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Injury Law - Warsaw all about?

By : Jasmine Murphy

Jasmine Murphy gives 10 tips to prepare you for take off in Warsaw Convention claims.

The Warsaw Convention in its various forms is the international liability regime governing claims arising out of injuries during international carriage by air. This article gives a synopsis of the main issues that could arise out of a claim under the Warsaw Convention system.

(1) Warsaw, Hague, Montreal – which Convention?

Since the original 1929 Warsaw Convention, there have been a number of amendments and treaties:

  • The Warsaw Convention as amended by Additional Protocol No 1 of Montreal, 1975
  • The Warsaw Convention as amended at The Hague 1955
  • The Warsaw Convention as amended at The Hague 1955 and by Additional Protocol No.2 of Montreal 1975
  • The Warsaw Convention as amended at the Hague 1955 and by Protocol No.4 of Montreal 1975
  • The Montreal Convention 1999.

There is no easy answer as to which Convention will apply to each individual case. It will depend on many different factors such as: when the accident happened, where the carriers are based, whether the destination is to a country that is a party to the Treaty, and whether the carriage falls within international carriage as defined in each treaty. It is essential to identify the places of departure and destination to begin to determine which, if any, international treaty applies. The most recent Convention, the Montreal Convention 1999, came into force in Britain on 28 June 2004.

(2) Special Drawing Rights – a new form of traveller’s cheque?

Because the Warsaw Convention system is international, all financial limits and values are valued in Special Drawing Rights (“SDRs”). SDRs are then converted into the relevant currency for the country where the claim is being brought. The current value of a SDR is shown on the International Monetary Fund’s website www.imf.org. At the time of writing one SDR is worth approximately 81 pence.

(3) Article 17 Liability

Article 17 of the Convention provides that a carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The word accident within the Convention means the cause of the injury and not the injury itself. It is not necessary to prove that the accident was as a result of the carrier’s negligence. The Convention’s description of an accident includes non-fault events. Most disputes centre on whether the injury arose out of an accident within this definition.

(4) Someone’s duty-free fell out of the overhead locker and hit me on the head – is that an accident?

The accident was defined in Air France v Saks [1985] 470 US 399 that an accident is an unexpected or unusual event or happening that is external to the passenger. It does not include the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft. Thus in the Deep Vein Thrombosis and Air Travel Group Litigation cases in 2003 the Court of Appeal found that DVT or the failure to warn of a risk of DVT was not an accident. Lord Phillips of Maltravers MR re-affirmed the Air France case and said that an accident can be broken down into two elements (1) there must be an event and (2) the event must be unusual, unexpected or untoward.

Obvious examples of accidents include plane crashes and terrorist attacks. Turbulence can even be viewed as an accident if it is serious enough to cause injury. Being poisoned by the in-flight catering, or suffering burns as a result of cabin staff spilling hot coffee in your lap could constitute an accident. The conduct of other passengers, such as drunken rock stars falling on you, can also be an accident.

Being hit by an object from an overhead locker will be an accident. However in the American case, Gotz v Delta Airlines Inc 12 F supp 2d 1999 DC Mass 1998 26 Avi 1, 796, it was held not to be an accident when a passenger interrupted his efforts to load his own carry-on bag into an overhead locker to avoid hitting another passenger and damaged his shoulder muscles in the process. The activity was in no way unusual or unexpected and did not arise out of the operation of the aircraft.

(5) I was scalped when I caught my hair in the moving walkway in the airport. Can I claim under the Warsaw Convention?

The Conventions specify that the accident must happen either on board the aircraft or in the course of any of the operations of embarking or disembarking. The first part of this is easy enough and the second part clearly includes ascending or descending the aircraft’s steps. In certain cases accidents on a shuttle bus moving passengers across the airport apron from the plane to the terminal have also be found to fall within this definition. However if the accident occurs inside the airport terminal it will be more difficult to bring it within the ambit of the convention. It is unlikely that the general procedures which apply to all passengers such as check-in or passport control will be viewed as operations relating to embarking or disembarking a particular flight or aircraft. In one case where someone fell off a travelator at Heathrow it was found that it was not an accident within the operations of disembarking the aircraft as she was no longer under the control of the carrier but instead was free to choose her route inside the airport.

(6) I suffered shock, fear and depression as a result of opening up my in-flight meal - was that bodily harm?

There must be physical injury to the passenger’s body, caused either directly by the accident or flowing from the psychological trauma the accident produced. This is different to our normal interpretation of injury which includes mental injury if it can be shown by expert evidence to amount to a recognisable psychiatric illness or injury. The House of Lords heard conjoined appeals on this issue in King v Bristow Helicopters and Morris v KLM in 2002. Their Lordships held that King, who suffered PTSD resulting from a forced landing leading to a peptic ulcer disease could recover for the peptic ulcer disease only, but Morris, indecently assaulted by another passenger, could not recover for the clinical depression she suffered as a result.

(7) What defences do carriers have?

Article 20 of the Warsaw-Hague Conventions provides a defence that the carrier had taken all necessary measures to avoid the damage or that it was impossible for it to take such measures. However if the carrier is a Community carrier (granted a valid operating licence by a Member State) reliance on this defence is precluded for cases worth less than 100,000 SDRs by Council Regulation 2027/97.

For cases coming under the Montreal Convention 1999 this defence is only available in cases of delay, not injury. However in that Convention where damages exceed 100,000 SDRs, the carrier is not liable if it can prove that (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damages were solely due to the negligence or wrongful act or omission of a third party. It is essential to check the carrier’s terms and conditions of carriage as sometimes it waives its right to rely on this defence.

The defence of contributory negligence is available under Article 21 of the Warsaw Conventions and is preserved in the Montreal Convention. The applicable law will be that of the country where the action is brought.

(8) Can I start my claim in English courts?

The claim lies against the relevant carrier. In all versions of the Warsaw Convention and the Montreal Convention an action for damages must be brought in either:

  • The court having jurisdiction where the carrier is ordinarily resident; or
  • The court having jurisdiction where the carrier has its principal place of business; or
  • The court having jurisdiction where the carrier has an establishment by which the contract has been made;
  • The court having jurisdiction at the place of destination.

There is a fifth option added by the Montreal Convention for cases arising out of claims under the Montreal Convention. The case can be brought in the court of the country where the passenger had his or her principal and permanent residence at the time of the accident, and to or from which the carrier operates services and conducts business.

(9) How long have I got to bring a claim?

All versions of the Warsaw & Montreal Conventions restrict the time period within which an action for damages can be brought to two years from the latest of the following three dates

  • The date of arrival at the destination; or
  • The date on which the aircraft should have arrived; or
  • The date on which the international carriage stopped.

If a claim is not brought within the two year period, the right of action under the Convention is extinguished completely and there is no discretion to disapply or extend the limitation period.

(10) My accident was more than two years ago. Can I bring a claim in tort instead?

The Convention is an exclusive uniform international code for the liability of international carriers by air. Although in theory other causes of action in contract or tort would normally exist, it is established in the international body of case law that the only circumstances in which a carrier would be liable in damages to a passenger for injury claims arising out of his international carriage by air would be under the Convention. Therefore, if the carrier would normally be liable under the Convention but the passenger fails to bring his claim within the two year limitation rules, he cannot then bring his claim under another cause of action which has a longer limitation period. Additionally if a passenger engaged in international travel fails to prove that the cause of his injury falls within the bounds of the Convention’s definition of an accident, he has no other remedy.

For further reading – Shawcross & Beaumont Air Law – published by Butterworths.