Which case won?

The case for the passenger
  • After the hot tea was spilt on me, I jumped to avoid it, twisted my back sharply and fell on to my partner, who was sitting next to me on the flight
  • I immediately felt a sharp pain in my lower back
  • The pain persisted after the flight and I had to have surgery on my spine
  • I now suffer ongoing pain and disability because of the spinal injury I sustained during the flight
  • My partner backs up my story of what occurred
The case for the airline
  • Our records show that the passenger only complained about a mild burn to her leg at the time and did not complain of back pain during the flight
  • Medical evidence shows that the passenger did not seek any medical treatment for a back injury until five days after the flight
  • Medical evidence also suggests that the passenger had spinal problems well before the flight
  • The accident on the aeroplane did not cause the passenger’s back injury

So, which case won?

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Expert commentary on the court's decision

Victoria RoyPractice Group Leader
“Although the tea-spilling incident was an 'accident' under the Montreal Convention, the judge did not accept that it caused or aggravated the passenger’s back injury.”
Back injury not a consequence of tea-spilling incident

The Montreal Convention is an international convention that regulates, amongst other things, compensation for incidents that occur on international flights. It has force of law in Australia.

Under the Convention, the word “accident” does not have its everyday meaning. Rather, an “accident” must be an unexpected or unusual event that is external to the passenger, and not the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft.

While it was clear that the flight attendant had not deliberately spilled the hot tea on the passenger, the judge accepted that the incident was an “accident” as defined by the Montreal Convention.

It was therefore up to the court to decide whether the “accident” had caused the passenger “bodily injury”, and whether that bodily injury included the spinal injury claimed by the passenger.

Factors which supported the airline’s case

Several details served to cast doubt on the passenger’s version of events. One was that the report of the tea-spilling incident compiled by the crew during the flight referred only to the mild burn the passenger had sustained from the hot tea and made no mention of back pain. This highlights the importance of good record keeping.

Although the airline did not call any of its flight crew to give evidence, the judge preferred the airline’s contemporaneous records to the passenger and her partner’s oral evidence at the hearing.

Another detail was the five-day delay between the mid-flight incident and the passenger seeking medical help.

Also, the evidence established that the passenger had been seated, wearing her seatbelt and with her tray table down at the time of the accident. That made it unlikely that she could have jumped up and fallen as she claimed.

The judge noted, somewhat witheringly, that although the passenger had seen several doctors and medical specialists following the flight, “the first person independent of the plaintiff to record a complaint from her associating the tea incident with the injury… were the doctors the plaintiff consulted for the purposes of litigation.”

Passenger’s account of events seen as lacking credibility

The judge found the evidence of the passenger and her partner to be unreliable, stating: “the detail of significant events, such as how she fell after being splashed with tea, shifted under cross-examination like sands under the force of a strong current.”

Consequently, the passenger’s claim against the airline was dismissed. Furthermore, she was ordered to pay the airline’s legal costs. Although on the face of it the passenger’s tea incident fell within the meaning of the Montreal Convention, she failed to satisfy the element of “causation”, which is a fundamental part of all personal injury claims.

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