Whether a person can recover compensation for a physical injury brought about following an accident on board a carrier aircraft or while embarking or disembarking a carrier aircraft is one of degree.
Where do I bring a claim?
In Australia, Article 17(1) of the 1999 Montreal Convention through the Civil Aviation (Carrier’s Liability) Act 1959 (Cth) provides the basis for bringing a claim for injuries sustained as a result of an accident on board a carrier aircraft or in the course of embarking or disembarking from a carrier aircraft.
What is an ‘accident’?
The key provision being ‘accident’ is defined in the United States of America case of Air France v Saks 470 US 392 by the Supreme Court as being ‘an unexpected or unusual event that is external to the passenger.’
This definition was approved and further expanded upon in the United Kingdom Case of In Re Deep Vein Thrombosis Litigation  QB 234 by the House of Lords who held that the definition of accident was ‘ … to be given a natural and sensible, but flexible and purposive meaning in its context and that for there to be an accident within the meaning of the relevant article, there had to be an event external to the passenger which impacted on the body in a manner which caused death or bodily injury and the event had to be unusual, unexpected or untoward.’
Both of these readings of ‘accident’ was accepted in the Australian case of Povey v QANTAS Airways Pty Ltd & Anor  223 CLR 189 by the High Court of Australia.
The facts of this case involved a claim by a passenger against QANTAS as a result of the passenger acquiring Deep Vein Thrombosis in the course of a flight aboard a QANTAS aircraft.
The High Court found that the acquiring of DVT by the passenger did not constitute an ‘accident’.
What are the elements of an ‘accident’?
The elements of an ‘accident’ as established by the above case law are as follows –
- An event;
- The event must ‘exist in space and time separate from the passenger’ i.e. the event must be external;
- The event must cause bodily injury to the passenger by virtue of its effect on the passenger; and
- The event must be ‘unusual, unexpected or untoward.’
What events are not considered ‘accidents’?
In each of the below mentioned occasions, the passengers could not establish that the event was external to them as passengers as the objects they encountered were passive or ‘inert pieces of equipment, property installed and operating as intended’ (as per Sackville AJA in the case of Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354) which the passenger did not correctly observe.
- Slipping on a plastic strip whilst walking along the aisle of the aircraft – Barclay v British Airways  EWCA Civ 1419;
- Losing your footing and falling whilst walking down a flight of stairs to the tarmac – Brannock v Jetstar Airways Pty Ltd  QCA 218; and
- Attempting to sit down, catching your foot on an airliner seat and falling over – Sorial v Virgin Blue Airlines Pty Ltd (Unreported, NSW District Court, 3 November 2008)
What events are considered ‘accidents’?
In order for a passenger to establish the existence of an accident, they must show that the event was external and it was a result of something more than the passenger encountering a fixed, passive or inert piece of equipment as shown in the below mentioned occasions:
- Placing your footing on the bottom step of aircraft embarkation stairs which then flips over and falling as a result of the bottom step falling over – Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354;
- Bottles falling on your head and neck as a result of the opening of an overhead baggage locker by another passenger; and
- Collision with a food and drinks trolley being moved down the aisle of an aircraft.
This article should not be read as legal advice, and the application of the legal principals and case law as noted above will differ according to each situation. For further legal advice that is applicable to your individual situation, please contact Shine Lawyers Aviation Law Department.
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