Dibbs v Emirates

1. [1]

   On 30 May 2012 the plaintiff, Michelle Leanne Dibbs, travelled to Malta as a passenger on an international flight operated by the defendant, Emirates. During the first sector of the flight, en route to Dubai from Sydney, a cup of hot tea was spilled onto the plaintiff’s leg. The plaintiff asserts that this caused her to jump up and twist sharply and as a consequence of this movement, the plaintiff complains that she sustained a severe injury to her back. After reaching Malta, the plaintiff underwent surgery for a disc protrusion in her lower back. She claims that the injury sustained on the flight has left her with an ongoing level of significant disability.

2. [2]

   By an Amended Statement of Claim filed in court with leave on 2 September 2015, the plaintiff seeks to recover damages from Emirates for her injury.

3. [3]

   It is not disputed that a hot drink spilt onto the plaintiff during the course of the flight. The balance of the plaintiff’s claim is neither admitted nor accepted by the defendant.

Pleading and Particulars

1. [4]

   In the Amended Statement of Claim, the plaintiff pleads that,

2. [5]

   The “injuries” is particularised as “severe injury to the lower back requiring surgery” with resultant pain and loss of movement in the lower back (which is aggravated by activity), reduction in the capacity to undertake activities, and stiffness in the lower lumbar region.

3. [6]

   A claim is made in damages for medical expenses connected with the surgery the plaintiff underwent in Malta, together with expenses for consequent and future treatment, loss of income and future earnings, and for the cost of past and future care, both gratuitous and paid. Interest and costs are sought.

The Issues

1. [7]

   Other than the fact of a hot drink spilling onto the plaintiff during the course of the Sydney - Dubai flight, every aspect of this matter is in issue between the parties.

2. [8]

   Initially, a Joint Statement of Issues filed by the parties on 28 August 2015 included the applicability of the Warsaw Convention of 1929, but that question was resolved by the plaintiff’s Amended Statement of Claim, which pleaded the Montreal Convention 1999 in lieu of the Warsaw Convention as relevant.

3. [9]

   There remains for the Court to resolve whether there was an “accident” during the flight to which “bodily injury” sustained by the plaintiff is attributable and, if there was an accident within the meaning of Article 17(1) of the Montreal Convention, whether any or all of the back injury the plaintiff exhibited after 30 May 2012 was a consequence of that accident.

Whether the Events Constitute an ‘Accident’?

1. [10]

   International air carriage of passengers is governed by the Civil Aviation (Carriers' Liability) Act 1959 (Cth). The Montreal Convention of 1999 (“the Convention”), which amended the Warsaw Convention of 1929, has force of law in Australia and application to this matter.

2. [11]

   Article 17(1) of the Convention is in the following terms:

3. [12]

   An “accident” has been defined in a decision of the Supreme Court of the United States, Air France v Saks (1985) 470 US 392; (1985) 84 L Ed 2d 289 at [405] to [406] per O'Connor J:

4. [13]

   This definition has been followed by the High Court of Australia and by state courts: see Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189; Airlink Pty Limited v Paterson [2009] NSWCA 251.

5. [14]

   The evidentiary onus is on the plaintiff to prove on the balance of probabilities that she has suffered injury that was caused by an unexpected or unusual event or happening that was external to her.

6. [15]

   There is no dispute that hot tea or other liquid spilling onto the plaintiff (“the tea incident”) is an unexpected or unusual event external to the plaintiff, and that this occurred during the course of an international flight. Whether that event led to the injury the plaintiff contends she sustained is to be determined on the evidence.

The Evidence

1. [16]

   The plaintiff gave evidence by an evidentiary statement of 31 October 2013 (Ex. P22), a supplementary evidentiary statement of 30 June 2014 (Ex. P23), both filed as part of her case in support of her claim; and viva voce before the Court, on 1 September 2015. Her husband, who accompanied her on the flight to Malta via Dubai, also gave evidence, by way of evidentiary statement of 15 August 2014 (Ex. P24), and before the Court on 2 September 2015.

