Plaintiff v Defendant

2 Ms Di Falco must show that she is entitled by statute to recover damages. She can only establish a right to damages if the Civil Aviation (Carriers' Liability) Act 1959[1] applies. So, the first issue to be decided is whether an 'accident' has occurred as it is defined in the Carriers' Act. If there has been an 'accident', then the second issue is whether that accident caused Ms Di Falco to fall and fracture her ankle. If I decide both of those issues in favour of the plaintiff then I must assess damages. The parties have agreed the quantum of pecuniary loss - medical expenses and loss of capacity to earn.[2] The appropriate quantum of general damages for pain, suffering and loss of enjoyment of life is not agreed.

3 Since 1929 legal liability for death and injury caused to international airline passengers has been governed by international treaty. The 'Warsaw Convention' of 1929[3] initially codified and governed the basis upon which damages could be recovered from airline carriers by passengers affected. It also put limits upon recovery of compensation. The Warsaw Convention was modified and updated by subsequent treaty and protocols. International treaties only have effect through domestic legislation.

4 Australia enacted the Carriers' Act. This act gave domestic effect to the Warsaw Convention and its successors.

5 In 1999 the Montreal Convention[4] came into force. This is the relevant international treaty applicable to the flight that Ms Di Falco boarded. In 2008 the Carriers' Act was amended[5] by the addition of Part 1A - Carriage to which the 1999 Montreal Convention applies. Therefore, Part 1A is the relevant part of the Carriers' Act governing liability of Emirates to the plaintiff. Part 1A includes sections 9A to 9L.

Liability in respect of injury

Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

The liabilities contained in section 9F that are not excluded are not relevant here.

7 The Montreal Convention which is appended as Schedule 1A to the Carriers' Act sets out in Chapter III, 'Liability of the Carrier and Extent of Compensation for Damage'. Relevantly, Article 17(1), repeated in substance in section 28 of the Carriers' Act deals with death and injury to passengers. It 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.

8 Section 9E of the Carriers' Act substitutes a liability under the Montreal Convention for any other basis of civil liability. Article 17(1) requires only that there be an "accident which caused the death or injury." If an "accident'' as described has occurred, liability of the carrier is strict. Any claims based upon a common law duty of care or statutory or contractual liability are no longer available. Therefore, the starting point to establish liability is that there has been an 'accident' within the meaning of Article 17(1).

9 International treaties such as the Montreal Convention are to be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in light of the object and purpose of the treaty.[6] The wording of Article 17 has varied from the original Warsaw Convention, but has consistently required the occurrence of an accident. Interpretation should be consistent across contracting states.[7] It is therefore helpful to canvas the interpretation of "an accident" in Article 17 by the Supreme Court of the United States.

10 The starting point is Air France v Saks[8]. Mr Saks was a passenger made deaf by allegedly negligent maintenance and operation of the cabin pressurisation system. The claim was brought under liability stemming from the Warsaw Convention which contained the following definition of injury:

if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.[9]

There the Court held that the 'accident' described in Article 17 necessary to cause an injury is:

an unexpected or unusual event or happening that is external to the passenger, and not where the injury results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, in which case it has not been caused by an accident under Article 17.[10]

This definition makes it necessary to perform two analytical tasks. First, it makes clear that the relevant accident is not the medical event that produces the injury. Second, it distinguishes external event which caused injury from the care taken by the airline to avert injury.

11 In Olympic Airways v Husain,[11] Dr Husain travelling on an international flight requested that he be moved away from the smoking section because of a history of anaphylactic reactions to cigarette smoke. Three requests for assistance to move seats were refused by a particular attendant, the reason given being either that she was too busy or that the plane was full.[12] Dr Husain collapsed and died shortly after despite being given emergency shots of epinephrine and oxygen. At trial the flight attendant's refusals were held to constitute an accident within the meaning of Article 17. This was because the refusals were external to Dr Husain and were unexpected or unusual because they were in blatant disregard of industry standards and airline policies. The decision was affirmed on appeal and the matter went to the United States Supreme Court.

12 Before the Supreme Court the correctness of the Saks definition was not disputed. Rather, the competing arguments contended for different events as being the focus of the inquiry as to an accident. The airline contended that the 'event' was the presence of cigarette smoke. The smoke was due to the normal operation of the aircraft (smoking being permitted) and so the injury and death was the passenger's internal reaction to the normal operation of the aircraft. Dr Husain's widow contended that the flight attendant's refusal to move the passenger was the event.

