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.
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.
[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.
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.