League and Williams Lawyers

Tag: air traveler injury claim

  • Air Traveler Injury: When Passengers are Injured by Airline Crew’s Negligence

    Air Traveler Injury: When Passengers are Injured by Airline Crew’s Negligence

    A Penticton woman recently filed an air traveler injury claim against Air Canada for an injury she sustained during the boarding of an aircraft traveling from Vancouver to Penticton. The woman is a wheelchair user who always requests an aisle seat when she is flying because she needs to be able to move the armrests out of the way to safely transfer herself from the wheelchair and into her seat. Typically, the airline accommodates her request for an aisle seat; however, Air Canada denied her request for the flight on which she was injured.

    How the Injury Happened

    Because the woman’s aisle seat request was not accommodated, she had to rely on airline staff to assist in transferring from her wheelchair into her seat. Without first consulting the woman, two airline staff attempted to lift her by her arms into her seat.  This resulted in the passenger immediately screaming out in pain because she had suffered an injury to her shoulders and arms from being improperly lifted by the airline staff.  

    Injury Claims for Injured Airline Passengers – What can be Compensated?

    Air traveler injury claims include accidents during the process of embarking and disembarking the flight, even before getting on the aircraft.

    In BC, a person who is injured as the result of someone else’s negligence can claim damages by filing a civil lawsuit against the person or organization responsible for the injuries.  In this case, the injured passenger has filed a civil lawsuit against Air Canada, claiming that the airline crew were negligent when they lifted her by her arms to transfer her from her wheelchair and into her seat.  It is important to note that there are time limits for filing such a claim, called limitation periods.  In BC injury claims must be filed within 2 years of the person knowing that they are injured which is typically the date of injury.  Those who are injured negligently can claim compensation for the following damages:

    • Past health-care expenses,
    • Future health-care expenses,
    • Suffering,
    • Loss of enjoyment of life,
    • Loss of earnings, and
    • Monetary damages of family members who are responsible with caring for the injured.

    What Must an Injured Passenger Prove in order to be Compensated?

    From a legal perspective, airline injury claims are often different from most other injury claims because international treaties, such as the Montreal convention, may apply when the flight involved is international, for example.  If the flight is a domestic intra-provincial flight, as it was in this case, the claim is a standard injury claim.  In a standard injury claim, the injured person must show that airline was negligent and their injury resulted from that negligence. The injured passenger must also provide evidence of the magnitude of the damages that have been suffered.  The injured passenger’s lawyer works to collect evidence to demonstrate how the airline’s staff failed to operate in a reasonably safe manner and failed to meet the standards of safety for an airline in the circumstances.  The injured passenger’s lawyer will also work to collect information to help determine how the passenger should be awarded for their injuries.

    Want to learn more about air traveler injury claims? Find more information at https://league.dojogakure.com/our-services/bc-injury-claims/air-traveler-injury-claims or contact us for a free consultation. Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • Air Passenger Injuries: An Accident or Merely the Occurrence of an Injury Itself?

    Air Passenger Injuries: An Accident or Merely the Occurrence of an Injury Itself?

    If a passenger suffers an injury as a result of an “accident” on an international flight or itinerary, their claim for damages is governed by the “Convention for the Unification of Certain Rules for International Carriage by Air”, frequently called the “Montreal Convention” for short. Article 17 of the Montreal Convention provides that the carrier is liable for bodily injured suffered by a passenger if the accident which caused the damage took place on board the aircraft, while embarking or disembarking.  

    A crucial question that must be asked in a claim under the Montreal Convention is whether the injury to a passenger was caused by an  “accident” or not. Although not defined by the Montreal Convention, “accident” has been judicially interpreted to mean an unexpected or unusual event or happening that is external to the passenger. Injuries resulting from a passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft are not an “accident” for which compensation can be claimed under the Montreal Convention. The recent case of Salih v. Emirates (No. 2), a decision of the District Court of New South Wales, considered whether an injury to a passenger’s thumb was an “accident” under Article 17.  

    Facts of Salih

    Usually, the overhead compartment will slowly open once the latch is released; however, it can be slammed shut with no resistance.

