Povey v Qantas Airways Ltd

HIGH COURT OF AUSTRALIA   

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

BRIAN WILLIAM POVEY  APPELLANT

AND

QANTAS AIRWAYS LIMITED & ANOR   RESPONDENTS

Povey v Qantas Airways Limited

[2005] HCA 33

23 June 2005
M167/2004

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation:

J B R Beach QC with B F Quinn for the appellant (instructed by Slater & Gordon)

J L Sher QC with S A O'Meara for the first respondent (instructed by Minter Ellison)

A J Meagher SC and A S Bell for the second respondent (instructed by Ebsworth & Ebsworth)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Povey v Qantas Airways Limited

Aviation – Carriage by Air – Liability of carrier – International Convention imposing liability for damage sustained in the event of bodily injury suffered by a passenger, if the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking – Appellant allegedly contracted deep venous thrombosis while a passenger on long-haul international flight on aircraft operated by the respondents – Whether appellant should have been warned of the risk of deep venous thrombosis – Whether appellant should have been given advice on precautions that would minimise risk of its occurrence – Whether appellant's contracting deep venous thrombosis was an accident that took place on board the aircraft within the meaning of Art 17 Warsaw Convention 1929 as amended by the Hague Protocol 1955 and by Montreal Protocol No 4 1975.

International Law – Treaties – Construction – Requirement of uniform interpretation by contracting states – Under Art 31 Vienna Convention on the Law of Treaties interpretation to be conducted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.

Procedure – Summary judgment – Whether appellant's claim revealed an arguable cause of action – Whether claims bound to fail – Whether the pleading should be struck out and the action permanently stayed.

Words and phrases – "accident", "unexpected", "unusual".

Civil Aviation (Carriers' Liability) Act 1959 (Cth).
Convention for the Unification of Certain Rules Relating to International Carriage by Air opened for signature at Warsaw on 12 October 1929 (the Warsaw Convention) as amended by the Protocol to amend the Warsaw Convention opened for signature at The Hague on 28 September 1955 (the Hague Protocol) and by the Protocol done at Montreal on 25 September 1975 (the Montreal Protocol No 4), Art 17.
Convention on the Law of Treaties done at Vienna on 23 May 1969, Art 31.

1. GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ. More than 75 years ago, when international air travel was in its infancy, Australia became party to the Convention for the Unification of Certain Rules Relating to International Carriage by Air ("the Warsaw Convention")[1].  Those Rules included rules regulating the liability of carriers to passengers.

   [1][1963] ATS 18; see also Carriage by Air Act 1935 (Cth).

2. Since the Warsaw Convention was done on 12 October 1929, several further international agreements have been made to regulate international carriage by air and, among other things, modify the rules regulating carriers' liability.  Those further agreements include the Protocol to amend the Warsaw Convention made at The Hague in 1955 ("the Hague Protocol")[2], the Convention, Supplementary to the Warsaw Convention, done at Guadalajara in 1961 ("the Guadalajara Convention")[3], the Protocol done at Montreal on 25 September 1975 and called the Additional Protocol No 3 to Amend the [Warsaw Convention] (which has not come into force), and the Protocol done at Montreal on 25 September 1975 and called the Montreal Protocol No 4 to Amend the [Warsaw Convention] ("the Montreal Protocol No 4")[4].

   [2][1963] ATS 18.

   [3][1964] ATS 4.

   [4][1998] ATS 10.

3. The Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Liability Act") provides that each of the Warsaw Convention[5], the Warsaw Convention as amended by the Hague Protocol[6], the Guadalajara Convention[7], and the Warsaw Convention as modified by the Hague Protocol and the Montreal Protocol No 4[8] has the force of law in Australia in relation to any carriage by air to which the relevant agreement applies, irrespective of the nationality of the aircraft performing the carriage.

   [5]s 25(1).

   [6]s 11(1).

   [7]s 25A.

   [8]s 25K.

4. This appeal concerns the carriage of the appellant by air by Qantas Airways Limited ("Qantas") from Sydney to London via Bangkok and return by British Airways Plc ("BA") from London to Sydney via Kuala Lumpur.  The appeal to this Court, and the proceedings in the Court of Appeal of Victoria have been conducted on the basis that the Warsaw Convention as modified by the Hague Protocol and the Montreal Protocol No 4 applied to the appellant's carriage.  It is convenient to refer to the Warsaw Convention, as so modified, as "Montreal No 4".

5. The appellant commenced a proceeding in the Supreme Court of Victoria against the Civil Aviation Safety Authority ("CASA"), Qantas and BA. He alleged that, "[d]uring the course of or following the flights" from Sydney to London and return, he suffered from deep venous thrombosis ("DVT") "caused by the conditions of and procedures relating to passenger travel upon the flights". The "conditions" and "procedures" referred to included what was said to be cramped seating from which it was not easy to move, the discouraging of movement about the cabin, and the offering of alcohol, tea and coffee during the flights. Against CASA, the appellant claimed damages for negligence. Against Qantas and BA ("the carriers"), the appellant claimed damages pursuant to the Carriers' Liability Act and Art 17 of Montreal No 4.

6. The claim against CASA may be put to one side. CASA was not a party to the proceedings in this Court. These proceedings concern only the claims the appellant makes against the carriers under the Carriers' Liability Act.

   The issue

7. Does the appellant's claim against the carriers reveal an arguable cause of action?  Or, if the allegations of fact made by the appellant were established, would the claim nonetheless fail[9]?  In particular, is it arguable that the carriers not warning passengers of precautions they could take to minimise or eliminate the risk of DVT, or the conditions of the flights, or both the absence of warning and the flight conditions could constitute an "accident" within the meaning of Art 17 of Montreal No 4?

   [9]Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

8. To explain why the issue is framed in this way, it is necessary to say something shortly about the procedures taken in the courts below and then to consider the relevant provisions of the Carriers' Liability Act and of Montreal No 4.

   The proceedings below

9. After obtaining some further particulars of the appellant's claim, Qantas and BA each moved to obtain summary judgment alleging that the claims made against them were bound to fail.  Those applications failed at first instance[10].  Each of the carriers appealed to the Court of Appeal of Victoria.  That Court allowed the appeal[11] and, by majority (Ormiston and Chernov JJA, Ashley AJA dissenting), ordered that the appellant's pleading against the carriers be struck out and the action against them permanently stayed.  The courts below treated the carriers' applications as if they were demurrers to the appellant's pleading.  If the facts alleged were proved, would a cause of action be established?  By special leave the appellant now appeals to this Court.

   [10]Povey v Civil Aviation Safety Authority & Ors [2002] VSC 580.

   [11]Qantas Ltd v Povey [2003] VSCA 227.

   Article 17

10. Article 17 of Montreal No 4 provides that a carrier "is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger".  But that liability is subject to an important qualification.  The carrier is liable "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking" (emphasis added).

11. The appellant contended that "accident" is to be given no narrow meaning.  It was submitted that "accident" extends beyond acts occurring on board an aircraft (or in the course of operations of embarking or disembarking); it was said that it embraces at least some kinds of omissions.  In particular, so the appellant contended, "accident" extends to omissions of warning (or the "failure" to warn) of the known dangers of, and precautions to be taken against, the occurrence of DVT, and extends to the flight conditions encountered, or to the combination of the "failure" to warn and the flight conditions.  The appellant argued that it was, therefore, arguable that the facts alleged revealed a cause of action against the carriers.

12. The appellant's pleading identified his cause of action as arising under both Art 17 and the Carriers' Liability Act. For the purposes of Australian law, however, the appellant's claim against the carriers must be understood as a claim founded only in the Carriers' Liability Act. Because the entry into the international agreement can create no rights in Australian domestic law without there being legislation giving effect to those rights, the source of the right which the appellant seeks to enforce must be found in the Carriers' Liability Act[12]. Nonetheless, it is convenient to articulate the central issue as one about the construction of Art 17 of Montreal No 4. To explain why the issue is framed by reference to Montreal No 4 it is necessary to recognise the ways in which the Carriers' Liability Act and the several conventions referred to in that Act intersect.

    [12]Chow Hung Ching v The King (1948) 77 CLR 449 at 478; Bradley v The Commonwealth (1973) 128 CLR 557 at 582; Simsek v Macphee (1982) 148 CLR 636 at 641‑642; Koowarta v Bjelke‑Petersen (1982) 153 CLR 168 at 211‑212, 224‑245; Kioa v West (1985) 159 CLR 550 at 570; Dietrich v The Queen (1992) 177 CLR 292 at 305; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.

    The Carriers' Liability Act

13. Part IIIC of the Carriers' Liability Act (ss 25J‑25N) deals with carriage to which Montreal No 4 applies. Parts II, III and IIIA deal respectively with carriage to which the Warsaw Convention and the Hague Protocol applies, carriage to which the Warsaw Convention without the Hague Protocol applies, and carriage to which the Guadalajara Convention applies. Part IV of the Act (ss 26‑41) deals with other carriage to which the Carriers' Liability Act applies, including carriage by Australian domestic carriers interstate, or between a place in a Territory and another place in that Territory, or a place in Australia.

14. As earlier noted, Pt IIIC (and s 25K in particular) provides that Montreal No 4 has the force of law in Australia in relation to any carriage by air to which the Convention applies. In addition, s 25L provides that certain provisions of Pt IV of the Act (ss 35‑39) apply to carriage to which Montreal No 4 applies in the same way as they apply to carriage under Pt IV. For that purpose, a reference in s 37 to Pt IV is taken to be a reference to Pt IIIC and any other reference in ss 35 to 39 to Pt IV "is taken to be a reference to the Convention"[13]. By this means, s 36 of the Carriers' Liability Act (subject to certain presently irrelevant qualifications found in s 37) applies to provide that the liability of a carrier under Pt IIIC in respect of personal injury suffered by a passenger (not being an injury that has resulted in the death of the passenger) "is in substitution for any civil liability of the carrier under any other law in respect of the injury". The application of ss 35 to 39 to carriage to which Montreal No 4 applies (like the equivalent provision found in Pt II in respect of carriage to which the Warsaw Convention, as modified by the Hague Protocol, applies[14]) treats the provision which gives the relevant international instrument the force of law in Australia[15] as creating the liability of a carrier in respect of death or personal injury and then qualifying the liability in the manner and to the extent specified in ss 35 to 39.  In particular, the liability of a carrier in respect of personal injury, when the carriage is subject to Montreal No 4, is in substitution for any civil liability of the carrier under any other law in respect of the injury.  For present purposes, none of the other provisions of ss 35 to 39 need be noticed.

