Yeomans v Carbridge Pty Ltd [2011] NSWDC 221

District Court New South Wales

Medium Neutral Citation: Yeomans v Carbridge Pty Ltd [2011] NSWDC 221 Hearing dates: 12/12/2011 Decision date: 13 December 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 28 Catchwords: Summary judgment, arguable case Legislation Cited: Civil Aviation (Air Carriers Liability) Act 1967 (NSW) Civil Aviation (Carriers Liability) Act 1959 (Cth) Civil Liability Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 Kotsambasis v Singapore Airlines Ltd 148 ALR 498 Girard v American Airlines United States District Court, ED New York, Number 00-CV-4559 (ERK) Texts Cited: Shawcross and Beaumont Air Law (Loose leaf Butterworths LexisNexis) Category: Principal judgment Parties: Wendy Yeomans (Plaintiff) Carbridge Pty Ltd (Defendant) Representation: K Nomchong (Plaintiff) C Withers (Defendant) Cheney & Wilson Solicitors (Plaintiff) Wotton & Kearney (Defendant) File Number(s): 2010/00146047

Judgment 1On 19 May 2010 the plaintiff filed a Statement of Claim commencing proceedings against the defendant. The defendant now wishes these proceedings to be dismissed. It seeks this order by way of a Notice of Motion dated 21 March 2011. 2The proceedings arise out of an accident suffered by the plaintiff on 23 August 2007. In 'normal' circumstances the limitation period would not have expired by the date the proceedings were commenced. The defendant, however, says that the limitation period applicable to this cause of action is two years and therefore expired on 23 August 2009 without possibility of extension. 3The defendant takes this attitude because it says the matter is governed by the Civil Aviation (Air Carriers Liability) Act 1967 (NSW) ("the New South Wales Act"). This Act imports into the law of New South Wales the Civil Aviation (Carriers Liability) Act 1959 (Cth) ("the Commonwealth Act"). 4Sections 33 and 34 of the Commonwealth Act provide for the extinction of a cause of action if not commenced within two years of, in this case, the accident. 5The background is as follows. The plaintiff was born in 1958. In 2007 she was working as a registered nurse in Orange. On 23 August 2007 she flew from Orange to Sydney on a Regional Express Airlines ("Rex") flight, which landed at Sydney Airport. The flight was one to which the New South Wales Act applies (Section 4). 6Upon coming to a halt at the Sydney Domestic Terminal the Rex flight did not have the benefit of an air-bridge to take passengers from the aircraft directly into the terminal. It was necessary for the passengers to travel on a bus owned and operated by the defendant. 7Having left the aircraft the plaintiff, in the course of entering the bus, was allegedly injured as a result of a defect in the steps and perhaps the door of the bus. Her proceedings are her claim for damages arising from her injuries. 8The plaintiff says that her cause of action is governed by the Civil Liability Act 2002 (NSW) Act. 9The defendant says that the Commonwealth Act applies because the plaintiff was injured "in the course of any of the operations of embarking or disembarking " (Section 28). It says that even though it is not the carrier that transported the plaintiff it was the agent of the carrier and therefore entitled to be treated in the same way (Sections 33 and 34). 10The issues that fall to be decided in this Notice of Motion are the following: (a)Was the defendant the agent of the carrier as contemplated by Section 33 of the Commonwealth Act? (b)If there was an agency, was the defendant acting within the scope of that agency when the accident occurred? (c)Was the plaintiff injured "in the course of any of the operations of embarking or disembarking "? 11For purposes of the application the defendant accepts the facts as alleged by the plaintiff in her Statement of Claim. The nature of the application is essentially one requesting summary judgment. I think it worth noting the requirements imposed on such an application. They were concisely summarised by Beazley JA in Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370. Her Honour said the following, commencing at paragraph 11: "11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is "so obviously untenable that it cannot possibly succeed" ; "manifestly groundless" or "would involve useless expense" : see General Steel Industries at 129. 12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602: "... the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried." (Citations omitted)." 12Dealing with the issues set out in paragraph 10 above, the first question concerns the existence of an agency relationship between the defendant and the carrier. The contract purporting to establish the agency is annexed to the affidavit of Luke Todd sworn 9 December 2011. The first point to be noted is that the agreement is between the defendant and Regional Express Holdings Limited. The latter is not however the carrier. The carrier, and more particularly the holder of the Air Operators Certificate, is Regional Express Pty Limited (Exhibit 1). This company is a subsidiary of Regional Express Holdings Limited (Exhibit A). 13The defendant submitted that the distinction was not one of consequence because the definition of " carrier " in Section 41B of the Commonwealth Act could encompass the holding company. 14The defendant also submitted that regardless of the identities of the contracting parties it should be regarded as an agent of the carrier because it was taking the carrier's passengers, on the carrier's behalf, between the aircraft and the terminal. 15I think there is some merit in the latter point made on behalf of the defendant to the extent that an airline can be seen as having a duty to provide safe transfer of passengers from its aircraft to the terminal. While I think the point has merit, however, I do not think it carries with it the certainty required by Griffiths . There is also a contrary argument that the agent of the carrier was the holding company, which in turn contracted with the defendant thereby breaking the chain of agency between the carrier and the defendant. 16In addition to the issue of whether there was an agency at all, the plaintiff submitted that the agreement itself was not an agency agreement. It certainly does not mention the word agency and it was suggested that its terms conveyed a relationship in which the defendant carried full responsibility for its actions. While I generally favour the defendant's position on this argument I do not think I can attribute to that position the certainty necessary to found the application for summary judgment. 17The next point taken by the plaintiff was that even if there was an agency agreement it could not be concluded, at least at this stage, that the bus company was acting within the scope of that agreement. There is nothing to suggest that the bus company was doing anything other than transporting passengers as contemplated. It was submitted however that the agreement contemplated the safe carriage of the passengers and therefore the use of a bus known to be defective fell outside the scope of the contracted carriage. I think this point is also arguable. 