Do airlines have to compensate minor in-flight injuries?


Baggage falling from an overhead locker is one of the five most common causes of injury to in-flight passengers, the others being turbulence, rolling bar and food carts, drink spills and trip hazards. or slip.

Airlines will give the best attention to passengers injured during the flight and will offer medical assistance at the airport. If the injury is minor and there are no pending issues, airlines will leave it up to their Consumer Relations department to offer a voucher for a meal, loyalty points or an upgrade from flight. But is it enough?

In the recent decision of Bradshaw vs. Emirates [2021] FCA 1407 (November 12, 2021) (Federal Court of Australia), Justice Stewart ruled that in these circumstances Emirates had to pay general damages (for pain and suffering) and could not invoke local civil liability law for avoid paying compensation for a minor flight injury.

Background

Stephen Bradshaw (28) was a passenger on Emirates flights from Dublin to Brisbane via Dubai on January 1-2, 2019. He was seated in an aisle economy seat on an Airbus A380.

On the DUB-DXB stage, before the aircraft began its descent towards Dubai (that is to say before the seat belt lighting was activated), another passenger stood up and opened the safe above Mr. Bradshaw. Almost immediately afterwards, the aircraft banked and a suitcase fell out of the luggage compartment and struck Mr. Bradshaw in the head. It was a “Trunki children’s suitcase” with a hard shell and weighed 1.7 kg empty. It was almost empty as its lint contents had been removed so that the passenger’s daughter could have them during the flight.

The cabin supervisor prepared this KIS report:

The description:

-While the client who was sitting at 23D was securing her bags for landing, one of her bags fell on the client who was at 24C and hit him in the forehead. -The forehead looked a little red. – The client got off unassisted.

Action by the flight attendant:

-Apply towel-wrapped ice to his forehead. – Gave him a small bottle of water. -He said his pain is 5 on a scale of 10 without dizziness. -He offered her panadol but he denied it, saying he had panadol. – Offered him for medical assistance and informed him that we can ask a doctor to check him on the ground, but he denied that he said it was just a headache when the bag hit him. -After the landing he went to the client and again offered to be examined by the doctor and again denied that he said “I’m fine”. -The flight attendant has been informed.

Mr. Bradshaw proceeded to the connecting flight in Dubai.

A second KIS report was prepared on the Dubai-Brisbane route, after the passenger complained “that he is very cold, in great pain and on the verge of fainting”. She was given high flow oxygen and taken two panadol hydrate tablets. He was monitored and prioritized to exit the aircraft upon landing.

The medical evidence was that Mr. Bradshaw had no “lasting injury, pain or difficulty”.

In his email to Emirates of January 21, 2019, he did not “complain of any lingering effect from the incident or any injury, or of having had difficulty at work or having to be absent. work “.

The Court considered that “this complaint is limited to the fact of having lived” a very painful and uncomfortable journey “.

The claim for compensation

In the case of an international flight, the claim for compensation was made under Article 17, paragraph 1, of the Montreal Convention which states:

The carrier is liable for damage suffered in the event of the death or bodily injury of a passenger on the sole condition that the accident causing the death or injuries took place on board the aircraft or during one any embarkation or disembarkation operations.

Section 17 has the force of law in Australia by section 9B of the Civil Aviation (Carrier Liability) Act 1959 (Cth). This is no-fault liability, meaning that a passenger does not need to prove that the airline was negligent in order to make a claim. The passenger’s claim is complete if he sustains bodily injury as a result of an accident on board an aircraft.

Does local law apply to limit this liability? Article 9E states:

… The liability of a carrier under the Convention, with regard to bodily injury suffered by a passenger which did not result in the death of the passenger, supersedes any civil liability of the carrier under any other law in force. regarding injury.

The Court quickly rejected the UAE’s contention that general damages for pain and suffering and loss of convenience (i.e. damages for non-economic loss) were not recoverable because there was no such limitation under section 29 of the Montreal Convention which states:

any action for damages… may only be brought subject to the conditions and limits of liability set out in this Agreement…

Emirates’ most convincing claim was that the low threshold under Article 16 (1) of Civil Liability Act 2002 (NSW) (the CLA) requested that the claim be excluded. Section 16 (1) states:

No compensation may be awarded for a non-pecuniary loss unless the severity of the non-pecuniary loss is at least 15% in the most extreme case. (note: the low threshold amount is currently $ 104,025)

If subsection 16 (1) applied, Mr. Bradshaw’s claim would be denied.

The argument as to whether the CLA applied, formulated in legal terms, is whether “Article 79 or Article 80 of the Judicial law of 1903 (Cth) operates to take over and apply the relevant provisions of the CLA as surrogate federal laws ”.

The Court concluded that “section 16 (1)) of the CLA cannot be taken up and applied to a claim under section 17” under section 80 or section 79 of the law on the judiciary. In reaching these conclusions, the Court:

Adopted the reasoning of Judge Keogh in Di Falco vs. Emirates [2018] VSC 472; 57 VR 394, in which he noted that the Harms Act 1958 (Vic) was not “salvaged” by Sections 79 and 80. For my comment on this ruling, see Airlines Often Must Provide Water To Passengers To Avoid In-Flight Injury.

And rejected the obiter observations of Griffiths J. in Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 in which His Honor concluded that the CLA could apply (the decision was based on other grounds). For my comment on that decision, see Is It A Flight Injury If You Have Stomach Pain and Nausea?

Therefore, Mr. Bradshaw’s claim for compensation was not excluded because the CLA did not apply.

The Court concluded (obiter) that the CLA did not apply for another reason. That is, the CLA only applies to fault liability. Whereas Article 17 (1) of Montreal Convention provides for no-fault liability.

Mr. Bradshaw claimed $ 43,600, comprising general damages (non-economic loss) of $ 35,000, disbursements of $ 1,000, lost wages of $ 600 and lost economic opportunity of $ 7,000. He presented no evidence of expenses or claims for lost wages and opportunities.

The Court awarded a small indemnity:

“The (…) damages suffered by Mr. Bradshaw were pain and suffering and loss of the conveniences of life in a limited way (…) In my opinion, a compensation of $ 5,000 will compensate him in any way. quite adequate and appropriate for this pain and suffering. “

comments

Emirates handled the incident appropriately during the flight, as KIS reports show.

But in hindsight, Emirates did not deal well with the subsequent complaint. As the Court observed:

“The terms of the [complaint] E-mail [of 21 January 2019] state that his goal was to try to get an upgrade or discount on a future flight because Mr. Bradshaw was “unhappy … with the treatment [he] received from the airline ”.

Emirates responded by requesting medical invoices / receipts and reports. No offer was made.

Mr. Bradshaw responded by reiterating his displeasure. Emirates did not respond.

Feeling ignored by Emirates, Mr Bradshaw obtained legal advice and began proceedings in December 2019.

The lesson airlines serving Australia need to know is that they should offer an upgrade or discount on a future flight, or loyalty points, or the like, when a passenger complains of an injury caused by the flight. baggage drop. And if the circumstances are comparable to that decision, the value of the offer should be $ 5,000.

Cabin in economy class Emirates A380 Airbus during boarding. Observe that luggage falling from the top lockers will fall on passengers sitting in the aisle seats (author photo, October 2018)

About Theresa Burton

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