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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