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The Weekly Roundup: The Airy Edition

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“Is the room airy? “asks the hotel guest when registering.” Well, there’s air in it, “replies Basil Fawlty in the spirit of helpfulness we expect from Torquay hoteliers. the same spirit of helpfulness that we offer you a Weekly Roundup devoted to the various difficulties linked to air transport.e June 2021, the European Commission announced that it has decided to refer Slovakia to the Court of Justice of the European Union over its national legislation, which allows passengers to be offered either immediate alternative package holidays , or very late reimbursements, contrary to the provisions of the package travel directive (EU) n ° 2015/2302. The Slovak government had faithfully promised the Commission that it would amend its legislation to bring it into line with the Directive, but has not yet done so, causing the Commission to lose patience. Then a number of airlines and airports lost patience with the UK government’s much-maligned traffic light system and announced they would initiate judicial review proceedings over how the rulings underlying the system are taken (our money is on Grant Schapps pulling the countries names in a raffle). Meanwhile, our Commonwealth cousins ​​in Australia have rendered judgment in a Montreal Convention case that raises intriguing questions of international concern. Conor Kennedy and Russell Wilcox have the details.

Personal injury within the meaning of the Montreal Convention Defined: Grueff vs. Virgin

Last month, the Australian Federal Court issued a judgment in GRueff v Virgin Australia Airlines Pty Ltd [2021] 501 FCA, a case brought under the Montreal Convention. The decision is relevant to claims in England and Wales (and in the courts of other signatory jurisdictions) as the purpose of the Convention is to ensure “uniformity” and “security” for claims relating to international passenger transport. The English courts have therefore said that they will ensure that decisions interpreting the Convention are “If possible, consistent with the prevailing views expressed in the main overseas authorities” (King v Bristows Helicopters Ltd [2002] 2 AC 628).

Symptoms

The facts of Grueff were that during a theft, the applicants had been served with perfume-contaminated water. They then developed symptoms such as stomach cramps, nausea, diarrhea, sore throat, lack of energy, anxiety, weight loss, and food intolerances. Their symptoms disappeared within a few weeks, although both said they had suffered from food sensitivities for several months.

Personal injury defined

The relevant provision of the Montreal Convention, Article 17, provides that:

“The carrier is responsible for damage suffered in the event of death or bodily injuries a passenger on the sole condition that the accident which caused the death or injury took place on board the aircraft or during any of the boarding or disembarking operations.

Carriers are strictly responsible for any bodily injury suffered by a passenger during international transport, provided it is caused by an accident. Therefore, the question before the Federal Court was whether the applicants’ symptoms could be characterized as “bodily injury” caused by an accident during the flight.

The term “bodily injury” is not defined by the Convention, so the Court has conducted a review of national and international case law on the Convention. He accepted a number of key principles necessary to establish “personal injury”, as follows:

  • A claimant must show clear evidence of bodily injury caused either by the accident or resulting from the psychological trauma of the accident;
  • The injury does not have to be a simple discomfort or a transient inconvenience. A symptom lasting a few days is not normally sufficient to qualify as an injury;
  • An injury that requires treatment to allow a person to return to normal is typical of an injury, but it is not essential;
  • Contracting an illness can be described as an injury depending on the degree to which the illness deviates from normal. For example, a cold is not an injury but an illness like AIDS would be;
  • Physical manifestations (such as weight loss) of emotional distress do not constitute bodily injury, although organic injuries (such as coronary thrombosis or stroke) resulting from emotional shock may be. ;
  • A purely psychiatric injury without physical injury is not a bodily injury;
  • A “mental” injury following a physical injury can be a bodily injury (the question remains open).

After examining the authorities, Judge Griffiths concluded that the applicants’ symptoms did not constitute bodily injury within the meaning of the Convention.

