Salih v Emirates

Court of Appeal (NSW)|2020-08-21|Before: Bell P, Gleeson JA, McCallum JA

Solicitors: AJB Stevens Lawyers (Appellant) Norton White (Respondent) File Number(s): 2019/383196 2020/156330 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 715 Date of Decision: 27 November 2019 Before: Dicker SC DCJ File Number(s): 2019/383196

Judgment

BELL P: I agree with Gleeson JA.
GLEESON JA: The applicant, Mrs Gul Salih, injured her right thumb when opening an overhead compartment on an A380-800 aircraft whilst the cabin was in near darkness, during an international flight from Dubai to Sydney departing on 30 October 2016. She sued the respondent, Emirates, as the operator of the aircraft for damages alleged to have been suffered by her. Her claim in the District Court was brought under s 9E of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Carriers' Act) and relied on Art 17.1 of the 1999 Montréal Convention. It is common ground that the Montréal Convention was the relevant international treaty applicable to the Emirates flight that Mrs Salih boarded in Dubai, being an international flight from the United Arab Emirates to Australia. The Convention had the force of law in Australia in relation to any carriage by air to which the Convention applies, by reason of s 9B of the Carriers' Act.
Section 9E of the Carriers' Act substitutes a liability under the Montréal Convention for any other basis of civil liability in respect of personal injury. Article 17.1 of the Montréal Convention provides: 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.
In Art 17.1, "accident" is used to refer to the event, rather than the cause of injury, being an event located at a place (on board the aircraft) or otherwise fixed by reference to the circumstances of a time and place (embarking or disembarking): Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33 (Povey) at [33] (Gleeson CJ, Gummow, Hayne and Heydon JJ), citing the decision of the United States Supreme Court in Air France v Saks (1985) 470 U.S. 392 at 400. Povey concerned the similarly worded Art 17 in the Montréal Protocol No 4.
It is common ground that the concept of "accident" in Art 17.1 of the Montréal Convention has the same meaning as enunciated in the joint reasons in Povey. Their Honours proceeded on the basis that "accident" is a reference to something external to the passenger: at [34]. Their Honours observed at [36] that the concept of "accident" is not to be overrefined, explaining that it invites two questions: first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and second, was what happened unusual or unexpected?
The trial case was opened by counsel for Mrs Salih and the parties proceeded on the common assumption, notwithstanding the absence of lay or expert evidence on the door mechanism, that the overhead compartment door contained a hydraulic type piston, and that the "usual" way the door opened was subject to hydraulic limitation.
Mrs Salih's evidence at trial was that the overhead compartment door did not open slowly and in the normal fashion, which is to be understood as a reference to hydraulic limitation. She said that the door dropped heavily and the door "dropped suddenly". However, the primary judge preferred other lay and documentary evidence and found that the overhead compartment door opened in the usual fashion and that Mrs Salih's thumb was injured by the compartment door dropping in the usual, normal and expected way. Accordingly, Emirates was not liable to Mrs Salih. Against the possibility that his conclusion on liability was wrong, the primary judge contingently assessed damages in the sum of $52,803.95. Judgment was given in favour of Emirates and Mrs Salih was ordered to pay the costs of Emirates as agreed or assessed: Salih v Emirates (No 2) [2019] NSWDC 715.
Mrs Salih seeks leave to appeal from the judgment on liability. Leave to appeal is required as the amount in issue is less than the threshold for an appeal being $100,000: District Court Act 1973 (NSW), s 127(2)(c). The hearing proceeded as a concurrent hearing of the application for leave, and the appeal itself, if leave was granted.

Leave to appeal

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is not sufficient merely to show that the trial judge was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], citing among others, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].
Here, the proposed appeal raises no issue of principle or question of general public importance. There is no dispute that the primary judge correctly stated the law concerning the meaning of the concept of "accident" in Art 17.1 of the Montréal Convention. Nor is there any dispute as to the application of those principles to the facts as found or as Mrs Salih contends should be found by this Court on appeal. Assuming the correct finding is that the compartment door opened in the usual manner, Mrs Salih accepted that the event occasioning the injury was not an accident within Art 17.1; whilst if the correct finding is that the overhead compartment door dropped "suddenly" on Mrs Salih's thumb, Emirates accepted that the event occasioning the injury was an "accident" within Art 17.1.
The proposed appeal is wholly concerned with factual findings. Appellate restraint is required with respect to review of such findings. Mrs Salih says that the findings are "glaringly improbable": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [28]-[29]. Demonstrating error of that kind is a difficult task.
For the reasons that follow, I would refuse leave to appeal.

