MYTHS ABOUT LIMITATION 4: WHEN YOU REALLY BELIEVE THE THREE YEAR LIMITATION PERIOD CAN FLY
The view that all personal injury claims are subject to a three year limitation period is a myth. If any injury is suffered within or near an aircraft the safest assumption is that the limitation period is two years. The same applies if an injury occurs in an airport. This applies to all litigants, including children and those without capacity.
THE CARRIAGE BY AIR ACT 1961
The crucial thing here is that there is a two year limitation period for a claim under the Act . At the end of the two year limitation period the right to damages is extinguished. This applies to all passengers, minors and protected parties. There is no scope to rely on Section 33.
The two year period runs from the date at which the aircraft arrived, or should have arrived, at its destination.
The period can be construed strictly. The sole cause of action is the action under the Convention. I have been involved in a case where the action was issued within the two year period but the claim form pleaded “negligence” and did not mention the convention or the Act, although it identified the parties and the accident date . The court held that a claim under the Convention or Act had not been brought within the two year period and the action was struck out.
THE WIDE APPLICATION OF THE ACT
The Act applies to accidents involved in embarking and disembarking so it can include accidents in the airport.
In the airport
- There was a discussion of this in Adatia –v- Air Canada (CA 4th June 1992). There are many decisions on this in various jurisdictions. The guiding test appears to be whether the passenger is under the control of the carrier.
- In Dr Susan Phillips –v- Air New Zealand Ltd  EWHC 800 (Comm) it was held that the Act did apply when the passenger was being transported to an embarkation gate after the flight had been called.
However the guiding principle has to be assume that the two year limitation period applies so as to avoid any reader of this blog inadvertently adding to the jurisprudence on the subject.
No need for an “accident”
- An accident is not necessary. The House of Lords held that it applied to claims for DVT on long-haul flights, Deep Vein Thrombosis and Air Travel Group Litigation  UKHL
If there is no remedy under the Act a claim cannot be brought
See the House of Lords decision in Sidhu –v- British Airways  AC 430.
THE CRUCIAL POINT
The really crucial point is for litigators to be aware of the existence of the limitation period and the Conventions that govern air travel. It is important that litigators appreciate the scope of these principles and the major impact they can have. It is not unknown for insurers to correspond over time, waiting for the two year period to lapse, and then argue that the Convention applies – the action is extinguished. In these circumstances there is rarely anything that can be done.