While personal injury law is never black and white, knowing who to sue is often fairly clear-cut. For example, if its an injury from a motor vehicle accident, you sue the negligent drivers insurer. If its a slip and fall in a store, you sue the negligent store.
But who do you hit up for compensation if youre in transit? If youre injured while onboard an international flight? Does the amount you can claim depend on which bit of sky youre in?
In Australia the Civil Aviation (Carriers Liability) Act has the rules. Weve signed the Warsaw Convention of 1929 (and the since-updated Montreal version) which sets out the legal framework for assessing an airlines liability in passenger accidents, and in baggage and cargo claims (eg. lost luggage). It includes injuries that happen while getting on or off the plane. Countries that have signed the Convention basically agree to the same uniform approach to dealing with these types of claims.
Theres a pool of money in an international currency known as Special Drawing Rights (SDRs), which accident victims can access if they meet the conditions laid out in the Warsaw Convention.
Under the Convention, passengers can claim compensation for death or injury without having to prove who is negligent, up to a certain limit. Thats especially helpful for major air disasters when determining liability can take many months or years. Under the Conventions no-fault threshold, the cap on personal injury damages is 260,000 SDR. (Based on market rates, it translates to approximately AU $397,000 as of Dec 2011). But this can sometimes be limited by terms and conditions in the ticket agreement (common in flights to/from the USA).
The Warsaw Convention only applies to physical injuries, not psychological – things like turbulence injuries, or tripping over something in the aisle. Suffering shock or distress after enduring a crash landing wouldnt be covered.
And if you contributed to your injury (eg. you were drunk or didnt obey flight crew instructions), the Court would reduce your compensation accordingly.
Of course, if youre flying from a country that has signed the Convention, to a country that hasnt, it gets tricky. It depends where the injury occurred. While you can commence legal proceedings in either country (ie. where you embarked or disembarked), often the laws of the non-signatory country are applied when the Warsaw Convention cant be. This can affect the amount you receive in damages.
Many countries have signed, including the UK, USA, New Zealand, Japan, China and most of Europe.
So when you embark on your next overseas flight, be reassured that if youre injured you can probably access compensation (at least some) under a uniform system. But you must claim within two years of your injury.
