Virgin denies liability in ‘kneecapping’ incident on Brisbane-Melbourne flight

A case before the Victorian Supreme Court has shone new light on the challenges faced by people of height in cramped airline seats.

Virgin Australia has denied it is to blame for “kneecapping” a passenger with a service cart on a flight from Brisbane to Melbourne, saying the customer was at fault for falling asleep with his leg in the aisle.

Christopher Cotten, an actor whose image was used for the face of Tarzan in the animated Disney movie, was on tour with The Monkees in June 2019 when he nodded off in aisle seat 12C of the Boeing 737.

He awoke in agony when a service cart struck his knee not once but twice, as the flight attendant attempted to move the heavy trolley down the aisle.

In a matter before the Victorian Supreme Court, Mr Cotten, who is 188cm tall, said he was left with torn cartilage in his right knee and hip, and damaged knee and hip joints.

US actor Christopher Cotten.

After returning to the US, he underwent surgery in Los Angeles at a cost of US$180,000 (AU$276,667).

Documents filed to the court by Vector Legal solicitor John Dawson said his client had suffered economic loss as a result of the injury, and was entitled to damages with interest plus costs.

The Civil Aviation (Carrier’s Liability) Act allowed for maximum compensation of $725,000 for the matter, but Virgin Australia denied any liability.

In its defence, Virgin Australia argued it was Mr Cotten who was negligent by “sleeping with his leg protruding into the aisle when he knew that service carts would be moving along the aisle from time to time throughout the flight”.

Boeing data shows the aisle of a 737-800 is typically no more than 51cm, which meant there was precious little space for service carts.

HWL Ebsworth lawyers for Virgin also claimed Mr Cotten had failed to heed verbal warnings from cabin crew as to the approach of the cart and failed to remove his leg from the aisle prior to the cart arriving at his row.

“By reason of the foregoing, Virgin Australia denies Mr Cotten is entitled to the relief claimed or any relief at all,” said Virgin’s defence.

A service cart similar to the one which struck Mr Cotten.

The matter appeared headed for trial in 2025 unless a settlement could be reached beforehand.

Author of Aviation Law in Australia Ron Bartsch said the case highlighted the inadequacies of the Civil Aviation (Carrier’s Liability) Act, which allowed such matters to drag on.

“The whole basis of the CACL is it’s supposed to be consumer-oriented and provide effective and timely compensation but in fact it has the effect of the opposite, in that it becomes lengthy and costly in terms of any dispute resolution,” said Professor Bartsch.

“When you have an incident in 2019, and it’s still unresolved in 2024, that would appear to support the whole adage of justice delayed, is justice denied.”

The liability cap of $725,000 was also problematic for a case such as Mr Cotten’s who faced very expensive medical bills due to the fact he lived in the US, he added.

“That cap includes medical bills – they can’t be claimed separately so for the individual it’s really difficult,” Professor Bartsch said.

A final directions hearing was listed for January 31, ahead of the trial starting on February 17.