2. [17]

   The plaintiff additionally relied upon documentary material contained within Exhibit P.

3. [18]

   The defendant did not call oral evidence, but filed a volume of documentary material upon which it relies, exhibits D1 - 16, DA, DB, DC, DD and DE.

4. [19]

   The evidence adduced by the plaintiff collectively dealt with the circumstances of the tea incident, the medical treatment Ms. Dibbs received in Malta and subsequently, and evidence relevant to an assessment of damages. The bulk of the documentary evidence went to the issue of quantum of damages.

5. [20]

   The defendant’s evidence principally dealt with the plaintiff’s state of health prior to the tea incident, documents relevant to the tea incident itself, and evidence relevant to quantum.

6. [21]

   The plaintiff's first evidentiary statement (Ex. P22) dealt with the tea incident in fairly brief terms.

7. [22]

   Ms. Dibbs deposed that, at the time of the tea incident, about mid-way through the flight from Sydney to Dubai, she was sitting in an aisle seat with her then fiancée, now husband, Edwin Gatt [1] , beside her in the middle of three seats. The plaintiff was wearing her seat belt loosely fastened about her waist. In the third (window) seat was Mr. Gatt’s father, who was travelling with the couple. A flight attendant offered the plaintiff, in common with other passengers, a drink from a trolley she was pushing up the aisle between the rows of seats. The plaintiff asked for white tea. She described what followed in her evidentiary statement (Ex. P22).

8. [23]

   In her oral evidence the plaintiff amended her statement by noting that she in fact fell to her left towards Mr. Gatt, rather than to her right.

9. [24]

   After noting that the flight attendant apologised to her, the plaintiff continued,

10. [25]

    It is notable that the principal focus of paragraph 10 is the circumstance of the burn to the plaintiff’s leg, and the measures adopted to address the burn. Although the plaintiff says that she felt a sharp pain in her lower back, there is no evidence that she cried out due to the pain, told the flight attendant or even her husband about it, or sought any first aid other than that provided for the burn.

11. [26]

    It would appear from the plaintiff’s statement that no-one other than herself was aware of any issue she had with back pain until sometime after the tea incident.

12. [27]

    On 1 September 2015 the plaintiff gave evidence before the Court, having been required by the defendant for cross-examination.

13. [28]

    The plaintiff gave a demonstration of what happened when the tea spilled onto her, indicating that she had stood up in her seat such that she was almost upright, and had then fallen sideways to her left, twisting in the process (T70:41 - 50). At the time, her tray table was lowered (T71:09). She said that she lost balance and “fell” into her husband’s lap, landing with her left side in his lap (T72:15).

14. [29]

    Although restrained by her seat belt the plaintiff asserted that she “somehow” managed to get herself “up and out of it almost” (T72:30). She said that she felt a sharp pain in her back at that time.

15. [30]

    Ms. Dibbs was asked about her husband’s tray table and said that it was lowered (T72:42). When asked how she could have fallen into her husband’s lap when his tray table was lowered she said “I fell into him onto his tray” (T72:46). She then asserted that the tray table didn’t completely cover her husband.

16. [31]

    The plaintiff deposed that the flight attendant apologised and then attended to the burn to the plaintiff’s leg. Ms. Dibbs was given some cold water, cream, and a pair of pyjama pants to wear whilst her own clothing dried. She said that she went into a toilet cubicle to change into the pyjamas.

17. [32]

    Ms. Dibbs said that “the pain had gone like a sharp pain down my back and into my leg” (T73:46). The pain worsened over time such that she went to an area in front of the First Class section of the plane to lie on the floor. When she was laying in this area the flight attendant came to speak with her to fill out an incident report, and the plaintiff said that it was at that point that she “made mention” (T74:11) that her back was hurting.

