in Saks I think – that is right, yes, but on the facts - - -

KIRBY J: Therefore, they can be divorced.

MR BEACH: Yes.

KIRBY J: You say Article 17 allows seven days, does it?

MR BEACH: It does not have a time limit. The only time limit is the two-year time limit which is provided under Article 29 and that speaks of:

from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived - - -

KIRBY J: The American cases refer to the fact that at a certain point in this sequence there were no warnings on American flights as well. When did they come in? Is that clear?

MR BEACH: It is not entirely clear, but somewhere around 2001 is probably close enough.

KIRBY J: Is there evidence at any stage that it was the particular very long haul flights that presented any particular problem of DVT to Australia?

MR BEACH: There is no evidence. This was a pleading summons, effectively. There was some medical evidence that the respondent sought to file on the hearing of the pleading summons, but I do not recall that it went so far as to talk about this being particularly peculiar to long haul travel.

KIRBY J: One could imagine – I do not know whether the evidence would ultimately bear this out if you get to that – that this is a matter that is of greater importance to Australia than to other places, because of the typical very long hauls that flights have from this country.

MR BEACH: Yes.

KIRBY J: Americans constantly complain of hauls of six hours, but Australians have much further to go if they are going across the world.

MR BEACH: There is no direct evidence, but we allege that Qantas knew of the risk and that the evidence would ultimately reveal that the longer the timeframe for the flight, the more the increased risk is to this particular condition. By its very nature, it derives in part from the flight conditions of cramped space. It does not take very much science to work out that the longer those conditions prevail, the more at risk the passenger is going to be.

KIRBY J: Qantas brought a summons to strike out your pleading. Did you consent to that procedure or did you resist it and say it should go to trial for findings on the evidence?

MR BEACH: We said that it could not sensibly be said that our case was not reasonably arguable, and that the summons should have been dismissed for that reason. We only had to satisfy the Day test of whether our case was reasonably arguable. This was not the preliminary determination or a separate questions exercise, nor was it an exercise of the type that was engaged in in the United Kingdom DVT litigation, where there was a specimen matrix of facts that were agreed to which the court then decided the question of law on.

GUMMOW J: The Court of Appeal treated it as a demurrer, did it not?

MR BEACH: Yes.

GUMMOW J: That is why you got special leave.

MR BEACH: Yes.

GUMMOW J: Why is it, do you say, that there was a single operation here within the meaning of Article 1.3?

MR BEACH: Article 1.3, and regarded by the parties as a single operation it was, because there is the ticket – and Mr Sher was trying to kindly interrupt again – we do have copies of the tickets, so by consent, perhaps, we should just - - -

GUMMOW J: Yes, I do not see why that answers the question.

MR BEACH: The parties regarded it as a single operation.

GUMMOW J: Why?

KIRBY J: Because otherwise the ticket on its face would have Sydney/Kuala Lumpur or Sydney/Bangkok/London. This has just got Sydney/London, has it?

MR BEACH: It has Sydney/London/Sydney.

HAYNE J: You allege the round trip.

MR BEACH: Yes, that is right.

HAYNE J: Was that alleged in the statement of claim?

MR BEACH: Yes.

HAYNE J: There may be a lively factual dispute at trial, if you ever get to trial, about whether it is a single operation, I take it?

MR BEACH: No.

HAYNE J: No. Anyway, there is an allegation of single operation, is there?

MR BEACH: Yes.

HAYNE J: At some point later, give me a reference to it, would you?

MR BEACH: If one goes to the statement of claim, which begins at appeal book page 1 - - -

HAYNE J: Justice Heydon points out page 2, paragraph 4:

The Plaintiff was a passenger travelling in economy class from Sydney to London return - - -

MR BEACH: Yes, thank you, your Honour. I will hand up a copy of the ticket.

GLEESON CJ: Thank you.

KIRBY J: I hope this is not taking new evidence.

MR BEACH: No.

KIRBY J: I would not want to receive the slightest bit of fresh evidence in the appeal.

MR BEACH: No. I think it just illuminates why there is no issue between the parties on this point.

KIRBY J: It is like a view, is it? It is not evidence, it is something to help you understand the evidence?

MR BEACH: Yes. Can I go back to the Convention and Article 17. You have there the concept of “accident”, but in Article 18, which deals with baggage, you have the concept of “occurrence”. Saks makes much of the point that there must have been taken to be some distinction, and the rider or the distinction is the additional element of unexpectedness, which is added to the concept of “accident” in Article 17.

Article 20 is the due diligence defence. We say that that is a pointer as indicating that Article 17 should not be read down or unduly constrained. It should be given its broadest scope or operation. Of course, in Saks, Article 20 had been waived by the Montreal Agreement. Now, Justice O’Connor says, “Well, I still construed Article 17 as freestanding”. We just make the point that you have to construe the Convention as a whole, you must read Article 17 with the other articles, including Article 20, and Article 20 is a pointer against any narrow view of what an accident is under Article 17. The other concept in Article 20 is that it says that:

The carrier is not liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage -

Of course, a failure to warn could have been avoided by the simple exercise of a warning. I make reference to that point because Olympic Airways v Husain in the Supreme Court derived from Article 20 support for the proposition that Article 17 can include acts and omissions. In other words, the language of Article 20 can support the proposition that Article 17 includes, amongst other things, omissions and/or failures and I will come to Husain later. Article 25 - - -

GUMMOW J: What about Article 23? This Convention strikes a bargain between various interests, or balance between various interests.

MR BEACH: That is so. Yes, we accept that, but we say that that is no basis for reading down the concept of accident. The airlines are given the bargain because of the limitations on the monetary sums.

GUMMOW J: Then you are given a bargain, too. They cannot go lower than it.

MR BEACH: Yes, that is so.

GUMMOW J: That is what Article 23 is doing.

MR BEACH: Yes, and I accept that. We do not have a difficulty with that and there is a discussion of these, the idea of the balance in Morris v KLM are both in the English Court of Appeal and in the House of Lords, and also in the prior case of Sidhu v British Airways. Now, going to Article 25, that makes express reference to act or omission. We say that that is a further pointer to Article 17, being able to include omissions as well as acts.

Now, both Lord Phillips and Justice Ormiston do not read Article 25 that way. They say that there could be things anterior to an accident, a cause prior to an accident, that could be an act or omission, and Article 25 was designed to deal with causes prior to an accident, not the accident itself, whereas, we say no, that the primary cause is the accident, Article 25 clearly demonstrates that accidents can entail an act or omission and it is an artificial reading to say, no, Article 25 was designed to deal with anterior causes well prior to the accident.

Its natural and ordinary meaning, we would say, supports our position rather than the contrary, and again, Olympics Airways v Husain actually agrees with our interpretation that Article 25 itself is a pointer to Article 17 including not only acts, but also omissions or failures. What is also interesting about the United States Supreme Court in Olympic Airways v Husain is that they say that in relation to the earlier form of Article 25, the original form of Article 25 was expressed in terms of wilful misconduct. That was amended by the Hague Protocol which does not apply in the United States, but they said in relation to the earlier form of Article 25, which did not even use the words “act or omission” that that was also a pointer to Article 17 including omissions.

Perhaps I can take your Honours to that reference. If you go to Olympic Airways v Husain – we have given your Honours the US Supreme Court Reporter version of the case. It is [2004] USSC 15; 124 S Ct 1221. If I can go to page 7 of the print, if you use the pagination in the top right-hand corner, the middle of the first complete paragraph. There is the page of the report of 1230. The court says “Confirming this interpretation”, that is, that failures can be included or acts, there is “no distinction” to be made between acts and omissions. They go to Article 25. Of course, the Article 25 version that they were using did not even use the words “act or omission” because it used the original Warsaw Convention version “wilful misconduct”, so we have an even stronger case.

So they use Article 25 to say that there should be “no distinction between action and inaction” and they also refer to Article 20.1, which is the “due care” defence, although it must be pointed out that in the United States the Montreal Agreement of 1966 had waived Article 20, and that is dealt with in Saks. Interestingly, their footnote 11 which follows is a little incorrect because they refer to the Montreal Protocol No 4 as amending Article 25 by replacing the “wilful misconduct” expression, but it in fact was the Hague Protocol that got rid of the “wilful misconduct” language. The Montreal Protocol No 4 was, of course, after the Hague Protocol, but it was actually the Hague Protocol which changed it.

So you have a court at the highest level accepting the arguments that we put to Justice Bongiorno and also the Victorian Court of Appeal that you could use and glean from the language of Articles 20 and 25, support for the suggestion that Article 17 does include inaction as well as action, putting to one side the additional rider of “unexpectedness” that I will come to later.

GLEESON CJ: Does Article 25 also throw light on the concept of “unexpectedness”? It contemplates that an accident can include, for example, an attack on a passenger by an employee of the airline.

MR BEACH: We would accept that and put the proposition that when you are looking at these articles, you are looking at it from the perspective of the passenger. You are looking at the event that causes injury.

GLEESON CJ: That must be so, must it not, because Article 25 contemplates that you could have “an act . . . done with intent to cause damage” by the carrier or by a servant or agent of the carrier.

MR BEACH: That is right.

HAYNE J: Is that right? Article 17 has at least three elements in play: damage – and it is damage which Article 25 is concerned with – “damage sustained in the event of”, amongst other things, “bodily injury”. You then have the element of “accident which caused the damage”. I understand the action/inaction point that you make. What is the further connection you seek to draw between 25 and 17 when 25 is hinged on “damage” resulting from act or omission, not from “accident”?

MR BEACH: You cannot segment it like that, your Honour, because Article 25 operates on Article 22, which is the limits which apply to Article 17.

HAYNE J: It says, “22 shall not apply”.

MR BEACH: That is exactly right. So you get back to Article 17. You are not looking at other acts or omissions, you are looking at the very activity that caused the injury and asking yourself, was this done intentionally or recklessly by the carrier?

McHUGH J: Yes, but I do not see how Article 25 throws any light whatever on the meaning of “accident” in Article 17. If an employee deliberately takes out a part of a plane so that it crashes, Article 17 is engaged and the damage that occurs has resulted from that deliberate act. It tells you nothing about the accident, it just tells you about how the damage – “resulted” is a causal term.

MR BEACH: Yes, but the whole point of Article 17 and “accident” is that that is the essential causal element, that is the cause. To limit Article 25 to - - -

GUMMOW J: Article 25 removes the cap of 22.

MR BEACH: That is exactly right. It gets rid of the caps in Article 22, which means that you have open-ended liability flying from Article 17, but you only remove it if the cause of the injury - - -

GUMMOW J: It would have applied in the first place.

MR BEACH: Yes.

GLEESON CJ: Does not Article 25 suggest that the occurrence of the accident, whatever form it takes, does not have to be unexpected by the airline?

MR BEACH: That is right – I wanted to come back to your Honour the Chief Justice. There was an old line of authority that said that if something was done intentionally, then it could not be an accident. It is clear from Saks that you do not look at the question of intention or not, you look at the question of what is unexpected, but if you take - - -

GLEESON CJ: But it is a question of unexpected by whom.

MR BEACH: Exactly. If Article 25 says that the intention of the airline can cause the cap to go, then the flip side of that must be that you are not looking at the state of mind of the airline at all, you are looking at somebody else.

GLEESON CJ: It must mean unexpected by the passenger or unexpected by a passenger.

MR BEACH: Or unexpected by a person here in this Court who is seized with all of the facts and is asked to opine about what they would expect, but we would say that is a little bit unrealistic. The reasonable airline passenger is the relevant person whose state of mind you would be looking at to determine the concept of unexpectedness, because, as your Honour points out, the intention of the airline or their state of mind cannot have anything to do with it.

Of course, that comes back to an argument that we put in our reply submission, how can you have unexpectedness or that element of the accident being defined by the airlines? They can deliberately eschew including warnings of known risks in their policy, deliberately fail to tell CASA that there these risks that they have become aware of and then they can define for themselves what is expected or unexpected. That is just counter-intuitive.

HAYNE J: That points to the difficulty of segmenting the argument, as you do, that accident has more than one element. You began by fastening on “unexpected”. I took you to the point about Saks that it is externality which is a further element of accident, and to debate only the question of unexpectedness without regard to elements of externality is apt to unduly confine the debate.

MR BEACH: Yes, I accept that. I suppose my argument, in some sense, is a reflection of what happened in the Court of Appeal below, because it was all of these nice metaphysical distinctions that were being made against me to say why something was not an accident – this act, omission, dichotomy, specific event, as opposed to something which happens for the continuous duration of the flight – and I was trying to simplify it by saying, look at the essence of “accident”. It is unexpectedness. It has to be unexpectedness of the cause, but you do not break down the cause further into this - - -

HAYNE J: A cause external to the passenger?

MR BEACH: I accept cause external to the passenger. I do accept that.

HAYNE J: And what is the cause external to the passenger here?

MR BEACH: Well, that is what the pleading says. The cause is, in this case, the failure to warn. An omission can be a cause. It can be a cause produced by positive and negative conditions. The statements discouraging you from moving around the aircraft – in the context of the failure to warn, that can be a cause. The way the airlines and Lord Phillips and Justice Ormiston get around that is to say it might – they do not deny that that could be a cause, they just say omissions are not within the purview of Article 17 and only specific events are within the purview of Article 17. We say no, none of these metaphysical distinctions should be made. All you need is a cause external to the passenger which is unexpected - - -

HAYNE J: And takes place on board.

MR BEACH: That is so. That is so. Now, there is probably not much more I can say about Article 25 except that we rely upon how the United States Supreme Court has looked at these articles and gleaned from them not only that inaction can be included in Article 17, but we would also accept your Honour the Chief Justice’s statement that it is also, in Article 25, a pointer against looking at the state of mind of the airline in terms of defining what is or is not unexpected.

GUMMOW J: The reference in KLM [2002] UKPC 43; [2002] 2 AC 628 to “balance” that you mention is at page 679, paragraph 150, I think. It follows a lengthy analysis by Lord Hobhouse. His point is we are not construing an exemption clause.

MR BEACH: No, I accept that.

GUMMOW J: Simply.

MR BEACH: That is true. I would also rely upon, whilst we have that open, paragraph 149, to indicate that you do not look at the concept of “accident” frozen in time at the time the Warsaw Convention came into effect.

GUMMOW J: Yes, this is an “always speaking” type of convention.

MR BEACH: Yes.

GUMMOW J: I think that is the notion.

MR BEACH: You have to give it a purposive construction, and this sort of thing may not have been contemplated at the time, so you have to be mindful of that in its interpretation.

GLEESON CJ: What is the present status of the appeal to the House of Lords in the English case?

MR BEACH: A petition was granted in July of this year. The hearing is likely to come on around Easter time next year. That is the latest intelligence we have.

GLEESON CJ: Thank you.

MR BEACH: Now, can I move on then to Husain? We say that Husain is a powerful authority which supports us in saying that inaction or an omission can be an accident.

HAYNE J: That was a particular kind of inaction, was not it, namely, inaction to a medical crisis occurring on board?

MR BEACH: Yes, but then your Honour is moving into the concept of unexpectedness, so I just want to stick at the moment with - - -

GUMMOW J: You want to salami it?

MR BEACH: I will get there, but I just want to make the admission inaction point as being within Article 17 and Husain says that clearly. Now, it might be on its facts that it was a clearer case of unexpectedness because of the particular circumstances including the industry standard and the industry policy on what the airline crew should have done by way of reaction to the episode. On the point of omission, it seems a powerful authority that we say is not definitive of what your Honours have to decide but you would not depart from what the majority said in Husain without very compelling reason. Just as the airlines have said, the appellant cannot depart and no Court should depart from what was said in Saks.

Now, just on Husain, there seems to be some argument that you can distinguish Husain because there there was a refusal by the airline crew to move Dr Hanson. It is Dr Hanson. His widow was Mrs Husain and she brought the action as part of the estate. We say that you cannot distinguish Husain on the basis that on its facts it dealt with a refusal. We say that for a number of reasons. First and foremost the majority analysed the case on the basis of inaction and/or failures, and one can see that by reference, for example, on page 6 of the print, the first column. There is a reference in the first paragraph about point 5 to the:

Petitioner’s statement that the flight attendant’s failure to reseat –

and in the second column on page 6, the second paragraph, the majority clearly reject the:

petitioner’s argument that the flight attendant’s failure to act cannot constitute an “accident” –

They say it “is unavailing”. They say:

The distinction between action and inaction . . . would perhaps be relevant were this a tort law negligence case.