18The final issue to be decided on the application is whether or not the plaintiff was injured in the course of disembarkation. I take a different view to that I have expressed above in that I do not think there is any real argument to the contrary. 19The defendant relied on the decision of Meagher JA in Kotsambasis v Singapore Airlines Ltd 148 ALR 498, in particular this passage at page 505: "There does not appear to be any Australian authority dealing with the phrase ``in the course of any of the operations of embarking or disembarking''. It has, however, been considered in the United States. In McCarthy v North West Airlines 56 F 3d 313 (1 Cir 1995 - United States Court of Appeals) at 316-17, Selya J delivering the judgment of the court, said: Given the historical record and the signals that the Supreme Court has sent, most courts have interpreted the terms ``embarking'' and ``disembarking'' to connote a close temporal and spatial relationship with the flight itself. In the process, these courts have found a three-pronged inquiry to be useful. The inquiry focuses on (1) the passenger's activity at the time of injury, (2) his or her whereabouts when injured, and (3) the extent to which the carrier was exercising control at the moment of injury [authorities cited]. We do not view the three factors - activity, location, and control - as separate legs of a stool, but, rather, as forming a single unitary base. In the last analysis, the factors are inextricably intertwined. What is more, the language of Art 17 - which speaks to accidents that occur ``in the course of any of the operations of embarking'' - strongly suggests that there must be a tight tie between an accident and the physical act of entering an aircraft: see Martinez Hernandez , 545 F 2d at 283-4 (concluding that the drafters of the Warsaw Convention understood embarking ``as essentially the physical activity of entering'' an airplane); see also Evangelinos , 550 F 2d at 155. This ``tying'' concept informs location as well as activity. Consequently, for Art 17 to attach, the passenger must not only do something that, at the particular time, constitutes a necessary step in the boarding process, but also must do it in a place not too remote from the location at which he or she is ... to enter the designated aircraft. I accept that location, activity and control are useful in determining whether, on the facts of any given case, an accident can be regarded as having occurred in the process of embarking or disembarking. They may not be the only factors and, in the end, the answer will lie in the facts of the particular case. However, I would stress that regard has to be directed to the intention of the contracting parties to the Convention and that intention was to impose absolute liability in certain, fairly narrow, circumstances. In interpreting the words ``embarking or disembarking'' it should be remembered that the Convention is to be read parsimoniously." 20The plaintiff also relied on the above passage submitting that the question of control was one that might require some argument. It was also pointed out that Meagher JA said that the "Convention is to be read parsimoniously" . 21The plaintiff submitted that because the bus was operated by an entity other than the carrier there could be a real issue as to whether the carrier had control of the passengers. 22In my view whatever control the bus company may have had over the passengers it was always secondary to the obligation of the airline to deliver the passengers to the terminal. This point is emphasised in the leading text on Air Law (Shawcross and Beaumont, Loose leaf Butterworths Lexis Nexis) at paragraph 722 where the following is stated: "So far as disembarking passengers are concerned, there will be art 17 liability if the accident occurs on the apron, or on a bus moving passengers across the apron (especially if it is operated by the carrier). A different result was reached after a door opened on a crowded bus operated by the airport authority and carrying passengers from one terminal building to another in readiness for the next leg of their journey; the danger was not one associated with air travel. The operations of disembarking will be regarded as having been completed once the passengers safely reach a point within the terminal, unless the area and the passengers are found to be still under the control of the carrier." 23The plaintiff in this case was on her way from the aircraft to the terminal. In Girard v American Airlines United States District Court, ED New York, Number 00-CV-4559 (ERK), August 21 2003, the court found that an airline was under a duty to provide safe transport from the terminal to the aircraft. The plaintiff in Girard was injured boarding a bus taking her to the aircraft. The decision emphasises the range of the extent of embarkation and disembarkation to have a start and finish point in the terminal. 24I am therefore of the view that there is no arguable case open to the plaintiff to suggest that she was not injured "in the course of any of the operations of embarking or disembarking" . 25In contemplation of my reaching a conclusion that there was an arguable case on the question of agency the defendant sought an order that this issue be dealt with as a separate question pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005. This course was not sought as an alternative in the Notice of Motion. However, the plaintiff did not oppose the suggestion and I think it has merit. 26Having regard to my decision on the question of disembarkation the only matter that would prevent the defendant succeeding on the limitation issue is that arising from the existence of an agency and, if there was an agency, whether the defendant was acting within the scope of that relationship. I think that having regard to Section 56 of the Rules it would amount to a substantial saving in costs and time if the agency issues could be resolved in advance. If these issues are resolved in the plaintiff's favour the balance of the case would not involve evidence that duplicated material that is likely to be led on the separate question. 27I asked the parties to consider the terms of a separate question and I will consider their recommendation (or resolve any dispute on the point) after delivering these reasons. 28The effect of my decision is that the defendant's application for dismissal of the proceedings has failed. The defendant submitted that the Notice of Motion should stay on foot pending the outcome of the separate question. I disagree. As stated above the Motion did not seek, as an alternative, the hearing of a separate question. The purpose of the Motion has not been achieved. Accordingly it should be dismissed with costs.