I’ve been injured while travelling by air. What are my rights?
Clare Campbell and Caitlin Dunn
In this brief article the authors discuss liability for injuries incurred when travelling by air.
Over the course of the past year, our travel plans have been put abruptly on hold due to the covid-19 pandemic. To make up for this holiday hiatus, many of us are now taking advantage of last-minute holiday deals, strikingly cheap air fares, and making long-awaited trips to visit family and friends overseas.
What can you do if you suffer personal injury when flying to your holiday destination?
Due to the temporary nature of these travel windows, we can expect surges in flight travel over the coming months, and it’s important that passengers understand what their rights are, should something go wrong when flying to another country.
Air travel is one of the safest modes of transport you can take. As it is so safe, passengers on board benefit from a protective legal framework which acts to compensate passengers for injury sustained during air travel. This framework is the Convention for the Unification of Certain Rules for International Carriage by Air 1999, known as the Montreal Convention.
Accidents that fall within the scope of the Convention do not require you to establish that the carrier was negligent, simply that the accident happened due to no fault of your own.
What kind of in-flight injuries can I claim for?
Injuries that occur due to a trip or a slip on something unexpected in the aircraft can be compensated under the Montreal Convention. There are also more unusual circumstances which could lead to an injury claim, which would also fall under the definition of an ‘accident’. Provided you were a passenger travelling on an international flight, here are some examples of accidents for which you would be compensated, should you sustain bodily injury:
A spilled hot drink or hot food
Burns and scalds are nasty injuries which can have significant long-term consequences should you be left with permanent scarring, as well as being uncomfortable to deal with when you arrive on holiday. There are many things which could cause this to happen during a flight, including turbulence, being knocked by the refreshment trolley, or a clumsy flight attendant or fellow passenger. Provided the spillage was due to an ‘external factor’, and not due to you spilling the hot drink or food yourself, you would be entitled to bring a claim under the Montreal Convention.
Items or luggage falling from the overhead compartment
Passengers often suffer injuries due to items in the overhead compartment being stored incorrectly, which has resulted in luggage falling on them from a height. These injuries can be very serious, particularly if items fall onto a passenger’s head, shoulders or arms, and may mean you are entitled to start an injury claim.
Knock from the flight attendant trolley
Refreshment trolleys are weighty, and flight attendants may not notice a passenger’s foot or knee protruding into the aisle. This is not necessarily the flight attendant’s fault, but it is a personal injury claim that you can bring under the Montreal Convention if you suffer an injury to your knees or feet.
Injury from a plane or toilet cabin door
Toilets on board an airplane are not particularly nice places to be, and even worse if you suffer an injury while trying to manoeuvre in and out of that small space. The mechanics of door locks on the toilet doors in aircrafts can vary from carrier to carrier, making them unfamiliar to even experienced travellers.
We have acted in a case where a passenger’s finger became trapped in the mechanism of a toilet door. This can be incredibly distressing, and result in finger fractures, loss of fingernails,
and scarring. Not only can this result in deformity of the fingers but can also affect hand function.
Injury from the mechanism on the seatbelt
Similar to a trapped finger in a toilet door, this can also happen when using your seatbelt or seatbelt extender on an aeroplane. The mechanisms can snap back quickly, and it is clear how accidents to fingers and hands can occur.
If you are unfortunate enough to experience severe turbulence, this can cause your body to jolt against your seatbelt. This could result in bruising and other abdominal injuries, that provided they can be attributed to the turbulence, could be compensated under the Montreal Convention.
What kind of in-flight injuries would not fall under the Montreal Convention?
There are limits to what an air carrier can be responsible for, and most notably this would be psychological injury, for example anxiety or depression. Thus psychological injury would not be recoverable if it was due to the circumstances surrounding the accident, for example severe turbulence, or because you sustained an injury. A psychological injury may only be recoverable under the Montreal Convention if it arises due to a physical change in the brain, for example due to head injury.
There are other circumstances where the air carrier would not be liable, for example:
- Allergic reaction to food on board, unless the allergens have been marked incorrectly.
- Deep-vein thrombosis (DVT) due to the length of the flight;
- Trip or slip on a normal part of the aircraft;
- A trip or fall due to an existing mobility condition;
Can I only claim if the accident happened on board the aircraft?
The Convention also recognises the reality of air travel, in that for many parts of your journey where you are not confined to the aircraft, you still find yourself being told where you can and cannot go once you go through security. Taking away this freedom means you are to a degree, in the hands of the air carrier and therefore you can be compensated for accidents which occur during embarking or disembarking the aircraft.
This can therefore include things like:
- Tripping or slipping on the aircraft steps;
- A slip in the departure gate;
- Injury while being transported across the runway;
- Falling from a disabled access lift descending/ascending the aircraft;
Even if these accidents happen while you are in the airport, you will be entitled to bring a claim against the air carrier under the Montreal Convention. This can be much more straightforward than trying to sue a foreign airport, in comparison to pursuing the air carrier.
Is it fair to claim from an air carrier, even if the accident wasn’t their fault?
It is understandable that passengers may feel apprehensive, or even guilty, about bringing a claim for personal injury against an air carrier under the Montreal Convention. This is also not helped by the fact that travel companies are under a lot of financial strain following the Covid-19 pandemic and may also face financial detriment due to our leaving the European Union. We have sadly already seen the collapse of Thomas Cook, which was once one of the leading travel companies in the market.
However, it should be noted that these companies do benefit from insurance which will bear the cost of any personal injury litigation. The purpose of this Convention is not to punish air carriers by bringing personal injury claims. The Convention is an international convention signed up to by many countries, highlighting the fact that safe air travel is something that should be expected in every corner of the world that we travel to.
By holding air carriers accountable when things go wrong, we ensure that steps will be taken by these companies to up their practices and make changes where necessary to ensure that these types of accidents do not happen again. If we hold carriers accountable, there is less likely that these accidents will not occur in the future. Who would want to start or end their holiday suffering from an injury, never mind suffer an injury which may have long-term consequences on their life?
I have had an accident which I think would fall under the Montreal Convention, what should I do next?
If you think that you have had an accident which might fall under the Montreal Convention, or even if you are unsure and would like some advice, you will need to contact a travel law specialist as soon as possible after your accident.
The limitation period which applies to claims brought under the Montreal Convention is two years from the date of accident. This means that if you do not issue court proceedings or settle your claim within two years of the date of accident, then you will not be able to bring any claim against the air carrier for your injury suffered.
Before a solicitor would be able to issue court proceedings on your behalf, they would need to enter into a dialogue with the air carrier or their legal representatives, and also arrange for you to be medically examined. This can be time consuming and highlights the need for you to seek legal advice as soon as possible after your accident.
Clare Campbell is a partner with Leigh Day.
She can be contacted at email@example.com
Caitlin Dunn is a paralegal in the personal injury department at Leigh Day
She can be contacted at firstname.lastname@example.org
The original of this article can be found here
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