Alexander Freeman is an aviation lawyer, journalist and travel writer
Those of us who fly a lot are probably familiar with that announcement towards the end of most flights asking us to be careful when opening the overhead storage compartment as items may fall.
Whenever I hear it, visions of a giant waterfall of bags, jackets and several bottles of duty free Johnny Walker cascading onto my head appear before me.
The thing is, accidents on flights happen every day. It could be a simple case of tripping on the stairs while boarding or colliding with a trolley in the aisle.
If you’ve been unlucky enough to experience one, you’re probably left wondering: “Who’s at fault? Who can I blame? Who’s liable?” Well, the answer isn’t as straightforward as we’d like to think.
There are several issues to consider. First up is the question of what law applies.
What if you’re a British resident travelling on a New Zealand carrier between Australia and Fiji? The answer can have to do with where both the airline and aircraft you’re travelling on is registered, your own nationality and even where the aircraft was located when the accident occurred.
So the simple answer is: there’s no plain and simple answer.
To reduce confusion, the Montreal Convention was introduced by the UN’s International Civil Aviation Organisation (ICAO) in 1999 with the purpose of re-establishing uniformity and consistency in the rules relating to the international carriage of passengers, baggage and cargo so that passenger rights are largely consistent, irrespective of what airline they are flying and where they are flying to or from.
Most of ICAO’s 191 member states have so far adopted the Convention’s provisions into their own law. The European Union, for example, also specifically incorporated them into EU law through Regulation (EC) No 889/2002.
So what does the Convention say when it comes to accidents? Article 17 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 course of any of the operations of embarking or disembarking.”
Seems straightforward enough? Well, establishing that your accident is in fact an “accident” under the law can still be very tricky. There have been many cases, heard in several jurisdictions around the world, which have tried to constitute what is and isn’t an accident under aviation law.
In 1985, the US Supreme Court heard a matter involving a passenger who became deaf following a routine depressurisation during landing. The passenger claimed she had suffered an accident and tried to hold the airline liable. The Court disagreed, finding that the damage sustained by her inner ear wasn’t caused by an external source, such as the depressurisation, but instead by an internal pre-existing sinus problem and that depressurisation wasn’t unexpected or unusual enough to equate with being an “accident”.
As a result of that case, courts now generally find that an accident “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger”. [Emphasis added]
A few years later, there was a landmark case involving Olympic Airways where a passenger died after inhaling cigarette smoke. He had been seated in the non-smoking section of the aircraft but only a few rows ahead of the smoking section. The passenger’s wife asked a flight attendant to move him to a seat away from the smoke but the flight attendant claimed there were no others seats available, which was actually untrue. The passenger died soon after and before the flight landed.
Interestingly, Olympic was held liable not only because it had exposed the deceased passenger to cigarette smoke resulting in death, but also because the flight attendant refused to move him when asked. This was found capable of being an “unexpected or unusual event or happening external to the passenger” and in breach of the airline’s policy. Had the flight attendant moved the passenger, the airline may well have got off the hook.
The rising awareness of Deep Vein Thrombosis (DVT) in the late 1990s, referred to at the time as “economy class syndrome”, brought more controversy. Passengers in the UK, Australia and several other countries sued various airlines on the basis that the DVT they had suffered was the result of tight legroom and therefore an “accident” for which the airline was to blame.
The courts disagreed, with decisions in countries such as the UK, Australia and Canada coming down in favor of the airlines. The courts found that developing DVT following long periods of time seated in an airline seat didn’t equate to being an “unexpected or unusual event”.
A Canadian court summed it up by stating that: “Deep Vein Thrombosis is endemic to long-distance travelling by air. Exercise during the flight is the answer.”
Most claimants argued that the airlines had done nothing to warn of, or even reduce the risk of DVT by, for example, increasing seat pitch or moving “at risk” passengers to seats with extra legroom.
These arguments were also dismissed, with a senior UK Judge stating: “I cannot see how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident.”
Not every accident involves serious issues like death and DVT. What about the more common incidents that happen on flights every day? While an object falling from an overhead locker will generally be considered an accident for which an airline is liable, a court in Massachusetts found that an airline isn’t liable towards a passenger who injured his shoulder while trying to avoid knocking another passenger in the aisle.
Similarly, an airline wasn’t found liable towards a passenger who tripped over another’s bag while trying to find his seat. In another case, it was found that slipping on water while ascending stairs to an aircraft does constitute an accident, whereas slight seatbelt strain around the waist caused by light turbulence wasn’t an “accident”, according to a Canadian court, given the light turbulence was neither “unexpected nor unusual”.
It might be a different story for severe turbulence though, especially where the result is hot coffee spilled over a passenger’s lap. If such a spill can be attributed to turbulence, the carelessness of the cabin crew or even another passenger, the airline may well be liable. But if the spill can’t be explained by any factor “external to the passenger” such as turbulence or has entirely been caused by the passenger themselves, it’s unlikely the airline will be blamed.
Mental injury arising from airline accidents isn’t covered either and there have been significant efforts made to have the Montreal Convention amended to include reference to “mental”, and not just “bodily”, injury.
The controversy arises because currently a passenger who, for example, has suffered a light scratch to the head during an emergency evacuation can claim against an airline for bodily injury whereas a passenger suffering severe Post Traumatic Stress Disorder, or PTSD, following the same incident, but without bodily injury, can’t claim at all.
So if a passenger succeeds against an airline, how much can they claim?
One of the key features of the Montreal Convention is that airlines now accept strict liability for accidents up to a certain capped amount, where an accident is proven. That cap currently stands at 113,100 Special Drawing Rights or SDR, a universal currency set by the IMF. This equates to about £104,000, US$174,496 and €128,209.
The effect of this policy is that where a passenger’s claim exceeds that SDR limit, an airline can use the defence that the accident was not due to their own negligence or can attribute the accident to the negligence of a third party.
Previously, airlines could also argue that all necessary measures had been taken to avoid the accident, but the Montreal Convention removed this defence for claims up to the SDR limit. European Regulation (EC) No. 889/2002 has followed suit.
The result is that most smaller claims are now settled out of court, reducing both the costs and the time needed to pursue them.
So the next time a bag falls and hits you on the head, or you spill hot coffee in your lap during turbulence, deciding who’s to blame might not be as simple as originally thought.
While most airlines try to keep their frequent flyers and premium passengers happy with offers of miles and gift vouchers, if you do have an accident immediately before, during or after a flight, getting some preliminary legal advice might be a good start. The answer, however, might not be what you expect.
This article is for information purposes only and should not be relied upon as legal advice.
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