    [13]s 25L.

    [14]s 13.

    [15]Section 25K with respect to Montreal No 4, and s 11 with respect to the Warsaw Convention as modified by the Hague Protocol.

15. A text of each of the conventions mentioned earlier is set out in the Schedules to the Carriers' Liability Act. Montreal No 4, the convention with which these proceedings are concerned, appears in Sched 5. Section 8 of the Carriers' Liability Act provides that the text of the conventions is taken to be as it is set out in the relevant Schedules. But if there is any inconsistency between the text of a convention as set out in the Schedule and the text that would result if the authentic French texts of the instruments making up the convention were read and interpreted together as one single instrument, it is the latter text that prevails[16].  No party to the present proceedings asserted that there was any such inconsistency.

    [16]s 8(2).

16. Schedule 5 to the Carriers' Liability Act records that the text in the Schedule contains the operative provisions of the Warsaw Convention as modified by Ch 1 of the Hague Protocol and Ch 1 of the Montreal Protocol No 4, together with the remaining provisions of the Hague Protocol and the Montreal Protocol No 4. Chapter 1 of the resulting text of Montreal No 4, set out in Sched 5, deals with the scope of the Convention and contains certain definitions; Ch II deals with documents of carriage; Ch III regulates the liability of the carriers; Ch IV contains provisions relating to combined carriage (partly by air and partly by another means of carriage); Ch V sets out general and final provisions.

17. It is convenient, at this point, to say something more about the provisions of Montreal No 4, while at the same time noticing some of the questions presented by those provisions.

    Montreal No 4

18. In the argument of the present matter, attention was focused almost exclusively upon the provisions of Ch III (Arts 17‑30A) of Montreal No 4.  Some passing reference, however, was made to Art 1(3), which provides that carriage to be performed by several successive air carriers is deemed, for the purposes of the Convention, "to be one undivided carriage if it has been regarded by the parties as a single operation".  Reference was made to this provision in aid of a contention that the appellant's carriage by Qantas and BA from Sydney to London and return (in the space of four days) was to be treated as one undivided carriage.  If that contention is right, Art 30 of Montreal No 4 was engaged and (among other things) each carrier accepting the appellant was deemed to be one of the contracting parties to the contract of carriage "in so far as the contract deals with that part of the carriage which is performed under his supervision".  In this appeal, however, it is not necessary to consider whether the contention about the operation of Art 1(3) is right.

19. Reference was made to a number of provisions of Ch III of Montreal No 4 as casting light upon the meaning to be given to the text of Art 17.  In order to examine those arguments it is convenient to begin by noticing the general structure of Ch III.

20. The first three provisions of the Chapter impose liabilities on a carrier.  Article 17 deals with a carrier's liability for death or wounding of or other bodily injury to a passenger; Art 18 concerns liability for destruction or loss of or damage to registered baggage; Art 19 provides for liability for damage occasioned by delay.  As already noted, Art 17 requires that "the accident" which caused the damage took place on board the aircraft or in the course of any of the operations of embarking or disembarking.  Article 18 requires that "the occurrence" which caused the damage took place during the carriage by air.

21. The next three provisions limit the liabilities thus created.  Article 20 provides 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 or that it was impossible for them to take such measures".  Article 21 provides for cases where the carrier proves that the damage was caused by or contributed to by the negligence of the person suffering the damage.  Article 22 imposes a cap on the liabilities of the carrier at amounts which are fixed or calculable according to the relevant formula.  In the carriage of persons the carrier and the passenger may "by special contract ... agree to a higher limit of liability"[17].

    [17]Art 22(1).

22. Article 23 provides (among other things) that "[a]ny provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void".  Article 24 appears intended to make the liabilities created, and the conditions and limitations of liability imposed, by Montreal No 4 exclusive of at least some other rights.  It provides that in the carriage of passengers and baggage "any action for damages, however founded, can only be brought subject to the conditions and limits set out" in the Convention.

23. Of the remaining provisions of Ch III, detailed reference must be made to only one:  Art 25.  That Article provides for the circumstances in which the limits of liability specified in Art 22 shall not apply.  It provides that those limits do not apply if it is proved that the damage resulted from "an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result".  In addition, in the case of such an act or omission of a servant or agent, it must also be proved that the servant or agent was acting within the scope of employment.  The appellant pointed to the references in Art 25 to damage resulting from "an act or omission of the carrier, his servants or agents" as demonstrating that the reference in Art 17 to "accident" was not to be understood as confined to events or happenings but as extending to omissions (in this case the omission of advice or warning about DVT).

    Principles of construction

24. There was no dispute between the parties about the principles that govern construction of an international agreement like Montreal No 4.  The guiding principles of treaty interpretation are found in the Vienna Convention on the Law of Treaties[18].  Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty.  Interpretative assistance may be gained from extrinsic sources[19] in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art 31 leaves the meaning "ambiguous or obscure" or "leads to a result which is manifestly absurd or unreasonable".

    [18][1974] ATS 2.

    [19]Art 32.

25. Importantly, international treaties should be interpreted uniformly by contracting states[20].  But, of course, the ultimate questions are, and must remain:  what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law?

    [20]Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd (1980) 147 CLR 142 at 159 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 186 [70] per McHugh J, 213 [137] per Kirby J; Siemens Ltd v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418 at 466‑467 [153]‑[154] per Kirby J.

    Some accepted bases of the parties' arguments

26. In arguing the present matter, the parties accepted certain propositions about the Warsaw Convention which they took to be established by the decisions of other courts.  In particular, neither side submitted that the decisions of the Supreme Court of the United States in Air France v Saks[21], El Al Israel Airlines Ltd v Tsui Yuan Tseng[22] or Olympic Airways v Husain[23] or the decision of the House of Lords in Sidhu v British Airways Plc[24] (followed in Tseng) were wrong.

    [21]470 US 392 (1985).

    [22]525 US 155 (1999).

    [23]540 US 644 (2004).

    [24][1997] AC 430.

27. There is no occasion to consider whether, as was held in Tseng and in Sidhu, in cases where the relevant Convention provides no remedy, no other remedy is available either at common law or otherwise, or to consider whether that conclusion would present any constitutional question.  Nor is there any occasion to consider whether any separate or different questions from those argued by the parties to this appeal would be presented by deliberate acts of wrongdoing such as intentional assaults by other passengers[25] or attacks by others from outside the aircraft[26].  Rather, argument was confined to what "accident" means in Art 17.

    [25]Morris v KLM Royal Dutch Airlines [2002] 2 AC 628.

    [26]cf Air France v Saks 470 US 392 at 405 (1985).

28. The arguments advanced by the parties began from the premise that a passenger's injury is caused by an accident only if "caused by an unexpected or unusual event or happening that is external to the passenger"[27].  Each side recognised that this definition may require what the Supreme Court of the United States in Saks[28] called flexible application, but each side's argument began from the words that have been quoted.  Where the arguments diverged was at the point of identifying what is meant by "an unexpected or unusual event or happening that is external to the passenger".

    [27]Saks 470 US 392 at 405 (1985).

    [28]470 US 392 at 405 (1985).

    The competing contentions

29. The appellant's argument took three steps.  First, it was said that no distinction should be drawn between acts and omissions or between "events" or "happenings" on the one hand and "non‑events" or "inaction" on the other.  Secondly, it was said that what was "unexpected or unusual" was to be judged from the perspective of a reasonable airline passenger, not according to what may be the particular airline's policies and procedures, or what may be general industry practice.  Thirdly, it was said that an "accident" might occur during the whole of a flight.  Thus, so the argument proceeded, the conjunction of positive and negative conditions for the duration of a flight, where the reasonable passenger would expect an airline, knowing of a life‑threatening risk, to warn passengers of that risk or the measures to avoid it, was an "accident" which took place on board the aircraft.

30. The carriers emphasised the need to identify an "accident" as one that "took place on board the aircraft or in the course of any of the operations of embarking or disembarking".  They submitted that the appellant's analysis was conducted at too high a level of abstraction which obscured the need to identify a "happening" or "event" which could be located as taking place on board or in the course of the operations identified.  So, the carriers' argument proceeded, although it was neither necessary nor relevant to ask whether the cause of the accident was an act or omission or some combination of acts and omissions, there must have been some unintended and unexpected occurrence which produced the hurt or loss by which damage was sustained[29].

    [29]cf Fenton v J Thorley & Co Ltd [1903] AC 443 at 453 per Lord Lindley.

31. In this case, the carriers submitted, there was no occurrence.  What was alleged to be a "failure to warn" was not an occurrence – it was something that did not happen.  And, as the carriers submitted, what were alleged to be the relevant "flight conditions" were not unintended or unexpected – they were the conditions which the appellant's pleading alleged to be "the standard conditions of and procedures relating to passenger travel" on the relevant flights.

    An "accident"?

32. As was pointed out in Saks[30], the Warsaw Convention was drafted in French by continental jurists.  And as an international treaty, it would be wrong to read Montreal No 4 as if it reflected some particular cause of action or body of learning that is derived from, say, the common law[31].  It was said in Saks[32] that "the French legal meaning of the term 'accident' differs little from the meaning of the term in Great Britain, Germany, or the United States".  Both in French, and in Anglo‑American legal discourse (and, we would add, so too in Australian legal discourse) "accident" may be used to refer to the event of a person's injury or to the cause of injury.  By contrast, "accidental" is usually used to describe the cause of an injury rather than the event and is often used as an antonym to "intentional".

    [30]470 US 392 at 399 (1985).

    [31]Great China Metal (1998) 196 CLR 161 at 171‑172 [22] per Gaudron, Gummow and Hayne JJ.

    [32]470 US 392 at 399 (1985).

