UK: Airline Liabilities in a Sick World

Last Updated: 31 August 2006
Article by Peter Coles

In 1979, 72 per cent of passengers on one aircraft contracted influenza. The attack rate was associated with the ventilation system not being in operation during a three hour ground delay. Since 1979, there have been several other reported cases of on-board transmission of diseases. For example, in 1996 six of the 249 passengers on board a flight from Chicago to Hawaii were found to have caught the pathogenic bacterium which causes tuberculosis when they travelled on the same flight as a woman suffering from the disease.

Regulations

Airlines are expected to comply with international health regulations, which are designed to prevent the international spread of disease while interfering as little as possible with travel and trade. It is their responsibility to be familiar with the specific laws and regulations concerning infectious diseases applying to passengers and shipments at points of entry for each destination country, as well as the laws on safety procedures and on release of passenger information (data privacy) where they carry infectious agents or people.

The WHO’s International Health Regulations 2005, which do not come into effect until 2007, will establish basic rules for international coordination in the detection, investigation and response to diseases, including treatment, and will establish special measures to be adopted during a public health emergency of international concern.

In some countries, proposals are afoot to hold carriers directly responsible for disease outbreaks if they fail to comply with regulations. A good example is the proposed amendments to the US Code of Federal Regulations Parts 70 and 71 which imposes fines of US$250,000 and US$500,000 for any violation of the regulations by an individual and organization respectively.

Air carrier liability

Airlines have a potential liability exposure to passengers (a) where the airline or its ground handlers know or have reasonable cause to suspect at check-in or at the gate that a passenger has an illness but fails to take any precautionary steps to check that the passenger is medically fit to fly or deny boarding the passenger; (b) where the airline discovers in flight that a passenger on board has an illness but fails either to take steps to isolate the passenger or honour requests by other passengers for alternative seating; (c) where the airline fails to call and await the assistance of medical authorities at destination before permitting disembarkation; (d) where the airline is notified that a passenger on one of its flights had an illness but fails to take reasonable steps to trace all the passengers on that flight; (e) where passengers are infected because defective equipment or systems have resulted in the contamination of the air supply; (f) where the airline fails to prevent sick crews from continuing in the workplace; and, possibly, (g) failing to warn passengers of the risk of disease transmission during air travel and the steps that can be taken to help prevent infection.

If a passenger contracts a disease prior to his flight then the carrier will not be liable to that passenger under the Warsaw/Montreal liability regime if the illness then develops during the flight since the passenger would have embarked with a pre-existing medical condition.

If, however, it is established that a passenger on board was in a contagious stage of disease and other passengers bring claims for illnesses they contracted on board, then the claimants will need to prove they contracted the disease on board the aircraft or during the period of embarkation and/or disembarkation and that the fact that they were exposed to the disease constituted an "accident" for the purposes of Article 17 of the Warsaw or Montreal Conventions. The former issue may well present significant evidential difficulties. Without very clear evidence, it is always arguable that disease transmission could have occurred prior to embarkation, e.g. on public transport to airport, check-in queues, security checkpoints, customs, shops and restaurants.

In relation to whether there has been an article 17 accident, the carrier does face a liability risk provided the contraction arose as a result of an unexpected and unusual event that was external to the passenger. Poor air quality in an aircraft cabin leading to a passenger contracting pneumonia has already been held to amount to an accident (Dias v Transbrazil Airline (1998).

Following the Olympic Airways v Hussain (2004) case - in which an asthma sufferer died following exposure to cigarette smoke after his request to be moved further away from the smoking section had been refused - and the English Court of Appeal’s analysis of this judgment in the UK DVT litigation, it is also open to a court to hold that an airline’s failure to isolate a passenger or move another passenger against a known risk that a disease may be contracted on board is an "accident".

Refusal of carriage

Many airlines reserve in their tickets and general conditions of carriage a right to refuse carriage to a passenger if necessary to comply with government regulations or if carriage endangers safety or health or comfort of other passengers and the crew. In reality, unless the passenger discloses their medical condition or is exhibiting clear symptoms, these provisions will be of little benefit to the carrier. The carrier must also keep in mind that there are specific air carriage regulations - like the US Air Carrier Access Act or broader anti-discrimination regulations elsewhere - which may prevent refusal of carriage unless there is something more than just a "reasonable belief" that someone has an infectious disease. The carrier may need to weigh the legal consequences of refusing carriage to one passenger against the risk of allowing them to fly with an infectious condition.

Flight cancellations

Flight cancellations may arise as a result a dramatic turndown in demand as we saw in Asia during the SARS epidemic. An airline’s liability for cancellation is governed by its contract with passengers and by domestic or EU law rather than international air law conventions.

Many carriers exclude or limit their liability in respect of flight cancellations in their ticket conditions of contract or general conditions of carriage. However, these are not watertight. It is always open to passengers to argue that these conditions (a) were not incorporated into the contract (an argument which often succeeds in Thailand, for example); or (b) that they amount to unfair contract terms and, therefore, are void; or (c) that they do not apply to non-performance of the contract.

If a flight is cancelled due to government action then the airline may be able to rely upon force majeure provisions in its conditions of carriage allowing it to walk away from its obligation to carry the passengers. Alternatively, it may be able to rely upon the doctrine of frustration provided that the action of the government was not foreseeable.

If flights to which EU Regulation 261/2004 applies are cancelled, the carrier will have certain obligations including offering passengers a choice between re-routing and reimbursement of the full ticket price; plus assistance (phone calls, refreshments and accommodation); plus compensation. If flight cancellations occur as a result of government action or for other reasons outside the carrier’s control, the carrier may avoid having to pay compensation but will remain obliged to provide a refund or re-routing and care and assistance to the passenger.

Conclusions

Absent actual evidence of disease transmission during a stage of transportation for which airlines are responsible, airlines have minimal exposure to awards of damages although claims will have to be defended. On the other hand, if there is evidence to demonstrate that passengers are being or have been exposed to an infectious disease then the potential exposure to private law damages and government imposed penalties is significant.

BLG Aerospace has conducted an extensive investigation into the above issues after handling a number of SARS and influenza related claims in Hong Kong.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions