Civil Litigation

Assessing responsibility and liability in a plane crash

By Peter Small, AdvocateDaily.com Contributor

Although Canada’s safety watchdog has cited a “significant safety issue” with the doors of a popular small airplane that crashed last August, they would not be the main focus in assigning responsibility for the death of three of the plane's passengers, Toronto civil litigator Sarah O’Connor tells AdvocateDaily.com.

“The main issue in the crash is who's liable,” says O’Connor, principal of O’Connor Richardson Professional Corporation. “Once you figure out who was responsible for the accident then you will get to how these doors factor into assessing damages.”

Problems with the aircraft’s doors have been known for more than 20 years, with no regulatory action, The Canadian Press (CP) reports.

The float-equipped plane was on a sightseeing trip in the Northwest Territories with four passengers aboard when the pilot lost control while trying to land on a lake, the national wire service says.

The wing flaps blocked the forward position of the rear cargo door and, although the pilot and one passenger escaped the partially submerged fuselage, three passengers drowned, a Transportation Safety Board of Canada advisory states.

Since 1989, five accidents resulting in eight deaths have occurred in Canada and the United States in which extended flaps blocked the rear double door of this model of plane, the advisory says.

In 1991, the plane’s manufacturer issued a service bulletin calling for the installation of a spring assembly to automatically retract the rear handle to help get the cargo door open, according to the advisory.

Transport Canada strongly recommended installation of the spring in 1997, but it wasn't made mandatory, and it was not installed on the plane that crashed last August, according to the advisory.

The primary focus of any civil lawsuit would be on the pilot, the manufacturer, and the company that operated the plane, O’Connor says.

All three of these parties would likely cross-claim against each other if they were sued, she adds.

The manufacturer would probably blame pilot error. The pilot might blame the manufacturer for a problem, as outlined in a USA Today article, with pilot seats sliding backwards in some models, O’Connor says.

The manufacturer might try to rely on a U.S. federal statute, the General Aviation Revitalization Act of 1994 (GARA), that bars lawsuits against manufacturers for liability in accidents involving an aircraft or component more than 18 years after it was delivered to its first purchaser, she says.

The manufacturer could have trouble invoking this statute in Canada, however, because the Ontario Court of Appeal has already ruled it does not apply north of the border, O’Connor says.

The door issue would be most relevant in assessing punitive damages if potential plaintiffs were to succeed in their lawsuit, O’Connor says.

“Punitive damages are more of a deterrent. It’s to prevent you from doing it again,” she says.

Litigants could claim the passengers might still be alive but for the door problems, she adds.

The company that operated the plane will likely say it’s not their fault if the doors didn’t open properly because Transport Canada only recommended, but did not require, that they install the spring to lessen the danger, O’Connor says.

It is unlikely that Transport Canada, as a regulator, could be held liable, she says.

To succeed in assigning responsibility to Transport Canada, "The plaintiffs must set out what it is that they allege the federal regulator, acting with reasonable care in the circumstances, ought to have done, but failed to do, about the doors," O’Connor says.

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