33. In Art 17, "accident" is used to refer to the event rather than the cause of injury[33].  And that event is one which Art 17 requires to be located at a place ("on board the aircraft") or otherwise to be fixed by reference to circumstances of time and place ("in the course of any of the operations of embarking or disembarking").

    [33]Saks 470 US 392 at 400 (1985).

34. Further, in understanding what is meant by "accident", it is necessary to give proper weight to the way in which Art 17 relates three different concepts.  Article 17 refers to "damage", to "the death or wounding of a passenger or any other bodily injury suffered by a passenger", and to "the accident which caused the damage so sustained".  The damage sustained is treated as being distinct from the accident which caused the damage, and both the accident and the damage are treated as distinct from the death, wounding or other personal injury.  What that reveals is that the "accident", in the sense of "an unfortunate event, a disaster, a mishap"[34] is not to be read as being sufficiently described as an adverse physiological consequence which the passenger has suffered.  It may be accepted that its happening was not intended.  In that sense, what is alleged to have happened may be described as "accidental".  But suffering DVT is not an accident.  Rather, as the parties to this appeal accepted, "accident" is a reference to something external to the passenger.

    [34]The Oxford English Dictionary, 2nd ed (1989), vol 1 at 74, "accident" meaning I, 1c.

35. It may also be accepted that an "accident" may happen because of some act or series of acts, or because of some omission or series of omissions; it may happen because of some combination of acts and omissions.  If that were not already clear, the reference in Art 25 to damage resulting from "an act or omission of the carrier, his servants or agents" would point in that direction.  It by no means follows, however, that asking whether an event was brought about by an act or omission and then classifying the act or omission as "accidental" as distinct from "intentional" is the same as asking whether there has been an "accident" on board an aircraft.  In particular, recognising the difficulties in seeking to classify causes of an accident as acts or omissions, or as intended or unintended acts or omissions, does not deny the need, under Art 17, to identify that an accident has occurred on board or in the course of the operations of embarking or disembarking.  No other provision of Montreal No 4 suggests any contrary construction of Art 17.

36. No doubt as Saks indicates[35], the concept of "accident" is not to be overrefined.  It is a concept which invites two questions:  first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected?  And as already pointed out, showing only that while on board or in the course of embarking or disembarking a passenger sustained some adverse physiological change does not identify the occurrence of an accident.

    [35]470 US 392 at 405 (1985).

37. As the facts in Husain demonstrate, the course of events surrounding death or injury to an airline passenger may present difficulties in determining whether there has been an accident.  Husain concerned the death of a passenger on board an aircraft as a result of exposure to cigarette smoke.  A flight attendant had refused requests to move the passenger to a seat further away from those who were smoking on board.  The difficulties in determining whether that course of events constituted an accident is sufficiently identified by reference to the competing contentions of the petitioner and the respondents in the Supreme Court of the United States and the contention made by the United States as amicus curiae supporting the respondents (the relatives and legal personal representatives of the deceased passenger).  The respondents described[36] the question presented in the proceedings in the Supreme Court as being

    "[w]hether the repeated insistence by an airline flight attendant that an asthmatic passenger remain in an assigned seat amidst life‑threatening smoke – in direct violation of standard industry practice and the policy of her own airline – is an 'unusual' occurrence and thus, under the principles established in [Saks], constitutes an 'accident' for purposes of Article 17 of the Warsaw Convention".

    The United States, as amicus curiae, described[37] the question as being "[w]hether an airline's unreasonable refusal to assist a passenger who becomes ill during an international flight, in violation of industry standards and the airline's own policies, constitutes an 'accident' within the meaning of Article 17 of the Warsaw Convention".

    [36]Olympic Airways v Husain, 02-1348, Brief for Respondents at i.

    [37]Olympic Airways v Husain, Brief for the United States as Amicus Curiae supporting Respondents at I.

38. By contrast, Olympic Airways, the petitioner in the United States Supreme Court described[38] the question as being

    "[w]hether the court below improperly held that the 'accident' condition precedent to air carrier liability for a passenger's death under Article 17 of the Warsaw Convention can be satisfied when a passenger's pre‑existing medical condition is aggravated by exposure to a normal condition in the aircraft cabin, even if the air carrier's negligent omission may have been in the chain of causation?"

    [38]Olympic Airways v Husain, Brief of Petitioner, Olympic Airways at i.

39. These different formulations of the question that arose in Husain reveal at least two things.  First, unsurprisingly, each sought to emphasise particular aspects of the circumstances surrounding the passenger's death.  Secondly, each sought to identify whether something unusual or unexpected had happened on board the aircraft.  The United States, as amicus, emphasised the response, or lack of response, to a medical emergency.  The respondents emphasised the flight attendant's refusal to move the passenger.  The airline sought to say, in effect, that nothing had happened on board that was unusual or unexpected; even if the flight attendant did not react as she should have reacted, there was no accident.

40. As already pointed out, neither side in the present appeal sought to challenge the correctness of what was decided in Husain.  Moreover, questions of the kind considered in Husain do not arise in this case because it is central to the appellant's case that nothing happened on board the aircraft which was in any respect out of the ordinary or unusual.  Further, what he alleges to be the relevant flight conditions were not said to be unusual or unexpected in any respect.  (Indeed, as against CASA, he alleges in his statement of claim that the conditions were "the standard conditions of and procedures relating to passenger travel" on such flights.)  And only by the mechanism of describing the absence of warning as a "failure to warn" did the appellant seek to suggest that the absence of warning was in any respect unusual or unexpected on the flights concerned.

41. References to "failure" to warn in this context are irrelevant and unhelpful.  They are irrelevant because they must proceed from unstated premises about the content or origin of some duty to warn.  There is no basis for introducing, for example, concepts of the common law of negligence to the construction or application of an international treaty like Montreal No 4.  And unless there is resort to some standard of legal behaviour to determine whether what happened was a "failure", the description of what happened as a failure is, in truth, no more than an assertion that there was no warning.

42. The references to failure are unhelpful because they suggest that the only point at which some relevant warning could or should have been given is on board the aircraft.  But if some warning was necessary or appropriate, it is not apparent why it should not have been given at a much earlier point of making arrangements to travel by air, rather than on board the aircraft.  Further, reference to failure is unhelpful because it diverts attention from what it is that happened on board to what might have, could have, or perhaps should have happened there and why that should be so.  If, as earlier indicated, it is appropriate to ask "what happened on board?" the answer in this case is that the appellant alleges that nothing unexpected or unusual happened there.

43. The allegations which the appellant makes, if proved, would not establish a cause of action against the carriers.

44. That conclusion is consistent with the decisions reached in intermediate courts of appeal in the United States and in England about the application of the Warsaw Convention and subsequent treaties to cases of DVT.  In In re Deep Vein Thrombosis Litigation[39], the Court of Appeal of England and Wales held that the word "accident" in the Warsaw Convention as modified by the Hague Protocol was to be given a natural and sensible, but flexible and purposive meaning in its context[40] and that for there to be an accident within the meaning of the relevant article, there had to be an event external to the passenger which impacted on the body in a manner which caused death or bodily injury and the event had to be unusual, unexpected or untoward[41].  The Court held[42] that inaction was a non‑event which could not properly be described as an accident.  Not warning of the risk of DVT and not giving advice on the precautions that would minimise that risk were not events[43].  The conditions in which passengers travelled on flights (with cramped seating and the like) were not capable of amounting to an event that satisfied the first limb of the definition of an accident which "took place on board the aircraft or in the course of any of the operations of embarking or disembarking"[44].

    [39][2004] QB 234.

    [40][2004] QB 234 at 244 [9], 245 [15], 246 [20].

    [41][2004] QB 234 at 246‑249 [19]-[38].

    [42][2004] QB 234 at 248 [29].

    [43][2004] QB 234 at 248 [29].

    [44][2004] QB 234 at 248 [28].

45. In the United States, the Court of Appeals for the 5th Circuit[45] and the Court of Appeals for the 9th Circuit[46] have also held that development of DVT was not, in the circumstances alleged in those cases, an accident within the meaning of the Warsaw Convention.  Although the appellant sought to gain some comfort from a statement made in the opinion in Rodriguez[47] to the effect that that Court did not need to decide whether an airline's failure to warn of DVT can constitute an accident, that aspect of the Court's opinion is no more than a reflection of the narrowness of the issue tendered for its decision.  It is not, as the appellant's argument tended to suggest, to be translated into any positive proposition of law.

    [45]Blansett v Continental Airlines Inc 379 F 3d 177 (2004).

    [46]Rodriguez v Ansett Australia Ltd 383 F 3d 914 (2004).

    [47]383 F 3d 914 at 919 (2004).

46. For these reasons, the appeal to this Court should be dismissed with costs.

47. McHUGH J.   The principal question in this appeal is whether there can be an "accident" for the purpose of Art 17 of the Warsaw Convention if a passenger on an aircraft suffers Deep Vein Thrombosis ("DVT") by reason of any of the following matters:

    .          the flight conditions;

    .the failure of the air carrier to warn the passenger of the risk of DVT;

    .the failure to advise the passenger of precautions that he should take to minimise the risk of DVT;

    .the discouraging of the passenger from moving about the aircraft;

    .the encouraging of the passenger to remain in his seat during the flight; or

    .the supply of alcohol and caffeine beverages during the flight.

48. In my opinion, there can be an "accident" for the purpose of Art 17 when the employees of an air carrier engage in conduct that causes an injury that is not intended or reasonably foreseeable.  As a result, it would be open to a tribunal of fact to find that a passenger's injury is caused by an "accident" when it is the result of the employees of a carrier:

    .          discouraging the passenger from moving about the aircraft;

    .encouraging the passenger to remain seated during the flight; or

    .          supplying alcoholic or caffeine beverages to the passenger.

    Statement of the Case

49. The appellant, Brian William Povey, sued the respondents, Qantas Airways Ltd ("Qantas") and British Airways Plc ("British Airways"), and the Civil Aviation Safety Authority ("CASA") in the Supreme Court of Victoria for damages for personal injury.  In his Statement of Claim, he alleged he sustained the injury (DVT) as a result of travelling on the respondents' airlines from Sydney to London and return.

