Airline avoids liability for passenger injury from a hot tea spill

Can hot tea served on a plane cause back pain?

In the first Australian court decision on an airline’s liability for a hot tea or coffee spill in-flight, a passenger’s injury claim has been dismissed because the injury was not caused by the hot tea spill.

The decision is Dibbs v Emirates [2015] NSWSC 1332 (Supreme Court of New South Wales, Wilson J) (11 September 2015).
 

The Facts in Dibbs v Emirates

• The flight was an international flight from Sydney to Dubai. Therefore the Montreal Convention of 1999 for international air travel applied, as adopted into Australian law by the Civil Aviation (Carriers Liability) Act 1959 (Cth).
   
• The passenger’s version of the tea incident (corroborated by her now husband) was that she was seated in the aisle seat in economy class, when the flight attendant offered her a cup of tea. The flight 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 on to the right side of the passenger’s body. She 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 fiancé ... [and] ... I felt a sharp pain in my lower back.
   
• The airline’s version of the tea incident was contained in the “KIS Report” (the in-flight incident report). This 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. It stated:
  
  Description:
  • Miss Dibbs spilt coffee on her leg when the cup slid off the tray table

  Action:

  • 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
     
• 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 A$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.
   

The application of Article 17 of the Montreal Convention to the facts

The Montreal Convention is ‘passenger friendly’ because it requires international airlines to assume liability for passenger injuries, unlike in domestic flights where a passenger usually needs to prove that the airline was negligent. Article 17(1) states:

The carrier is liable ... in the 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 ...

The Australian Courts have adopted the definitions of accident and caused as formulated by the Supreme Court of the United States in Air France v Saks (1985) 84 L Ed 2d 289 (at 405 to 406) per Justice Sandra Day Connor, namely:

accident: liability ... arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger ...

caused: Any injury is the product of a chain of causes and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.

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 has 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.
 

Why did the plaintiff fail to prove causation in Dibbs v Emirates?

The plaintiff (passenger) 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 4 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. She called no witnesses other than her husband to the tea incident. 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.”

The medical evidence from the doctors was that “Ms Dibbs had a significant disability in her back prior to the trip to Malta by reason of L4/5 disc pathology. Indeed her condition was so fragile that an incident as minor as coughing or sneezing could have caused the disc prolapse seen in the plaintiff in Malta.”

The defendant (airline) relied on the in-flight incident report only. It did not call the flight attendant to give evidence. The court admitted the in-flight incident report into evidence as a contemporaneous record. The court accepted that “the particular flight attendant would probably have had no reason to remember the incident beyond ... the contemporaneous record”. Therefore, not calling the flight attendant should not be held against the airline. The court said that in-flight incident report did not have much weight as evidence because it was not shown to the plaintiff, and so the plaintiff did not have an opportunity to comment. Nor was a copy of the report given to the plaintiff.
 

What is the future for hot tea spill law suits against airlines in Australia?

The alleged back injury in Dibbs v Emirates was unusual for a hot drink spill. In almost all law suits for hot tea or coffee spills, the injuries are scalding and burns. If the injury is serious, skin grafts and surgery may be necessary.

The US cases offer useful guidance to the Australian Courts because they apply Air France v Saks and the USA has adopted the Montreal Convention.

An example is Yona Wipranik v Air Canada, et al 2007 WL 2441066 (C.D.Cal.). Judge Howard Matz of the United States District Court, C.D. California, ruled against the airline’s application for summary judgment. The facts were that the plaintiff placed a cup of hot tea in the middle of the seat tray in front of her. When the passenger in front reclined his or her seat, it caused the cup of tea to slide off the tray and on to the Plaintiff’s lap. She was scalded.

Judge Howard Matz said:

The slide of the tea off of the tray table and its fall onto the Plaintiff’s lap were events “external” to the Plaintiff. Moreover, those events were unusual and unexpected. Although it may be common for an airline seat to shake when its occupant moves around, it is not common for beverages placed on the tray behind that seat to be so jolted by the movement that they fall onto another passenger. It is the failure of the tray table to hold beverages securely despite passenger movement in the seat in front that is unexpected.

Therefore the spill was an accident. He added that at the trial there may be a genuine issue as to whether the plaintiff contributed to her injury (i.e. spilled the tea on to herself). This is an Article 21 defence that the airline can use.

The same analysis would apply in Australia.

And so in the right circumstances, air passengers will succeed in hot tea or coffee spill injury claims against an international airline on a route to or from Australia.

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