Australian Court: air carrier not liable under Montreal for faint on board the aircraft

Michael Wukoschitz's picture

The plaintiff was a passenger on Emirates Flight EK 407 from Melbourne to Dubai departing Melbourne on the evening of 15 March 2015. Some hours into the flight, feeling nauseous shortly after the first meal service, she got up from her seat to go to the bathroom. At the bathroom doorway she fainted, fracturing her right ankle in the fall. She says that the reason for her faint was that she was dehydrated. Although she had asked for water on the plane it had not been provided. She sued the defendant seeking damages for her injuries.

According to the findings of the court, the plaintiff sat in economy in row 71 on the aisle, five rows past a galley area containing bathrooms with a drinking fountain and water cups were on the exterior wall of the bathroom cubicle facing the corridor. She made four requests for water. Two were made before the flight took off to the same attendant as that attendant was helping a blind man seated in front of her. The meal was accompanied by a cuplet of 150 ml of water. The third request was made after the meal was served, shortly after drinking the water. The fourth request was made of those clearing the plates.

The Supreme Court of Victoria found that all requests should be treated as deferred, not as failures to act or refusals to act. The Court held that a deferral of a request (for good reasons) is not an event because it is neither an omission nor an act which could be an accident for the purposes of Article 17 of the Montreal Convention. In addtition, that it is not an unusual or unexpected event if the airline follows its policy. The claim was therefore dismissed.

Case: Di Falco v Emirates (No 2) [2019] VSC 654; full text of judgement avialable at