Yearly Archives: 2017

Here We Go Again: Mental Injury and the Montreal Convention

In previous posts (click here and here), we discussed the trial and appeal decisions in Casey v. Pel-Air Aviation Pty (Supreme Court of New South Wales, Australia). The issue to be determined was whether Ms. Casey could recover damages for Post-Traumatic Stress Disorder (PTSD). Because Ms. Casey had been travelling internationally at the time of the subject aircraft accident, her claim was exclusively governed by the Montreal Convention, an international treaty. The Montreal Convention only allows for the recovery of damages for “bodily injury” (i.e. physical injury) and not purely mental injury.

Contrary to prior jurisprudence, the trial court in Casey accepted that Ms. Casey’s PTSD could be a “bodily injury” in that it was an injury to her …

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Ontario Court of Appeal Confirms That US General Aviation Revitalization Act of 1994 Does Not Apply to Claims Filed in Canadian Courts

The Ontario Court of Appeal recently released its decision in Thorne v. Hudson Estate, 2017 ONCA 208, which arose out of the crash of a twin-engine Beech aircraft in New York State. The plane, carrying two pilots and one passenger, went down after experiencing a loss of power to one of its engines. The estates of the pilots brought claims in the Ontario Superior Court of Justice against the companies that inspected and maintained the engine (“ATC” and “CAR”), as well as its manufacturer, Continental Motors Inc. ATC and CAR brought third party claims against Continental, alleging negligent manufacture of the engine, misleading repair instructions, and the failure to warn them about certain engine failures.

Continental applied to have …

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British Columbia Court of Appeal Upholds Workers’ Compensation Appeal Tribunal Decision Regarding Passengers’ Rights to Sue for Damages Resulting From an Aircraft Accident

On October 27, 2011, an aircraft crash-landed near the Vancouver International Airport.  Six of the surviving passengers commenced a lawsuit against the aircraft operator seeking to recover damages arising from their injuries.  The passengers were flying to Kelowna to attend an annual retreat organized by an organization named “The Executive Committee” (“TEC”).  The TEC is a member-based community of over 900 chief executives, entrepreneurs, and business owners from across Canada.  The passengers were founders and CEOs of various companies.  TEC provides peer advice and support, through a “safe refuge” for executives to discuss work and personal issues.  Each TEC member is required to attend meetings and pay annual dues for membership.  The passengers’ dues were all paid by their companies.  …

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A New “Passenger Bill of Rights” and Other Potential Legislative Changes Affecting the Canadian Airline Industry

Bill C-49, the Transportation Modernization Act (the “Act”), had its 2nd reading in the House of Commons on June 19, 2017.  The Act consists of a package of amendments to the Canada Transportation Act, S.C. 1996, c. 10, as well as other pieces of legislation. However, its main focus is on the introduction of a new airline passenger bill of rights.  Other key amendments include a wider definition of “Canadian” to allow for an increase in foreign investment in air service providers, as well as provisions to promote joint ventures between air service providers while ensuring healthy competition in the industry.  Transport Canada has stated that the purpose of the legislation is to ensure a better …

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Transport Canada Proposes Controversial New Regulations on Flight Crew Hours of Work and Rest Periods

On July 1, 2017, Transport Canada published draft amendments to the CARs regarding pilot hours of work and rest periods (click here for proposed regulations). According to Transport Canada, the new regulations will improve passenger and flight crew safety as they are based on the latest science regarding fatigue and will bring Canada in line with international standards and best practices.

The draft regulations are the product of over six years of work and consultation. In 2010, a joint government/industry working group studied the issue, relying on the assistance of a scientific expert in sleep and performance. Subsequently, comments were sought on three separate occasions and various meetings held with interested stakeholders.

The proposed regulations would apply to CARs …

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The Aftermath of Germanwings

On March 24, 2015, the passengers and crew of Germanwings Flight No. 9525 (from Barcelona to Dusseldorf) were the victims of a tragic aviation incident. Shortly after take-off, the pilot left the cockpit. The co-pilot (Mr. Lubitz) locked the cockpit door and initiated a steep descent into the French Alps. Despite attempts by the crew to gain entry to the cockpit and communicate with Mr. Lubitz, the plane crashed, killing everybody on board. The incident sparked international concern, and the incident resulted in the implementation of various safety measures across the globe.

The French Aviation Investigation Authority (the BEA) investigated the accident. The BEA report revealed that Mr. Lubitz suffered from a prior history of depression and psychological disorders. Shortly …

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PTSD is Not a “Bodily Injury” Down Under

In November, 2009, an aircraft operated by Pel-Air Aviation Pty Ltd.  (“Pel-Air”) flew on a charter flight from Samoa to evacuate a patient and her husband to Melbourne.  Six people were on board the aircraft, including Ms. Karen Casey, a nurse employed by Care Flight (NSW), and Dr. David Helm.  The aircraft was scheduled to refuel at Norfolk Island but poor weather forced the pilot to ditch the aircraft in the sea.  Everyone on board the aircraft survived, but Ms. Casey and Dr. Helm were both seriously injured and commenced an action against Pel-Air in the Supreme Court of New South Wales.

As the case involved an international flight, the Montreal Convention applied to their claims for damages.  At trial, …

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Northern Exposure

On July 10, 2012, two Yukon Government employees were being transported by helicopter during a project involving the collection of grizzly bear hair samples. Regrettably, the employees were injured during an attempted landing. As a result of the accident, they commenced a lawsuit against Horizon Helicopters, the owner and operator of the helicopter.

In many jurisdictions across Canada, Workers’ Compensation legislation provides a “statutory bar”, which prevents one worker from pursuing a lawsuit against another worker or against an employer when he or she is injured while in the course and scope of employment (i.e. while working). Instead, the worker must apply for WCB benefits. Under Yukon legislation, a worker may choose whether to apply for WCB benefits or pursue …

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