Salih v Emirates [2019] NSWDC 715 | Case summary

Salih v Emirates [2019] NSWDC 715 | Case summary | Zoe

Non-economic loss

Under s 16(1) of the CLA, no damages may be awarded to a plaintiff for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Under s 16(3) of the CLA, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table set out in that section.
The maximum that may be ordered is $658,000 but that is only to be awarded in a most extreme case: s 16(2); see also the Civil Liability (Non-Economic Loss) Amendment Order 2019 amending the amount from 1 October 2019.
The proper approach to this issue is set out in Lloyd v Thornbury, above, at [161]-[162] and [167]-[172]. I have made my factual findings above in relation to the plaintiff's injuries arising from the accident as established by the evidence. The assessment which the court makes is an evaluative one in which precision cannot be arrived at. It is not suggested in the present case that any loss of expectation of life occurred as a result of the injury or any disfigurement. The relevant issues are the pain and suffering and loss of amenities of life to the plaintiff as a result of her injury. I have found that the plaintiff injured her right thumb, did not injure her small finger and that pain resulted in her hand which has continued to cause her some pain and restrictions in the hand. This requires the plaintiff to take analgesics and anti-inflammatories to assist her with the pain and continued physiotherapy assistance. Dr Bodel's report shows that the plaintiff continues to use her hand which is not disputed.
The defendant submits the appropriate percentage is not greater than 5% whereas the plaintiff claims a much higher figure no doubt based on the claim that all the arm conditions relate to the injury.
Taking the above matters and submissions into account, in my view the severity of the non-economic loss as a proportion of a most extreme case is 15% which equates to 1% of the maximum amount that may be awarded for non-economic loss. Although initially attracted to even a lower figure, the fact that this has impacted upon the plaintiff's work, her domestic duties and has caused her continuing pain over a lengthy period warrants the figure in my view which I have arrived at. Accordingly, I allow $6,500 which is 1% of the maximum which may be awarded rounded down as required.

[3]

Past out-of-pocket expenses

The plaintiff submitted that she was entitled to $14,643.88 in relation to past out-of-pocket expenses: Exhibit E. The defendant conceded $1,540 but disputed the remainder submitting that the plaintiff's thumb and hand injury arising from the accident had resolved, at the latest, by 6 November 2017.
The resolution of this dispute relies heavily on my medical findings as set out above. I consider each amount claimed in the table below taking into account the submissions made orally and in writing. No. Date Sum Allowed/Not allowed
Nepean Hospital (Surgery) $8,304.88 As this relates to the plaintiff's right shoulder condition, it is not allowed having regard to my medical findings that the shoulder condition was not caused by the air injury - Not allowed.
Nepean Hospital (Nerve Conduction) 23/9/19 $565.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
Nepean Hospital - physiotherapy $1,012.00 23/4/19 $125.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 1/5/19 $125.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 16/5/19 $125.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 28/5/19 $125.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 9/7/19 $128.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 2/9/19 $128.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 23/9/19 $128.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it. 8/10/19 $128.00 Not allowed - there is no evidence it relates to the hand/thumb - see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
Precision Physiotherapy 12/11/16-5/9/17 $560.00 Agreed by parties. Allow $560. 23/9/17-28/10/17 $425.00 Defendant agrees $212.50 being 50% of $425 claimed. The plaintiff concedes that the treatment provided is 50% attributable to the plaintiff's shoulder injury and 50% attributable to the plaintiff's thumb and hand injury. Allow $212.50.
Castlereagh Imaging $170.00 Allow Nil as related to right shoulder. MRI right shoulder
Dr Manish Gupta $535.80 6/11/17 $167.25 Agreed. Allow $167.25. 5/7/18 $160.00 No evidence of reason. Not allowed. 20/7/18 $160.00 No evidence of reason. Not allowed. 24/9/18 $160.00 Relates to right shoulder. Not allowed. 11/7/19 $160.00 Relates to right shoulder. Not allowed.
Dr Stanley Seah $95.80 Allow as reasonable to investigate problem initially as submitted by plaintiff.
Medicare $2,975.40 Dr A Leung $209.00 Allow $209 agreed. Dr Wijetunga $51.30 Allowed. X-ray of hand and wrist and forearm. Allow $51.30. Dr Leones 2/11/16 $37.05 Allowed agreed. 10/4/17 $37.05 Allowed agreed. 28/7/17 $37.05 Allowed as included hand. Dr Escio-Mussen 23/1/17 $71.70 Chest pain and anaemia. Not allowed as unrelated. Dr S C McGlone 31/10/17 $103.65 Allowed. Agreed. 31/10/17 $33.05 Allowed. Agreed. Dr Chi-Vien Duong 28/10/17 $37.05 Migraines. Not allowed as unrelated. Dr V Chand 12/11/16 $71.70 Allowed. Agreed. 14/11/16 $71.70 Allowed. Agreed. 18/11/16 $37.05 Allowed. Agreed. 2/2/17 $71.70 Not allowed. Unrelated. 29/9/17 $71.70 Not allowed. Forearm and wrist. 17/10/17 $71.70 Allowed. Referral to Dr Seah. 21/10/17 $37.05 Allowed. As partly related to hand. Dr S Suleman 30/1/17 $37.05 Not allowed. Unrelated. 18/2/17 $49.00 Not allowed. Unrelated. 24/7/17 $37.05 Allowed as referral for x-ray including hand. 2/8/17 $37.05 Not allowed as relates to right forearm. 5/9/17 $37.05 Not allowed. Unrelated. Total allowed: $1,869.95

