Kotsambasis v Singapore Airlines Ltd [1997] 42 NSWLR 110; [1997] NSWSC 303
Supreme Court of New South Wales, Court of Appeal
Facts
The appellant was visiting her mother in Greece. On 28 May 1992 she boarded a Singapore Airlines aircraft in Athens, which was scheduled to fly to Sydney via Singapore. Miss Kotsambasis was seated near the port side wing, adjacent to a window. Shortly after takeoff, she was leaning forward in her seat when a sudden jolt threw her back into her seat. Judge Cooper may have accepted that the plaintiff felt a pain in the midline of her back at this time, but did not appear to accept that she suffered an injury. Other passengers were screaming and the appellant saw smoke coming from a starboard engine, which had caught alight. There then came an announcement that there was an engine problem and that the aircraft would be returning to Athens, but that fuel had first to be jettisoned. The aircraft landed over an hour after takeoff, at 3.23 am. The appellant wanted to leave the aircraft. However, a lack of facilities provided by Athens airport prevented the passengers disembarking from the aircraft immediately. The passengers were allowed to disembark between 5.50 am and 6.10 am.
Judge Cooper accepted Miss Kotsambasis’ evidence that she was anxious and distressed and that she regarded the sight of smoke coming from the engine as life-threatening. He accepted that she sustained a severe fright and that she believed there was a good chance she could perish.
Following disembarkation, the appellant was taken by bus to the Athens terminal, where she waited some three hours before being offered various alternatives to get back to Sydney. One of the offers was take an Olympic Airlines flight to Paris to take a flight to Singapore, followed by a further flight to Sydney. Despite then being scared of flying, Miss Kotsambasis accepted the Paris option.
The appellant had to carry two heavy suitcases and a bag over her shoulder. Judge Cooper accepted that the carrying of these weights caused the appellant pain in the back and that it was the carrying which caused injury. The appellant arrived back in Sydney about two days later and returned, after a further couple of days, to her work as a general support officer in the New South Wales Police Service.
Issue(s)
Did the injuries complained of occur on the aircraft, or in the course of embarkation or disembarkation within the meaning of the Convention?
Discussion
It was for the appellant to prove that, on the balance of probabilities, the accident occurred on board the respondent’s aircraft or in the process of embarking or disembarking from it. Judge Cooper did not make any supportable finding as to where the accident causing injury occurred. He did, however, make the finding that it occurred in the course of, or as a result of, carrying bags, not as a result of being jolted whilst on board the aircraft. On the scant evidence before Judge Cooper, I am of the opinion that it is not more likely than not that the accident causing injury occurred on board the respondent’s aircraft or in a situation which could be regarded as being one in which the appellant was engaged in one of the processes of embarkation or disembarkation from the respondent carrier.
Useful for
Accident must occur on aircraft or in process of embarking or disembarking