13 By majority the Court held that both a failure to act as well as an affirmative act could constitute an event. It held that the rejection of an explicit request for assistance would be an "event" or "happening". The minority held that a failure to act cannot amount to an event or happening. In reasoning the minority cited with approval the Victorian Supreme Court of Appeal decision of Qantas Ltd v Povey[13] ('Povey') as authority that a failure (to warn of the risk of DVT) does not amount to an event.

14 The Court also recognised that any injury is the product of a chain of causes. What is necessary is that any one link in the causal chain must be unusual or unexpected. The Supreme Court proceeded on the assumption that the attendant's conduct was unusual or unexpected and did not determine that issue because the trial finding that the conduct was unusual or unexpected was not the subject of challenge on appeal.

15 Subsequent to the decision in Husain, the case of Povey came before the High Court of Australia. Povey dealt with whether the occurrence of a deep vein thrombosis ('DVT') as a result of a flight amounted to an accident. Argument as to what constituted "an accident" within Article 17 was again advanced from an acceptance that the definition in Saks was to be adopted.[14] The appellant argued that conditions and procedures for passengers constituted a combination of acts and omissions that amounted to an accident. These were said to involve cramped seating conditions, impediments to leaving seats and encouragement to remain seated, the provision of alcohol and caffeine and the failure to warn about the risk of DVT.

16 The Court accepted that an 'accident' may happen because of omissions as well as acts or by some combination of acts and omissions. It was also no part of the inquiry to ask whether the event or happening was intentional or accidental. Rather, it said the concept of an accident:

...invites two questions: first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected?[15]

17 The correctness of the decision in Husain was not challenged in Povey. The Court said questions of identification of an event as canvassed in Husain did not arise because the appellant passenger's case was that nothing happened in the conditions or procedures that was unusual or unexpected. The Court said that a concept of 'failure to warn' as an omission was unhelpful, as it imported concepts of a common law duty to warn that were not found in the treaty and otherwise were not referable to some standard of behaviour against which to measure any alleged failure. By reference to the two questions set out by the Court, as reproduced in paragraph 16, the inquiry is limited to what happened not to 'what might or could or perhaps should have happened'.

18 The following principles can be summarised from these cases, apply to determine whether an 'accident' has occurred:

(a) A passenger's own internal reaction to the usual, normal and expected operation of the aircraft is not an accident;

(b) An accident that is a cause of an injury is different to the occurrence of injury itself;

(c) It is necessary to identify an event or happening that is external to the passenger;

(d) Identifying an event requires flexible application. An event may arise from acts, omissions or from a combination of acts and omissions;

(e) The event must be unexpected or unusual;

(f) There may be a chain of events that lead to injury;

(g) It is sufficient that some link in the chain of causal events was an unexpected or unusual event external to the passenger;

(h) If the event is described as inaction or as a failure to do something, the absence of action will not amount to an event unless it can be shown to be an omission by reference to some legal standard requiring action;

(i) Common law notions of actions or failure to act arising from a duty of care owed to passengers are irrelevant;

(j) Whether an accident has occurred is a question of fact.

19 What happened is in large part not contentious. The plaintiff gave evidence as to the circumstances of her boarding the plane, her requests for water and the responses she received. The defendant called Mr van der Plas and another attendant Ms Bielicka. Mr van der Plas was the business class supervisor on the flight. He gave evidence generally as to the practice and procedure for cabin service and gave evidence of his attendance in the economy cabin and attending the plaintiff after her fall. Ms Bielicka was a member of the cabin crew in the economy cabin, having commenced work flying as a cabin attendant in January 2015. She also gave evidence generally about cabin service procedures and she also attended the plaintiff at the time of her fall.

20 The plaintiff gave evidence that she had drunk one litre or so of water during the day and eaten her evening meal at home before leaving for the airport.[16] She took with her a 600ml bottle of water which was about three quarters full when confiscated at security shortly before boarding.[17] She said that she boarded the plane on time about 45 minutes before take-off, agreeing that this would have been about 9.40pm.[18]

21 She sat in economy in row 71 on the aisle. Row 71 is five rows past a galley area containing bathrooms either side of the corridor. A photograph in evidence[19] showed that a drinking fountain and water cups were on the exterior wall of the bathroom cubicle facing the corridor. The plaintiff said that during boarding she looked for but did not see water at the bathrooms as she passed.

