Full Federal Court Holds Qatar Airways Passengers Searched at Doha Can Pursue Damages
DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91
The Full Federal Court, comprised of Mortimer CJ, Stewart and Stellios JJ, has overturned a Federal Court decision which had summarily dismissed the claims by five Australian women against Qatar Airways and Qatar Company for Airports Operation and Management (MATAR) for damages as a result of invasive searches at Doha airport in October 2020.
The Federal Court had held that the claims against Qatar Airways had no reasonable prospects of succeeding because any liability of Qatar Airways was governed exclusively by the Montreal Convention 1999, and because the searches did not take place on board the aircraft or in the course of embarking or disembarking, there was no liability under Article 17. Halley J had reasoned that it was 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.’[1]
The Full Court overturned that decision, holding:
1. It could not be concluded with sufficient confidence at this stage of the proceeding that the alleged “accident” did not take place during the course of embarking or disembarking and accordingly, the claims under Article 17 of the Montreal Convention should go to trial. The Full Court held:
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.[2]
2. The claims in negligence should be permitted to go to trial because the scope of exclusivity under Article 29 of the Montreal Convention 1999 is coextensive with the temporal scope of Article 17, such that if the negligence alleged is not within the temporal scope of during embarkation or disembarkation, it is not precluded by the exclusivity principle:
The recent unanimous judgment of the High Court in Evans held at [12], citing Sidhu, Tseng and Sercel, that Arts 17 and 24 of the Warsaw Convention “created an exclusive regime for damages for personal injury or death ‘if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking’”, ie not that the exclusive regime was on the broader basis of “international carriage by air”.;[3] and
3. Although insufficient facts were pleaded to support a claim in negligence, it could not be said at this stage of the proceeding that the Appellants would not be able to plead those facts at a later stage.
In respect of the MATAR, the primary Judge had held that claims in negligence and intentional torts had reasonable prospects of success because those claims attempted to attribute liability for acts of police officers and a nurse to MATAR, and there was not likely to be evidence to refute MATAR’s evidence that those personnel were not agents, employees or acting under MATAR’s direction or control. The Full Federal Court held that the claim against MATAR could proceed because it was an error to conclude, at this stage of the proceeding, that MATAR’s duty of care could not extend to the circumstances in and around an ambulance where a search was alleged to have occurred.
The decision paves the way for the five Appellants to seek to recover compensation from both Qatar Airways and MATAR as a result of the events which occurred in October 2020.
[1] FCAFC 91 at [53]
[2] FCAFC 91 at [73]
[3] FCAFC 91 at [97]
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