Air Travel Claims

With the holiday season once again in full swing the increase in air traffic inevitably means more accidents both on aircraft and in airports. If you are unfortunate enough to suffer an injury whilst travelling to or from your holiday destination, what are your rights of redress? Once you have boarded your holiday flight you will be deemed to be out of the jurisdiction of the law of England and Wales, and legal liability for anything which goes wrong is governed by the Montreal Convention 1999. This covers all international carriage of persons and baggage "performed by aircraft for reward". Happily, the Convention allows compensation claims to be brought in the country most favourable to the passenger, whether this be where the airline is based or flying to or where the injured person lives. The Montreal Convention has been ratified by the UK and most - but not all - of the common holiday destinations, two notable exceptions being Russia and Thailand. It covers three categories of liability, being death and injury, damage to or loss of baggage and delay to passengers or baggage. Article 17 of the convention states: 'The carrier is liable for damage sustained in 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 process of any of the operations of embarking or disembarking'. Therefore, unlike accidents which occur on the ground and directly within the jurisdiction of the courts in this country, it is not necessary to prove fault on the part of the airline or any other party in order to succeed with a claim. On the face of it this sounds like good news if you have suffered an injury. However, it would be a mistake to assume the claims process is simple and straightforward; various pitfalls await the unwary claimant. It does not follow that a claim will succeed because someone else was to blame if it wasn't due to an accident. The convention doesn't offer a definition of what constitutes an accident but the courts have laid down guidance. The leading case of Air France -v- Saks [1995] ruled that an accident arises if a passenger's injury is 'caused by an unexpected or unusual event or happening that is external to the passenger', although it went on to state that this definition should be flexibly applied taking account of the circumstances surrounding the passenger's injuries. In that particular case, a claim by a passenger who became deaf in one ear due to a change in cabin air pressure on descent was dismissed as this was not deemed to be "unexpected or unusual". An accident which occurs before or after boarding, for example in a shopping or dining area or in the departure lounge, may not be covered by the convention. The courts have deliberated long and hard about what amounts to being 'on-board' an aircraft or in the course of the operations of embarkation and disembarkation. In the case of Phillips -v- Air New Zealand [2002] it was held that an accident must be related to a specific flight and must have occurred either whilst the passenger was actually entering or about to enter the aircraft. It added that this would include an accident in the terminal building or elsewhere on the airport premises providing it was in a place where the injured person was obliged to be for the process of embarkation. However, this suggests that shopping or dining in a restaurant in the departure area, especially if well before the flight has been called, may not fall within the process of embarkation. Claimants should be confident their injury did indeed occur due to an accident as defined by the convention. If a claim is brought but fails on these grounds, no separate legal claim can later be brought against the carrier in negligence. Indeed, where the convention applies there is no other legal remedy available - one cannot pick and choose whether to claim under convention or the law of the land, it is a convention claim or nothing. Potential claimants should also note that they cannot expect to recover compensation for psychological injury under the convention unless they also suffer a physical injury. In the case of Morris -v- KLM [2002] a Claimant who was sexually assaulted by another passenger but who sustained no physical injuries had her claim dismissed on the grounds that it fell outside Article 17. Finally, sluggish or late claimants beware - whilst under English law an injured person can claim at any time up to 3 years after they suffer an accident (that is, to start a court action for their claim) the convention applies a very strict 2 year limit, and this includes injuries suffered by children. To summarise, the injured traveller must act quickly - 2 years may sound like a long time to make a claim but, particularly if the injury is a serious one, it severely shortens the time available to manage the claim efficiently and maximise its value. He or she should also be alert to the "swings and roundabouts" nature of the convention claims system. Claims which would ordinarily be straightforward may be far less so under the convention. Equally, providing an accident can be shown to have occurred within the definition, the traditional requirement of proof of fault is removed and should mean a successful outcome can be achieved more easily. It all depends on the circumstances½ For further information about pursuing a claim for personal injury, including a claim arising from air travel, please contact David Brown or Kevin Bostock at david.brown@wake-smith.com or kevin.bostock@wake-smith.com or by telephone on 0114 2666660.

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