22 The plaintiff's evidence was that she made four requests for water. Two were made before the flight took off to the same attendant[20] as that attendant was helping a blind man seated in front of her.[21] The meal was accompanied by a cuplet of water, said by the defendant to contain 150ml of water. The third request was made after the meal was served. This request was made shortly after drinking the water provided. The fourth request was made of those clearing the plates. Although the first two requests were made of the same attendant there was no suggestion that third and fourth requests were made to the same attendants.

23 The plaintiff gave evidence that about 15 minutes after this fourth request she left her seat because she was feeling like she wanted to throw up and moved toward the closest toilet, some rows in front of her.[22] As she walked forward she felt really dizzy. At the doorway of the toilet she fainted and came to on the ground.

24 There was some contest in the evidence about the length of time over which the plaintiff was on board and without water, save for the cuplet served with the meal.

25 I accept the following evidence as to the timeline of events. The plaintiff boarded the plane at approximately 9.40pm and had had her own water bottle until shortly before that time. The plane departed at 10.32pm, seven minutes after its scheduled departure time. Departure time is taken from 'pushback'[23] - when the plane leaves the gate and commences to move out onto the tarmac and runway for take-off. The plaintiff thought the plane was late in leaving, taking off at about 11.00pm.

26 Documents confirm take-off itself was at 10.53pm.[24] From 'pushback' passengers are required to remain seated until after take-off. Until the cabin crew have to be seated for take-off they are concerned primarily with pre departure duties.[25] The plaintiff's first two requests for water therefore occurred in the window sometime between approximately 9.45pm and 10.50pm. At around 30 minutes after take-off crew are able to move around the cabin again and commence preparations for meal service.[26] This would be from approximately 11.23pm. During the preparation time there are generally staff allocated to attending to passenger requests. In economy class meal service generally commences one to one and a quarter hours after take-off (approximately 12.30am). No requests were made after take-off before the meal service.

27 From entry of the meal carts into the cabin until completion of rubbish clearance takes between two and a half to three hours when economy cabin is full as it was on this flight. The last two requests for water were made during service, after eating her meal and then when plates were being cleared, but before any drinks cart arrived to serve her seating row.

28 The incident document completed by the cabin crew supervisor Leon van der Plas records it occurring at 3.30am, roughly 5 hours after pushback.[27] Mr van der Plas gave evidence he completed the incident document directly after the incident and the time was based upon his watch.[28] The plaintiff disagreed with this time believing it to be a shorter period estimating her faint occurred about 4 hours into the flight.[29] The difference may be accounted for by the plaintiff timing the commencement of the flight from take-off rather than pushback. I prefer the contemporaneous evidence as the best evidence of the approximate time of the faint. That evidence provides a slightly longer period of time overall between boarding and the faint than that estimated by the plaintiff.

29 The defendant did not contest the evidence of the four requests or their timing. The plaintiff said that each request was met with a response from the relevant cabin attendant. The first two requests, made during the boarding and pre-flight period, were responded to by saying that water will be served with the meal service. In cross examination the plaintiff confirmed that she accepted the response to the first request and on the second occasion asked how long until the food comes out and was told 'shortly'[30] again which she accepted. The third and fourth requests were made of the attendants who were serving the meal and then clearing the plates. They were responded to with information that another attendant with a drinks cart would be serving requests. The plaintiff said she was expecting a drinks cart to follow the food cart at meal service but no refreshments came.[31] At no time was the presence of a water cooler at the bathrooms where she could obtain water pointed out to her.

30 None of her requests were made by calling the attendant's call button. All requests were made of attendants who were at the time undertaking other tasks.

31 Mr van der Plas and Ms Bielicka addressed the procedures on board for provision of water and other passenger requests as well as the procedure for meal service more generally. Mr van der Plas gave evidence as to the pre departure duties that had to be undertaken prior to take-off and the method and timing of service. He said that if asked for water while the trolley was there he would give a passenger water rather than tell them where they could get it themselves. He also said that if the crew are almost about to enter the cabin with the meal cart he may advise a passenger that drinks will be served with the meal.[32] He agreed that if a passenger asks for water during the preparation for service then "if we are able to do so we will prepare the water and deliver it."[33] He said that he was not surprised that on the occasions that the plaintiff asked for water, each time she was told it would be delivered with food.[34]