18. [33]

    The evidentiary statement made by Mr. Gatt (Ex. P24) dealt only with the aftermath of the tea incident. Rather curiously, Mr. Gatt made no reference at all to the asserted accident, even though this was the incident alleged to give rise to liability, and he was a witness to it.

19. [34]

    In light of the incompleteness of Mr. Gatt’s statement, and over objection from the defendant, the plaintiff was granted leave pursuant to r.31.4(5) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to call oral evidence from Mr. Gatt as to the circumstances of the tea incident.

20. [35]

    In evidence in chief Mr. Gatt said this about it,

21. [36]

    He was then cross-examined.

22. [37]

    He said that both his and his wife’s tray tables were lowered, and both of them were wearing seat belts; he said that he “enforced” the wearing of a seat belt by his wife (T145:34).

23. [38]

    Mr. Gatt said that he saw the tea fall from the tray proffered by the attendant onto his wife, and saw that Ms. Dibbs “kind of jumped up and twisted over and fell towards me vigorously” (T146:42). Explaining this further Mr. Gatt said,

24. [39]

    When asked about the positions of his and his wife’s tray table Mr. Gatt said that, even though he and his wife were in the Economy Class section of the plane, there was “a good 15 centimetres” (T147:32) between the tray table and the body of each.

25. [40]

    Having been asked about the position of the tray tables, Mr. Gatt was then questioned about how his wife had fallen into his lap. Although the transcript notes that part of Mr. Gatt’s answer was not able to be transcribed (at T148:02ff), relying on my note of the evidence, the witness said that Ms. Dibbs fell “in front of my chest, my lap […] her shoulder brushed across my chest.” He denied that the plaintiff had ended up in his lap, saying instead that she had been leaning in front of his chest.

26. [41]

    In describing the aftermath of the spill, Mr. Gatt referred only to a burn and its consequences:

27. [42]

    Mr. Gatt said that the plaintiff first mentioned having back pain some 15 or 20 minutes later, after she had returned from the toilet cubicle where she had changed into pyjama pants. On Mr. Gatt’s evidence, the plaintiff did not say anything to him that connected the tea incident with the onset of pain in her back. On returning from changing her clothes,

28. [43]

    She then went to lie down, he said, in front of the Economy Class toilets, where she did some stretches to relieve the pain. Although the couple had first begun dating in 2007, Mr. Gatt claimed that he had never seen his wife do such stretches before getting on the plane (T151:46).

29. [44]

    The witness was then asked about his knowledge of the back problems that his wife had experienced prior to the Malta flight. Mr. Gatt said that he was aware that Ms. Dibbs had some back problems, but immediately volunteered that “it was manageable” (T153:18). There followed this question and answer:

30. [45]

    Apparently noticing the inconsistency in his evidence concerning the stretches, Mr. Gatt sought to qualify his answer by noting that the stretches were different to those Ms. Dibbs had performed on the plane, and consisted of pilates and yoga stretches. He eventually asserted that he had previously “never really took notice” of the stretches (T153:39).

31. [46]

    Just as Ms. Dibbs did not immediately tell her husband that, in moving away from the falling tea cup, she had severely hurt her back, she appears not to have told others in circumstances where it might be expected that she would do so.

32. [47]

    As noted above, although the plaintiff claimed that she had felt an immediate and sharp pain in her back on moving away from the tea, the focus of her conversation with the flight attendant was related to the burn from the hot tea and her wet clothing. She made no contemporaneous complaint about having injured her back.

33. [48]

    After she had changed her clothes and gone to lie on the floor (either near the stair entry to the First Class section, as Ms. Dibbs deposed, or in front of the Economy Class toilets, as Mr Gatt recalled) the plaintiff spoke to the same flight attendant as previously, to assist the attendant to complete an “incident report” form.

