Supreme Court New South Wales Medium Neutral Citation: Hana Farid v Etihad Airways PJSC of Abu Dhabi United, United Arab Emirates t/as Etihad Airways [2013] NSWSC 591 Hearing dates: 20 June 2012 Decision date: 28 March 2013 Jurisdiction: Common Law Before: Hidden J Decision: Motion dismissed Catchwords: CIVIL PROCEDURE - separate trial of issue - whether order for separate trial should be set aside because of further evidence Legislation Cited: - Civil Aviation (Carriers' Liability) Act 1959 Cases Cited: - Tepko Pty Ltd v Water Board (2001) 206 CLR 1 - Air Link Pty Ltd v Patterson [2009] NSWCA 251, 75 NSWLR 354 - Tyrrell v the Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 Category: Interlocutory applications Parties: Hana Farid (plaintiff) Etihad Airways PJSC of Abu Dhabi United, United Arab Emirates t/as Etihad Airways (defendant) Representation: Counsel: G Miller QC with C Thompson (plaintiff) T Brennan (defendant) Solicitors: Robert Patrick Higgins by his Partner - Carroll & O'Dea Lawyers (plaintiff) Mr Michael Wytcherley - Norton White Lawyers (defendant) File Number(s): 2009/297603 Judgment 1These are proceedings for damages for personal injury suffered by the plaintiff, Hana Farid, on 31 October 2007 while she was boarding an aircraft of the defendant, Etihad Airways, in Abu Dhabi for a flight to Cairo. She tripped and fell while entering the aircraft from a temporary mobile stairway. In an evidentiary statement of 12 November 2009, she said: "I had walked up onto the platform at the top of the staircase and then attempted to step from the platform into the plane. I can't remember precisely what happened, but as I stepped from the platform into the plane, my right leg twisted and I fell and landed on my backside on the floor of the aircraft." 2The Civil Aviation (Carriers' Liability) Act 1959 gives effect to the Montreal No 4 Convention, which covers the recovery of damages against an airline. Relevantly for present purposes, Art 17 of the Convention provides: Article 17 - Death and Injury of Passengers - Damage to Baggage 1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. ... Liability is not contingent on proof of negligence. However, damages are subject to a cap. 3On 15 December 2010 Davies J ordered the trial of a separate question whether the plaintiff's injuries were caused by an "accident", within the meaning of that article. In his judgment his Honour referred at [11] to authority to the effect that an accident "is something separate from, and the cause of, the injury that a person sustains", that is, "something external to the passenger which impacted on them, causing injury ... ." 4His Honour continued at [12]: "The result is said by the defendant to be that if the plaintiff merely slipped or twisted her leg there would be no accident within the meaning of the Convention; if, on the other hand, her fall was occasioned by something external to her, for example, the movement of a stairway or something else, then it may be that there was an accident in the circumstances." 5His Honour noted that if there was no accident in that sense, that would be the end of the matter. On the other hand, if there were an accident the only issue would be the assessment of damages (which might be settled). He described the issue as "a very confined one", observing that the evidentiary statement and pleadings filed by the plaintiff provided "fairly consistent descriptions" of what had happened, although he added that it may be necessary to take evidence from the plaintiff and, perhaps, from those who were with her and anyone else who was "able to throw light on the matter": [12] - [13]. 6In deciding that a separate trial of the issue was appropriate, his Honour referred at [8] to authority that it should only be in a clear case that that course is taken, citing the familiar passage from the judgment of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 170. 7At the time he gave judgment, his Honour also gave directions as to the filing of evidence. On 18 February 2011 affidavits of the plaintiff and her husband, who had been with her at the relevant time, were filed. In her affidavit the plaintiff said that there were a lot of passengers boarding the aircraft at the time she fell. There was a gap between the platform at the top of the stairs and the step into the aircraft, and she fell when she felt someone push her from behind as she was trying to step into the aircraft from the platform. The affidavit of her husband, Abbot Farid, provided some support for that account. He said that when he saw the plaintiff's upper body twist as she fell, he recalled that there was "someone standing close to her right shoulder." 8Also filed was an affidavit of the plaintiff's son, Habib Farid, affirmed on 22 February 2011. He deposed that he was in Sydney at the time of the incident, and that he spoke by phone to his parents after they arrived in Cairo. Both of them told him about the incident and, in particular, his mother said that as she was stepping into the aircraft she was "pushed and fell." 9He said that on 15 November 2007, about two weeks after the incident, he telephoned the office of the defendant in Sydney seeking a report of it. He was referred to Ms Maureen Boyd, who asked him to send her details of the incident by email. He said that he did so twice that same day but neither email reached Ms Boyd. On each occasion he received an electronic communication to the effect that mailbox access had been refused. He went on to say that he discovered the following day that there was a mistake in the email address he had used. He said that he sent two further emails to the correct address on the 16 November and again on 20 November, but he received no reply. 