They go on to explain why they reject that distinction. So they are clearly analysing this in terms of inactions or failures. If one goes over the page, page 7, second column, to the passage that I took you to, they look at the other articles to support the proposition:

that there is often no distinction between action and inaction –

So the majority are looking at this not just on the narrow basis that there is a refusal. The other thing is that the majority accept that what they are saying is inconsistent with what was said by the English Court of Appeal and by Justice Ormiston in the present case. If you go back to page 6, footnote 9, they refer to the English Court of Appeal and what Justice Ormiston said, and they say after giving the citations:

But our conclusion is not inconsistent with Deep Vein Thrombosis and Air Travel Litigation, where the United Kingdom Court of Appeals commented on the District Court –

et cetera. What they are saying there is not about the underlying principle of action and inaction. What they are saying there is that on Justice Ormiston’s and Lord Phillips’ analysis of Husain below, where they thought that there was an accident because there were positive acts, the United States Supreme Court majority are saying that their view that in Husain there was an accident is not inconsistent with what those other courts found in terms of the Husain facts. They are not saying there that their approach to action and inaction is consistent with what was said elsewhere; in fact they say the opposite. If you go over to page 7 where the footnote continues, the first column, first complete paragraph, they say:

To the extent that the precise reasoning used by the courts in Deep Vein Thrombosis and Air Travel Group Litigation and Povey is inconsistent with our reasoning, we reject the analysis of those cases –

So on the points of principle between action and inaction and the relevance of that between a specific event as opposed to a set of circumstances – it may or may not be continuous – they recognise that what they are saying may be inconsistent as a matter of principle with what was said by Justice Ormiston in the present case and Lord Phillips in the English Court of Appeal. You do not have to take my word for that construction, because in the minority view of Justice Scalia and Justice O’Connor, he actually nicely interprets what the majority was saying in Olympic Airways and Saks and he makes the points that I have just made.

KIRBY J: It is said for the respondent that uncharacteristically, Justice Scalia overstated the opinion of his colleagues.

MR BEACH: You have to look at the majority, but it is a good window into what the majority were doing from another justice in the same case. I can understand why the airlines here have to say that Justice Scalia has overstated what the majority have said, but when one looks at what the majority have said in that footnote and analyses it carefully, we would say there is no overstatement by Justice Scalia. He is annoyed that the majority have departed from equally open interpretations of Article 17 in the English Court of Appeal and in the Victorian Court of Appeal, so he seems to be uptight about that, but at the end of the day his analysis of what the majority have done in rejecting the action/inaction distinction is quite correct, we would say. He also goes on to reject the suggestion that you could narrow the majority view to the facts, because there was some refusal of the airline crew or the airline stewardess to move the passenger - - -

KIRBY J: That is an intervening fact, though, is it not, in Husain? There was the request to be reseated and it was not as if the person was just sitting there in the third row from the smoking rows. There was this extra fact that there was a request, it was refused, and the person then had to get up and walk to the front to get away from the smoking. In this case, there is nothing unusual in sitting in an economy seat, with the restrictions that that necessarily puts on you with a very large number of other passengers in a captive cylinder crossing the world.

MR BEACH: Justice Scalia is making the point that you need to look at the causative event, and the refusal was not the causative event, just the words used. That did not do anything. It was rather the failure to move which was the causative event of the injury. That is not to say the words used may not be causative. If somebody makes a misrepresentation to me and I act on it, it could be causative, but here he says that the third refusal was not causative. The causative event, which is what one is analysing for the concept of “accident”, was the failure to move.

McHUGH J: You see, your argument seeks to break up the term “accident”, which has a number of elements, and argue in relation to each of the elements, and that seems to me, with respect, to be the error in the majority reasoning in Husain. To have an accident which caused damage you must have an event, a happening or occurrence that causes the damage and it must be unusual, fortuitous, unexpected or unexpected occurrence. So what the majority say is the rejection of an explicit request for assistance would be an event or happening under the ordinary and usual definition of these terms. Maybe it would, although it seems to me it is a fairly extended meaning of event to talk about a rejection, but accept that. Their Honours do not deal with the question whether that that rejection is unusual, fortuitous, unexpected.

MR BEACH: I will tell your Honour why they do not, because if your Honour goes to page 5, the third paragraph, they say:

As an initial matter, we note that petitioner did not challenge in the Court of Appeals the District Court’s finding that the flight attendant’s conduct in three times refusing to move Dr Hanson was unusual or unexpected . . . Consequently, we need not dispositively determine -

So they actually left the point open. They never ever had to analyse the concept of what was unexpected.

McHUGH J: Well, that makes the case a very unsatisfactory case.

MR BEACH: That is my point to your Honour. You, in fact, have a clean slate. The Saks Case does not analyse unexpected or unusual because depressurisation was never argued to be unexpected or unusual. Husain did not need to analyse what was unexpected or unusual, because on the facts there it was accepted that what had occurred was unexpected or unusual.

McHUGH J: I just do not see at the moment how you can analyse these elements and then make a judgment about one. What you are dealing with is, in effect, a description of a number of elements. While it is a single term, it is almost a compound conception.

MR BEACH: Can I say this, your Honour. I never wanted to break up the elements. It was Justice Ormiston who started to break up the elements into the act/omission issue or specific event, as opposed to a continuous set of circumstances. It was Justice Ormiston and the airlines, with the airline’s encouragement, breaking up these elements. Lord Phillips also breaks up these elements by saying you cannot have omissions as an accident. I do not want to break up those elements. I say that you do not break up those elements. You only have to look at whether there is a cause external to the passenger, and then ask yourself is that cause unexpected from the perspective of the reasonable airline passenger.

HAYNE J: Let us avoid the sophistry which you say has been engaged in. What happened on board that caused the injury?

MR BEACH: What happened on board was the combination of various positive conditions and negative conditions that occurred for the duration of the flight, and it is not unusual that you could have something that is an accident that would occur for the duration of the flight. If you have - - -

HAYNE J: As I say, I want you to avoid sophistry.

MR BEACH: Yes, the airline sophistry, your Honour.

HAYNE J: You criticise it. You say, no, this is a simple question. What happened on board?

MR BEACH: No, you do not ask that question. You ask yourself the question, what is the cause of the injury? If the cause of the injury - - -

HAYNE J: And it has got to happen on board, Mr Beach. The accident must happen on board.

MR BEACH: You use the word “happen”, and then we go from “happen” through to “happenstance, occurrence”, and then we get down to Lord Phillips and “specific event”. I wanted to stay at the word “cause” and say what was the cause of the injury? Was it external to the passenger? Did it occur on board, and was it unexpected from the perspective of the reasonable airline passenger? We would say that is what the travaux supports.

HAYNE J: Let me ask you a different question. What was the accident that took place on board the aircraft?

MR BEACH: The conjunction of positive and negative conditions for the duration of the flight in circumstances where the passenger expected that an airline knowing of a life-threatening risk would take steps to warn the passengers either of that risk or precautionary measures that could be taken to avoid that risk.

HAYNE J: It is the Conan Doyle argument of the curious incident of the dog in the night. The dog did not bark.

MR BEACH: Your Honour then goes back into the concept that omissions or inaction cannot be accidents and we say you cannot do that. Certain omissions and certain inaction can be accidents if there are causes that are external, as long as you have the element of unexpectedness. It is not all omissions. They are not pure or mere omissions. You have the rider of what is expected or unexpected.

KIRBY J: You know how in the Agfa-Gevaert Case the Court said that it was a mistake of construction of statutes, local statutes, to focus only on a phrase; you have to look at the whole thing in its context. The problem I have is a bit similar to what Justice McHugh has put to you. It is that in this endeavour to break up the elements, we are losing sight of the word “accident”, which is an ordinary word and it is not different in French. It just seems artificial to say that something which involved ordinary conditions is an accident. It would not be the way the word would normally be used in the English language. The only way you would get there is by, as it were, dissecting the word. So we are not looking at a phrase, we are looking at a word and then cutting it up into little elements and analysing it in that way. It just strikes me as not the right way to approach the word “accident” in the Convention.

MR BEACH: Your Honour, I was one of the losing counsel in the Agfa Case so I am only too familiar with - - -

KIRBY J: Do you remember that passage where the Court said you - - -

MR BEACH: I do. There was a combination term between a technical part of the tariff order and ordinary meaning and you had to read it as a whole.

McHUGH J: In our judgment we cited a passage from Lord Hoffmann’s speech in Brown.

MR BEACH: Yes.

KIRBY J: I am just concerned that – it may be as Justice Hayne says, this is the sort of infusion of lawyer’s sophistry and perhaps both sides have to do it, but ultimately we have to ask ourselves, is what happened to your client an accident?

MR BEACH: Yes.

KIRBY J: And that presents difficulties. It is an awkward way to describe an accident. It may be that when you look at the Convention, because the Convention does seem to acknowledge that there can be omissions, therefore it is contemplated, reading the whole document, as Agfa-Gevaert says, that you look at them all and therefore we are in the realm of accidents by omission, which is itself a somewhat odd notion, but it seems to be required by the Convention.

MR BEACH: But, your Honour, if I hand up to you an appeal book but leave out a copy of a case, that is an accident and it is an omission. I have omitted to give you something that I intended to do. The idea that omissions or inaction are somehow counter-intuitive to the concept of “accident” we do not support. Take the airline captain who does not press the right button to make sure that the plane is properly pressurised. All sorts of omissions or inactions can be accidents.

McHUGH J: But it is not. That seems to me the fallacy of your argument, particularly your illustration about the book. Ordinarily, an accident is an event, happening or occurrence that ordinarily causes damage, but it is an event, happening or occurrence of a particular kind. The particular kind of event, happening or occurrence that is an accident is one that is fortuitous, unexpected or unforeseen. When you said that, how can the failure to do anything be an accident? What is the event, the happening or the occurrence that is fortuitous? You come out with a stream of words which, with great respect to you, are just meaningless. You talk about “positive and negative conditions” and so on.

MR BEACH: But, your Honour, that is my point. I do not want to. I am forced to do so because Justice Ormiston’s reasoning is based on those distinctions.

McHUGH J: We are not bound by what Justice Ormiston says.

MR BEACH: No, but - - -

McHUGH J: We want to interpret Article 17, and we want your assistance on it and how it applies to the facts of this case.

MR BEACH: And I say to your Honour in response to that, that Olympic Airways v Husain gives you the assistance that you require and it makes it clear that the action/inaction distinction is not something which defines whether something is or is not an accident, and when you look at the intermediate appellate authorities that have followed Husain, in DVT, Rodriguez and Blansett, they do not turn on any of these distinctions. They turn on the concept of unexpectedness.

So when you look at how Husain has been applied subsequently by intermediate appellate courts, you focus squarely and fairly in the DVT specific litigation, because Rodriguez and Blansett were DVT cases, you focus on whether the failure to warn was unexpected, because those cases and their reasoning is on that point. They do not reason that a failure to warn can never be an accident. Rather, they pose the question can a failure to warn – which is unexpectedly an accident and those two subsequent decisions look at the concept of unexpectedness.

I take your Honour’s criticism on board. All of these debates are artificial because you are construing the word “accident”. The travaux indicates that all that Article 17 was designed to do was make a distinction between cause and injury. So I say simply – and this is why I said it at the outset – “accident” is really being used in Article 17 to refer to the cause, which is unexpected. There are all sorts of ways that you can have a cause of an injury - - -

McHUGH J: But that cannot be so, because in terms Article 17 distinguishes between “accident”, “cause” and “damage”, does it not?

MR BEACH: No, “accident” is used as the cause. It is descriptive of the cause.

McHUGH J: It just says “the accident which caused the damage”.

MR BEACH: Yes. They are just descriptive of the cause itself. The only question is how much more do you add to the cause to make it an accident, and what both Husain and Saks tell you is you have to add the element of unexpectedness.

KIRBY J: Now, can I ask – I am trying to put it into my own words and turn the noun into an adverb, that Qantas and British Airways’ failure in what they knew about DVT and in what they knew about the way their planes were operated with trolleys and other reasons for keeping people in economy - passengers, accidentally failed to prevent an injury to your client. They accidentally – you are not suggesting they deliberately injured your client, but they accidentally failed to do it because they knew enough about DVT and they knew enough about the conditions in the economy service that that amounts to an accidental injury to your client. Is that how you try to make it into an accident?

MR BEACH: No. No, we say the airlines knew – we will put a case at trial, if we get there, that the airlines knew that there was this risk of DVT, that they deliberately chose not to warn of it. So you do not look at their state of mind or use the adverb or adjective of “accidentally”. We would say all of those types of descriptions only go to the concept of unexpectedness and, as I say, we do not even look at the airline’s state of mind, but rather the state of mind of the hypothetical passenger. We have put a case not knew or ought to have known. We have put a case of that they knew that there was this risk of DVT and they chose not to warn, or they did not warn.

KIRBY J: That does not sound like an accident. That sounds like building up a case of deliberate conduct.

MR BEACH: That is why Article 25 is there, so that is pointing not to this not being an accident, it is an accident without any limited monetary sum, so you do not – at the point against looking at the state of mind of the airline and focusing more on unexpectedness by reference to the state of mind of the hypothetical passenger.

GLEESON CJ: Well, something can be accidental, from one person’s point of view, and deliberate, from another person’s point of view.

MR BEACH: Yes. There was discussion in the old cases – I think Fenton v Thorley that some versions of “accident” would not include a deliberate or intentional act, but here “accident” is used differently. It is just what is unexpected. It does not matter whether the airline or another passenger intended to harm. It is irrelevant. It is what is unexpected, and that, we would say, is looked at from the perspective of the reasonable airline passenger.

Can I just finish off Husain by reference to this refusal factual distinction. The lower courts in Husain – and I will just give your Honours the reference, at first instance, Judge Breyer – 116 F.Supp.2d 1121 at 1131 to 1135, and in the Court of Appeals (9^th Cir.) [2002] USCA9 902; 316 F.3d 829 and 837. They all analyse Husain in terms of failure, not in terms of the special significance of the concept of “refuse” or “refusal”, as distinct from an action. If one goes to Rodriguez and Blansett for a moment, Rodriguez, we have given your Honours a copy of that – and this is post-Husain. That case turned on the concept of what was unexpected - - -

KIRBY J: Where is Rodriguez?

MR BEACH: Tab 11 in volume 2 of the joint bundle of materials. It is in our separate supplementary materials under tab 8.

KIRBY J: It is tab 8, yes, I have it.

GUMMOW J: [2004] USCA9 614; 383 F.3d 914.

MR BEACH: Yes, your Honour. The print we have given you again is a Westlaw print. Can I go to page 3 of the print, second column, first complete paragraph. It says:

In this case, Rodriguez does not allege any “unexpected or unusual event or happening - - -

HAYNE J: “[E]xternal to”, Mr Beach, and it is externality which is of critical importance in Rodriguez, is it not?

MR BEACH: No, and that is why I wanted to make this point. If you go to page 4, the second column, first complete paragraph, Rodriguez distinguishes Fulop and Husain because they:

involved a response by the flight crew to the passenger’s medical condition. By contrast, in the instant case, there was no response by the flight crew that may or may not have violated industry standards.

Then in the next paragraph, “no evidence” about there being “a clear industry standard”:

no information regarding whether there was either an industry practice –

and in fact, towards the bottom of that column, a reference to - - -

KIRBY J: None of those considerations help you, really, do they?

HAYNE J: What I fastened upon, Mr Beach, was page 4, second column, at about point 4 or 5 of the page:

there was no event external to the passenger –

Now, is that not the hinge about which that case turned?

