What are my rights if I’ve been injured in the course of air travel?

The system that regulates claiming compensation for any injuries sustained while engaged in international air travel differs significantly from that which applies were you to have been injured in an accident which occurred in this country. Here we address some of the most common questions which we find ourselves being asked by people who have been unlucky enough to suffer an injury in the course of flying from one country to another.

Where are the rules regarding compensation for injuries sustained in air travel set out?

The 1999 Montreal Convention (MC99) is the international law which has been agreed upon by most developed countries to provide a uniform, worldwide system of rules and standards for air travel and to set minimum liability limits in the event of the death or injury of passengers in the course of international air travel.

Also, if you were travelling within the European Union when you were injured, Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No 889/2002 provides that all airline operating within the EU must be insured up to a level that is adequate to ensure that all persons entitled to compensation arising out of injury or death receive the full amount to which they are entitled.

I was injured in the course of air travel while I was abroad. Can I still claim compensation in Ireland?

You can. Article 33 of MC99 provides that in any case relating to damage resulting from the death or injury of a passenger, an action may be brought in a number of different locations, one of which is the country in which, at the time of the accident, the passenger has their principal and permanent residence.

This means that even though the accident which caused your injuries may have occurred thousands of miles away from where you live here in Ireland (whether in an airport or on board an aircraft), you will nevertheless be entitled to commence proceedings in this jurisdiction seeking compensation from the airline company that was operating your flight.

The airline I was travelling with wasn’t an Irish company. Can I still apply to be paid damages in Ireland?

Absolutely. Article 33 of MC99 provides that you can elect to bring proceedings in Ireland if your principal residence is here, irrespective of where the airline company’s country of establishment is.

Do I have to show that the airline was at fault to be entitled to compensation?

It depends on how large your claim for compensation is. Article 21 of MC99 provides that if the amount of damages which you are entitled to does not exceed 113,100 SDR (which equates to approximately €140,000) then the airline will be obliged to pay you compensation without you having to show any negligence on their part. In other words, if the value of your claim for compensation (incorporating damages for pain and suffering, expenses for medical treatments, losses of earnings, and other outlays relating to your injuries) doesn’t exceed €140,000 in total, all that you’ll need to prove is that you were injured while in the course of air travel, irrespective of the circumstances giving rise to your injuries.

If the overall value of your claim exceeds €140,000 the airline will be entitled to call upon you to prove that your injuries were caused by negligence or the breach of a statutory duty on the airline’s part. This is the same as what you would face with any other injury which you might have fallen foul of in this country, in which case you’d have to establish not only that you’d been injured, but also that your injuries were caused by the fault of some person before you would be deemed to have a good claim in damages.

Do all types of injuries attract compensation under the Montreal Convention?

MC99 draws a distinction between physical injuries, for which compensation is recoverable, any psychological injuries, for which it is not. Essentially if you suffer purely psychological injuries you would not be entitled to compensation under the Convention. For example, let’s assume that your plane suffered engine failure mid-flight and you genuinely thought you were going to die but the plane ultimately landed safely, leaving you physically unscathed but suffering from post-traumatic stress disorder. You would not be entitled to recover damages under MC99 in that case. However, where physical injuries have been suffered and these, in turn, give rise to psychological injuries (such as, for example, where an accident victim suffers from clinical depression as a result of the gravity of their physical injuries) the cases which have been decided under the Convention would suggest that damages are recoverable for both the physical and psychiatric injuries.

How long do I have to bring a claim for damages?

The time limit is essentially identical to the two-year limit that applies to ‘normal’ personal injuries cases in Ireland. Article 35 of MC99 provides that a passenger’s right to damages for personal injuries shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

This means that in order to ensure that your entitlement to be compensated does not become statute barred, you need to have a properly constituted application for assessment of damages submitted to and acknowledged by the Injuries Board before the second anniversary of the date on which you were injured.

What about if I wasn’t on the flight yet and got injured in the airport while I was attempting to board?

Article 17 (1) of MC99 provides that airlines are liable for damage sustained in case of death or bodily injury of passengers if the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

If you weren’t actually in mid-flight when the accident occurred but were in the course of air travel in the broader sense, whether or not you would be deemed to have been in the course of embarking or disembarking is a question of fact. Many of the cases that have been decided on this point have tended to interpret the expressions of “embarking” and “disembarking” broadly. For example, in Walsh v. Koninklijke Luchtvaart Maatschappij N.V., the court found that a passenger who tripped and fell on a low lying metal bar near the departure gate was “embarking” at the time of his injury. The court explained that although he had yet to surrender his boarding pass, he was taking steps toward doing so by approaching the group of people assembled near the gate.

Am I entitled to receive any advanced payments on account of my damages claim?

Article 28 of MC99 provides that in the case of aircraft accidents resulting in death or injury of passengers, the airline is obliged, if required by its national law, to make advance payments without delay to anyone who is entitled to claim compensation in order to meet their immediate economic needs.

Article 5 (1) of Regulation (EC) No 889/2002 stipulates that airlines shall without delay, and in any event not later than fifteen days after the identity of the person entitled to compensation has been established, make such advance payments as may be required to meet immediate economic needs on a basis proportional to the hardship suffered, and Article 5 (2) places a lower limit of 16,000 SDRs (approximately €20,000) per passenger in the event of death.

Any advance payment which is made by the airline does not constitute recognition of liability and may be offset against any subsequent sums payable if liability is established.

What’s the first step that I have to take to commence my compensation claim?

If there hasn’t already been an incident report form filled out by the airline or airport staff at the time of the accident, you should notify both the airline and the airports that you were travelling to and from that you have been involved in an accident and that you have suffered injuries.

After you’ve done this you should get a medical report from your doctor and submit this to the Injuries Board with the appropriate application form and fee. If your trip was organised by an Irish travel agent and the flight formed part of a package holiday, you may also be entitled to claim directly against them under the Package Holidays and Travel Trade Act, 1995. While the Injuries Board encourages claimants to submit applications without using a solicitor, well over 90% of claimants instruct solicitors on their behalf to ensure that their claim is properly made.

If you’ve been injured during air travel we can help you to secure the compensation which you deserve. If you want to discuss your case on a completely confidential and non-committal basis, please contact us now to receive advice on how to enforce your rights.