In brief - Emirates found not liable for thirsty passenger's injuries

A plaintiff who fainted fracturing her right ankle in the fall on an Emirates flight from Melbourne to Dubai, which she claimed was caused by the airline's failure to provide water after four requests, has failed in her claim for compensation. 

Delays in water delivery

In Di Falco v Emirates (No 2) [2019] VSC 654, the plaintiff gave evidence that she had been required to dispose of a bottle of water prior to boarding the flight. She made two requests before the flight took off to an attendant, a third request after the meal service, and a fourth request during the collection of the meal plates. 

The airline's evidence was that the first two requests made during the boarding and pre flight period were responded to by the attendant first saying that water would be served with the meal service, and on the second occasion that the food would be delivered "shortly". The requests made during the meal service and when clearing the plates were responded to with information that another attendant with a drinks cart would be serving requests. A small cup of water was served with the meal.

At no time did the plaintiff use the attendants' call button for her requests. 

Article 17(1) of the Montreal Convention 1999 is repeated in substance in section 28 of the Civil Aviation (Carriers' Liability) Act 1959 and states:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Section 9E of the Act substitutes the liability under the Montreal Convention for any other basis of civil liability.

Did the failure to respond to the requests for water constitute an "accident"?

Justice Forbes in the Supreme Court of Victoria looked at the various relevant international case law on the meaning of "accident" when interpreting the Montreal Convention, including Air France v Saks, Olympic Airways v Husain and Qantas Limited v Povey. From those cases she drew (at [18]) the following principles to be applied when determining whether an "accident" has occurred:

(a) A passenger's own internal reaction to the usual, normal and expected operation of the aircraft is not an accident;

(b) An accident that is a cause of an injury is different to the occurrence of injury itself;

(c) It is necessary to identify an event or happening that is external to the passenger;

(d) Identifying an event requires flexible application. An event may arise from acts, omissions or from a combination of acts and omissions;

(e) The event must be unexpected or unusual;

(f) There may be a chain of events that lead to injury;

(g) It is sufficient that some link in the chain of causal events was an unexpected or unusual event external to the passenger;

(h) If the event is described as inaction or as a failure to do something, the absence of action will not amount to an event unless it can be shown to be an omission by reference to some legal standard requiring action;

(i) Common law notions of actions or failure to act arising from a duty of care owed to passengers are irrelevant;

(j) Whether an accident has occurred is a question of fact.

She found that the failure to deliver water in response to the plaintiff's requests was not an unusual or unexpected event. While it was usual practice to provide water on request to passengers, this was qualified by competing demands on attendants' time, particularly during boarding and meal service times. The way in which the plaintiff's requests were dealt with was in accordance with the usual practice of attendants and was not in disregard of or contrary to airline policy. 

Nothing unusual or unexpected occurred on the flight and there was no "accident" as defined by Article 17 of the Montreal Convention, and so no liability pursuant to the Civil Aviation (Carriers' Liability) Act in respect of the personal injuries suffered by the plaintiff.

Accordingly, the plaintiff's claim was dismissed.

A not unexpected finding

The judge's conclusions were to be expected given the factual circumstances. 

Expert evidence was given regarding the possibility of dehydration during the flight and, while it was found by the judge that the plaintiff probably had suffered mild dehydration, fainting having occurred five hours after push back during which period a meal with water had been served, none of the circumstances leading to the mild dehydration amounted to an unusual or unexpected event or happening so as to engage liability.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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