With the cost of airfares and the number of passengers sky-high, the festive season can be one of the most arduous times to travel. Over the festive period, millions of passengers will move through domestic and international airports in Australia. In some unfortunate scenarios, the combination of large slow-moving crowds, confined spaces, luggage and the dread joy of visiting the in-laws, can culminate in an accident necessitating a call to a personal injury lawyer.
In this context, civil aviation claims come with a range of nuances that can trip up even the most experienced practitioner. This article will outline the scope of civil aviation personal injury claims with reference to domestic and international case law developments over recent decades.
Key concepts
Following the First World War and due to advancements in aircraft technology, concern grew among the international community as to the lack of legal uniformity in the aviation sector. Ultimately, this led to the creation of an international convention on the carriage of passengers and goods – the Convention for the Unification of Certain Rules Relating to International Carriage by Air – known as the Warsaw Convention.
Originally signed in 1929, and amended a number of times since, the Warsaw Convention establishes a regime which regulates carriers’ liability for the international carriage of persons, luggage, or goods, performed by aircraft for reward. The regime imposes strict liability on the air carrier for bodily injury or the death of a passenger. A claim must be brought within two years of the date of arrival of the aircraft, the date when it ought to have arrived or the date when the carriage stopped, whichever is earlier. There is an upward limit on the monetary amount of the carrier’s liability unless the plaintiff can demonstrate legal fault – at present that limit is $925,000.00.[i]
In Australia, the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the Commonwealth Act) gives force to the Warsaw Convention and its subsequent amending conventions and protocols, including, most recently, the 1999 Montreal Convention. The Commonwealth Act applies to travel to and from Australia and interstate travel, whereas each state across Australia has its own uniform regime which applies to intrastate travel.[ii]
Section 28 of the Commonwealth Act mirrors Art 17 of the Warsaw Convention and provides a plaintiff with a right of action to recover damages for personal injury:
‘… the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.’
Against that background, the critical elements are – there was an accident, taking place on board the aircraft or in the course of embarking or disembarking, causing death or bodily injury to a passenger. Given that the federal and state regime in Australia flows from international agreements, interpretation of those elements by international courts is particularly persuasive in the domestic context.
What is an accident?
In Air France v Saks (Saks),[iii] the plaintiff was a passenger on an Air France jetliner as it flew from Paris to Los Angeles. On descent, the plaintiff felt severe pressure and pain in her left ear. Five days later, she consulted a doctor and was informed that she had become permanently deaf in her left ear. The plaintiff filed suit against Air France alleging that her hearing loss had been caused by negligent maintenance and operation of the aircraft’s pressurisation system.
After extensive discovery, all available evidence indicated that the aircraft’s pressurisation system had operated in the usual manner throughout the duration of the 12-hour flight. In dismissing the plaintiff’s claim, the Supreme Court of the United States of America determined that a plaintiff in a civil aviation claim must demonstrate that:
- an event either on board the aircraft or during embarkation or disembarkation caused the injury,
- the event was external to the passenger, and
- the event was unusual or unexpected.
Where an injury results from a passenger’s own internal reaction to the usual, normal and expected operation of an aircraft, an accident within the meaning of Art 17 of the Warsaw Convention has not occurred.[iv]
In Olympic Airways v Husain,[v] that interpretation of Art 17 was affirmed. The case concerned the death of a passenger on board an aircraft as a result of exposure to cigarette smoke. Despite multiple requests by the passenger, a flight attendant had refused to move him to a seat further away from those who were smoking on board. The Court held that the refusal to assist the passenger was external to him, unusual and unexpected and as such constituted an ‘accident’ under Art 17.
After analysing the position in Saks, the High Court of Australia agreed that an ‘accident’ may happen because of an act, a series of acts, an omission, a series of omissions, or a combination of those factors. The case before the High Court was Povey v Qantas Airways Limited,[vi] involving a passenger who had developed deep vein thrombosis on a long-haul flight. It was alleged that the thrombosis had been caused by the physical conditions onboard the flight. Those physical conditions included cramped seating, the discouraging of movement about the cabin, and the offering of alcohol, tea and coffee. There was a further allegation as to the carrier’s failure to warn of the risk of developing deep vein thrombosis.
Their Honours emphasised that:
‘It by no means follows, however, that asking whether an event was brought about by an act or omission and then classifying the act or omission as “accidental” as distinct from “intentional” is the same as asking whether there has been an “accident” on board an aircraft. In particular, recognising the difficulties in seeking to classify causes of an accident as acts or omissions, or as intended or unintended acts or omissions, does not deny the need, under Art 17, to identify that an accident has occurred on board or in the course of the operations of embarking or disembarking[vii] … There is no basis for introducing, for example, concepts of the common law of negligence to the construction or application of an international treaty’.[viii]
It was found that the allegation as to a failure to warn was unhelpful as it suggested that the only point at which the warning could have or should have been given was at the point the passenger was on board the aircraft – rather than at some much earlier time, such as when the airline ticket was booked. Further, that allegation diverted attention away from what had actually occurred on board. It was considered that the physical conditions onboard the aircraft alleged to have caused the deep vein thrombosis were not unusual or unexpected in any respect. Given that nothing unexpected or unusual had occurred onboard, it was held that an ‘accident’ within the meaning of Art 17 did not occur.
