Compensation for Injured Airline Passengers in an International World

What happens when passengers are injured or worse, killed during the course of international air travel?

Compensation for Injured Airline Passengers in an International World

With over 90,000 flights taking off every day around the world and billions of passengers flying internationally every year, aviation technology has come a long way since the Wright brothers. Unfortunately, there is a cost for global travel that goes well beyond the airline ticket itself.

What happens when passengers are injured or worse, killed during the course of international air travel? How should they and their families demand the justice they deserve?

The recent Ukraine International Airlines tragedy over Iranian skies is another stark reminder of how vulnerable passengers are when it comes to international air travel. Whether it be geopolitical aggression between nations, poor engineering design or human error, innocent airline passengers and their families can end up paying the ultimate price when something goes awry.

Statistically speaking, commercial airline fatalities are extremely rare. In fact, in 2017 (the safest year on record for commercial airlines) there were no passenger jet crashes reported. In 2019, there were reported commercial airline fatalities but those amounted to just one fatality for every 5.58 million flights. 1

Despite these seemingly reassuring stats, airline injuries or death in the course of international aviation should not be taken lightly when they do happen. Aside from rare fatal crashes, there are still significant injuries that have and will likely continue to affect passengers during flights as well as while embarking and disembarking aircraft.

This may include assaults by intoxicated or disgruntled passengers, heavy luggage falling from improperly secured overhead bins onto passengers, slipping or tripping hazards while embarking or disembarking aircraft, or injuries associated with sudden turbulence. These issues can be particularly troubling for elderly travellers and those with disabilities who may be more vulnerable to falls and other injuries.

The Montreal Convention:

When it comes to regulating airline carriers and passenger rights in the course of international travel, the Unification of certain Rules for International Carriage by Air (also known as the “Montreal Convention”) 2 is the key international treaty which sets out the extent of liability for air carriers in cases of personal injury or death arising from accidents during international air travel. It also deals with compensation for passenger delay and damages to be paid for lost, damaged or delayed baggage (the focus of this article is on personal injury).

One of the goals of the Montreal Convention is to establish a universal system of rules as it relates to carrier liability and consistency in dealing with personal injury and death claims resulting from international air travel. It is also provides for more generous compensation for death and personal injury than its precursor, the 1929 Warsaw Convention, which has now been modernized.

The Montreal Convention applies to the nations that have ratified it. There are 136 nations that have ratified the convention to date including Canada. The nations that have ratified it are found here.

During international air travel amongst the 136 nations that have ratified it, the Montreal Convention will apply. Relying on the Montreal Convention helps avoid a patchwork of different liability rules and regimes across the world when it comes to assessing air carrier damages after an injury or death.

Key Liability Provisions of the Montreal Convention:

Article 17(1) of the Montreal Convention defines the allowable claims related to bodily injury and death and specifically states:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Significantly, Article 21(1) states:

For damages arising under paragraph 1 of Article 17 not exceeding $100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

This places strict liability on the carrier to pay damages up to $100,000 Special Drawing Rights (SDR) for death or bodily injury that occurred on board the aircraft or in the course of embarking or disembarking. In other words, all the claimant must do is prove the events occurred while embarking, disembarking or while on an aircraft and that’s all. Any damages up to $100,000 SDR ($232,000 Canadian) are payable.

SDR is a weighted average of various currencies as determined by the International Monetary Fund and referenced in the Montreal Convention. However, SDR has been adjusted for inflation and as of December 2019, they were revised to be $128,821. 3 This would amount to approximately $232,000.00 Canadian today.

If an injured or killed passenger’s damages fall within this limit ($128,821 SDR/$232,000 Canadian), the airline must pay assuming the bodily injury or death was caused on board an aircraft or while embarking or disembarking. However, Article 21(2) states that carriers can argue quantum of damages when (and only when) claimants are seeking damages above and beyond that limit. Specifically, the carrier can argue in that case that:

(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

Damages Exclusions under the Montreal Convention:

It is important to note that Article 17(1) explicitly references carrier liability for “death or bodily injury of a passenger only.” There is no recourse under the Montreal Convention for claims for damages other than bodily injury or death.

Claims for psychological or emotional harm or damages against international airline carriers sought for constitutional rights such as language or equality rights or religious rights do not fall within the Montreal Convention. This was affirmed in the Supreme Court of Canada’s decision in Thibodeau v. Air Canada.

If a psychological or psychiatric illness is claimed, it would not be a valid claim under the Montreal Convention unless a claimant can show evidence of a bodily injury associated with it. For example, it was held in Sultana v Air Canada, 2018 CanLII 3446 at paragraph 22 that:

The expression “bodily injury” as used in Article 17 of the Montreal Convention means an injury which is capable of demonstration by an examination of the body of the passenger: Morris v KLM Royal Dutch Airlines, [2002] 1 Lloyd’s Rep. 745 (H.L.) at 126 an 143. It does not include mere emotional upset such as fear, distress, grief or mental anguish. A psychiatric illness may often be evidence of bodily injury, but the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury.

Article 29 of the Montreal Convention holds that carriers are also not liable to pay “punitive, exemplary or any other non-compensatory damages”.

Jurisdiction:

Article 33(2) of the Montreal Convention permits a plaintiff to pursue an action against a carrier in “the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence”.

This amended the Warsaw Convention from its restrictive wording limiting jurisdiction to where the airline carrier was normally resident or had its principal place of business.

Conclusion:

The global nature of air travel demands a global response in handling legal claims to ensure a consistent and uniform system.

Following death or injury on an international air carrier, the Montreal Convention is a useful legal tool for helping victims and their families attain compensation. It creates more certainty in defining liability and damages for international air carriers in what would otherwise be a complex international patchwork of uncertainly and unpredictability.

While the Montreal Convention excludes certain key heads of damages like punitive damages and psychological damages that may otherwise be helpful, its flexibility and global reach may be the trade-off needed to ensure a greater level of justice and compensation for the greater number of people and their families around the world.

  1. Major commercial plane crash deaths worldwide fell by more than 50% in 2019: group 
  2. The Montreal Convention 
  3. Montreal Convention liability limits to increase by 13.9% 

Written by Lawson Hennick / Insurance / January 31, 2020

Thanks to the Ontario Trial Lawyers Association (OTLA) for this article https://www.otla.com/