    In Salih, the passenger was flying from Dubai to Sydney. During the flight, the passenger got out of her seat to grab baby formula for her baby from the overhead compartment. The passenger claimed that when she opened the overhead compartment door, it fell heavily on her right thumb and did not open in the usual slow manner. The passenger claimed that this was an “accident” under the Montreal Convention, whilst the defendant carrier argued that was not.

    The Court was required to answer whether the passenger’s injury was a result of her own internal reaction to the usual, normal and expected operation of the aircraft (ie. an accident under the Montreal Convention) or a result of an unexpected or unusual event, external to the passenger’s actions. If the injury was not caused by an accident, the claim would fail.

    Reasons of Salih

    To determine if the injury was caused by an “accident”, the Court had to consider whether the fast falling compartment door was defective. Unfortunately for the passenger, the Court had no evidence before it that the compartment door was defective or intermittently faulty and found that the door opened in the usual fashion. Moreover, the passenger did not report that the door was defective after falling on her thumb, the flight maintenance logs did not list any defects, and her husband who was also on the flight gave evidence that the door worked normally. The Court went on to hold that the thumb was injured by the door dropping in the usual, normal and expected way, and thus the injury was not caused by an “accident” within the meaning of the Montreal Convention but rather “merely the occurrence of an injury itself”. The result was that the passenger’s claim was unsuccessful.

    Importance of Salih for the Montreal Convention

    While the decision in Salih v. Emirates (No. 2) is unfortunate for the passenger, the case nonetheless serves as a reminder that claims under the Montreal Convention must be brought as a result of an injury caused by an accident while on board the aircraft, or during embarking or disembarking operations. If it cannot be proved that the injury resulted from the usual, normal and expected operation of the aircraft, the claim will not be an “accident” for the purposes of the Montreal Convention.

    If you were injured during a flight or while embarking/disembarking a flight on an international itinerary, contact an experienced personal injury lawyer today. We will ensure that you receive the compensation you’re entitled to.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Physical & Mental Injuries Under the Montreal Convention: What Injured Passengers Can Sue For

    Physical & Mental Injuries Under the Montreal Convention: What Injured Passengers Can Sue For

    If an airplane passenger suffers an injury as a result of an accident on an international flight or itinerary, their claim for damages is governed by the “Convention for the Unification of Certain Rules for International Carriage by Air”, frequently called the “Montreal Convention” for short. The Montreal Convention establishes uniform liability guidelines for air carriers and provides the mechanism for compensating passengers following accidents on international flights.   

    In previous cases decided under the Montreal Convention, claims for purely mental distress could not be brought against a carrier unless that mental distress resulted from a physical injury that took place on board the aircraft or in the course of any of the operations of embarking or disembarking. There must have been a “causal connection” between the physical injury and the mental injury (see, for example, Wettlaufer v. Air Transat A.T. Inc., 2013 BCSC 1245). However, the 2017 U.S. Court of Appeals for the Sixth Circuit Decision in Doe v. Etihad Airways (Doe v. Etihad Airways, P.J.S.C., No. 16-1042 [6th Cir. 2017]) seems to have departed away from “causal connection” test and indicates that mental injuries accompanying physical injuries as a result of an accident may be compensable.

    In Doe, the plaintiff was on an international flight from Abu Dhabi to Chicago with carriage performed by the defendant airline. Doe’s tray table remained in the open position during the flight as the knob used to secure the tray table had fallen off. Doe placed the knob into the seat pocket in front of her. When in-cabin flight attendants asked Doe to stow her tray table prior to landing, Doe attempted to explain the situation and in the process of reaching into the seat pocket for the knob, pricked her finger on a hypodermic needle left by a passenger on a previous flight. Doe sued the carrier for the physical injury caused by the prick, and the mental distress from fear of contracting a disease.

    The Sixth Circuit Appeals Court reversed the decision of the District Court which granted partial summary judgment in favour of the carrier against the mental distress claims of the plaintiff. In doing so, the Appeals Court decided that a physical injury is still needed to recover mental distress but it does not need a “causal connection” to the mental injury. In other words, the emotional trauma does not need to be a direct cause of the physical injury; it simply needs to be traceable to the injury that occurred due to the accident.

