(Please note, this matter is not currently being litigated in Australia)Sexual assaults would rarely be referred to as “accidents”. Such acts are typically malicious and premeditated. However, the nature of the international treaties which govern international air transport is such that a judicial exercise of characterising such actions as an “accident” will be required before an airline can be made liable for the unlawful touching of a passenger by another passenger or by a crew member.
Recently, Perth woman Laura Bushney alleged that a Malaysian Airlines flight attendant touched her in a sexual way and massaged her legs three and a half hours into a Kuala Lumpur to Paris flight, under the guise of calming her nerves.
The Montreal Convention of 1999 controls the liability of airlines for injuries and deaths to passengers and many would think it uncontroversial that the airline would be liable for any emotional distress caused to the passenger. However, the law which applies is more complex. Under the Convention emotional distress unaccompanied by physical injury is typically not compensable. Furthermore, any injury at all howsoever defined cannot be the legal “fault” of the airline unless the proper characterisation of it is an “accident” as that term is understood in Article 17 of the Convention.
Such factual scenarios are not unique. Two decided cases give guidance on the operation of the law. The first Wallace v Korean Air Lines 214 F.3rd (2nd Cir 2000) was decided in the United States in 2000. In that case a Seoul to Los Angeles flight was the scene for an unwelcomed sexual touching by one passenger on another. The victim was attacked by the passenger in the next seat and awoke to find the assailant had unbuttoned her pants and was touching her under her underpants. The Court flexibly applied the definition of “accident” as accepted in the US such that the vulnerability of Ms Wallace during the flight (cramped between two men in the dark) was a characteristic of air travel and thus the acts were an “accident” and the Court decided in her favour.
In a similar case in the United Kingdom, Morris v KLM  UKHL7, a 15 year old girl was fondled by a neighbouring male passenger during a flight from Kuala Lumpur to Amsterdam. Here the Court of Appeal and then the House of Lords confirmed that the assault was an “accident” for the purposes of the relevant Convention. As such the airline was liable. However, the Court found that even so, compensation was not available as there was no bodily injury – Ms Morris had claimed for mental trauma unaccompanied by physical injury.
Other cases make it clear that a passenger on passenger assault leading to bodily injury can found a case against the airline under the relevant Convention, so it seems unlikely that Malaysia Airlines will be able to avoid taking legal responsibility for the actions of its’ staffs unlawful actions, if indeed they caused bodily injury as the Convention requires.
Written by Shine Lawyers. Last modified: January 7, 2020.