Wheeler, Joseph --- "Aviation liability in the age of COVID-19: Time for a rewrite" [2021] PrecedentAULA 19; (2021) 163 Precedent 22

• AUSTRALIAN CASES OF INTEREST
• Salih v Emirates (No. 2)
• In Salih v Emirates (No. 2),7 the NSW District Court considered the entitlement to compensation of a woman who alleged that she had been injured on a flight from Dubai to Sydney. An aircraft overhead locker door fell heavily on her right thumb and hand when she opened the locker to obtain infant formula for her baby during the flight.

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Her injury was treated onboard with an ice pack, medication and a splint. Following her return home, she required physiotherapy and, in the year following the injury, she claimed that she developed pain in her right shoulder which affected her household and work duties.

At trial, the plaintiff’s husband gave evidence that he had also opened the overhead locker (after his wife had sustained her injury) and stated that it operated in ‘the normal fashion’.8 The airline's maintenance department also noted that the aircraft cabin defect log recorded no defects with the overhead locker in question.

AVIATION LIABILITY IN THE AGE OF COVID-19

TIME FOR A REWRITE

By Joseph Wheeler MRAeS

The International Civil Aviation Organisation (ICAO), the United Nations’ agency for civil aviation, has reported that due to the COVID-19 pandemic there was a reduction of 50 per cent in the number of seats offered by airlines internationally, a reduction of 2.7 billion passengers, and an approximate USD 371 billion loss of gross passenger operating revenues for airlines.^[1] The reduction in the capacity and volume of flights is unprecedented and far outweighs the downturns that followed other flu-like virus outbreaks such as SARS and avian influenza (or bird flu).^[2]

As a result of border closures and travel restrictions, the world has begrudgingly adapted to using aviation less often. However aviation is such a driver of economic growth that when consumer confidence and airline capacity return, accompanied by improved virus containment and mitigation measures, there is no doubt that aviation will return safer than ever to help move people and freight economically and at scale.

The liability regime for aviation remained unchanged throughout the constantly changing health and economic landscape of 2020, and it is under the current regime that COVID-19-related matters must be understood.

This article will explore the essential concepts of aviation liability as it affects Australian travellers and review how courts have applied these concepts to consider recent applications and disputes. It will conclude by predicting the likely outcome of COVID-19-related claims in aviation and other instances of potential novel claims of interest, noting that ultimately, the aviation liability regime is due for an overhaul.

CIVIL AVIATION LIABILITY SCHEME IN AUSTRALIA

The liability of civil air carriers (typically airlines) for injury or death caused to a passenger in the course of travel is governed by a regime constituted by:

• the Warsaw Convention^[3] and its successors,^[4] including the Montreal Convention,^[5] which provide for carrier liability in the course of international travel;

• the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the Act) which gives the Conventions the force of law in Australia and, in Part IV, applies analogous principles to the liability of air carriers arising in the course of interstate carriage and carriage within the territories; and

• counterpart legislation of each of the states^[6] which applies the provisions of Part IV of the Act to intrastate carriage.

The key principles are that there is legislative quid pro quo evident. Strict liability for proven losses will apply to compensate passengers who are injured while onboard an aircraft or during the operations of embarking and disembarking, as long as they can establish that a compensable ‘accident’ has occurred and that the injury was caused by such an accident – often expressed as an unexpected or unusual happening or event external to the passenger.

AUSTRALIAN CASES OF INTEREST
Salih v Emirates (No. 2)
In Salih v Emirates (No. 2),^[7] the NSW District Court considered the entitlement to compensation of a woman who alleged that she had been injured on a flight from Dubai to Sydney. An aircraft overhead locker door fell heavily on her right thumb and hand when she opened the locker to obtain infant formula for her baby during the flight.

Her injury was treated onboard with an ice pack, medication and a splint. Following her return home, she required physiotherapy and, in the year following the injury, she claimed that she developed pain in her right shoulder which affected her household and work duties.

At trial, the plaintiff’s husband gave evidence that he had also opened the overhead locker (after his wife had sustained her injury) and stated that it operated in ‘the normal fashion’.^[8] The airline's maintenance department also noted that the aircraft cabin defect log recorded no defects with the overhead locker in question.

The claim was made under the Montreal Convention which has the force of law in Australia pursuant to the Act. Relevantly, Article 17(1) of the Montreal Convention provides:

‘The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.’

The trial judge found that while the overhead locker was likely not defective, it did land on the plaintiff's thumb, causing her immediate pain. He found that the plaintiff had not established that her upper arm and shoulder injury was in any way connected to the accident.

