INVASIVE MEDICAL EXAMINATION OF FEMALE PASSENGERS: FEDERAL COURT DISMISSES CLAIMS AGAINST QATAR AIRWAYS AND QATAR CIVIL AVIATION AUTHORITY UPHOLDING EXCLUSIVITY OF MONTREAL CONVENTION
On 10 April 2024 the Federal Court of Australia issued two judgments in the same proceeding with the effect of dismissing the claims made against two of the three Respondents – namely Qatar Airways and the Qatar Civil Aviation Authority (QCAA).
Background
On 2 October 2020, after boarding Qatar Airways flight QR908 from Doha to Sydney at Hamad International Airport, all women on board were directed to disembark the aircraft and some of these women were subjected to invasive medical examinations in an ambulance on the tarmac before they were permitted to reboard the aircraft. The Qatar Ministry of Interior subsequently released a statement that a newborn baby had been found in a rubbish bin in an airport toilet cubicle, and that the examinations were conducted across 10 flights to identify the mother of the abandoned baby. A joint statement by the Foreign Ministry of the State of Qatar and the Department of Foreign Affairs and Trade of Australia expressed sympathy to the women involved.
The Applicants
The applicants in these proceedings are five of the women on flight QR908 who seek damages and declarations against Qatar Airways, the QCAA and the Qatar Company for Airport Operation and Management WLL (MATAR).
Three of the applicants claimed damages from Qatar Airways under the Montreal Convention 1999 (“MC99”)[1] in addition to damages for battery against the QVAA and MATAR and all five applicants brought claims against the three respondents in negligence, for assault and for false imprisonment.
DHI22 v Qatar Airways Q.C.S.C (No 2) [2024] FCA 348
Liability under MC99
In the first of the two judgments, the Federal Court considered Qatar Airways’ application for summary judgment to dismiss the proceedings on the basis that the invasive examination did not take place as part of “operations of embarkation and disembarkation” to constitute an “accident” for the purposes of Article 17 of MC99.
The Court confirmed its adoption of a ‘three-pronged’ approach referred to by the New South Wales Court of Appeal in Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 and considered by the US courts[2] in determining whether an “accident” occurred during embarkation or disembarkation. This test considers at the time of the accident (i) the passenger’s activity, (ii) the passenger’s location; and (iii) the level of control exercised by the carrier.
Using this test, the Court determined that the invasive medical examinations could not have occurred in the course of embarkation or disembarkation and therefore that the Applicants had no claim under Section 17 of the MC99.
Exclusivity under MC99
The Court also considered the “exclusivity” principle under Article 29 of MC99 confirming a line of authority, including as applied under similar provisions contained in Article 24 of the Warsaw Convention[3], that holds that where the MC99 applies, Section 17 of the MC99 provides the only basis on which a carrier can be held liable for any injury sustained during the course of international carriage by air or during the course of embarking or disembarking.
In doing so, the Court found that the exclusivity principle prevented any claim in tort or negligence against Qatar Airways as the carrier and dismissed the claims against Qatar Airways.
DHI22 v Qatar Airways Q.C.S.C (No 3) [2024] FCA 351
Foreign State immunity
In the second judgment, the Court considered the question of foreign State immunity under the Foreign State Immunities Act 1985 (“FSI Act").
The Court was ultimately satisfied that the QCAA was a separate entity of a foreign State, and therefore that it was entitled to immunity from the jurisdiction of Australian Courts.
What’s next?
Having dismissed the claims against two of the three Respondents, the only remaining issue in this proceeding is the claims against MATAR, the operator of the Doha Airport.
While the Court found that the pleadings as currently constructed had no reasonable prospect of success against MATAR, it was willing to grant the applicants leave to replead against MATAR based on the findings in its judgments. The case is currently listed for a case management hearing on 10 May 2024. On the other hand, the applicants will now also have to address the costs orders granted in favour of Qatar Airways and QCAA, which will not be insubstantial.
[1] Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, 2242 UNTS 309
[2] Refer to McCarthy v North West Airlines, 56 F 3d 313 (1 Cir, 1995); Schroeder v Lufthansa German Airlines, 875 F 2d 613 (7th Cir, 1989)
[3] Convention for the Unification of Certain Rules Relating to International Carriage by Air, done at Warsaw on 12 October 1929
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