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25 March 2024

Aviation injuries and accidents: Personal injury compensation

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Carroll & O'Dea

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Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
Key relevant legislation, compensation framework, and what to do if injured on an aircraft in Australia or overseas.
Australia Transport
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With the return of domestic and international air travel following the long period of restrictions imposed during the pandemic, more and more Australians are travelling by air. Unfortunately, of late, there have been several serious incidents resulting in potential injuries. For example, the crash at Tokyo's Haneda airport on 2 January 2024 and the incident involving an Alaska Airlines Boeing 737 aircraft on 5 January 2024 – when a side section, including a window, of the plane fell off mid-air, leading to an emergency landing in Oregon, USA. It's a good time then to look at the various entitlements to compensation for those injured while travelling by air. This article provides a summary of the key relevant legislation, the available compensation as well as what you need to do if you have suffered a personal injury while travelling by aircraft in Australia and/or overseas.

The compensation framework and applicable legislation

In Australia, the following legislation governs the liability of passenger-carrying aircraft carriers/airlines in relation to personal injuries suffered during air travel:

The compensation framework is in relation to carriers operating for the purpose of air transport. Only passengers can claim compensation under this legislation, and it is important to note that this legislation does not apply to leisure/recreational flights such as private charters of planes.

The Civil Aviation (Carriers' Liability) Act 1959 (Cth)applies to international air travel and air travel between states and territories. It incorporates the Warsaw Convention and the 1999 Montreal Convention. The airlines' contracts/conditions of carriage will stipulate which of these conventions applies to the subject incident, and this will determine the maximum compensation that can be claimed.

The state/territory legislation applies to air travel within the state/territory (intrastate).

Required documents

The injured passenger's ticket is a crucial document. The stated departure point, any stopover locations and final destination are important details in ascertaining the applicable legislation and other procedural matters involved in making a claim.

Other booking documents, boarding passes as well as carrier terms and conditions must also be obtained and analysed.

When is a carrier liable?

Compensation entitlements arise from bodily injuries suffered as a result of an accident that:

  1. took place on board the aircraft; or
  2. during the aircraft's operations of embarking and disembarking.

Accident

In the context of aviation claims, an accident is an event that is unusual and unexpected and that is external to the passenger. For example, an accident is not a situation involving a medical episode caused by factors that are not external to the passenger e.g. a heart attack. An accident is, however, an event caused by an external factor such as burns resulting from hot liquid being spilled on the passenger by a fellow passenger. Airlines are strictly liable for injuries caused by external factors. This means that injured people are not required to prove the airline is at fault/caused the injury.

Bodily injuries

The legislation and case law are clear in relation to physical injuries – compensation can be claimed in relation to physical injuries so long as the other criteria are met.

However, the law is not clear cut in relation to claiming compensation for psychological or psychiatric injuries. Generally, it is not possible to claim compensation for psychological or psychiatric injuries.

Embarking or disembarking

In addition to accidents that occur onboard the aircraft, accidents occurring during the course of embarking and disembarking can attract compensation entitlements. This depends on the timing of the accident in terms of proximity to boarding time as well as the passenger's proximity to the aircraft.

In some situations, accidents that occur after a passenger has checked in are captured by this legislation and attract compensation rights. In other situations, accidents that occur after a boarding pass has been scanned attract compensation rights. This can include injuries that occur while passengers are being transported on the tarmac by bus or another vehicle, or while walking within the airport through to the aircraft. The precise circumstances of the accident will dictate whether the legislation applies.

Other examples

Other examples of situations that may give rise to compensation rights under the above mentioned legislation include injuries:

  1. Suffered as a result of turbulence.
  2. During emergency evacuations.
  3. Caused by falling luggage.
  4. Caused by collisions between aircraft.
  5. Caused by malfunctioning aircraft equipment.
  6. Resulting from slips and falls.

Strict 2-year limitation period

A strict 2-year limitation period applies – court proceedings must be commenced within that period. Unlike in relation to other types of compensation claims, there is no mechanism for seeking an extension of this strict 2-year limitation period by providing a full and satisfactory explanation for the delay. It is therefore crucial to seek immediate legal advice following an accident and to take quick steps to prepare a case so that court proceedings can be commenced within the time limit.

There have been unsuccessful attempts in court to seek an extension of the time limit. The courts take a strict view. The legislation is clear that it is a 2-year time limit with no scope for extension.

Compensation

The legislation prescribes strict caps on the compensation that can be awarded depending on such aspects as whether the carrier is a domestic carrier. The current limit where the carrier is a domestic carrier is $925,000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
25 March 2024

Aviation injuries and accidents: Personal injury compensation

Australia Transport

Contributor

Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
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