Category

Aviation Claims

Aviation Injuries: What You Need to Know

In this podcast, Accredited Personal Injury Law Specialist, David Ford talks about the types of injuries people typically sustain on flights and what are the necessary actions the injured should do under certain circumstances.

Speaker 1:You’re listening to a BPC podcast.
Dan:You might be surprised, but the numbers of people injured on flights both in Australia and overseas is relatively high. In this context, it’s not, of course, always related to plane crashes. Well, to find out more, I’m with David Ford, a personal injury lawyer from BPC Lawyers who is an expert in aviation matters. David, what types of injuries do people typically sustain on flights?
David Ford:I think the best response to that is that, of recent times, I have been involved in a number of cases where I’ve acted, those passengers that have been scalded by hot coffee or hot tea, and sustained, in two cases, second-degree burns.
Dan:Wow, that’s fairly significant. What about other injuries typically that occur on flights? Like I’m assuming people might trip over, they might go to the lavatory, or the bathroom and slip and fall. Do you see that type of thing occurring?
David Ford:My experience in my previous cases, has been more so that a passenger has got up from their seat to either go to the bathroom, or perhaps stretch their legs, and there’s been no warning that there’s turbulence about to be encountered, and therefore the seatbelt sign has not come on. I know of one example where a lady left her seat to go to the bathroom, there was no warning as such, and the plane did hit quite severe turbulence. And as a consequence, she ended up fracturing her ankle. That case was settled.
David Ford:Each case depends, of course, on its facts. And I’ve always said to not only my clients, but also my friends and family members, it’s always wise to have your seatbelt fastened at all times, anyways, when you are on an aeroplane during the journey.
Dan:David, now, you probably should mention that these type of accidents, and potential action, legal action, that might arise, it’s always predicated on that whole basis of negligence, isn’t it? Trying to be able to prove that the airline, in this case, was negligent, and did not take the appropriate steps to minimise a foreseeable risk. Is that how it works?
David Ford:That is correct. Look, you must prove negligence. The definition, are they an accident, is that it’s an injury, must be caused by an unusual or unexpected event or happening that is external to the passenger. But yes, you must prove negligence.
David Ford:I can give a good example of another case that I had several years ago where my client was with his wife on a journey to, flight to Bangkok. They were joined by a passenger, sitting behind them, who was quite frankly, a bit intoxicated, and quite boring in his conversation. And he was drinking from his duty-free bottle of bourbon, which you’re not allowed to do on a plane. The air hostess, I think, once they observed that, but didn’t say anything to the gentlemen. Long story short, there was a fight, ensued, when they told this chap to go back to his seat and he hit my client over the head with a bottle of bourbon.
David Ford:It wasn’t a big case as such, but it was certainly resolved because that’s another example of where the airline should have taken steps to minimise the risk to that particular passenger from being assaulted by a fellow passenger. That’s another example.
Dan:David, now, listen, in relation to jurisdiction, I’m just thinking that, how does jurisdiction play out? So if you board a flight here, say in Sydney, and you’re on route to Los Angeles, and a debacle happens somewhere in-between, where does the jurisdiction lie?
David Ford:The jurisdiction lies in the fact that Australia is a [inaudible 00:04:09] to the Montreal Convention. And we have adopted that protocol, which sets out how people … Well, a number of issues in relation to air travel, but certainly, Article 17 deals with the basis upon which you can make a claim for damages. If you are, for example, I’ve had clients that were injured four hours out of Dubai, but they left Sydney, or Brisbane, or any major city in Australia, that’s where the jurisdiction comes from. Because you’re in the Montreal Convention, and the fact that you embarked, or even in the process of disembarking upon an Australian city.
David Ford:I have set out on our BPC website, a very good summary of the reason why you are entitled to make a claim pursuant to the Montreal Convention. So any client that needs to seek that information, can go to our website and see that particular article written.
Dan:Now David, in relation to more catastrophic injuries sustained in accidents, how do they play out? I’m assuming it’s the same sort of regime?
David Ford:Look it is. I was not involved to any great extent, but I did assist a solicitor who was involved in seeking compensation for parties that had family members on the MH370, the Malaysian aeroplane that disappeared in the South Pacific Ocean. And also, that particular lawyer was also involved in claims involving the MH17 Malaysian flight that was shot down over the Ukraine. Basically, those sorts of cases are what is known as similar to compensation to relatives claim, where you can claim for damages for the fact that you had a person or family member on the plane who, because of their untimely death, you’ve suffered consequentially, a financial loss.
David Ford:Those are the sort of claims that can be involved if someone therefore is, unfortunately, all those passengers were deceased. But if, as the consequence of some negligence, there was a death on the plane, that similar sort of claim can be made.
Dan:Now David, time limitations, in relation to these types of matters, is fairly strict?
David Ford:That is a very important question. The answer simply is this. You have two years, from the date of the incident, in which to commence proceedings, seeking compensation, under Montreal Convention. That time limit cannot be extended. It is a definitive period.
Dan:Now, what about seeking legal advice very early?
David Ford:Look, again, that’s a very important question. In all cases where you have to prove negligence, and you’d be surprised, even where you think it’s a case where it’s a clearcut case, where the insurer, well it is the insurer of the airline, but where the airline is liable, it is so important that you do contact a solicitor as soon as possible. Because the event, for example, one of the clients that, sustained quite serious second-degree burns, it was very important that I got a statement from not only the husband, but the father, but also the mother, as the circumstances around the accident, because they were very much upset and distressed at the time of the accident. And it was important to get the factual background in relation to the accident from them, while it’s fresh in their mind.
David Ford:Look, it’s just trite to say, after being in the … practising  in this jurisdiction for nearly 40 years, is that, no matter how good your memory is, your memory will, to a certain extent, fade, especially if it’s been quite a traumatic type of experience. And not only that, it may well be that in addition to the immediate family members, they may have been provided with contact telephone numbers of other people that witnessed the incident.
David Ford:It is always important in any case, to talk to independent witnesses to find out their recollection and record that recollection. As quite frankly, the courts tend to accept, I think more readily sometimes, in circumstances such as that the evidence of independent witness, whose got no actual financial interest in the outcome of the case.
Dan:The choice of a lawyer is important as well, I mean, given that this is a bit of a specialist area of law, isn’t it, within the realm of personal injury law, generally?
David Ford:It is. It’s far more specialised in the sense that the liability questions are important, and have to be determined. The actual quantum of damages, most good personal injury lawyers are able to put that together. But, I think the best way to answer the question is that there are a number of firms that do act on behalf of the insurance companies of these airlines. You tend to get, I think, a bit of an understanding as to their modus operandi, who you’re dealing with. It’s of assistance, I think, if you do regularly practise in the area, as opposed to someone who’s attempting to make one of these claims on a first occasion.
Dan:David, thanks for joining me.
David Ford:I appreciate that, thank you.
Speaker 1:Thank you for listening. If you have any questions, please call BPC on 0282806900.

 

 

Liability For Passenger Death Or Injury On An Airplane

Liability For Passenger Death Or Injury On An Airplane

BPC Aviation Personal Injury Section

Liability for passenger death or injury on an airplane

The liability of an airline carrier for the death or injury of an Australian passenger on an airline flight is governed by an international convention known as the “Montreal Convention” 1999. Passengers of other nationalities may be covered by another convention, known Warsaw Convention 1929.  It is each passenger’s “place of departure” and final “place of destination” which determines which treaty applies.

For example if a passenger was flying from Amsterdam in Holland to Sydney, Australia via Kuala Lumpur in Malaysia then because each of the Netherlands, Malaysia and Australia are all parties to the Montreal Convention, that  convention applies for anyone suffering death or injury.

Under the Montreal Convention, liability arises for the aircraft carrier in the circumstances set out in Article 17:

The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course in any of the operations of embarking or disembarking”.

The important point to note here is the requirement that the deaths or injury was caused by an “accident”.  That term is not defined within the convention itself, but the definition has been considered by courts around the world. The authoritative definition of the term is now widely accepted to have been pronounced by the Supreme Court of the United States in the case of Air France v Saks 470US392 [1985] in which O’Conner J. said that liability arises when; “a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger”.

Although his Honour was referring to the Warsaw Convention, the same text appears in the Montreal Convention, and it is generally considered to have the same meaning.

Extent of liability

Under the Warsaw Convention liability was capped. This is not the case under the Montreal Convention, where liability is potentially unlimited. There are some practical controls on this, however as Article 21 of the Montreal Convention splits liability of the carrier into two “tiers” and slightly different rules apply in each tier.

In the first tier, which applies for all compensation amounting to less than 113-100 Special Drawing Rights (which is about Australian $183,500.00) the carrier cannot exclude or limit its liability. This means that the passenger need not prove that the carrier was negligent (but, of course, must show that requirements of Article 17 are met, including the event was “an accident”). It also means the carrier is liable even if it was not negligent.

In the second tier, for all damages higher then 113-100 SDRs the carrier is liable unless it can show it was not negligent. This reverses the traditional onus of proof normally it is the Plaintiff (or person making a claim) that must show the Defendant (the person the claim is made against) was negligent.

Solely due to the negligence or wrongful act of a third party?

In the second tier, a carrier may also escape liability if it can show the “accident” was solely due to the negligence or wrongful act or emission of a third party.

Where can claims be made?

Claims against carriers under the Montreal Convention can be made in anyone of “5 forums” being:

  1. The domicile of the carrier i.e. Malaysia.
  2. The carrier’s principal place of business; i.e. Malaysia.
  3. Where the carrier has a place of business through which the contract of carriage was made.
  4. The passenger’s place of destination.
  5. The passenger’s principal place of residence, but only if the carrier operates services to that jurisdiction and the carrier conducts business from leased or owned premises there.

The BPC Aviation team has access to an international network of aviation consultants and aviation lawyers.

Authors:

Courtenay Poulden – Partner

David Ford – Special Counsel