Rynne v Lauda-Air Luftfahrt Aktiengelsellschaft
[2003] QDC 4
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- Rynne v Lauda-Air Luftfahrt Aktiengelsellschaft[2003] QDC 4
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Rynne v Lauda-Air Luftfahrt Aktiengelsellschaft[2003] QDC 4
Rynne v Lauda-Air Luftfahrt Aktiengelsellschaft[2003] QDC 4
DISTRICT COURT OF QUEENSLAND
CITATION: | Rynne v. Lauda-Air Luftfahrt Aktiengelsellschaft [2003] QDC 004 |
PARTIES: | ANNE MAGDALENA RYNNE Plaintiff v LAUDA-AIR LUFTFAHRT AKTIENGESELLSCHAFT Defendant |
FILE NO/S: | D5586/2001 |
DIVISION: | Civil |
PROCEEDING: | Application under s. 293 UCPR |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 7th February 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 December 2002 |
JUDGE: | Boulton DCJ |
ORDER: | Application granted. Claim struck out with costs to be assessed. |
CATCHWORDS: | International carriage by air – Warsaw Convention 1929 – Passenger suffering thrombophlebitis – failures to warn, advise or develop strategies not within Article 17 of Convention |
COUNSEL: | Mr Eliadis for the plaintiff Mr A. Meagher S.C. with Mr G. Nell for the defendant |
SOLICITORS: | Jonathan C Whiting and Associates for the plaintiff Blake Dawson Waldron for the defendant |
- [1]This is an application on the part of the defendant to strike out the action pursuant to r.293 of the Uniform Civil Procedure Rules on the grounds that the plaintiff has no real chance of succeeding in these proceedings. It is contended firstly that none of the facts alleged in the statement of claim is capable of amounting to an “accident” within the terms of the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955 (“the Convention”). It is further contended that the abovementioned convention provides an exclusive remedy to passengers injured in the course of international carriage by air and that no recourse to domestic law is available as a remedy to an injured passenger if one does not exist under the terms of the Convention. This latter contention is not disputed. It is advanced by Mr. Eliadis on behalf of the plaintiff at para. 38(b) of his written submissions. That position is further confirmed in Australia by s. 13 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cwth):
“13.Liability in Respect of Injury Subject to the next succeeding section, the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being 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.”
Uniform Civil Procedure Rules r. 293
- [2]Rule 293 of the Uniform Civil Procedure Rules is as follows:
“Summary Judgment for Defendant
293(1)A defendant may, at any time after filing a notice of intention to defend apply to the court under this part for judgment against a plaintiff.
(2)If the court is satisfied –
(a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
(b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- [3]Rules 292 and 293 of the Uniform Civil Procedure Rules have been considered in the Queensland Court of Appeal on two occasions in June 2002. In the former case, Queensland University of Technology v. Project Constructions (Aust) P/L (in liq.) and Anor (2002) QCA 224, Holmes J referred to the earlier decisions in General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 and Fancourt v. Mercantile Credits Limited (1982) 15 CLR 87 before observing:
“Rule 293(2) of the Uniform Civil Procedure Rules enables summary judgment to be given for the defendant if the court is satisfied that the plaintiff has ‘no real prospect of succeeding’ on its claim, and that there is no need for a trial of the claim. That level of satisfaction may not require the meeting of as high a test as that posited by Barwick CK in General Steel: ‘that the case for the plaintiff is so clearly untenable that it cannot possibly succeed’. The more appropriate inquiry is in terms of the Rule itself: that is whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains, without doubt, the case that
‘Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprive of his opportunity for the trial of his case.’ (General Steel at page 130)’.
- [4]In Bernstrom v National Australia Bank Limited 2002) QCA 231 in a decision delivered a few days later, the Court of Appeal arrived at a similar view expressing it a little more fully. In this instance the leading judgment was given by Jones J. with whom McMurdo P and Cullinane J agreed:
“36.This new rule results, not only in a change of terms, but also reflects a change in the philosophy from that embodied in the former rules and in the propositions identified in Fancourt v. Mercantile Credits Ltd. Wilson J considered this new rule in Foodco Management Pty Ltd & Diaz Keinert Pty Ltd v. Gomai Travel Pty Ltd and found guidance in the approach taken by the Court of Appeal in the United Kingdom in Swain v. Hillman. The latter case considered an equivalent rule in the United Kingdom, namely, R. 24.4 of the Civil Procedure Rules. That rule is couched in terms which are almost identical with r. 293(2) of the UCPR ………………………………………………………………………..