50. Acting under s 23.01 of the Supreme Court (General Civil Procedure) Rules (Vic) ("the Rules"), Qantas and British Airways, but not CASA, applied to the Court for summary judgment or an order staying the proceedings.  Acting under s 23.02 of the Rules, they also sought an order striking out Mr Povey's Statement of Claim on the ground that the claims were bound to fail.  Bongiorno J dismissed the applications.  Qantas and British Airways appealed to the Court of Appeal of Victoria against the orders dismissing their applications.  A majority of that Court (Ormiston and Chernov JJA, Ashley AJA dissenting) allowed the appeal and ordered that the Statement of Claim be struck out and the action against Qantas and British Airways be permanently stayed.

51. This Court gave Mr Povey special leave to appeal against those orders, as a result of which he brings this appeal.

    The material facts

52. Travelling in economy class on a Qantas carrier, Mr Povey flew from Sydney to London via Bangkok on 15-16 February 2000.  He returned to Sydney via Kuala Lumpur on a British Airways flight on 18-20 February 2000.  In his Statement of Claim, he claims that, as a result of the flights, he suffered DVT. The thrombosis caused a stroke, pulmonary and paradoxical embolisms, chronic chest, lung and leg pain, breathing difficulties, impaired mobility, thrombosis of the right leg and shock, anxiety and depression.  Paragraph 6 of his Statement of Claim asserts that the DVT was caused "by the conditions of and procedures relating to passenger travel upon the flights", which included:

    "(a)a confined and restricted physical environment in which the [appellant] was immobilised for long periods of time in a seated position;

    (b)impediments to [him] getting out of his seat during the flights;

    (c)the offer and supply of alcoholic beverages, tea and coffee to the [appellant] during the flights;

    (d)discouraging [him] from moving around the cabin of the aircraft and encouraging [him] to remain seated during the flights;

    (e)[the appellant] not being provided with any information or warning about the risk of DVT or information about the measures which [he] could take to reduce such risk."

53. For the purpose of this appeal, these facts have to be accepted as proved.

    The law

54. In his Statement of Claim, Mr Povey claims that Qantas and British Airways are liable to pay him compensation in accordance with Art 17 of the Warsaw Convention as Amended by the Hague Protocol of 1955. That Convention has the force of law in Australia by virtue of s 11(1) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act"). The appeals to the Court of Appeal and this Court, however, were conducted by reference to the Convention as Amended by the Hague Protocol of 1955 and the Montreal Protocol No 4 of 1975, which has the force of law in Australia by virtue of s 25K of the Act.

55. Hence, it is to the terms of the Warsaw Convention as amended by these two Protocols that one must look to determine the civil liability of Qantas and British Airways for Mr Povey's personal injury. That is because s 36 of the Act substitutes a carrier's "civil liability ... under any other law in respect of" a passenger's personal injury with liability under the Convention. Section 36 is operative in this case, by virtue of s 25L, because the carriage of Mr Povey on these flights was governed by the Montreal Protocol No 4. And the Convention is applicable to this dispute in accordance with Art 1 of the Convention because the flights involved the "international carriage of persons, baggage or cargo performed by aircraft for reward."

56. Article 17 of the Convention states:

    "The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

57. Article 22 of the Convention limits the carrier's liability to 250,000 francs.  But, in accordance with Art 25, that limit does not apply where "the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result".

58. The critical question in the appeal is whether anything took place on board the aircraft that is capable of being described as "the accident which caused the damage".  If there is, Mr Povey's Statement of Claim cannot be struck out and the case must go to trial.

    The source of Mr Povey's claim

59. Mr Povey's Statement of Claim asserts that his cause of action arose under the Act and Art 17. But it is the Act, not Art 17, which gives him a cause of action, if he has one. Australia's entry into an international agreement does not itself create rights or liabilities or impose duties enforceable under the domestic law of this country[48]. Legislation that gives effect to an international agreement is required before the contents of the agreement have any significance in Australian law. It is Pt IIIC of the Act, and as I have indicated, s 25K in particular, that gives the Montreal Protocol No 4 the force of law in Australia. Nevertheless, the liability of Qantas and British Airways in this case is measured by the terms of Art 17.

    [48]Dietrich v The Queen (1992) 177 CLR 292 at 305; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287.

60. Article 17 must be construed in the context of an international agreement that constitutes a Code governing the liability of air carriers from many countries.  So, although this Court is concerned with rights and liabilities created by an Australian statute, Australian courts should not take an insular approach to the construction of Art 17.  Nor should it be interpreted by reference to presumptions and technical rules of interpretation applied in construing domestic statutes or contracts.  Instead, an Australian court should apply the rules of interpretation of international treaties that the Vienna Convention on the Law of Treaties[49] has codified[50].  Article 31 of that Treaty declares that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of its terms and their context and in the light of the treaty's object and purpose.  Article 32 declares that resort may be had to extrinsic sources to confirm the meaning in certain circumstances.  Those sources may be consulted to confirm the meaning that results from applying Art 31.  They may also be used to ascertain the meaning where the application of Art 31 results in a meaning that is manifestly absurd, unreasonable, ambiguous or obscure.  As I pointed out in Great China Metal Industries Co Ltd v Malaysian International Shipping Corp, Berhad[51]:

    "[The] extrinsic sources include the travaux préparatoires and the circumstances of the conclusion and history of the negotiation of the treaty.  Primacy must be given, however, to the natural meaning of the words in their context ..."

    [49]Australian Treaty Series, (1974) No 2.

    [50]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Great China Metal Industries Co Ltd v Malaysian International Shipping Corp, Berhad (1998) 196 CLR 161.

    [51](1998) 196 CLR 161 at 186 [70].

    Article 17:  "the accident which caused the damage"

61. In its legal context, the ordinary meaning of an "accident" is an event, happening or occurrence that is unusual, fortuitous, unexpected or unforeseen.  Usually, the event or happening causes damage to persons or property or has an effect on a person or on matter, tangible or intangible.  In Fenton v Thorley & Co Ltd, Lord Lindley said[52]:

    "[A]n accident means any unintended and unexpected occurrence which produces hurt or loss.  But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident.  The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them."

    [52][1903] AC 443 at 453.

62. In Air France v Saks[53], in an unanimous Opinion, the United States Supreme Court held that this definition of "accident" is a guide to the term "accident" in Art 17.  This Court applied Lord Lindley's definition in Australian Casualty Co Ltd v Federico[54] in interpreting an insurance policy that contained the definition "bodily injury ... caused by an accident".

    [53]470 US 392 at 398-399 (1985).

    [54](1986) 160 CLR 513.

63. In Art 17, "accident" does not refer to the hurt or loss suffered.  It refers to the cause of the hurt or loss.  In Art 17, the term is used to refer to that "which caused the damage".  The damage must be "sustained in the event of the death or wounding of a passenger or any other bodily injury" (emphasis added).  Logic dictates, then, that the "accident" must be the cause of "the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger", in which damage was sustained.  But although Art 17 makes the causal element of an "accident" the decisive element, there can be no "accident" unless the causal element has an effect.  Indeed, causation itself implies an effect.  Moreover, the notion of an "accident" that has no consequence or effect is incomprehensible.  Consequently, although the definition in Art 17 operates by reference to the act or event that causes the harm – and not the harm itself – the nature and extent of the harm caused are significant factors in determining whether the act or event that caused it has the quality of an "accident".

64. This emphasis on the causal element of an "accident" in Art 17 is consistent with international authority interpreting the term.  In Saks[55], the United States Supreme Court held that a significant feature of "both the French and the English texts" of the Warsaw Convention is that "the text of Article 17 refers to an accident which caused the passenger's injury, and not to an accident which is the passenger's injury."[56]  To support this interpretation, the Supreme Court cited the comments of the President of the Drafting Committee of the Warsaw Convention in explaining the different wording of the otherwise similar Arts 17 and 18 (which concerns damage to baggage).  The President said that as "there are entirely different liability cases ... we have deemed that it would be better to begin by setting out the causes of liability for persons, then for goods and baggage, and finally liability in the case of delay."[57]  Further, in In re Deep Vein Thrombosis Litigation[58], the Court of Appeal for England and Wales followed Saks and held that "one would normally expect the untoward event to cause the death or injury directly."[59]

    [55]470 US 392 (1985).

    [56]470 US 392 at 398 (1985) (emphasis in original). This interpretation was followed in Olympic Airways v Husain 540 US 644 (2004).

    [57]Second International Conference on Private Aeronautical Law, 4‑12 October, 1929, Warsaw, comments of Mr Giannini, President of the Committee, at 205 (emphasis added), cited 470 US 392 at 402-403 (1985).

    [58][2004] QB 234.

    [59][2004] QB 234 at 246 [21] per Lord Phillips of Worth Matravers MR (emphasis added).

    Categories of causes of "accidents"

65. Common law cases group a wide array of untoward events and happenings under the umbrella concept of "accident".  And the experience of those cases throws light on the meaning of the term "accident" in Art 17.  The concept of "accident" may be categorised in terms of events involving human actions and in terms of happenings that do not involve human action, eg mechanical or technological operations and "acts of nature".  The difference between the categories lies in the divergent reasons that result in happenings being classified as non-deliberate.

66. In the non-deliberate categories are those happenings that are unexpected, unusual or not designed.  An example of this category is the factual situation in Saks, which concerned the mechanical operation of the jetliner's pressurisation system.  The US Supreme Court defined an "accident" for the purpose of Art 17 as "an unexpected or unusual event or happening that is external to the passenger."[60]  It held that no "accident" had occurred on Ms Saks' flight, because "the aircraft's pressurization system had operated in the usual manner."[61]  Because her injury was not caused by a happening that was unexpected or unusual, there was no "accident".

    [60]470 US 392 at 405 (1985).

    [61]470 US 392 at 395 (1985).

