Airlines in the courts

[Anna]

A couple of recent court decisions from Benchmark that may be of interest.

Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130
Full Court of the Federal Court of Australia - Flick, Reeves & Griffiths JJ

Human rights - discrimination - respondent operated passenger airline - appellant claiming to suffer cerebral palsy tried to book flight - respondent
refused to allow appellant’s assistance dog to accompany him in aircraft cabin - proper application of provisions of Disability Discrimination Act 1992 (Cth) (DDA) and interrelationship with laws and instruments affecting civil aviation - held: respondent’s conduct in not permitting dog to accompany appellant in cabin of its aircraft constituted unlawful direct discrimination contrary to s24 DDA - appellant entitled to compensatory damages of $10,000 - appeal allowed.

Dibbs v Emirates [2015] NSWSC 1332
Supreme Court of New South Wales Wilson J

Carriers’ liability - plaintiff was passenger on international flight operated by defendant - not disputed cup of hot tea was spilled onto plaintiff’s leg - plaintiff claimed this caused her to jump up and twist sharply with consequence she injured back leaving her with ongoing disability - plaintiff sought damages from defendant - whether there was an “accident” to which “bodily injury” was attributable - if there was accident under Article 17(1) of the Montreal Convention, whether back injury was consequence of accident - held: Court did not accept plaintiff sustained injury or even aggravated already existing injury - verdict for defendant.

 

[RooFlyer]

Good thread; thanks.

 

[MEL_Traveller]

A couple of recent court decisions from Benchmark that may be of interest.


Dibbs v Emirates [2015] NSWSC 1332
Supreme Court of New South Wales Wilson J

Carriers’ liability - plaintiff was passenger on international flight operated by defendant - not disputed cup of hot tea was spilled onto plaintiff’s leg - plaintiff claimed this caused her to jump up and twist sharply with consequence she injured back leaving her with ongoing disability - plaintiff sought damages from defendant - whether there was an “accident” to which “bodily injury” was attributable - if there was accident under Article 17(1) of the Montreal Convention, whether back injury was consequence of accident - held: Court did not accept plaintiff sustained injury or even aggravated already existing injury - verdict for defendant.

Interesting case - full transcript: https://www.caselaw.nsw.gov.au/decision/55f21642e4b01392a2cd09f9

Appears plaintiff's credibility and account of events called into question (see paragraphs 61-> of the decision). Plaintiff also seeking damages in the region of $700,000+. While not relevant (because the case was dismissed) the Court estimated had damages been applicable, they would have been in the region of $33,000, not $700k+

 

[eastwest101]

The first case cited - Assistance Dogs and various interpretations and interactions between the Disability Discrimination Act and the Civil Aviation Regulations is very complex - I found the full Federal Court ruling on this link:

Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130

This part stuck out a bit for me: (my bolding)

151 In its amended defence below, Virgin Australia argued that it would amount to “unjustifiable hardship” if it were required to carry Willow in the cabin without receiving evidence that she had been “trained by an accredited organisation in accordance with the CASA regulations and the Respondent’s policy”. It also claimed “unjustifiable hardship” would arise if it had to carry Willow in the cabin because the safety of passengers (including Mr Mulligan) and crew would be imperilled. We do not consider that that defence is established on the evidence before us. First, as we have emphasised above, although the airline is entitled to request evidence that Willow is an assistance animal and that she is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place, that training need not be by an accredited organisation. If Virgin Australia was not satisfied that Willow was trained in the sense referred to in s 9(2)(c) it could use its powers to request evidence under s 54A(5) of the DDA. Secondly, Virgin Australia adduced no evidence to support its contention that the safety of passengers (including Mr Mulligan) and crew would be imperilled if Willow accompanied him in the cabin.
-
Did I read that wrong - or is accreditation for assistance animals (whether by visiual/hearing impairment or other sorts of assistance dogs) able to be requested by the airline but no accreditation is required?

Incredibly complex case but looks like could have been "lost" by Virgin on various technicalities?