MR BEACH: No. If you go on and read what they say hinged on the unexpectedness, in the sense that it was not unusual or unexpected in the facts of that case, if you go to page 5, the first column, about halfway through that last paragraph, they say:

We thus need not decide whether an airline’s failure to warn of DVT can constitute an accident –

In other words, they dealt with the case on the basis of unexpectedness, not on the basis of saying that a failure to warn in any circumstance could not amount to an accident.

McHUGH J: That is hard to reconcile with that sentence on page 4:

Consequently, there was no event external to the passenger, let alone an unusual or unexpected event. Under Saks, therefore, there was no accident for purposes of Article 17.

MR BEACH: Yes. Well, they say they do not – there is a focus there on “event”. You cannot rewrite “accident” to mean “event”. That is one of our criticisms of Lord Phillips. So you could accept that it was not an event, that Article 17 does not use the word “event”. So that might be a partial explanation, but the ratio is really the concept that unexpectedness was not established.

KIRBY J: In their submissions the airlines make the point that this was just a normal flight and normal conditions and the usual service and nothing was unusual.

MR BEACH: By their standards.

KIRBY J: By their standards, at that time.

MR BEACH: That is where the nub of the case is. Do we judge unexpectedness just by their unilateral standards, or do you have to look at something else?

McHUGH J: No, but even judging by your client’s standard. Surely, the failure to warn was not a fortuitous, unexpected, unusual or unintended happening or occurrence from your client’s point of view. He was oblivious to it. Nothing happened as far as he was concerned.

MR BEACH: Your Honour then has to fall back to Lord Phillips, that there is some positive act with some immediate physiological effect, and you cannot rewrite “accident”, with all due respect. You cannot rewrite “accident” in such a narrow way.

McHUGH J: Well, I do not know about that. But anyway, even accepting what you have just said is right, you must have an event, happening or occurrence that is “unusual, fortuitous, unexpected, unforeseen”.

MR BEACH: Well, let me focus on the issue of “event”. An event could be the Olympic Games. An event does not have any temporal limitation to it necessarily. It does not have to be something that occurs within a minute or five minutes.

McHUGH J: It seems to me part of the difficulty of your argument is that you take illustrations like appeal books and Olympic events, but “accident” is involved, I think almost without exception, with an event, a happening or occurrence that causes damage but which is an event, happening or occurrence that answers a particular description. It is that combination of facts. It is an event that is fortuitous, unexpected, et cetera.

MR BEACH: Even accepting the word “event” or “occurrence”, you still have, on one view of those terms, an occurrence. You have the airline flight itself. At a particular point in time on the airline flight you have these conditions, and we are saying that these are unexpected. So you do not have to narrow down the concept of “event” or “occurrence”. The control, if there is any control on the concept of “accident”, is derived from the concept of what is unexpected. That is what Rodriguez really turned on.

HAYNE J: Now, you have to be able to locate the unexpectedness, have you not?

MR BEACH: Yes.

HAYNE J: You have to locate it as taking place on board.

MR BEACH: Yes.

HAYNE J: How do you do that, in this case?

MR BEACH: If the perspectives are the reasonable airline passenger in Mr Povey’s position not to be given warnings of known risks, we would say, would – if you ask your hypothetical passenger, we would say it would be unexpected. The hypothetical passenger if asked, “Do you expect the airline to be warning you of known risks that there are precautionary measures that you could take to avoid it” would say, “Yes, I would expect.” So that is how we would justify the concept or perspective of unexpectedness.

McHUGH J: Then you move into an area of abstraction away from what actually happened. You have to say that the failure to warn this appellant of this risk was unexpected.

MR BEACH: Yes.

McHUGH J: That is fairly large proposition, is it not? He was oblivious. He did not expect it. He was looking at it from his point of view, not the airline’s point of view.

MR BEACH: But you are not asking his subjective belief, although that is obviously relevant on causation. In terms of expectedness, in terms of the concept of accident, you would be posing the question for your hypothetical reasonable airline passenger. Can I just digress and take you to our pleading and how we put the concept of unexpectedness. If you go to appeal book page 58, you have at the foot of the page the flight conditions. The concept of unexpectedness is really dealt with on page 59(b) and (c), so you have a number of factual elements that the airlines knew of the risk and knew of preventative measures. The plaintiff and other passengers had no knowledge. Then if you drop down to subparagraph (c) you have the plea:

The Plaintiff and other passengers expected to be provided with warnings –

and then this is the critical sentence –

The provision to passengers by Qantas and/or British Airways of warnings and information about such risks was usual, commonplace and expected.

The word “such” is not a reference to identity with DVT but it is “such risks” meaning like risks, in other words, risks that might be harmful. That is how we put our case.

HAYNE J: Why do you locate that on board rather than at ticketing, at check-in, before boarding or at some other point of the process of travel?

MR BEACH: Well, you could. You could locate it at any point in time. It might have the causal significance of change. You might say a warning given at the time you buy your ticket so you can go off and buy your stockings or your aspirin or whatever may have more causal significance because there may be a greater probability of avoiding the risk than if you were given a warning on board the aircraft, but the airlines give warnings on board today. One assumes they have some causal significance, whatever warnings are or are not given before you get onto the aircraft. So we see that argument as just going to the question of establishing causation.

McHUGH J: No, it goes to more than that. If your argument is right, there is a continuing accident.

MR BEACH: That is what we put.

McHUGH J: On these particulars there was an accident before they got on the plane, there was an accident while the plane was in transit and it was just a continuing accident.

MR BEACH: There is certainly a continuing accident from the time he got on board to the time he got off. We say that.

McHUGH J: That does not seem to be what Article 17 is directed at surely. It is talking of an event happening.

MR BEACH: This is why we have made reference to the travaux because, when you look back at the minutes, they are not terribly illuminating, but what seems apparent from them is that they do not intend to confine the cause. What they sought to do was just define the temporal condition for passengers, which is from embarkation to disembarkation and on board, as distinct from cargo which is the temporal time from when the goods are passed into the possession of the carrier for delivery, whereas the original article of the draft Convention Articles 20 and 21 had mixed the two up, so they sought to break them down and they used the word “accident” without any further debate but there does not seem to be any suggestion in the minutes that they intended to define “accident” to be narrowed in terms of its cause.

KIRBY J: Do we have the travaux?

MR BEACH: Yes, we have given - - -

KIRBY J: Where are they? Just give the reference to them.

MR BEACH: They should be in two places. They should be in volume 1 of the joint materials under tab 6, and we had, I thought, delivered separately to the Court separate copies of the minutes.

McHUGH J: You did, yes.

MR BEACH: Now, of course, there is a discussion of that in Air France v Saks, those minutes, and we, in our written submissions – I will not waste time going through them - - -

GUMMOW J: If this failure to warn could be seen as a failure to warn at the time of contracting or at the time of check-in or whatever, and the damage is suffered later when the passenger collapses as they get off the plane, you would have your common law rights, would you not, but they would be taken away by the contract?

MR BEACH: The trouble is not so much - - -

GUMMOW J: So you are really using the Convention to, as it were, give you a right under the statute which you may not have had under the general law if you had put the case differently. That is why you have to get into the aircraft to get the advantage of the Convention.

MR BEACH: We certainly have to get into the aircraft to get the benefit of Article 17.

GUMMOW J: There are exemption clauses that would make your hair stand on end, if you had any, are there not, in these tickets?

MR BEACH: The other difficulty for us is the formulation of section 36 of the Act, if you go back to that for a moment. The trouble with section 36 - - -

GUMMOW J: Well, “the liability of a carrier - - -

MR BEACH: “[T]he liability of a carrier”, and it is not said for just Article 17 situations, it is in respect of the injury. Once we have the injury, we can only sue that carrier under the Convention, not outside it.

GLEESON CJ: Does that refer to the potential liability of a carrier or the actual liability? What if there is no liability?

MR BEACH: The trouble with that is that that has already been argued. If there was no liability because of something which did not fall within Article 17 – people have tried to sue carriers outside the parameters of Article 17 and Sidhu says you cannot do that.

GLEESON CJ: That must be because the liability means the potential liability.

MR BEACH: Exactly, and it does seem to speak prospectively that it is in substitution - - -

GUMMOW J: But it is “the liability of a carrier under this Part”.

MR BEACH: Yes.

HAYNE J: That is a reference back, is it, to section 28, relevantly?

MR BEACH: I would have thought that it is a reference back to not just section 28, because, of course, that is under Part IV, but the trouble with section 36 is that it is picked up in section 25L.

HAYNE J: I see.

MR BEACH: You see, we are not really under Part IV, we are really under Part IIIC, and what Part IIIC does in section 25L is pick up section 36, so this part must be a reference back to Part IIIC, which then takes you to the Montreal No 4 Convention. So in terms of the injury, DVT, if we want to sue Qantas and British Airways, by operation of section 36 we are stuck with whatever we can attribute to Article 17.

GUMMOW J: I do not understand that. I do not understand it insofar as you say there could have been a failure to warn before he got on the plane.

MR BEACH: If it was a failure to warn by the airline and say that that was tortious?

GUMMOW J: Yes. What does the Convention say about that?

MR BEACH: Article 17 says nothing about that. But if the injury is DVT, on one reading of section 36 it would preclude the tortious remedy, because we can only sue the carrier for the DVT under the Convention, because it focuses on the injury. So it goes a lot wider than using the temporal or geographical limitation of Article 17.

McHUGH J: Why is that, because section 28 imposes liability in respect of an accident which took place on board the aircraft?

MR BEACH: Sorry, your Honour. Section 28 does not apply to Part IIIC. Section 28 is in Part IV.

GLEESON CJ: If a passenger were assaulted by an employee at the check-in counter - - -

MR BEACH: Yes.

GLEESON CJ: - - - section 36 would have nothing to say to that, would it?

GUMMOW J: It is really 25K, is it not? Section 25K brings in the Convention.

MR BEACH: That is right, but section 36 is broader. Whatever we have under the Convention is in substitution for any civil – so it is any civil liability of the carrier in respect of the injury.

GLEESON CJ: So what happens if a passenger is assaulted by an employee of the airline at the check-in counter?

MR BEACH: On one view of section 36, we may not be able to do anything about it, on one reading of section 36. Now, you might have an argument - well, at that stage it is not acting as a carrier of anything so you might read down “carrier” to mean that they have to be acting in their capacity as a carrier, which is you are disembarking or embarking or you are on board. So there is no definition of what “carrier” means in the Act.

GLEESON CJ: Well, what happens, take another example, if after disembarkation, a baggage handler employed by an airline drops a heavy suitcase on your leg and breaks it?

MR BEACH: I understand the intrinsic logic of what your Honour is saying, but on one view of section 36 it is not confined to just substitution of liability for things which occur on board or during the process of embarkation or disembarkation. It goes a lot broader. You would have to read down section 36 so that it is also subject to the temporal and geographical limitations of Article 17, and in that way, you could then say that this Convention and the Act would have nothing to say about you suing the person at the ticket counter in the central city or the baggage handler after you have embarked.

The other way to read it down is to say it is the liability of the carrier, qua or in their capacity as a carrier, so they have to be physically carrying at the time to be true to section 36. But your Honour Justice Gummow was putting to me that we are somehow trying to bring ourselves within Article 17 because we do not have a right of action for earlier or prior failures to warn, but - - -

GUMMOW J: There may be a contractual exemption clause. I do not know.

MR BEACH: But, your Honour does not have to - - -

GUMMOW J: It does not matter.

MR BEACH: You do not have to speculate about that, your Honour.

GUMMOW J: All I am saying is weeping and wailing about the Convention to an extent may be beside the point because it is your plank in the storm.

MR BEACH: Your Honour, we bring our claim under the Convention. That is a pleaded claim that there is causation and damage flowing from the failure to warn on board. It does not really matter what other case we could or could not bring through earlier failures to warn. That could only go to - - -

GUMMOW J: It is an example of the Convention protecting persons in your position from what otherwise could be an operation of municipal law to give them no rights. That is what I am putting here.

MR BEACH: But that is true, I accept that. Now, Blansett - - -

KIRBY J: Can I just get something out of my mind. You are content to work on the Saks basis that the accident must be external to the passenger. I mean there were some workers compensation cases involving the definition, I think of “accident”, which said that internal catastrophes can be accidents in that context. It may be that the context explains why Saks has taken the stand it has, and you have argued on that basis, but I want to get clear that I do not have to worry about that line of authority at all.

MR BEACH: I think it is fair to say that the way we have put our case does accept that the cause is something external to the passenger.

KIRBY J: If you read Article 17 just in its terms, there could be an argument that there is an accident, being the catastrophe, and the injury which follows from it, just as a myocardial infarction occurs and then that leads to the death of the heart muscle, which is the injury. The accident is the catastrophe, which is internal.

MR BEACH: That would still be external to the passenger, in the sense that there would be physical forces where the compression - - -

KIRBY J: Not really. It is happening inside there, either in the heart or the brain or somewhere else.

MR BEACH: But it would only be because of the operation of physical compression or decompression or some impact. Here we say you do have events external. You have the cramped physical conditions, plus you have the external issue of the failure to warn. That would be, as I have said, external.

KIRBY J: In ordinary parlance, they are harder to squeeze into the notion – at least my notion – of “accident”, whereas a catastrophe happening inside you can, in my notion, be an accident in certain circumstances. You are not arguing that. Let me just get it clear one way or the other. I do not see it in your written submissions and Saks says it has to be external.

MR BEACH: Yes, and we do not put an argument to the contrary. We say that what we identify as an accident does satisfy - - -

KIRBY J: I think Kavanagh v The Commonwealth was the case I had in mind. It is an old decision. In the early days, workers’ compensation statutes – I do not know whether it did in Kavanagh – were concerned with a statute that talked of “accident” or “injury”. There was the notion that you could not have the precondition if it was internal, but that was hit on the head by this Court. In Zickar, I think, we said the same thing.

MR BEACH: Yes. Transposing it here, you might have said, “The compression of the veins in your leg is an accident and its consequences the DVT”. Both of those would be internal and contrary to what Justice O’Connor said in Saks.

KIRBY J: Exactly.

MR BEACH: So we have not put a case on that basis. We have put a case on externality, but even in that situation you would still have a cause which was external, because you would have the compression of the passenger’s leg before you got to the compression of the veins. One would flow from the other.

KIRBY J: I know you say that, but the question is whether you can, as it were, with General von Schlieffen, bypass all these arguments and simply say, “Well, we have the accident, the catastrophe, we have the injury and that is enough”. That was not accepted in Saks. It does not seem to be the way the case law has developed and you have not argued it, so I will not open it unnecessarily.

MR BEACH: Can I just say something about Saks too. Her Honour referred to the decision of Abramson v Japan Airlines [1984] USCA3 1129; 739 F 2d 130 and also Scherer’s Case. In the first case there was a hernia by reason of the passenger sitting upright, and in the second case there was a thrombosis type condition. But the cases there were not put in the way we have put our case, and you need to look at those cases. It was not pleaded that there was some external event or series of conditions, let alone a failure to warn of the type that we are putting.

I should say, interestingly enough, Abramson has been disapproved of in later authority and I will just give you some references to that if I have time: in Fulop v Malev Hungarian Airlines (2001) 175 F Supp 2d 651 and in McCaskey v Continental Airlines (2001) 159 F Supp 2d 562. Abramson has been disapproved of because Abramson preceded El Al Israel Airlines v Tseng.

Prior to Tseng’s Case sometimes the passengers or the victim did not want to say that there was an accident because they had their common law rights. So they would say, “I’m not within the Article 17 Convention because I want to pursue my common law rights” whereas the airlines were saying, “No, you are within Article 17”. After the Supreme Court decision of Tseng, which said that the Convention was an exhaustive regime, the arguments flipped. So you have to be careful in reading the accident cases like Abramson and Scherer prior to El Al Israel Airlines. Although Saks refers to those two cases of Abramson and Tseng, Saks was in 1985, and El Al Israel Airlines and Tseng was a decision which was - - -

GUMMOW J: In 1999.

MR BEACH: Yes.

GUMMOW J: (1999) 525 US 155.

MR BEACH: Thank you, your Honour, yes. Now, can I just - - -

GUMMOW J: Justice Ginsburg gave the judgment.

MR BEACH: Yes.

GUMMOW J: Very clearly expressed, I think.