    The decision in Doe has widened the possible compensation award for those passengers injured because of accidents during carriage, embarkation or disembarkation. It must be understood that although Doe has modified the prevailing understanding of Article 17 of the Montreal Convention, it does not mean that mental injury without a corresponding physical injury caused by an accident will not attract a damage award.  

    If you were injured during a flight or while embarking/disembarking a flight on an international itinerary, contact an experienced personal injury lawyer today. We will ensure that you receive the compensation you’re entitled to.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • International Itineraries: Domestic Flight Injuries Filed Under the Montreal Convention

    International Itineraries: Domestic Flight Injuries Filed Under the Montreal Convention

    When an air traveler is injured on an international flight, understanding how to bring a claim for compensation and which law applies to the claim can be confusing. Fortunately, Canada (along with 133 other states) has ratified an international treaty known as the “Convention for the Unification of Certain Rules for International Carriage by Air”, frequently called the “Montreal Convention” for short. The Montreal Convention establishes liability guidelines for air carriers and provides legal recourse for passengers who were injured while traveling on an international itinerary.

    The Montreal Convention

    The Montreal Convention recognizes protection of air travelers interests and compensation for injuries they have suffered as a result of an “accident” during a flight or when the passenger is embarking or disembarking an aircraft. Unlike a standard injury claim, a claim brought under the Montreal Convention has a presumption of negligence against the carrier. This means that when a passenger is injured during their international air travels, it is presumed that the airline was negligent. In legal terms, the carrier’s liability is “strict” – meaning that they are liable for the full extent of the passenger’s damages if the damages claimed by the passenger do not exceed 128,821 Special Drawing Rights (SDR) (approximately $249,000.00 CAD). If the claim for damages exceeds 128,821 SDRs, the carrier can limit its liability by proving the damage was caused by the negligence or other wrongful act of the person claiming compensation.

    The strict liability of the Montreal Convention is of extreme benefit to injured passengers, but it only applies to international carriage. This begs the question: what exactly constitutes an international carriage under the Montreal Convention?

    An International Itinerary under the Montreal Convention

    Many international itineraries will also include shorter domestic flights, which are covered by the Montreal Convention.

    As an example, someone flying on a direct flight from Amsterdam, Netherlands to Toronto, Canada is clearly traveling on an international flight. This person, if they suffered an injury caused by an “accident” in-flight or during embarking/disembarking the aircraft, would be able to file an injury claim under the Montreal Convention.

    But what about an injury on a domestic flight that is part of an international itinerary? If you’re traveling domestically as part of a multi-flight international itinerary, the Montreal Convention regards that domestic leg as part of international carriage if both parties (i.e. the carrier and the passenger) had knowledge that the domestic flight was part of a longer international flight itinerary. Because of this, two passengers on the same flight, who suffer an injury due to the exact same event, could have completely different legal remedies available to them. Let’s look at an example to help clarify this.

    Passengers Injured on the Same Flight, but with Different Legal Recourse

    A man from Vancouver is in Florida for vacation. For his journey home, he takes two flights, one from Miami to Chicago, and another from Chicago to Vancouver. On the flight from Miami to Chicago, the man is injured when luggage in the overhead compartment falls out and strikes his leg. He wants to seek compensation for the injury sustained. Even though the flight he was injured on was a domestic US flight, this US leg was part of an international itinerary (planning to fly from the US to Canada); therefore, he is eligible to bring a claim under the Montreal Convention against the carrier.

    On the other hand, the woman who was sitting next to this man on the Miami to Chicago flight had a one flight itinerary that began in Miami and ended in Chicago. She was also injured by the luggage, suffering an injured wrist. This woman would not be able to make a claim under the Montreal Convention because she was not traveling on an itinerary with international carriage. Her only recourse would be to sue the carrier for negligence, all the elements and breach of which she must prove in order for her claim to succeed.

    As an air traveler who was injured, it’s important to distinguish between an international itinerary and a domestic itinerary. Being injured on a domestic flight either before or after you were on an international flight affords legal remedies under the Montreal Convention. If you were injured during a flight or while embarking/disembarking a flight on an international itinerary, contact an experienced personal injury lawyer today. We will ensure that you receive the compensation you’re entitled to.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.