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An exploration of strict liability for airline incidents is pertinent following the extraordinary circumstances of a recent Singapore Airlines flight, writes John Connellan.
We were all shocked and saddened to hear of the horrific events that 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 500 feet.
It has also been reported that on 26 May 2024, 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 Montreal 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 that 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 is able to 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 to satisfy three basic criteria:
“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 in order 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:
John Connellan is a senior associate at Travis Schultz & Partners.