34. [49]

    Ms Dibbs asserted that she told the attendant about a burn, but also that her back was hurting (T74:07). The incident report, a contemporaneous business record held by Emirates known as a “KIS Report”, was tendered by the defendant as Exhibit DD. Aside from some flight identification and other similar data, the report records only the following information:

35. [50]

    Although this is not the plaintiff's document, and she neither saw nor adopted it, it is of some interest that, not only is the contemporaneous business record of what happened significantly different from the plaintiff’s account (a feature of the record the defendant does not seek to take advantage of), but there is no reference at all to any complaint of back injury or back pain, and no reference to the passenger being so discomfited by back pain that she had to lay on the floor of the aircraft because she could not sit in her seat.

36. [51]

    Similarly, although the plaintiff described the pain in her back as excruciating by the Dubai - Malta sector of her flight, there is no evidence that she made any complaint to any person connected with the airline during or soon after the flight.

37. [52]

    Despite the asserted gravity of the pain the plaintiff said that she was in by the time she landed in Malta on 31 May 2012, she did not seek medical treatment of any sort until 4 June 2012. Although being in a strange land with an unfamiliar medical system might explain the delay, the plaintiff was staying in Malta with her husband’s family, who were local people. Given that it might be expected that her husband’s relations could direct her to a doctor, it is curious that she delayed seeking medical attention for so long, despite the high level of pain the plaintiff says she endured.

38. [53]

    On 4 June 2012 the plaintiff went to Saint James Hospital in Sliema in Malta. The record tendered to the Court of her attendance at that hospital was provided by the defendant (Ex. D4, at p.5 of the defendant’s tender bundle). On the letterhead of the St. James Hospital, and over a signature which is indecipherable, the document records:

39. [54]

    There is no other history recorded in the medical material from Malta, Exhibits P39 – 44.

40. [55]

    The tentative diagnosis was given as “(R) L4/5 disc prolapse”. The author of the document of 4 June 2012, which Ms. Dibbs said was provided to her to assist her to claim the cost of the treatment she was to undergo from her travel insurer, referred to an MRI which was to be conducted in the following week if the pain persisted.

41. [56]

    The pain did persist and, an MRI scan having been conducted and demonstrating abnormality, the plaintiff underwent a microdiscectomy at the St James Hospital.

42. [57]

    After a period of hospitalisation, and post-surgical recovery staying with her husband’s family in Malta, Ms. Dibbs returned to Sydney.

43. [58]

    On her return she sought treatment at the Sydney Spine and Pelvis Physiotherapy Centre. Although Ms. Dibbs did not recall in her evidence what she had said to the clinician she saw there about her back, she felt that she would have given a history of what had happened to her (T79:36). When it was put to her that she had in fact reported having fallen over during a recent overseas trip (Ex.D9), she explained that she regarded what had happened to her on the plane as a fall.

44. [59]

    In consulting Dr. Seamus Dalton on her return from Malta, following a referral from a general practitioner, the plaintiff is recorded as giving this short history:

45. [60]

    It would appear that, apart from Mr. Gatt, the first person independent of the plaintiff to record a complaint from her associating the tea incident with the injury that was treated in Malta, were the doctors the plaintiff consulted for the purposes of litigation

Has the Plaintiff Established that an “Accident” Occurred?

1. [61]

   Although there is a considerable amount of evidence before the Court relevant to the question of damages, it is convenient at this point to consider the threshold issue of accident and liability: does the evidence establish that there was an accident as pleaded by the plaintiff, causing bodily injury and giving rise to the defendant’s liability.

2. [62]

   As noted, the only evidence of the incident pleaded by the plaintiff and relied upon by her as an accident within the meaning of Article 17(1) of the Convention comes from the plaintiff and her husband. There is no evidence from any other witness to the event, [2] and there is no evidence of any contemporaneous complaint of the injury, or of any contemporaneous record made of the injury.