Conclusion

The Federal Court ruling is a useful summary of existing US, UK and Australian authorities. In addition, the application of these authorities to the factual matrix of this case will be particularly useful in analyzing the growing number of claims for reimbursement of gastric illness travel expenses. In such claims, the parties will need to work closely with expert medical witnesses to assess whether there is clear evidence of symptoms that meet the criteria for bodily injury, as defined by case law.

About the Author

Called in 2011, before becoming a ward, Conor Kennedy worked for two years with a leading insurance law firm, gaining experience in the regulatory, employment, leisure, travel and of the public sector. He has a varied civil practice and is accredited for direct access teaching, but has a particular interest and expertise in claims involving fundamental dishonesty.

Air traffic control (light): the challenge of judicial review of government policy

As readers are no doubt aware, last week a stakeholder group led by Ryanair and the Manchester Airports Group announced it was challenging the government’s traffic light system through judicial review. This system was instituted on 17e May 2021, before which there were fines of up to £ 5,000 for people traveling abroad without just cause. The idea behind the traffic light system was of course to establish a method of differentiating between the level of risk of coronavirus in overseas countries or territories, noted red, orange or green: the green attracting the least restrictions for travelers and red the most. It was touted as an integral part of the phased and carefully controlled relaxation of travel restrictions as the effects of the global immunization program set in and the virulence of the viral spread waned.

Unfortunately, given the unpredictable history of the coronavirus, this mechanism must have allowed for tightening and loosening according to changing epidemiological demands. As such, it was accompanied by three-week checks, the first of which took place on 3rd June 2021, and resulted in Portugal moving from the Green List to the Orange List. This was important for the deeply injured travel industry as it tried to get back into action as Portugal was perhaps the only country on the original green list to offer something like the club summer getaway. standard med. In addition, the disincentives resulting from the amber reclassification were considerable, including the government’s standard advice not to travel and extended quarantine periods upon return.

It was therefore perhaps inevitable that the methodology employed by the government to determine the status of each country would be subject to further examination and challenge. What really seems to have annoyed industry leaders is the fact that other competitors, notably Germany, were allowed to steal the show from UK operators.

He is particularly upset that ministers failed to put the Balearic Islands on the green list at a time when holidaymakers from other European countries are flooding the islands. So Jet2 CEO Steve Heapy observed: “When you take the UK government’s own criteria for deciding where holidaymakers can travel and apply them to the Balearic Islands, we’re baffled as to why we can’t not fly there ”, and MAG Managing Director Charlie Cornish complained that other EU countries were taking a much more positive approach to the resumption of international travel compared to the UK.

It is in the light of these feelings that the Ryanair / MAG challenge was launched. It looks like, given its urgent nature and importance to the industry as a whole, it will be heard early this week. The latest reports suggest that the original litigants have now been joined by British Airways and Virgin Atlantic.

Depending on the outcome of this case, we should all be prepared for a new round of challenges to government restrictions on coronaviruses, as the rationale for maintaining them becomes more nuanced and difficult to make. No doubt Lord Sumption will also have a few more words to say before the end of the crisis!

About the Author

Dr. Russell Wilcox was called to the Bar in 2000, and prior to joining the firm he had an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large scale inter-jurisdictional commercial disputes and international arbitration proceedings, and acted as a disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defense, concerning the actions of the colonial administration in Cyprus during the Cypriot emergency from 1956 to 1959. He now accepts all the work undertaken by the travel team at 1 Chancery Lane.

…And finally…

In 1CL’s latest webinar series, Thursday 24e June at 12 p.m., Sarah Prager and Dom Smith will speak on handling overseas deaths, providing both legal insight and some practical advice on how to handle these more sensitive cases. The link to register for the webinar is here: 1CL Webinar: Managing Deaths Abroad – 1 Chancery Lane. The event promises to be all the more interesting as Sarah will be teleported from one of the Greek islands, where, while diving, she will undoubtedly take great care not to provide Dom with a concrete example of the relevant principles.


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