Cosgrove Gaynard Solicitors set out what your rights are to take a personal injuries claim if you have been injured in the course of air travel.
What are my rights if I’ve been injured in the course of air travel?
The legal system that governs a claim for compensation for any injuries that you may have suffered whilst travelling by air is much different to the system in place if you have suffered an injury in an accident in Ireland. We have set our below some of the most common questions that people often have in relation to seeking compensation for suffering an injury whilst onboard, or getting on or off of an airplane.
Where are the rules regarding compensation for injuries sustained in air travel set out?
The Montreal Convention 1999 is the international law which has been agreed upon by most countries to provide a worldwide system of rules and standards for air travel, and it has set out 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?
The Montreal Convention allows you to bring a claim in Ireland, for any case relating to damage resulting from the death or injury of a passenger, even if the accident or injury occurred whilst you were travelling to another location, or if you were embarking or disembarking abroad, if you ordinarily live in Ireland. You can also take a claim if you do not live in Ireland, but the accident occurred whilst in Ireland.
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 take a case seeking compensation from the airline company that was operating your flight.
Do I have to show that the airline was at fault to be entitled to compensation?
Usually, you don’t need to prove that the airline was at fault, or that it caused the accident. The Montreal Convention does set out a limit, and if your claim is not worth more than 113,100SDR (which is approximately €140,000) then the airline has no option but 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 (including 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, regardless of the circumstances that may have caused your injuries, and once you were not solely to blame for the incident that caused the injuries themselves.
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 sustained 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.
The airline I was travelling with wasn’t an Irish company. Can I still apply to be paid damages in Ireland?
Article 33 of the Montreal Convention allows you to bring proceedings in Ireland if your principal residence is here, irrespective of where the airline company’s country of establishment is.
Does my case have to go through the Injuries Board?
Cases for compensation under the Montreal Convention are different to “normal” personal injuries cases, in that you do not need to make an application to the Injuries Board, before you can start Court proceedings. This means that your case can get to Court much faster than most personal injuries cases.
Do all types of injuries attract compensation under the Montreal Convention?
The Montreal Convention does differentiate physical injuries, for which compensation is recoverable, and psychological injuries, for which it is not. Essentially if you suffer purely psychological injuries you would not be entitled to compensation under the Convention. 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 a recognised psychiatric illness as a result of the gravity of their physical injuries), previous cases have indicated that it is possible 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 identical to the two-year limit that applies to ‘normal’ personal injuries cases in Ireland. The Montreal Convention says 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, 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 issued Court proceedings 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?
The Montreal Convention allows for compensation to be claimed by passengers who sustained an injury whilst they were either getting on or getting off of the aircraft, and makes the airlines 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 aswell as 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 often open to discussion. 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 a recent case before the Courts, 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 held that even though he had yet to begin to board the plane in the traditional sense, or even before he had handed over his boarding pass, he had begun the boarding process as he was lining up to prepare to doso, by approaching the group of people assembled near the gate.
What do I need to do to claim compensation?
The first thing that you need to do is make sure that you have notified the airline of the incident, and the best way to do this is either bring it to their attention immediately, on board (or whilst getting on or off the plane) but you should also send them an email outlining the circumstances of the accident. An email is good, as it shows that you have made a complaint, and you can keep a paper trail of the complaint.
You should then contact your Solicitor, who will be able to guide you through the process in the easiest and quickest manner possible, seeking to secure for you the best possible outcome in terms of compensation.
You will also have to get a Medical Report from your doctor who treated you at the time, as this will be needed to allow the Court and also us to value your claim.
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 no obligation basis, please do not hesitate to contact us to discuss the case in further detail.
* In contentious litigation, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Check out our new video on setting up a fintech company in Ireland! Do you know what fintech laws you need to abide by? Need a fintech solicitor? Our video has all the fintech answers you need.Text Link
Cosgrove Gaynard Solicitors were delighted to be involved in a recent case for a private client in the High Court, in which we sought a Norwich Pharmacal Order to direct Coinbase Europe Limited to hand over details of an account/account holder who may be connected with stolen bitcoin.Text Link
Awards: Fintech Law firm of the year in Ireland 2022Text Link