 

[MEL_Traveller]

-
Did I read that wrong - or is accreditation for assistance animals (whether by visiual/hearing impairment or other sorts of assistance dogs) able to be requested by the airline but no accreditation is required?

Without reading the full case (just your excerpt), it appears the airline can ask for evidence that an animal is properly trained, but that training doesn't necessarily need to be completed by a certified training body.

Obviously in the case of a guide dog it would be easy for the passenger to demonstrate training... there'd be a certificate from Guide Dogs Australia (or equivalent).

For service animals, there may be no national or state body (I don't know), so some other form of evidence is required... but it seems that could come from a variety of sources (maybe a dog training school etc).

 

[Anna]

I'm interpreting it to mean that the training given to an assistance animal need not be from a body accredited by CASA or Virgin.

 

[drron]

I hope it doesn't mean training by Aunt Molly is acceptable.

 

[medhead]

I hope it doesn't mean training by Aunt Molly is acceptable.

That would be acceptable provided Aunt Molloy could demonstrate the animal "is an assistance animal and that [the animal] is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place,"

 

[jb747]

I wonder how she could possibly demonstrate that?

 

[medhead]

I wonder how she could possibly demonstrate that?

Indeed. But a bit of a separate issue. Still it sounds like the judgement is suggesting VA should've challenged the training standards and capabilities of the dog, rather than the accreditation of the trainer.

 

[Anna]

Here are some more recent cases involving airlines / travel:

Qantas Airways Limited v Edwards [2016] FCA 729 QF taking on someone with a similar 'roo' trademark, and losing

Club Mediterranee (Australia) Pty Ltd v Rutstein [2016] NSWCATAP 178 (3 August 2016) Club Med lost its appeal against repaying over $12,000 to a disappointed Aussie couple who had stayed at a CM resort in China

Australian Competition & Consumer Commission v Flight Centre Travel Group Limited [2016] HCATrans 167 (27 July 2016) High Court reserves its decision on ACCC taking on Flight Centre's business practices - watch this space (warning - lots of legal jargon)

 

[Anna]

And another one - whether a QF pilot could be sacked for off duty behaviour - matter sent back to Fair Work Commission - oh dear

Gregory v Qantas Airways Ltd [2016] FCAFC 7 (3 February 2016)

 

[Anna]

Pax rebooked himself and family on QF when TT flight cancelled rather than accepting TT's offer of hotel and flight next day - not entitled to claim the $305 fare difference

Chanel v Tiger Airways Australia Pty Ltd (Civil Claims) [2016] VCAT 84 (19 January 2016)

 

[Anna]

QF refueller sacked for unsafe conduct

Rouady v Qantas Airways Limited [2016] FWC 33 (19 January 2016)

 

[Anna]

Unsuccessful attempt by legally unrepresented QF32 pax to sue for damages

Kern v Qantas Airways Limited [2015] NSWSC 1565 (27 October 2015)

 

[Anna]

This is an interesting one - successful application by pax for an order requiring EY to pay him $9,955.79, being the refund of the purchase price of an airticket he was obliged to pay for because EY had placed a block on his Etihad Guest account which prevented him booking the flight using his available Etihad Guest Miles

Danias v Etihad Airways PJSC [2015] NSWCATCD 128 (9 October 2015)

 

[Anna]

QF baggage handler awarded compensation for dismissal, but not reinstated

Lawless v Qantas Airways Limited [2015] FWC 6456 (24 September 2015)

 

[Anna]

Procedural argument on damages claim against MH by son of MH17 pax

Lauschet v Malaysian Airlines System Berhad [2015] NSWSC 1365 (28 August 2015)

 

[Anna]

Procedural argument on damages claim for alleged personal injuries after being seated next to an overweight pax in Y on EY - would be interesting to know the final outcome.

Bassos v Etihad Airways [2015] QDC 185 (29 July 2015)

 

[Quickstatus]

I'm interpreting it to mean that the training given to an assistance animal need not be from a body accredited by CASA or Virgin.

My reading of excerpt is different. " training need not be provided by an accredited organisation (full stop)" There is no further qualification.

This will lead to the silly situation in LOTFAP