Court closes the (overhead locker) door on liability claim – Salih v Emirates (No. 2) [2019] NSWDC 715

29 January 2020

The District Court of New South Wales recently determined that an overhead locker door landing on the plaintiff’s thumb as it opened downwards did not constitute an ‘accident’ for the purposes of the Civil Aviation (Carriers Liability) Act 1959 (Cth). The decision illustrates that a passenger’s own reaction to the usual, normal and expected operation of an aircraft or its parts does not constitute an accident.


On 21 October 2016 the plaintiff and her family were travelling on an Emirates flight from Dubai to Sydney. During the course of the flight, the plaintiff got out of her seat to retrieve a bag from the overhead locker. She alleged that:

  • When she opened the locker door, the compartment lowered very quickly (as opposed to the usual slower hydraulic speed) and landed on her right thumb, causing her immediate pain; and
  • She had experienced significant pain and impairment since the incident.

At the time of the incident, the cabin was in near darkness as the lights had been dimmed.

Importantly, the plaintiff’s husband conceded in his evidence that when he later opened the locker door, it opened in the ‘normal fashion’.

Emirates led evidence that:

  • An incident report was prepared when the plaintiff reported the incident to its crew and there was no indication the plaintiff had suggested that the locker door was defective at that time; and
  • Its aircraft were inspected after each flight and any defects recorded at that time.

The issue before the court was whether the event constituted an ‘accident’ within the meaning of Article 17.1 of the 1999 Montréal Convention.

The Court had regard to the recent decision in Di Falco v Emirates (No 2) (2019) VSC 654 which provided detailed consideration of the meaning of ‘accident’ in Article 17.1 of the Montréal Convention.

Judge Dicker SC DCJ noted that that if a defect was present in the locker door, it would likely have been identified and recorded in the post flight inspection process.

In light of the defendant’s evidence and the evidence of the plaintiff’s husband, the Court concluded that:

  • The door was not defective or faulty;
  • The plaintiff’s injury was caused by the door descending in the usual, normal and expected way but, in the dark, landed on the plaintiff’s thumb causing her injury; and
  • This was not an ‘accident’ for the purposes of the Convention and was merely the occurrence of an injury itself.

Accordingly, the plaintiff’s claim was dismissed.


The decision illustrates that the question of whether an event constitutes an ‘accident’ as defined by Article 17 of the Montréal Convention depends upon whether the event is unexpected or unusual by objective standards. A passenger’s own reaction to the usual, normal and expected operation of the aircraft or its components is not an accident.

The decision also demonstrates the importance of securing contemporaneous evidence in relation to the incident or part of the aircraft alleged to have caused the injury. Incident reports and post-flight inspection records may be crucial evidence in defeating allegations that a defect in the aircraft resulted in a claimant’s injury.

This article was written by James McIntyre, Special Counsel.

James McIntyre

Special Counsel | Brisbane

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us