Accidents in the Air? How to Claim For a Personal Injury on Board
Your bags are packed and you’re getting the holiday jitters. It’s time to enjoy the sunshine or skiing that you have been looking forward to for months. Nothing can spoil it for you…
However, there are daunting statistics that hundreds of thousands of passengers are injured each year from accidents on an airplane. Many individuals think they are not entitled to damages for these injuries as they are 35,000 feet in the air, but they are!
What types of injuries can you claim compensation for?
There are many different injuries that can be sustained on an airplane which enable you to claim compensation:
Luggage falling from defective overhead lockers
Defective seats causing back injuries
The food carts losing control and injuring you
Burns caused from spillages of hot drinks due to negligent air stewards
Injuries from rough landings
Slips and falls on airplanes
The Montreal Convention
If you are injured whilst on route to your dream holiday, honeymoon or business trip via an airplane then the Montreal Convention safeguards you. It favours the passengers of the airplane and imposes a strict liability on the carrier. Therefore, you do not need to worry about proving that negligence occurred on the airplane, as usually the accident itself will be sufficient. The following is a number of the most popular aircraft carriers that the Montreal Convention applies to:
British Airways
Virgin Atlantic
Easyjet
Thomson Airways/Holidays
Thomas Cook Airlines
Ryanair
Emirates
How long do you have to claim?
Although the Convention does favour the passengers there are a number of elements that you should be aware of when trying to claim compensation for an accident on an airplane. Usually in Personal Injury cases there is a limitation period of three years to issue proceedings from the date of the injury, or knowledge. However, an injury sustained whilst in the air only has a two year window for claims to be issued.
How much can you recover?
Under the terms of the treaty there is a set allowance that can be recoverable per passenger for injuries, capping each claim at £100,000. This is in order to safeguard the carriers to some extent, counterbalancing the strict liability application mentioned above.
What about turbulence?
Unlike the negligent acts of the airplane staff and defective parts on a plane, it is usually not possible to claim for compensation for injuries that are a result of turbulence. The carriers tend to be protected by such an ‘act of God’ as these are unforeseeable events outside of their control.
However, with current technology it is often possible to foresee poor weather and turbulence. If the pilot and crew failed to warn passengers of this and did not instruct them to return to their seats and fasten their seat belts then the position alters. If the pilot should have gauged the weather and negligently did not do so, liability may be possible. This prevents air carriers relying on the defence of an ‘act of God.’
Who is to blame?
As discussed above, accidents that occur on an airplane are often either due to negligence of the crew or pilot, or due to product liability. It is also not unheard of that faulty latches of overhead lockers are a common reason for injuries on board. Around 4,500 passengers on airplanes are injured because of this per year. But what if the cause of an injury is another passenger? In an Australian case last year this was considered. The claimant alleged that he had to contort his body for five hours due to being seated next to an obese passenger who was taking up more than his allocated seat; the claimant requested to be moved but was only allowed to do so for an hour. It was alleged that the airline was negligent in not aiding the passenger or safeguarding him from the resulting back injury. Brisbane District Court Judge Fleur Kingham refused to strike out the claim, stating that there was a potential prospect of success.
Will the UK Courts deal with these claims?
It can be very confusing when considering whether to claim compensation from an injury that occurred in the air. Where does the jurisdiction lay? Will it be in a foreign judicial system?
Article 33 of the Montreal Convention states that claimant has the option. It allows for a claim to be brought by injured passengers in the courts of i) the domicile of the carrier; ii) the carrier’s (principal or otherwise) place of business; or iii) the passenger’s principal or permanent place of residence.
For example: Whilst on his way from Australia to London Gatwick Mr Jones was injured when a stewardess pushed a food cart into his right shoulder, causing significant injury. Mr Jones should be informed that as England is his permanent residence and that as the airline conducts business in England, he would be entitled to issue to claim in the courts of England and Wales.
So to sum it up, you are entitled to a claim, regardless of whether your plane is taxiing in Heathrow airport or is half way across the Atlantic!
By Laura Buchan