Primary judge's reasons

At J[152], the primary judge summarised his factual findings concerning the circumstances of the injury to Mrs Salih's thumb. It is convenient to reproduce in full the relevant part of those findings: Having considered the submissions of the parties, I make the following factual findings: … (3) On 31 October 2016, the plaintiff, her husband, her three children and her mother were returning from a trip to Turkey. The family boarded at Dubai on Emirates flight EK414 bound for Sydney. (4) The plaintiff carried a backpack which contained infant prerequisites for her baby who was then several months old. This included the baby's infant formula and bottles. There is no satisfactory evidence before me which allows me to determine who placed the backpack with the baby's bottles into the overhead compartment. The plaintiff says that she does not recall doing it. (5) In the course of the evening after the plane had departed Dubai and whilst the cabin was in near darkness, the plaintiff's baby started crying. The plaintiff got up from her seat and went to fetch the backpack with the baby's bottles in it. As indicated, the cabin was in darkness other than the usual safety lighting. I find that the plaintiff reached up her hands to the overhead compartment where she had previously seen the backpack positioned and used her left hand with her palm facing towards her to pull the latch while her right hand was about 10cm lower and towards the right hand side of the overhead compartment. There was no evidence that the plaintiff had a torch or other light or used the torch mechanism on her mobile phone to illuminate the overhead compartment. There is no evidence that there was lighting available near the overhead compartment to illuminate it. (6) When the plaintiff opened the hatch door, her evidence was that the overhead compartment door fell not with the usual slower hydraulic mechanism but very quickly and suddenly and landed on her right thumb, near the base of the thumb, causing her immediate pain. I have considered this matter further below when I consider the accident and I have found, based on the evidence of the plaintiff's husband and the defect logs kept by the defendant's staff, that the overhead compartment door was likely not defective at the time. However, I still find that the overhead compartment door landed on the plaintiff's thumb, near the base of the thumb, causing her immediate pain. (7) The plaintiff's husband called the steward and the plaintiff took medication, had her thumb placed in a splint and for a period, placed her arm in a sling. The plaintiff's husband fed the baby after himself accessing the overhead compartment in question. (8) The plaintiff continued on her trip to Sydney with her family and two days later sought medical assistance by consulting her general practitioner. Thereafter, the plaintiff saw her general practitioner on a number of occasions which I have outlined above and was referred to physiotherapy and in due course, to specialists. … [Transcript references omitted.]
After considering the medical evidence, the primary judge concluded at J[166]: Accordingly, in summary, I find that the plaintiff has a soft tissue injury to her thumb arising out of the accident which has caused pain and restrictions in the thumb and in the area of the hand around the base of the thumb extending to the centre of the hand but not to the ulnar border of the hand. This condition has become chronic.
Addressing whether there was an "accident" within Art 17, the primary judge made the following findings:

the contemporaneous documentary evidence (being the Aircraft Cabin/IEF Defect Log Sector Record (the logs)) did not establish or support the conclusion that there was any defect in the overhead compartment door on board the aircraft following the flight: at J[170].
Mrs Salih's husband gave evidence that when he later opened the overhead compartment door it opened in the normal fashion, which his Honour took to mean that it did not drop open heavily and immediately drop without hydraulic limitation. His Honour found Mr Salih's evidence to be reliable on this issue as he was aware of his wife's complaint when he opened the overhead compartment door: at J[171].
there was no suggestion or evidence that the overhead compartment door was defective or faulty intermittently, which he considered to be unlikely: J[171].

