Injured while flying internationally?  Here’s what to do next

11 January 2024

International aviation is now one of the safest forms of transport, but the recent collision between an Airbus A350 and a Bombardier Dash-8 at Haneda Airport, and the loss of a ‘plug door’ from a Boeing 737 in flight near Portland, Oregon both serve as reminders that sometimes things can still go wrong in aviation, causing injury or even loss of life.

Passengers injured on international commercial flights may have a claim against the airline and should check some things to get any compensation claim started.

1. Do you have a ‘bodily injury’?

The Montreal Convention 1999 now applies to most international flights worldwide.  The Convention allows an injured passenger to claim compensation from the airline in the event of ‘bodily injury’.  Courts have determined that a ‘bodily injury’ need only be very slight to qualify – in one case, a passenger suffering a ‘needlestick’ injury from a hypodermic needle hidden in a seat pocket was found by the United States Court of Appeals, Sixth Circuit, to have suffered a sufficient ‘bodily injury’ to claim:  Doe v Etihad Airways 870 F.3d 406 (2017) (‘Doe’).

However, courts have also interpreted the requirement for bodily injury very strictly, ruling that ‘pure’ psychological injuries, that is, mental illness without any bodily wounding, is insufficient: for example, Pel Air v Casey [2017] NSWCA 32 (‘Casey’).  Additionally, it appears not to matter whether a mental illness is caused by a bodily injury, or whether the bodily injury was caused by the mental illness:  Doe.  There may also be cases where a mental illness is the result of ‘organic damage’ to the brain, meaning that brain injuries are also covered:  Casey; American Airlines v Georgopoulos (No 2) [1998] NSWCA 273.

2. Has your baggage been lost, damaged or destroyed?

If your checked baggage is lost, damaged or destroyed, the Montreal Convention also allows you to claim for compensation from the airline.  There is no need to prove that the damage was the fault of the airline, just that the event which caused the destruction, loss or damage occurred on the aircraft, or while the airline was in custody of the baggage.  However, the airline will not be liable for damaged caused by any inherent defect or quality of the baggage itself.

In relation lost baggage, the baggage is considered ‘lost’ either when the airline admits that it is lost, or if it has not been delivered to the destination after three weeks.

For hand luggage (that is, unchecked baggage) and personal items, the airline can be held liable only if the damage was the airline’s fault.

The compensation for each passenger is limited to 1,288 Special Drawing Rights (SDR), a form of international currency.  At the time of writing, this is equivalent to approximately AUD $2,500.  This limit is for each passenger, regardless of how many bags the passenger carries.  But the limit does not apply if it is proven that the damage was caused by the airline intentionally or recklessly.

If your baggage is more valuable, you can make a declaration to the airline when handing over your baggage, advising them of the actual value.  If you do that, you can claim the declared amount if the baggage is lost, damaged or destroyed, but if the airline can prove that it was not worth as much as you declared, it can limit your claim to the amount it proves your baggage was worth.

In the event of damage to checked baggage, you also need to act very quickly.  The Montreal Convention says that any complaint of damage to checked baggage must be made, in writing, within 7 days of the passenger receiving the checked baggage.  If no complaint is made within that time, the passenger cannot claim compensation, unless there is fraud on the part of the airline.

3. Check your air ticket and terms of carriage

Your air ticket will have very useful information to help you work out whether you have a claim, who your claim is against, and in which court you can sue.

First, your ticket will indicate whether it is an international or a domestic journey.  It is not just whether the flight you were on when you were injured was a domestic or an international flight.  It is whether the series of flights on your ticket was domestic or international that matters.  The Montreal Convention says that an international journey is one which starts in one country and has a stopping place in any other country, even if it then returns to the country where it started.  This means that your return ticket for your overseas holiday is an international journey.  (If your journey is domestic only, there will be other laws that cover you – see our article about domestic journeys within Australia.)

Next, the Montreal Convention says that the ‘carrier’ is the person liable to pay compensation.  Modern airlines can be massive corporate groups, and it is important to identify the right company within the group.  The air ticket may have this information, but it may also come from the terms of carriage, which are typically published on the airline’s website.

The terms of carriage may also have specified limits of liability or other terms that affect your ability to claim.  The Montreal Convention has certain rules about the carrier’s liability, and says that any terms of carriage cannot be more restrictive than the Convention rules.  The rules say that the carrier is liable, without the need to prove fault, for any claim less than 128,821 SDR.  At the time of writing, this equates to approximately AUD $255,000.  For any claims above that amount, the carrier can raise a defence that the ‘accident’ which caused the injury was not due to its negligence, or was entirely the fault of someone else.  This means that the carrier is liable unless they prove they are not – which is the opposite of the situation usually applying to injury claims, where the injured person has to prove the injuries were the defendant’s fault.

Finally, the Montreal Convention lists the places where you can sue the carrier to obtain compensation.  Those places are:

  • The place of origin of the journey
  • The place of destination of the journey (note for a return trip, this will be the same as the origin)
  • The home country of the carrier
  • The country where the ticket was purchased, if the carrier has a place of business there
  • The passenger’s home country, but only if the carrier has a place of business there and operates flights to and from there.

These are the so-called ‘five forums’ where courts can take jurisdiction over your claim.  As the passenger, you can choose which of these is most convenient to you.

4. Was there an ‘accident’

While there is, as discussed above, no need to prove that the carrier was negligent, there is a need to demonstrate that what occurred was an ‘accident’.  The United States Supreme Court has determined that an ‘accident’, for an aviation injury claim, is ‘an unexpected or unusual event or happening that is external to the passenger’ and is not ‘the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft’:  Air France v Saks 470 US 392 (1985).  Courts around the world have applied this definition ever since.

In many cases, whether or not there was an ‘accident’ is obvious, but in others it is not so clear.  In any case, it is important to prepare an accurate statement of what occurred, and to consider what is ‘normal’ and ‘expected’ when operating an aircraft, and what is not.

5. Start getting your documents together

To support your claim, you will need to have evidence of your injuries and the financial impact your injuries have had on you.  This is similar to any other claim for compensation for injuries.  The types of documents you will need include records of your medical treatment and your income, including details of how much time you had to take off work (if any).  Include receipts for any expenses you have had to pay because of your injuries.

6. Act fast!

While the Montreal Convention sets up a special legal scheme designed to assist passengers to make claims, it also puts a strict time limit of 2 years during which legal proceedings must be commenced (but remember the requirement to put in a complaint to the airline about any damaged checked bags within 7 days).  If your legal claim is not filed in court by the end of that two year period, your claim is ‘extinguished’ and there is no possibility to make any claim after that. Two years does sound like a long time, but it does go quickly, and it can take a long time to prepare a claim before it can be filed in court.  If you have been injured on your international flight, you should seek legal advice from an aviation lawyer without delay.

Contact:
Brad Hayward, Principal
0408 323 032 / bhayward@vectorlegal.com.au

John Dawson, Principal
0437 868 468 / jdawson@vectorlegal.com.au