Further Australian decisions include:
- In Malaysian Airline Systems Berhad v Krum,[ix] where the onset of sciatica caused by a defective seat onboard an aircraft was accepted as an unusual or unexpected event.
- In Paterson v Air Link Pty Ltd,[x] a flight attendant had placed a lightweight aluminum step below the steps leading from the plane to the tarmac. As the passenger placed his foot onto the aluminum step, it moved, and the passenger fell to the ground sustaining knee injuries. The New South Wales Court of Appeal held that while the cause of the movement was unclear, the passenger had alighted from the aircraft in the ordinary way and the sudden movement of the step was physically external to him, unusual and unexpected.
- In Brannock v Jetstar Airways Pty Ltd,[xi]the Queensland Court of Appeal dismissed a claim arising from an elderly passenger’s fall down a flight of stairs leading away from the terminal and towards the tarmac for boarding. It was found that rather than an event external to the passenger occurring, the stairs were an ordinary feature of embarkation, and it was the passenger’s own approach to using the stairs that was unusual.
- In Di Falco v Emirates (No 2),[xii] a passenger fainted and fractured her right ankle while on board a flight from Melbourne to Dubai. She alleged that the reason for her faint was that she had asked the flight attendants for water but water had not been provided. It was found that the way in which the requests for water were dealt with were in accordance with the usual practice of attendants and did not offend any policy in that regard. As such, nothing unusual or unexpected had occurred.
What is a bodily injury?
In Grueff v Virgin Australia Airlines Pty Ltd (Grueff),[xiii] the Federal Court referred to a speech provided by Lord Hobhouse of Woodborough as providing helpful guidance on the meaning of the expression ‘bodily injury’.[xiv] His Lordship said:
‘The composite expression bodily injury involves a combination of two elements. The word injury in the context of personal injury involves a condition which departs from the normal, which is not a mere transitory discomfort or inconvenience and which, whilst not permanent or incurable, has, in conjunction with its degree of seriousness, a sufficient duration … The word bodily is simpler. It means pertaining to the body. There must be an injury to the body. It is, as it must be, accepted that the brain, the central nervous system and the glands which secrete the hormones which enable the brain and the rest of the central nervous system to operate are all integral parts of the body just as much as are the toes, heart, stomach and liver.’[xv]
In Grueff, two passengers were provided with perfumed water by flight attendants by mistake. After ingesting the water, the passengers experienced a range of medical symptoms including sore throats, tiredness, diarrhea and weight loss. After a few weeks, both returned to full health but experienced food sensitivities for several months.
There was no dispute that the provision of the perfumed water constituted an ‘accident’ within the meaning of Art 17 – the issue was whether a ‘bodily injury’ had been suffered. The precise nature of the medical condition as well as its causation was left unclear on the evidence. It was considered significant that the alleged injury involved symptoms which had not lasted long. Such conditions were comparable to a person having a cold which, as on Lord Hobhouse’s analysis, could not be described as being a ‘bodily injury’. Against that reasoning, it was found that no ‘bodily injury’ had been suffered and the claim was dismissed.
At the present time, a passenger’s ability to recover damages for psychiatric injury is extremely limited. In Kotsambasis v Singapore Airlines[xvi] and American Airlines v Georgopolous,[xvii] the New South Wales Court of Appeal followed international approaches by interpreting ‘bodily injury’ so as to exclude any claim for pure mental harm.[xviii] Secondary psychiatric injuries arising out of bodily injuries ought to be compensable, however. Section 28 of the Commonwealth Act also regulates nervous shock claims resulting from the death of a passenger.
Given that the carrier’s liability regime regulates liability as between a passenger and a carrier, it’s arguable that nervous shock as a result of injury to a passenger remains compensable in a claim in tort brought by a non-passenger.[xix]
What does ‘any of the operations of embarking or disembarking’ mean?
Identifying where an accident occurs on board an aircraft is likely be straightforward. What is less straightforward is where an event is considered to have occurred ‘in the course of any of the operations of embarking or disembarking’. There is no better example of that than imagining a flight arriving in Dubai where passengers walk from the aircraft, along an aerobridge, across the tarmac, climb into a shuttle bus, are driven to another aerobridge, walk along that aerobridge, board an automated people mover and then finally reach the terminal and board their connecting flight.
In Phillips v Air New Zealand (Phillips),[xx] a wheelchair-bound passenger was being transported to the departure gates on an escalator. Her wheelchair was being pushed by a person contracted by the carrier. The wheelchair fell back a couple of steps causing a whiplash injury to the passenger. For an accident to have occurred in any of the operations of embarking, Morison J considered that the following must be established:
- that the accident to the passenger was related to a specific flight, and
- that the accident happened while the latter was actually entering or about to enter the aircraft, or
- if it happened in the terminal building or otherwise on the airport premises, that the location of the accident was a place where the injured party was obliged to be in the process of embarkation.