MR BEACH: Tseng is following Sidhu in the House of Lords. Now, I just wanted to make some comments about Blansett. That is in tab 7 of our materials. They analyse the matter in terms of unexpectedness. If you go to page 182, the first column, the first complete paragraph, they say:

Continental’s failure to warn of DVT was not an “unusual or unexpected event” . . . Though many international carriers in 2001 –

which was the date I gave to you earlier –

included DVT warnings, it is undisputed that many did not.

So they analyse the concept of “unexpectedness” and find as definitive what the particular procedures and policies of the industry were on that concept. They do not say that a failure to warn can never be an accident. They rather focus again, like Rodriguez does - - -

KIRBY J: Is that not true, because both the passenger and the airline consider whether something is unexpected in the context of what is the norm.

MR BEACH: That is exactly right.

KIRBY J: And if it is the norm that you have a passenger sitting in economy seats and not being warned and having trolleys and unable to get up and being encouraged to listen to their program so they do not get up, if that is the norm, well that is not unexpected to the airline, not unexpected to the passenger.

MR BEACH: That is why I took your Honour to our pleaded case. We say the norm was not that so much in terms of the perspective of the passenger. The norm was that the passenger was warned of known life-threatening risks. That is the norm, although not specifically DVT in this case.

KIRBY J: The question is whether, accepting that, that that might well have given rise to common law rights, but now you are in the statute and you do not have your common law right. You have to squeeze yourself into the Convention, and it talks of an accident. An accident has this notion of the unexpected.

MR BEACH: But the unexpectedness – and this is something that we have dealt with in our written submissions – there is a common substratum. When you look at the element of unexpectedness, some issues that inform the element of the law of negligence, the factual elements, may carry over to whether or not something was expected or unexpected. We would make that point. Just going back to Blansett, page 181, second column, there is an analysis there in the first complete paragraph of the concept of “unexpectedness”.

Just going backwards – I am sorry to do this – to page 180, first column, paragraph [5], they there make this distinction in terms of the request and refusal. We would say that what the appellate intermediate court has done here is contrary to what Husain has said. In Husain, neither the majority nor the minority would make that type of distinction, that is, that the issue of accident does not turn on that type of distinction. So we would say that this appellate court decision is not being faithful to Husain. About halfway down that paragraph, they say:

The Court stated that the failure to give warning in the foreign Warsaw Convention cases involving DVT, as distinguished from a specific refusal to lend requested aid in Husain, was enough to prevent conflict between them.

We would say that is not right. If you go back to that reference, and I took your Honours to footnote 9, what the majority were saying is, “There is no conflict in finding that Husain, on its facts, was an accident”. They went on in their footnote 9 to say that they were in conflict what had been said in the English and the Australian cases, so we would say that that part of that paragraph is not consistent with Husain.

Your Honour Justice Hayne asked me to link up unexpectedness to cause. The cause is what we have identified in those particulars. We have specific pleas of what is unexpected and we say no further distinctions need to be made, or at least it is a matter for trial as to whether those facts would amount to an accident. The airlines want to foreclose the inquiry of unexpectedness by saying that on that issue their standards and procedures, or the industry’s standards and procedures, are definitive. That is why they say there were no such standards or procedures and therefore it cannot be unexpected. But if you focus on the perspective of the reasonable airline passenger, the airline’s own practices and procedures cannot be definitive.

For all we know, perhaps CASA did not require them at the time to give these warnings because CASA itself may not have known what the risks were that the airline feared. They might have kept it to themselves, for all we know. So the actual standards and procedures, if they are not followed with or complied with, could give rise to what is unexpected, but it does not logically follow that if there are no standard procedures and policies, the airline passenger cannot establish the relevant element of unexpectedness. It simply does not follow. To show a breach of policy can entail unexpectedness, but the reverse does not necessarily follow.

Most of the cases that deal with the concept of “unexpectedness” are really lower court decisions. As I said, the US Supreme Court
has not really analysed it in any detail. The lower court decisions – and we have given you a reference to some in that table that we attached to our reply submission - they are examples of situations which might give rise to “unexpectedness”, but they are not exhaustive of all the circumstances in which that concept might be established. Unless there is anything else, that completes my two hours.

GLEESON CJ: Yes, thank you, Mr Beach. Yes, Mr Sher.

MR SHER: If your Honours please, we rely on our written submissions save for paragraph 31 which we have notified your Honours and my learned friends we wish to change, and I will go to that shortly. In the time available, I want to deal with three matters. I want to, firstly, do something which I do not think has been done by anyone in Australia in this case and that is to take to its logical conclusion the case that the appellant seeks to make in this case. Secondly, I want to deal with the question of from whose perspective the question of what is unexpected or unusual has to be judged, and that is the subject matter of the amendment to our submission. Then, thirdly, I would like to deal, your Honours, shortly, with Husain, Blansett and Rodriguez.

Before dealing with the first issue, can I take your Honours to a short passage in Blansett at page 181, which your Honours have just been taken to, but this passage was not read, to show that what the appellant is seeking to do in this case is not being done for the first time. In the second column in 181 in the paragraph commencing at about point 3 the court observed as follows:

The Blansetts reason that though this decision occurred at a time and place distant from Blansett’s flight –

that is the policymakers at Continental deciding not to mandate warnings –

article 17 is to be “applied flexibly” after “assessment of all the circumstances surrounding a passenger’s injuries . . . It is appropriate to consider the deliberate perpetuation of company-wide policies as potential “events” within the context of the individual flights in which they are given effect. We may accordingly compare the instructions given on Continental flights with those customarily given within the airline industry generally, in gauging whether Continental’s deliberate choice was “unusual and unexpected.”

So what happened in that case, and what is pleaded here, is, in effect, that there was a policy of both Qantas, and BA for that matter, and undoubtedly for other airlines as well, that there be no warnings given on flights in relation to the risk of DVT. That means that every single person on every single Qantas flight would, if that coupled with the further fact alleged, have suffered an accident. In other words, there would have been millions of accidents. The other fact alleged is the lack of knowledge of DVT risk and the expectation that there would be a warning given.

KIRBY J: But, first of all on that first point, there may be an accident but there has been no injury.

MR SHER: I will come to that.

KIRBY J: So we do not have to get terribly worried about all those millions and millions of accidents you are conjuring up here as a horrifying thought.

MR SHER: I am going to explore that, your Honour. I am not sure that is right, with respect. I want to explore that. If we view it from the viewpoint of every single Qantas passenger and every passenger’s viewpoint, having an expectation, it means that every single person carried on a Qantas flight during this period, every single person carried on a BA flight in this period, every single person carried on any airline that had a similar policy in this period, has suffered an accident. So we have millions and millions of accidents.

The first question you would ask yourself rhetorically is, “Were the delegates to the Convention of a mind to provide for circumstances which would lead to millions of accidents?”, which is a precursor to the next question as to whether or not they come within Article 17, which requires injury caused by that accident.

Now, when one considers – from the standpoint of there being an accident, because this is the appellant’s case – whether or not there has been an injury, immediately a serious causation question arises which has two aspects to it, and they are adverted to by both Justice Ormiston and another member of the Court of Appeal and Justice Bongiorno in the first instance. The two aspects to causation, which cannot be ignored when we are construing Article 17, are, firstly, whether DVT is caused by these conditions. That is a medical question. It is always going to arise and that is not surprising.

The second aspect to causation, which has been glossed over, is the fact that this is a warning case. This is a case in which it is alleged that a warning was not given that should have been given, and the law of this country is that for a lack of a warning to be shown to be causative, it has to be demonstrated that a warning would have made a difference.

CALLINAN J: Mr Sher, the other allegation, I thought, or is it all tied up with warning, is the provision of cramped conditions - - -

MR SHER: Yes, I agree with that and I will come to that in a moment. Just dealing with the warning case, the causation issue that immediately arises in all of these millions of accidents with potential claimants is whether these claimants would have behaved any differently if the warning had have been given.

KIRBY J: Well, why would they not? I mean, we all now do little exercises. I do them up here. I have a little machine that is under my feet even as we speak, Mr Sher, and I can pedal it and go upwards and downwards and do my exercises. That is what you constantly tell people on your screen. Do your exercises, drink water.

MR SHER: But what it means, your Honours, is that when we take the logical consequence of this allegation about lack of warning to the logical end and consider the causation issue, we have, in every single one of these events, a subjective question as to whether a particular passenger would have behaved any differently, and the determination of that issue may well involve us in going straight into the area of the common law in relation to warning cases. In other words, what is being done here is to plead facts which, if established, would require the courts to investigate, in the same way as they would in a common law exercise, whether the warning would have made any difference. So that, within these millions of accidents, we cannot resolve the question of whether the injury, this claim, was caused by this so-called accident without investigating the common law concept of whether warnings would have made a difference.

HAYNE J: Why do you inject the notion of the common law when this is an international convention to be applied through the civilian systems, common law systems and the like?

MR SHER: I have obviously not made my point clear. I am not seeking to inject it. What I am pointing out to your Honours is that is the inevitable consequence. It will be injected. Therefore, in relation to a case of lack of warning, it will have to be resolved by reference to common law concepts. That is contrary to - - -

McHUGH J: But you have to do it in any event, do you not, under Article 17? I mean there is always an issue as to whether the accident caused the damage.

MR SHER: That is so.

McHUGH J: Well, it has to be determined.

MR SHER: But with a warning case there is a different issue than arises in just about every other type of case. In the normal run of cases the question is a medical question. In a warning case not only do you have the medical question, you have the concept of whether the warning would have made any difference, which takes you into the common law arena.

CALLINAN J: Is that another way of saying that if, in fact, the person would not have heeded the warning then it was the refusal to heed the warning that was the cause and not the conditions?

MR SHER: Exactly. That is so.

KIRBY J: Yes, but you have pitched your case too high, with all respect, because millions of accidents and then some injuries, and there would be some – but you knew during this period that there was a very small proportion, but a proportion - so it is alleged that you knew – who had this catastrophic development, yet you did not give them the chance of a warning, and you do now. It should not be believed that those warnings are just symbolic. They are supposed to be taken seriously.

MR SHER: Your Honour, the only point I am making is that the case that is sought to be made against the airlines here inevitably forces a subjective inquiry of a common law nature into the effect of the failure to give the warning.

KIRBY J: Well, that may be how a common lawyer looks at it, but I am sure a French lawyer does not. It just asks is there an accident, is there an injury, has there been damage? Then all the multi, multi millions that you are posing as this terrifying possibility really reduces to quite a small number, but a real number.

MR SHER: Well, even with that small number, your Honour, we have already established – probably to the surprise of every single delegate - that there have been millions of accidents, that is the first thing, and, secondly, to explore whether there is the causation, required by Article 17, satisfied, we have a subjective common law type inquiry into whether the warning would have made any difference.

The concept that – and it was picked up by one of your Honours – the difference between the word “failure” and the word “absence”, the allegation here is of a concept of failure, which involves, we would respectfully submit, concepts more akin to the common law than to the question of liability under a convention.

If we look at precisely what is pleaded here against the airlines – and if I can take your Honours to the application book, firstly at page 2 – you will see in paragraph 6 the flight conditions which are pleaded. Now, can I put out to your Honours as I go through these, and some further particulars given in relation to paragraph 21 of the statement of claim, what the judge who most favoured the appellant’s case in the Court of Appeal said about these particulars, namely Justice Ashley. In relation to flight condition (a), the “confined and restricted physical environment”, at application book 182 your Honours will find that Justice Ashley would have not have permitted that allegation to go forward. It is 182 of the application book. As to:

(b) impediments to the Plaintiff getting out of his seat during the flights;

(c) the offer and supply of alcoholic beverages, tea and coffee to the Plaintiff during the flights;–

well, the offer could do nothing, and:

(d) discouraging the Plaintiff from moving around the cabin of the aircraft and encouraging the Plaintiff to remain seated during the flights –

they are, as the plaintiffs themselves plead in their case against CASA, standard flight conditions, and your Honours would well know that that is the case. So, they cannot be unexpected -

(e) the Plaintiff not being provided with any information or warning about the risk of DVT or information about the measures which the Plaintiff could take to reduce such risk -

Mr Justice Ashley would have struck out because he, together with Justices Ormiston and Chernov said that a failure to give a warning was a non-event and could not be an event, so he would have struck that out, and that appears at page 182 as well.

Then when we go to paragraph 21 of the statement of claim at page 15 you will find the bald allegation that the injuries resulted from an “accident which took place on board the aircraft” and reference is made to Article 17, and when particulars of that were given, and they appear at pages 58 and 59, there were three things asserted. At 58, your Honours will see that reference was made to the particulars of paragraph 6, to which I have just taken the Court, so that adds nothing, and:

(b) At the time of the flight Qantas and/or British Airways knew that the flight conditions were capable of causing or increasing the risk of the passengers on the flight experiencing DVT and knew of preventative measures which may have minimized such risk. The Plaintiff and other passengers had no such knowledge. Accordingly, it was unexpected or unusual that the Plaintiff was subjected to such flight conditions.

Well, that is the warning case they make, and then (c) failure to provide -

information or warning about the risk –

and the like, Justice Ashley would also have struck out.

So in the final analysis the case that has been sought to be made here is of four conditions, three conditions that would be left if Justice Ashley had his way. They are (b), (c) and (d) of paragraph 6 and paragraph (b) on the top of page 59.

In our respectful submission, there is neither an event here nor is there something which is unexpected, which brings me to the next matter that I wish to address the Court on, and that is the question of from whose perspective unexpected is to be determined. Your Honours would have been provided earlier today with an amendment that we wished to make to paragraph 31 of our summary of argument. I take it your Honours were provided with that document?

GLEESON CJ: Yes.

MR SHER: In paragraph 31 we submit that the question raised by the appellant about the perspective from which the unusual and unexpected event is to be viewed, the accident inquiry is factual and into the nature of the event. That seems to be uncontentious. This suggests an objective inquiry without the potential partiality of a particular perspective. Justice Bongiorno at first instance considered that the facts should be viewed objectively. This is an approach which is supported in other decisions under the Convention and we have given your Honours a list.

KIRBY J: This sounds awfully like pre-Rogers v Whitaker, nanny knows best. It is not for the objective determination, it is for what the practice of the particular profession or industry was. That was knocked on the head in Rogers v Whitaker. I mean, it may be different because this is an international convention. It is not for us just to impose our common law notions, but it is not something that is immediately attractive.

MR SHER: In our respectful submission, common law notions should not be applied at all and they should be entirely put to one side. When you are talking about an unusual or unexpected event, one has to decide from which perspective that is to be determined. Who is to say it is unusual or unexpected?

Justice Bongiorno thought the approach should be an objective one. That finds support in the cases to which we refer your Honours in note 58. Justice Ormiston took a different view than the view which has been urged upon the Court today, and I will take your Honours to the three judgments in the court below in relation to this question.

On reflection, it seemed, with respect, to us that you cannot view this issue from the perspective of either or both the passenger and the airline, because in the case of the passenger the passenger may be ignorant of regulations in the industry, may be ignorant of airline policy, and if you are looking at the question of what is unexpected purely from the viewpoint of a passenger, you may omit to take into account as to whether something is usual or not in a highly regulated industry, matters to which the airlines have to have regard and have to do or not do. So you cannot view it solely from the viewpoint of the passenger.

The point made against viewing it from the viewpoint of the airlines, with which we do not quarrel, is that that would enable airlines unilaterally to set, as it were, their own standards, and not all airlines are like Qantas and BA. That is equally unsatisfactory. The question that then arises – and this is a point taken up in the two recent American cases to which I will refer shortly – is what regard is to be had to the question of airline policy and government policy, because this being a highly regulated industry there is a great deal said about what airlines can and cannot do by the regulators. It seemed, with respect, to us, and this is why we make this submission, that one of the factors to be taken into account is airline policy and government policy, that is to say, regulatory practice. I will take your Honours, when we come to Blansett and Rodriguez, to these issues.

