Salih v Emirates

The applicant, Ms Salih, sought leave to appeal from a decision of the primary judge concerning her claim for damages against Emirates. Ms Salih sustained an injury to her thumb when opening an overhead compartment during an international flight operated by Emirates. The primary judge had dismissed her claim, finding that the occurrence of her injury did not constitute an "accident" for the purposes of Article 17 of the Montreal Convention 1999, as incorporated into Australian law by section 9E of the *Civil Aviation (Carriers’ Liability) Act 1959* (Cth).

The central legal issue before the Court of Appeal was whether the primary judge erred in finding that Ms Salih's injury was not caused by an "accident" within the meaning of Article 17 of the Montreal Convention. This required the court to consider the established legal principles for determining what constitutes an "accident" in the context of international air carriage, particularly whether the event was an "unexpected or unusual event or happening external to the passenger."

The Court of Appeal, comprising Bell P, Gleeson and McCallum JJA, concluded that there was no question of principle arising from the primary judge's decision. The proposed appeal was found to be wholly concerned with factual findings made by the primary judge, and it was not demonstrated that these findings were "glaringly improbable." Accordingly, the court determined that leave to appeal should not be granted.

The summons seeking leave to appeal was dismissed with costs.