37.In
‘… the court now h as a very salutary power, both to be exercised in a claimant’s favour or, where appropriate, in a defendant’s favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a realistic’ as opposed to a ‘fanciful’ prospect of success.’ ………………………………………………………………………..
40.In
Factual Background
- [5]The factual situation as alleged in the claim is in essence as follows. The plaintiff was a passenger on international flights conducted by the defendant between 24 and 25 August 2000, between Vienna and Sydney via Kuala Lumpur. The first leg of the journey was of approximately 11 hours duration. At about 1½ hours into the flight the plaintiff asked a cabin attendant if she could get up to move about but was told she would have to remain seated until the service trolleys passed by, a period of approximately 30 minutes. At about 3 hours into the flight, the plaintiff suffered pain in the calf of her right leg. She got up and walked about. Seemingly on one occasion during this leg of the journey, she told a cabin attendant that her leg was painful but no action was taken. On a couple of occasions during the entire flight – it is not clear on which sections of the journey - she asked cabin staff for water, again without result. When the plane reached Kuala Lumpur she was told that she would have to go to the terminal lounge as the plane was to be cleaned. She continued to suffer pain during the second leg of the journey to Sydney and during a connecting domestic flight to Brisbane. Twice during the Kuala Lumpur-Sydney leg she told cabin staff that she had pain in the leg but again to no avail. Three days later she was diagnosed by her general practitioner with “a superficial thrombosis of a varicose vein with surrounding erythema”. A little over a week later she was diagnosed with “extensive superficial thrombophlebitis involving the long saphenous vein and varicosities relating to that vein in the calf on the right side”.
- [6]Paragraph 23 of the statement of claim alleges:
“23.At no stage during the flight did the defendant:
- (a)Adopt any procedures to advise passengers of the risks of venous thrombosis inherent in long periods of inactivity;
- (b)Adopt any proper procedures to avoid or reduce the risks of venous thrombosis inherent in long periods of inactivity;
- (c)Provide any information to passengers about in-flight health including the risks of venous thrombosis;
- (d)Warn passengers of the risks of venous thrombosis inherent in long periods of inactivity;
- (e)Warn passengers of the risk factors for venous thrombosis inherent in long periods of inactivity;
- (f)Advise passengers of the need to drink large quantities of water during long haul air travel and to exercise as much as possible during long flights;
- (g)Develop appropriate preventative strategies;
- (h)Provide a written presentation in a conspicuous part of the in-flight magazine or other material detailing the possibility of medical problems such as venous thrombosis occurring during the flight;
- (i)Advise passengers with pre-existing medical conditions to consult their medical practitioners before long haul air travel, to determine whether any special risk factors need to be assessed and subsequently managed;
- (j)Recommend preventative procedures to be followed during a flight including the need to avoid dehydration by ensuring an adequate quantity of non-alcoholic fluids; the need to exercise the calf muscles by appropriate manoeuvres and the need to move around the cabin or at the very least get up and down from the cramped sitting position in which travellers spend long periods of time.”
- [7]Paragraph 25 then concludes:
“In the premises the plaintiff suffered “bodily injury” as a result of an “accident” within the meaning of those terms in Article 17 of the Convention, and the defendant is liable for the damage suffered by the plaintiff.”
- [8]I pointed out to Mr. Eliadis who appeared on behalf of the plaintiff that the statement of claim fails to identify the “accident” relied upon by the plaintiff. He informed me that para. 16 of his written submissions addressed the issue:
“16.Lauda-Air has never sought particulars of paragraph 25 of the Statement of Claim. If such request were made the response would be that:
- (a)The “accident” causing the Plaintiff’s bodily injuries comprised the flight conditions and procedures referred to in the statement of claim and particularised in the further and better particulars of the Plaintiff’s statement of claim;
- (b)The “accident” occurred during and/or alternatively for the duration of and/or alternatively in the course of the flight throughout which the Plaintiff was subject to the flight conditions; and
- (c)The “accident” occurred on board the aircraft conducting the flight.”
