DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91
Full Court of the Federal Court of Australia
Facts
From [2] and onwards:
- The first instance proceeding arises out of a series of events at Hamad International Airport in Doha, Qatar in October 2020.
- The five applicants for leave to appeal – whom I refer to as appellants for convenience – are women who boarded a Qatar Airways flight bound for Sydney from Doha. After all passengers had boarded and after the aircraft had been waiting for several hours at the gate, and had then been pushed back from the gate, only to return to it, they allege that all women passengers were directed to leave the aircraft. The direction was given by airline crew and by armed and unarmed officials at least some of whom were police officers from the Qatar Ministry of Interior (MOI).
- The appellants allege that they were instructed to go back along the aerobridge and into the departure area of the airport. They were then directed to an ambulance parked on the tarmac near the aircraft where four of them (not the fifth appellant) were instructed to enter an ambulance. In the ambulance they allege their bodies were inspected or invasively examined without their consent, some to a greater extent than others. The examinations of the first, third and fourth appellants are said to have included unlawful physical contact by a woman (who appeared to them to be a nurse) in the ambulance. The inspection of the second appellant is alleged to have been visual in nature. The women were then directed to return to the aircraft.
- The instructions to them, and the examination of the women, were said to have occurred because of a report that a newborn baby had been found in a rubbish bin in an airport bathroom. Qatari officials began an intensive and wide-ranging search for the woman who had given birth to the child. It was common ground that what happened to the five appellants was part of that exercise by Qatari officials.
Issue(s)
The case was an appeal from summary judgment in favour of the defendants. At [57], the holding of the primary judge is identified:
- The primary judge concluded that the relevant “accident” was the invasive examinations of the first, third and fourth appellants (PJ [57]). His Honour held that the invasive examinations did not take place “on board the aircraft” and that the appellants do not have reasonable prospects of establishing that they took place “in the course of any of the operations of embarking or disembarking” the aircraft (PJ [59]). His Honour reasoned that the “operations of disembarking” would extend to the means by which a passenger was conveyed from an aircraft to an airport terminal (PJ [61]), but that it is not reasonably arguable that “the process of disembarking would extend to an invasive examination conducted by a nurse in an ambulance on the tarmac at the direction of officers of a State instrumentality, as part of a police operation, to determine the identity of the mother of an abandoned newborn baby” (PJ [62]). His Honour held that the liability of an airline in Art 17 “cannot extend to an invasive examination undertaken by a State enforcement authority in an ambulance” (PJ [63]).
The issue was whether the accident as described occurred within the operations of embarking or disembarking.
Discussion
As follows, from [68], as per Stewart J:
- It is plain from those authorities that whether the relevant “accident” occurred within the “course of any of the operations of embarking or disembarking” is an evaluative judgement involving questions of fact and degree. It is particularly illustrated by Day, referred to above, and Evangelinos v Trans World Airlines Inc 550 F3d 152 (3d Circ 1977), which adopted a three-pronged inquiry. The decisions are of different Circuit Courts of the United States Court of Appeals concerning the same “accident”. On 5 August 1973, the transit lounge of the Hellinikon Airport in Athens, Greece was the scene of a terrorist attack on the passengers of a particular flight bound for New York. At the time of the attack, the passengers had already completed all of the steps necessary to boarding the aircraft except undergoing physical and handbag searches and physically proceeding from the search area to the aircraft some 250m away. Immediately after the flight was announced, the passengers were instructed to form two lines in front of the departure gate. While all but a handful of passengers were standing in those lines awaiting the search procedure, two terrorists fired bursts of automatic weapons fire in the general direction of the passenger queues and hurled hand grenades that exploded in the vicinity of the passengers. Despite the airline having no control over the actions of the terrorists who caused the injuries, both Courts held that the “accident” occurred within the scope of Art 17 of the Warsaw Convention.
- The point is that, contrary to the submission of Qatar Airways, the authorities are not “settled” – three or four factor inquiries are used, and in any event a range of other factors may be relevant in any particular case. His Honour did not purport to determine or express a definitive test. Indeed, it would have been wrong to do so. There are a variety of facts which may be relevant to the range of factors that must be considered. Some of them include assessments of degree, for example questions of control, both of the passengers and the “accident”, restrictions on the passengers’ movement and proximity of time and space.
- I respectfully consider that the primary judge erred in summarily dismissing the Art 17 claims. The matters of fact and degree referred to above are not apt to be decided at the stage of summary dismissal. Further, his Honour placed significant emphasis on the security operation being under the control of the MOI, but as Day and Evangelinos illustrate, the relevant events can occur some time and distance prior to boarding and beyond the control of not only the airline but of any authorities but still be within the scope of Art 17 – in those cases, the airline obviously had no control over the terrorists and its “control” over the passengers was only that it had called on the passengers to queue at the departure gate. It is also not of any significance that the “nurse” who in the most immediate sense caused the “bodily injury” was not under the control of the airline – the question is whether that “accident” occurred in the course of any of the operations of embarking or disembarking.
- As the primary judge reasoned in relation to the exclusivity principle, the appellants had passed through passport control and pre-boarding security, their luggage had been loaded and remained on the aircraft, they had not reached their intended destination, nor had they passed back through passport control (at PJ [80]). Other considerations can be added to those. The passengers had surrendered themselves to the authority and control of the airline – it can be inferred that once they went through the boarding gate they were under the control of the airline and subject to the directions of its staff. The deplaning as directed by the flight crew apparently under orders of the MOI was not the intended or ordinary disembarkation of the flight and it did not involve the appellants passing back through the boarding gate and towards the baggage claim; rather they remained, in effect, in space and time, between the boarding gate on departure and the arrival gate in Sydney. Indeed, they deplaned only with their passports and possibly their phones on the clear expectation that they would be returning again shortly, even leaving their spouses and other travel companions behind. At least one of them was still in her airline issue pyjamas. It was, in effect, a condition of their re-boarding that they submit themselves to what occurred to them in the ambulance.
- In those circumstances, there is no sufficiently high degree of certainty that what occurred to the passengers in the ambulance could not be concluded, after all relevant evidence has been adduced and evaluated, as having taken place during the course of the operations of embarking and disembarking.
- The primary judge’s reasoning has at its heart the idea that when the examinations took place the passengers had disembarked from the aircraft, completed the course of all the operations of disembarking and not yet commenced the course of any of the operations of embarking again. I respectfully consider that that approach, on a consideration of all the evidence in due course, may be too narrow. It may be, on an assessment of the evidence adduced at trial, that the correct conclusion is that once the conventional course of the operations of embarkation had begun and no conventional disembarkation had yet been completed, the passengers were still engaged in the course of the process of embarkation.
Useful for
Accident must occur on aircraft or in process of embarking or disembarking
