Di Falco v Emirates (No 2) - [2019] VSC 654

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

---

JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	11-14 June, 16 July 2019
DATE OF JUDGMENT:	15 October 2019
CASE MAY BE CITED AS:	Di Falco v Emirates (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 654

---

AVIATION – Carriage by air – strict liability claim against air carrier for injuries sustained during aircraft accident – Whether Civil Aviation (Carriers’ Liability) Act 1959 applies - Whether failure to provide hydration capable of constituting an “accident” – Circumstances leading to dehydration not unusual or unexpected – Plaintiff’s claim dismissed - Montreal Convention relating to International Carriage by Air Art 17(1) – Warsaw Convention Art 17, Vienna Convention Art 31, Civil Aviation (Carriers’ Liability) Act 1959, s 9E.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R K J Meldrum QC Ms F Crock	Arnold Thomas & Becker
For the Defendant	Mr J Ribbands	Clyde & Co

HER HONOUR:

Ms Di Falco was a passenger on Emirates Flight EK 407 from Melbourne to Dubai departing Melbourne on the evening of 15 March 2015. Some hours into the flight, feeling nauseous shortly after the first meal service, she got up from her seat to go to the bathroom. At the bathroom doorway she fainted, fracturing her right ankle in the fall. She says that the reason for her faint was that she was dehydrated. Although she had asked for water on the plane it had not been provided. She sues the defendant seeking damages for her injuries.

Ms Di Falco must show that she is entitled by statute to recover damages. She can only establish a right to damages if the Civil Aviation (Carriers’ Liability) Act 1959[1] applies. So, the first issue to be decided is whether an ‘accident’ has occurred as it is defined in the Carriers’ Act. If there has been an ‘accident’, then the second issue is whether that accident caused Ms Di Falco to fall and fracture her ankle. If I decide both of those issues in favour of the plaintiff then I must assess damages. The parties have agreed the quantum of pecuniary loss – medical expenses and loss of capacity to earn.[2] The appropriate quantum of general damages for pain, suffering and loss of enjoyment of life is not agreed.
[1]Referred to through these reasons as the ‘Carriers’ Act.’
[2]Calculated as set out in Exh 5.

Liability under the Carriers’ Act

Since 1929 legal liability for death and injury caused to international airline passengers has been governed by international treaty. The ‘Warsaw Convention’ of 1929[3] initially codified and governed the basis upon which damages could be recovered from airline carriers by passengers affected. It also put limits upon recovery of compensation. The Warsaw Convention was modified and updated by subsequent treaty and protocols. International treaties only have effect through domestic legislation.
[3]The Convention for the…

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.

Keep reading for free

Create a free CaseChat account to read Di Falco v Emirates (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSC 654
Decision Date: 15 October 2019

CaseChat Overview and Summary

Di Falco sued Emirates after sustaining injuries during an aircraft accident. The plaintiff alleged that the carrier's failure to provide adequate hydration was the cause of his injuries. The Federal Court of Australia was tasked with determining whether the Civil Aviation (Carriers’ Liability) Act 1959 applied to the plaintiff's claim and whether the airline's failure to provide hydration constituted an "accident" under the Act.

The primary legal issues were whether the Act's provisions applied to the plaintiff's claim and whether the airline's failure to provide adequate hydration was an "accident" under the Act. The Court had to consider the circumstances leading to the plaintiff's dehydration and whether they were unusual or unexpected. Additionally, the Court examined the Montreal Convention relating to International Carriage by Air, Article 17(1), the Warsaw Convention, Article 17, and the Vienna Convention, Article 31.

The Court held that the Act did not apply to the plaintiff's claim because the circumstances leading to the plaintiff's dehydration were not unusual or unexpected. The Court found that the airline's failure to provide hydration was not an "accident" under the Act. The Court also considered the provisions of the Montreal Convention, the Warsaw Convention, and the Vienna Convention, which supported its interpretation of the Act. The Court dismissed the plaintiff's claim.

The Court ordered that the plaintiff take no costs of the appeal. The Court found that the circumstances leading to the plaintiff's dehydration were not unusual or unexpected, and therefore, the airline's failure to provide hydration was not an "accident" under the Act. The Court also held that the Act did not apply to the plaintiff's claim.

Orders