32 When asked about the policy or practice to tell or not to tell passengers that there was water available at the bathrooms, he said that "There is no instruction to tell or not to tell"[35] but that if "a customer asked me about where to fill up a water bottle or to get a small cup of water, I would tell them where to go, or any crew member would tell them where to go".[36] He said "normally they would ask for a water, you would get them a water."[37]

33 Ms Bielicka was asked whether it was usual or unusual for the plaintiff having asked for water, not to get it. She said it depended on the 'phase' at which the request was made. Her evidence was that when doing the pre-departure checks a response is likely to be "Sorry I'll come back to you later".[38] Close to service when everybody is busy, her evidence, like that of Mr van der Plas was that a response deferring the request would be likely.[39] However, in the time during the preparation for service there were attendants in the cabin attending to customer requests. She said that it was unlikely that, if there was a capacity to serve water, that it was not served.[40]

34 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.

35 Further, the evidence was that there was no policy about generally informing passengers of the presence of drinking water and cups at the bathroom station unless specifically asked. It follows that there was nothing unusual about the absence of general information about the presence of drinking fountains.

36 There was also evidence given by two other passengers who knew the plaintiff. I received their evidence reserving an overarching objection as to relevance by the defendant. The witnesses both gave evidence of their impression that the cabin temperature felt warm. The ambient cabin temperature had not been pleaded as a relevant matter. The defendant later called evidence from Mr Nithyan, a technical services officer employed by the defendant. The available records did not show any fault with the air-conditioning system on the flight directed at the cabin temperature.[41] Mr van der Plas gave evidence that the normal range for cabin temperature was set between 18 and 24 degrees celsius. Mr Nithyan said that cabin temperature was linked to cabin pressure and therefore was a matter relevant to airworthiness. There was no evidence of complaint about the warm environs.

37 In addition the lay witness Ms Willie gave evidence that she had pressed a call button and when it was not responded to she went to a galley where she was able to get some water.

38 The plaintiff's written submissions described the 'failure to provide adequate hydration despite numerous requests, combined with a warm ambient cabin temperature', as the event external to the plaintiff. In oral submissions the external event was confined to a failure to supply the water.[42] The failure was said to be unusual because of the evidence that it was unlikely that if there was a capacity to do so that water would not be served. With this narrower description of the event relied on, the evidence about cabin temperature - which did not demonstrate anything unusual or unexpected in its operation - is of little relevance. I have not had regard to it save to note that persons may individually experience conditions as warm (or presumably cold) notwithstanding the temperature is within normal guidelines.

39 The defendant submits that the failure to supply adequate hydration is not an event of omission. Even if the failure to provide water can be characterized as an event, the circumstances of that failure were the expected or usual happenings of in-flight activity. As such the liability of the carrier is not engaged.

40 Clearly an omission can amount to an event. As Husain explained, a refusal of an explicit request for assistance could be an event. In my view, and conceded by Counsel for the plaintiff, here the requests were not refused, merely deferred to later. The event is described as the overall failure to provide the water on request. Paraphrasing what was said in Povey, this description is no more than an assertion that there was no water provided. 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.[43]

41 The evidence of both cabin staff acknowledged that there were occasions where they did not have capacity to deal with a request immediately and the response was to defer the provision of water. Typically this was where safety was a more compelling priority or where the imperative of other demands required a deferral. This was often during the preflight duties prior to take-off and immediately before and during meal service. It might be some time before a request was dealt with even if it was made by pressing a call button. On a number of occasions in cross examination Mr van der Plas agreed that the responses given to the plaintiff; that water would be served with food, were not surprising to him. He said that the response "just depends on the time that it occurs."[44] Both provision of water and a deferral of a request might happen regularly during a flight.[45] While a refusal was 'unlikely,'[46] both a deferral and the provision of water might happen regularly.[47]

42 The plaintiff herself used such language lodging a complaint that the airline 'didn't want to' or 'neglected to provide basic refreshments'.[48] Notions of failure to provide and adequacy are the language of a breach of duty of care and not of strict liability.

43 Whilst both parties accepted that the event must be unexpected or unusual, they also differed in submission as to how that was to be determined. The plaintiff submitted that because she had an expectation of access to adequate hydration on board and expected it would be supplied to her, that the event of not being so provided was unusual or unexpected.[49] The defendant submitted that the delivery of water to passengers occurred in the expected or usual manner in conformity with airline practice. It submitted that the behaviour of cabin crew, even if lacking in quality or timeliness, is not sufficient to be characterised conduct which is unusual or unexpected. Conduct must be in 'blatant disregard of industry standards and airline policies'[50] to be unusual or unexpected.

