AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 4: AVIATION, PLANES, AIRPORTS AND BALLOONS: VICIOUS RULES APPLY
This is the fourth in the series. The purpose of this post is to make you feel really uncomfortable when you are involved with a case that involves aviation and personal injury, in any way shape or form. Including when your client is injured in an airport. That feeling is far preferable to the problems you will have if you miss a limitation period in these circumstances.
The limitation period here is, as described in the title, vicious. Further the provisions governing air travel have a greater scope than is generally realised.
THE CARRIAGE BY AIR ACT 1961
The 1961 Actincorporates into English Law the provisions of the Warsaw Convention on the Carriage of Goods by Air
(The Act was amended by the Carriage by Air and Road Act 1971).
(These are links to the Acts as originally passed).
The effect of the Act is to displace the law of negligence with an assumption that the carrier is at fault unless the defendant can show that it took all reasonable measures. There is an upper limit on the carrier’s financial liability. It is essential to note that the action is under the Convention. There is no alternative remedy in common law.
The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
” The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.”
THE TWO YEAR LIMITATION PERIOD
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 adding to the jurisprudence on the subject.
The Act does not apply to pure psychiatric injury
- See Philip King –v- Bristow Helicopters  UKHL 7
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 Convention and appreciate its scope and the major impact it 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.