In concluding that the compartment door was not faulty or defective at the time Mrs Salih opened it, and that the documentary evidence and Mr Salih's evidence should be preferred, the primary judge said at J[172]: … It is likely that if a defect was found in the compartment door it would have been recorded and attended to by the engineers. It is also likely that the inspection of the aircraft after each flight referred to in Mr Danker's affidavit would have located any defect. I find that the overhead compartment door opened in the usual fashion but in the dark landed on the plaintiff's thumb causing the injury. [Emphasis added.]
After referring to authorities concerning the meaning of "accident" in Art 17.1 of the Montréal Convention, including Povey and the cases discussed in Di Falco v Emirates (No 2) [2019] VSC 654 at [3]-[5] and [8]-[18], the dispositive findings of the primary judge are found at J[179] as follows: Applying the test in Povey as stated by the High Court and the summary of Forbes J in Di Falco, in my view there was no "accident" in the present case within the Convention. An "accident" that is a cause of an injury is different to the occurrence of injury itself. It is necessary to identify an event or happening that is external to the passenger which may arise from an act or omission or from a combination of acts or omissions and where the event must be unexpected or unusual. A passenger's own reaction to the usual, normal and expected operation of the aircraft or any part of it is not an accident. While the plaintiff claims that something unexpected or unusual did happen by the door falling heavily onto her hand, I have found based on the affidavit of Mr Danker, the documentary evidence and the evidence of the plaintiff's husband that the door was not defective or faulty. Accordingly, the thumb was injured by the door dropping in the usual, normal and expected way. That is not an "accident" within the Convention. What it is, is merely the occurrence of an injury itself. [Emphasis added.]
The primary judge concluded that Mrs Salih had not satisfied the evidentiary onus to prove on the balance of probabilities that she suffered injury that was caused by an unexpected or unusual event or happening that was external to her. Accordingly there was no accident within Art 17.1 of the Montréal Convention and her claim did not succeed: at J[181].

Challenge to factual findings

Mrs Salih seeks to challenge the primary judge's findings that: 1. the overhead compartment door opened in the usual fashion: J [172]; and, 2. Mrs Salih's thumb was injured by the door dropping in the usual, normal and expected way: J [179].
The alternative findings of fact for which Mrs Salih contended include that as soon as she unlatched the overhead compartment door the compartment door dropped onto her right hand near her thumb, the door dropped heavily, the door dropped suddenly, and the door did not open slowly and in the normal fashion.
It must be accepted that appellate restraint is required with respect to review of factual findings which are likely to have been affected by impressions about credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. That includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts: Lee v Lee [2019] HCA 28; (2019) 372 ALR 383 at [55].
Here, it is common ground that in order to succeed on appeal, Mrs Salih must establish that the trial judge's decision is "glaringly improbable" or "contrary to compelling inferences" in the case: Fox v Percy at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee at [55].
Senior counsel for Mrs Salih submitted that the findings referred to at [19] above are "glaringly improbable". Counsel identified five matters said to be supportive of Mrs Salih's credibility and reliability but not given adequate recognition or weight by the primary judge: 1. the reference in the incident report that when Mrs Salih opened the overhead compartment door it "fell" on her thumb; 2. the reference in the medical incident report that Mrs Salih was opening a "hat rack" when it "landed" on her right thumb; 3. the description in these reports of Mrs Salih's injuries and the treatment given, namely, the application of an icepack, compression of the right thumb with a crepe bandage, that Mrs Salih took her own pain medication (Nurofen) and both the Captain and purser were informed of the injury; 4. the oral evidence of Mr Salih as to what his wife told him when he asked what happened, namely, the compartment door "fell" and hit her on the hand; and 5. the primary judge's assessment of the severity of Mrs Salih's non-economic loss of 15 per cent of a most extreme case cannot be reconciled with the "normal" operation of a compartment door.