3. [63]

   Accordingly, the reliability of the plaintiff’s evidence concerning the incident and, to a lesser extent, that of her husband, is critical to a determination of this threshold aspect of the matter.

4. [64]

   A number of features are of relevance to an assessment of the plaintiff’s reliability as a witness. It is important to consider the cogency of her account of the tea incident, and whether or not her conduct immediately after the event was consistent with what might have been expected of someone who had been injured in the way she claims. What the plaintiff said, or did not say, about the incident to others soon after it is also a useful consideration. Finally, the demeanour of the plaintiff as a witness before the Court may also be informative.

5. [65]

   Having considered both the description the plaintiff gave of the tea incident in her statement (Ex. P22) and the account she gave of it in oral evidence to the Court, I do not consider the scenario advanced by the complainant to be a cogent one, or one that has the ring of truth to it.

6. [66]

   There is firstly the issue of the direction of her fall. In Exhibit P22 the plaintiff described herself as falling to her right and onto her husband after the attendant spilled the tea onto her leg. When called to give short evidence in chief on 1 September 2015 the witness corrected that aspect of her statement, deposing that she had in fact fallen to her left. Had she fallen to her left, as she deposed in her statement, she would have fallen into the aisle between rows of seats, and not onto her husband, as both have asserted.

7. [67]

   It is always open to a witness to correct an error in a statement, and it may be that little can be drawn from a correction having been made, but it is curious that the plaintiff’s recollection at the time of making her statement was so flawed about such a fundamental aspect of how she came to sustain a back injury. That is particularly so given the importance of truthfulness and accuracy in a statement of that nature, something of which Ms. Dibbs was aware at the time of making it (T15:38).

8. [68]

   Alone, an error of that nature says little. In common with other matters, it takes on more significance.

9. [69]

   Even with evidence of a fall to the right, the description given of it lacks credibility. Ms. Dibbs claimed that, notwithstanding the fact that she was wearing a seatbelt when the tea fell onto her, she jumped up in her seat. Indeed, she had to have jumped sufficiently high as to justify her use of the term “fall” to refer to what happened next. Although there was no expert evidence of it, the cramped space available to Economy Class seats on international flights is well known. For a passenger to claim to have been able to jump up to any height at all whilst wearing a seatbelt in an Economy Class seat must stretch credulity. To reach such a height as to “fall” from it is so unlikely as to be impossible. And yet a “fall” is what the plaintiff claims to have had after having leaped up in her seat and twisted.

10. [70]

    Having fallen, the plaintiff initially asserted that she fell onto her husband, landing in his lap. She claimed to have landed in her husband’s lap even though both her own and her husband’s tray tables had been lowered in anticipation of a cup of tea being served. It was only after the unlikelihood of this was raised with her in cross-examination that the plaintiff changed her account of the fall to state that she fell into her husband’s tray, rather than into his lap.

11. [71]

    It may be that the plaintiff felt it necessary to use the word “fall” in her account of what had happened to her both because that is what she told clinicians after returning from Malta, and because a lifting and twisting motion is a movement described by medical experts as a type likely to cause the sort of injury that the plaintiff sustained.

12. [72]

    As an account of something that occurred when restrained by a seat belt in a narrow seat in a very cramped area that was further obstructed by extended tray tables, a “fall” is simply not credible.

13. [73]

    Listening to Ms. Dibbs describe the tea incident and the injury she said it caused her, I was not able to accept her account as cogent, or in any way a realistic account of a reasonably possible event.

14. [74]

    That Ms. Dibbs did not make any complaint of having been injured or caused pain by the leaping and falling simply strengthens the air of unreality of her account.

15. [75]

    There is no suggestion that the plaintiff told the flight attendant that she was in pain from her back when first aid was administered to her after the tea fell onto her leg. Indeed, even her husband was completely unaware that she had received anything other than a mild burn and wet trousers until at least fifteen minutes later. Had she been left in the terrible pain that the plaintiff deposed to, it might be expected that she would have shown signs of that pain, mentioned it to the attendant and certainly to her husband, and sought pain relief for the injury, rather than apparently prioritising burn cream and dry trousers.