10As the plaintiff has not previously said that she had been pushed, the possibility of recent invention arose but, on the face of it, her son's emails tendered to rebut that inference. In April 2011 the defendant sought an order for forensic examination of the computer or computers used to send those communications. In August 2011, by consent, Davies J made an order for the production of the hard disk of the computer which had been used for the purpose of its analysis by experts nominated by each party and the production of a joint report. The effect of that report was that the emails were sent on the days and at the times set out in Habib Farid's affidavit. 11It is in the light of these developments that the plaintiff filed the motion before me, seeking that the order of Davies J be vacated. Mr Miller QC, who appeared with Mr Thompson for the plaintiff, submitted that his Honour had directed a separate trial because, as the evidence then stood, the question whether the plaintiff's injuries were caused by an accident in the relevant sense was a narrow one, capable of determination "as a matter of legal construction." It would turn upon an examination of authorities in this country and elsewhere and, in particular, might require re-examination of the decision of the Court of Appeal in Air Link Pty Ltd v Patterson [2009] NSWCA 251, 75 NSWLR 354. 12The evidence as it now stands, he argued, is capable of establishing that there was an accident, as the push the plaintiff felt would amount to an unexpected event, external to her, which impacted upon her. The issue would be whether the evidence of that push should be accepted and on that matter, Mr Miller anticipated, there would be a challenge to the credibility of the plaintiff, her husband and her son. He noted that they are also key witnesses on the question of damages, and their credibility might also be under scrutiny on that issue. 13In these circumstances Mr Miller questioned the utility of a separate trial of the issue of liability. He said that the question of damages would only take a further two days and argued that the matter should be "over and done with all at once." He foreshadowed that, if the plaintiff were successful on liability, the defendant would seek to challenge Air Link v Patterson in the High Court, and that the plaintiff would have to wait for that process to be completed before the issue of her damages could be considered. 14Mr Miller referred to Tyrrell v the Owners Corporation Strata Scheme 40022 [2007] NSWCA 8, in which Spigelman CJ at [12] - [16] noted the difficulties that may attend the separate trial of an issue which raises a question of mixed fact and law. However, I do not find those observations to be helpful in resolving the present case. His Honour was there concerned with the separate trial of an issue bearing upon liability but not of itself conclusive of it. In this case resolution of the question whether the plaintiff's injuries were the result of an accident would determine liability one way or another. 15Counsel for the defendant, Mr Brennan, denied that recent invention would be an issue, saying that it would not be suggested that the affidavits of the plaintiff and her husband about what happened in Abu Dhabi were "in any way false." He also said that there would be no challenge to Air Link v Patterson. 16Mr Brennan took issue with the proposition that Davies J ordered a separate trial on the basis that the determination whether the plaintiff's injuries were the result of an accident was essentially a matter of law. He had also appeared before his Honour, and in his submissions he had said that it could be concluded that as a matter of law there was no accident, but added that there may be further evidence describing in more detail the circumstances of the fall. The plaintiff had said at the outset that she could not remember precisely what had happened, and in his reasons Davies J had recognised that it might be necessary to receive evidence from the plaintiff and other witnesses to the incident. 17All that has happened since, Mr Brennan submitted, is that the factual matrix of the separate question has changed. He did not concede that evidence of the push was conclusive of the issue. Nevertheless, he argued that the enquiry remains a limited one, involving the application of the principles to the facts as found, as it always was. Accordingly, he said, there was no material change in the proceedings which would warrant revisiting the order of Davies J. 18In my view, Mr Brennan's submissions should be accepted. Assuming the matter is conducted in the way he has foreshadowed, the landscape has not changed relevantly since the decision of Davies J. The separate determination of liability remains a useful and beneficial exercise. 19I must emphasise, however, that this view is founded upon Mr Brennan's assurance that it would not be suggested that the accounts of the plaintiff and her husband are false in any material respect. Mr Miller expressed his concern about this approach, noting that the defendant had made no formal admission to that effect. He argued that what Mr Brennan had said was no more than his expression of how he intended to conduct the matter and that, if for some reason Mr Brennan did not remain in it, other counsel might take a different view. As he put it, there was "no admission binding upon my learned friend's solicitor or any successor in title." 20I would not characterise what Mr Brennan said in that way. It appears to me to have been a considered statement of the approach the defendant would take to the matter, intended to be binding upon his client. If that were not so, my decision would be different. Against the possibility that the defendant's position changes in that respect, I reserve liberty to the parties to apply. 21The plaintiff's motion is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2013