Emirates accused of gaming legal system over injured passenger’s compo claim

Emirates is using a state law to fight a claim brought by an Australian man in a move that could erode the rights of airline passengers.

Emirates is fighting a lawsuit brought by a passenger who was struck in the head with a suitcase during a flight from Dublin to Dubai. Picture: Sarah Matray

Gulf carrier Emirates has been accused of trying to erode the rights of airline passengers in its defence of a case before the Federal Court of Australia.

Passenger Stephen Bradshaw is suing Emirates after he was hit on the head by a suitcase that fell from an overhead locker on a flight from Dublin to Dubai in early 2019.

The incident occurred as a flight attendant chatted to a passenger who had opened the overhead compartment, after the seatbelt sign had been turned on for descent.

When the plane banked sharply, a hard-shell suitcase flew out of the locker and struck Mr Bradshaw, causing concussion and other injuries. On the second leg of his journey, from Dubai to Brisbane, he was forced to lie in the aisle of the aircraft near the toilets to get relief.

According to his claim, he continued to experience head and neck pain, as well as restricted movement long after arriving back in Brisbane.

Under the legal framework designed to determine the liability of airlines for the injury or death of passengers, the Montreal Convention, Mr Bradshaw could be entitled to damages in excess of $200,000.

Emirates is arguing that the NSW Civil Liability Act should apply to determine any damages, which it claims should amount to no more than $129.80.

Aviation law expert Ronald Bartsch said the Civil Liability Act applied to most personal injury claims brought in NSW courts but had an entirely different set of rules for claimants and imposed thresholds and caps on the amount an injured person may claim. “The move by Emirates is completely out of step with the aims and spirit of the Montreal Convention,” he said.

“To hobble the convention with a NSW state law that has quite different rules and concepts will harm the rights of the travelling public.”

Professor Bartsch said Emirates had tried a similar argument in the Victorian Supreme Court a couple of years ago where it was comprehensively dismissed.

“If the airline is successful in the Federal Court, it will mean that NSW residents travelling overseas will have lesser rights than passengers from other states.

“If it was the other way around and a state law allowed injured passengers to obtain higher benefits and compensation than the convention allows, there would be an outcry from airlines.”

International treaties and conventions to deal with aviation have been in place for more than 90 years, starting with the Warsaw Convention in 1929.

As the first of its type, the Warsaw Convention was protective of the then emerging airline industry but over time was adjusted in favour of the travelling public.

In 1999, it was remodelled into the more consumer-oriented Montreal Convention, which was adopted into Australian national law in 2009.

Professor Bartsch said in determining compensation under the convention, courts were meant to apply local law but respondents could not pick and choose any law that might suit them.

“To white-ant the convention with these limitations under the Civil Liability Act is an attempt to exploit a loophole which will impair the uniformity that the convention has achieved,” he said.

Emirates declined to comment because the case was before the courts. The matter will be heard by Federal Court judge Angus Stewart on Friday.