16. [76]

    Ms. Dibbs’ conduct immediately after the tea incident is wholly inconsistent with it having occurred as she now asserts.

17. [77]

    When the plaintiff spoke to the attendant or other person who completed the incident report, there is no credible evidence that the plaintiff made any reference at all to a back injury, even though she says that she was lying on the floor in pain at the very time the form was completed.

18. [78]

    Although the defendant did not call the flight attendant to give evidence, it did tender the record of the incident made during the flight. Whilst the plaintiff urges the Court to conclude that the attendant was not called because he or she would not have given evidence of assistance to the defendant, there is no reason in light of the contemporaneous record to draw that conclusion. This was what is likely to have been perceived as a minor incident on a regular flight in circumstances where the particular flight attendant would probably have had no reason to remember the incident beyond such assistance as could be gleaned from the contemporaneous record. The record, whilst brief in content, says a great deal by its silence as to any complaint of back injury or pain.

19. [79]

    It is possible that one individual taking an account of what occurred from the plaintiff may have made an inaccurate record of what was said, and perhaps the defendant’s incident report could be dismissed as an error. However, four such accounts recorded by different and unconnected individuals cannot be so readily dismissed.

20. [80]

    Other than the flight attendant who took the incident report, the plaintiff gave an account of the circumstances in which she sustained her back injury to three other persons soon after the tea incident. Each was a medical practitioner who might be expected to take an accurate note of any history given by the plaintiff of the manner in which her injury had been received. The practitioners were the doctor who examined the plaintiff at the St James Hospital in Malta, the physiotherapist she consulted on her return to Sydney, and the specialist doctor Ms. Dibbs saw soon after. None of the medical professionals that the plaintiff saw in the weeks following the flight made any reference to an incident of the kind the plaintiff now complains of. The St James Hospital noted a history of “no trauma”; the physiotherapist recorded that the plaintiff “fell over” when overseas; and Dr. Dalton recorded that she "fell on the plane”.

21. [81]

    That the plaintiff did not seek medical treatment for five days after the incident is a feature of the matter unsupportive of the reliability of her account.

22. [82]

    There is finally the issue of demeanour. Observing Ms. Dibbs give evidence, I was not able to conclude that she was a truthful witness. She consistently tried to anticipate the direction of counsel’s questions of her in cross-examination, and head off a particular line of questioning. The detail of significant events, such as how she fell after being splashed with tea, shifted under cross-examination like sands under the force of a strong current; and, particularly when asked about her ability to undertake domestic and other chores after the tea incident, she appeared to exaggerate her evidence, rather over-doing her claims about the level of her disability.

23. [83]

    On the whole, I found Ms. Dibbs a most unsatisfactory witness, and not one whose account of the event alleged to give rise to the defendant’s liability should be accepted.

24. [84]

    The conclusion that the tea incident did not occur as the plaintiff alleged was only strengthened by an assessment of the evidence of Mr. Gatt.

25. [85]

    Mr. Gatt’s account of the tea incident, not referred to in his evidentiary statement and not previously recounted by him before the morning of 2 September 2015, was most unconvincing.

26. [86]

    Like that of Ms. Dibbs, it suffered from an air of unreality, with the details defying common sense. He too described his wife as jumping up and falling “vigorously” onto his lap (T146:42), despite the fact that she was wearing a seatbelt, something he enforced. When asked about the position of his and his wife’s tray tables at the time, he visibly paused for a moment, as if made suddenly aware that he had forgotten to take into account the tray tables, and giving thought to how best to recover the situation.

27. [87]

    His account of his wife “vigorously” falling into his lap then changed somewhat. Mr. Gatt tried to take refuge in an assertion that “Everything happened so fast I couldn’t see” (T147:50), followed by a claim that his wife had in fact brushed against his chest as she moved away from the tea, as opposed to falling vigorously into his lap.

