Aviation travel is the fastest and one of the safest methods of travel. Despite the fact that you are travelling 35,000 feet in the air and travelling over 800kms per hour (at cruising altitude) there are really very few accidents, and everyone makes it safely to their destination most of the time.
According to the International Air Transport Association in 2014 there was 1 commercial jet accident per 4.4 million flights, and a study conducted by the US National Safety Council shows flying is 22 times safer than travelling by car.
However, even though airlines do have a great safety record in the overall scheme of things, injuries can still be sustained by passengers. Some time ago a passenger aboard an Emirates flight from Sydney to Dubai failed in her claim for damages against the airline for a back injury she allegedly sustained while aboard the aircraft. The passenger argued that she injured her back when attempting to avoid hot tea that had been spilled on her serving tray by the flight attendant.
So can you bring a claim against an airline for an injury you have suffered while aboard their aircraft?
In this article we examine the law applicable to airline injuries, when you are likely to be successful in such a claim, and why the Emirates passenger failed in her claim.
The applicable international treaty for airline injuries is the Montreal Convention of 1999 (Montreal 99), which was ratified by Australian and incorporated into the Civil Aviation (Carries Liability) Act 1959 (Cth) (Carrier’s Act).
Article 17 of the Montreal 99 states that a carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident that caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Has your injury been caused by an “accident”?
To be successful in your claim your injury must be caused by an “accident”. The Supreme Court of the United States (and subsequently adopted by the Australian courts) determined that liability under Article 17 arises only if:
- A passengers injury is caused by an unexpected or unusual event or happening that is external to the passenger;
An injury will not be deemed to be an accident when the injury resulted from the passengers own internal reaction to the usual normal and expected operation of the aircraft. A good example of when an injury is or is not caused by an accident is as follows:
- Hearing loss caused by the airplane descending to land. This is not deemed to be an unexpected or unusual event or happening (because this is a reaction to the usual normal and expected operation of the aircraft)
However, hearing loss caused by pressure changes as a consequence of a sudden dive of the aircraft is an accident (because a sudden drop in altitude is unexpected or an unusual event or happening).
Further, you will have to prove that your injury was caused by an accident.
The Court requires the injured passenger to prove that there is a link between the injury and an unusual or unexpected event or happening external to the passenger. The Emirates passenger failed in her claim against the airline because she failed to link together the hot tea spill (which was determined to be an accident) with her back injury.
When will the Montreal 99 apply?
The international flights to which the Montreal 99 applies are flights which:
- The departure country and the destination country are both signatories to the treaty; or
- Where the departure country is a signatory and the destination country is not, but the ticketed itinerary includes a return ticket to the departure country. E.g. A ticket from Sydney (Australia being a signatory) to Bangkok (Thailand is not a signatory) and return to Sydney.
How are damages calculated?
Damages for actions arising under the Montreal 99 are calculated according to law where the claim was brought. So a resident of Australia can bring a claim under the Montreal 99 in any state or territory of Australia and the personal injury law according to that state which respect to the assessment of will apply.
Are there time limits?
You must bring your action for injury within 2 years from:
- The date of arrival at the destination;
- The date on which the aircraft ought to have arrived; or
- The date on which the carriage stopped.
If you do not bring your action within this time your right to claim will be lost forever and cannot be revived.
An injury aboard an international flight is never desirable. However if you do sustain such an injury there may be some comfort in knowing that you may be able to bring an action under the Montreal 99.