Disembark this way – Court of Appeal rules on airport trip case

21 July 2021

Case description

  • An injured plaintiff brought a negligence claim against Qantas Airways Limited (Qantas), the City of Karratha (Karratha) and Skystar Airport Services Pty Ltd (Skystar), (the defendants), following a trip and fall while crossing the tarmac to enter a terminal building. The defendants brought contribution proceedings and/or counterclaims against one another. The WA Court of Appeal dismissed appeals brought by the plaintiff and Karratha and upheld a notice of contention brought by Qantas.

The background

On 4 November 2012, the plaintiff was a passenger on a Qantas flight from Perth to Karratha. The plaintiff disembarked from the rear stairs and followed a path across the tarmac to the terminal, the path being designated by bunting with flags strung between wheelie bins. As the plaintiff approached a 30-foot lighting tower his left foot struck the corner of a raised concrete plinth, causing him to trip and fall. The plaintiff commenced proceedings against Qantas (as the carrier operating the flight), Karratha (as the owner and occupier of Karratha airport) and Skystar (who contracted with Qantas to provide the ground handling services at Karratha Airport, and was responsible for the marshalling of passengers disembarking to the terminal building).

District Court Decision

During the trial, judgment was entered by consent for the plaintiff against Qantas and for Qantas in its third-party action against Skystar for 50% of Qantas’ liability to the plaintiff.

The court found that Karratha was negligent by failing to paint the plinth or otherwise mark it so that it was clearly distinguishable, and by failing to erect balustrading, barricades, flagging or other equipment around the plinth so as to warn persons using the pathway of its presence and eliminate the hazard.

The court also found that Skystar was negligent by failing to warn the plaintiff of the presence of the plinth (which was held not to be an obvious risk), directing the plaintiff on a course in close proximity to the plinth, failing to place the flagging system in such a manner so as to avoid exposing the corner of the plinth, and failing to supervise and guide the plaintiff so as to keep him clear of the plinth. The court apportioned liability between Karratha and Skystar 50:50.

The court was satisfied that Skystar was acting as an “agent” of Qantas in performing services in furtherance of the contract of carriage (being the function required of Qantas to deliver passengers from the aircraft to the terminal). On this basis, the court found that the plaintiff’s claim against Skystar was extinguished due to a 2-year limitation period on actions against “agents” of carriers pursuant to section 33 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (Carriers’ Act).

The court dismissed Karratha’s claim against Skystar for breach of contract by failing to insure pursuant to the lease for office space at the airport terminal. The court concluded that Skystar’s promise to insure under the lease did not require Skystar to effect insurance covering Karratha for its own negligence.

The court found that there was a term implied into the Airport Agreement between Karratha and Qantas to the effect that Karratha would provide safe access for passengers to disembark aircraft and access the terminal building at the Karratha Airport, and that Karratha breached that term by the exposed plinth creating a tripping hazard. Qantas was entitled to damages for breach of the implied term, to be assessed.

Issues before the Court of Appeal

The plaintiff and Karratha filed separate appeals. Qantas filed a notice of contention in response to Karratha’s appeal. The issues before the Court of Appeal were as follows:

  • Whether Skystar was an “agent” of Qantas pursuant to section 33 of the Carriers’ Act such that the plaintiff’s claim against Skystar was extinguished;
  • Whether Karratha breached its duty of care;
  • Whether a 50:50 apportionment between Skystar and Karratha was appropriate;
  • Whether Skystar breached the contract with Karratha by failing to take out insurance; and
  • Whether Karratha breached an implied term (in law or fact) of the contract with Qantas.

Court of Appeal Decision

The Court of Appeal upheld the District Court’s decision that Skystar, as an independent contractor, was an “agent” of Qantas for the purpose of section 33 of the Carriers’ Act on the basis that it was engaged by Qantas as an independent contractor to marshal passengers from the aircraft to the terminal in the performance of a function of Qantas under the contract of carriage. The plaintiff’s claim against Skystar was therefore extinguished.

Further, the Court of Appeal upheld the District Court’s decision that Karratha breached its duty of care. It was reasonably foreseeable that disembarking passengers could trip and fall over the plinth (unless it was cordoned off or otherwise made distinguishable to passengers disembarking). Karratha knew it was not always cordoned off and it knew that it had left the plinth in a state indistinguishable from the pathway since works in June 2012.

As the plaintiff’s claim against Skystar was extinguished there was no need for the Court of Appeal to consider the issue of apportionment between Skystar and Karratha.

The Court of Appeal upheld the District Court’s decision that Skystar did not breach the terms of the lease for office space at the airport terminal with Karratha by failing to take out insurance. The obligation under the contract was for Skystar to effect public liability insurance for the ‘respective rights and interests’ of Karratha and Skystar. Karratha had no right or interest pursuant to the contract concerning its position as occupier of the airport generally and, in particular, the tarmac and the area surrounding the plinth. The Court of Appeal considered there was nothing in the contract connecting the public liability cover with Karratha’s liability as occupier of the airport more generally.

The Court of Appeal found that the District Court erred in finding that there was a safe access implied term in the Airport Agreement, and that this was breached by Karratha. Rather, the Court of Appeal found that the Airport Agreement contained a Watson-type implied term in law and that the implied term was breached by Karratha (see Watson v George (1953) 89 CLR 409). This Watson-type implied term was that Karratha impliedly warranted to Qantas that the land (including the concrete plinth) was and would remain during the currency of the Airport Agreement as safe as reasonable care and skill on the part of anyone could make it for the purpose of its use as an airport, subject to the limitation that Karratha was not responsible for defects which could not have been discovered by reasonable care and skill on the part of any person concerned with the construction, alteration, repair or maintenance of the land.

Implications for you

This decision reinforces the need for occupiers to take reasonable measures to eliminate the risk of people tripping where there is a risk that people would not ordinarily expect. It also demonstrates that the provisions of the Carriers’ Act will extend to independent contractors in certain situations and are not confined to only entities authorised by a principal to create legal relations between the principal and third parties, and for whose negligent acts or omissions a principal is liable via the doctrine of vicarious liability. This is critical as the 2-year limitation period will apply to an entity covered under the Carriers’ Act. It is unclear whether “agent” extends to subcontractors as the issue was not considered by the Court of Appeal.

In relation to obligations to take out insurance for another party, this decision highlights the importance of reading the contract as a whole when interpreting insurance clauses.

Finally, this decision demonstrates that the Occupiers’ Liability Act 1985 (WA) does not preclude a Watson-type implied term and that this type of term can be implied in contracts involving a corporation rather than an individual.

Garnett v Qantas Airways Ltd [2021] WASCA 110

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