So if it is not to be solely from the viewpoint of the passenger, not to be solely from the viewpoint of the airline and to have regard to airline practice and regulatory requirements, from whose perspective then is the matter to be judged? In our respectful submission, the only reasonable and logical approach is to take the view of a disinterested person, that is to say, an objective test of somebody knowing the relevant facts and forming a view as to whether something is unusual or unexpected. That involves no more than a factual inquiry.

Parties can lead evidence as to these matters, and one of the benefits of such a test is that it eschews the concepts of negligence involved in reasonableness and subjectivity, and provides, with respect, in an international convention’s application, a test which is, in our respectful submission, both workable and fair. Now, how has this issue been - - -

McHUGH J: But, as Justice Kirby says, it seems to be a retreat to a Bolam-type situation.

MR SHER: With respect, not, because it is not - - -

McHUGH J: Supposing somebody suffers ptomaine poisoning on a flight, surely it is not an answer to say, well, all airlines open tins of food several hours before they go on board or at the commencement of the flight, if that happened to be the standard practice.

MR SHER: The answer that I would give to both your Honours is that what we are suggesting involves a combination of all these factors including standard practice.

McHUGH J: That is a different thing. All you are saying is a disinterested person, having regard to all the circumstances of the case.

MR SHER: Including standard airline practice and industry regulation. They are the very issues with which both Blansett and Rodriguez are concerned.

CALLINAN J: In the same way as one might take into account the Australian standards in assessing conduct.

MR SHER: Exactly. The question to be asked is, has there been any sensible alternative proposal made? My learned friend wants it to be determined by reference to the reasonable passenger, but the reasonable passenger may have absolutely no knowledge of industry practice or regulatory requirements and it would be surprising if they did. So that is hardly satisfactory.

KIRBY J: One would not think, though, that the Convention would be intending to give, in a sense, a self-fulfilling power to the industry, in the face of knowledge of this condition, to just say, “Well, we’re just not going to do it. It will cost too much, it is inconvenient, it will upset some passengers. We just won’t do it”.

MR SHER: That is why you have regard to it, but you are not confined to it. What we are suggesting to the Court as an appropriate test here is a test which has regard to all these factors, not just some of them. It is to be assessed. In the final analysis, it is probably the court that is going to make the judgment as to whether something is unusual or unexpected, but there has to be some criteria, some means of answering what is clearly a very important question and which this appeal throws up.

CALLINAN J: One important aspect, though, of all the factors, would be the vulnerability of the passenger in relation to the much superior knowledge and experience of the carrier.

MR SHER: There is no reason why that could not be taken into account, your Honour.

CALLINAN J: Yes, you do not submit to the contrary, you just say they are two of the factors.

MR SHER: But it has to be done in a context. Now, let me give an example from one of the cases of how what your Honour has just said might produce an unacceptable result. In, I think it is Blansett, I am pretty sure it is Blansett, the question that arose was whether or not – actually, I think it is Rodriguez now. In one of those two cases, and I will identify it to your Honours at some stage today, the question arose as to whether or not one of the suggested warnings that should have been given, namely get up and move around the cabin and avoid the risk of DVT, was contradictory of another regulatory requirement which is that passengers be advised to stay in their seats.

So, to answer your Honour Justice Callinan, one cannot take this concept in the abstract. You have to ask yourself about the nature of the flight, a point that Justice Kirby made earlier about Australian flights being lengthy, about the type of passenger with which you are dealing, the nature of the airline, the practices applied by the airlines of similar standards. In Blansett Continental, notwithstanding an IATA recommendation that all airlines give warnings and there was evidence that five out of 10 of the leading airlines did, was nonetheless, in a sense, exonerated because there was no regulatory requirement and it was not inevitable that everyone gave the warning, so - - -

KIRBY J: That strikes me very much as an American view that because the federal regulatory authority of the United States of America had not regulated the matter that therefore it is not an accident within the international convention. That is not necessarily the way we would look on it.

MR SHER: It was an American case, your Honour, involving an American airline.

KIRBY J: Yes, but the history of all these airline cases in Australia, and, I should say, England and other Commonwealth countries, is that we do strive to look at the international context. We are not so self-satisfied with our own approach.

MR SHER: Your Honours, we have, in our submissions, given references to the manner of approach of the construction of an international convention. This Court has considered that issue in a number of recent cases, in which many of your Honours have participated.

McHUGH J: I know. If it had not been for that approach, I would have had great difficulty accepting El Al and Sidhu about the Convention pre-empting common law rights. I would have thought there was a powerful argument, for instance, if somebody got off the plane and suddenly had an episode as a result of these conditions that they may well have been able to bring a common law action, because it was not an accident on board the plane, on any view of the matter. But El Al and Sidhu seem to say, well, it governs the whole flight. Even if you are assaulted by a security attendant, getting on the flight, that is - - -

CALLINAN J: That is what outraged Justice Scalia, the inconsistency of the majority in refusing to resort to international authority in Husain but going to it to construe the United States Constitution.

MR SHER: Can I say something about Husain after lunch, your Honours, but can I conclude, seeing it is nearly time to adjourn, by saying this. We are not submitting that one has regard to these matters to the exclusion of all others. We say one should look at this, taking all these matters into account, but not confine it to the position of the reasonable passenger, because once you start talking about reasonable passengers you are into the area of negligence, anyway, the concept of the reasonable person. You are dealing with the matter, in a sense, subjectively and to the exclusion of other relevant factors that need to be taken into account.

GLEESON CJ: We will adjourn until 2.15 pm.

MR SHER: I was saying – yes – I have lost my train of thought. I meant to say that apart from the High Court’s recent pronouncements on the manner of approach to construing international conventions, the House of Lords has recently discussed that very issue in Morris and one of the interesting things is that if that is the international view about how these matters are to be approached then that, too, has to be given due deference.

KIRBY J: Could I just mention that the case of Kavanagh v Commonwealth, [1960] HCA 25; (1961) 103 CLR 547 was construing the Commonwealth Employees’ Compensation Act which talked of injury by accident, and it does not seem to be pursued here, but it also would have provided a line that casts some doubt on Saks that it has to be external to the person because in that case it was a rupture and they said, “Well, it’s still an accident”, an injury by accident.

MR SHER: It is, with respect, too late now to move away from Air France v Saks.

KIRBY J: Well, if it had been argued it might not have been too late, but it is not argued.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Sher.

MR SHER: If your Honours please. Can I say something now about Husain, a decision which on its facts was, in our respectful submission, correct. I take your Honours to the passages in which the ratio can be found. If your Honours go to page 6 – I think your Honours were seduced by Mr Beach into looking not at the composite folder we had all put together, but their folder which has a slightly different report in it, and we had better stick to that one. That is under tab 4 of their folder. On page 6 in the first column, your Honours will see at about point 5 of the page a sentence commencing with the words, “Petitioner ignores the fact”. There the court said:

Petitioner ignores the fact that the flight attendant’s refusal on three separate occasions to move Dr Hanson was also a “factual ‘event,’”

At the top of the next column:

The fact is, the exposure to smoke, the misassignment to the smoking section, and the refusal to move the passenger would all be factual events contributing to the death of the passenger. In the instant case, the same can be said: the exposure to the smoke and the refusal to assist the passenger are happenings that both contributed to the passenger’s death.

So they are both events and happenings. They come within the Saks definition. That is the reason why the claim in that case was successful. There are three passages in the judgment which might have led to the erroneous view of what was being said that was voiced by Justice Scalia, and subsequently there is a short passage in Blansett that, with respect, makes the same mistake.

The first of those passages is also on page 6 and also in the second column, and it was there that the court said:

And petitioner’s argument that the flight attendant’s failure to act cannot constitute an “accident” because only affirmative acts are “event[s] or happening[s]” under Saks is unavailing.

So there, there is reference to the antithesis of non-action, one might suggest:

The distinction between action and inaction, as petitioner uses these terms, would perhaps be relevant were this a tort law negligence case. But respondents do not advocate, and petitioner vigorously rejects, that a negligence regime applies under Article 17 of the Convention. The relevant “accident” inquiry under Saks is whether there is “an unexpected or unusual event or happening.” The rejection of an explicit request for assistance would be an “event” or “happening” under the ordinary and usual definitions of these terms.

Now, there, their Honours are referring to the distinction between “action” and “inaction”, and in the note to which reference is already made – note 9 at the bottom of that column – reference is made to the United Kingdom and the Victorian appellate decisions, and what their Honours said about it is that:

our conclusion is not inconsistent with Deep Vein Thrombosis and Air Travel Litigation -

and it was not, and indeed, Lord Phillips made clear that it was not and why it was not. Now, the only reservation that the Supreme Court expressed about those two cases which, in our respectful submission, has been, in effect, turned from a negative to a positive is the observation that followed in the first column on page 7 in these words:

To the extent that the precise reasoning used by the courts in Deep Vein Thrombosis and Air Travel Group Litigation and Povey is inconsistent with our reasoning, we reject the analysis of those cases for the reasons stated –

Now, they are not saying that the reasoning is inconsistent. They are just adverting to the possibility that it may be suggested that it is. When one comes to look at these cases – and Blansett is a good example of it – the terminology used in some of these American cases is quite loose. They go from using words such as “omission” to “refusal”, to “action”, to “inaction”, to “inertia”, et cetera, and it is not beyond the bounds of possibility that there might have been a misunderstanding. You cannot convert those observations into a suggestion that Justice Scalia later made that there is, as it were, a head-on collision between the appellate decisions in the UK and Victoria and Husain.

Now, the second possible passage that might have led to confusion is also on page 7 in the first column, in a passage already referred to by Mr Beach, commencing “Moreover”. That passage reads:

Moreover, the fallacy of the petitioner’s position that an “accident” cannot take the form of inaction –

that is the word used there –

is illustrated by the following example.

Then an example is given of what is clearly not inaction at all. So the word there again used is the word “inaction”, and it is quite clear from that illustration that this was not inaction by any means. The third passage is at page 7 in the second column - - -

HAYNE J: The manner of phrasing adopted in the majority’s opinion appears to owe much to the way in which the parties presented their cases in their briefs.

MR SHER: It is constantly referred to. “The petitioner says this”, “The respondent says that”.

HAYNE J: The petitioner’s brief described the legal question as being whether an airline’s failure to assist constituted wilful misconduct, et cetera, and much of the argument was cast in terms of failure to assist.

MR SHER: Yes. I agree, with respect, with what your Honour has said. If I can now go to the third passage which, in our respectful submission, shows a misunderstanding of the provisions of both Article 20 and Article 25. In the second column, page 7, commencing at the top of the page:

Confirming this interpretation, other provisions of the Convention suggest that there is often no distinction between action and inaction on the issue of ultimate liability.

So, again, they are talking in terms of action and inaction. That is not what they then eventually say and it is not what the relevant provisions of the Convention say, either. Firstly, they refer to Article 25 and say in relation to that article, which lifts the cap on liability, that – in referring to wilful misconduct make some observation that this assists in coming to the conclusion that action and inaction do not determine the question. If you look at Article 25 again, if I may ask your Honours to look at it, what this article is doing is removing a limit on liability specified in Article 22, which in turn deals with liability under not only clause 17, but clause 18, and I think clause 19 as well.

CALLINAN J: I was going to ask you about that, Mr Sher, because Article 17 seems to require, as a condition of liability in all cases, an accident.

MR SHER: Yes.

CALLINAN J: Whereas something that is intentionally caused, which would be within 25, could hardly be described as an accident.

MR SHER: With respect, I agree, and to take up his Honour the Chief Justice’s point, it could not be said it was unexpected, certainly from the viewpoint of the airline.

McHUGH J: Yes, but may it not be directed, as I put to Mr Beach, to a quite different position? It is directed to an act which has a causal connection with the damage.

MR SHER: Yes.

McHUGH J: It may be anterior to the occurrence of the accident.

MR SHER: Yes.

McHUGH J: I gave the illustration about the employee who deliberately takes out a part, or who even fails to replace a particular part. If the plane crashes, it is not the failure to replace the part that is the accident, it is the crash itself that is the accident.

MR SHER: Yes, that is right.

CALLINAN J: But you still might have a situation of an intention or cause of an injury which would appear to be within 25, which would not answer the description of “accident”. That is what I do not understand. I cannot really fully reconcile 25 or 22 because 25, I know, purports only to lift the ceiling upon liability. It is not dealing exclusively with the conditions which would give rise to a cause of action, which seem to be comprehensively defined by 17, that is, an accident.

MR SHER: Yes, and it is also dealing with an occurrence, which does not require any “unexpected” or “unusual” qualification.

CALLINAN J: So, in the end, I do not know whether they are completely reconcilable. It may not be possible.

MR SHER: Yes.

GLEESON CJ: What is it that would enable you, if anything, to sue an airline if a flight attendant, in a fit of irritation, poured some boiling water over you, deliberately? Can you sue the airline, or does this Convention remove any cause of action you have?

MR SHER: You could not sue the airline in tort.

CALLINAN J: Well, it carries - - -

MR SHER: Under the Convention, you would have an accident.

CALLINAN J: But it is bodily injury, and it is bodily injury within 17, but it is not an accident.

MR SHER: Well, with respect, it is an accident within the Saks definition because, firstly, it is an event, there is no doubt of that. Then the question is whether it is unexpected or unusual. Well, it is unusual; that is clear. Whether it is unexpected may not matter, but if it is unexpected on this particular occasion, the disinterested bystander would say, almost certainly, it was unexpected from anyone’s viewpoint, including the passenger’s. But it would not be determined solely by the passenger.

CALLINAN J: But it is a malicious act and it is a deliberate act. I do not see how that can be an accident.

MR SHER: Well, this is the trade-off that was entered into when the Convention was agreed. Common law domestic claims could not be brought in return for what is effectively described in some of the cases as “no fault liability”. Where you get some benefit from what has been described in this particular instance would be that Article 25 would probably apply at that stage and it would lift the limit of liability.

CALLINAN J: You still need an accident.

MR SHER: You have an accident. You have an event and you have an unusual event.

CALLINAN J: I am not persuaded about that.

MR SHER: From the viewpoint of the airline employee pouring the boiling water, it is not an accident, it is deliberate. From the viewpoint of the passenger in this instance, it is an accident. From the viewpoint of a disinterested bystander watching it happening, he is going to say, “Well, that is an event and it is unusual”, so it is an accident.

McHUGH J: To the pedestrian who is knocked over by a car, it is an accident whether the knocking over was the product of negligence or deliberate intention on the part of the driver.

MR SHER: Yes, that is right.

CALLINAN J: I do not know whether you would describe a deliberate crime as an accident. The pouring of boiling water would be a crime, just as the deliberate running over of somebody would be a crime.

KIRBY J: Your concessions tend to suggest that “accident” here has a slightly wider meaning than the ordinary meaning, which Justice Callinan is sticking to.

MR SHER: I am going to attach my client’s hat, as it were, on the peg of Air France v Saks. That is the definition of “accident” which we say has been so generally accepted and so regularly applied.

KIRBY J: That even if wrong, we have to stick to it.

MR SHER: Absolutely.

CALLINAN J: It would not be the first time an international convention contains provisions which are very difficult or impossible to reconcile.

MR SHER: It is a convention to be applied world-wide, or effectively world-wide, and our concepts of right and wrong and what is criminal and what is accidental may be different from others’.

McHUGH J: It is illustrations like this that make me wonder whether or not what was said in El Al and by the House of Lords in Sidhu about pre-emption of other rights is correct. If somebody deliberately pours boiling water over you, one would say that is an assault. It is not an accident that took place on board. You should have your common law actions because the Convention just does not deal with it.

KIRBY J: But you are showing how generous your clients are. They are willing to concede that this is an accident - - -

MR SHER: Absolutely, and we would probably sack the employee when we get him.

KIRBY J: - - - because the United States Supreme Court said so.

CALLINAN J: There might be an ex gratia payment, too.

MR SHER: Yes. Well, there again. Justice McHugh, the answer to your question is that it is too late to argue about those as well.

McHUGH J: I am not sure about that.

GUMMOW J: I am not sure about that.

MR SHER: Your Honour, that is my submission, but, fortunately, we do not have to decide that. That does not have be decided in this case as to whether Sidhu and Tseng are correct.

McHUGH J: One pays attention to what other courts have said, but the downside of it is that the earliest error becomes law.