In Phillips, it was found that as the airline had directed passengers to move to the departure gates, and the accident had occurred in doing so, it had occurred in the process of embarkation. Further, Morison J considered that:
‘If a passenger is required to take a particular step or go to a particular place for boarding then he or she is engaged in a process of embarkation. That means, I think, that during the many minutes a passenger spends in the public or private lounges or goes shopping or eats or drinks in restaurants or cafes, he or she could not be said to be in the process of embarkation. At this stage the passenger is waiting, more or less reluctantly. But he or she may have already been through a process of embarkation (e.g. security, boarding card check and passport control) and will inevitably have to go through other such processes, such as going to the gate and getting on the aircraft. The process of embarkation does not have to be a continuous one.’[xxi]
A slightly different approach was taken in Fedelich v American Airlines (Fedelich),[xxii] where the United States District Court considered three factors to be of relevance in determining whether an accident had occurred during the operations of disembarking:
- the nature of the passenger’s activity at the time of the injury,
- where the injury occurred, and
- the extent to which the carrier was exercising control over the passenger at the time of the injury.
Fedelich concerned a passenger who had fallen and sustained injury at the luggage carousel. Ultimately, the Court found that collecting luggage was not an essential activity required for disembarkation, and as she was able to move around the area at the time, she was not under the direction and control of the carrier, so the accident was not within the operations of disembarking.
Exclusivity
Sections 9D and 9E of the Commonwealth Act make it clear that the legislation substitutes any civil liability of a carrier to a passenger under any other law. As such, where the death or injury of a passenger occurs in circumstances captured by the Commonwealth Act or its state equivalent, no other claim in tort or contract can be made – the Commonwealth Act or its state equivalent provides the exclusive remedy.
It’s important to keep in mind, however, that as the Commonwealth Act or its state equivalent specifically regulates the liability of a carrier to a passenger, a passenger is not prevented from pursuing an action against a third party. In a similar vein, a person who is not a passenger is not prevented from pursuing an action against a carrier in tort.
Key takeaways
- Limitation period:
The limitation period for the bringing of an action is only two years. Time starts running from the date of arrival of the aircraft, the date when it ought to have arrived or the date when the carriage stopped, whichever is earlier. If proceedings are not commenced within two years, a passenger’s claim is extinguished and as discussed above there is no ability to make any separate claim in tort or in contract.
- Procedural issues:
For example, in the Queensland context, a plaintiff is not required to comply with the pre-proceedings regime under the Personal Injuries Proceedings Act 2002 before commencing a proceeding.[xxiii]
- Has there been an ‘accident’?
There may be a chain of events that lead to an injury. It is likely to be sufficient if some link in the chain of events was an unexpected or unusual event external to the passenger. Physical changes in the body during ordinary operation of aircraft will be insufficient.
- Has there been a ‘bodily injury’?
Psychological changes will need to be attributable to a physiological ‘injury’ to be compensable.
- Was the injury suffered onboard or in the operation of embarking or disembarking?
A thorough examination as to the passenger’s movements and the reasons for those movements will be required. Is it the case that the passenger is directed or required to move through a particular area in order to board or to leave the aircraft?
Claims for damages in aviation accidents may not be an everyday part of practice for compensation lawyers however, traps lie waiting for practitioners who are not alive to their nuances.
Keep in mind the key issues.
This article first appeared in Precedent, the journal of the Australian Lawyers Alliance (ALA) issue 186, published in February 2025 (Sydney, Australia, ISSN 1449-7719).
[i] Civil Aviation (Carriers’ Liability) Regulations 2019 (Cth).
[ii] Civil Aviation (Carriers’ Liability) Act 1967 (NSW); Civil Aviation (Carriers’ Liability) Act 1964 (Qld); Civil Aviation (Carriers’ Liability) Act 1962 (SA); Civil Aviation (Carriers’ Liability) Act 1963 (Tas); Civil Aviation (Carriers’ Liability) Act 1961 (Vic); Civil Aviation (Carriers’ Liability) Act 1961 (WA).
[iii] 470 US 392 (1985).
[v] 540 US 644 (2004).
[vi] (2005) 223 CLR 189; [2005] HCA 33.
[vii] Ibid, [35].
[viii] Ibid, [41].
[ix] [2005] VSCA 232.
[x] [2008] NSWDC 241.
[xi] [2010] QCA 218.
[xii] [2019] VSC 654.
[xiii] [2021] FCA 501.
[xiv] In Morris v KLM Royal Dutch Airlines [2002] UKHL 7; 2 AC 628.
[xv] Ibid, [140]–[141].
[xvi] (1997) NSWLR 110.
[xvii] [No 2] [1998] NSWCA 273.
[xviii] See Eastern Airlines v Floyd 499 US 530 (1991).
[xix] See South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107.
[xx] [2002] 2 Lloyd’s Rep 408.
[xxi] Ibid.
[xxii] 724 F Spp 2d 274, 284 (DPR 2010).
[xxiii] See Walker-Eyre v Emirates [2012] QDC 364.
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