- [9]The further particulars referred to are summarised by Mr. Eliadis at paras. 12 to 14 inclusive of his written submissions and relate largely to the number, timing and substance of conversations between the plaintiff and cabin staff, the general effect of which I have incorporated into the abovementioned brief summary of facts.
- [10]Mr. Eliadis pointed out that there is no medical evidence before the court. The application proceeds on the basis of certain assumptions which might be vigorously challenged if the matter were to proceed to trial.
- [11]Mr. Meagher, who appeared on behalf of the defendant, pointed out, and it is not in dispute, that the carriage of the plaintiff performed by the defendant, which is the subject of the proceedings, was carriage by air to which the Warsaw Convention as amended applies as part of the Municipal Law of Australia. The English version of the text of that Convention is Schedule 2 to the Civil Aviation (Carriers’ Liability) Act, 1959 (Cth). Subsection 11(1) of that Act provides that the provisions of the Convention have the force of law in Australia in relation to any carriage by air to which it applies irrespective of the nationality of the aircraft performing that carriage. By its terms the Convention applies to carriage by air in which the place of departure and the place of destination are situated within the territories of two “high contracting parties”. It is also common ground that Austria and Australia were, at the relevant times, high contracting parties to the Warsaw Convention as amended.
- [12]It can further be assumed for the purpose of this application:
- (i)That the plaintiff suffered what was initially a superficial thrombosis of a varicose vein in the right calf at the time suggested;
- (ii)That there were no preventative strategies adopted, warnings given or treatment offered by the defendant to the plaintiff before or during the flight;
- (iii)That prior to the flight the defendant knew or ought to have known of an increased risk of venous thrombosis to passengers beyond that which existed in everyday life;
- (iv)That some or all of the failures of the defendant alleged in para. 23 of the statement of claim caused or contributed to the abovementioned injury or to its subsequent aggravation;
- (v)That the aircraft and its performance during the relevant flights conformed to proper standards and that there were no incidents during the flights which affected the normal cabin environment.
- [13]Article 17 of the Convention provides insofar as it is relevant to the present case:
“The carrier is liable for damage sustained in the event of … 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.”
- [14]Articles. 18 and 19 of the Convention go on to refer to a carriers’ liability for damages for baggage and cargo and in respect of delay of passengers’ baggage or cargo. Articles 20 and 21 refer to some limited defences available to the carrier. Article 22 relates to financial limits of a carrier’s liability. Article 23 prohibits a carrier from contracting on terms concerning liability which are more favourable to the carrier than those provided for by the Convention. Articles 24 and 25 concern conditions and limits to actions for damages and for the absence of such limits in certain circumstances.
- [15]The present case concerns the interpretation to be given to the term “accident” where it appears in article 17 of the Convention. Mr. Eliadis contends for a liberal interpretation. At para. 40 of his written submissions he says:
“40.In that context, it would be an irrational approach to Article 17, and contrary to its purpose, to give the word ‘accident’ such a narrow and technical construction that it was unable to cover at least the circumstances giving rise to the very causes of action (such as common law negligence and like causes in continental jurisprudence) which had pre-dated the Convention and which, in the absence of the Convention, would remain available. The term ‘accident’, in short, ought to be construed as a broad concept, easier to satisfy than the technical common law rules of negligence and capable of covering at least the same circumstances.”
- [16]While it is no doubt correct, as Mr Eliadis submits, that an Australian court would not “slavishly follow” decisions of United States courts, it is not the case that Australian courts should superimpose domestic law on an international convention. In this respect some assistance can be derived from the decision of the High Court of Australia in Shipping Corporation of India Limited v. Gamlen Chemical Co (Australasia) Pty Ltd (1980) 147 CLR 142 at 159 which concerned the construction of international treaties, although in this instance with respect to the Hague Rules on the sea carriage of goods. In that case Mason and Wilson JJ, with whom Gibbs and Aitkin JJ agreed, said:
“40.It has been recognised that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, ‘in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation’ to repeat the words of Lord Wilberforce in James Buchanan and Co Ltd v. Babco Forwarding and Shipping (UK) Ltd [1978] AC 141 at 152; see also Stag Line Ltd v. Foscolo Mango and Co Ltd [1932] AC 328 at 350”.
