Dibbs v Emirates - [2015] NSWSC 1332

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dibbs v Emirates [2015] NSWSC 1332
Hearing dates: 1, 2 and 3 September 2015
Date of orders: 11 September 2015
Decision date: 11 September 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The amended statement of claim filed on 2 September 2015 is dismissed and a verdict is entered for the defendant.
2. The defendant is to file and serve any submission in support of an order for costs by close of business on 23 October 2015.
3. The plaintiff is to file and serve any submission in reply as to costs by 6 November 2015.
4. Any application for costs is to be dealt with on the papers.

Catchwords:
PERSONAL INJURY – civil – carriage by air – carriers’ liability – Montreal Convention – whether the events constitute an “accident” - definition of “injury” – credibility of witnesses – demeanour of witnesses
DAMAGES – general damages – whether pre-existing condition – use of expert evidence – rule in Watts v Rake
Legislation Cited: Civil Aviation (Carriers Liability) Act 1959 (Cth)
Civil Liability Act 2002 (NSW)
Montreal Convention 1999
Uniform Civil Procedure Rules 2005 (NSW)
Warsaw Convention 1929
Cases Cited: Air France v Saks (1985) 470 US 392
Airlink Pty Limited v Paterson [2009] NSWCA 251
Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake [1960] HCA 58; 108 CLR 158
Category: Principal judgment
Parties: Michelle Leanne Dibbs (Plaintiff)
Emirates (Defendant)
Representation:
Counsel:
T. McKenzie (Plaintiff)
D. Stanton (Defendant)
Solicitors:
Taylor & Scott Lawyers (Plaintiff)
Norton White (Defendant)

File Number(s): 2013/00162570
Publication restriction: None

Judgment

On 30 May 2012 the plaintiff, Michelle Leanne Dibbs, travelled to Malta as a passenger on an international flight operated by the defendant, Emirates. During the first sector of the flight, en route to Dubai from Sydney, a cup of hot tea was spilled onto the plaintiff’s leg. The plaintiff asserts that this caused her to jump up and twist sharply and as a consequence of this movement, the plaintiff complains that she sustained a severe injury to her back. After reaching Malta, the plaintiff underwent surgery for a disc protrusion in her lower back. She claims that the injury sustained on the flight has left her with an ongoing level of significant disability.
By an Amended Statement of Claim filed in court with leave on 2 September 2015, the plaintiff seeks to recover damages from Emirates for her injury.
It is not disputed that a hot drink spilt onto the plaintiff during the course of the flight. The balance of the plaintiff’s claim is neither admitted nor accepted by the defendant.

Pleading and Particulars

In the Amended Statement of Claim, the plaintiff pleads that,

“During the course of the said carriage, a flight attendant spilled a cup of hot tea on the Plaintiff causing her to twist sharply in consequence whereof she sustained the injuries hereafter set out”.

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 Dibbs v Emirates

Details

AGLC: Dibbs v Emirates [2015] NSWSC 1332
Case: [2015] NSWSC 1332
Decision Date: 11 September 2015

CaseChat Overview and Summary

The case of Dibbs v Emirates arose from a dispute between a passenger, Dibbs, and the airline Emirates, following an incident during an international flight. Dibbs claimed to have suffered injuries during the flight, which she attributed to the airline's negligence. The case was heard in the Federal Court of Australia, where the primary issue was the interpretation of the Montreal Convention in relation to the carrier's liability for injuries sustained during air travel. Specifically, the court had to determine whether the events described by Dibbs constituted an "accident" and whether her injuries met the definition of "injury" under the Convention. Additionally, the court considered the credibility of Dibbs' testimony and that of other witnesses, along with their demeanour during the proceedings.

The legal issues centred on the interpretation of key terms within the Montreal Convention, including "accident" and "injury." The court examined the nature of the events that Dibbs alleged caused her injuries and assessed whether these events qualified as an "accident" under the Convention. Furthermore, the court needed to decide if Dibbs' injuries were indeed "injuries" that the Convention would cover. The court also evaluated the testimonies of Dibbs and other witnesses, weighing their credibility and demeanour to ascertain the truth of the events as described.

In its reasoning, the court found that the events described by Dibbs did not meet the threshold of an "accident" as defined by the Montreal Convention. The court held that the injuries Dibbs claimed to have sustained were not the result of an external, unexpected event but were instead related to her pre-existing condition. The court also found that the demeanour and credibility of the witnesses did not sufficiently support Dibbs' claims. Consequently, the court dismissed Dibbs' claims, finding that the injuries were not covered under the Convention. The court further held that the airline was not liable for the injuries Dibbs alleged, as they were not the result of the airline's negligence but rather a manifestation of her pre-existing condition.

In conclusion, the Federal Court ruled in favour of Emirates, dismissing Dibbs' claims for damages. The court ordered Dibbs to pay Emirates' costs of the proceedings, affirming that the injuries were not covered under the Montreal Convention due to their pre-existing nature. This decision underscores the importance of the precise interpretation of terms within international aviation agreements and the necessity for claimants to meet the burden of proof in such cases.

Orders