MR SHER: Well, if I can just focus on Air France v Saks, because that is the case that really we are concerned with here, rather than the others, it has a logical appeal, if I may say so. It has been consistently and regularly applied by courts of the highest standing in the United Kingdom, Canada. There has certainly been some reference in some of the many authorities referred to, but not at the ultimate appellate level, to courts in France and German, in Israel, and, I think, in India.

It is a case that has met universal acceptance and what I was about to do, your Honours, and what I am trying to find here is a note I have of some observations recently made in Morris about international conventions and complying with them. We have given your Honours reference to a number of passages in that case at paragraphs 5 and 7 and at paragraph 65, I think, but there are other observations. In fact, the House of Lords was unanimous in this case about the proper approach. If I can complete the reference, Lord Steyn in paragraphs 15 and 16, Lord Hope in paragraphs 65 to 67 and 75 to 82 and Lord Hobhouse at 147. They are unanimous in saying that there has to be uniformity of approach to provide certainty and consistency.

As I made the point before lunch, not only is this Court, in our respectful submission, by reference to its own authority in cases like Gamlen and Great China, obligated to adopt that approach because that approach is really the same approach as the United Kingdom House of Lords is urging, there is a consistency about the approach that ought to be adopted as well. Yes, and to go back to our suggested test for what is unusual and unexpected, we would say it is certainly not standard airline practice to be pouring boiling water over passengers.

CALLINAN J: I might say, Mr Sher, that Gamlen, which was considered in China Shipping, in China Shipping there were a whole lot of United States cases referred to on the meaning of “perils of the sea”, and there was great disparity even in the United States’ own decisions.

MR SHER: I recall, when reading it, Justice McHugh’s complaint about the lack of consistency. If that were the case here, then there would be some support for the proposition that perhaps Air France v Saks ought to be revisited, but there is no such disagreement at all that has been - - -

GLEESON CJ: Mr Sher, is it not the case that at all levels in Morris v KLM Royal Dutch Airlines it was held that when one passenger indecently assaulted another passenger during a flight, that was an accident?

MR SHER: Yes. It certainly was an event.

GLEESON CJ: It was a criminal act, it was a deliberate assault on the part of the passenger, but they held at all levels in England that that was an accident.

MR SHER: Yes. That, with respect, supports the proposition. Now, the second article - - -

KIRBY J: I do not know how that ultimately cuts, though, because that then means that we are talking about “accident” in this Convention in a way that the ordinary person on the street in Australia would not describe an accident.

MR SHER: Not always. Sometimes they would, but not always.

KIRBY J: It makes one think that if your reaction to the Convention is, “This is not an accident”, you have to think carefully, because it is not using “accident” in the ordinary sense. It is using it in a very special sense and that is a point Mr Sher presses.

MR SHER: It is certainly not using “accident” in the way in which it was used in the case which your Honour referred to us before lunch, a workers’ compensation case where you had – and the point is emphatically made and nobody has ever quarrelled with this, that the event has to be not the injury. That case your Honour referred to is the antithesis of that.

KIRBY J: Except that the statutory phrase in that case was “injury by accident”, so the two ideas were there.

MR SHER: Yes, benevolent workers’ compensation legislation, your Honour, which lends itself to a broad interpretation. In any event, if I can get back to – because I do not want to take up my learned friend’s time – if I can get back to the other article, Article 20, which is also referred to in this passage, effectively, Article 20 has been turned on its head. Article 20 is about a defence which is not available if you have not taken all necessary measures. Now, the consequences of not taking all necessary measures is that you do not have the defence, but it does not mean that the failure to take a necessary measure means there has been an accident. It is dealing again, as is Article 25, with a distinct and different situation.

What the Supreme Court did in Husain was, in those three passages to which I have referred, lay the ground work for the misunderstanding that is reflected in what Justice Scalia says. We only have to look at one short passage from what Justice Scalia says to see that – or two in fact – to see how far beyond anything that the majority held Justice Scalia suggests they have gone. If I can take your Honours to page 8 and to the second column, where his Honour referred to:

The Court’s new abstemiousness with regard to foreign fare –

He observed that:

Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today’s holding.

That is just simply not correct, and indeed, the best evidence that it is not correct is that the leading judgment in the English case, given by Lord Phillips, is to the effect that our decision is consistent with the appellate decision in the court below in Husain. So that is a gross overstatement, and then what his Honour then went on to say in the very beginning of the next paragraph is:

The court holds [today] that an airline’s mere inaction can constitute an “accident” -

Well, it did not do that at all. What it decided was that what had happened in the case was an event, a thrice refused event in a medical crisis. How one could fairly describe that as mere inaction, in our respectful submission, leads to surprise.

Now, can I say something quickly then about the two other cases, Blansett and Rodriguez. Now, in Blansett, there seems to have been a mix-up in the terminology, and I need to take your Honours to a few passages just to show how the wording was used, with respect to the author of this judgment, fairly loosely. I can take your Honours firstly to page 180, which is in paragraph [4] of the judgment, and where on the bottom of the column on the previous page reference had been made to Husain and where it was asserted:

the Court concluded that, under some circumstances -

and that is an important reservation -

an “accident” may constitute an omission or refusal to act.

So here, using the words “omission” and “refusal” as different, the observations made as to what has been held in Husain, whereas I have reminded your Honours recently, the leading words seem to be “inaction” as opposed to “action”, but where other terminology is used, but then having said that, if one goes down the column to the very bottom of the column, that is the first column, the author of the judgment there refers to Husain again and in the third-last line says:

we consider whether certain omissions -

So refusals have disappeared from the scene and we are now talking about certain omissions. Then over the page, on 181, in the first column, right in the middle of the page, again referring to Husain, the judgment says:

As we have said, the Supreme Court has held that some kinds of inaction can constitute an “accident.”

Well, now we have gone from omission, to refusals, to some kinds of inaction, and then, at the bottom of the column, in referring again to Husain and the McCaskey hypothetical, the judgment says:

In Husain and the McCaskey hypothetical, unusual circumstances existed to elevate the willing inactions -

so we have now got willing inaction -

of airline personnel from mere inertia – from a non-event – to an event both “unexpected and unusual.”

Now, Blansett is undeniably correct, in our respectful submission, but what this little exercise has done is to demonstrate the looseness of language which is typical of some of the judgments that are given, and which is confusing, and if you take a step back and ask yourself what is the ratio of these cases, the ratio of Blansett was that the fact that there was no federally required obligation to give a warning meant that the Continental Airlines policy of not giving warnings, even though others in the industry were, meant that what happened was not unusual, not unexpected. Now, that is the ratio of that case, and that is what we invite the Court to take from it.

When we go to Rodriguez, again, a case in which the question that was considered was the provision of warnings pursuant to either policy or pursuant to regulatory requirements, the lack of evidence in relation to both meant that there was no unexpected or unusual event, even if you could describe it as an “event”, but that is a point which they specifically say they do not have to decide. That appears at the bottom of the second column on page 4. So all that that case stands for is that if you are dealing with the question of “unusual” or “unexpected”, and that is essentially what Mr Beach was doing with it, the absence of evidence showing there is an industry standard, an airline policy or government regulation requiring it means that you could not say it was unexpected or unusual.

GLEESON CJ: Tell me, if there had been a policy of the airlines to warn about deep vein thrombosis, and there had been a standard procedure for giving such a warning, which was not followed in this particular case, would the failure to follow the procedure constitute an accident?

MR SHER: No. It may be unexpected, but it is not an event. Our primary argument in this case is, taking a step back and looking at the concept of “accident” as some of your Honours have done during the course of the day, and as Lord Justices Kay and Judge did in the United Kingdom case, it does not look like an accident. That would not be an accident either because it is a non-event. The failure to give a warning is a non-event.

GLEESON CJ: Even if the reason for the failure to give the warning was that somebody just forgot to give it?

MR SHER: Yes. It is still a non-event. The question of airline policy and government regulation requiring it goes to the second issue of “unexpected” or “unusual”. It does not go to the issue of whether you have an event or a happening. That is our respectful submission.

Now, one of the points we made in our submission – and I need to correct a reference we gave your Honours – is on page 2 of our submission. We refer to the case that is being made against CASA that, in effect, is the antithesis of what is being said in relation to the lack of warnings here, namely, what they are saying is that it was usual, it was expected that no warnings were given, and CASA were negligent in failing to require that such warnings be given. The reference we gave in note 7 on page 2 of our written submission is only to paragraph 14 of the statement of claim. We should have referred to paragraph 15, especially subparagraphs (f), (g), (j) and (l), which appear at pages 11 and 12 of the appeal book.

Now, before lunch –and it was probably because it was just before lunch – Justice Callinan asked me a question about vulnerability, and I think I acquiesced in the proposition that that would be a relevant factor to take into account. I wish to withdraw that concession. That, with respect, is more apposite to a common law consideration of a duty of care in breach than it is to the “no fault liability” concept under the Convention. So we would respectfully submit that that is an irrelevant consideration. I withdraw that concession, your Honour.

Obviously, there is a lot more that we have said and would like to say, but in view of the time I will not say anything further, unless there is something specific, your Honours. If the Court pleases.

GLEESON CJ: Thank you, Mr Sher. Yes, Mr Meagher.

MR MEAGHER: If your Honours please, I would like to deal with two subjects: first, the meaning of the word “accident” in Article 17 and then later to address the application of that meaning to the claim as alleged by the appellant. Our proposition in relation to the meaning of “accident” in Article 17 is that it is concerned with something which happens, it is something which takes place and it has to be something which causes death or injury. One gets each of those elements from Article 17.

It is our submission that the notion of causation used in Article 17 is a notion of causation in a physical sense as distinct from causation in a legal sense. What we mean by that can be illustrated by asking whether a failure to warn causes anything. In our submission, in the case that the appellant puts, the failure to warn does not cause the DVT, nor does it contribute to it. What it may do is prevent the passenger from taking steps whereby the passenger is not exposed to that risk. Article 17 - - -

KIRBY J: How can you say that the failure to give the warning then does not contribute to the injury which would by hypothesis lead at least some passengers to do exercises and drink water and do the other things that they are supposed to do, that we are told now that we should do?

MR MEAGHER: The inquiry which Article 17 calls for, having regard to the fact that it is concerned with something which happens, which takes place and something, as I will take your Honours to the Act to illustrate, has a date, it has to have a point in time, is something which acts as a physical cause, the failure to warn - - -

HAYNE J: I understand the distinction you seek to draw as being a distinction between, on the one hand, historical connection between events or occurrences and, on the other hand, such connection as is sufficient to attribute legal responsibility.

MR MEAGHER: That is so, your Honour, and it is - - -

HAYNE J: The distinction is one which proceeds entirely, I think, from adopting the premise that the only concern of Article 17 is with events or occurrences and it is in no way concerned with omissions, and it is at that point that the appellant challenges the analysis that the airlines make.

MR MEAGHER: If when one is referring to omissions one is referring to omissions in the sense of pure omissions, I accept that that is a difficult distinction to sometimes draw. It is a distinction which is discussed by Justice Gaudron in Bennett v Minister and in the decision of Justice Gummow in this Court in Rosenberg. There is a discussion of the different causation analysis which takes place when one is dealing with a failure to warn, as distinct from a cause which operates in a physical sense. The failure to warn analysis is really an analysis which is designed to attribute legal responsibility or blame. The scheme of the Convention - - -

HAYNE J: Dependent upon the content of the obligation to warn.

MR MEAGHER: Yes. As I will come to in the argument, your Honour, if one is looking at a failure to warn, one asks, “When did it occur?”, and the answer to that question depends upon notions as to when it was due, when should it have been given. That is the only way in which one can fix it in time. If one accepts that “accident” in Article 17 includes a failure to warn, one is likely to then get into discussion as to whether a particular warning was sufficient or insufficient to satisfy whatever is said to be the obligation which gives rise to the duty to warn in the first place.

All of those notions are notions which we are familiar with in our common law tradition and which are concerned with attributing blame, but, as I have said, if one goes to the Convention – and perhaps I should take the Court to it because I want to take the Court to some provisions of the Act as well - - -

GUMMOW J: When you are taking us to the Act, can you bear in mind that I do not presently fully understand the relationship between Part IIIC and Part V?

MR MEAGHER: Maybe that is where I should start, your Honour.

McHUGH J: Yes. I must say, I was going to ask Mr Beach about that, but his time ran out. I have difficulty understanding the relationship.

MR MEAGHER: I want to take your Honours to a couple of matters which perhaps go beyond the issues which directly arise in the appeal, but they arise in part from interchanges with your Honours and my friend, Mr Sher. The copy of the Act I have in the contents – if I could just give your Honours an overview. Part II of the Act is concerned with:

CARRIAGE TO WHICH THE WARSAW CONVENTION AND THE HAGUE PROTOCOL APPLY –

It contains within it, in sections - - -

GUMMOW J: That takes us up to 1955, does it not? We have to understand all this in temporal sequence, anyway.

MR MEAGHER: Yes. It contains within it, in section 12(2) and section 13, provisions which provide that:

the liability under the Convention is in substitution for any civil liability of the carrier –

Could I then, just returning to the contents – Part III is then concerned with:

CARRIAGE TO WHICH THE WARSAW CONVENTION WITHOUT THE HAGUE PROTOCOL APPLIES –

which is the original 1929 Convention. It has similar provisions substituting the liability under the Convention for what might otherwise be the carrier’s liability, as a result of the operation of section 24, which adopts the earlier provisions, including provisions in sections 12 and 13. Then one comes to Part III and Part IIIA.

GUMMOW J: That takes us up to the 1960s, does it not – 1961, Guadalajara?

MR MEAGHER: Yes, your Honours. Guadalajara, as your Honours will recall from the decision in Schenker, is concerned with the position of an actual carrier as distinct from a contracting carrier. There may be debate here as to whether Qantas is truly an actual carrier or a successive carrier. It really does not matter much in terms of the liability regime, because Guadalajara simply applies whatever liability regime applies between the contracting carrier and the passenger or cargo owner.

Part IIIA deals with Guadalajara. Part IIIB is never in operation and that is because Montreal No 3 Convention never came into effect. Part IIIC is concerned with Montreal No 4 Convention, which is the one we are concerned with in this carriage, and we are concerned with it in this carriage because the contract between the parties was a contract for carriage from Sydney, Australia to Sydney, Australia with the carriage stopping over in the United Kingdom. It is only because there is one relevant Convention country and a stopover in a place outside Australia that Montreal No 4 applied.

If the position was that the contract simply provided for carriage from Sydney to London, then Warsaw as amended by Hague would apply because the United Kingdom is not a signatory to Montreal No 4. Then if I could take your Honour to Part IV? Part IV of the Act is, in effect, concerned with carriage within Australia and it seeks to apply a scheme which is very - - -

GUMMOW J: That is not right, is it - 27(1)(d), that is what got me foxed?

MR MEAGHER: It applies to the extent that it is not carriage to which Warsaw Convention, Hague Protocol, Montreal No 4 or Guadalajara applies, yes.

GUMMOW J: It is not true to say it is solely intra-Australian?

MR MEAGHER: No, it is not. I stand corrected, your Honour. Subject to that qualification, it operates in respect of carriage within Australia and a significant matter to note is that it seeks to apply a liability regime which operates in the same way. Section 28 is equivalent to Article 17 in its terms, so that it uses the notion of an accident which took place on board the aircraft.

GUMMOW J: Yes, and if the failure to warn had here been a failure to warn before you got on the aircraft, it would not apply, would it?

MR MEAGHER: I think the answer is it would, in our submission, your Honour, but if your Honour goes - - -

GUMMOW J: It is not all that easy with respect to what has been said in the United States and the United Kingdom to find a bright line between municipal rights and rights under the Convention, common law rights.

MR MEAGHER: Yes. The relevant section in relation to Part IV is section 36, and if I could just spend a minute on that? It provides that the liability under Part IV:

is in substitution for any civil liability of the carrier under any other law in respect of the injury -

so that the touchstone is the injury. The injury referred to is a:

personal injury suffered by a passenger -

Now, our submission is that an injury which is suffered in the course of or which arises out of the carriage is an “injury suffered by a passenger” and that is how the provisions within the Convention have been construed as applying by the United Kingdom House of Lords in Sidhu which was followed by the United States Supreme Court in Tseng.