- [17]Undoubtedly the leading decision on the construction of the term “accident” which is found in Article 17 of the Convention is that the United States Supreme Court in Air France v. Saks 470 U.S. 392 (1985). In a unanimous decision of the court it was found at pp. 405, 406 that the term “accident” when used in Article 17, referred to “an unexpected or unusual event or happening that is external to the passenger” and that “… when the injury indisputably results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft, it has not been caused by an accident and Article 17 of the Warsaw Convention cannot apply.”
- [18]The decision in Air France v. Saks was applied in the decision of the UK Court of Appeal in Chaudhari v. British Airways PLC dated 16 April 1997. Leggatt LJ, with whom Thorpe and Mummery LJJ agreed, observed:
“40.I consider that the reference to ‘the passengers’ own internal reaction’ is probably to be explained by the nature of the injuries sustained by the particular passenger with whom the court was concerned in Air France v. Saks. In principle, ‘accident’ is not to be construed as including any injuries caused by the passenger’s particular personal or peculiar reaction to the normal operation of the aircraft. Upon this footing, what befell Mr. Chaudhari was not caused by any unexpected or unusual event external to him, but by his own personal, particular or peculiar reaction to the normal operation, of the aircraft.
- [19]The abovementioned decision along with the decision in Saks has obvious application to one aspect of the present case. At the time some three hours into the Vienna/Kuala Lumpur flight, when the plaintiff experienced pain in the calf of the right leg, the flight had been entirely unremarkable. The only obstruction to her leaving her seat during this three hour period was the presence of service trolleys for approximately a period of half an hour. Such service trolleys and such a temporary obstruction are a routine feature of air travel. There was nothing to prevent the plaintiff during the remainder of the three hour period getting up to stretch her legs in the course perhaps of going to the toilet. Furthermore, she had a personal medical condition of varicose veins of which the defendant could not be expected to know on the case advanced by the plaintiff. It was this condition which was aggravated by the level of immobility which is part and parcel of air travel.
- [20]The remaining matters alleged in para. 23 of the statement of claim involve failures of one kind or another – failure to devise or implement strategies, failure to advise or warn, failure to respond to requests for water or to complaints of pain. It falls to be determined whether such inaction is incapable of amounting to an “unexpected or unusual event or happening that is external to the passenger”.
- [21]This was the view taken by Knight DCJ in Van Luin v. KLM Airlines 10377/01 NSW Dist. Ct. That was a striking out application pursuant to Part 11A r.3 of the New South Wales District Court Rules. The plaintiff sought leave to add particulars of accident within the meaning of Article 17 of the Warsaw Convention as amended at The Hague:
“1.The crew of the relevant aircraft failed to advise the plaintiff of the necessity to regularly move around the cabin.
2.The crew of the relevant aircraft failed to advise the plaintiff that she should drink extra fluid.”
- [22]At para. 34 of his unreported decision, his Honour considered that in the absence of contrary Australian authority a District Court judge sitting in New South Wales was bound to follow a decision of the Court of Appeal in England. That was certainly the effect of earlier cases: cf Commissioner of Stamp Duties v. Pearse 84 CLR 51 at 63, a decision of the Privy Council, and Public Transport Commissioner v Murray More 132 CLR 336 at 341, a decision of the High Court of Australia. This view has been relaxed: cf Cook v Cook 162 CLR 376 at 390, such decisions now not having binding effect but being seen as useful to the degree of their persuasiveness. In the absence of binding Australian authority, decisions of the higher courts of the UK and the United States on the construction of an international convention to which those countries along with Australia are parties have persuasive effect.
