| 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: | 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 |
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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.
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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…
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- Case
- [2019] VSC 654
- Decision Date
CaseChat Overview and Summary
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.
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