In brief - Two decisions of Australian courts in late 2019 demonstrate once again the need for claimants to be able to establish that a compensable "accident" took place

Salih v Emirates (No. 2) [2019] NSWDC 715

New South Wales District Court Judge Dicker was asked to consider the entitlement to compensation of a woman who alleged that she had sustained injury when, while travelling from Dubai to Sydney on an Emirates flight on 31 October 2016, an aircraft overhead locker fell heavily on her right thumb and hand when she opened the locker to obtain some infant formula for her baby during the flight. 

While her injury was treated with an ice pack, medication and a splint during the flight, following her return home she required physiotherapy and, in the year following the injury, alleged she developed pain in her right shoulder, which she said affected her household and work duties.

There was evidence at the trial from the plaintiff's husband that, following the injury to his wife's thumb, he opened the overhead locker and it operated in "the normal fashion". The airline's maintenance engineer also gave evidence that the aircraft cabin defect log recorded no defect with the overhead locker.

Was the injury compensable?

The claim was made under the Montreal Convention 1999, which has the force of law in Australia pursuant to the Civil Aviation (Carriers' Liability) Act 1959. Relevantly, Article 17(1) of the Convention provides:

The carrier is liable for damage sustained in the 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.

The trial judge found that while the overhead locker was likely not defective, it did land on the plaintiff's thumb causing her immediate pain. He found that the plaintiff had not established that the upper arm and shoulder injury was in any way connected to the accident. 

The trial judge noted that Justice Forbes in the recent Victorian Supreme Court decision in Di Falco v Emirates (No. 2) [2019] VSC 654 (discussed in our October 2019 Transport & Logistics news article In-flight dehydration not an "accident" entitling compensation under Montreal Convention 1999) had recently considered the relevant case law on the meaning of "accident", as had the High Court of Australia in Povey v Qantas Airways Limited (2005) 222 CLR 189. Both had followed the decision of the United States Supreme Court in Air France v Saks (1985) 470 US 392.

The trial judge held that there was no "accident" in the present case within the meaning in the Convention. It was necessary to identify an event or happening that was external to the passenger which arose from an act or omission and where the event was unexpected or unusual. The plaintiff's thumb was injured by the locker door dropping in the usual, normal and expected way.

Accordingly, the plaintiff's claim did not succeed.

Anderson v Network Aviation Pty Limited [2019] WADC 175

Western Australian District Court Judge Braddock also concluded that a plaintiff had not sustained a compensable "accident".

This case concerned a "fly in/fly out" contract bus driver who worked at the Solomon Mine in northern Western Australia. As he had done often before, he flew on 24 February 2016 from Perth to the Solomon Mine Airport in a Fokker 100 aircraft operated by Network Aviation. Upon arrival at the airport, he was required to disembark down a set of aluminium stairs which had been wheeled to the aircraft. In the course of descending the stairs, the heel of his fairly new work boots allegedly "caught on something" and he fell forward and slid to the bottom of the stairs where he landed on the tarmac on his left shoulder and head. While he went to work on the day of the flight, he sought medical treatment on the following day having been sent home from work.

The Court found that the stairs were in good order at the time and there was no evidence of any malfunction or misplacement of the stairs.

The judge considered the relevant statutory provisions and the relevant case law including Air France v Saks and Povey v Qantas Airways Limited. He also considered the decision of Brannock v Jetstar Airways Pty Limited (2010) 273 ALR 391, in which the Queensland Court of Appeal had found that a plaintiff, who also fell on a set of stairs, had not suffered an "accident" being an unexpected or unusual happening external to the passenger.

While Mr Anderson's injury was unfortunate, there was nothing external to him which brought about the occurrence of the injury, and compensation was denied. 

The decision can be contrasted on its facts with the recent English decision in Labbadia v Alitalia [2019] 2 Lloyd's Rep 273, where the airline was held liable to compensate a person who fell headfirst down aircraft stairs which were covered with snow - the presence of snow and ice not being an "event" but the decision to use steps without a canopy in the circumstances constituting a compensable event.

Lessons for aviation injury claimants 

While there is no new law in either of these cases, both merely confirm that those seeking compensation for injuries sustained in air travel must be able to establish that a compensable "accident" has occurred and that the injury was caused by an unexpected or unusual happening or event external to the passenger.

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 2020.

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