Airlines need to
provide water to passengers often to avoid in-flight
Is an airline liable if it fails to provide water often,
and the passenger faints, falls and injures themselves on
the way to the toilet because they are dehydrated?
This was the question the Supreme Court of Victoria had
to decide in the recent decision of Di Falco v Emirates
(No 2)  VSC 654, a decision of Justice Forbes of 15
Article 17 of the Montreal No 4 Convention (1999) imposes
strict liability upon international airlines to
compensate passengers up to 128,821 SDRs (Special Drawing
Rights) for personal injuries. For airlines which fly into
Australia, the amount is higher - up to 480,000 SDRs
(approximately AUD $960,000).
Strict liability means that for in-flight injury
claims there is no need to prove the airline was at fault.
And the airline cannot defend the claim by proving it was
But the passenger must prove there was an accident
which caused the injury.
This is the text of Article 17:
- 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
Article 17 is the law in Australia by s 28 of the
Civil Aviation (Carriers’ Liability) Act 1959.
The Facts in Di Falco v
Emirates (No 2)
At about 9:40 pm in the evening on 15 March 2015, Ms Di
Falco boarded Emirates Flight EK 407 from Melbourne to
Dubai. She had no water with her as her bottle of water was
confiscated by security when her bag was screened.
Before the plane departed (the ‘pushback’) at 10:32 pm (7
minutes after scheduled departure), she made two requests
for water to the same attendant, who responded that water
will be served with the meal service.
She sat in economy in row 71, which was five rows past a
galley area and toilets outside of which were a drinking
fountain and water fountain. Ms Di Falco said she had looked
for, but not seen the fountains. Nor had an attendant
pointed them out.
At about 12:30 am, the meal was served, accompanied by a
cup of water (150 ml). She made a third request for water
after the meal was served and a fourth request after the
plates were cleared. The attendant responded that a
drinks/beverages cart would follow.
All of her requests were personal. They not made by
calling the attendant’s call button.
At about 3:30 am, 5 hours after pushback, before the
drinks cart came, Ms Di Falco left her seat to go to the
toilet, as she was feeling nauseous. She fainted at the
doorway to the toilet, fell to the floor and fractured her
The accident which
caused the injury must be an unexpected or unusual event
The Court adopted the formulation in Air France v Saks
 USSC 43 that an accident necessary to cause an injury
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.
In Saks, the Supreme Court of the United States
refused the claim made by a passenger that they were made
deaf by the allegedly negligent maintenance and operation of
the cabin pressurisation system, because there was no
Ms Di Falco relied upon Olympic Airways v Husain
 USSC 15, in which the Supreme Court of the United
States held that both the flight attendant’s failure to act
(an omission) and their refusal to act (an act) could both
constitute an event for the purposes of Article 17.
In Hussein, the event was the flight attendant’s
refusal of three requests made by Dr Hussein to be moved
away from the smoking section of the aircraft, because of
his anaphylactic reactions to cigarette smoke. The
attendant’s reasons were either that she was too busy or
that the plane was full. Dr Hussein suffered a severe
allergic reaction, collapsed and died.
In Ms Di Falco’s case, the Court found that there was no
event, in that there was ‘no overall failure to
provide water on request’. The first two requests were made
while the cabin crew were preparing for take-off and could
not be attended to immediately for safety reasons, while the
other two were to be attended to when the drinks cart came,
after the meal. The Court found that all requests should be
treated as deferred, not as failures to act or refusals to
As for whether the event was unexpected or unusual,
and external to the passenger the Court said that
‘this description is measured by reference to objective
standards of normal aircraft operation, not by reference to
the subjective expectation of the passenger’ of access to
adequate hydration on board. The Court concluded:
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
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.
Therefore I find that there is no ‘accident’ as
defined by Article 17 of the Montreal Convention.
The plaintiff’s claim is dismissed.
Although not necessary for the decision, the Court
analysed what caused the fall.
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.
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
At a preliminary hearing, Emirates made an application to
dismiss that part of the claim as was for damages for
non-economic loss, because the injury was not a significant
injury within the meaning of the Wrongs Act 1958
(Vic) and so that loss was not recoverable.
The Court held that the Wrongs Act did not apply
at all to the claim because the Wrongs Act deals with
the recovery of damages caused by the fault of another, and
because the Wrongs Act derogates from the rights
provided under the Carriers’ Liability Act. See Di
Falco v Emirates  VSC 472.
There are two interesting aspects of this decision.
The first is that if a passenger’s request is deferred,
it is not treated as a refusal. The Court found that a
deferral of a request (for good reasons) is not an event
because it is neither an omission nor an act which could be
an accident for the purposes of Article 17.
The second is that it is not an unusual or unexpected
event if the airline follows its policy.
Many airlines now follow a policy of offering a free
bottle of water or bringing the drinks / beveridge cart out
as soon as the ‘fasten seatbelts’ sign is turned off. They
also offer cups of water every hour throughout the flight.
Airlines say this policy promotes passenger health and
wellbeing. But as Di Falco’s case shows, it also
reduces the risk of liability for the airline for injury