At a glance: liability for domestic carriage of passengers in United Kingdom, By Stephenson Harwood LLP
At a glance: liability for domestic carriage of passengers in United Kingdom, By Stephenson Harwood LLP
Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

The liability of UK carriers in passenger cases is governed by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019, which put EC Regulation 2027/97 (as amended) into UK law, and which applies to both international and non-international carriage. Domestic carriage is therefore subject to the liability rules of the Montreal Convention.

Nature of carrier liability

What is the nature of, and what are the conditions for, an air carrier’s liability?

An air carrier’s liability is strict and subject to the conditions set out in article 17.1 of the Montreal Convention, namely that a carrier is liable for damage where a passenger suffers a bodily injury while in the process of embarking or disembarking or on board the aircraft.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

Damages for personal injury or death are unlimited unless the carrier can prove that: (1) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (2) such damage was solely due to the negligence or other wrongful act or omission of a third party. If a carrier is able to prove that it was not negligent or that it did not commit a wrongful act, damages will be subject to a limit of 128,821 special drawing rights (approximately £133,000).

Main defences

What are the main defences available to the air carrier?

The English courts will apply the defences of contributory negligence of a passenger, all reasonable measures and wilful misconduct.

Whether a carrier can rely on the contributory negligence of a passenger depends on the precise facts of a case. The English courts have held that contributory negligence did not feature in a case of injury as a result of turbulence where the passenger did not fasten his seat belt during a flight (Goldman v Thai Airways International Ltd [1981] 170 ER 266).

It is well established by the English courts that ‘all reasonable measures’ should be interpreted as ‘all reasonably necessary measures’; see Chisholm v British European Airways [1963] 1 Lloyd’s Rep 626 and Goldman v Thai Airways International Ltd [1981] 170 ER 266.

The English courts have applied the concept of ‘wilful misconduct’ in an aviation context as requiring either intention or subjective recklessness; see Thomas Cook v Air Malta [1997] 2 Lloyd’s Rep 399 and Rolls-Royce plc v Heavylift-Volga DNEPR Ltd [2000] 1 All ER (Comm) 796.

Damages

Is the air carrier’s liability for damages joint and several?

No.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

The English courts will apply the defence of contributory negligence of a passenger. Whether a carrier can rely on the contributory negligence of a passenger depends on the precise facts of a case. The English courts have held that contributory negligence did not feature in a case of injury as a result of turbulence where the passenger did not fasten his seat belt during a flight (Goldman v Thai Airways International Ltd [1981] 170 ER 266).

Behaviour that will be deemed contributory negligence on the part of a compos mentis adult may not be so regarded for a child or person with reduced mental capacity.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The English courts uphold the Montreal and Warsaw two-year period of limitation, which is absolute and not subject to tolling; see Sidhu v British Airways plc [1995] PIQR P 427 and Phillips v Air New Zealand [2002] 1 All ER (Comm) 801. A claim must be filed and issued at court within that two-year period and thereafter served within either four or six calendar months of issue depending on whether it is to be served within or outside the jurisdiction.



Reference: Stephenson Harwood LLP - Chloe Challinor and Patrick Bettle