[6]

Past economic loss

Compensation for loss of earning capacity for a plaintiff is awarded because there is a diminution in the plaintiff's earning capacity which is or may be productive of financial loss. The plaintiff must prove the loss for which compensation is claimed: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80].
The plaintiff claims 31.5 days of "personal leave" from her usual employment because of her injuries at $280 net per day plus past superannuation at 11% totalling $9,790.20. This is, in effect, sick leave. The defendant claims that nothing should be awarded under this head.
The evidence establishes that whenever the plaintiff has taken time off from work because of alleged pain or restrictions for any reason that her employer [XXX] College has paid her salary in full. Accordingly, the plaintiff has not suffered any loss financially in relation to lost salary. The general principle is that the plaintiff should not recover anything as there has been no financial loss even where sick leave has been taken: see Paff v Speed (1961) 105 CLR 549 at 567; Graham v Baker (1961) 106 CLR 340 at 343, 346; Redding v Lee (1983) 151 CLR 117 at 122.
There was no evidence before me as to the plaintiff's current sick leave balance: cf Exhibit 7. The evidence is that the plaintiff has taken substantial sick leave since the accident and her employer has still paid her. The plaintiff receives 15 days of sick leave per year and it accumulates if she does not take it: Exhibit C. Exhibit 7 suggests that as the plaintiff has taken off 31.5 days as claimed since the accident she must be in credit in relation to her sick leave as more than 3 years have expired since the accident.
There is no evidence that the plaintiff may "cash out" sick leave if she leaves her employment or that there is any likelihood she will leave her position. However, as stated in Luntz, Assessment of Damages for Personal Injury and Death, 4th Edition, at paragraph 8.3.4: "In the more usual case where there is no financial benefit accruing from not using up an entitlement to sick leave, then the loss is the value of the chance that the plaintiff might fall ill in the future and be compelled to take leave without pay. The value will, of course, vary with the circumstances." This is relevant here because of my findings in relation to the plaintiff's right shoulder.
On this basis I would make some allowance for the chance of a future loss of benefits due to some sick leave being already used because of the accident which the plaintiff would not otherwise be able to use. Doing the best I can having regard to my analysis of the claim for loss of days above, I would allow $1,554 (4 days x $280 plus 11% superannuation). This also allows for the possibility that the sick leave of the plaintiff may never be exhausted through use because of other injuries or conditions.

[7]