28. [88]

    Mr. Gatt’s evidence of the level of his wife’s disability both before the Malta flight and after it was even more obviously compromised than his account of the tea incident. He claimed to have only the most casual knowledge of his wife’s back problems prior to the Malta flight, ostensibly because his wife was an independent woman whom he did not question or keep track of (T154:24ff). He suggested that any difficulty she may have had was so minor as to go largely unnoticed by him. His account of her disability after the Malta flight was patently exaggerated. Indeed, despite his pre-Malta preference for "not butting in” to her life, after the return of the couple from the Malta trip, Mr. Gatt frequently had occasion to forbid his wife from doing very much at all. He would not allow her to vacuum the couple’s small unit, or lift a cooking pot, or cut hard vegetables.

29. [89]

    Mr. Gatt’s manner was not that of a witness doing his or her best to answer questions in a forthright and truthful way. It may be that, as counsel for the defendant submitted, he was doing his best to support his wife. In another context that would be commendable; for a witness giving evidence under oath it is quite unacceptable for spousal loyalty to overtake a solemn oath to tell the truth.

Conclusion as to the “Accident”

1. [90]

   The evidentiary burden is on the plaintiff to establish that an accident as pleaded occurred during the flight from Sydney to Dubai.

2. [91]

   For the reasons set out above, the plaintiff has failed to discharge that evidentiary burden. Whilst I accept without hesitation that the plaintiff has a significant back problem, I do not accept that the plaintiff sustained that injury or even aggravated an already existing injury during the Emirates flight on 30 May 2012.

3. [92]

   The plaintiff has failed to discharge the evidentiary burden, and failed to make out her claim against the defendant. I propose to enter a verdict for the defendant.

4. [93]

   Because of the conclusion I have reached that the plaintiff has failed to establish that an accident befell her during the Emirates flight that caused injury, it is not necessary to assess the issue of damages. However, I should make it clear that, even had I been persuaded on balance that the plaintiff was injured as pleaded, I would have assessed the resultant damages as being very limited indeed.

5. [94]

   Any calculation of damages would have been in accordance with the Civil Liability Act 2002 (NSW).

6. [95]

   The plaintiff claimed the sum of between $729,646.00-$769,646.00 plus costs in damages. The defendant’s position was that, even if the plaintiff had twisted and fallen during the flight as she claimed (and it disputed), the injury and therefore any damages that might be attributed to the incident were minimal. That position was taken because of evidence adduced by the defendant of the plaintiff's significant pre-existing back injury.

7. [96]

   Although the plaintiff barely referred to any issue with her back prior to her holiday in Malta, the defendant discovered and adduced a significant body of evidence that established that, not only did the plaintiff have a back problem, she was significantly affected by her back condition.

8. [97]

   The rule in Watts v Rake [1960] HCA 58; 108 CLR 158 as explained in Purkess v Crittenden (1965) 114 CLR 164 at [168] provides that,

9. [98]

   That onus was discharged in my view.

10. [99]

    Consistent with the flawed nature of her evidence concerning the tea incident and its consequences, the plaintiff’s evidence about her medical condition before the Malta flight was contrary to objective evidence and I am not able to accept it, except where it is supported by objective evidence independent of the plaintiff.

11. [100]

    In her evidentiary statement (Ex. P22), the plaintiff made one brief reference to a prior back condition,

12. [101]

    In fact, the objective evidence told a very different story, one of significant disability that had adversely affected every aspect of the plaintiff’s life.

13. [102]

    The defendant tendered evidence that established that the plaintiff’s back had been a serious difficulty for her from at least March 2011, and it continued to be a serious difficulty such that she had sought treatment for it regularly, and even on the very day of taking the flight from Sydney to Dubai.