Decision

The essential factual issue at trial was whether the compartment door dropped suddenly, and thus unusually or unexpectedly. The case advanced by Mrs Salih was that the hydraulic mechanism in the compartment door malfunctioned on the occasion when she opened the compartment door.
No complaint is made in relation to his Honour's finding that there was no suggestion or evidence that the compartment door was defective or faulty on an intermittent basis, which he considered was unlikely. The possibility of an intermittent fault or defect in the compartment door was referred to in passing by counsel for Mrs Salih in closing submissions at trial, but no evidence was adduced in that regard and the possibility was entirely speculative.
Turning to the credibility and reliability findings, his Honour found that "[o]verall, [Mrs Salih] struck me as a fairly honest witness who in general terms was doing her best to answer questions frankly and completely", whilst noting that she exaggerated parts of her evidence concerning her physical problems post injury, her need for domestic assistance and her claimed sick days: at J[63]. His Honour concluded at J[64]: Accordingly, in my view I must exercise some caution in relation to the plaintiff's evidence particularly where it relates to the ongoing asserted deterioration in her medical condition.
The reliability of Mrs Salih's evidence that the door dropped suddenly was put in issue in cross-examination. Whether she actually saw the door fall down was also put in issue. Contrary to the submission of counsel for Mrs Salih, the caution referred to at J[64] should not be read as limited to Mrs Salih's evidence on damages. That Mrs Salih exaggerated her evidence on the topics identified by his Honour was a reason for the need to exercise caution in relation to accepting her other evidence.
As to the evidence in items (1), (2) and (4), Emirates submitted that there is no inconsistency between his Honour accepting that Mrs Salih had an honest belief that the overhead compartment door dropped suddenly on her thumb, and not accepting that her report of the incident as one in which the compartment door "fell" or "landed" on her thumb should be taken as a reliable confirmation that the door dropped suddenly. That view of the evidence was plainly open to his Honour who had the advantage of seeing the relevant witnesses give their oral evidence and was thus able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court: Fox v Percy at [23].
His Honour correctly took into account that the cabin was in darkness other than the usual safety lighting, when Mrs Salih opened the compartment door. That Mrs Salih's visual observation of the compartment door was affected by the near darkness in the cabin is apparent from her qualified answer to his Honour's question as to whether she actually saw the door fall down, to which Mrs Salih responded: "I might have, yes".
His Honour also correctly took into account that Mrs Salih conceded in cross-examination that she did not report the overhead compartment door as being defective, whilst noting that she stated that she did not do so because of her pain. Neither the incident report nor the medical incident report mentioned any defect in the overhead compartment door.
Complaint is made that the primary judge gave too much weight to the evidence of Mr Salih that the overhead compartment opened "in the normal fashion" immediately after his wife told him of the incident. But this evidence was left unchallenged and, as the primary judge observed, Mr Salih did not mention the compartment door falling suddenly or heavily when he opened it: J[67].
Complaint is also made that the primary judge gave inappropriate weight to the evidence of Mr Danker, the engineer employed by Emirates. It was said that his evidence did no more than describe a system for reporting and repairing defects and did not establish that the overhead compartment was in fact inspected by the engineers after the flight landed in Sydney.
Mr Danker's evidence established that Emirates had a system of maintaining a log on board the aircraft in relation to each flight; the purpose of the log was to record all cabin equipment issues and defects reported by the cabin crew to the purser during a flight and the repairs undertaken by the engineers to address those matters.
The log in relation to the flight that Mrs Salih boarded was in evidence as a business record, as were the logs for the preceding and following flights on the same aircraft departing on 29 October and 1 November 2016. The logs record all manner of defects in cabin equipment that were reported to the purser by the cabin crew, and the repairs that were undertaken. The logs did not include any report of a defect with the overhead compartments in the cabin of the aircraft or any repairs made to the overhead compartments.
Given the range of differing seriousness or triviality of the reported defects recorded in the logs, including relating to seats, footrests, window shades, electronic entertainment systems and coffee machines in the galley, it was open to the primary judge to infer that Emirates had a system in place for reporting defects in the cabin equipment, and the cabin crew acting responsibly were complying with the system by reporting observed defects to the purser as recorded in the log kept for each flight.
The primary judge relied on the evidence of the system described by Mr Danker to draw the inference that, "it is likely that if a defect was found in the compartment door it would have been recorded and attended to by the engineers": at J[172]. That finding was made with reference to the operation of the system on board the aircraft which his Honour inferred was complied with by the cabin crew. His Honour did not proceed on the incorrect basis, as counsel for Mrs Salih suggested, that the engineers had inspected the overhead compartment after the aircraft had landed in Sydney.
The log for the flight boarded by Mrs Salih has additional significance. There was evidence that the overhead compartment was emptied by the cabin crew after the incident involving Mrs Salih. An inference is available from the system described by Mr Danker and the evidence of compliance with that system as established by the content of the logs, that had the cabin crew observed any defect in the operation of the compartment door they would have reported this to the purser and it would have been recorded as a defect in the log. That the log did not contain any such report supports the inference that the compartment door did not malfunction and drop suddenly when the compartment was emptied shortly after the incident involving Mrs Salih.
I do not regard items (3) and (5) regarding the severity of Mrs Salih's injury as necessarily inconsistent with the compartment door operating in the usual fashion, particularly given that the injury occurred when the cabin was in near darkness, and taking into account the other evidence to which his Honour had regard referred to above.
On the evidence, the impugned findings were plainly open. None of items (1)-(5) serves to detract from the evidence of Mr Salih and Mr Danker and the available inferences from the business records comprised in the logs or to indicate that the findings sought to be challenged are glaringly improbable.
In my view, leave to appeal should be refused.

Conclusion

The summons seeking leave to appeal should be dismissed with costs.
McCALLUM JA: I agree with Gleeson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020

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