Di Falco v Emirates - [2018] VSC 472

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 00515

LINA DI FALCO	Plaintiff
v
EMIRATES	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2018
DATE OF JUDGMENT:	24 August 2018
CASE MAY BE CITED AS:	Di Falco v Emirates
MEDIUM NEUTRAL CITATION:	[2018] VSC 472

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AVIATION – Carriage by air – Claim under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Plaintiff injured on international flight – Whether pt VBA of the Wrongs Act 1958 (Vic) applies – Operation of s 79(1) Judiciary Act 1903 (Cth) – Whether pt VBA is applicable to the plaintiff’s case – Whether Commonwealth law “otherwise provides” – Agtrack (NT) Pty Limited v Hatfield (2005) 223 CLR 251 applied – Zicherman v Korean Airlines Co Ltd 516 US 217 (1996) and Casey v Pell-Air Aviation Pty Ltd [2015] NSWSC 566 (15 May 2015) distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Arnold Thomas & Becker
For the Defendant	Mr J Ribbands	Clyde & Co

HIS HONOUR:

The plaintiff alleges she fell and injured her right ankle while travelling as a passenger on an Emirates flight from Melbourne to Dubai. She brings this proceeding claiming damages from the defendant pursuant to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (‘Carriers’ Act’). The defendant denies the plaintiff’s claim and, in the alternative, alleges the plaintiff is not entitled to damages for non-economic loss unless she has suffered a significant injury within the meaning of pt VBA of the Wrongs Act 1958 (Vic) (‘Wrongs Act’).

The proceeding was listed before me for determination of the preliminary question: Does pt VBA of the Wrongs Act apply to the plaintiff’s claim?

This Court is exercising federal jurisdiction when it determines a claim under the Carriers’ Act. Where a state Court exercises federal jurisdiction, s 79 of the Judiciary Act 1903 (Cth) (‘Judiciary Act’) applies and results, if the overriding requirements of the section are satisfied, in the laws of the state governing the action. The defendant argued that it is by operation of s 79 of the Judiciary Act that pt VBA of the Wrongs Act applies to the plaintiff’s claim. It is necessary therefore to consider whether the overriding requirements of s 79 have been met.

Factual and Procedural Background

In March 2015 the defendant, an international carrier, carried the plaintiff as a passenger on an Emirates flight from Melbourne to Dubai.

The plaintiff alleges that in the course of the flight, while making her way to the toilet facilities in the aircraft cabin, she fell and sustained injury to her right ankle, which necessitated surgical open reduction and internal fixation (‘the injury’).

The plaintiff commenced this proceeding in February 2017. In an amended statement of claim filed in August of that year she articulated her cause of action in the following terms:

9.By reason of the matters set out in the preceding paragraph, the Plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Di Falco v Emirates

Details

AGLC: Di Falco v Emirates [2018] VSC 472
Case: [2018] VSC 472
Decision Date: 24 August 2018

CaseChat Overview and Summary

Di Falco v Emirates is a decision of the Supreme Court of Victoria involving a claim for damages under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) arising from an injury sustained by the plaintiff during an international flight. The plaintiff, Ms Di Falco, alleged that she was injured due to the defendant airline's negligence. The legal dispute centred on whether the provisions of Part VBA of the Wrongs Act 1958 (Vic) applied to the plaintiff’s claim, and if so, whether the Commonwealth law "otherwise provides" under section 79(1) of the Judiciary Act 1903 (Cth) allowed for the application of Victorian law to the claim.

The court had to determine the extent of the applicability of Part VBA of the Wrongs Act to the plaintiff’s claim under the Civil Aviation (Carriers’ Liability) Act. This required the court to examine the relationship between the Commonwealth statute and the state statute, particularly in light of section 79(1) of the Judiciary Act. The court also needed to consider how this interplay was affected by previous case law, including Agtrack (NT) Pty Limited v Hatfield and the decisions in Zicherman v Korean Airlines Co Ltd and Casey v Pell-Air Aviation Pty Ltd.

The court found that Part VBA of the Wrongs Act did not apply to the plaintiff’s claim. The reasoning hinged on the interpretation of section 79(1) of the Judiciary Act, which provides that if Commonwealth law "otherwise provides," state law is not applicable. The court held that the Civil Aviation (Carriers’ Liability) Act did indeed "otherwise provide" for the resolution of claims such as the one brought by the plaintiff, thus excluding the application of Part VBA of the Wrongs Act. The court distinguished the present case from Zicherman and Casey by emphasising the specific provisions of the Civil Aviation (Carriers’ Liability) Act and their preemptive effect over state law in matters concerning air carriage.

The final orders of the court were that the plaintiff's claim was to be governed exclusively by the Civil Aviation (Carriers’ Liability) Act, and that Part VBA of the Wrongs Act did not apply. Consequently, the plaintiff's action was to proceed under the federal statute.

Orders