14. [103]

    On 30 May 2012, prior to catching the Emirates flight, the plaintiff underwent acupuncture treatment for what is described in the clinical notes that are in evidence (Ex. DB) as “low back pain.”

15. [104]

    Since about March 2011 Ms. Dibbs had sought treatment for a back condition with features consistent with neurological impairment to her right leg. On all of the evidence it is reasonable to conclude that the plaintiff's present disability and the level of incapacity she suffers result from the condition she has had since at least March 2011.

16. [105]

    Whilst Ms. Dibbs sought to characterise her previous condition as one which had settled, was readily managed by her, and gave her no real difficulties aside from occasional “flare-ups”, the evidence of her frequent attendances upon doctors and other health professionals prior to and during May 2012, together with her employment history prior to the Malta flight, demonstrated the falsity of these claims.

17. [106]

    The plaintiff herself was obliged to concede in cross-examination that her present situation was only “a bit worse” currently than prior to the Malta flight (at T97:13).

18. [107]

    The medical evidence from the doctors in conclave was that Ms. Dibbs had a significant disability in her back prior to the trip to Malta by reason of L4/5 disc pathology. Indeed her condition was so fragile that an incident as minor as coughing or sneezing could have caused the disc prolapse seen in the plaintiff in Malta (T124:24). The plaintiff had in fact complained of the pain occasioned to her by coughing when she saw Dr. Dalton in March 2012 (Ex. P34).

19. [108]

    Professor Paul Spira thought that the plaintiff's presentation before 30 May 2012 "appeared to be a deteriorating situation" (T125.24). Professor Spira considered that Ms. Dibbs had nerve root compression or irritation from time to time and, whilst she was coping, it was only with difficulty (T127.33).

20. [109]

    Both expert conclaves were asked about the likely outcome for the plaintiff if the tea incident on 30 May 2012 had not occurred.

21. [110]

    Dr Sheehy and Professor Spira said that it was possible that any sudden truncal rotation or a jarring force could have led to the disc protrusion of the type that led to the surgery in Malta. Professor Michael Ryan and Dr James Bodel deposed that any flexion or rotational event to the region of the lumbosacral spine could have led to an external disc rupture and that, had a rupture of that kind occurred, the plaintiff's condition would have been similar to her present condition.

22. [111]

    Some of the ordinary activities the plaintiff undertook in the period before and after the Malta flight could have led to the sort of rupture treated in June 2012. The plaintiff had been a member of the Emeralds Synchronised Swimming Team that had competed in Perth in a National competition in April 2012. Some of the moves associated with that sport involved twisting and extension movements of a sort which could have readily led to the injury treated in Malta. Indeed, even sitting at work prior to the Malta flight exacerbated her condition such that the plaintiff was obliged to take significant periods off work on sick leave, and reduce her hours of work to accommodate her disability.

23. [112]

    There is every reason to conclude that, even without the event that occurred to precipitate the surgery on Malta in June 2012, the plaintiff would have had to have such surgery at some point or another.

24. [113]

    Had damages fallen to be assessed, they must have been reduced by reason of the evidence that establishes a significant disability already in existence before the plaintiff boarded the Malta flight.

25. [114]

    Whilst some allowance would have been made to the plaintiff, it would have been modest.

26. [115]

    Having regard to the pre-existing disability and the extent to which the plaintiff’s life was impacted upon by it, I would have assessed damages as submitted by the defendant to be appropriate. Such damages would have been in the following terms:

27. [116]

    The Orders the Court makes are these:

    1. (1)

       The amended statement of claim filed on 2 September 2015 is dismissed and a verdict is entered for the defendant.

    2. (2)

       The defendant is to file and serve any submission in support of an order for costs by close of business on 23 October 2015.

    3. (3)

       The plaintiff is to file and serve any submission in reply as to costs by 6 November 2015.

    4. (4)

       Any application for costs is to be dealt with on the papers.