The trial judge held that there was no ‘accident’ within the meaning in the Montreal Convention. For there to have been an accident, it was necessary to identify an event or happening that was external to the passenger which arose from an act or omission, and where the event was unexpected or unusual. The plaintiff's thumb was injured by the locker door dropping in the ‘usual, normal and expected way’.^[9] Accordingly, the plaintiff's claim did not succeed.

Anderson v Network Aviation Pty Ltd

In Anderson v Network Aviation Pty Limited,^[10] Braddock J in the District Court of WA also concluded that the plaintiff, Mr Anderson, had not proven a compensable ‘accident’.

This case concerned a ‘fly in/fly out’ contract bus driver who worked at the Solomon Mine in northern WA. As he had done often before, the bus driver flew from Perth to the Solomon Mine Airport in a Fokker 100 aircraft operated by Network Aviation. Upon arrival at the airport, he was required to disembark down a set of aluminium stairs which had been wheeled to the aircraft. In the course of descending the stairs, the heel of his fairly new work boots allegedly caught ‘somehow on the platform at the top of the stairs’^[11] and Mr Anderson fell forward and slid to the bottom of the stairs where he landed on the tarmac on his left shoulder and head. While he continued to work for the rest of the day, he sought medical treatment on the following day after being sent home from work.

The Court found that the stairs were in good condition at the time of the accident and that there was no evidence of any malfunction or misplacement of the stairs.

Judge Braddock considered the relevant statutory provisions and the relevant case law, including Air France v Saks^[12] and Povey v Qantas Airways Limited.^[13] He also considered the decision of Brannock v Jetstar Airways Pty Limited^[14] in which the Queensland Court of Appeal found that a plaintiff, who also fell on a set of stairs, had not suffered an ‘accident’, being an unexpected or unusual happening external to the passenger.

While Mr Anderson's injury was unfortunate, the significant factor was that there was nothing external to him which brought about the occurrence of the injury^[15] and thus compensation was denied.

This decision can be contrasted on its facts with the UK decision in Labbadia v Alitalia.^[16] In that case, the airline was held to be liable to compensate a plaintiff who fell headfirst down aircraft stairs that were covered with snow. While the presence of snow and ice was not an ‘event’ in and of itself, the airline’s decision to use steps without a canopy in the circumstances constituted a compensable event. Deputy High Court Judge Obi held that ‘[t]he Claimant's fall was directly caused by acts and omissions by airport personnel which was an unusual or unexpected event and external to him’.^[17]

COURT OF JUSTICE OF THE EUROPEAN UNION

Recently, the Court of Justice of the European Union (CJEU) clarified the scope of what constitutes an ‘accident’ and gives rise to liability under Article 17(1) of the Montreal Convention. An airline will be liable for harm caused to a passenger by accidents which have occurred onboard the aircraft, and there is no requirement to establish that an aviation-related hazard contributed to the accident.

In the case of GN v ZU,^[18] a six-year-old girl was scalded by a hot cup of coffee when it slipped off a tray table ‘for unknown reasons’^[19] during a flight from Majorca to Vienna. A claim for compensation of EUR 8,500 was filed against the defendant airline, Niki Luftfahrt.

The airline contended that no accident had occurred because this concept ‘requires the materialisation of a hazard typically associated with aviation’^[20] and no sudden or unexpected event had occurred. It could not be established whether the cup slipped as a result of a defect of the tray table or the vibration of the aircraft.

An appeal was brought in the Austrian Supreme Court on a point of law in relation to what constituted an ‘accident’ and, in turn, the Court asked the CJEU to determine whether the facts in the case constituted an ‘accident’ and triggered liability under Article 17(1). In essence, the question was whether the Court had to examine whether the accident was caused by a typical aviation-related hazard.

In its judgment, the CJEU stated that the Montreal Convention does not define the concept of ‘accident’. For that reason, it must be given its ordinary meaning in the context and with regard to the purpose of the Convention. A key objective of the Montreal Convention is to protect consumer interests and the need for equitable compensation, which is explicated in the third paragraph of the preamble of the Convention:

‘Recognising the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’.^[21]

The definition of ‘accident’ offered by the CJEU was ‘an unforeseen, harmful and involuntary event’.^[22] While the Advocate General, in his Opinion, also referred to the requirement that an ‘accident’ must be external to the passenger^[23] (similar to the approach adopted in a number of US and UK decisions), the CJEU made no reference to such a requirement. The most important basis for expanding the ambit of ‘accident’ for the CJEU was not the externality of the events or omissions per se, but the fact that such accidents were within the scope of the scheme itself and would not overburden air carriers. In the scheme, compensation by airlines could not be ‘very heavy’^[24] because they are moderated by the mechanism in the Convention that prevents this (for example, through limits on liability coupled with a threshold of damage after which the carrier can exclude its liability). In short, introducing extra burdens on injured passengers such as a ‘hazard typically involved with aviation’^[25] that is not within the text of the Convention is unnecessary to meet the objectives of the Convention. Thus, the CJEU ruled that an ‘accident’ must be interpreted so that it may cover all situations onboard an aircraft in which a passenger suffers bodily injury from ‘an object used when serving’.^[26] There is no requirement for the accident to stem from an aviation-specific hazard.

