Disclaimer: This article discusses events involving children and the mistreatment of airline passengers, which some readers may find distressing.  

The Full Court of the Federal Court of Australia in DHI22 v Qatar Airways QCSC (No 1) [2025] FCAFC 91 was required to consider, amongst other issues, whether, if an accident was not held to have occurred "in the course of any of the operations of embarking or disembarking" or during "carriage by air", applicants were precluded from bringing common law claims in negligence against the carrier.  

The decision from the case discussed in our article “Sovereign immunity in an airline context” involved a number of women who had boarded a Qatar Airways flight bound for Sydney from Doha in October 2020. They were directed to disembark the aircraft and subjected to invasive bodily examinations in a nearby ambulance, following the discovery of a newborn baby in a rubbish bin in an airport bathroom.

The applicants brought proceedings against Qatar Airways, the Qatar Civil Aviation Authority, and the Qatar Company for Airport Operation and Management, known as (MATAR).

At first instance, the proceedings against Qatar Airways had been dismissed on the basis that the exclusivity principle in section 17 of the Montreal Convention 1999 (the Convention) prevented any claim being brought in tort or negligence under the Convention. Claims could only be brought for injury sustained in an accident on board an aircraft or in the course of embarking or disembarking.  

The principal appeal judgment was delivered by Justice Stewart, with which Chief Justice Mortimer and Justice Stellios agreed.

Justice Stewart found that it could not be concluded with sufficient confidence at this stage of the proceeding that the "accident" relied upon did not take place during the course of any of the operations of embarking or disembarking. He therefore considered that the Article 17 claims for compensation for bodily injury should proceed to trial.

Justice Stewart was also of the view that the scope of application of the exclusivity principle derived from Article 29 of the Convention was co-extensive with the temporal scope of Article 17. Accordingly, if the negligence claims against Qatar Airways were not within the temporal scope of Article 17, they were not precluded by the exclusivity principle. On that basis, the negligence claim should accordingly also be permitted to go to trial.

Finally, Justice Stewart also found that it was too early to reach conclusions about the claims made against MATAR, including whether the nurse who carried out the inspections of the appellants was an employee or agent of MATAR, and whether MATAR had breached a duty of care which extended to the circumstances in and around the ambulance. Those issues should also be canvassed at trial.

In the judgment, there was a careful review of a number of Australian and international decisions dealing with the scope of Article 17, and whether the claims arose in the course of embarkation or disembarkation.

Justice Stewart noted that in Day v Transworld Airlines Inc., 528 F.2d 31 (2d Cir. 1975), the US court had held that passengers who had surrendered tickets, passed through passport control, entered an area reserved exclusively for departing passengers, and assembled at the departure gate in readiness for departure fell within the scope of Article 17. In contrast, in Buonocore v Transworld Airlines Inc., 900 F.2d 8 (2d Cir. 1990), the Court held that a passenger did not fall within the scope of Article 17 in circumstances where he had obtained his boarding pass and seat assignment but remained in a public area of the airport and had not passed through immigration control or security inspection. Further, in Evangelinos v Transworld Airlines Inc., 550 F.2d 152 (3d Cir. 1977), passengers injured in the transit lounge of Hellinikon Airport in Athens, Greece, when it was the scene of a terrorist attack on passengers who were lined up and awaiting boarding, had been subject to an "accident" within the scope of Article 17 of the Warsaw Convention.

In light of the various decisions, Justice Stewart considered that the law around the temporal scope of Article 17 in relation to embarkation and disembarkation was not settled. Accordingly, he found that the appellants were entitled to have their particular factual situation considered at trial.

The decision, while not finally determinative of the scope of the Convention or its effect upon the principle to exclude causes of action other than the remedies provided by the Convention itself, will give heart to claimants and may cause concern for airlines about a possible widening of potential liabilities. 

However, what is clear is that the Court considered that each case must be reviewed on its own facts when determining whether claims arose in the course of embarkation or disembarkation, or during carriage by air. 

If you would like advice or support on any of the legal issues discussed in this article, please contact our Transport & Logistics team.