- [23]In Van Luin His Honour considered the alleged failures to advise the plaintiff and at para. 50 of his unreported judgment said:
“50.However, it seems to me, applying Air France v. Saks, that the failure of the crews of the relevant aircraft to advise the plaintiff of the need to regularly move around the cabin and the failure of such crews to advise the plaintiff to drink extra fluid do not constitute either individually or collectively an unexpected or unusual event or happening external to the plaintiff and that therefore such failures either individually or collectively do not constitute an accident within the meaning of Article 17 of the Convention.”
- [24]A not dissimilar case in the Ontario Superior Court of Justice was McDonald v. Korean Air and China Travel (Canada) Inc No. 01-B30373 dated 18 September 2002. This was also a striking out application made on behalf of the defendants. The plaintiff had alleged that the defendants failed to warn him of the risk of DVT on long flights and failed to take measures to reduce the risk. Hermiston J observed at para. 17 of his judgment:
“[17]I find that in not advising passengers of the risk they assume, an airline may be negligent, but this negligence is not in itself an accident within the meaning of Article 17 in the sense that the DVT sustained by the plaintiff is not linked to an unusual and unexpected event external to him as a passenger.”
- [25]In Povey v Civil Aviation Safety Authority and Ors [02] VSC 580 (20 December 2002) Bongiorno J dealt with a case of DVT in the Supreme Court in Melbourne. This also was a striking out application which was made pursuant to Order 23.01 and Order 23.02 of the Supreme Court (General Civil Procedure) Rules of 1996. It is worth noting that the form of those rules, while not identical, bears some resemblance to the former Order 22 rr. 31 and 32 of the Queensland Supreme Court Rules which were replaced by r. 292 and r. 293 of the Uniform Civil Procedure Rules. The flight conditions said to constitute the “accident” which caused the DVT to the plaintiff were as follows:
“(a)A confined and restricted physical environment in which the plaintiff was immobilised for long periods of time in a seated position;
(b)Impediments to the plaintiff getting out of his seat during the flights;
(c)The offer and supply of alcoholic beverages, tea and coffee to the plaintiff during the flights;
(d)Discouraging the plaintiff from moving around the cabin of the aircraft and encouraging the plaintiff to remain seated during the flights;
(e)The plaintiff not being provided with any information or warning about the risk of DVT or information about the measures which the plaintiff could take to reduce such risk.”
- [26]His Honour reviewed the authorities and in particular the decision of the US Supreme Court in Saks. At para. 34 of his judgment, he concludes:
“The plaintiff submits that Saks should be given no more than ‘considerable weight’, being the phrase used by the US Supreme Court itself in the case to describe the deference which it was prepared to accord to decisions of ‘our sister signatories’. It goes on to argue that it ought not to be followed in this case in favour of a more liberal definition of ‘accident’ derived from what he submits is the natural meaning of the word in its context. Although I reject this submission having regard to the decision which I have reached on these applications it is not strictly necessary for me to consider the authority of Saks in this jurisdiction further. On any reasonable definition of ‘accident’ the plaintiff’s case as presently particularised fails.”
- [27]However, his Honour went on to consider the case of Hussain v Olympic Airways 116 Fsupp 2d(NDCal 2000) which involved a refusal on the part of a flight attendant to provide a seat for a severely asthmatic passenger away from the smoking section of the aircraft. His Honour gave the plaintiff leave to file and serve further particulars of the accident alleged. I will return to this aspect of His Honour’s decision later in this judgment.
- [28]The final decision to which I wish to refer is that of Nelson J in the Queens Bench Division of the High Court, the Deep Vein Thrombosis and Air Travel Group Litigation, handed down on 20 December 2002. That was a case which was dealt with according to an agreed specimen matrix. His Honour set out the relevant parts of that matrix at para. 5 of his unreported judgment. It will be seen to be virtually identical to the basis upon which this present case has been argued, save perhaps for the circumstance that the plaintiff in the present application had a pre-existing condition viz, varicose veins to the right calf which were the point of injury. His Honour proceeded to deal with three issues, the first of which concerned “whether the agreed facts in the specimen matrix disclose an ‘accident’ under Article 17 …”. The second concerned the exclusivity of a remedy under the Convention, a point which is not in issue here. The third concerned European community issues which are not relevant to this application. His Honour dealt extensively with the principles of interpretation to be applied to international conventions and to the history of the Convention itself. At paras. 44 to 54 inclusive, he set out in considerable detail the claimants’ submissions which despite being more amply framed are not dissimilar from those advanced by Mr. Eliadis in the present case. At paras. 55 to 64 he set out the defendant’s submissions before embarking upon an exhaustive consideration of the authorities, including the decision in Hussain v. Olympic Airways 116 F.supp (2)(d) 1121 (2000) which was referred to by Bongiorno J and concludes at para. 105:
“105.I conclude that Article 17 does not provide a fault-based theory of liability which imposes liability upon the carrier where injury or death is caused by its culpable act or omissions. Article 17 imposes a form of strict liability under which the passenger is relieved of the burden of proving fault. Whilst fault may co-incidentally established in the course of demonstrating an accident, it is not relevant in itself to that proof.”