NOVEL EXTERNAL EVENTS

Transmission of COVID-19 onboard

The decision in GN v ZU confirms that under EU law, airlines remain liable to passengers for accidents occurring onboard an aircraft even when the precise cause of the accident is not attributable to an aviation-associated hazard. There is no reason to argue that an Australian court would take another view. It is against this background that claims involving COVID-19 and other causes linked to the aviation contract should be considered.

This unusual liability regime might trigger the following questions: in light of the pandemic, is contracting COVID-19 on a flight an ‘accident’? Is transmission in any circumstances an accident? Is the imposition of health and safety mitigators over and above the World Health Organisation (WHO) or government health requirements an ‘accident’?

Clearly, if a person was to make a claim relating to potential contraction of COVID-19 on their flight (evidentiary considerations aside), they would need to demonstrate that the transmission of the virus was, essentially, a non-aviation hazard introduced to them on the flight that was unusual, unexpected and external to them. Further, another consideration applies: the injury must not have resulted from an internal reaction to normal conditions of flight.^[27]

Thus in examining situations such as these, one cannot make a general proposition and conclude that liability would or would not attach. The surrounding circumstances make all the difference. For example, if an airline follows all of the WHO and ICAO guidelines on passenger safety made throughout the pandemic such as requiring social distancing on its flights; the mandatory wearing of face masks; and all passengers having to return a negative COVID-19 test before boarding, then the possibility of contracting the virus onboard as an ‘accident’ seems implausible. In contrast, if proper industry precautions are not taken by an airline but individual precautions are demonstrated by a passenger who ultimately contracts the virus, then a potentially better argument might be available.

In summary, however, given the pervasive effects of COVID-19 on communities and industries globally (including on aviation), the prospects of successfully arguing that virus transmission onboard is a compensable form of damage demanding compensation seems highly unlikely. Notwithstanding, airlines may be liable for other damages (for example, for delays and breach of contract) outside of the scope of the Montreal Convention in relation to personal injuries – such that, as always, the common recommendation for travellers is to examine their contracts of carriage closely, and to secure appropriate insurance and seek legal advice if in doubt.

The Qatar incident

What of the exceptionally unusual and unexpected circumstance of passengers being singled out by authorities to be deplaned and then subjected to invasive medical bodily examinations, causing at the very least embarrassment and distress, and at the extreme end of the scale, bodily injury and psychiatric harm?

A group of Australian women were subjected to a compulsory intimate medical examination at Doha Airport on their way through to Sydney on 2 October 2020.^[28] They were escorted by security staff to a non-public lower level of the airport and ushered into waiting ambulances. They were told to remove their underwear and were then subjected to an examination to see if they had just given birth. The searches were carried out immediately after the discovery of a newborn baby in one of the airport’s bathrooms.

While some commentators have suggested potential negligence actions against the airline concerned,^[29] this would be unlikely. First, the carrier liability regime internationally and domestically excludes causes of action sounding in personal injury damages other than those made under the Montreal Convention, with its gatekeeper ‘accident’ hurdle. Second, the invasive searches were conducted by medical authorities (presumably government-owned) in ambulances rather than on the aircraft and thus do not satisfy the temporal location requirements for attaching air carrier liability.

Unquestionably, the acts of the authorities concerned were unconscionable but any compensation is likely to be made through international diplomatic efforts rather than through individual proceedings. The airline concerned would likely argue that its only contribution to the situation was allowing the passengers to be deplaned – even if this crucial step permitted the ensuing harms to occur.

