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24 June 2015
On April 27 2015 the Tel Aviv Magistrate Court ordered Continental Airlines to compensate Sue Ellen YaFee for bodily injuries sustained while on board one of its aircraft.(1)
On August 11 2007 YaFee flew from Israel to Newark, United States. While the aircraft was still on the runway in Tel Aviv, the passengers were asked to sit in their seats. The passenger sitting next to YaFee went to the toilet and when he returned the plaintiff had to get up, but lost her balance and fell as the aircraft had started to move. YaFee suffered injuries to her knee and argued that the accident occurred due to the fact that the aircraft had begun to move "suddenly and with great power".(2)
There was no doubt that the Warsaw Convention applied to this case. Article 17 of the convention imposes almost strict liability on the carrier. However, the carrier can prove that it was not negligent or that the passenger was responsible for the accident. The burden of proof lies with the carrier.
The court stated that Article 17 of the convention was drafted in a broad manner to ensure compensation for events directly connected to damage caused by the aircraft or any of its operators. Nevertheless, it is still required to prove that the damage was caused due to an accident. This term being included in an international convention may be interpreted by the courts in accordance with foreign judgments.
The court referred to a US judgment,(3) in which the term 'accident' was interpreted as "an unusual or unexpected event that is external to the passenger", and to a UK judgment,(4) where it was defined as "a distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger".
The court also referred to an Israeli Supreme Court judgment,(5) in which the court clarified that the term accident should be interpreted in a broad manner:
"It is appropriate to give the term 'accident' included in Article 17 of the Convention, a wider interpretation, as it enables reference to all those cases existing in the widening and varied puzzle of the International Carriage by Air, and as it allows the proper and correct placing of the cases in the above conceptual frame which establishes uniformity in the implementation of the Conventions' provision to all the Convention's parties".
After hearing the evidence, the court held that in YaFee the accident occurred due to an unexpected event external to the plaintiff, and therefore the plaintiff lifts the burden to prove that it was compensable damage as defined in Article 17 of the convention.
The carrier argued that the plaintiff's version as to the sudden and forceful movement of the aircraft was not reported by her in any previous complaint that she had made after landing and hence should be declined. The court decided to accept the plaintiff's version as reliable.
The court also rejected the defendant's argument – based on Barclay – that there was no external interference connected to the plaintiff's fall. The court held that, in contrast to Barclay, there was a movement of the aircraft and that the carrier did not implement the pushback procedures or ensure that the passengers were seated. The court examined the defendant's possible defence (ie, absence of negligence and contributory negligence on the part of the plaintiff).
Absence of negligence
The court rejected this argument and stated that not only was it proven that the carrier had not ensured that the passengers were seated prior to the airplane's movement, the defendant did not:
The court also rejected this argument and stated that if the plaintiff had initiated her decision to stand up, contributory negligence may have been attributed. However, in this case, the plaintiff had stood up in order to clear the way for another passenger.
The court accepted the claim and ordered Continental to pay YaFee a total amount of IS122,238 (approximately $32,000) for her damages (ie, future loss of earnings, third-party assistance, travel expenses and pain and suffering).
For further information on this topic please contact Peggy Sharon or Keren Marco at Levitan, Sharon & Co by telephone (+972 3 688 6768) or email (email@example.com or firstname.lastname@example.org). The Levitan, Sharon & Co website can be accessed at www.israelinsurancelaw.com.
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