Future economic loss

There is no evidence of the plaintiff having any pre-existing problems with her thumb or hand. Under s 13 of the CLA, the court must satisfy itself about any assumptions about future earning capacity or other events on which an award of damages is to be based, unless it accords with the claimant's most likely future circumstances but for the injury as found by the Court: see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [110]-[115]; Gulic v Angelovski [2018] NSWCA 161 at [34]-[38].
In my view, but for the accident the plaintiff would have returned to work at the [XXX] College and probably worked with infant classes as opposed to primary school classes of children. In my opinion she would most likely be working fulltime as she is at present. The plaintiff in my view is likely to continue in the future working at [XXX] College. Although the plaintiff expressed some concern in relation to her employment for the days that she has taken off, her employer appears to have been very supportive and will likely remain so. I also think it likely that the plaintiff, if she has any particular difficulty with working, will more likely have this because of her shoulder and apparent arthritis difficulties and less likely because of her hand and thumb with which she seems to be managing.
The plaintiff gave evidence that she has not succeeded in two promotion applications for higher positions which she has made. However, there was no evidence on which I could rely which suggested this was due to her injuries. Nevertheless, it is expected that practically speaking schools are probably more likely to promote people as teachers who have a good attendance record and have no difficulties teaching across a range of ages.
The plaintiff asserts that $57,000 should be allowed as a buffer for future economic loss pursuant to Penrith City Council v Parkes [2004] NSWCA 201. The defendant says that no such amount should be awarded.
In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity at [79]-[81] as follows: "79 I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded. 80 Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). 81 It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the Court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future"."
Accordingly, the award of a buffer or cushion is reserved for a situation where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's secure employment prospects will come to an end or the plaintiff's capacity has been clearly reduced, but how this will inhibit his or her earning capacity in consequence of the injury suffered by the plaintiff is uncertain. See also Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [6]-[9].
The plaintiff here has a clear ongoing injury according to my medical findings. In my view, it has limited her earning capacity to some degree as she is limited in her teaching activities, in the classes she can take and her role on the sporting committee. It has also caused some absences.
In my view, there is a possibility that the plaintiff will suffer some economic loss in the future as a result of her injuries and a reduction in her capacity within the above authorities to indicate that a buffer should be awarded. However, this is small having regard to the attitude which the plaintiff's employer has taken and her ability so far to cope with some difficulty with her thumb and hand difficulties. Accepting that the award is to a degree impressionistic, I allow $25,000 only under this head.

[9]

Future commercial assistance

The evidence establishes that between the plaintiff and her husband with occasionally a small degree of assistance from their young children, the domestic duties and cooking are undertaken for the family.
The plaintiff's husband describes the plaintiff as not being satisfied with the way he does the housework and that this has caused friction. He said the plaintiff previously kept an immaculate house and liked it kept perfectly: T222.36. The court does not award amounts to keep an immaculate perfect house but only assistance to a reasonable standard when established.
In Miller v Galderisi [2009] NSWCA 353 the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no satisfactory evidence that the gratuitous assistance being provided to the plaintiff would cease. The Court of Appeal held that there needed to be evidence that the commercial care was necessary and that there was "a need for commercial domestic assistance likely to arise in the future": at [18]. A similar question was asked by Macfarlan JA (with whom Meagher and White JJA agreed) in Smith v Alone [2017] NSWCA 287. Macfarlan JA referred to asking the question whether the commercial care sought was "necessary" (at [73]) and whether commercial care would be "needed in the future": at [75].
It seems from the evidence that the plaintiff is able to undertake simple cooking and very simple domestic tasks and that otherwise the plaintiff's husband does the work.
I also need to take into account that no amount should be allowed for any injury or disability to the plaintiff's arm or shoulder which I have found is unconnected to the accident.
Evidence was given by the plaintiff and her husband about the tasks which the husband undertook.
The plaintiff gave evidence that before the accident she completed, it appeared, over seven hours of domestic duties per day even when she worked. In my view, this likely involved a degree of exaggeration.
In my opinion, the evidence given by the plaintiff's husband was more reliable on this issue. I accept that the plaintiff undertook all the domestic tasks prior to the accident within the house including cooking and cleaning and some gardening with the plaintiff's husband doing the lawn and probably heavier gardening tasks. I also accept that the plaintiff's husband undertakes a substantial amount of domestic duties now, although there is heavy reliance on less cleaning, less washing and the purchase of takeaway food.
I must also take into account the possibility of the plaintiff's hand improving with the continued physiotherapy which I have allowed for.
The plaintiff seeks two hours per week at $47 per hour until age 68 which amounts to $77,268. The defendant says nothing should be awarded. In my view, the appropriate rate is $47 per hour: see Exhibit D. I also need to heavily discount any amount because of the likelihood that many of the plaintiff's difficulties arise because of her arm and shoulder pain and restrictions.
Taking all of these matters into account, I would have allowed one hour a week of commercial assistance for a closed period of five years. This would allow a more thorough cleaning of the house every fortnight for two hours and for a period which would enable the plaintiff's hand to improve to undertake more domestic duties. This totals $10,880 (231.5 × 47). Any greater amount would, in my view, not take into account the plaintiff's other injuries (including the right shoulder injury) which I have found have not been established as arising from the accident and the fact that the domestic duties are already being done to a less than satisfactory standard. I accordingly find that there is a reasonable need to have a more thorough cleaning of the house every fortnight to take into account the more limited availability of the plaintiff's husband and his performance of tasks at a lesser standard than is reasonable.

