We are saddened to hear the tragic news of Southwest Airlines Flight 1380’s catastrophic engine failure during a flight from New York to Dallas, killing a mother of two and injuring several passengers. Psychological scarring to passengers following such traumatic events is also inevitable. However, if the accident had been on an Australian domestic flight, what rights would the passengers have?

The aircraft accident

The aircraft accident occurred during a domestic US flight from New York’s La Guardia airport to Dallas when its left engine exploded mid flight. It is reported that the force of the explosion caused the engine cover to be ripped off and shatter the 17th row window. A female passenger seated beside the window was partially sucked out of the aircraft by the subsequent depressurisation of the cabin. The passenger has been named as mother and businesswoman Jennifer Riordan.

Passengers have been praised for heroically pulling Ms Riordan back into the cabin. Unfortunately she suffered fatal injuries.

It is understood that this terrifying ordeal occurred whilst the aircraft was at cruising altitude of approximately 30,000 feet.

Flight 1380 was a Boeing 737 with engines manufactured by CFM International. The aircraft was reportedly last inspected on 15 April 2018, three days before the air disaster, with no problems found.

It is reported that other passengers suffered physical injuries in the aircraft accident. Witnesses have also described panic and uncontrollable crying to local media, with psychological injuries likely to have been suffered amongst the 144 passengers.

Aircraft accident compensation

In Australia passengers who are injured during domestic flights have rights to compensation under Commonwealth legislation called the Civil Aviation (Carriers Liability) Act 1959 and each state’s own corresponding law.

Under this legislation, airlines are liable to pay compensation to passengers injured during flights up to a monetary cap. A passenger does not have to show that the airline was negligent in order to be entitled to compensation. However, the cause of the injury must be an ‘accident’ rather than an ordinary and expected part of air travel.

As well as compensation for injuries, airlines are liable to pay compensation to the families of deceased passengers.

If Southwest Airlines Flight 1380 had been a domestic Australian flight, Ms Riordan’s family and the injured passengers would therefore be compensated by the airline. However, the rights of the other terrified and potentially psychologically injured passengers are not so clear-cut. This is because under s28 of the above legislation, a passenger has to have suffered ‘bodily injury’ in order to receive compensation. The phrase ‘bodily injury’ infers that a passenger has to have suffered a physical rather than psychological injury. The wording was changed from the wider phrase ‘personal injury’ to ‘bodily injury’ in 2013 in order to mirror international air travel conventions such as the Montreal Convention.

The result of this change in Australian legislation is that since 2013 passengers on Australian domestic flights who have suffered psychological injury in an aviation accident have a more difficult task to secure compensation. Whilst the courts have interpreted the words ‘bodily injury’ to include some psychological illnesses if certain conditions are met, notably the Court of Appeal found in the 2016 case of Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438 that Post Traumatic Stress Disorder (PTSD) is not a compensable ‘bodily injury’. Therefore, had Southwest Airlines Flight 1380 occurred in Australia, any passengers who escaped physical injury but were so traumatised that they suffered PTSD would not be eligible for compensation against the airline under the no fault legislation.

A passenger suffering PTSD would instead have to identify a defendant other than the airline (such as the manufacturer of a component of the aircraft) and prove that this defendant was negligent in order to be compensated for their psychological injuries. After experiencing a life-changing trauma such as explosive decompression during a flight, having to overcome these legal hurdles in order to be compensated for losses such as medical expenses and lost earnings is additional stress for innocent victims. This begs the question, were air passengers rights considered when this change was made to Australian legislation?

Stacks Goudkamp cases

Our travel lawyers at Stacks Goudkamp are experienced in bringing compensation claims for physically and psychologically injured aircraft passengers. We understand the complexity of aviation law and take the stress out of compensation claims for our clients.

Our experienced team have successfully gained compensation for passengers of both domestic and international flights. This includes passengers who have been injured during the process of boarding aircraft, such as climbing external steps to an aircraft, on shuttle buses to aircraft and whilst boarding at the gate.

Our travel lawyers are also experienced in acting for passengers injured in air crashes and their families. For example, Stacks Goudkamp is currently acting for two passengers injured in the Hamilton Island seaplane crash of 28 January 2018 where court proceedings are underway in the District Court of New South Wales.

The laws that apply to passengers injured during air travel are complex. If you have been injured in an aircraft accident, you should seek expert advice from a lawyer who specialises in this area of law. Short deadlines can apply so it is important to act quickly. For a confidential discussion about your potential claim, contact our experienced and compassionate travel lawyers on 1800 46 2359 or make an online enquiry.

Written by Victoria Roy.

Victoria Roy is Practice Group Leader of Stacks Goudkamp’s Travel Law Department. Victoria has successfully acted for injured passengers in cases against Australian and foreign airlines. Victoria has also spoken about aviation law at conferences such as Aeropodium / IAL&PG Asia Pacific Aviation Liability Conference 2016 and the Law Society Specialist Accreditation Conference 2016.