44 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. Quoting Saks, the Court in Husain[51] said that:

...Article 17 'embraces causes of injuries' that are 'unexpected or unusual'.

45 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.

46 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.

47 Although it is not necessary to do so in light of my finding on liability I will provide brief reasons as to the cause of the faint as this was addressed in some detail in both evidence and submissions.

48 The evidence was that there were a significant number of faints that occur on airlines - perhaps two to three a week and certainly it's rare for a fortnight to pass without a faint occurring.[52]

49 The plaintiff had no history of fainting or of any medical condition that might contribute to fainting. On 24 March 2015 when she returned to Melbourne she attended Royal Melbourne Hospital the hospital who recorded "She had suffered a vasovagal episode in the context of dehydration, fell on the way to toilet sustained an injury to her ankle."[53]

50 Dr Blombery, a consultant physician in vascular disease and pain medicine called by the plaintiff said that generally airplane travel does result in dehydration as the cabin pressure is lower than at ground level. [54] In his view, without adequate hydration some people would be susceptible to injury from a fall in blood pressure. He described that where there was mild dehydration combined with a warm environment it was not uncommon for someone to develop 'orthostatic hypotension' - an under filling of the circulatory system resulting on a fall in blood pressure - or possibly a vasovagal syncope (a faint caused by reflex changes in heart rate and blood pressure).

51 In Dr Blombery's view the collapse may well have been a combination of orthostatic hypotension as well as a vasovagal syncope. He also commented that another precipitant of such an episode is the post prandial situation as was also the case here. In his supplementary report he indicated that feeling dizzy and nauseated while seated suggested low blood pressure in the plaintiff.[55]

52 In his view that the act of asking for water is indicative of an awareness of relative dehydration. The frequency of faints occurring he says confirms the state of relative dehydration occurring on flights.

53 In cross examination he agreed that the fact of standing exacerbated the environmental factors identified which had caused blood pooling to the lower body leading to the faint. He also agreed that seating conditions, dry or warm cabin environment and other circumstantial and environmental conditions can trigger a response of orthostatic hypotension in one person but not another depending on internal physiological responses.[56] However, he also remarked that under-hydration was also a significant factor.[57]

54 Mr Kelman, orthopaedic surgeon provided a report to the defendant describing the fall as a classic vasovagal event.[58] He thought that, having just eaten a meal, it was unlikely that the plaintiff was dehydrated.

55 Dr Kostos[59] called for the defendant opined that the fall was not classically a vasovagal episode because of the nausea and because symptoms commenced in a seated position. However, he agreed that while unusual, such symptoms can occur with a vasovagal episode.[60] He agreed with the general proposition of Dr Blombery that some people were susceptible to such an episode but did not hold that opinion on facts he assumed in this case. He thought dehydration was unlikely to be a factor as, on the history he obtained, the period of time on the plane up until the fall was only about two and a half hours.[61] He commented that this seemed "hardly long enough to make her dehydrated."[62]

56 Given the evidence that the normal cabin conditions and post prandial situations can precipitate such episodes, the frequency is perhaps not as surprising as it might seem. The impact of adequate or inadequate hydration is but one matter in a factual matrix in any given circumstance.

57 As can be seen from the timeline accepted above, the passage of time during which the plaintiff was restricted to the single cup of water was significantly longer than Dr Kelman or Dr Kostos understood. In total water drunk by the plaintiff was restricted from about 9.40pm to nearly 3.00am. In those circumstances, I accept 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.

58 However, for the reasons outlined above, none 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.

[1] Referred to through these reasons as the 'Carriers' Act.'

[3] The Convention for the Unification of Certain Rules for International Carriage by air, done at Warsaw on 12 October 1929 (the 'Warsaw Convention').

[4] The Convention for the Unification of Certain Rules for International Carriage by air, done at Montreal on 28 May 1999 ('the Montreal Convention').

[5] Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth). (Act No 79 2008)

[6] Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969 [Article 31].

[7] Shipping Corporation of India Ltd v Gamlen Chemical Co (A'asia) Pty Ltd (1980) 147 CLR 142, 159 (Mason and Wilson JJ); Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161, 186 [71] (McHugh J); Siemens Ltd v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418, 466-467 [153] - [154] (Kirby J).