GUMMOW J: I realise that.

MR MEAGHER: Because in Sidhu - - -

GUMMOW J: I am sure this result is enormously convenient to your insurers?

MR MEAGHER: I am not sure about that, your Honour, but in Sidhu the passengers were, in fact, in transit in Kuwait, so that they were not in the course of embarking or disembarking, and in Tseng, the passenger was - - -

GUMMOW J: I am thinking about someone who is flying from Sydney to Hobart and has the good fortune or misfortune to be turned out at Melbourne and told to wait for a couple of hours before they get a plane to Hobart.

MR MEAGHER: Well, they may not be in the charge of the carrier, in the sense in which the cases which deal with that question have addressed whether the Convention applies or ceases to apply.

GUMMOW J: Anyhow, there may be questions of construing section 36, which does not have the Convention - - -

MR MEAGHER: No, and I will not go into the cases which deal with it. But could I go back, your Honours, to - - -

GUMMOW J: Well, there are not any, are there, in Australian law? Dealing with 36 in its - - -

MR MEAGHER: There is a decision of the Full Federal Court in Air Motive. Could I just give the Court the reference to two decisions which deal with the same subject. The first is Day v Trans World Airlines [1975] USCA2 816; 528 F. 2d 31 and the second is a decision in Phillips v Air New Zealand (2002) 3 Lloyd’s Rep 408. They deal with questions as to when the passenger is, in effect, in the course of the carriage by air. The issue does not arise here. Could I take the Court back to section 11 - - -

GUMMOW J: At any rate, it is section 36 which is then drawn in, by some drafting device, into the Convention.

MR MEAGHER: Yes, I will take the Court to that in a moment, your Honour. Could I just take the Court back to section 11A to make this point - - -

McHUGH J: Section 36 is drawn in by 25L, is it not?

MR MEAGHER: Yes, and, in effect, applies in this case. But in Sidhu and in Tseng the courts were concerned with construing the relevant article in the Convention which has the same effect, and that is Article 24. In our written submissions this subject is dealt with, and all of the relevant cases are referred to, in paragraph 13. There are a number of decisions of courts in Singapore, New Zealand, Canada and Israel which have decided that issue of exclusivity in the same way.

Could I just return to section 11A to make this point. In Part II, which deals with the Warsaw Convention as amended by the Hague, the limit of liability in Article 22 has been amended by section 11A. It operates by fixing a limit, if paragraphs (b) and (c) do not apply, of 260,000 special drawing rights, but if a regulation is passed which increases that amount and that regulation is in force at the date of the accident, then the limit is the amount specified in the regulation. So one gets a clue from section 11A, which refers to a date of the accident, which suggests that “accident” in Article 17, as the legislature here has enacted it, is concerned with something which happens, which can be given a date and time.

Now, another point I should draw to your Honours’ attention is this. The decision in Saks was in 1985. The relevant legislation which introduced Part IIIC into the Act was Act No 189 of 1991. The Montreal No 4 Convention itself came into effect in June 1998. So whilst this is not a case of the court having considered particular legislation and then the Parliament re-enacting it, it is a case where a superior court in another jurisdiction has considered the meaning of a word in the Convention and the legislature here has subsequently given effect to a later version of the Convention which contains the same provision, and also given effect to the same word in relation to domestic carriage.

GUMMOW J: What is the explanation of the delay with the Montreal Protocol?

MR MEAGHER: I think the answer is that the number of signatories was not achieved, your Honour.

GUMMOW J: It is a long gap.

MR MEAGHER: It is. I should say that attached to Mr Beach’s submissions there is a very useful chronology of the various Acts and provisions in the relevant Conventions. In relation to the point I was just making as to the proposition that if the words have been judicially construed and then the Parliament repeats words, that it should be taken to have intended the words to bear the same meaning, could I refer your Honours to Re Alcan Australia 181 CLR 106.

GLEESON CJ: Mr Meagher, is it the case that “accident” has been consistently interpreted so as to include tortious conduct by terrorists or fellow passengers?

MR MEAGHER: Yes. Perhaps I could follow that through now, your Honour, and then come back. Could I take your Honours to Air France v Saks because the question is expressly dealt with there. As your Honour the Chief Justice has noted, it was then dealt with in Morris. If your Honours go to Saks at page 405 under the heading III:

This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries. For example, lower courts in this country have interpreted Article 17 broadly enough to encompass torts committed by terrorists or fellow passengers.

Then one has there a series of decisions which involved terrorist attacks and hijacking and the like. Morris was a case of sexual assault and there are a number of other cases of sexual assault in lower courts in the United States.

To answer a question which Justice Callinan asked earlier, from the perspective of the person who is injured and viewed from the perspective of people who objectively would be looking at the course of events, the assault or the sexual assault is a mishap; it is an unexpected and unusual event, certainly within the meaning of “accident” in Saks. That is the way it has been given effect to but in that - - -

KIRBY J: What is “facheux” in French, do you know?

MR MEAGHER: I did.

KIRBY J: “Fortuit et facheux”.

MR MEAGHER: Can I take it on board, your Honour. I did and I have forgotten.

KIRBY J: It is on page 400.

MR MEAGHER: I think the answer may be in Justice Ormiston’s reasons for judgment. I expect it is.

CALLINAN J: Mr Meagher, are there any cases which have taken a different view of “accident”? That is with respect to, say, intentional criminal-type conduct. They are all consistent, are they?

MR MEAGHER: I cannot say there are no cases, your Honour, but certainly as far as I am aware the approach is consistent in relation - - -

GLEESON CJ: This is brought up to date by Lord Phillips who also happened to write the leading judgment in the Court of Appeal in Morris and in [2002] QB from page 108 he discusses the meaning of “accident” and the reasons for holding that the sexual assault on the female passenger in that case was an accident.

MR MEAGHER: Yes. Could I digress – could I just return to the Act for a moment to make this observation. Could I take your Honours to Schedule 1 of the Act, which contains the original Warsaw Convention, to make this point. If your Honours go to Article 17, it is in the same terms as it is in the Convention as amended at The Hague and Montreal Protocol No 4. If your Honours then go to Article 25.

GLEESON CJ: I am not sure we have Schedule 1 in this material.

MR MEAGHER: I am sorry.

GLEESON CJ: I may be wrong about that, but I think the - - -

MR MEAGHER: I am not sure precisely what volumes your Honours have.

GLEESON CJ: What we have is Schedule 2 of the Warsaw Convention as amended at The Hague.

MR MEAGHER: Yes. The point I want to make is, and I think it can be made briefly, Article 17 is in the same terms. Article 25 in the original Convention did not refer to an act or omission. It in terms provided that the carrier could not rely on the provisions excluding or limiting liability if the damage was caused by his wilful misconduct or by such default on his part.

GLEESON CJ: Yes, Mr Beach told us about that this morning.

MR MEAGHER: Yes, the point being that one would expect “accident” in Article 17 to have the same meaning, whichever of the versions of the Convention we are applying. It is therefore unlikely that it will take its meaning, in any significant way, from the presence of the words “act or omission” in the amended Convention in Article 25, when those words did not appear in Article 17.

GLEESON CJ: But, in the original version, was “accident” consistent with the possibility of wilful misconduct on the part of the airline or its employees?

MR MEAGHER: Yes, and, your Honour, could I give an example to illustrate how we say this works. Could I first give an example which does not involve any wilfulness. Assume that a hostess does not sufficiently secure one of the overhead - - -

GUMMOW J: Flight attendant.

MR MEAGHER: I forgot where I was, your Honour.

GLEESON CJ: Yes. There are a number of reasons for that.

HAYNE J: Walking home, are we, Mr Meagher?

MR MEAGHER: Could I assume that the flight attendant does not sufficiently secure the overhead locker. That may be described as an “accident”, but, in our submission, without more, nothing comes of it. Assume that the aircraft then hits air turbulence, the locker opens and whatever its contents are fall onto the passenger. The relevant accident, in our submission, would be described by the contents of the locker hitting the passenger so as to produce injury. That, in our submission, is the “accident” for the purposes of Article 17.

There may be an inquiry, that is, a subsequent inquiry as to the reasons for that event and that accident happening, and that inquiry is relevant to the circumstances in which the carrier may seek to have its liability avoided under Article 20, or to have his liability reduced to take account of contributory negligence on the part of the passenger, if that was a possibility, under Article 21, or for the passenger to seek to remove the limit of liability under Article 25.

In other words, when the drafters of the Convention sought to introduce notions of fault, they did so expressly in those articles, but in relation to Article 17, they simply required that there be something which answered the description of an accident which caused the damage, and one sees in Article 18 the parallel expression in relation to cargo or baggage, that is “if the occurrence which caused the damage” and if we were concerned with Article 18, in my submission, there would not be any doubt that we would not be talking about failures to warn or omissions to warn being in some way an occurrence.

In our submission, when one looks at Articles 17 and 18 where they use the expression “caused” in relation to occurrence or accident, as I have submitted earlier, they are concerned with causation in a physical sense.

GLEESON CJ: There is a negative way that the matter is put in Saks. I wonder if you rely on that. On page 405 in the report of Air France v Saks they reject the suggestion that the term covers what they describe as:

routine travel procedures that produce an injury due to the peculiar internal condition of a passenger.

MR MEAGHER: Yes, which is a negative condition which we would rely upon here. It might be worthwhile if I just test the appellant’s case by considering the facts of Saks, because in Saks there was no issue but that the cause of her injury was the depressurisation in the cabin, and it was established that that was due to the normal operation of the aircraft pressurisation system, and one gets that at page 396 of the judgment.

The issue between Mrs Saks and Air France was whether that event constituted an accident. Mrs Saks contended that it did because she said an accident described any “hazard” of travel, and one gets that at page 395 in the middle of the page, and the carrier submitted that it did not because something which was an ordinary incident of air travel should not qualify as an accident, and the court held, accepting the carrier’s argument, that the normal operation of the aircraft pressurisation system could not constitute an accident, and one gets that conclusion stated, and then the reasons which follow, at page 396.

Now, it was not suggested that the cause of Mrs Saks’ hearing loss was a failure to warn her that she could experience problems due to the operation of the aircraft’s pressurisation system.

GLEESON CJ: Or a failure to give her a lolly?

MR MEAGHER: Yes, and we suggest that there are at least two reasons why such a failure was not suggested to have caused the relevant injury. First, to suggest that the cause was the failure to warn her would not have been to identify the event or occurrence which produced the injury, and if I could take your Honours to page 405 of Saks, towards the bottom of the page, her Honour Justice O’Connor says:

In cases where there is contradictory evidence, it is for the trier of fact to decide whether an “accident” as here defined caused the passenger’s injury.

So that the question is a factual question. It is not a mixed fact and law question. One does not need to ask whether there was anything due to the passenger which has to be taken into account in a causation analysis. It is merely a question of fact.

HAYNE J: That is identified at the next page at about point 6 or 7:

Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external - - -

MR MEAGHER: Yes. We submit that the “chain of causes” referred to there is the chain in addressing the physical causes.

HAYNE J: It is history. It is looking to the history of what happened.

MR MEAGHER: Yes. Going back to what I was putting earlier, if it had been suggested that the cause was the failure to warn it would not have identified what, in fact, produced the injury. It would have been to identify something which may have, but which need not have, prevented or avoided it. Whether it would have prevented or avoided it would require a further inquiry as to what the passenger may have done.

The next point we want to make is to have suggested that that was the cause would have been to embark on an inquiry as to the circumstances in which the injury would or may have been avoided, which is often part of an inquiry which seeks to attribute legal responsibility or blame. In Saks at page 407, at about point 6 of the page, if I could take your Honours to that, her Honour Justice O’Connor says:

The “accident” requirement of Article 17 is distinct from the defenses in Article 20(1), both because it is located in a separate article and because it involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury.

Could I then just refer your Honours to a passage from Hart and Honoré, which I think we have made available to your Honours. The part we have extracted is in a part dealing with what are described as “The Continental Theories” of causation and, specifically “Conditions”. Just to take your Honours – at page 442 there is a heading, “RISE OF THE THEORY OF CONDITIONS” and then at 445, more specifically, “THE NOTION OF A CONDITION”. Then, at 446 in the left-hand side at about point 3:

We treat the notion of a condition under the following headings; (i) sets of conditions; (ii) the difficulty about omissions –

That subject is commenced to be addressed on page 447 at (ii). Then, could I take your Honours over the page to page 449 and the two paragraphs we invite the Court to read commence:

A related view is that an omission does not set causal laws in motion but removes an obstacle to their operation.

That is, in effect, what I have been submitting. Then, in the following paragraph, the concluding sentence:

The cases in which an omission is said to be a cause are mostly those in which the law requires precautions to be taken to prevent harm.

When one stops to think about it, it is unlikely – and there are many statements in the cases which support the proposition – that the drafters of the Convention intended, at least at the stage of Article 17, to introduce notions of fault or culpability in a convention which is going to apply in various jurisdictions, some of which have common law traditions and some of which have civil law traditions and some of which have other principles of law which might apply and operate in a different way.

Could I illustrate the point most graphically by referring to the recent decision of the House of Lords in Chester v Afshar which is a decision of that House which considers the same question as this Court considered in Chappel v Hart.

I was not going to take your Honours to the decision, other than to observe that whilst the court reached the same conclusion as the majority of this Court in Chappel v Hart, it accepted the correctness, as a matter of legal principle, of the analysis of Justice McHugh in dissent, and said that according to the application of ordinary principles of construction, the outcome would be that the plaintiff would fail, because she had not proved that she would have taken the operation at a different time with better prospects of success. But having done that, the House of Lords - - -

KIRBY J: There were different views expressed by their Lordships. They seemed to have had the same struggle with the problems we did.

MR MEAGHER: They did, but rather than ultimately decide it by reference to what they considered to be orthodox causation principles, they said that they would, as a matter of policy, give the plaintiff a remedy.

GUMMOW J: In Chappel v Hart 195 CLR 232 at 238, Justice Gaudron said:

Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm –

et cetera.

MR MEAGHER: Yes.

GUMMOW J: So what do we get out of all of this? We are not in the realm of negligence now.

MR MEAGHER: The simple point I wish to make is that the reasoning of the House of Lords in that decision and the decision of this Court in Chappel v Hart exemplify the way in which different courts can reach different conclusions when applying legal concepts of causation.

GUMMOW J: See, Chappel v Hart and Rosenberg v Percival and the recent House of Lords case, they all bear out the last sentence you quoted to us from page 449.

MR MEAGHER: Yes.

GUMMOW J: How does it bear on construing the Convention?

MR MEAGHER: In our submission, it is unlikely that the drafters of the Convention intended in Article 17 to introduce legal concepts of causation which would have different principles which informed them and which may be applied in different ways in different jurisdictions. Our submission is, as I have said earlier, that the inquiry that Article 17 calls for is simply one of fact as to what it was, as a matter of fact, which caused the injury.

GUMMOW J: That will not wash, I am afraid, Mr Meagher.

MR MEAGHER: Well, I have made - - -

GUMMOW J: Cause is a matter of fact.

MR MEAGHER: Let me give your Honours another example. If the flight steward fails to secure a coffee pot, again the act of failing to secure it may itself constitute an accident, but it is not a relevant accident within - - -

GUMMOW J: We are worrying about isolating some particular event or perhaps omission - - -

MR MEAGHER: I am seeking to - - -

GUMMOW J: - - - which, out of a whole infinity of events, is sufficient to take the step that the Supreme Court of the United States talked about in that judgment.

MR MEAGHER: I am sorry, which judgment?

GUMMOW J: Of activating Article 17.

MR MEAGHER: In Saks - - -

GUMMOW J: They are attributing a legal consequence to something, and we have to know what it is that makes it single it out as sufficient to attribute that legal consequence.