Parties

Applicant/Plaintiff:

Salih

Respondent/Defendant:

Emirates

Legislation Cited (3)

Civil Aviation (Carriers Liability) Act 1959(Cth)

Civil Aviation (Carrier's Liability) Act 1959(Cth)

Civil Liability Act 2002(NSW)

Cases Cited (33)

Judgment

In these proceedings, the plaintiff, Mrs Gul Salih, seeks an award of damages against the defendant, Emirates, the international airline carrier, in relation to injuries and consequential pain and restrictions, which she says occurred as a result of an accident on 31 October 2016. The plaintiff and her family were returning on an air flight from Dubai to Sydney. In the course of the early morning, the plaintiff got out of her seat to obtain some infant formula for her baby from a bag stored in the aircraft overhead locker. The plaintiff claims that when the locker was opened by her the door of it fell heavily on her right thumb and hand which has caused significant pain and restrictions to her since the time of the accident.
The claim against Emirates is made under the 1999 Montreal Convention relating to international carriage by air which deals with the liability of a carrier for, among other things, personal injury. Section 9E of the Civil Aviation (Carriers Liability) Act 1959 (Cth) provides as follows: "9E 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 limitations set out in s 9F do not apply. The term "the Convention" in s 9E means the 1999 Montreal Convention "as having the force of law because of s 9B": Section 9A of the Civil Aviation (Carriers Liability) Act 1959. Section 9B provides, in substance, that the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the Convention applies. It appears to be accepted that in relation to actions in New South Wales, the provisions of the Civil Liability Act 2002 (NSW) ("CLA") apply in determining damages for personal injuries, subject to anything in the Civil Aviation (Carriers Liability) Act 1959 to the contrary: see Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32; Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128.
Article 17.1, Article 20 and Article 21 of the 1999 Montreal Convention provide as follows: Article 17 - Death and Injury of Passengers - Damage to Baggage 1. 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. Article 20 - Exoneration If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21. Article 21 - Compensation in Case of Death or Injury of Passengers 1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. 2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
The plaintiff's Statement of Issues dated 30 September 2019 is as follows: "Damages 1. Are the Plaintiff's current medical circumstances causally relevant to the event of the accident? 2. What are the Plaintiff's entitlements to: (i) non-economic loss; (ii) past economic loss; (iii) future economic loss; (iv) past out-of-pocket expenses; (v) future medical expenses; and (vi) future domestic assistance?"
The defendant's Statement of Issues dated 23 September 2019 is as follows: "A. LIABILTY 1 Was the injury suffered by the Plaintiff on 31 October 2016 an "accident" within the meaning of the Montreal Convention 1999; and 2. If so, was any damage or loss suffered by the Plaintiff caused or contributed to by the Plaintiff's own negligence? B. QUANTUM 1. What was the extent and duration of the injury suffered by the Plaintiff as a result of the incident on 31 October 2016? 2. To what extent were the Plaintiff's injuries and disabilities the result of a pre-existing medical condition or arose from a prior incident, and were any continuing injuries and disabilities the inevitable result of the Plaintiff's pre-existing medical condition? 3. What is the quantum of the Plaintiff's damages caused by the incident on 31 October 2016?"

Was there an accident within Article 17 of the 1999 Montreal Convention?

