It was the baffling response from a major airline that made headlines across the world.
Chelsea Schiffel, who was 15 at the time, alleges she was groped by an elderly man sitting next to her on a United Airlines flight from LA to Sydney in July 2014. Instead of taking affirmative action the airline criticised her choice of clothing by saying she “wore extremely short shorts.”
The assault occurred when Chelsea’s mother Narelle Schiffel went to speak to another family member towards the rear of the plane and the man next to Chelsea offered his shoulder for her to rest her head on. A short time later when Chelsea had fallen asleep, the man allegedly touched her breasts twice. At this point, Chelsea left her seat and told her mother.
Narelle spoke to the United Airlines staff who refused to allow both Chelsea and Narelle to be seated together elsewhere for the remainder of the flight. Instead, they re-seated Chelsea next to another male passenger. Chelsea was so distraught from being assaulted, all she wanted to do was sit next to her mum for support. As a result Chelsea moved back to sit in her mother’s designated aisle seat, with her mother sitting in Chelsea’s seat in the middle of the row and the man who allegedly assaulted Chelsea remained in his designated window seat.
When the Schiffel family came to Shine Lawyers for advice, they were distressed to learn that there is a loophole in aviation law that means any person who boards an aircraft can’t sue for personal harm from indecent assaults.
What does aviation law say about indecent assaults?Shine Lawyers aviation lawyer Thomas Janson explains:
“Any injury or death aboard an aircraft is governed by a group of international conventions and depending on the countries that an aircraft is flying between determines which convention applies. While there are five international aviation conventions concerning passenger injury and death, not one of these laws recognises indecent assaults such as groping and unwanted touching. This is because they all use the definition of ‘bodily injury’ - which means a physical injury must be suffered by a person in order to claim for personal injury.
Understandably, when an indecent assault happens to those who are most vulnerable like unattended minors, the psychological injury can have lifelong consequences. Anxiety, depression, post-traumatic stress disorder and intimacy breakdowns are just some of the psychological traumas that people have to cope with.
Aircraft are the only form of public transport where you can’t sue for personal harm from indecent assaults.
A similar case to Chelsea’s circumstances is the United Kingdom case of Morris v KLM Royal Dutch Airlines (House of Lords, 2002) 2 A.C. 628, 646-647 where a 15 year old passenger on an international flight awoke and discovered a male passenger touching her thigh from the hip to the knee. In this case, the House of Lords dismissed her case against KLM Royal Dutch Airlines due to the lack of a ‘bodily injury.’
In Chelsea’s case, laying criminal charges has been impossible as airlines and investigating bodies have failed to take affirmative action. As such, Chelsea’s case exposes the frightening reality for children who are indecently touched on aircraft - that they are not protected by the law. A child or any other passenger who suffers these types of incidents should be able to claim against an airline for any mental injuries they have suffered due to the failure of the airline to uphold its duty of care and prevent an assault.
These laws need to urgently change to protect every Australian who boards an aircraft and we shouldn't have to wait for the governing aviation bodies to make these changes. In fact, individual airlines have the power to put in their conditions of carriage about how they will protect passengers on any flight and they can provide compensation for passengers who have been indecently assaulted. Sadly, airlines are sheltering themselves behind this loophole instead of making these changes.”
For more information on Aviation Law, see our services page.
To read more on Chelsea's story, see the The Project's 'Fighting for rights on flights'.
Written by Shine Lawyers on April 20, 2016. Last modified: September 6, 2018.