Strict Liability: Air Transport Claims

Robert Higgins   -   February 2003

The concept of strict liability is poorly understood.  It can mean anything from absolute liability to little more than a reversed burden of proof.  In some instances where strict liability theoretically applies contributory negligence is also an issue.  In other areas it is not.

One of the more commonly understood instances of strict liability are injuries which occur when a person may be bitten by a dog, where the owner is generally absolutely liable for the injuries sustained and there is no necessity to prove negligence.  Classically strict liability applied in Common Law in Rylands v Fletcher type claims but those claims are always subject to defences and such an action did not equate to absolute liability.  A form of strict liability is also recognised under a number of statutes including the Trade Practices Act.

Under aviation law it is commonly said that strict liability applies in respect of an injury sustained by a passenger.  However when one turns to the Civil Aviation (Carriers Liability) Act, 1959 and the various conventions that are incorporated therein in order to determine the liability of a carrier, the following can be noted:-

·         There are a number of provisions similar to Article 17 of the Warsaw Convention that provides that a carrier is liable for damage sustained in the event of 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.

·         Having read that provision one would be forgiven for thinking that this is clearly an area where strict liability applied and all one needs to do is establish that the Plaintiff was a passenger on the aircraft and suffered injury or death and damages would follow. 

·         However, there are two very important qualifications to strict liability for air travellers.  The first is that under the Warsaw Convention and all the other similar conventions there is a provision along the lines of Article 20 which states that a carrier is not liable if it proves that he and his servants and agents have taken all the necessary measures to avoid the damage or that it was impossible for him or them to take such measures.  Thus, strict liability means no more than in effect a reverse onus and once the carrier establishes that they took all necessary measures the Plaintiff may fail unless he or she proves in the normal fashion that the steps taken did not equate to all necessary measures or that it was not impossible to take such measures.

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·         The second qualification is that in the Statute itself and in the Convention it is quite clear that where it can be established that the damage was caused by or contributed to by the negligence of the Plaintiff that would lead to a pro rata discounting of damages.

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