Carrier's Liability to Passengers' injury during Disembarkment - Full Damages Imposed
By Adv. Peggy Sharon and Adv. Keren Marco
Introduction:
In a recent judgment handed down by the Magistrates Court of Tel Aviv, C.F. 45123/08 Rivka Ben Shushan v. Israir Aviation and Tourism Ltd (29.3.11), the Court accepted a bodily injury claim filed by a passenger who was injured when sliding down an evacuation slide which was deployed after smoke was observed in the aircraft after landing. Despite the fact that the Court applied the Warsaw Convention to the flight, the compensation to Plaintiff was not limited according to the provisions of the Convention.
Facts:
On 22nd May 2007, Plaintiff and several of her family members boarded an Israir flight to Berlin. The landing was on time as planned, however, following landing, the flight attendants noticed smoke in the aircraft and the emergency escape slides were deployed. The passengers slid safely from the aircraft, with the exception of Plaintiff, who claimed to have been injured while sliding down. Following an inspection, it transpired that the cause of the malfunction in the aircraft was disintegration of a clip in one of the aircraft's air pipelines.
Applicable Regime:
The Court applied the Warsaw Convention to the flight and referred to article 17 of the Convention which provides as follows:
"The carrier is 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 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."
In view of the above, the Court examined whether the occurrence is considered as an "accidental occurrence", thereby imposing liability on the carrier.
The Parties’ Allegations:
Plaintiff alleged that she was pushed by one of the flight attendants. Alternatively, both the malfunction of the aircraft and the pressure conditions in the aircraft at the time of evacuation established the carrier's liability according to the Convention.
Israir disputed Plaintiff’s argument, denied that Plaintiff was pushed and alleged that the cause of Plaintiff’s injuries was due to the fact that she did not lean on the banister and in any case, the occurrence does not meet the legal definition of “accident”.
As to the issue of causation, Plaintiff alleged that the Court should relate to the whole picture, including the malfunction and the circumstances of the evacuation. The carrier alleged that this issue should be limited only to the circumstances of the evacuation.
The Judgement:
The Court accepted the claim. Based on the evidence presented during the trial, the Court found Plaintiff’s testimony credible and reached the conclusion that Plaintiff was pushed by someone to slide, was healthy prior to the sliding and sustained injury to her hand immediately thereafter. Hence, this was an accident within the scope of the Convention.
The Court stated that there is no doubt that article 17 of the Convention requires “accidental occurrence”. Having said that, the Court opined that the term “accident” has been interpreted broadly according to the changing conditions of modern life, thus referring to previous judgements in which the Court recognized kidnap and/or damage outside the aircraft as “wounding which took place on board the aircraft or in the course of any of the operations of embarking or disembarking”.
In addition, the Court stated that previous judgements recognized pure mental anguish as “any other bodily injury” (AH 36/84 Taychner v. Air France PDI (41)(1)589 and C.F 20/83 Dadun v. Air France PDI (38)(3), 785).
Nevertheless, Plaintiff still has the burden to prove “accidental occurrence”, otherwise the Court would deny the claim (e.g. DVT syndrome) (based on C.M. (Nazareth) 1818/03 EL AL Airlines v. Noam).
The Court also referred to Air France v. Saks, 470 US 392 (1985), which limited the exemption due to a spontaneous factor only to regular conditions of flight, which was not the case in this matter. The irregular conditions of the disembarkment make such damage a foreseeable damage which would impose liability on the carrier also under the General Tort law.
As to the issue of causation, the Court did not accept the carrier’s argument and determined that a factual causation was established between the malfunction in the aircraft, the stressful circumstances of the evacuation and Plaintiff’s injuries.
The Court stated that it did not find a well-founded basis to deny this causal connection and to discharge the carrier from liability.
The Court decided that the carrier was not successful in proving that it took all required measures available in order to prevent the damage (as required in article 20 of the Convention) in order to be exempted from liability.
The Court also did not accept the carrier’s allegation of contributory negligence on the part of Plaintiff in view of the irregular circumstances of the disembarkment.
After examining the parties’ allegations regarding the issue of damage, the Court decided that Plaintiffs’ damages amount to NIS 632,000 (approximately $180,000).
The Court stated that since the carrier did not request to limit the compensation amount based on the provisions of the Convention, there is no dispute which requires the Court’s decision. Therefore, the Court imposed on the carrier Plaintiff’s full damages in the amount of NIS 632,000 plus lawyer’s fees and legal costs.
Conclusion:
This is a Magistrates Court decision hence, non-binding on other Courts and to date, not final, as the carrier is entitled to file an appeal to the District Court.
As it now stands, in this case the Court applied the Convention when dealing with the carrier’s liability on the one hand, but did not limit the amount of compensation on the other hand, due to a failure to expressly raise the argument relating to the limitation of the amounts due under the Convention.
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