How would Australian law deal with a Germanwings-style crash?

Originally posted by Shayne Beckham ↑

Australians want to know their airlines are safe. However, the next best thing is to know their extant loved ones would be compensated should a Germanwings plane crash happen in Australia. It should be stressed this article deals with death as a result of a plane crash, not a survivor’s psychological injuries. Naturally, death and disability cover often comes with super membership and passengers may also be covered by life insurance. However, in terms of airline liability, both Australia and Germany come under a multilateral treaty known as the Montreal Convention (‘The Convention’), which covers compensation to air crash victims.1

The Convention allows crash victims to sue foreign carriers in their principal country of residence, which would be Australia. There is a lost baggage liability of up to AUD$2,015.02 per passenger (as of 27 March 2015), payable within 21 days of the crash, at which point it is legally considered lost.2 Further, under the Convention, the airline has a strict liability for up to $2,015.02 per passenger (as of 27 March 2015). This means the passengers’ surviving relatives do not have to prove airline fault to obtain up to this amount in proven damages.

Above this amount, if it could be proved in court the passengers knew the plane would crash, the cost of the final moments of terror would have to be assessed as pre-death pain and suffering, and it would be the liability of the airline under the Convention. If the pilot had a death wish, all bets would be off with regard to the airline’s limitation of liability, as limitation of liability only applies where the airline has no control over a third party’s action, such as Malaysia Airlines Flight 17 being shot down by a missile over Ukraine in 2014.3

Psychological damage is covered where it is ‘inextricably linked’ to personal injury. Death and disability are lumped together under the Convention and make airlines strictly liable for up to AUD$178,162.29 (as of 27 March 2015) 4 with open liability beyond that amount. However, the value of pre-crash distress linked to the death would likely be assessed in the order of AUD$25,600-$51,200 per person, as under German law, which also conforms to the Convention.5 As a breadwinner passenger, the compensation for death or injury would be equivalent to the loss of wages attributable to the crash over the expected remaining working life of the passenger killed, using actuarial tables. However, anything above the strict liability ceiling already mentioned would require provable fault by the airline.

Though no amount of money can compensate for disability or death, it is at least some consolation to the Aussie airline traveller knowing there is a comprehensive compensation system in place, should the worst happen.

Footnotes

Convention for the Unification of Certain Rules for International Carriage by Air, signed 28 May 1999, 2242 U.N.T.S. 309; S. Treaty Doc No 106-45 (2000). < http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/1.html>.

Article 17.

Article 21.

Ibid.

Simon Shuster, ‘Germanwings Faces Legal Fallout from Plane Crash’, Time (Online), 27 March 2015 < http://time.com/3760210/germanwings-plane-crash-andreas-lubitz-liability/>.

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Did you watch 4 Corners the other night about that air ambulance ditching a few years near Norfolk Island with the victims denied compensation for psychological injuries. Unfortunately our politicians have passed laws in Australia so you can't claim for any mental distress caused by an air accidents so if a Germanwings pilot suicide/murder happened in Australia and you survived goodluck trying to prove that in court.