CASE DIGEST Povey V Qantas Airways Limited

Povey v Qantas Airways Limited
[2005] HCA 33
23 June 2005
M167/2004
FACT:
The plaintiff was a passenger on a flight from Sydney to London with Qantas Airways on 15
February 2000 and on a flight from London to Sydney with British Airways (the second respondent) on
18 February 2000. The plaintiff alleged that during or after the carriage, he sustained DVT. In
proceedings brought in the Supreme Court of Victoria, the plaintiff claimed that the airlines were liable
for his DVT as well as the Civil Aviation Safety Authority of Australia ("CASA").
The plaintiff’s claim against the airlines was brought under the Civil Aviation (Carrier’s Liability)
Act 1959, which incorporates the Warsaw Convention, as amended, into Australian law. The Act is the
exclusive remedy for passengers who are injured during the course of international carriage by air.
Central to the case was the issue of whether the plaintiff’s DVT had been caused by an "accident", as
required by Article 17 of the Convention. Article 17 provides:
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.
Applying to strike out the claims against them, the airlines argued that the pleadings did not
disclose any "accident" having caused the DVT. In response the plaintiff argued that the "accident"
constituted certain aircraft cabin conditions such as the confined physical environment, combined with
the airlines’ offering of particular beverages during flights and their failure to warn passengers about
DVT. At first instance, the Supreme Court agreed with the airlines, finding that the case as pleaded and
particularised could not succeed. Nevertheless, the Court considered it arguable that a failure to warn of
the risks of DVT could in the circumstances constitute an "accident". The Court therefore permitted the
claimant to reparticularise his claim to focus on the failure to warn allegation.
The airlines appealed that decision to the Victorian Court of Appeal. There, by a 2 to 1 majority,
the Court found that Mr Povey’s alleged DVT was not caused by an "accident", which it accepted was an
"unexpected or unusual event that is external to the passenger" in accordance with the leading United
States case Air France v Saks (1985) 470 US 392. In particular, the majority considered a failure to warn
on the part of the airlines did not amount to an "accident". Accordingly, the Court allowed the airlines’
appeal.
Special leave to appeal to the High Court of Australia was granted to Mr Povey and the appeal
was heard on 2 December 2004. The proceeding by Mr Povey was run as an informal test case, with
some 500 similar separate actions in several Australian states and territories being held in abeyance
pending a final decision.
ISSUE:
Whether or not failure of the respondents to warn passengers of the risk of DVT and to advise
them of the precautions that they could take to eliminate such risk is capable of constituting an
"accident" within the Warsaw Convention
RULING:
The Court found that Mr Povey’s alleged DVT was not caused by an "accident", which it
accepted was an "unexpected or unusual event that is external to the passenger" in accordance with the
leading United States case Air France v Saks (1985) 470 US 392. In particular, the majority considered a
failure to warn on the part of the airlines did not amount to an "accident". Accordingly, the Court
allowed the airlines’ appeal.
On 23 June 2005, by a 6 to 1 majority (the full seven judges having heard the appeal), the High Court of
Australia dismissed the plaintiff’s appeal.
In a joint judgment, Gleeson CJ, Gummow, Hayne and Heydon JJ adopted the definition of "accident"
in Saks, confirming that for the purposes of Article 17, "accident" referred to an unusual or unexpected
event external to the passenger which must be located at a place (on board the aircraft) or otherwise be
fixed by reference to circumstances of time and place (embarking or disembarking). Critically, the
appellant’s case as pleaded and particularised disclosed that nothing unusual or unexpected had
happened during his flights. In fact, in his case against CASA, the plaintiff had pleaded that the relevant
flight conditions were "the standard conditions of and procedures relating to passenger travel". The
alleged failure to warn was also considered by their Honours to be irrelevant and unhelpful, as it
presupposed that the airlines owed such a duty and attempted to introduce common law concepts into
the construction of an international treaty. Accordingly, the Court held that the appellant’s allegations
would not establish a cause of action against the airlines under Article 17.
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.
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.

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