The concept of Accidents, Investigations and Liability in Air and Space Law

 

The Concept of Accidents, Investigations and Liability in Air and Space Law

Generally one has to appreciate the international legal framework governing the Aviation Law with regards to accidents and investigations:that is the 1994 Chicago Convention on International Civil Aviation and the Warsaw Convention for the Unification of  Certain Rules for International Carriage By Air.This blog seeks to provide an overall understanding of the issues below ;-

Questions

Q.1 What is contemplated by the term “accident” and “investigation”?

Q.2 What  is meant by “death”and  “bodily injury” and what “damages” are recoverable under these Conventions?
Q.3 Why investigations are carried out?

ACCIDENTS

Concept of Liability

The Warsaw Convention was the first International Convention pertaining to the  concept of Liability in the International Air Carriage. As stated under Article 17 of the Warsaw Convention, it provides that;

The carrier shall be 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 to 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. Domestically Section 2 of the Kenya Civil Aviation Act, also acknowledges the same word definition.

Aircrafts may sustain damage out of structural strength failure, mistakes associated by voluntary acts , failure to act by administrators or officers and other failures, structures, deficient maintenance, hazardous environment, weather, volcanic ash, birds, air traffic management errors or combination of the  above largely are the components of the rare air accidents we face today.

 

 

The United Kingdom, case of re Deep Vein Thrombosis and Air Travel Group House of Lords Justice Saks, defined the word “accident” in the context of Article 17 as an “unexpected or unusual event or happening that is external to the passenger." The question of what constitutes accidents, can be determined by the following indicators:

1. Death

2. A person is fatally or seriously injured

 

• Accidents distinguished from incidents.

Accidents has been distinguished from an incident, By Incidents they are just mere occurrences, that are associated with the operation of an aircraft, that affect or rather could affect the safety of operation example is a falling object from the aircraft to the ground.

•  Physiological harm/emotional distress

As mentioned above on the definition of accident, there lies an exception as to whether physiological harm or rather emotional damage constitute the criteria established under Article 17. The issue of whether emotional damages are recoverable has long being a controversial discussion. The jurisprudence on this issue reflects several major concerns: 

1. That emotional harm can be feigned, or imagined.

2. Emotional damages are difficult to measure.

3. Unconstrained liability could impede the aviation industry and economic growth in terms of award of measures.

Early years there was no award was allowed for emotional harm. Though a rule were crafted for recovery of physiological damage. The “thin skull” rule, which allowing recovery for unforeseeable physical harm.

The “impact rule,” where a plaintiff was prohibited from recovering for emotional damages, when they  had suffered an actual impact. Gradually, some courts opted for a “zone of danger rule,” whereby a plaintiff could recover for emotional trauma where plaintiff was not actually injured, but nearly was.

Picture a scenario where large number of claims filed in court for action over their feelings and imaginations where there were no actual Injuries that occurred? This will not appear to be morally justifiable position.   I choose to look back on the “impact rule” that solely relies on that there should be an actual impact with physical injury. 

The legal debate asserting this topic to some and economic degree, it will hinder the airline economic potentials growth and in return pause economic loses as more air customers will merely seek for compensation and everyone will find a reason and despise the services rendered.  

I cannot dispute the fact of the existence of nervous shock, physiatry injury may exist. Certain claims may qualify, others may fail. However, there is no tools nor a formula to measure the magnitude of emotional injury and we must agree perhaps the proximity of relationship with the victim and the cause.  

At times such emotional or physiological harm may impose a historic impact. Ultimately, I agree that such claims should be limited to avoid judges having a rush of claims.Henceforth I leave it at the discretion of the courts to determine.

Case studies

I. Death  

Ethiopian Airline Flight 302 

In 10th March 2020, A Boeing 737 MAX 81Q, which was bound to arrive in Nairobi Kenya crashed near Bishoftu in Ethiopia, shortly after taking off from Addis Ababa Bole International Airport, due to a potential design flaw 157 people perished. The air carrier Ethiopian Air accepted the Liability. Boeing Co  paid the families  $144,500 each.

Birman Bangladesh Airline Flight 147 Boeing.  

Facts-In February 24th 2020, a Boeing was flying from Bangladesh to Dubai and underwent an attempted hijacking and makes an emergency landing at Shar Amarant Airport in Chittagong. All passengers are safely evacuated and the perpetrator was shot dead by Bangladesh special forces. 

