An Australian woman who sued Emirates, claiming they refused to give her enough water onboard, has lost her case. She now faces staggering legal fees.
I wrote about the case earlier this year. Lina Di Falco was traveling from Melbourne to Dubai in March 2015. She claimed that she requested water on four different occasions, but flight attendants refused (they were performing other duties). Two requests were before takeoff, one before the meal service, and one after. Water was served with the meal.
After her requests for additional water were refused, she felt dizzy and stood up to use the lavatory. On her way there, she collapsed, falling upon her ankle. Although she claimed the pain was “10 out of 10” she did not visit a doctor until she returned to Australia, where she was told her ankle was broken and required surgery.
She told the Victoria Supreme Court that as a result, her marriage broke, she withdrew from friends, can no longer gardens or exercise and has thus gained weight, and now suffers from depression.
In defense, Emirates argued that it never denied Di Falco water. Rather, it was unable to immediately grant her request due to superseding flight tasks. Emirates added that it offered a water fountain onboard its A380 (Di Falco claimed she was unaware of it). Flight attendants also helped her back to her seat after her fall and provided her a large bottle of water.
The Decision
Justice Jacinta Forbes sided with Emirates, holding that the carrier had no liablity.
At one point in her opinion, she found it “unusual” to make so many requests for water and faulted the plaintiff for never using her flight attendant call button.
I find that it was usual practice to provide water on request to passengers. I accept that this was qualified by competing demands on attendants’ time. Competing demands commonly presented, particularly during pre-departure when the first two requests were made, and during service when the third and fourth requests were made.
At other times requests for water were ordinarily responded to. While there was much evidence about the nature of the call bell system and the way that it operated to order response to requests, the plaintiff at no time used this call button to seek water. Nor did she seek to attract the attention of an attendant directly rather than using the call bell in the hour or so after take–off and prior to the start of service…
Justice Forbes found that Emirates never actually denied her request, just deferred it due to the nature of service in economy class:
In my view, and conceded by Counsel for the plaintiff, here the requests were not refused, merely deferred to later.
She also argued that the key in determining a whether a breach of duty of care occurred is not per the subjective expectations of the plaintiff, but the objective standards of common practice:
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.
Therefore, no accident occurred:
In this case, 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. I find as a fact that nothing unusual or unexpected occurred on the flight.
Therefore I find that there is no ‘accident’ as defined by Article 17 of the Montreal Convention and so no liability of the defendant pursuant to s 9E of the Carriers’ Act in respect of the personal injury suffered by the plaintiff.
Bottom line:
[N]one of the circumstances leading to the mild dehydration amount to an unusual or unexpected event or happening so as to engage liability under the Carriers’ Act.
CONCLUSION
Emirates is now seeking to recover its full court costs, pointing out that it tried to settle with Di Falco before the matter went to trial and she refused. As this was a Victoria Supreme Court case, I’m not sure if further appeal is possible.
> Read More: Woman Sues Emirates, Claims She Was Denied Water On Longhaul Flight
image: Emirates
Good post as always, although the last sentence may be incorrect. I believe that the “Victoria Supreme Court” actually embraces trial courts and appellate courts. It appears that this decision was issued by the trial court (the “common law division” of the supreme court) and appeal is possible (to the supreme court’s court of appeal).
Thanks Robert. If someone else who may be a lawyer in Australia confirms, I will update post.
New York is funny. They have a Supreme Court, but unlike the federal system, the NY Supreme Court is a lower court. There’s a higher Court of Appeals.
I know someone that got a job, in part, because they told the boss that the applicant’s father was a Supreme Court justice in NY. The boss didn’t know that there are maybe hundreds of supreme court judges in NY.
Matt,
Care to elaborate on what the staggering fees are? Given the fact you put it in the headline, and didn’t even give any details on it.
We’ll find out the exact number soon enough, but I’d guess in the neighborhood of 60-70K AUD.
Not a lawyer in Australia, but this is probably a reliable source – “The Court’s Trial Division administers and hears cases. If a party has cause to appeal a decision handed down from the Trial Division they can seek to do so in the Court of Appeal.” https://www.supremecourt.vic.gov.au/about-the-Court
Looks analogous to New York, where the Supreme Courts are the trial courts and the Court of Appeals is the high court.
I wouldn’t say the Supreme Court is a ‘trials court’, as there is also a County Court in Victoria which is the principal trials court. There was presumably a jurisdictional reason for this case to be heard in the Supreme Court.
In either case, there is a Court of Appeal within the Supreme Court which the person may be able to appeal to. If that was unsuccessful, she may be able to ‘apply for leave’ to appeal from the High Court of Australia. If it ever got that far, which I doubt, I wouldn’t like her chances of that being granted… Not to mention the legal costs.
Anyway, seems like an odd way to deal with an issue. Where I haven’t gotten something I ‘need’ in economy, I force the issue by going to the galley and it is quickly dealt with.
LOL Yeah the FLIGHT CREW caused your marriage to break, you to stop hanging out with your friends and you to become fat… keep telling yourself that, lady.
Exactly! You took the words right out of my keyboard. Yeah, as if being a lazy, narcissistic whiner (which the stories I’ve read seem to portray) had nothing to do with her husband running off like an escaped convict!
Good. Hopefully this will deter other nuisance lawsuits…. But I know it won’t. Unfortunately there will always be some disgruntled nut looking to get rich, and some unscrupulous lawyer who will take the case.
Not all country have such litigious society as the murican…. Then again, the plaintiff’s lawyer maybe just having fun or looking for a free advert. Haha…
correction needed :
“can no longer garden~~~~s~~~ or exercise and has thus gained weight”
Wait… Where’s the “staggering legal fees” mentioned in the title?
Is that a clickbait or an assumption from someone who thinks knew the proceeding laws in Australia but apparently not?
It is evident that Australian Judges are not as stupid as their American counterparts, as per my comments on the previous blog post.
In support of Matthew, The Age (Melbourne, Australian Newspaper) states that the women faces “potential costs running into hundreds of thousands of dollars”.
If the judge awards costs, this amount would not be farfetched.
Thank you for quoting the very very important word here. “Potential”.
I don’t like her prospects, but I’ll have to wait and see. Assuming she wasn’t using “no win, no fee” lawyer, her own costs wouldn’t be pretty.
Emirates “…tried to settle with Di Falco before the matter went to trial…”
Wonder what blandishment they offered: reimbursement of the cost of her ticket? another trip to anywhere in a higher class?
Free bottled water on her next trip?
Pretty dumb to go to trial rather than settle ( assuming it was a genuine offer), but some people won’t listen to reason when they feel aggrieved ( assuming she was advised to settle).
She has the option of appeal. Not winnable unless as a point of law.