67. In Olympic Airways v Husain[62], the US Supreme Court affirmed the interpretation that it had given to Art 17 in Saks.  In Husain, the US Supreme Court noted that "[t]he term 'accident' has at least two plausible yet distinct definitions", being "a happening that is not ... intended" and "an unusual, fortuitous, unexpected, unforeseen, or unlooked for event, happening or occurrence".  But the Court concluded that Saks authoritatively "discerned the meaning of 'accident' under Article 17 of the Convention as an 'unexpected or unusual event or happening that is external to the passenger'."[63]

    [62]540 US 644 (2004).

    [63]540 US 644 at 651 n 6 (2004).

68. With great respect to the US Supreme Court, however, the Saks definition of "accident" does not exhaustively define the scope of Art 17.  At all events, it does not exhaustively define it without explanation.  In Saks, it would have made no sense for the Court to describe the operation of the pressurisation system as "a happening that is not ... intended".  The system operated independently of any actor who could have formed an intention to do an act that had consequences that were not intended or expected.  For this reason, the Court relied on authorities that defined "accident" in terms of "an occurrence associated with the operation of an aircraft".[64]

    [64]DeMarines v KLM Royal Dutch Airlines 724 F 2d 1383 at 1385 (1984), cited 470 US 392 at 396 (1985).

69. But it would be contrary to one of the objects of the Convention to hold that Art 17 must be given only one of two available meanings that the Supreme Court has acknowledged.  One of the objects of the Convention is to provide compensation for injured passengers without the need to prove fault on the part of the air carrier.  The price that is paid for this benefit is a limitation on the amount of compensation payable and the imposition of a condition that "the accident which caused the damage ... took place on board the aircraft or in the course of any of the operations of embarking or disembarking."  The Convention's object of compensating passengers without proof of fault, however, would be undermined by a refusal to give the term "accident" one of the ordinary meanings of which it is capable.

70. The wording of Art 17 makes clear that the "accident" is associated with something that "took place on board the aircraft".  This may include, for example, the actions of flight attendants.  Those actions fall under the first category of events that are "accidents", that is to say, intended or voluntary acts that have unintended, unexpected or reasonably unforeseeable consequences.

71. The criminal law of Australia is familiar with the notion of an "accident" occurring when a voluntary or intended act has unintended, unexpected or reasonably unforeseeable consequences[65].  Thus, for the purpose of the Criminal Code (Q), voluntary or intended acts of a person that cause harm to another may constitute an "accident" where the harm was not intended or reasonably foreseeable.  In Kaporonovski v The Queen, Gibbs J said[66] that "[i]t must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person".  Consequently, this category of "accident" covers cases of intentional conduct that has consequences that were not intended or reasonably foreseeable, for example, a punch to the victim's neck that caused a subarachnoid haemorrhage because of the victim's predisposition to such a haemorrhage[67].  In R v Van Den Bemd[68], a majority of this Court refused the Crown special leave to appeal against a decision that held that a death occurred "by accident" when the "death was such an unlikely consequence of [the accused's] act an ordinary person could not reasonably have foreseen it."

    [65]See Kaporonovski v The Queen (1973) 133 CLR 209; R v Van Den Bemd (1994) 179 CLR 137, appeal from [1995] 1 Qd R 401.

    [66](1973) 133 CLR 209 at 231.

    [67]R v Van Den Bemd (1994) 179 CLR 137.

    [68](1994) 179 CLR 137 at 141 quoting from Court of Appeal.

72. A flight attendant's act of running a food trolley over the foot of a sleeping passenger fits easily within this meaning of "accident" even though the happening is not unusual.  It may be an "accident" – depending on the foreseeability issue – because the flight attendant's voluntary or intentional act of wheeling the trolley was not intended to run over the passenger's foot.  Similarly, an "accident" occurs when a flight attendant directs a passenger to sit in a seat that collapses.  It would be an artificial and narrow view of Art 17 to hold that in such a case it was the collapse of the seat that was the "accident".  The direction is as much a part of the "accident" as the collapse of the seat.  If the attendant was charged with the offence of doing an act that caused bodily harm to the passenger, no one would doubt that the defence of "accident" would be available to the flight attendant.

73. The US Supreme Court recognises that the direction or conduct of a flight attendant that results in injury can constitute an "accident" at all events if the direction or conduct does not accord with industry standards.  In Olympic Airways[69] – decided after Saks – the Court held that an "accident" had occurred for the purpose of Art 17 when the death of a passenger resulted from a flight attendant's refusal to move an asthmatic passenger from a seat near a smoking section.  The Court rejected Olympic's argument that the injury-producing event was the ambient cigarette smoke which was "normal" at the relevant time.  The Court said that Olympic's "'injury producing event' inquiry – which looks to 'the precise factual "event" that caused the injury' – neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury."[70]  The Supreme Court also held that the intentional conduct of a flight attendant could constitute an "accident" for the purpose of Art 17.

    [69]540 US 644 (2004).

    [70]540 US 644 at 653 (2004).

74. Properly understood, I doubt that the Supreme Court of the United States in Saks intended to exclude from the concept of "accident" in Art 17 cases where the injury is the unintended and unforeseeable consequence of the voluntary or intended act of a person other than the plaintiff.  It is true that the Court[71] "conclude[d] that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger."  It is also true that in Olympic Airways[72] the Supreme Court applied the Saks definition and found the departure from industry standards and company policy as the "unusual event".  But in Saks the Court immediately went on to say[73] that its "definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries."  The Court gave examples of this flexible application of its definition.  They included "torts committed by terrorists or fellow passengers."[74]

    [71]470 US 392 at 405 (1985).

    [72]540 US 644 (2004).

    [73]470 US 392 at 405 (1985).

    [74]470 US 392 at 405 (1985).

75. If the Supreme Court's definition of "accident" does exclude cases where the voluntary act of a person other than the plaintiff causes harm to the plaintiff that was not intended nor reasonably foreseeable, the definition went beyond what the Court had to decide.  As the Supreme Court noted in Saks[75], the issue before it was "whether a loss of hearing proximately caused by normal operation of the aircraft's pressurization system is an 'accident' within the meaning of Article 17".  In determining that issue, the Court had to consider the meaning of "accident" but it could not make a binding declaration that gave that term a meaning beyond what was necessary to decide that case.  On one view Saks decides no more than that, for the purpose of Art 17, no "accident" occurs when the injury sustained is the result of the "normal operation" of the aircraft.  Another and narrower view is that it decides that no "accident" occurs for the purpose of the Article "when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft"[76].  Another and wider view is that it decided that it is the cause not the injury that is the accident.  No doubt other formulations of the rule for which Saks stands can be made.  But whatever they may be, they can authoritatively bind only where the alleged "accident" is the result of the normal operation of the aircraft.  Of the material facts involved in Saks, the normal operation of the aircraft was the decisive fact, and statements in Saks must be read with that in mind.

    [75]470 US 392 at 395 (1985).

    [76]470 US 392 at 406 (1985).

76. Cases are only authority for what they decide.  When a court makes a statement that goes beyond the issue it had to decide, the extended statement is dictum and binding on no-one.  Later courts commonly treat the material facts of a case as standing for a narrower or broader ratio decidendi than that expounded by the court that decided the case.  As I pointed out in Woolcock Street Investments Pty Ltd v CDG Pty Ltd[77]:

    "If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived."

    [77](2004) 216 CLR 515 at 543 [61].

77. No one should doubt the importance of the domestic courts of parties to an International Convention achieving uniformity in interpreting and applying the Convention's provisions.  But this does not mean that a domestic court of a contracting party must mechanically apply statements made by a court of another contracting party when the precise issue before that court was significantly different from that which confronts the domestic court.  To require the courts of other contracting parties to do so would mean that the first curial statement on the subject would be controlling.

78. Where, as here, the statement of the court of another contracting party was made in circumstances vastly different from those that confront this Court, we should not automatically apply it.  Of course, the reasoning and the decision of the foreign court must be closely examined and respected.  Where the statement is made by a court of the stature of the US Supreme Court, it is especially important that the courts of another contracting party refuse to apply the Supreme Court's interpretation of Convention provisions only after the most careful consideration.  Ordinarily, a court of another forum should only refuse to apply it when it is convinced that it is wrong or goes beyond what was necessary for decision or where it is necessary to do justice to a party before the forum court.

79. In my opinion, the Saks definition, if read literally and as intended to be exhaustive, is too widely stated.  It excludes cases where the causative conduct of a human actor has unintended and reasonably unforeseeable consequences and which, in ordinary speech, would constitute an "accident".  Holding that such conduct can be an "accident" is not inconsistent with Art 17's insistence that the "accident" be the cause of the injury or damage.  Indeed, the Supreme Court's decision in Olympic Airways can only be understood on this basis.  With great respect to the Supreme Court in Saks[78], it went too far in insisting that the harm-causing occurrence must always be "caused by an unexpected or unusual event or happening that is external to the passenger."  That statement can be readily accepted when the issue concerns happenings that do not involve human action, eg mechanical or technological operations and "acts of nature".  But it would place an undue restriction on the scope of Art 17 to hold that it applies to events involving human actions.

    [78]470 US 392 at 405 (1985).

80. It follows that, if Mr Povey's Statement of Claim pleads that "an unexpected or unusual event" caused his damage or that a voluntary or intended act caused an unintended and reasonably unforeseeable injury, the Statement of Claim cannot be struck out.

    6(a) and (b):  The state of the cabin

81. The flight conditions, as pleaded in particulars (a) and (b) of par 6 of the Statement of Claim, do not fall under either category of "accident".  The physical environment was not "confined and restricted", and Mr Povey was not impeded from "getting out of his seat during the flights", by virtue of any act or because of any event or happening.

    6(c) and (d):  Acts done by the flight attendants

82. Both particulars (c) and (d) enumerate acts that were done by the employees of Qantas and British Airways that "took place on board the aircraft".  Both particulars may be considered "accidents" if it can be proved that:

    .the flight attendants offered Mr Povey "alcoholic beverages, tea and coffee" during the flights and discouraged him "from moving around the cabin of the aircraft"; and

    .the acts were not done with the intent or the foresight that Mr Povey's consumption of the beverages or limited movement would cause the onset of DVT.

83. Upon the assumption that those propositions can be proved, particulars (c) and (d) state facts that are capable of constituting an "accident" for the purpose of Art 17.  They allege matter that can prove Mr Povey's cause of action.  Consequently, they cannot be struck out.