[8] Air France v Saks [1985] USSC 43; 470 U.S. 392 (1985) ('Saks').

[9] Warsaw Convention (n 3) [Article 17].

[11] Olympic Airways v Husain [2004] USSC 15; 540 U.S. 644, (2004) ('Husain').

[12] At trial the latter information was shown to have been wrong.

[13] [2003] VSCA 227 ('Povey').

[14] In Povey the claim proceeded under Part IIIC of the Carriers' Act under which the Montreal Protocol No 4 of 1975 applied which had a slightly differently worded definition but which still made reference to 'the accident'.

[16] Transcript of Proceedings, Di Falco v Emirates (No 2) (Supreme Court of Victoria, S CI 2017 00515, Forbes J, 11 June 2019) ('Transcript - 11 June 2019') 32-33.

[17] Transcript - 11 June 2019 (n 16) 33 - 34.

[19] Emirates' Exhibit no 9, 'Photographs of drinking water fountain and lavatory'.

[20] Transcript - 11 June 2019 (n 16) 34.

[22] Emirates' Exhibit no 1, 'Diagram of A380 internal layout'. According to the seating plan the bathrooms were five rows in front of where the plaintiff was seated.

[23] Transcript - 11 June 2019 (n 16) 192; Emirates' Exhibit no 8 ('Aircraft Technical Log Sector Record'), 33.

[24] Emirates' Exhibit no 8 'Aircraft Technical Log Sector Record'.

[25] Transcript of Proceedings, Di Falco v Emirates (No 2) (Supreme Court of Victoria, S CI 2017 00515, Forbes J, 14 June 2019) ('Transcript - 14 June 2019') 258.

[26] Transcript - 14 June 2019 (n 25) 270.

[27] Emirates' Exhibit no 2 ('Medical Incident Report dated 15 March 2015').

[28] Transcript of Proceedings, Di Falco v Emirates (No 2) (Supreme Court of Victoria, S CI 2017 00515, Forbes J, 12 June 2019) ('Transcript - 12 June 2019') 192.

[29] Transcript - 11 June 2019 (n 16) 76.

[32] Transcript - 14 June 2019 (n 25) 272.

[39] Transcript - 14 June 2019 (n 25) 282.

[41] Emirates' Exhibit no 7 'Pending Item Data View'; Emirates' Exhibit no 8 'Aircraft Technical Log Sector Record'.

[42] Transcript of Proceedings, Di Falco v Emirates (Supreme Court of Victoria, S CI 2017 00515, Forbes J, 16 July 2019) ('Transcript - 16 July 2019') 4.

[43] Transcript - 12 June 2019 (n 28) 215.

[44] Transcript - 14 June 2019 (n 25) 277.

[48] See Transcript - 11 June 2019 (n 16) 99 and Emirates' Exhibit no 3 'Email from plaintiff to defendant requesting incident report'.

[49] Plaintiff's submissions dated 9 July 2019 [10].

[50] Defendant's submissions dated 12 July 2019 [28] relying on Husain.

[52] Transcript - 12 June 2019 (n 28) 199. Mr van der Plas

[53] Emirates' Exhibit no 10, Mr Iain Kelman, Report prepared by Mr Iain Kelman, Consultant Orthopaedic Surgeon (Medico-legal report 25 October 2017) ('First Kelman report') 95.

[54] Di Falco's Exhibit no 2, Dr Peter Blombery, Report prepared by Dr Peter A. Blombery, Consultant Physician (Vascular Disease and Pain Medicine (Medico-legal report 22 October 2018).

[55] Di Falco's Exhibit no 6, Dr Peter Blombery, Report prepared by Dr Peter A Blombery, Consultant Physician(Vascular Disease and Pain Medicine (Medico-legal report 9 July 2019).

[56] Transcript - 16 July 2019 (n 42) 34 - 31.

[58] First Kelman Report (n 49) 5; Emirates' Exhibit no 11, Mr Iain Kelman, Report prepared by Mr Iain Kelman, Consultant Orthopaedic Surgeon (Medico-legal report 26 April 2018) ('Second Kelman report').

[59] Emirates' Exhibit no 5, Dr Tony Kostos, Report prepared by Dr Tony Kostos Consultant Rheumatologist (Medico-legal report 18 April 2019) ('Kostos' report').

[60] Transcript - 12 June 2019 (n 28) 108.

[62] Transcript - 12 June 2019 (n 28) 111.