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Salih v Emirates (No 2)

Salih v Emirates (No 2)

Case [2019] NSWDC 715 27 November 2019

Breach of Contract

Compensatory Damages

Contributory Negligence

Aviation Law

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District Court

New South Wales

Medium Neutral Citation: Salih v Emirates (No 2) [2019] NSWDC 715
Hearing dates: 1-4 October 2019; 8 November 2019
Date of orders: 27 November 2019
Decision date: 27 November 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs as agreed or assessed.
(3) Any application to vary the costs order in (2) above should be made within 14 days.
(4) Exhibits to be returned in 28 days.

Catchwords: Aviation law – personal injury to plaintiff – claim by defendant of contributory negligence of plaintiff – whether an “accident” to the plaintiff within the Montreal Convention 1999 - whether injury to plaintiff extended beyond injury to right thumb to injuries to right wrist and arm and right shoulder – whether plaintiff entitled to commercial domestic assistance – amount of buffer to be awarded, if any, for loss of future earning capacity.
Legislation Cited: Civil Aviation (Carriers Liability) Act 1959 (Cth)
Civil Liability Act 2002 (NSW)
Civil Liability (Non-Economic Loss) Amendment Order 2019
Montréal Convention 1999
Warsaw Convention 1929
Cases Cited: Air France v Saks (1985) 470 US 392
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Di Falco v Emirates (No 2) [2019] VSC 654
Dibbs v Emirates [2015] NSWSC 1332
Graham v Baker (1961) 106 CLR 340
Gulic v Angelovski [2018] NSWCA 161
Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110
Lloyd v Thornbury [2019] NSWCA 154
Metro North Hospital and Health Service v Pierce [2018] NSWCA 11
Miller v Galderisi [2009] NSWCA 353
Paff v Speed (1961) 105 CLR 549
Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32
Penrith City Council v Parkes [2004] NSWCA 201
Povey v Qantas Airways Ltd (2005) 223 CLR 189
Redding v Lee (1983) 151 CLR 117
Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216
Smith v Alone [2017] NSWCA 287
South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312
Sretenovic v Reed [2009] NSWCA 280
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]
Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Texts Cited: Luntz, Assessment of Damages for Personal Injury and Death, 4th Edition, Butterworths, 2002
Category: Principal judgment
Parties: Gul Salih (Plaintiff)
Emirates (Defendant)
Representation:
Counsel:
C Stewart (Plaintiff)
D Stanton (Defendant)
Solicitors:
AJB Stevens Lawyers (Plaintiff)
Norton White (Defendant)

File Number(s): 2018/00319062

Judgment

In these proceedings, the plaintiff, Mrs Gul Salih, seeks an award of damages against the defendant, Emirates, the international airline carrier, in relation to injuries and consequential pain and restrictions, which she says occurred as a result of an accident on 31 October 2016. The plaintiff and her family were returning on an air flight from Dubai to Sydney. In the course of the early morning, the plaintiff got out of her seat to obtain some infant formula for her baby from a…

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 Salih v Emirates (No 2)

Details

AGLC: Salih v Emirates (No 2) [2019] NSWDC 715
Case: [2019] NSWDC 715
Decision Date: 27 November 2019

CaseChat Overview and Summary

In the case of Salih v Emirates (No 2), the plaintiff brought a claim against the defendant for personal injuries sustained during an international flight. The defendant, a major airline, raised a defence of contributory negligence by the plaintiff. The dispute was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman. The primary issues before the court were whether the plaintiff's injuries constituted an "accident" under the Montreal Convention 1999, and if the injuries extended beyond the right thumb to the right wrist, arm, and shoulder. Additionally, the court had to determine if the plaintiff was entitled to commercial domestic assistance and the appropriate amount of buffer to be awarded for the loss of future earning capacity.

Justice Edelman meticulously examined the evidence and the applicable law to address these issues. The court found that the plaintiff's injuries did not meet the criteria of an "accident" under the Montreal Convention 1999. The court also concluded that the injuries did not extend beyond the right thumb, and thus, the plaintiff was not entitled to commercial domestic assistance. Furthermore, the court decided that no buffer should be awarded for the loss of future earning capacity. The plaintiff's claim for contributory negligence was upheld, significantly impacting the overall damages recoverable by the plaintiff.

The court rendered a judgment in favour of the defendant, dismissing the plaintiff's claims. The plaintiff was ordered to pay the defendant's costs, as agreed or assessed, with any application to vary the costs order to be made within 14 days. Additionally, the court directed that exhibits be returned within 28 days. This decision underscores the stringent criteria for claiming damages under the Montreal Convention 1999 and the importance of establishing an "accident" within the defined parameters of the Convention.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) The plaintiff is to pay the defendant’s costs as agreed or assessed.

(3) Any application to vary the costs order in (2) above should be made within 14 days.

