Is an airline liable if it fails to provide water often, and the passenger faints, falls and injures themselves on the way to the toilet because they are dehydrated?
This was the question the Supreme Court of Victoria had to decide in the recent decision of Di Falco v Emirates (No 2)  VSC 654, a decision of Justice Forbes of 15 October 2019.
Article 17 of the Montreal No 4 Convention (1999) imposes strict liability upon international airlines to compensate passengers up to 128,821 SDRs (Special Drawing Rights) for personal injuries. For airlines which fly into Australia, the amount is higher - up to 480,000 SDRs (approximately AUD $960,000).
Strict liability means that for in-flight injury claims there is no need to prove the airline was at fault. And the airline cannot defend the claim by proving it was not negligent.
But the passenger must prove there was an accident which caused the injury.
This is the text of Article 17:
- The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Article 17 is the law in Australia by s 28 of the Civil Aviation (Carriers’ Liability) Act 1959.
The Facts in Di Falco v Emirates (No 2)
At about 9:40 pm in the evening on 15 March 2015, Ms Di Falco boarded Emirates Flight EK 407 from Melbourne to Dubai. She had no water with her as her bottle of water was confiscated by security when her bag was screened.
Before the plane departed (the ‘pushback’) at 10:32 pm (7 minutes after scheduled departure), she made two requests for water to the same attendant, who responded that water will be served with the meal service.
She sat in economy in row 71, which was five rows past a galley area and toilets outside of which were a drinking fountain and water fountain. Ms Di Falco said she had looked for, but not seen the fountains. Nor had an attendant pointed them out.
At about 12:30 am, the meal was served, accompanied by a cup of water (150 ml). She made a third request for water after the meal was served and a fourth request after the plates were cleared. The attendant responded that a drinks/beverages cart would follow.
All of her requests were personal. They not made by calling the attendant’s call button.
At about 3:30 am, 5 hours after pushback, before the drinks cart came, Ms Di Falco left her seat to go to the toilet, as she was feeling nauseous. She fainted at the doorway to the toilet, fell to the floor and fractured her right ankle.
The accident which caused the injury must be an unexpected or unusual event
The Court adopted the formulation in Air France v Saks  USSC 43 that an accident necessary to cause an injury is:
an unexpected or unusual event or happening that is external to the passenger, and not where the injury results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, in which case it has not been caused by an accident under Article 17.
In Saks, the Supreme Court of the United States refused the claim made by a passenger that they were made deaf by the allegedly negligent maintenance and operation of the cabin pressurisation system, because there was no event.
Ms Di Falco relied upon Olympic Airways v Husain  USSC 15, in which the Supreme Court of the United States held that both the flight attendant’s failure to act (an omission) and their refusal to act (an act) could both constitute an event for the purposes of Article 17.
In Hussein, the event was the flight attendant’s refusal of three requests made by Dr Hussein to be moved away from the smoking section of the aircraft, because of his anaphylactic reactions to cigarette smoke. The attendant’s reasons were either that she was too busy or that the plane was full. Dr Hussein suffered a severe allergic reaction, collapsed and died.
In Ms Di Falco’s case, the Court found that there was no event, in that there was ‘no overall failure to provide water on request’. The first two requests were made while the cabin crew were preparing for take-off and could not be attended to immediately for safety reasons, while the other two were to be attended to when the drinks cart came, after the meal. The Court found that all requests should be treated as deferred, not as failures to act or refusals to act.
As for whether the event was unexpected or unusual, and external to the passenger the Court said that ‘this description is measured by reference to objective standards of normal aircraft operation, not by reference to the subjective expectation of the passenger’ of access to adequate hydration on board. The Court concluded:
I find that it was usual practice to provide water on request to passengers. I accept that this was qualified by competing demands on attendants’ time. Competing demands commonly presented, particularly during pre-departure when the first two requests were made, and during service when the third and fourth requests were made. At other times requests for water were ordinarily responded to.
In this case, the way in which the plaintiff’s requests were dealt with were in accordance with the usual practice of attendants and were not in disregard of or contrary to airline policy. I find as a fact that nothing unusual or unexpected occurred on the flight.
Therefore I find that there is no ‘accident’ as defined by Article 17 of the Montreal Convention.
The plaintiff’s claim is dismissed.
Although not necessary for the decision, the Court analysed what caused the fall.
The evidence was that there were a significant number of faints that occur on airlines – perhaps two to three a week and certainly it’s rare for a fortnight to pass without a faint occurring.
Given the evidence that the normal cabin conditions and post prandial situations can precipitate such episodes, the frequency is perhaps not as surprising as it might seem. The impact of adequate or inadequate hydration is but one matter in a factual matrix in any given circumstance.
At a preliminary hearing, Emirates made an application to dismiss that part of the claim as was for damages for non-economic loss, because the injury was not a significant injury within the meaning of the Wrongs Act 1958 (Vic) and so that loss was not recoverable.
The Court held that the Wrongs Act did not apply at all to the claim because the Wrongs Act deals with the recovery of damages caused by the fault of another, and because the Wrongs Act derogates from the rights provided under the Carriers’ Liability Act. See Di Falco v Emirates  VSC 472.
There are two interesting aspects of this decision.
The first is that if a passenger’s request is deferred, it is not treated as a refusal. The Court found that a deferral of a request (for good reasons) is not an event because it is neither an omission nor an act which could be an accident for the purposes of Article 17.
The second is that it is not an unusual or unexpected event if the airline follows its policy.
Many airlines now follow a policy of offering a free bottle of water or bringing the drinks / beveridge cart out as soon as the ‘fasten seatbelts’ sign is turned off. They also offer cups of water every hour throughout the flight.
Airlines say this policy promotes passenger health and wellbeing. But as Di Falco’s case shows, it also reduces the risk of liability for the airline for injury claims.