    6(e)  Failure to warn:  Omissions as "accidents"

84. Particular (e) of par 6 pleads an omission.  It asserts that the "accident" was Mr Povey "not being provided with any information or warning about the risk of DVT or information about the measures which [he] could take to reduce such risk."

85. A bare omission, ie, an absence of action, does not fit under the umbrella of "accident".  The causal element of an "accident" generally requires a happening or occurrence.  In my opinion, the Supreme Court was largely correct in Saks in recognising that in the context of Art 17 the concept of "accident" requires an external causative event.  In some circumstances, however, an omission may constitute an event or occurrence for the purpose of Art 17, as when there is a failure to carry out a duty, practice or expectation.  In Olympic Airways, the Supreme Court held that the refusal to shift the passenger contrary to industry practice and company policy was an "accident".  An omission may also constitute an "accident" when it is part of or associated with an action or statement.  Thus, omitting to keep a proper lookout in the course of pushing a food trolley or refusing to do something as in Olympic Airways may be an element in an "accident".  But a bare omission to do something cannot constitute an "accident".  If the omission is unintended in the sense that it is not contemplated, it is not a voluntary act that has unintended and reasonably unforeseeable consequences.  If the omission is deliberate in the sense of considering an action and rejecting it, no external event or happening occurs.  Furthermore, a bare omission is not something that is unexpected or unusual.  A bare omission does not fall into either of the categories of "accident" to which I have referred.

86. Accordingly, the failure of Qantas and British Airways to take steps that would have prevented the injury, as pleaded in particular (e) of par 6 of the Statement of Claim, is not an "accident" within the meaning of Art 17.

    Order

87. The appeal should be allowed in respect of particulars (c) and (d) of par 6 of the Statement of Claim but otherwise dismissed.  The order of the Court of Appeal of Victoria should be set aside.  In its place should be substituted an order that the appeal to that Court be allowed in respect of particulars (a), (b) and (e) of par 6 of the Statement of Claim but otherwise the appeal to that Court be dismissed.  Because Mr Povey has succeeded on the point of principle involved in the case, Qantas and British Airways should pay the costs in this Court and in the Court of Appeal despite Mr Povey being unsuccessful in respect of three particulars of his claim.

88. KIRBY J.   Since ancient times, human beings have known of the dangers of flight.  The mythologies of Greece, Crete, Persia and other lands include stories of injurious attempts by men and women to soar into the firmament[79].  In his Metamorphoses[80], Ovid describes the winged flight of Daedalus and Icarus, brought to an end by the youth's reckless attempt to soar too high.  The appellant in this case likewise complains of an injury caused by his air travel.  However, whereas Icarus had only his father Daedalus to assist him in his peril, the appellant has the Warsaw Convention[81].  To that Convention he has appealed.  But as I shall explain, it is of no greater avail.

    [79]The Psalmist alludes to flight in Ps 91:12:  see Johnson v American Home Assurance Co (1998) 192 CLR 266 at 268 [4].

    [80]Ovid, Metamorphoses, Book VIII, ll 183-235; see Melville (tr), Ovid:  Metamorphoses, (1998) at 176-178.

    [81]Convention for the Unification of Certain Rules Relating to International Carriage by Air, [1963] Australian Treaty Series No 18, opened for signature at Warsaw on 12 October 1929, as amended at the Hague, 1955, and by Protocol No 4 of Montreal, 1975 (together referred to in these reasons as "the Warsaw Convention").

    The Warsaw Convention and the international rule of law

89. In SS Pharmaceutical Co Ltd v Qantas Airways Ltd[82], in relation to a predecessor to the Warsaw Convention applicable in this appeal[83], I observed that "it is essential that … perfectly natural reactions to the predicament of … the passenger or family in the case of death or injury … should be subjected to the dispassionate application of the international instrument, properly construed".  If the result of such a construction is deemed unsatisfactory, "it will be an argument for improved international arrangements, enhanced domestic legislation or for securing the protection of private insurance".  It does not justify a court of law "adopting a construction … which is different from that intended by, and expressed in, the article". 

    [82][1991] 1 Lloyd's Rep 288 at 295 (NSWCA).

    [83]See Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Carriers' Liability Act"), s 5, definition of "the Warsaw Convention as amended at the Hague".

90. Because of the "disgraceful shambles" of the Warsaw Convention and its later modifications[84], and the conflicting interests, national and economic, that have contributed to the present texts, those who have the obligation of construing such provisions "should not be unduly surprised at arriving at an apparently inequitable result"[85].  The international rule of law is not achieved by distorting or stretching beyond snapping point the interpretation of the text of international instruments, however unfair the result required by its text may seem. 

    [84][1991] 1 Lloyd's Rep 288 at 296. See Lowenfeld and Mendelsohn, "The United States and the Warsaw Convention", (1967) 80 Harvard Law Review 497 ("Lowenfeld and Mendelsohn").

    [85][1991] 1 Lloyd's Rep 288 at 297.

91. Mr Brian Povey (the appellant) attempts, in this appeal, to recover for the damage sustained by him by reason of "bodily injury" that he claims to have suffered as a result of an international air carriage on a round trip from Sydney to London.  The carriage was conducted by the first respondent, Qantas Airways Limited ("Qantas"), and the second respondent, British Airways Plc ("British Airways").  The "bodily injury" alleged by the appellant is deep venous thrombosis ("DVT").  The appellant claims, and wishes to present a case at trial, that the respondent airlines knew that there was a risk of DVT in the conduct of such long flights to and from Australia but that, at the relevant time, they "deliberately chose not to warn of it"[86]. 

    [86][2004] HCATrans 490 at 1180.

92. The respondents deny this.  However, in advance of a trial, they sought summary relief against the appellant's action[87].  Whilst they failed to secure orders granting judgment or a permanent stay of the proceedings before the primary judge (Bongiorno J)[88], in the Court of Appeal of the Supreme Court of Victoria a majority supported the grant of such relief[89].  In this Court, by special leave, the appellant now contests the judgment against him that followed in the intermediate court.

    [87]cf Damon v Air Pacific unreported, Central District Court of California, 10 September 2003 at [1]-[2].  Summary relief was sought pursuant to the Supreme Court (General Civil Procedure) Rules (Vic), ss 23.01, 23.02.  Alternatively, the claim relied upon the inherent powers of the Supreme Court of Victoria.

    [88][2002] VSC 580 at [42]-[45].

    [89][2003] VSCA 227 at [41] per Ormiston JA, [48] per Chernov JA.

93. The basis for the provision of relief to the respondents was the conclusion of the majority of the Court of Appeal that, on the facts alleged and particularised in his pleadings (included as amended pursuant to leave granted at first instance by the primary judge)[90], the appellant had not alleged, nor was it reasonably arguable, that the condition of DVT satisfied the relevant test for liability under Art 17 of the Warsaw Convention, namely that the condition had been caused by an "accident" that "took place on board the aircraft or in the course of any of the operations of embarking or disembarking"[91].

    [90][2002] VSC 580 at [45].

    [91]The language of Art 17, the applicable provision of the Warsaw Convention. See Carriers' Liability Act, Sched 5.

94. One member of the Court of Appeal (Ashley AJA) would have permitted the proceedings to go to trial on a limited basis[92].  His Honour's conclusion gave effect to the view that part, but not all, of the case that the appellant sought to pursue could possibly constitute an "accident", as required.  In my opinion, in the manner in which the proceedings have been argued (effectively as a demurrer to the case propounded by the appellant in his pleadings and particulars), the approach of the majority in the Court of Appeal is to be preferred.  The appeal should be dismissed.

    [92][2003] VSCA 227 at [217].

    The facts

95. The primary facts alleged:The appellant alleged that between 15 and 16 February 2000 he travelled as a passenger in economy class seats on flights from Sydney to London via Bangkok on an aircraft operated by Qantas.  He arrived in London on 16 February 2000.  He returned to Sydney via Kuala Lumpur on an aircraft operated by British Airways, also in economy class.  The return flight involved departing London on 18 February 2000 and arriving in Sydney on the morning of 20 February 2000. 

96. The appellant alleged that during, or immediately following, the foregoing flights he suffered from DVT and, as a consequence, sustained bodily injuries. These included the development of pulmonary embolism, resulting in cerebral damage ("stroke") with consequential impaired mobility and breathing difficulties. The appellant's proceedings were effectively a test case for hundreds of other actions commenced, and pending, in the Supreme Court of Victoria. Those actions have been brought by persons claiming damages from airlines in respect of DVT resulting in injuries of varying degrees of seriousness. They include cases maintained on behalf of the estates and dependants of passengers who have died allegedly as a consequence of the development of DVT. In addition to suing Qantas and British Airways, the appellant pursued a claim in negligence against the Australian Civil Aviation Safety Authority ("CASA")[93].  Those proceedings are in abeyance, pending the outcome of this appeal.

    [93]Established by the Civil Aviation Act 1988 (Cth), s 8.

97. As originally pleaded, the appellant alleged that his injury had been "caused by the conditions of and procedures relating to passenger travel upon the flights".  These were described as "the flight conditions".  They were particularised as including a confined and restricted physical environment involving immobilisation for long periods; impediments to getting out of the seat during the flights; the repeated offer and supply of alcoholic beverages and coffee during the flights; discouragement from moving around the cabin and encouragement to remain seated; and not providing the appellant with any information or warning about the risk of DVT or the measures that could be taken to reduce such risk[94].  The respondent airlines sought further particulars.  These elicited the facts that the "accident" was alleged to be comprised of "the flight conditions" and that it had occurred for the duration of the flight to and from the United Kingdom, first symptoms of DVT being experienced on the final leg of the journey between Kuala Lumpur and Sydney[95].

    [94][2003] VSCA 227 at [52].

    [95][2003] VSCA 227 at [54].

