A synchronised swimmer from Sydney who sued Emirates for damages after a hot drink was accidentally spilled on her during a flight has lost the case and been ordered to pay the airline’s legal costs.
A cup of hot tea was spilt on Michelle Leanne Dibbs her during the first leg of a flight to Malta, via Dubai, on the airline in 2012. Dibbs filed a suit against Emirates in the NSW Supreme Court.
The incident occurred when Dibbs, who has competed nationally as a synchronised swimmer, was on the first sector of the flight, Sydney/Dubai. A cup of hot tea was spilled on her leg, which Dibbs claimed caused her to “jump up and twist sharply” and as a consequence sustain a severe injury to her back.
“After reaching Malta, the plaintiff underwent surgery for a disc protrusion in her lower back,” court documents state.
The court, however, found against her following a hearing in September this year and yesterday.
Emirates had made a AUD 75,000 offer of compromise on 16 October 2014, the court heard, but Dibbs did not take it up and it expired in November.
The court has now ordered that Dibbs pay Emirates’ costs, covering the airline’s legal bills. The order yesterday to pay the airline’s costs requires costs to be assessed “on an ordinary basis” up to and including 16 October 2014; and “on an indemnity basis” from 17 October 2014 onward.
Dibbs stated in the case that she was seated in an aisle seat in economy class, when the flight attendant offered her a cup of tea. The attendant was distracted as she was putting down the serving tray with the cup of hot tea on it, on the seat table. The hot tea spilt onto Dibbs.
Dibbs said: “I was trying to move out of the way [of] the hot tea so I would not get burnt and as I was doing this I fell towards my right hand side towards my fiancé.
“At the time this happened in addition to the pain of the hot tea I felt a sharp pain in my lower back.”
The airline’s version of the incident was contained in the “KIS Report” (the in-flight incident report), which was completed in-flight by the flight supervisor who spoke with the passenger while she was lying down on the floor near the First Class section.
Miss Dibbs spilt coffee on her leg when the cup slid off the tray table.
Crew rendered first aid, cooling burn and applying burn cream.
PJs given from First Class as loose fitting and to give time to dry trousers.
Customer satisfied with treatment received.
Part of the judge’s summation in the NSW Supreme Court in September makes vivid reading, as follows. (It uses the word ‘husband’ although he was the plantiff’s fiancé at the time):
“Having fallen, the plaintiff initially asserted that she fell onto her husband, landing in his lap. She claimed to have landed in her husband’s lap even though both her own and her husband’s tray tables had been lowered in anticipation of a cup of tea being served. It was only after the unlikelihood of this was raised with her in cross-examination that the plaintiff changed her account of the fall to state that she fell into her husband’s tray, rather than into his lap.”
“Q. What part of your body hit his lap?
A. The side of my body like that.
Q. So you’re indicating your left side of your body ending up in your husband’s lap.
Q. Is that what you’re saying?
Q. But you had the seat belt on.
A. But it was very loosely on.
Q. But in order for the left side of your body to end up in your husband’s lap –
A. I was able to stand up out of it – into it.
Q. Just let me finish the question. For that to happen you wouldn’t have been restrained by the seat belt at all, would you?
A. I was somewhat restrained but I – I somehow managed to get myself up and out of it almost. It was sort of –
Q. Up and out of the seat belt?
A. Yes, it was on loosely. I just remember getting up very – it all happened very quickly. I just remember getting up very – it all happened very quickly. I just went to dodge it and I – yes – and fell into his lap.
Q. So what happened then?
A. I felt a sharp pain in my back at that time when I twisted and I fell.
Q. Did he have his seat tray down?
Q. So you didn’t actually end up in his lap, did you? You must have hit the seat tray.
A. Not quite – yes, so I fell into him onto his tray.”
For an authoritative outline of the case, the overview and commentary posted by eminent Sydney-based specialist travel and tourism lawyer Anthony Cordato (who contributes from time to time to Global Travel Media) is well worth reading.
Cordato’s account, posted on the online legal site Lexology, can be read here:
Cordato notes that the case is “the first Australian court decision on an airline’s liability for a hot tea or coffee spill in-flight”.
“The passenger’s injury claim was dismissed because the injury was not caused by the hot tea spill,” Cordato observed.
Cordato notes that the passenger’s travel insurance covered the cost of the medical procedure, treatment and hospitalisation at her destination in Malta for her back injury. Her claim was for damages of almost AUD 800,000 for continuing treatment on her return to Australia, out of pocket expenses, wage loss, domestic assistance and general damages. She made no claim for treatment of scalding or burns on her body.
In Dibbs v Emirates, the airline did not dispute that the hot drink spill was an accident. The contentious issue was whether or not it caused the back injury to the plaintiff.
The Court concluded that the plaintiff (Dibbs) had failed [to prove causation, namely that she] sustained that injury or even aggravated an already existing injury during the Emirates flight on 30 May 2012.
Cordato notes that Dibbs’ action failed because according to Justice Wilson, her evidence was unreliable and unsatisfactory in many respects. For example, she changed the description of how she fell, she did not complain about her back injury during the flight, she waited four days after arriving in Malta to seek medical treatment, and none of the medical practitioners who treated her referred to the tea incident in their notes.
Cordato says Dibbs called no witnesses to the tea incident other than her husband.
“He was not credible because he ‘claimed to have only the most casual knowledge of his wife’s back problems before the Malta flight’. By contrast “His account of her disability after the Malta flight was patently exaggerated,” Cordato wrote.
The relevant NSW Supreme Court document may be inspected here: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2015/1332.html
Written by Peter Needham