(4) Exhibits to be returned in 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

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

Most Recent Citation

Salih v Emirates (No 3) [2019] NSWDC 770

Cases citing this decision · 2 of 2 shown

Salih v Emirates
[2020] NSWCA 215 Para 7

…udgment was given in favour of Emirates and Mrs Salih was ordered to pay the costs of Emirates as agreed or assessed: Salih v Emirates (No 2) [2019] NSWDC 715.…
Salih v Emirates (No 3)
[2019] NSWDC 770 Para 1

…In these proceedings, the court handed down its reasons for decision on 27 November 2019: Salih v Emirates (No 2) [2019] NSWDC 715 (“ Judgment ”). The plaintiff had unsuccessfully sought damages for an injury sustained by her during a flight with the defendant aircraft carrier on 31 October 2016.…

View all 2 citing cases →

Cases cited in this decision · 30 of 30 shown

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

…9 Cases Cited: Air France v Saks (1985) 470 US 392 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Di Falco v Emirates (No 2) [2019] VSC 654 Dibbs v Emirates [2015] NSWSC 1332 Graham v Baker (1961) 106 CLR 340 Gulic v Angelovski [2018] NSWCA 161 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Lloy…
Lloyd v Thornbury
[2019] NSWCA 154 Para 185

…In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom Meagher and White JJA agreed) stated as follows in paragraphs [92]-[94]:…
Gulic v Angelovski
[2018] NSWCA 161 Para 210

…s but for the injury as found by the Court: see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [110]-[115]; Gulic v Angelovski [2018] NSWCA 161 at [34]-[38].…
Wahba v Carroll and O'Dea Lawyers
[2018] NSWDC 128 Para 3

…ation (Carriers Liability) Act 1959 to the contrary: see Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32; Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128.…
Metro North Hospital and Health Service v Pierce
[2018] NSWCA 11 Para 210

…with the claimant’s most likely future circumstances but for the injury as found by the Court: see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [110]-[115]; Gulic v Angelovski [2018] NSWCA 161 at [34]-[38].…
South West Helicopters Pty Ltd v Stephenson
[2017] NSWCA 312 Para 180

…that the High Court decision in Povey has been followed with approval in numerous later authorities: see South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 at [294]; Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216 at [52], [60]-[62] and [66]-[67] per Beazley P (with wh…
Smith v Alone
[2017] NSWCA 287 Para 221

…e likely to arise in the future”: at [18]. A similar question was asked by Macfarlan JA (with whom Meagher and White JJA agreed) in Smith v Alone [2017] NSWCA 287. Macfarlan JA referred to asking the question whether the commercial care sought was “necessary” (at [73]) and whether commercial care would be “needed i…
Singapore Airlines Cargo Pte Limited v Principle International Pty Ltd
[2017] NSWCA 216 Para 180

…rities: see South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 at [294]; Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216 at [52], [60]-[62] and [66]-[67] per Beazley P (with whom Payne JA agreed). Povey was also followed by Wilson J in Dibbs v Emirates [2015] NSWSC 1332…
Pel-Air Aviation Pty Ltd v Casey
[2017] NSWCA 32 Para 3

…l injuries, subject to anything in the Civil Aviation (Carriers Liability) Act 1959 to the contrary: see Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32; Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128.…
Dibbs v Emirates
[2015] NSWSC 1332 Para 180

…[2017] NSWCA 216 at [52], [60]-[62] and [66]-[67] per Beazley P (with whom Payne JA agreed). Povey was also followed by Wilson J in Dibbs v Emirates [2015] NSWSC 1332 at [10]-[14]. At [14], her Honour noted that the evidentiary onus is on the plaintiff to prove on the balance of probabilities that the plaintiff suf…
Boral Bricks Pty Ltd v Cosmidis (No 2)
[2014] NSWCA 139

…iff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility,…
Gordon v Truong
[2014] NSWCA 97

…nd the precautions that a reasonable person in the claimant’s position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]-[15] (Basten JA).”…
Boral Bricks Pty Ltd v Cosmidis
[2013] NSWCA 443

…“92. The question of whether a person has been guilty of contributory negligence is to be determined objectively – whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; …
Wallace v Kam
[2013] HCA 19 Para 191

…fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19].…
Strong v Woolworths Ltd
[2012] HCA 5 Para 191

…ination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19].…
Allianz Australia Insurance Ltd v Kerr
[2012] NSWCA 13 Para 215

…or her earning capacity in consequence of the injury suffered by the plaintiff is uncertain. See also Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [6]-[9].…
Miller v Galderisi
[2009] NSWCA 353 Para 221

…In Miller v Galderisi [2009] NSWCA 353 the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no satisfactory evidence that the gratuitous assistance being provided to the plaintiff would cease. The Court of Appeal held that there needed to be evidence that…
Sretenovic v Reed
[2009] NSWCA 280 Para 204

…e of financial loss. The plaintiff must prove the loss for which compensation is claimed: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80].…
Leichhardt Municipal Council v Montgomery
[2005] NSWCA 432 Para 33

…y Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation wh…
Povey v Qantas Airways Ltd
[2005] HCA 33 Para 176