98. The appellant's claim against the airlines was brought in the State of Victoria under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Liability Act"). That Act gives the force of law to provisions of the Warsaw Convention, as it has been amended from time to time with consequences for claims against carriers brought in Australia[96].  In the Court of Appeal, and in this Court, it was accepted, correctly, that the version of the Warsaw Convention applicable to the appellant's carriage was that of the Convention as amended by the Hague Protocol and by Protocol No 4 of Montreal of 1975[97].  The applicable version was misdescribed before the primary judge.  However, nothing turned on this mistake as the provisions of the relevant article (Art 17) were unchanged in the successive versions.

    [96]Carriers' Liability Act, s 11(1).

    [97]Set out in the Carriers' Liability Act, Sched 5.

99. The course of proceedings:After the respondent airlines filed their defences, denying that the appellant had suffered DVT and consequent injuries and asserting that any such DVT and injuries were not caused by an "accident" within the meaning of Art 17 of the Warsaw Convention, they moved for immediate relief.  They sought the entry of summary judgment in their favour and a permanent stay of proceedings[98] or an order striking out those paragraphs of the statement of claim in which claims were pleaded against them[99].

    [98]Pursuant to the Supreme Court (General Civil Procedure) Rules (Vic), s 23.01.

    [99]Pursuant to the Supreme Court (General Civil Procedure) Rules (Vic), s 23.02.

100. The decision of the primary judge upheld the complaint that the appellant's claim, as originally pleaded, disclosed no "accident" within Art 17 of the Warsaw Convention.  However, his Honour held that if the alleged "accident" were particularised in a form expressed during argument before him, the claim might disclose an "accident".  Hence, the summons for peremptory relief was dismissed.  The appellant was given leave to file fresh particulars of the matters relied on as constituting the "accident" alleged in the statement of claim.

101. Qantas and British Airways thereupon sought, and obtained, leave to appeal to the Court of Appeal[100].  Meantime, the appellant duly provided the anticipated further particulars ordered by Bongiorno J[101].  These maintained that the "accident", causing the appellant's bodily injuries, comprised "the flight conditions" previously particularised.  However, they added two additional and associated particulars, namely that at the time of the respective flights, Qantas and/or British Airways knew that the flight conditions were capable of causing, or increasing the risk of causing, the passengers on the flight to experience DVT; and that they knew of preventive measures that might have minimised such risk, while the appellant and other passengers had no such knowledge.  Accordingly, it was "unexpected or unusual" that the appellant was "subjected to such flight conditions".  The particulars further alleged that the appellant and other passengers were not provided with any information or warning about the risk of DVT or measures which they could take to reduce such a risk, despite being entitled to be provided by the carriers with such warnings and information about that risk.  Because the provision to passengers of warnings and information about any such risk was "usual, commonplace and expected", the failure of Qantas and British Airways to afford such warnings and information was unexpected and unusual.  It was thus an "accident" within Art 17 of the Warsaw Convention.

     [100]Leave to appeal was granted on 14 March 2003 by Buchanan and Vincent JJA.

     [101][2002] VSC 580 at [46].

102. The majority in the Court of Appeal, in separate reasons, accepted (as the primary judge had held) that the claim, as originally pleaded, did not identify an "accident" that was a prerequisite to the bringing of the proceedings.  Nor did the majority consider that the additional particulars made any difference.  They concluded that, to be an "accident" within the Warsaw Convention, it was necessary that there should have been an "event or happening".  The most that was alleged in the case was inactivity (a failure to warn passengers in the circumstances of the flight conditions that were otherwise expected and usual at the time).  This could not amount to an "accident", as required[102]. 

     [102][2003] VSCA 227 at [38]-[39] per Ormiston JA, [46]-[47] per Chernov JA.

181. Reliance on Husain:Much of the appellant's argument in this Court was based on a decision of the Supreme Court of the United States since Saks, namely Olympic Airways v Husain[186]. 

     [186]540 US 644 (2004).

182. Husain involved a claim arising out of the death of a passenger on a flight from Athens to San Francisco.  The passenger suffered from severe asthma.  His wife, discovering that they had been seated in the economy cabin only three rows in front of the smoking section requested re-seating by a flight attendant.  The latter told the wife to "have a seat".  The wife persisted with her request and was told, incorrectly, that the cabin was "totally full".  She was informed that the attendant was "too busy" to help.  The passenger suffered extreme breathing difficulties during the flight, collapsed and died.  His widow brought proceedings for damages against the carrier.  The carrier asserted that the circumstances did not disclose an "accident" within Art 17 of the Warsaw Convention, as applicable to claims brought in the United States[187].  The United States District Court held that the flight attendant's refusal to re-seat the passenger amounted to an "accident"[188].  The Court of Appeals for the Ninth Circuit affirmed this decision[189].  By majority[190], the Supreme Court of the United States upheld the decision, confirming the claim as within the Convention.

     [187]See Husain 540 US 644 at 646 fn 1 (2004).

     [188]Husain v Olympic Airways 116 F Supp 2d 1121 at 1134 (2000).

     [189]Husain v Olympic Airways 316 F 3d 829 at 837 (9th Cir 2002).

     [190]Thomas J for the Court; Scalia J (with whom O'Connor J agreed as to part) dissenting.  Breyer J took no part in the decision.

183. It was not in dispute in Husain that the definition of "accident" in Saks should be applied; that attention should be paid to relevant national and international authority; and that care should be taken, so far as possible, to ensure the uniform application of the Warsaw Convention by the courts of the States parties to it.  The majority of the Supreme Court concluded that the case involved "unusual or unexpected" conduct on the part of the carrier.  I agree with the submission for Qantas that Husain was not a case about mere inaction.  The Supreme Court in Husain recognised, as Saks had done earlier, that "[a]ny injury is the product of a chain of causes"[191].  As the majority explained[192]:

     "Petitioner's focus on the ambient cigarette smoke as the injury producing event is misplaced … [P]etitioner's 'injury producing event' inquiry – which looks to 'the precise factual "event" that caused the injury' – neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury … In Saks, the Court recognized that any one of these factual events or happenings may be a link in the chain of causes and – so long as it is unusual or unexpected – could constitute an 'accident' under Article 17."

     [191]Husain 540 US 644 at 652 (2004), citing Saks 470 US 392 at 406 (1985).

     [192]Husain 540 US 644 at 653 (2004).

184. For the majority in Husain, the flight attendant's refusal to assist on three separate occasions was also a "factual 'event'"[193].  The "rejection of an explicit request for assistance would be an 'event' or 'happening' under the ordinary and usual definitions of these terms"[194].

     [193]Husain 540 US 644 at 653 (2004).

     [194]Husain 540 US 644 at 655 (2004).

185. By the time that Husain was decided by the Supreme Court of the United States, judicial reasons were available to United States courts in the DVT litigation being conducted in England[195].  The Supreme Court also had the reasons of the Victorian Court of Appeal in this Australian case[196].  The majority in Husain did not consider the conclusion in either of those proceedings to be inconsistent with their reasons, itself a significant comment[197].  They pointed to the "substantial factual distinctions between these cases" and cited the express statement to that effect recorded in the English decision.  The latter had laid emphasis upon the refusal of the flight attendant to provide an alternative seat that formed "a more complex incident" whereby the passenger was exposed to smoke in circumstances properly described as "unusual and unexpected"[198].

     [195]Husain 540 US 644 at 655 fn 9, 659 (2004); see DVT Litigation [2004] QB 234.

     [196]Referred to in Husain 540 US 644 at 655 fn 9, 660 (2004); see [2003] VSCA 227.

     [197]Husain 540 US 644 at 655 fn 9 (2004).

     [198]DVT Litigation [2004] QB 234 at 254 [50].

186. The dissenting opinion in the Supreme Court was, however, unimpressed by such factual distinctions.  Thus, Scalia J interpreted the majority's holding that "mere inaction can constitute an 'accident' within the meaning of the Warsaw Convention"[199].  His Honour (with the support of O'Connor J who had written the Supreme Court's opinion in Saks) preferred the approach adopted by Ormiston JA in the Court of Appeal in the present case and by Lord Phillips of Worth Matravers MR in DVT Litigation.  By these approaches, inaction on the part of the flight crew "is not an event; it is a non-event.  Inaction is the antithesis of an accident."[200]

     [199]Husain 540 US 644 at 658 (2004).

     [200]DVT Litigation [2004] QB 234 at 247 [25], cited by Scalia J in Husain 540 US 644 at 659-660 (2004).

187. It is unnecessary for this Court to choose between the conflicting opinions expressed in Husain.  As was predicted in Saks, and is self-evident, cases will present that are at the borderline of establishing an "accident" or failing to do so.  There were peculiar features of the confrontation between the wife, the passenger and the flight attendant in Husain that arguably lifted that case from classification as a "non-event" into classification as an unexpected or unusual happening or event and hence an "accident".  Especially is this so because, in Husain, the District Court found that the conduct of the flight attendant was in "blatant disregard of industry standards and airline policies" applicable at the time[201].

     [201]116 F Supp 2d 1121 at 1134 (2000).

188. Conclusion:  Husain is distinguishable:  Husain, a case about confrontation and refusal, is clearly distinguishable from the present case on the facts pleaded by the appellant.  The Supreme Court of the United States was careful to note that the "conclusion" it had reached was "not inconsistent" with the decision in DVT Litigation, a formula noticed by the dissentients[202].  Any criticism of the logic of the reasoning of the two opinions in Husain is not this Court's business.  It is enough to be satisfied, as I am, that there is nothing in Husain that indicates a reversal of the influential definition of "accident" adopted by the Supreme Court in Saks.  On the contrary, that definition was applied.  Moreover, even the dissentients recognised the way in which affirmative and unusual action by flight crew could change an omission to act (or "non-event") into an event or happening.  They favoured remanding the proceedings to the District Court to consider whether the flight attendant's misrepresentation about the plane being "full", independent of any failure to re-seat the passenger, was an "accident that caused [his] death"[203].

     [202]540 US 644 at 661 (2004) per Scalia J.

     [203]Husain 540 US 644 at 667 (2004) per Scalia J.

189. In the present case, it is not alleged that there was any similar confrontation between the appellant and either the Qantas or British Airways flight attendants or staff.  Nothing is pleaded that was peculiar or special to the appellant.  It is not alleged that the conditions on board the aircraft represented, in any way, a departure from those to be expected or normal at the time.  On the contrary, the opposite is pleaded.

