Do you remember when flying was actually fun? You could arrive at the gate minutes before departure, you did not have to go through security, and you were served a meal for free.
Flying is not as much fun any more. Lineups can be discouraging, luggage gets lost, food has to be brought on board or purchased, people get bumped from oversold flights, and flights get cancelled if they are not full.
One feature that has not changed is the possibility of a rough flight. The recent decision of the Ontario Superior in a proposed class action called O’Mara v. Air Canada et al. included a fact situation to which we can all relate.
On the evening of January 13, 2011, Air Canada flight 878 took off from Toronto on route to Zurich with 95 passengers on board.
Several hours later, over the Atlantic, a US air force plane flying westbound appeared on flight 878’s navigational display as a traffic alert and collision avoidance system target.
The Captain awoke the First Officer, who had been sleeping, to advise him of this traffic.
Over the next minute or so, the Captain adjusted the map scale on the navigational display to view the traffic alert and collision avoidance system target and occasionally looked out the forward windshield to see if he could see the oncoming aircraft. He had made it clear to the First Officer that the aircraft of concern was flying 1,000 feet below flight 878.
Somehow, notwithstanding this information, the First Officer mistook the planet Venus, visible from the windshield, for an aircraft. Believing that the oncoming aircraft’s position was above and descending towards flight 878, without warning, he forced the control column forward, causing the plane to enter a sudden and steep dive. This actually took flight 878 into the path of the oncoming air force plane.
The Captain had to execute an emergency maneuver to restore the plane to a straight and level path. This entire episode lasted approximate 46 seconds.
The Statement of Claim, issued by one of the passengers as a proposed class action, alleged that the passengers on the plane were “violently shaken and thrown”. It was alleged that many of them were catapulted into the aircraft’s ceiling and interior, and objects were dangerously projected throughout the interior of the plane. It was alleged that the passengers, or many of them, suffered “serious physical and psychological injuries”.
The Claim alleged that for the rest of the flight, which took approximately 3 hours, the passengers remained terrified. They were given no explanation by the flight crew as to what had happened. After the plane landed, an Air Canada spokesperson indicated that the incident had taken place when the plane hit some unexpected turbulence. No other explanation was ever given by Air Canada.
The Transportation and Safety Board of Canada subsequently investigated and published a report identifying the inappropriate actions of the First Officer as the cause of the incident rather than turbulence.
This action was brought in the form of a class action for damages resulting from this incident. The claim was for physical, psychological and emotional injuries as well as punitive damages. The claim for punitive damages arose out of the allegation that Air Canada tried to cover up the cause of the incident.
Air Canada brought a motion to strike out all of the claims other than those for physical injuries.
In Canada, liability of an airline for passenger claims arising out of international flights is governed by an international treaty system. These treaties, or conventions, are incorporated into Canadian law by the federal Carriage by Air Act.
The first treaty was entered into in 1929 in Warsaw, Poland and is typically referred to as the Warsaw Convention. Canada was a signatory to it. A major purpose of the treaty was to regulate the conditions of international air traffic in a uniform way.
The Warsaw Convention was amended a number of times including at Montreal in 1999. At that point, what is referred to as the Montreal Convention was entered into by most of the world’s countries. It became operational in 2003.
Among other things, these conventions address liability of airlines for damages suffered by a passenger arising from death, wounding or other bodily injury. There is no reference in these conventions to emotional and psychological damage, and no allowance for punitive damages. Air Canada’s argument on the motion was that the conventions formed a complete code as to passengers’ rights in circumstances such as those at hand, and given the absence of any allowance for any claim for damages other than for bodily injury, no such damages could be awarded by the court.
The court agreed. Conventions are indeed meant to be a complete code as concerns an airline’s liability for damages, regardless of the source of this liability. All references in the Statement of Claim to psychological and emotional injuries, as well as the claims for punitive damages, were struck out.
So at the end of the day, insult has been added to injury. Not only is flying no longer fun, it is clear that an airline cannot be sued for any emotional distress arising out of an unpleasant flight – even if the unpleasantness was caused by the negligence of airline personnel.