Court of Appeal keeps the (overhead locker) door closed on airline liability claim – Salih v Emirates [2020] NSWCA 215

16 September 2020

The New South Wales Court of Appeal recently upheld a District Court decision that an overhead locker striking the plaintiff’s thumb as she opened it did not constitute an ‘accident’ for the purposes of the Civil Aviation (Carriers Liability) Act 1959 (Cth). The decision again demonstrates 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, the compartment lowered very quickly (as opposed to the usual slower hydraulic speed) and landed on her right thumb, causing her immediate pain.

In dismissing the plaintiff’s claim the District Court concluded that the door was not defective or faulty in view of the following matters:

  • The evidence of the plaintiff’s husband was that when he subsequently opened the locker door, it opened in the ‘normal fashion’;
  • Evidence from the airline that its aircraft were inspected after each flight and any defects recorded at that time;
  • The contemporaneous incident report did not contain any notation indicating the plaintiff had suggested the locker door was defective at the time of the incident.

Please click here if you wish to read our bulletin on the first instance decision.

The appeal

The plaintiff appealed from the District Court’s decision dismissing her claim. She contended that the trial judge’s finding of fact that the compartment door had opened in the usual manner was incorrect.

In dismissing the appeal, the Court of Appeal noted the following relevant matters:

  • The trial judge correctly took into account the fact that the cabin was in darkness (apart from the usual safety lighting) when the plaintiff opened the compartment door and this may have affected the plaintiff’s observation of the door’s movement;
  • The plaintiff had conceded in cross-examination that she did not report the overhead compartment door as being defective and the trial judge had noted the plaintiff had stated she did not do this because she was distracted by her pain from her hand;
  • Logs for the aircraft for the flights the days before and after the incident recorded a variety of defects in cabin equipment and the repairs that were undertaken. Importantly, the logs did not include any report of a defect with the overhead compartments in the cabin of the subject aircraft;
  • Given the range of reported defects in the logs it was open to the trial judge to infer that the airline had a system in place for reporting defects and the cabin crew for each flight complied with the system by reporting observed defects in the log; and
  • Given the evidence that the relevant overhead compartment was emptied by the cabin crew after the subject incident and the evidence regarding the airline’s defect reporting system, it was open to the trial judge to infer that if the cabin crew observed any defect in the compartment door it would have been recorded as a defect in the log.

Accordingly, the Court of Appeal concluded that the crucial finding of fact that the overhead locker door was not defective was open to the trial judge on the evidence given at the trial and dismissed the plaintiff’s appeal.


The decision demonstrates the importance of airlines maintaining appropriate systems for the reporting of incidents and defects (and their rectification) and ensuring that those records can be located and relied upon in the event of a personal injury claim against them.

This article was written by Matthew Brooks, Partner and James McIntyre, Special Counsel.

James McIntyre

Special Counsel | Brisbane

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