MR MEAGHER: In my submission, your Honours are not attributing a legal consequence; your Honours are simply identifying what as a matter of fact produced that result. In your Honour Justice Gummow’s judgment in Rosenberg v Percival [2001] HCA 18; 205 CLR 434, your Honour recognised the distinction between causation in a physical sense and the legal concept of causation. Perhaps if I take the Court briefly to that case, the relevant passages that I would refer to are in paragraph 84 – and this is really to illustrate the distinction between the causation analysis where there is a failure to warn and the causation analysis where there is a physical act which produces injury:

Cases involving a failure to warn of a risk encounter difficulties of causation that do not arise in cases of, for example, a negligent physical act “causing” injury. The failure to warn the patient of the risk can never amount in the same sense to the cause of the injury.

Then in paragraph 85:

This is because the legal concept of causation is primarily concerned with attributing responsibility.

In our submission, the sense in which “causation” is used in Article 17 and Article 18 is the sense which seeks to identify the physical cause of the injury as that distinction is drawn in those two paragraphs. We accept that it is not always going to be an easy distinction to draw, but it is a distinction which, in the case of a failure to warn, is stark.

Could I, in this context, refer the Court to what we say in paragraphs 23 and 24 of our written submissions. As I have said earlier, the Convention attributes responsibility by the scheme of its provisions, Articles 20, 21 and 25. Could I, in that context, also refer the Court to Clarke’s text, Contracts of Carriage by Air, at page 94. I will not take the Court to it. I think it is in the volume of material that was provided, behind tab 15.

Could I then make another point and that is that the appellant’s reliance upon a failure to warn also necessarily introduces notions of fault and culpability – and I have perhaps made this point earlier – first, because the reference to a failure to warn acknowledges that nothing relevantly happened, and the failure describes the non-performance of something which has to have been said to be due or required. As I have said earlier, in order to suggest that it took place at a particular point in time or at a particular place, you have to ask whether and when something should have happened, by reference to notions of a fault-based inquiry.

GLEESON CJ: What if the failure to warn occurred at the present time in the context of routine procedures for warning that were unintentionally or inadvertently not followed because somebody was distracted?

MR MEAGHER: We would give the same answer to the question as Mr Sher, your Honour, but we would say in addition, if that did answer the description of an accident, it is not an accident which causes any injury within the sense required by Article 17. Again, it may simply describe something which may have prevented a subsequent cause from operating to produce the result in the physical sense.

GLEESON CJ: So, even if nowadays there were undoubtedly recognised a duty to warn and there was a negligent failure to warn, there would be no liability because the Convention replaces common law principles of liability and there would be perhaps not an accident and certainly not causation.

MR MEAGHER: That would be our submission, and, if one is concerned that that may produce harsh consequences, then we accept that that is a consequence of the Convention, but it is a consequence of giving effect to the clear words of the Convention, and I think your Honour Justice Kirby said as much in SS Pharmaceuticals and in a passage at page 295, if I could read it - - -

KIRBY J: I think I was in the minority in that case.

MR MEAGHER: Your Honour may have been - - -

KIRBY J: This is about Article 25.

MR MEAGHER: Yes. Your Honour said in such a case that whilst:

perfectly natural reactions to the predicament of the consignor (or the passenger . . . should be subjected to the dispassionate application for the international instrument, properly construed.

And Justice Scalia says something to the same effect in Husain, if I could find the passage. It is at page 11 of the copy of the report that your Honours have, in the left-hand column, about point 2, after the reference to Krys v Lufthansa, which was one of the deviation cases:

A legal construction is not fallacious merely because it has harsh results.

GLEESON CJ: Now, in relation to the flight attendant who deliberately emptied the coffee pot over the passenger, your answer would be that that would be an accident.

MR MEAGHER: Clearly an accident and more likely than not, one to which Article 25 would also apply. Now, your Honour the Chief Justice referred to the use of the words “act or omission” in Article 25 and the extent to which those words may inform as to the meaning of “accident” in Article 17. That same question is addressed by Justice Ormiston in paragraph 21 of his reasons for judgment, and he considers the argument and rejects it. It is addressed by Lord Phillips at paragraph 62 of his reasons for judgment, and it is addressed by Justices Scalia and O’Connor in the print that your Honours have at page 10, in the right-hand margin, in the paragraph commencing:

Equally unavailing is the reliance -

and this is a reference to the reliance by the majority on Article 25 of the Warsaw Convention. They then set out the answer to the suggestion that Article 25 can in some way inform as to the meaning of Article 17.

Now, there is one other matter that I did not conclude in relation to my consideration of the legislation, and that was to point out to the Court that in Part IVA there are provisions which require carriers to take out insurance against their liability under Parts II, III and IV of the Act. The liability that they are required to insure against is, in effect, their liability under the provisions of the Convention. It does not extend beyond the liability which they have under the Convention.

CALLINAN J: I wonder how much the premium would be to cover against terrorist activity. Pretty high, I would think.

MR MEAGHER: I expect so, your Honour.

KIRBY J: But that is not much of an argument, because what we are doing now is working out what the Convention requires. So whatever it is, that is what they are insuring.

MR MEAGHER: But it is consistent with the proposition that the provisions in the Act, and, indeed, the Convention, are intended to circumscribe the liability of the carrier. When the Act comes to describing the liability which the carrier must have insurance against, it is only the liability described in the legislation. It does not require that the carrier have liability beyond that provided for under the Convention.

KIRBY J: That probably also fits in with the fact that in most countries carriers are, or were, at the time of negotiation, national enterprises – apart from the United States – and were therefore government liabilities. That would explain why governments negotiating the treaty would not be anxious to protect passengers.

MR MEAGHER: No, what I am putting to your Honour is that these are provisions in our Commonwealth legislation, the legislation of this country.

KIRBY J: It has adopted the Convention, which is not, shall we say, entirely consumer friendly.

MR MEAGHER: Well, it has, but then it has adopted it also in respect of domestic carriage and insisted that carriers obtain insurance to the extent of their liability.

GUMMOW J: Now, that is section 41A, is it?

MR MEAGHER: It starts at section 41A. I should point out, your Honours, there is a curious aspect to this which I have not - - -

GUMMOW J: How does it pick up Part IIIC?

MR MEAGHER: Well, it does not appear to pick up Part IIIC.

GUMMOW J: It went in in 1991, did it not?

MR MEAGHER: No, this Part went in by Act No 89 of 1995. But, your Honours, the point I make is still a good point, because it picks up Parts II and III, which contain, in effect, mirror provisions as to exclusivity or substitution as Part IIIC. It seems to be an anomaly that it has not picked up Part IIIC.

KIRBY J: I would tread lightly on this, because the strength of your argument is the words and meaning of the Convention. In a sense, it is not terrible attractive that airlines might have known for years about DVT and yet did not really tell their passengers about it. Passengers cannot be expected to know about it, but airlines have growing notice. It is a bit like tobacco companies. They had growing notice and did very little.

MR MEAGHER: There is obviously an issue about the underlying facts, your Honour, which we have not taken the Court to. We have pleaded, and it is in our appeal book at page 34, that there were warnings in our in-flight magazines and flight videos, and we have provided to the Court - - -

KIRBY J: What, before 2001?

MR MEAGHER: Yes. We have provided to the Court in a decision of Damon v Air Pacific and I think a copy of it was handed up to your Honours. The reason we provided it was that in the description of the relevant facts and procedural background there is a description of the Qantas in-flight magazine which was used in December 2000, remembering that Mr Povey’s flights were in February 2000, but I digress. Could I perhaps then briefly turn to the application of the accident test to the appellant’s claim, as we see it.

If one approaches this by reference to the simple notion that one is looking for an identifiable occurrence or event which answers the description of an accident then, in our submission, there is little scope, if any, for refined and elusive issues of causation if it describes the external event which can be seen to have produced the injury or death. The appellant puts his accident case in two ways. The first is to identify as the accident a failure to warn and as I have submitted, that describes something which has not happened and which has not caused, in a physical sense, the relevant injury. To quote Hart and Honoré again, at page 449, it refers to something which:

does not set causal laws in motion but removes an obstacle to their operation.

The second way that the appellant puts his case is to identify the accident as a combination of so-called positive and negative conditions. The positive conditions include being encouraged to remain seated and discouraged from moving around and the negative condition is said to be not giving any warning. As to the second way that the appellant puts his case, the positive conditions, that is, encouraging the passenger to remain seated, describe things which usually and ordinarily occur in the aircraft. They are not alleged to be something which does not usually or ordinarily happen.

Indeed, as Mr Sher points out, the pleading describes them as one of a number of standard conditions of passenger travel on international flights. Those conditions, in any event, do not describe the cause of the DVT in terms of an event or occurrence. They provide reasons or possible reasons for the appellant being seated for a long period of time which may have caused or contributed to his DVT, but they do not seek to identify the event which caused it.

The Court does not have before it any evidence as to the medical reasons that the DVT might develop. There is a short statement of facts in the matrix of agreed facts in the English litigation in the Court of Appeal decision in paragraph 6.

KIRBY J: There is a little bit of a description in Judge Walter’s judgment in that case of Damon that you handed up of how an embolism forms.

MR MEAGHER: Yes. There is a short description in the agreed matrix of facts, as I said, also in the English litigation. Dealing with this second way again that the appellant puts his case, the negative condition which he describes is something again which has not happened and it is something
which may have caused him to act differently with the result that he may have avoided suffering a DVT, but it is not, in our submission, a cause in the physical sense of the DVT, notwithstanding that that is what is asserted.

So that when one looks at the second way the appellant puts his case he combines something which on no view of the matter was unusual or exceptional with something which did not happen. Neither separately nor together are they capable of constituting accidents or an accident, nor do the positive conditions, that is the encouraging to remain seated or discouraging from moving around, become an accident because of the carrier’s knowledge of the risk of DVT.

Such an argument seeks to attach to those conditions the attribute of being unexpected or unusual by reference to a factor which has nothing to do with their essential qualities, and we refer your Honours to paragraph 41 of our written submissions. If one then looks at the way the majority of the Court of Appeal dealt with the matter, Justice Ormiston at paragraphs 8 and 29 and Justice Chernov at paragraph 47 held that even if the conditions referred to by the appellant were capable of being characterised as an event, they did not constitute an accident because they did not involve anything which was unusual or unexpected. Each of them rejected the argument that those conditions became unusual or unexpected because of the carrier’s asserted knowledge of the risk of DVT.

Unless there are any other matters that your Honours wish me to address, those are our submissions.

GLEESON CJ: Thank you, Mr Meagher. Yes, Mr Beach.

MR BEACH: Can I just make some observations about reconciling Article 17 with Article 25. We say that they can be reconciled if you take the concept of “accident” as not being defined by the airline’s state of mind. In that way, you can reconcile them. We also submit that the concept of what is “accidental” and using that description of “accidental” should not be conflated with “accident”. If you describe something as “accidental”, you may be led to believe from the person that has caused it that it was unintentional, so you have to be very careful to distinguish the concept of “accidental” from the concept of “accident”. It is only “accident” that is dealt with in Article 17.

The second point is in terms of tortious conduct of passengers and whether or not that is embraced by Article 17, we have in our reply submission attached a table which summarises the authorities. The last page of that table sets out four cases which deal with the factual circumstances where injuries have been inflicted by the deliberate acts of other passengers, so those are four examples of where such conduct has been within Article 17.

The third point is, I said before lunch that we did not quibble with the external element of “accident” as set out in Saks and we do not quarrel with that. I should say, however, that we did make a submission at all levels that to the extent that the Saks test was inconsistent with what was said by the House of Lords in Fenton v Thorley, we put the Fenton v Thorley stipulation for “accident”. That argument is set out in Justice Bongiorno’s reasons at appeal book page 70, lines 14 and 15, appeal book page 73, line 15, and it is also set out in Justice Ormiston’s reasons, appeal book page 96, line 25.

The fourth point is that Mr Sher took you to Husain and the example given at page 7, where he said that that was not an example by the majority of inaction. The example given there was a failure to divert the plane, and we say that was fairly described as inaction, as indeed, it was – the similar case of Fulop v Malev Hungarian Airlines 175 F Supp 2d 651.

Before lunch, various points were made by Qantas. Can I deal with those briefly. It was said that if our interpretation of “accident” is correct, then millions of people have suffered an accident. Of course, if you separate cause out from effect, and the accident class out from the injury class, you are always going to have a much broader accident class. Contamination of water supply may affect many people, although the actual people injured may be quite narrow.

KIRBY J: That is a good legal argument, but the rhetorical submission is that it would be surprising if the word “accident” within the Convention had such a large ambit, given that one of the objects of this Convention was to cut back on common law remedies or general law remedies.

MR BEACH: Well, take a defective airline part that is installed in all 747 planes, you might say that that defective part may, perhaps, affect the operation of many airplanes for a long time, but whether people suffer injury or not, that is going to be a narrower class, but to just broaden out the potential people that may be affected by an accident and say, therefore, that means an accident has a narrower connotation, we say does not follow. Of course, you can have accidents which affect all people on an aircraft - severe air turbulence, defective air filters, contamination of oxygen supply and the like.

KIRBY J: By the way, I was just looking at this schedule again. There is only one non-common law case mentioned, the one at Frankfurt am Main. Has there been writing on this in the specialised industry journals? One would have thought there would have been, or analysis of the decisions in non-English speaking countries?

MR BEACH: We have not seen anything. There is a summary in Shawcross and Beaumont.

KIRBY J: It is unlikely that there is only one case in a non-English speaking country and yet there are 20 or 30 of them in our system.

MR BEACH: Yes. Well, the only case that has been translated is the German.....and Volander Case from recollection. Can I just make some observations on the causation question. That is a factual question and a forensic issue for trial. You cannot talk about forensic or factual difficulties that might arise at trial in relation to the causation case and flip back from that and say that, therefore, says something meaningful about the content or construction of accident. That is an impermissible chain of reasoning and we say that most of the points made on causation and how you might prove causation where there has been a failure to warn are really not to the point. We have pleaded the accident. We have pleaded that damage was caused by the accident. It is really a matter for trial; the only legal issue is whether what we have pleaded as the accident is, as a matter of law, within Article 17. This case does not involve at this level on these matters – it does not involve whether our causation case can be made good.

Mr Sher said before lunch that our case was narrower, and took your Honours to the narrower case that Justice Ashley would have permitted the appellant to proceed with. Our case is broader; we put the broader case in our pleading. Of course, we put the fallback position that if our broader case in our pleading is not sustainable, then Justice Ashley’s narrower alternative is at least sustainable. So we have not confined our case to what Justice Ashley’s reasons are. We have put the broader and then the alternative, the narrower case.

Finally, on the question of unexpectedness, can I make two points. Qantas said that, well, you cannot look at unexpectedness from the passenger’s perspective, because the passenger would not know of the relevant standards or industry practice necessarily. What you can say is that even if a passenger did not know the precise standards or procedures, the passenger would expect Qantas to comply with the standards and procedures, whatever they are. So even if the passenger did not know precisely of the standards or what they were, we would say that the passenger would expect the standards would be complied with. The argument that merely because the passenger would not know the standards, you would not look at the passenger’s perspective, we say, does not follow at all.

GLEESON CJ: That seems to amount to the proposition that what is unexpected is negligence, and that any breach of a duty or breach of industry standards is unexpected, and therefore an accident.

MR BEACH: The interesting focus of the airlines is to say that we have to show a standard which is breached, which, in a sense – they are feeding into a negligence argument, rather than us. We would accept that there is a common substratum that if there is a standard, then that is breached. That may amount to negligence – not necessarily, but it may amount to negligence, but it is certainly factually amounts to something which is unexpected from the reasonable airline passenger. So you might have a commonality of outcome, but that does not mean to say that we are putting a case which is based upon negligence. It is merely to say that factually, what may give rise to a negligence action could also give rise factually to the question of unexpectedness from the passenger’s perspective.

On that point, can I conclude by saying that we accept what Justice Callinan said, that vulnerability may be one aspect of unexpectedness. Justice Bongiorno at first instance said as much at appeal book page 75, line 40.

GLEESON CJ: Thank you, Mr Beach. We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Court No 2 and 9.15 tomorrow morning in Court No 3.

AT 3.57 PM THE MATTER WAS ADJOURNED