We all love going on holiday but for some of us flying to our idyllic destination is a part of the process that we would happily do without. The vast majority of flights pass smoothly but accidents do happen from time to time. The Airline Crashes Record Office (ACRO) compiles statistics on aviation accidents and ACRO statistics show that in 2009 there were 122 accidents and 1103 deaths on aircraft (excluding helicopters, balloons and fighter aircraft). Accidents on aircraft can take many forms, ranging from the extreme example of a terrorist attack to the more mundane example of a spilt hot drink.
If a holiday accident happens, whether major or trivial, you do have legal rights. This article will set out your rights and the process involved in making a claim. The focus will be upon international air travel. Types of accident Firstly, it is necessary to distinguish between the different types of aircraft accidents. This is because the type of accident will affect the type of claim that can be made. There are three main types of accidents:
- An accident whilst on a domestic flight
If you were flying internally within the UK you would be able to claim against the airline using UK law. If the flight was booked as part of a package holiday you would also be able to claim against the tour operator.
- An accident on an international flight whilst travelling on a package holiday
If you are travelling on a package holiday you would have the right to claim in contract against the tour operator under the package holiday regulations or against the airline direct.
- An accident on an international flight booked by you but not as part of a package
If this is the case then you must turn to international law.
International law and air travel
If you are travelling internationally then the Montreal Convention on International Carriage by Air 1999 applies. This Convention was implemented into UK law by the Carriage of Air Acts (implementation of the Montreal Convention 1999) Order 2002. The Convention provides that a carrier (airline) is liable for damages if a passenger is injured or killed on board the aircraft in the course of any of the operations of embarking or disembarking. It is not necessary to prove that the accident was caused by the airline’s negligence. This is known as ‘strict liability’, so if an accident occurs you generally do not have to prove that the airline was at fault.
There are limited qualifications to this general principle. Under Article 20 of the Convention, if the airline proves that the damage was caused or contributed to by the negligence of the injured party then they may be fully or partly exonerated from liability.
Under the Convention airlines are strictly liable for proven damages up to 100,000 Special Drawing Rights (a mix of currency values established by the International Monetary Fund). Where damages of more than 100,000 Special Drawing Rights are sought, the airline may avoid liability by proving that the accident which caused the injury or death was not due to their negligence or was attributable to the negligence of a third party.
What is an accident?
This question has been the subject of much debate and the leading case is that of Air France v Saks 474 US 392. In this case the US Supreme Court defined an accident as ‘an unusual and unexpected event or happening external to the passenger’. Examples of unusual and unexpected events could include plane crashes and terrorist attacks. Other slightly less extreme examples could include food poisoning caused by in-flight meals, an object falling onto a passenger from an overhead locker, a spillage of a hot drink or even severe turbulence which causes bodily injury.
The question of what constitutes an accident was considered further in this country by the House of Lords in Deep Vein Thrombosis and Air Travel Group Litigation  UKHL 72. The House of Lords determined whether the condition of Deep Vein Thrombosis could constitute an accident. They decided that it could not as DVT is internal to the affected passenger. It is a condition that sometimes occurs in passengers and could not be classed as an ‘accident’. The House of Lords upheld the reasoning provided by the US Supreme Court in the Air France v. Saks case.
It should also be noted that the law at present seems to suggest that psychological injury without accompanying physical injury will not result in a successful claim (see the House of Lords judgment in King v. Bristow Helicopters Limited  UKHL 7). So, a fear of a terrorist attack or plane crash would not be sufficient
Procedure and Process
A claim made under the Montreal Convention must be brought within 2 years of the accident date. This differs from the 3 year limitation date which applies to the majority of personal injury damages claims in the UK.
As the injured party you have the right to start your claim either in the country where the airline is based, the country where you bought your flight ticket or the country where your flight was due to end.
International travel is defined as any carriage where there is an agreement between the parties that the place of departure and the final destination are in two different states or countries. Not all countries have signed up to the Montreal Convention. So, if you were to fly to a country which had not signed up it is not considered as international travel.
Accident in an airport
In order for an accident to come under the terms of the Convention it has to have happened on board the aircraft or during the process of embarking or disembarking. If an accident happens in the airport itself then it will usually fall outside of the scope of the Convention. You may however still have a right to claim compensation but the claim would need to be pursued other than under the Convention.