Dibbs v Emirates  NSWSC 1332
The plaintiff alleges she suffered personal injuries resulting from an ‘accident’ within the meaning of Article 17 of the 1999 Montreal Convention (MC) and sought damages1 in the New South Wales Supreme Court in respect of those alleged injuries.
Emirates sought to have the plaintiff’s claim dismissed on two grounds. Firstly, there had not been an ‘accident’ during the flight to which ‘bodily injury’ allegedly sustained by the plaintiff was attributable and secondly, if there was an‘accident’ in accordance with the meaning in the MC, then that injury was not as a consequence of the alleged incident.
In May 2012, whilst on an international flight from Sydney to Malta (via Dubai), the plaintiff allegedly sustained a severe injury to her back when a cup of hot tea was spilled onto her leg, reportedly causing her to jump up from her seat in an effort to avoid the spill, twist sharply and fall onto her husband who was seated next to her in the adjoining seat (incident).2
The Emirates cabin crew reportedly responded immediately to the incident by assisting the plaintiff with cold water, burn cream and the provision of first class travel pyjamas to wear while her own clothes dried. After accepting the assistance rendered, the plaintiff reportedly laid down on the floor near the first class section of the aircraft at which time a member of the Emirates cabin crew liaised with the plaintiff and completed an incident report form.3
Emirates did not dispute that a hot drink had spilt onto the plaintiff during the course of the flight, but did not accept the remainder of the plaintiff’s claim including the alleged back injury, or the quantum of the claim presented by the plaintiff.
Conclusion as to whether an ‘accident’ occurred
As to the threshold issue of whether there had been an accident as pleaded by the plaintiff, causing bodily injury and giving rise to a liability on the part of Emirates, the court found against the plaintiff4 on the basis ‘she had failed to discharge the evidentiary burden requiring her to establish that an accident occurred’.5
In reaching its decision, the court found the plaintiff was not a reliable historian concerning the events of the flight6emphasising various factual inconsistencies between Emirate’s contemporaneous incident report, a written statement prepared for the purpose of litigation, the plaintiff’s (and her husband’s) oral evidence upon examination and cross-examination and medical evidence which followed the alleged incident.
Some of the factual inconsistencies observed by the court, and upon which the court found weighed against a finding in favour of the plaintiff, included:
- The plaintiff alleging in her written statement that when the hot tea landed upon her leg, she fell toward her right side7and then in subsequent oral evidence, correcting that allegation by stating that she in fact fell to her left side.8
- The plaintiff’s description of how she ‘jumped from her seat’ all the while reportedly wearing a seatbelt and noting that her and her husband both had their tray tables down. Given the limited seating space in economy class this factual account was questioned by the court.9
- Despite being in reportedly severe pain as a result of the back injury, the court found there was no evidence to suggest the plaintiff either:
- reported the injury to her husband in the immediate aftermath of the incident; or
- reported the injury to, or sought treatment/pain relief from,10 the Emirates cabin crew in the immediate aftermath of the incident or at any subsequent time during the remainder of the international journey.11
- Limited to no reference in the medical records as to the alleged incident, or the alleged incident being connected to the mechanism of injury. It was specifically noted by the court that the plaintiff did not seek medical treatment in Malta until five days following her arrival and, when she did seek treatment, she did not report the incident as the cause of her allegedly severe back injury.
- Both the plaintiff and her husband ‘down playing’ the level of the plaintiff’s back injury before the Malta flight and over-stating the extent and impact of the alleged injury after the subject flight. The court concluded this was either not supported by their own oral evidence or by the medical evidence12 which confirmed the plaintiff in fact had a significant disability arising from a pre-existing back injury, which adversely affected every aspect of the plaintiff’s life.13
In addition to exhaustively identifying the factual reasons why the court ‘was not able to accept the plaintiff’s account as cogent, or in any way a realistic account of a reasonably possible event’,14 the court also went so far as to comment on the demeanour of the plaintiff as a witness ultimately concluding that she was not a truthful witness.15 Similar adverse conclusions were drawn by the court in relation to the demeanour and truthfulness of the plaintiff’s husband.16
While it was not necessary to assess the issue of damages because of the finding against the plaintiff, the court nonetheless proceeded to make it clear that:
‘even had it been persuaded on balance that the plaintiff was injured as pleaded, it would have assessed the resultant damages as being very limited’.17
On that basis, and having regard to an assessment of damages in accordance with the Civil Liability Act,18 the Court would have only made a modest award of damages in the order of $33,000.00.19
While the court’s assessment (and criticism) of the various evidentiary issues which ultimately resulted in this case being dismissed are certainly interesting, it does also serve to emphasise a more important issue that the success or failure of any given claim will always be contingent on credible witnesses and documentary evidence.
In this case, the airline’s incident report was accepted and relied upon by the Court as a credible contemporaneous account of the incident. Those in the aviation industry who interface with members of the public ought always ensure incident reports and like material are gathered contemporaneously to an incident (and retained for a sufficient period of time) so a reliable and accurate account of an incident can be recalled should litigation ensue (and in the event individual employees are unable to specifically recall the event themselves).
Given the court’s findings in this matter, we would be surprised if the plaintiff sought to appeal the decision, but we will nonetheless monitor developments in the event an appeal does materialise.