In October 2020, a newborn was found in a bin at Hamad International Airport in Doha, Qatar. In response, Qatari officials commenced an intensive and wide-ranging search across the airport and all departing flights to locate the woman who had given birth.
At the time, there was a Qatar Airways aircraft bound for Sydney that had been boarded but had been delayed for several hours on the tarmac. Over the intercom, it was announced that all female passengers were required to exit the aircraft with their passports, leaving their baggage, partners and children behind. Personnel in dark uniforms armed with guns boarded and began directing the female passengers off the aircraft and towards ambulances waiting on the tarmac under the aircraft.
Without diplomatic or consular contact, assistance or support, several of the women were instructed to enter the ambulance and once inside, they alleged that they were subjected to visual and/or physical gynaecological and breast examinations without their consent.
Following their harrowing experiences, five of the women commenced a proceeding in the Federal Court against three respondents: Qatar Airways, the Qatar Civil Aviation Authority, and the airport operator, seeking compensation for bodily injury.
Legal argument
The women brought their claims under international law that was given force in Australia in the 1950s.
Following the First World War and due to advancements in aircraft technology, there were growing concerns across the world as to the lack of legal uniformity in the aviation sector. Ultimately, this led to the creation of an international convention on the carriage of passengers and goods – the Convention for the Unification of Certain Rules Relating to International Carriage by Air – known as the Warsaw Convention.
Originally signed in 1929 and amended numerous times since, the Warsaw Convention establishes a regime which regulates carriers’ liability for the international carriage of persons, luggage, or goods performed by aircraft for reward. The regime imposes strict liability on the air carrier for bodily injury or the death of a passenger – there is no need to establish negligence.
In Australia, the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (‘the Commonwealth Act’) gives legal recognition and force to the Warsaw Convention and its subsequent amending conventions and protocols1. The Commonwealth Act applies to travel to and from Australia and interstate travel, whereas each state across Australia has its own uniform regime which applies to intrastate travel.2
Section 28 of the Commonwealth Act mirrors Article 17 of the Warsaw Convention and provides a plaintiff with a right to recover damages for personal injury:
…the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Provided that an injured person can establish all the criteria required by Article 17, they can bring a claim. Over time, there have been many decisions of many courts across the world identifying the required criteria under Article 17, but broadly an injured person must demonstrate:
- An event causing bodily injury occurred either on board the aircraft; or during embarkation or disembarkation;
- The event was external to the passenger; and
- The event was unusual or unexpected.
In this present case, the women brought their claims under Article 17 contending that they had suffered bodily injury as a result of the examinations, which were undertaken “in the operations of embarking or disembarking”the aircraft, with those examinations being external, unusual or unexpected.
Primary judge’s decision
In April 2024, Justice Halley in the Federal Court of Australia dismissed the group’s claims against Qatar Airways on the basis that their claims Article 17 of the Montreal Convention had no reasonable prospects of success because the examinations could not be said to have taken place in “the operations of embarking or disembarking” the aircraft as is required by Article 17.
The effect of that decision was that the claims against Qatar Airways were at an end, and there would be no trial of those claims.
Appeal
On appeal to the Full Court, however, Chief Justice Mortimer, Justice Stewart and Justice Stellios disagreed.
Their Honours found that the primary judge’s dismissal of the claims under Article 17 was premature and erroneous as a determination of whether examinations had taken place during “the course of embarking or disembarking” the aircraft was one of some nuance and complexity, requiring an examination of the facts and the evidence of the appellants at trial. The primary judge’s orders were overturned, and the women were granted the right to proceed with their claims against Qatar Airways.
Looking ahead
That conclusion is unsurprising and, in my view, quite appropriate. In such a shocking course of events, evidence as what had occurred leading up to the examinations as well as following those examinations will be critical in a court’s determination as to whether the event falls within the scope of Article 17.
Identifying where an event occurs on board an aircraft is likely to be relatively obvious, but identifying what constitutes an event that occurs in the operations of embarking or disembarking can be less clear.
In 2002, Justice Morison of the Queen’s Bench Division in England examined a situation where a wheelchair-bound passenger was being transported to the departure gates on an escalator.3 Her wheelchair was being pushed by a person contracted by the airline. The wheelchair fell back a couple of steps, causing her a whiplash injury. In order for an accident to have occurred in any of the operations of embarking, Justice Morison considered that the following must be established:
- the accident to the passenger is related to a specific flight; and
- the accident happened while the passenger was actually entering or about to enter the aircraft; or
- if it happened in the terminal building or otherwise on the airport premises, that the location of the accident is the place where the injured party was obliged to be in the process of embarkation.
In that case, his Honour found that as the airline had directed passengers to move to the departure gates and in doing so the accident had occurred, it had occurred in the process of embarkation.
This determination is interesting in the circumstances concerning the Qatar Airways flight. On what we know at present, it seems that the female passengers were given no choice as to whether or not to comply with the Qatari official’s directions. Presumably, the consequence for non-compliance would have been at best, the inability to remain on or reboard the flight.
Whether the direction to submit to what seems to be an “obligatory” intimate and invasive examination is akin in this context to the obligatory passport and metal detector scans that we are all directed to and have grown accustomed to when moving through airports, is something we await the trial judge’s consideration on.
Against a deeply shocking and distressing background, this case provides an opportunity for the Federal Court to give further clarity to the international community as to the rights of all passengers travelling across different countries, cultures and legal systems. I can only hope that those rights are further protected.
Footnotes
1 Including, most recently, the Montreal Convention 1999.
2 Civil Aviation (Carriers’ Liability) Act 1967 (NSW); Civil Aviation (Carriers’ Liability) Act 1964 (Qld); Civil Aviation (Carriers’ Liability) Act 1962 (SA); Civil Aviation (Carriers’ Liability) Act 1963 (Tas); Civil Aviation (Carriers’ Liability) Act 1961 (Vic); Civil Aviation (Carriers’ Liability) Act 1961 (WA).
3 Phillips v Air New Zealand [2002] 2 Lloyds Rep 408.
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