Further, while some early apologies from the Qatar Government were made, it must be considered that in other instances where governments have been at least in part responsible for aviation deaths or injuries to civilians, diplomatic efforts have taken years to resolve the issues in any meaningful way. As such, the prospect of speedy justice for these women seems unlikely. For instance, seven years after the downing of Malaysia Airlines flight MH17 by Russia (according to both criminal and aviation investigation reports) which caused many deaths, no deals have been struck even though the Netherlands and Australia have explicitly blamed Russia for the incident since 2018.^[30]

CONCLUSION

The need to strain the law for issues indicates that perhaps the 22-year-old liability regime culminating in the Montreal Convention needs redrawing to anticipate such contingencies. The examples provided in this article such as the negligent transmission of viruses onboard wherein a liability regime exists to protect passengers, or the inability of the regime to answer claims of injury of passengers at the hands of third parties that have interrupted an aviation contract of carriage, support this position.

Commentators, including this author, have long suggested that the explicit inclusion of psychiatric injuries into the regime (otherwise unchanged) would be a good starting point to secure fair compensation for travellers who have been seriously injured by conditions of air travel,^[31] such as those mentioned above. Airline action and inaction, without question, mediates the passenger experience and to permit a legislative regime to endure this fails to recognise that it diminishes passengers’ rights to the point of embarrassment.

Joseph Wheeler MRAeS is the legal practice director of International Aerospace Law & Policy Group (IALPG), which is based in Brisbane and focuses on aviation claims, pilot administrative disputes, and large-scale aviation economic loss actions locally and globally with a network of expert foreign counsel. PHONE [phone] EMAIL [e-mail].

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^[1] International Civil Aviation Organisation (ICAO), Effects of Novel Coronavirus (COVID‐19) on Civil Aviation: Economic Impact Analysis (Presentation, 10 February 2021) <https://www.icao.int/sustainability/Documents/Covid-19/ICAO_coronavirus_Econ_Impact.pdf>.

^[2] Ibid.

^[3] Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature 12 October 1929, 49 Stat. 3000, TS No. 876[1933] LNTSer 29; , 137 LNTS 11 (entered into force 13 February 1933) (Warsaw Convention).

^[4] Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature 28 September 1955 (entered into force 1 August 1963) (Hague Protocol); Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at the Hague on 28 September 1955, opened for signature 25 September 1975 (entered into force 14 June 1998) (Montreal Protocol No. 4).

^[5] Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, UNTS 2242 (entered into force 4 November 2003) (Montreal Convention).

^[6] See for example, Civil Aviation (Carriers’ Liability) Act 1964 (Qld).

^[7] [2019] NSWDC 715.

^[8] Ibid, [67].

^[9] Ibid, [179].

^[10] [2019] WADC 175 (Anderson).

^[11] Ibid, [3].

^[12] [1985] USSC 43; (1985) 470 US 392.

^[13] [2005] HCA 33.

^[14] [2010] QCA 218; (2010) 273 ALR 391.

^[15] Anderson, above note 10, [52].

^[16] [2019] 2 Lloyd's Rep 273.

^[17] Ibid, [45].

^[18] (Court of Justice of the European Union, C-532/18, 19 December 2019) (CJEU judgment).

^[19] Ibid, [27].

^[20] Ibid, [17].

^[21] Montreal Convention, above note 5, preamble, para 3.

^[22] CJEU judgment, above note 18, [35].

^[23] Opinion of Advocate General, Saugmandsgaard Øe, delivered on 26 September 2019, Case C-532/18, [17].

^[24] CJEU judgment, above note 18, [40].

^[25] Ibid, [28].

^[26] Ibid, [43].

^[27] Olympic Airways v Husain [2004] USSC 15; 540 US 644 (2004).

^[28] L Albeck-Ripka and Y Zhuang, ‘Women on Qatar airways flight are strip-searched, sparking outrage in Australia’, The New York Times, 26 October 2020, <https://www.nytimes.com/2020/10/26/world/australia/qatar-airways-women-strip-search-baby.html>.

^[29] C Wahlquist, ‘Qatar scandal: Do the women subjected to medical examination at Doha airport have any legal options?’, The Guardian, 28 October 2020, <https://www.theguardian.com/australia-news/2020/oct/28/qatar-scandal-do-the-women-subjected-to-medical-examination-at-doha-airport-have-any-legal-options>.

^[30] M Corder, ‘Netherlands, Australia hold Russia liable for downing MH17’, Associated Press, 26 May 2018, <https://apnews.com/article/4b05cd0e43c84e74822ebf1356337cdf>.

^[31] See, for example, I Freckelton, ‘Compensability for PTSD under the Montreal Convention: Psychiatric injury as a bodily injury,’ Psychiatry Psychology and Law, Vol. 22, No. 2, September 2015, 639–48; CH Cheung, ‘An inquiry into the legal considerations for passenger mental injuries in international aviation laws’, International Journal of Education, Culture and Society, Vol. 3, No. 1, April 2018, 19–23.