The liability of an airline for the bodily injury of a passenger on board an aircraft

Article 17 of the Warsaw Convention provides that:

‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

operations of embarking or disembarking. Thus, an airline may be liable for damage sustained in case of bodily injury of a passenger, on condition, that the accident which caused the injury, took place either on board the aircraft, or in the course of any of the operations of embarking or disembarking from the aircraft.

It must be noted that Article 17 of the Warsaw Convention applies in three instances, on embarking on the aircraft, onboard the aircraft and on disembarking from the aircraft. 9 Thus, once a passenger is on board an aircraft, and his or her movements, are under the control of the airline, he or she is covered by the Convention.

An injury, must be caused by ‘unexpected or unusual event or happening that is external to the passenger’. Thus, injury which is caused by turbulence has been held to not be unusual or unexpected.

In Mazvita Banga (Represented herein by her guardian) Charles Banga and Others v Air Zimbabwe (Pvt) Ltd HH381-17 it was held that:

‘From a reading of the above it seems that only physical injury is recoverable under Article 17. It has been established that purely psychological injury is not sufficient in order to recover under the convention. Once an injury is psychological in nature, it is not recoverable. In the matter in casu the plaintiffs have not pleaded that they suffered physical injury leading to psychological injury. It is my view therefore that plaintiffs claim falls outside the purview of the Warsaw Convention. The Warsaw Convention was designed to protect carriers from opportunistic claims as the one in casu.’

Consequently, an airline is liable for bodily injuries, not psychological injuries, 13 or humiliation and embarrassment caused to the dignity of a passenger, 14 sustained as long as a passenger is on board the aircraft, or during the time of his or her movements, under the control of the carrier.

Article 17 place strict liability on an airline. 15 Thus, if an ‘accident occurs during that time, the burden of proof shifts from the plaintiff to the defendant, when it is the latter’s turn to prove that the injury or death consequent upon the accident did not occur as a result of a breach of duty by the carrier.’