Federal Court orders Emirates to pay $5,000 to Australian passenger

Gulf carrier Emirates has been ordered to pay an Australian passenger $5000 in a significant legal victory.

Federal Court orders Emirates to pay an Australian passenger $5,000 after a suitcase from an overhead locker hit his head during a flight. Picture: Supplied

A man who was hit in the head by a suitcase falling from an overhead locker during an Emirates flight has been awarded $5000 after the judge rejected the airline’s attempt to duck its legal obligations.

Stephen Bradshaw took action in the Federal Court over the incident on a flight from Dublin to Dubai on his way home to Brisbane in January 2019.

After he was denied a request to upgrade to business class for the second leg of the journey, Mr Bradshaw lay on the floor near the rear toilets of the A380 to get relief from head and neck pain.

Mr Bradshaw was picked up from Brisbane Airport by his girlfriend and driven to the Gold Coast where he spent the next few days resting before driving himself to Sydney.

Although he saw a doctor while on the Gold Coast, medical records show Mr Bradshaw sought treatment for flu-like symptoms rather than a head injury.

In his judgment, Justice Angus Stewart said he was “left with the clear impression Mr Bradshaw embellished his version of what occurred on the flight in order to bolster his complaint against Emirates”.

“Once he had recorded that embellished version in his email (to Emirates) of January 21, 2019, it was difficult for him to resile from it and it got reproduced in his affidavit,” said Justice Stewart.

“The terms of that email indicate that its objective was to try and secure an upgrade or a discount on a future flight because Mr Bradshaw was ‘displeased with the treatment (he) received from the airline’.”

Despite his misgivings, Justice Stewart awarded Mr Bradshaw $5000 compensation for pain and suffering.

The sum was considerably higher than Emirates would have been required to pay, had Justice Stewart accepted the airline’s argument the case should be dealt with under the New South Wales Civil Liabilities Act.

Under the CLA, Mr Bradshaw would have been entitled to no more than $129.

However, Justice Stewart found that the Montreal Convention should apply, which has provision for compensation of up to $260,000 for passengers who sustain injury in the course of an international flight.

Aviation law expert Ron Bartsch, said the judgment was significant, because it maintained the integrity of the Montreal Convention which was specifically designed to deal with airline incidents.

Professor Bartsch said when 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”.

“Airlines should not be trying to avoid their legal obligations by using a state law,” said Professor Bartsch.

In a further blow for Emirates, the Federal Court found the airline and other foreign-owned aviation businesses operating in Australia were not entitled to millions of dollars in JobKeeper payments from the federal government.

Emirates, along with dnata, Alpha flight services, Airline Cleaning Services and Snap Fresh had sought to recover $10.5m in wages paid to Australian employees under the scheme.

A judgment delivered by Justice David O’Callaghan on Monday ruled that because all of the companies were entirely owned by the government of Dubai, they did not qualify under the rules of JobKeeper.

The case was dismissed with costs awarded to the Australian Taxation Office.