INJURING YOUR THUMB ON BOARD AN AIRCRAFT: IS IT AN ACCIDENT UNDER THE MONTREAL CONVENTION 1999?

In the recent Australian case of Salih v Emirates (No. 2) [2019] NSWDC 715 the District Court of New South Wales applied the Montreal Convention 1999 (MC) to the thumb injury of a passenger that took place on board an aircraft. The claimant was on a flight from Dubai to Sydney (the flight was part of a return itinerary from Sydney to Istanbul via Dubai). During the flight, she opened the hatch door of the overhead compartment to retrieve infant formula for her baby, but the door fell quickly, and not with the usual slower hydraulic mechanism, near the base of her thumb causing her pain. As a result of the soft tissue injury at her thumb, she claimed that she experienced significant further injuries upon arrival that disrupted her daily professional and personal activities.

The main question for the District Court was whether the injury to the claimant’s thumb (bodily injury) was caused by an accident on board the aircraft under Art 17MC. Relying predominantly on the decision of the Supreme Court of Victoria in Di Falco v Emirates (No 2) [2019] VSC 654, the District Court  held that it was not and dismissed the claim of Mrs Salih.

In Di Falco, the claimant fainted on board an aircraft as a result of dehydration, fracturing her ankle. The Court held (following Olympic Airways v Husain 124 S Ct 1221 (2004)) that the inaction of the crew (failure to assist a distressed passenger) could constitute an accident under Art 17MC, Yet, in the case at hand the crew’s behaviour did not constitute an accident as the passenger’s requests for water “were not refused, merely deferred to later as a result of competing operational demands, a regular occurrence during flights”.

Applying Di Falco, the District Court in Salih held that to suffer an accident a claimant is required to “ identify an event or happening that is external to the passenger which may arise from an act or omission or from a combination of acts or omissions and …the event must be unexpected or unusual. A passenger’s own reaction to the usual, normal and expected operation of the aircraft or any part of it is not an accident”. Therefore, the issue at stake was whether the operation of the door was defective. The Court concluded that the door was operating normally as i) the claimant did not report it as defective at the time of the injury;  ii) her husband gave evidence that the door opened in the normal fashion when he later opened the door; and iii) the maintenance logs of the flight did not disclose any defects.

Since no abnormality in operations was identified, the District Court rightly held that there was no accident and dismissed the claim: “the thumb was injured by the door dropping in the usual, normal and expected way. That is not an accident within the Convention. What it is, is merely the occurrence of an injury itself”.

 

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Professor George Leloudas

Dr Leloudas joined the School of Law in 2011. He is a graduate of the National and Kapodistrian University of Athens. He holds LLM degrees in Commercial Law from the University of Bristol (England, 2002) and in Air and Space Law from the Institute of Air and Space Law of McGill University (Montreal, Canada, 2003). He also completed his PhD degree in air law with emphasis on liability and insurance at Trinity Hall, Cambridge University in 2009. Before joining the School Dr Leloudas worked as a Solicitor in a leading aviation law firm in London for several years where he advised on aerospace liability and airlines’ regulatory matters. He was also an assistant to the legal counsel of the International Union of Aviation Insurers (IUAI) providing support in relation to the replacement of the Rome Convention on Surface Damage. Dr. Leloudas is an instructor at the Training and Development Institute of the International Air Transport Association (IATA) where he teaches international air law for lawyers and legal professionals and law of aviation insurance. I joined the Institute of International Shipping and Trade Law (IISTL) in 2011 as a lecturer and I was promoted to Associate Professor in 2015. I am a graduate of the National and Kapodistrian University of Athens. I also hold LLM degrees in Commercial Law from the University of Bristol (England, 2002) and in Air and Space Law from the Institute of Air and Space Law of McGill University (Montreal, Canada, 2003). I completed my PhD degree in air law with emphasis on liability and insurance at Trinity Hall, Cambridge University in 2009. Before joining the Institute, I worked as a Solicitor at Gates and Partners in London for several years where I advised on aerospace liability and airlines’ regulatory matters. I was also an assistant to the legal counsel of the International Union of Aviation Insurers (IUAI) providing support in relation to the replacement of the Rome Convention on Surface Damage. I am an instructor at the Training and Development Institute of the International Air Transport Association (IATA) where I teach international air law for lawyers and legal professionals, law of aviation insurance and air cargo liability. I am also a contributing writer to Shawcross and Beaumont on Air Law. My principal research interest is the carriage of passengers and goods by air, but my interests extend to multimodal transport, insurance law and tort law. I am an active researcher and my doctoral thesis, "Risk and Liability in Air Law" was published by Informa in September 2009. My most recent article is entitled ʻ“Door to door” application of the international air law conventions: commercially convenient, but judicially dubiousʼ and has been accepted for publication in the August 2015 issue of Lloyd’s Maritime and Commercial Law Quarterly (August 2015 issue). I am also authoring a book together with Professor Malcolm Clarke of Cambridge University on Air Cargo Insurance (Informa law from Routledge, 2016).

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