Class Action, Personal Injury

Know your rights in an airline accident: Lee

By Judy van Rhijn, Contributor

Depending on where you travel, it can be complicated to seek a remedy through the courts for an airline injury, Toronto personal injury lawyer Andrew M. Lee tells

“Airline injury lawsuits are few and far between. A very small percentage of cases actually end up in court, but injuries do occur,” says Lee, principal of Lee & Associates.

He says air travel is generally very safe.

“There is a perception that it is dangerous because when accidents do occur, they are very serious with catastrophic consequences," says Lee, who frequently acts for clients injured in airline mishaps. "Crashes can be deadly as we have unfortunately seen earlier this month when 18 Canadians were killed."

Negligence cases are often due to human missteps, he says.

“It’s quite often that pilot error leads to accidents — a decision, action or inaction that puts the passengers in danger. It might be using equipment incorrectly, making navigational errors, not communicating with air traffic control or perhaps not getting enough sleep or using substances such as alcohol or drugs," Lee says. “Another type of negligence may be on the part of air traffic controllers. They’ve got a responsibility to monitor traffic in and around airports and if they’re tired or under the influence of alcohol or drugs they could make decisions that endanger passengers on the planes that they’re controlling.”

Apart from pilot error and air traffic control negligence, he also cites defective or poorly maintained equipment, airplane turbulence, or negligence on part of the manufacturer.

“Some other types of accidents that are commonly encountered are hot water spills, hearing loss due to decompression issues, and food poisoning because of poorly prepared or contaminated food,” Lee says.

He says he mostly sees claims resulting from international travel in his practice.

“Essentially, domestic travel falls under domestic law, and international travel falls under the Montreal Convention and the Carriage by Air Act,” Lee notes.

The Montreal Convention 1999 is the more modern version of the Warsaw Convention signed in 1929, an agreement designed to harmonize private international air law, he says. It is administered by the International Air Transport Association (IATA) which represents 290 airlines constituting 82 per cent of total air traffic.

Lee says that the Montreal Convention establishes airline liability in the case of death or injury to passengers in a single, universal treaty but is only applicable for international flights between countries that are signatories of the agreement.

“It provides for strict liability without having to prove negligence," he says. "It is easier to bring a claim, but only for the first $185,000 of provable damages. That could include, but is not limited to, pain and suffering, or things such as lost wages. An injured person does not have to prove that the damages were caused by the airline. Whether it is an Act of God, an issue with maintenance, pilot error, or any other reason, the airline will be held responsible for the first $185,000 of damages."

Lee says for any damages exceeding that, "the person would need to prove that damages were caused by the airline’s negligence, and not because of any other reason."

"Although strict liability applies, there is still an onus on you to prove the damages," he says. "Under the Convention, the courts have generally found that a claim may only be brought if the passenger has suffered a bodily injury. In other words, a psychological injury, including stress and inconvenience, cannot be the cause of an action.”

The responsibility of the airline doesn’t just apply to planes while they’re in flight, Lee points out.

“It also applies to the boarding and deboarding," he says. "For example, we have one current case involving a passenger with mobility issues. She requires special attention when getting on and off the plane. She was injured while she was being moved onto the plane because the airline crew was not transporting her properly. The Convention would also cover that.”

This regime becomes complex when passengers are injured on a flight to a country not covered by the Convention, Lee says. The IATA reports that only 132 of its 191 members are parties to the Convention, and it is actively campaigning to have the other 32 per cent of its members sign up.

“I don’t think you should let the fact that a nation is not a signatory deter you from flying there,” he advises. “The remedy is to book a return flight as the Convention applies if a flight originates and returns to a signatory nation.”

There is also a limitation on the period in which claims can be made — two years from the date of arrival or planned arrival at the destination, or the date on which the flight ended, Lee explains.

“Claims arising from domestic flights are covered by domestic laws and the Montreal Convention and the Carriage by Air Act are not applicable,” he says. “If you suffer an injury while on a domestic flight, the first thing to do is check the airline’s tariff, which outlines their terms of service. A tariff can limit the airline’s liability, and even adjust general limitation periods for bringing a claim. There is no strict liability for domestic flights. The Canada Transportation Act simply imposes that airlines maintain insurance policies for injuries sustained by passengers."

Federal Transport Minister Marc Garneau has proposed a new Passenger Bill of Rights which would give passengers a clearer understanding of their entitlement to compensation, Lee notes.

He says he believes that turbulence is the greatest cause of injuries.

“The types of ailments commonly seen are head, neck and back injuries and broken bones," Lee says. "These can occur from objects falling from overhead bins, from being thrown upwards to the ceiling during severe turbulence, from coming into contact with airplane fixtures such as seats and beverage carts and other passengers, and also from rough landings or even crash landings.”

With modern technology, it is difficult for airlines to escape responsibility for injuries caused by turbulence, he notes.

“There’s a duty on pilots to monitor weather patterns up ahead,” says Lee. “Pilots and the airline crew have a duty to warn passengers, to make cabin announcements and ensure those onboard are correctly wearing their seatbelts. They must also put the cabin warning lights on in advance of encountering the turbulence because airline passengers have no idea what the weather patterns are like up ahead. That’s something that is the pilot’s responsibility."

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