- [29]Finally, a para. 122 he concludes:
“I conclude that the agreed factual matrix does not disclose an ‘accident’ under Article 17. To find that a defendant is not liable where on assumed facts he has ignored known risks, is unattractive. It offends against the common law principle of finding a remedy where there is wrong. But this is not the application of the common law. It is the application of an international convention in which a balance was struck between the interests of the carriers and the passenger with the conditions for liability being established, and defences proved on the basis of uniformity and certainty to the intended benefit of passengers and carriers worldwide.”
- [30]With respect, I find the analysis of Nelson J to be absolutely compelling. His findings at this stage are not dissimilar to those of Bongiorno J referred to at para. 26 above. In its present form the action has no real chance of success and should be struck out. Mr Eliadis submits that in such an eventuality the plaintiff should be given an opportunity to amend her pleading. This was the ultimate result reached by Bongiorno J in Povey on the basis of Victorian Supreme Court Rules which are somewhat narrower than the current Queensland Rules. However, Bongiorno J’s legal reasoning also departs radically from that of Nelson J at this point. At para. 40 of his judgment he observes:
“40. Part of the underlying basis of the no-fault system provided for by the Convention is the peculiar position of reliance and vulnerability of passengers on international air flights, the airlines’ control over the passengers’ environment and passengers’ confinement in that environment. The expectations which passengers are entitled to have in such a situation may well include warnings of known risks and advice as to precautionary steps to avoid them. This arises both because warnings of at least some known risks are routinely given by airlines and because of that peculiar situation of reliance.”
- [31]It involves a huge leap of reasoning to have regard to the common practice of airlines in explaining safety features of an aircraft in the event of an emergency to infer a duty or obligation to advise passengers of potential medical concerns that might arise during air travel. Such medical issues might be expected to be complex and numerous and might also involve issues peculiar to an individual e.g. the varicose veins suffered by the plaintiff in the present case. It is undoubtedly true that the issues referred to above by Bongiorno J resulted in airlines being fastened with strict liability under the Convention. However, in his detailed analysis Nelson J expressly rejects the notion that the Convention can be re-modelled to reflect modern risk allocation theory. At para. 111 of his judgment he says:
“I reject the claimants’ contention that the Warsaw Convention was intended to apportion or re-apportion risks of air travel based upon the carrier’s ability to address or insure against risks associated with air travel better than the passenger. This was not the balance of risk which was struck as can be seen from the authorities and in particular Morris in the House of Lords.”
- [32]He goes on at para. 120 to deal with culpable acts or omissions:
“120. The only basis upon which liability could arise in such circumstances would be for a court to hold that a culpable act or omission is always an unusual or unexpected event or happening, so that wherever negligence is established, or known risks are ignored, an “accident” must have occurred. But that ignores the fact that the culpable act or omission cannot necessarily be described as an unusual or unexpected event or happening in itself”.
- [33]This is in contrast with the view taken by Bongiorno J where he adopts a modern risks allocation approach in granting leave to amend the pleadings somewhat analogous to that which has been used at common law in actions against manufacturers of dangerous products. That approach is clearly rejected by Nelson J.
- [34]This is not a case where the factual matrix discloses matters which might be pleaded differently in order to amend the pleadings successfully. There is no real as opposed to a fanciful prospect of this action succeeding. I therefore allow the application and order that the action be struck out with costs to be assessed.