Holding; Since there was no bodily harm or death by any of the passengers notwithstanding the emotional harm they encounter, it is positioned that no one in the air carrier cannot constitute any legal action, since the reasonable grounds will remain null and void.

     II. Bodily Injury 

Brief facts: In 2018, a 13 year child sustained second degree burn injury to his right thigh and abdomen from hot tea served by Kenya Airways cabin crew during the flight from Nairobi to Johannesburg while there was turbulence. When the event happened, they were not very efficient in seeing whether he was well. Question of Law: Whether the occurrence constituted an accident?

Holding: The air carrier accepted liability with lieu to Article 17 and the matter was forwarded to  insurance department for action.

In Kris v.s Lufthansa German Airlines, 

Facts: A passenger or board in a transatlantic flight from Miami to Frankfurt, suffered a heart attack on  board and brought suit against Lufthansa for aggravating the damage to his heart by not landing the plane, so that he could go to a hospital, before its scheduled arrival in Frankfurt. 

Holding: The U.S. Court of Appeals  stated that when you closely look to the  factual description of the aggravating event,In this case that is the continued movement of the flight to its scheduled point of arrival compels  a conclusion that the aggravation injury was not caused by an unusual or unexpected  happening that is external to the plaintiff .” and thus never constitute an accident within the meaning of the Warsaw Convention.

Air France v. Saks,  

Facts:A passenger suffered deafness as a result of a routine depressurization during landing. 

Holding:The U.S. Supreme Court denied claim and  found that injury to her inner ear was caused by sinus problems which  internal to her rather than by anything unusual about the flight.

According to Justice Connor, an “accident” under Article 17 “arises only if a passenger‟s injury is caused by an unexpected or unusual event or happening that is external to the passenger. 

From the definition of aircraft should be flexibly applied “after-assessment” of all circumstances surrounding a passenger's injuries. The  plaintiff's injuries must be “external to the passenger” and “internal reaction” in normal flight operations. The difference between an accident and a serious incident will only rely only in the result.

A serious injury  which is sustained by a person in an accident needs to meet the following threshold ; Hospitalization for more than 48 Hours, results showing a fracture of any bone, involves second or third degrees burns or burns affecting 5% of the body’s formation, involves lacerations of severe hemorrhage nerve, muscle or tendon damage.

INVESTIGATIONS

The general rule of investigation in an accident or incident is for the prevention of accidents and incidents; rather, it is not the purpose of an investigation to assign blame or liability to the carriers. As provided under Article 26 of the Chicago Convention of Civil Aviation (1994)

An investigation is a process conducted for the purpose of accident prevention which includes the gathering and analysis of information, the drawing of conclusions, including the determination of causes and, when appropriate, the making of safety recommendations

Advantages of Investigations 

• Making Safety recommendations or improvements 

Generally safety recommendation are issued  in in order to address a specific issue identified during investigation or research and specify how to correct the situation to avoid or minimize recurrence. 

Recommendation structured should be immediate, long term, follow up and review.

Case Study;

Kenya Aiways (KQ Flight 507) crashed on 5th May 2017 immediately after take-off from Abijan to Douala then to Nairobi. The Cameroon Civil Authority released its final report of the crash on 28 April 2010. The investigation found that the aircraft departed without clearance from air traffic control and that loss of control of the aircraft was the result of spatial disorientation and lack of crew coordination. In an out-of-court settlement, KQ compensated the families of the victims with an estimated 1.9 million Kenyan shillings each.

• Identify and eliminate hazard and expose deficiencies in the process  

To effectively discover the hazards that led to a particular accident or incident and ,it is important to investigate so as to implement mitigations which will aim to prevent their recurrence in a future accident or incident.

• Reduce injury and compensation cost

Once  investigations are carried out,and air safety is guaranteed and the air consumers are contented with the services and experience,then cases in court demanding for awards of general and special damages will be minimised.This will in turn pave way for the economic profit and share holdings to rise.

• To enhance public confidence and safety in air transportation. 

The relationship and reputation between the customer and the airline must be maintained less customers will seek to move and select another air carriage that meets their expected outcomes,The negative outcome will be the less  rating.Consumer protection is paramount and will be guaranteed with the air safety.