As stated above, s 9B of the Civil Aviation (Carriers Liability) Act 1959 (Cth) provides that the 1999 Montréal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montréal Convention applies. Under Article 1 of the Montréal Convention, the Convention applies to all international carriage of persons performed by aircraft for reward. The carriage in the present case was between two state parties being from the United Arab Emirates to Australia. Accordingly, the trip in the present case falls within Article 1.2 of the Montréal Convention.
Therefore, a carrier is liable for damage sustained in the case of bodily injury of a passenger upon condition only that the accident which caused the injury took place on board the aircraft or in the course of the operation of embarking or disembarking. There is no issue in the present case that the damages sought by the plaintiff are under the limit in Article 21.1 of the Montréal Convention. If the requirements of Article 17.1 of the Convention are satisfied, the Convention, as having force of law in Australia by the 1959 Act, imposes absolute liability on the carrier: Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 112 per Meagher JA..
The evidence satisfies me that the plaintiff was injured when the door of the overhead locker landed on her hand at the base of the thumb. I accept the plaintiff's evidence on this particular issue despite some suggestion in some medical reports that a bag may have fallen on it.
There is a real issue as to whether the event was an "accident" within Article 17.1 of the Montreal Convention. The plaintiff submits it was. The defendant submits it was not. There is no suggestion that the plaintiff injured her thumb deliberately. There is also no suggestion that a third party intended to cause the accident or injury. The plaintiff's evidence was that the overhead locker door fell heavily onto her thumb and did not open in the usual slow manner of an aircraft overhead locker door. However, the contemporaneous documentary evidence before me does not establish or support the conclusion that there was any defect in any locker door on board the relevant aircraft following the flight: affidavit of Christopher Danker affirmed 30 September 2019; Exhibit 1 page 23; Exhibit 1 pages 24-26. The plaintiff conceded that she did not report the door at the time as being defective but says this was due to her pain and it was implied in what she reported: T111.6-.27.
The plaintiff's husband gave evidence that when he later opened the locker door it opened in the normal fashion, which I take to mean that it did not drop open heavily and immediately drop without hydraulic limitation: T226.50. I consider his evidence to be reliable on this issue as he was aware of the plaintiff's complaint when he opened the locker door. There is no suggestion or evidence that the locker door was defective or faulty intermittently which would appear to be unlikely.

Contributory negligence

Under Article 20 of the Montréal Convention if a carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. Section 9H of the 1959 Act sets out the mechanism by which contributory negligence is to be assessed under Article 20 of the Convention. Under s 9H(2) of the 1959 Act the court must determine the damages that would have been recoverable if there was no limit on the amount of damages fixed by or in accordance with the Convention and there had been no negligence on the part of the passenger or consignor and then reduce the damages to the extent the Court thinks just and equitable having regard to the share of the passenger in the responsibility for the damage.
As stated above, the CLA also in my view applies to the extent it is consistent with the 1959 Act.
Sections 5R and 5S of the CLA provide as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom Meagher and White JJA agreed) stated as follows in paragraphs [92]-[94]: "92. The question of whether a person has been guilty of contributory negligence is to be determined objectively - whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]-[15] (Basten JA)."

Causation

Sections 5D and 5E of the CLA provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
The plaintiff therefore always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The determination of factual causation in accordance with s 5D(1)(a) of the CLA involves the application of a "but for" test of causation, being a determination that in accordance with the section, that negligence was a necessary condition of the occurrence of harm and a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19].
In the present case, I have found there was no "accident" within the Convention. If I am in error in that finding, I am satisfied that but for the "accident" the plaintiff would not have injured her thumb. I have found above that the accident did not cause a fracture of the fifth metacarpal joint. The medical findings which I have made above lead to the conclusion that only those injuries which I have found were caused by the accident in the sense that but for the accident they would not have occurred. In my view, there is not sufficient medical expert evidence to establish that but for the accident the plaintiff's wrist, arm and shoulder injuries would not have occurred.

[1961] HCA 48

(1961) 106 CLR 340

(1997) 42 NSWLR 110

(1961) 105 CLR 549

(2005) 223 CLR 189

(1983) 151 CLR 117

(2012) 246 CLR 182

(2013) 250 CLR 375

(2014) 86 NSWLR 393

(2014) 66 MVR 241

(1981) 150 CLR 402

Cited By (2)

Salih v Emirates

Recently in the Victorian Supreme Court decision Di Falco v Emirates (No 2) [2019] VSC 654, Forbes J considered in some detail the authorities relating to the meaning of "accident" in Article 17.1 of the Montréal Convention. In paragraphs [3]-[5] and [8]-[18] of Forbes J's judgment, her Honour stated as follows: "Liability under the Carriers' Act [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 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 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 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. … [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). What constitutes an accident? [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. 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. 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. 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. 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. 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, 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. 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 ('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. 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? [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."

Salih v Emirates

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