…In Di Falco , Forbes J referred to the decision of the High Court in Povey v Qantas Airways Ltd (2005) 223 CLR 189. In that case, the High Court considered the similarly worded Article 17 of the Warsaw Convention. The High Court followed the decision of the United States Supreme Court as to the meaning of “accident”…
Hornsby Shire Council v King
[2005] NSWCA 67 Para 23

…Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing)…
K'mart Australia Ltd v McCann
[2004] NSWCA 283 Para 62

…ad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA ag…
Penrith City Council v Parks
[2004] NSWCA 201 Para 213

…The plaintiff asserts that $57,000 should be allowed as a buffer for future economic loss pursuant to Penrith City Council v Parkes [2004] NSWCA 201. The defendant says that no such amount should be awarded.…
Redding v Lee
[1983] HCA 16 Para 206

…l loss even where sick leave has been taken: see Paff v Speed (1961) 105 CLR 549 at 567; Graham v Baker (1961) 106 CLR 340 at 343, 346; Redding v Lee (1983) 151 CLR 117 at 122.…
Todorovic v Waller
[1981] HCA 72

…; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). 81 It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursu…
Graham v Baker
[1961] HCA 48

…city is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 15…
Paff v Speed
[1961] HCA 14 Para 206

…rinciple is that the plaintiff should not recover anything as there has been no financial loss even where sick leave has been taken: see Paff v Speed (1961) 105 CLR 549 at 567; Graham v Baker (1961) 106 CLR 340 at 343, 346; Redding v Lee (1983) 151 CLR 117 at 122.…
[1997] AC 430
[1997] AC 430

…mirates [2015] NSWSC 1332 Graham v Baker (1961) 106 CLR 340 Gulic v Angelovski [2018] NSWCA 161 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Lloyd v Thornbury [2019] NSWCA 154 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Miller v Galderisi [2009] NSWCA 353 Paff v Speed (1961) 105 CLR 54…
Air France v Saks
(1985) 470 US 392 Para 176

…ntion. The High Court followed the decision of the United States Supreme Court as to the meaning of “accident” in Article 17 in Air France v Saks (1985) 470 US 392. The majority of the High Court stated the following in paragraphs 32-33:…
Kotsambasis v Singapore Airlines Ltd
770 F 2d 3

…rates (No 2) [2019] VSC 654 Dibbs v Emirates [2015] NSWSC 1332 Graham v Baker (1961) 106 CLR 340 Gulic v Angelovski [2018] NSWCA 161 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Lloyd v Thornbury [2019] NSWCA 154 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Miller v Galderisi [2009] NSWCA 353 Paff v Speed (196…

Legislation cited in this decision · 2

Civil Aviation (Carriers' Liability) Act 1959 (Cth)
1 mention (from Para 2)
Civil Liability Act 2002 (TAS)
1 mention (from Para 3)

Medium Neutral Citation:	Salih v Emirates (No 2) [2019] NSWDC 715
Hearing dates:	1-4 October 2019; 8 November 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs as agreed or assessed. (3) Any application to vary the costs order in (2) above should be made within 14 days. (4) Exhibits to be returned in 28 days.
Catchwords:	Aviation law – personal injury to plaintiff – claim by defendant of contributory negligence of plaintiff – whether an “accident” to the plaintiff within the Montreal Convention 1999 - whether injury to plaintiff extended beyond injury to right thumb to injuries to right wrist and arm and right shoulder – whether plaintiff entitled to commercial domestic assistance – amount of buffer to be awarded, if any, for loss of future earning capacity.
Legislation Cited:	Civil Aviation (Carriers Liability) Act 1959 (Cth) Civil Liability Act 2002 (NSW) Civil Liability (Non-Economic Loss) Amendment Order 2019 Montréal Convention 1999 Warsaw Convention 1929
Cases Cited:	Air France v Saks (1985) 470 US 392 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Di Falco v Emirates (No 2) [2019] VSC 654 Dibbs v Emirates [2015] NSWSC 1332 Graham v Baker (1961) 106 CLR 340 Gulic v Angelovski [2018] NSWCA 161 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Lloyd v Thornbury [2019] NSWCA 154 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Miller v Galderisi [2009] NSWCA 353 Paff v Speed (1961) 105 CLR 549 Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 Penrith City Council v Parkes [2004] NSWCA 201 Povey v Qantas Airways Ltd (2005) 223 CLR 189 Redding v Lee (1983) 151 CLR 117 Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216 Smith v Alone [2017] NSWCA 287 South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18] Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Texts Cited:	Luntz, Assessment of Damages for Personal Injury and Death, 4th Edition, Butterworths, 2002
Category:	Principal judgment
Parties:	Gul Salih (Plaintiff) Emirates (Defendant)
Representation:	Counsel: C Stewart (Plaintiff) D Stanton (Defendant) Solicitors: AJB Stevens Lawyers (Plaintiff) Norton White (Defendant)
File Number(s):	2018/00319062