In this blog post, Christopher Fleming of 12 King’s Bench Walk considers the recent widely reported decision of Di Falco v Emirates (No 2) [2019] VSC 654 (15 October 2019) (available here) in which the Supreme Court of Victoria found that injuries caused by an airline’s failure to provide a passenger with water when requested did not constitute an “accident” under the Montreal Convention 1999.
The case is of particular interest because of certain significant differences in the Supreme Court’s approach to that of the Court of Appeal and House of Lords in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72. This blog suggests that the court reached the right result, but not quite by the right route.
Background
Ms Di Falco was a passenger on an Emirates flight from Melbourne to Dubai. She boarded the flight around 45 minutes before take-off. Her evidence was that she requested water on four occasions – twice before take-off, and twice after the meal service. She was provided with a glass of water with her meal. The attendants deferred bringing her water following the first two requests, telling her water would be served during the course of the meal, and after the meal telling her that a drinks cart would serve her shortly. At no point was she made aware of the presence of a drinking fountain available on board.
Shortly after her fourth request, Ms Di Falco felt the need to be sick and left her seat to go to the toilet. As she made her way to the nearest toilet Ms Di Falco fainted, fracturing her right ankle in the fall. Her case was that she had fainted due to dehydration.
Test for liability
The claim against the airline was brought under art. 17(1) of the Montreal Convention 1999 (as given effect in Australia by Part 1A of the Civil Aviation (Carriers’ Liability) Act 1959), which states:
“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.”
This strict liability regime is considered in detail in a previous blog post. In summary, there are four elements to the test: (i) an “event or happening” which is (ii) “unexpected or unusual” and (iii) “external to the passenger” and which (iv) constitutes a link in the causal chain to the claimant’s injury.
“Event or happening”
The airline argued that a failure to supply adequate hydration could not be characterised as an “event”: it was a pure omission. Forbes J rejected that submission in no uncertain terms, stating: “Clearly an omission can amount to an event.”
This conclusion was said to have been supported by the decision in Husain v Olympic Airways (2004) 124 S Ct 1221, where a flight attendant refused an asthmatic passenger’s wife’s requests to move him away from the smoking section of the aircraft, with the result that he suffered a severe asthma attack and died. The majority of the court was satisfied that the failure to move the passenger constituted an accident for the purposes of the Convention.
However, the precise ratio of Husain is controversial: see the various articulations of the principle it established by different judges at the highest level in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72. Moreover, the conclusion that a failure to act can constitute an “event” stands in contrast to the approach of Lord Phillips MR, sitting in the Court of Appeal in that case ([2003] EWCA Civ 1005) that “inaction is the antithesis of an accident”. On the other hand, the difficulties inherent in applying a mechanistic act/omission distinction have been well illustrated by a recent English case.
These judgments do not appear to have been brought to the attention of Forbes J. Ultimately, however, they would not have affected her decision since she was not satisfied that the other criteria had been made out.
“Unexpected or unusual” and “external to the passenger”
Forbes J elided these two criteria into a single test (see [43]–[44]). She considered that the important question was whether there had been a departure from the airline’s standard policy or procedure:
“In my view the requirement that the event be ‘external to the passenger’ means that whether or not it meets this description is measured by reference to objective standards of normal aircraft operation, not by reference to the subjective expectation of the passenger.”
In that respect, she made the following findings:
- The airline’s usual practice was to provide water on request to passengers, though this was subject to competing demands on attendants’ time.
- There was no policy about generally informing passengers of the presence of drinking water and cups at the bathroom station unless specifically asked. It followed that there was nothing unusual about the absence of general information about the presence of drinking fountains.
- Importantly, Ms Di Falco’s requests were not refused, merely deferred. Forbes J summarised the airline’s standard procedure as follows:
“The normal procedure here was that water was offered through the cabin with the meal service and thereafter at 45 minute intervals. Otherwise water would be served on request if there was a capacity to do so. Normally a request for water would result in an attendant getting a water. While a refusal was ‘unlikely,’ both a deferral and the provision of water might happen regularly.”
On that basis, she concluded, nothing “unusual or unexpected” had happened on the flight because “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.”
The elision of the two criteria into a single test is surprising (although it may in part be a product of how the issue was argued by the parties). First, it runs contrary to the articulation of the test in the key US Supreme Court case of Air France v Saks 470 US 392, in which the criteria are separate. Second, it represents a significant departure from way in which the two criteria have been applied in practice. For example, in England, whilst “externality” is subject to an objective test based on the normal operation of the aircraft in a very similar way to that described by Forbes J (see Barclay v British Airways Plc [2008] EWCA Civ 1419), the “unusual or unexpected” test is subjective. In the House of Lords in Deep Vein Thrombosis, Lord Scott said this:
“It is important to bear in mind that the “unintended and unexpected” quality of the happening in question must mean “unintended and unexpected” from the viewpoint of the victim of the accident. It cannot be to the point that the happening was not unintended or unexpected by the perpetrator of it or by the person sought to be made responsible for its consequences. It is the injured passenger who must suffer the “accident” and it is from his perspective that the quality of the happening must be considered.”
It does not appear that either of the English decisions were brought to the attention of Forbes J. If they had been then perhaps a different conclusion would have been reached on the “unusual or unexpected” criterion. But arguably the complete answer to the Claimant’s case would have been the objective test for externality: there was, on the facts as Forbes J found them, no departure from the usual practice or policy of the airline onboard the aircraft.
Causation
Forbes J went on to find that “some mild dehydration probably was a factor contributing to a fall that had some atypical features of a vasovagal episode and also caused by orthostatic hypotension.” This would have been sufficient to satisfy the weaker “link in the chain” test for causation (for discussion of this test, see Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [26]). However, as the circumstances leading up to Ms Di Falco’s fall did not satisfy the remaining limbs of the test, Forbes J concluded that liability under the Convention could not follow.