In Salih v Emirates [2020] NSWCA 215, the NSW Court of Appeal has denied an application for leave to appeal (the Application) made by a passenger, Mrs Salih (the Plaintiff), who was injured when an overhead compartment landed on her thumb during an international flight.
The Plaintiff claimed the injuries were sustained when she was opening an overhead luggage compartment which fell open onto her thumb causing soft tissue damage. She argued the hydraulic opening system of the compartment was faulty.
A claim was brought under s9E of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL) and she relied on Article 17 of the Montreal Convention 1999 (Convention).
Article 17 provides:
Article 17 – Death and Injury of Passengers – Damage to Baggage
The question before the Court was whether the events which gave rise to the injury fell within the definition of an “accident” under the Convention.
Referring to the relevant case law, the Court said at [179]:
… in my view there was no “accident” in the present case within the Convention. An “accident” that is a cause of an injury is different to the occurrence of injury itself. It is necessary 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 where 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. While the plaintiff claims that something unexpected or unusual did happen by the door falling heavily onto her hand, I have found based on ..[the evidence]… the door was not defective or faulty. Accordingly, 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.
Accordingly, the Court found in favour of the Carrier.
There was no dispute that the primary judge correctly stated the law concerning the meaning of the concept of “accident” under the Convention, nor was there any dispute as to the application of those principles to the facts. The appeal was wholly concerned with factual findings.
Assuming the correct finding was that the compartment door opened in the usual manner, the Plaintiff accepted that the event occasioning the injury was not an accident within the Convention; whilst if the correct finding was that the overhead compartment door dropped “suddenly” on the Plaintiff’s thumb, the Carrier accepted that the event occasioning the injury was an “accident” within the Convention.
The Court held that the five statements of error submitted for the Plaintiff failed to fall within the appropriate cases for leave to be granted. Consequently, the Application was rejected.
With leave to appeal refused, the first instance decision emphasises that the question of whether an event constitutes an “accident” as defined by Article 17 of the Convention depends upon whether the event is unexpected or unusual by objective standards. A passenger’s own reaction to the usual, normal and expected operation of the aircraft or its components is not an accident.