190. It follows that, in my view, nothing in Husain assists the appellant in this appeal.  Nothing in the reasoning of the majority suggests the need to correct the conclusion to which the majority of the Court of Appeal came in this case.

     Consistency with international authority

191. North American cases:Accepting that it is highly desirable, and one of the purposes of the Warsaw Convention, that there be uniformity and certainty in the application of the Convention in the courts of different States parties[204], it is instructive also to consider whether the foregoing conclusion, arrived at by my own analysis, would involve any departure from the approach to like claims on the part of courts in other jurisdictions.  Far from indicating a departure, consideration of the decisions so far reached in DVT litigation in other countries indicates that the conclusion reached by the majority in the Court of Appeal in this case conforms to the approach of courts of other countries.

     [204]See these reasons at [140]-[143].

192. It is appropriate to begin with cases in the United States because the Supreme Court of that country has now twice, albeit without full consideration, passed upon the issue of DVT claims.  It did so (as has been shown) in the comment in Husain concerning the conclusion of the English and Australian litigation in DVT claims to that time.  But there is more than this. 

193. In Blansett v Continental Airlines Inc[205], the Court of Appeals for the Fifth Circuit considered the claim of a plaintiff who alleged against a carrier that he had suffered DVT during the course of a flight.  Reference was made to the absence from federal flight safety regulations of any requirement that air carriers should warn passengers of the risk of DVT or of the means of avoiding or minimising that risk[206].  The Court of Appeals considered the applicability of the decision in Husain.  It distinguished that case on the footing that the Supreme Court has held that "some kinds of inaction can constitute an 'accident'"[207].  However, it held that  Husain was not an instance of "mere inertia" that would represent a "non-event"[208].  It was one that involved "an event both unexpected and unusual".  Addressing the case before it, the Court in Blansett concluded[209]:

     "[N]o jury may be permitted to find that Continental's failure to warn of DVT constituted an 'accident' under article 17.  Continental's policy was far from unique in 2001 and was fully in accord with the expectations of the FAA.  Its procedures were neither unexpected nor unusual."

     [205]379 F 3d 177 (5th Cir 2004).

     [206]379 F 3d 177 at 182 (5th Cir 2004).

     [207]379 F 3d 177 at 181 (5th Cir 2004).

     [208]One judge of the Court of Appeals (Judge Dennis) disagreed with the distinction between "mere inertia" and "inertia plus unusual circumstances" but regarded the difference as immaterial.  See Blansett 379 F 3d 177 at 181 fn 4 (5th Cir 2004).

     [209]379 F 3d 177 at 182 (5th Cir 2004).

194. Whilst this Court's decision in the present case stood for judgment, the parties informed us that the Supreme Court of the United States had denied certiorari to Mr Blansett.  Although this does not affirm the reasoning of the Court of Appeals, it suggests an unwillingness on the part of the Supreme Court to question the conclusion reached.  Meantime, in other cases in the United States, courts have held that the failure of airlines to warn of the risk of DVT, at a time comparable to that of the appellant's flight, did not constitute an "accident"[210].

     [210]eg Rodriguez v Ansett Australia Ltd 383 F 3d 914 (9th Cir 2004). A petition for certiorari to the Supreme Court of the United States was subsequently denied.

195. In Canada, in McDonald v Korean Air, a passenger's DVT-based claim was rejected at first instance due to his failure to establish "accident"[211].  The Ontario Court of Appeal (which included Abella J[212]) unanimously dismissed an appeal from that decision, without extended reasons[213].  An application for leave to appeal to the Supreme Court of Canada was refused[214].

     [211](2002) 26 CCLT (3d) 271.  See DVT Litigation [2004] QB 234 at 257 [65].

     [212]Subsequently a Justice of the Supreme Court of Canada.

     [213]McDonald v Korean Air (2003) 171 OAC 368.

     [214]McDonald v Korean Air (2003) 191 OAC 398 (note).

196. English cases:A similar conclusion was reached, unanimously, by the Court of Appeal of England and Wales in DVT Litigation[215].  That Court affirmed the decision at first instance of Nelson J[216] which had held that, on the basis of an agreed "matrix of facts", the claimants did not have an entitlement under Art 17 of the Warsaw Convention for DVT allegedly suffered by them.  In particular, Nelson J concluded that the facts did not disclose an "accident" for the purposes of Art 17.  The Court of Appeal affirmed that conclusion.  It held that an "accident" had to be an event or happening external to the passenger that impacted on the passenger's body in a manner causing death or bodily injury.  It upheld the requirement that such an event had to be unusual, unexpected or untoward, although it could be fleeting or might continue for an extended period. 

     [215][2004] QB 234.

     [216][2003] 1 All ER 935.

197. In its reasons, the Court of Appeal rejected the suggestion that inaction, being the operation of allegedly cramped seating and other cabin conditions that were integral and permanent features of the aircraft and carriage throughout the flight at the time it occurred, was capable of amounting to an "event" so as to constitute an "accident".  Lord Phillips MR, in the context of the Warsaw Convention, rejected the notion that "inaction itself can ever properly be described as an accident"[217].  He considered that his conclusion was reinforced[218] by the fact that Art 17 postulated that the accident must "take place" at the designated places and within the specified times.  Something that does not "take place" cannot amount to the unexpected or unusual event or happening that is necessary to constitute an "accident".

     [217]DVT Litigation [2004] QB 234 at 247 [25].

     [218]DVT Litigation [2004] QB 234 at 248 [26].

198. The Court of Appeal also accepted the inevitability of borderline cases.  Thus, the Master of the Rolls referred to the decisions of the District Court and Court of Appeals in Husain (which had not then reached the Supreme Court).  He expressed himself as having no difficulty with "the result in this case", although he questioned some of the reasoning[219].  Clearly, he saw the case as one of "refusal to provide an alternative seat" which thus "formed part of a more complex incident"[220].  His Lordship's analysis was persuasive for the majority of the Court of Appeal in the present case.  Acknowledging the judgment that is required by the facts pleaded or proved in every case, I too would follow it.  As the law stands in England on this subject, it presents a barrier to claims under the Warsaw Convention such as those brought to this Court by the appellant.

     [219]DVT Litigation [2004] QB 234 at 254 [50].

     [220]DVT Litigation [2004] QB 234 at 254 [50].

199. The House of Lords has granted the plaintiffs in the English DVT litigation leave to appeal from the judgment of the Court of Appeal.  The decision of their Lordships is not yet available.

200. Other decisions:The respondent airlines drew to notice the decisions of other courts at first instance that have rejected claims similar to those of the appellant as being outside the requirement of "accident" contained in Art 17 of the Warsaw Convention[221].  In none of these cases has the plaintiff succeeded.  None of the available reports suggests a need to reconsider any of the foregoing reasoning.  On the contrary, in the current state of authority, the rejection of the appellant's claim, as pleaded, would conform to the uniform approach of national courts in diverse legal systems applying a generally consistent interpretation of "accident" to exclude claims such as the present. 

     [221]For example, Van Luin v KLM Airlines t/a KLM Royal Dutch Airlines (2002) 1 DCLR (NSW) 25; Rynne v Lauda-Air Luftfahrt AG [2003] QDC 4; Louie v British Airways Ltd unreported, District Court of Alaska, 17 November 2003.

201. The attempt by the appellant to give his claim the allure of an affirmative "event or happening" by referring to a so-called "pleaded combination of circumstances" and "pleaded continuous circumstances" fails.  In the end, the combination and continuous circumstances amount to nothing but aircraft conditions.  They do not rise, as pleaded, to an "event" or "happening".  Still less do they qualify for description as an event or happening that was "unexpected" or "unusual" in the circumstances of the carriage at that time.

     Conclusion and order

202. The result is that the conclusion reached by the majority of the Court of Appeal was correct.  The orders made by that Court involve no error.  The appeal to this Court should be dismissed with costs.

203. CALLINAN J.   No one who has ever endured the discomfort of a long journey by air in the seemingly ever diminishing personal space provided by airlines for economy class passengers, could fail to sympathize with the plight of this appellant.  But whether the respondents could and should have done better in this and other respects for him on his long flights the subject of his appeal, is not the question.  Rather, it is, as the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ explains, whether on the facts alleged by the appellant, he may be able to make out against the respondents a case of accident within the meaning of "accident" as that word is used in Art 17 of the Warsaw Convention 1929 as modified from time to time.  The answer to that question must, I think, be a negative one. 

204. The Court of Appeal of England and Wales in In re Deep Vein Thrombosis Litigation[222] took the view that such an accident could not be regarded as having happened unless an event of an unusual, unexpected or untoward kind, external to the passenger, which had adversely affected his health or life, had occurred:  mere inaction could not constitute an event or an accident.  I agree with that view. 

     [222][2004] QB 234 at 246-249 [19]-[38] per Lord Phillips of Worth Matravers MR with whom Judge LJ agreed.

205. Some further points may be worth making.  As the joint judgment also points out[223], the words and concepts contained in the Convention have from time to time been "flexibly applied".  Flexible application may lead to both uncertain, and, on occasions, strained or artificial application, the latter the product of an understandable judicial resistance to the rigidity and harshness of a rule admitting compensation relevantly for an accident only.  Why, it may be asked should a carrier by air be exonerated if it has negligently injured a passenger simply because there has not been an accident?  Great technological strides rendering air travel much safer and predictable have notoriously been made, even in the 30 years since the last, relevant modification of the Convention.  It is at least open to question whether air carriers and their insurers are enjoying, as arguably sea carriers also are, the benefit of an anachronistic approach to the perils of travel as defined by outmoded international instruments, a point that I sought to make with respect to the expression used in the Hague Rules, the "perils of the sea"[224], in Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad[225].  Perhaps the time has come to revise these instruments in the light of increased knowledge and improved technology, in the interests both of consumers, and greater certainty of application. 

     [223]See the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ at [28]-[36].

     [224]The Hague Rules, Arts III and IV.

     [225](1998) 196 CLR 161 at 242-244 [225]-[230].

206. I agree with the joint judgment that the appeal should be dismissed with costs.