iscover
We were all shocked and saddened to hear of the horrific events which unfolded aboard Singapore Airlines flight SQ321, from London Heathrow to Singapore on 21 May 2024. It has been reported that approximately 10 hours into the flight the Boeing 777-300ER experienced “sudden extreme turbulence” and suffered a drop in altitude of up to 500ft.
The flight was diverted to Bangkok where it has been reported that 71 people, including passengers and crew members, were injured. Four of the injured are reported as being from Britain, with three from Malaysia, two each from New Zealand and the United States, and one each from Ireland and Spain. Other victims’ nationalities are not yet known, however, it is understood that among them were at least nine Australians. Tragically, one British male aged 73 was killed.
On 26 May 2024, it was also reported that 12 people were injured aboard a Qatar Airways plane from Doha to Dublin, Ireland after extreme turbulence hit another international flight.
The rights of passengers or crew members injured aboard an aircraft travelling internationally are governed by two international conventions, depending on the route and/or the terms of the ticket (contract) purchased. Those conventions are the Warsaw Convention of 2005 or the Monreal Convention of 1999.
In Australia, the Montreal Convention has been adopted into both federal and state law by the Civil Aviation (Carriers’ Liability) Act 1959 and in Queensland, the Civil Aviation (Carriers’ Liability) Act 1964. The Queensland Act applies to commercial intrastate travel whereas the Commonwealth Act applies to commercial international carriage of persons between countries which have implemented the Montreal Convention.
The first thing to note is that the right to damages will be extinguished if an action is not brought within two years. One of the most significant things that the legislation does is impose strict liability on carriers for death or bodily injury aboard an aircraft. That means it is unnecessary to prove negligence on behalf of the carrier or any other person to be entitled to compensation up to a statutory limit of $240,000. However, if the claimant can demonstrate that the event and subsequent bodily injuries or death were caused by negligence or breach of duty on the part of the carrier then he/she may be entitled to a greater amount of damages. Higher statutory limits may also apply where the event occurred on a domestic flight or an international flight within Australia.
The Federal Court held, in Grueff v Virgin Australia Airlines Pty Ltd [2021], that the assessment of damages in respect of claims for bodily injury is governed by common law principles as modified by state legislation. A claim brought in Queensland will be governed by the Civil Liability Act 2003, albeit a range of sections would be rendered inapplicable by section 4(2) and (4) given that a breach of duty is not an element to the claim.
In the case of an international flight with the event occurring overseas and the carrier being strictly liable (such as would be the case for sudden unexpected turbulence), a claimant need only satisfy three basic criteria:
- There was an accident.
- The accident occurred aboard the aircraft.
- There was a bodily injury.
“Accident” has been defined by the Courts as being an unexpected or unusual event external to the passenger. In Di Falco v Emirates (2) [2019], the Court in considering what constitutes an accident noted:
- A passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft is not an accident.
- An accident that is a cause of an injury is different to the occurrence of injury itself.
- It is necessary to identify an event or happening that is external to the passenger.
- Identifying an event requires flexible application. An event may arise from acts, omissions or from a combination of acts and omissions.
- The event must be unexpected or unusual.
- There may be a chain of events that lead to injury.
- It is sufficient that some link in the chain of causal events was an unexpected or unusual event external to the passenger.
- If the event is described as inaction or as a failure to do something, the absence of action will not amount to an event unless it can be shown to be an omission by reference to some legal standard requiring action.
- Common law notions of actions or failure to act arising from a duty of care owed to passengers are irrelevant.
- Whether an accident has occurred is a question of fact.
“Aboard the aircraft” is given its ordinary meaning, however, includes embarking and disembarking the aircraft. This could include travelling by shuttle bus from the terminal to the aircraft or traversing an aerobridge.
“Bodily injury” has been found to cover physical injury, however, recoverability for psychiatric injury has been a little more troublesome. In the case of Grueff, the Court considered the meaning of “bodily injury” and stated the following:
“46. The need for there to be clear evidence establishing a “bodily injury” is also reflected in the following statement at [704] of the leading text, Shawcross and Beaumont: Air Law (LexisNexis, 4th ed, 2021) (emphasis added):
“The case law … tells a complex story, but in general supports an understanding of the relevant phrase which requires clearly-evidenced physical injury to the passenger’s body, caused either by the accident or, less certainly, flowing from the psychological trauma the accident produced.”
Based on the above, it appears that for a claimant to be compensated for psychological injuries in a claim brought under the Act, it would be necessary to demonstrate that the psychological injury was consequent of a physical injury, as was the case in American Airlines Inc v Georgeopoulos [NO 2] [1998].
The key takeaways to be considered are:
- Was there an accident? If so, strict liability will be imposed upon the carrier (subject to a cap on damages of $240k), unless, the carrier (reverse onus of proof) can demonstrate negligence on the part of a third party. If the claimant can demonstrate negligence on the part of the carrier the claimant is entitled to increased damages (greater than $240k but subject to state legislation).
- Disclosure of the Black Box flight data and aviation safety investigation reports should be sought.
- Was there a bodily injury? Does not include psychiatric injury, unless the claimant can prove that the psychological injury was consequent upon a physical/bodily injury.
- Careful consideration should be given to what state the claim instituted as state legislation will apply to the assessment of damages.
- There is a two-year limitation period.
Cases involving turbulence and no fault on the part of the carrier will be relatively straightforward and should involve an assessment of damages only within the confines of the statute. However, carriers will look to absolve themselves of strict liability by pointing to some negligence or breach of duty by a third party (such as mechanical fault). Similarly, claimants who can establish that there has been negligence on the part of the carrier (i.e., pilot error) should, depending on the injuries, obtain a better outcome.
John Connellan is a senior associate at Travis Schultz & Partners.
Ian Becker
says:If a passenger had been advised to ‘keep your seatbelt fastened’ and they chose to ignore that advice, surely the negligence is on them and not the airline.
A different story if a passenger is walking the aisle or whatever.