July 06 2011
In a March 29 2011 judgment the Tel Aviv Magistrates Court(1) accepted a bodily injury claim filed by a passenger who had been injured when sliding down an evacuation slide that had been deployed after smoke was observed in an aircraft after landing.
Although that the court applied the Warsaw Convention, the compensation to the plaintiff was not limited according to the provisions of the convention.
On May 22 2007 the 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 the 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 the disintegration of a clip in one of the aircraft's air pipelines.
The court applied the Warsaw Convention and referred to Article 17, 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 was considered an 'accidental occurrence', thereby imposing liability on the carrier.
The 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 under the convention.
Israir disputed the plaintiff's argument, denied that the plaintiff was pushed and alleged that the plaintiff's injuries were caused by the fact that she did not lean on the banister. Additionally, it argued that in any case, the occurrence did not meet the legal definition of an 'accident'.
As to the issue of causation, the plaintiff alleged that the court should consider the whole picture, including the malfunction and the circumstances of the evacuation. The carrier alleged that the decision should be limited to the circumstances of the evacuation.
The court accepted the plaintiff's claim.
Based on the evidence presented during the trial, the court found the plaintiff's testimony credible and concluded that the plaintiff had been pushed by someone to slide, had been healthy before sliding and sustained an 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'. However, the court opined that the term 'accident' has been interpreted broadly according to the changing conditions of modern life, thus referring to previous judgments in which the court recognised kidnap 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 judgments recognised pure mental anguish as "any other bodily injury".(2)
Nevertheless, the plaintiff still had the burden to prove 'accidental occurrence'; otherwise, the court would deny the claim (eg, as for deep vein thrombosis syndrome).(3)
The court also referred to Air France v Saks,(4) which limited the exemption due to a spontaneous factor to regular conditions of flight, which was not the case in this matter. The irregular conditions of the disembarkment made such damage a foreseeable damage which would also impose liability on the carrier under general tort law.
When considering 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 the plaintiff's injuries.
The court stated that it could not find a well-founded basis to deny this causal connection and discharge the carrier from liability.
The court decided that the carrier had failed to prove that it took all required measures available in order to prevent the damage (as required under 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 the plaintiff in view of the irregular circumstances of the disembarkment.
After examining the parties' allegations regarding the issue of damages, the court decided that the plaintiff's damages amounted to IS632,000 (approximately $180,000).
The court stated that since the carrier did not request that the compensation amount be limited, based on the provisions of the convention, there was no dispute that required court decision. Therefore, the court imposed on the carrier the plaintiff's full damages, plus lawyers' fees and legal costs.
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, due to a failure expressly to raise the argument relating to the limitation of the amounts due under the convention.
This is a magistrates court decision and as such is non-binding on other courts. Additionally, the decision is not final - the carrier is entitled to appeal before the district court.
For further information on this topic please contact Peggy Sharon or Keren Marco at Levitan, Sharon & Co by telephone (+972 3 688 6768), fax (+972 3 688 6769) or email (email@example.com or firstname.lastname@example.org).
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