You may get dragged off a Plane!
Photo by Scott Olson/Getty Images
Can you sue your Airline Carrier?
The recent incident of United Airlines has caused a public uproar after a video of a passenger being physically dragged off a plane was uploaded online. The 69-year-old victim, Dr David Dao, was on a family vacation in California and was supposed to depart for Chicago after a layover.
The United Airlines flight to Chicago was fully booked and the airline needed to make room for the extra crew on board. Passengers “were” randomly selected to give up their seats in exchange for monetary compensation. Dr Dao was selected, but he refused to give up his seat as he needed to head back to Chicago urgently to attend to patients who had appointments with him scheduled for the day after.
His refusal to accept the offer was not taken too kindly by the airline. The airline’s security officers were called on board the plane to physically drag Dr Dao despite his clear protests; the officers proceeded to yank his arms away from his seat. In the scuffle that ensued when Dr Dao resisted from being removed out of the aeroplane, Dr Dao fell and hit his head on an armrest. He later was found to have suffered a broken nose, broken teeth and a probable concussion as a result of the incident.
Dr Dao is considering taking legal action against United Airlines.
What can you do if you get injured onboard a plane?
If you had suffered a personal injury a large portion of the success of your claim depends on the contractual relationship between the passengers and the airlines which may be found on the airline ticket itself and the airline’s standard terms and conditions, countries like Singapore who are signatories to international conventions such as the Montreal Conventions and the Hague Protocol and are therefore subjected to international guidelines.
Personal injury claims founded in contract, tort or otherwise can be brought to Court but are subjected to these international conventions which are under the purview of the International Civil Aviation (ICAO).
These guidelines are part of an international effort to harmonise the differing levels of consumer protection while taking into consideration the interests and liabilities of the aviation industry. These guidelines are relevant because of the cross-border elements involved in the aviation industry itself – different domiciliary and nationality of passengers; varying points of embarkation, disembarkation and layovers; and the place of accidents as well as where the aeroplane carrier is based at.
Did you get injured (death or bodily injury)?
The aeroplane carrier is liable for damages sustained in the case of death or bodily injury by a passenger if the accident which caused the death or injury took place on board the aircraft or the course of any of the operations of embarking or disembarking.
There are several qualifiers that a passenger has to satisfy in order to sue the aeroplane carrier for injury as in the case of Dr Dao.
- An injury must have occurred;
- The injury must have occurred as a result of actions or omission by the airline; and
- Such injury caused was not an unexpected or unusual event happening that is external to the passenger.
An unexpected or unusual Injury?
The injury cannot be a result of a pre-existing infirmity on the part of the passenger. For instance, a passenger that has a health condition that makes him/her susceptible to risks that may be considered to be characteristic of air travel such as the deep vein thrombosis (a condition whereby a blood clot forms within a deep vein usually as a result of sitting too long, causing pain and swelling) may not recover for the full extent of the damages or even at all.
Injury resulting from the passenger’s own internal reaction to what is otherwise the usual and expected aircraft operation will not likely be recoverable. I.e., if the passenger were to purposely use an object and hit himself with it.
The airline may also be liable for mental injury suffered by the passenger if it stems from the bodily injury.
For example, post-traumatic stress disorder (PTSD) suffered following a physical injury may be recovered. Similarly, passengers that suffer allergic reactions due to food served on the aeroplane despite giving notice of their special dietary requirements can seek damages.
However, mental injuries that may accompany physical injury but are not caused by bodily injury are not recoverable.
The extent of liability also hinges on whether the airline had taken all necessary measures to prevent injury to passengers.
If the passenger had acted in such a way that the injury suffered was caused or contributed to by the negligence or other wrongful act (such as behaving aggressively to the passenger crew or security officers or disruptive to the requests of the crew) the airline carrier shall be wholly or partly exonerated from its liability to the passenger making the personal injury claim to the extent that such negligence or wrongful act caused or contributed to the bodily injury.
Are there criminal charges?
Possible criminal charges may be pressed against the security officers involved if such force used against Dr Dao amounts to criminal force or assault and such physical conduct is unnecessary and disproportionate to the resistance put forth by Dr Dao in asserting his right to not accept the aeroplane carrier’s offer.
Probable Criminal Charges
Section 11(1) of the Criminal Procedure Code 2010 provides the Prosecution with the power to conduct or discontinue any criminal proceedings, exercisable at their discretion.
The Prosecution may proceed to charge under section 350 of the Penal Code (Cap 224), punishable under section 353, for intentionally using force without a person’s consent, knowing that such force will likely cause injury, fear or annoyance to the person whom the force is being used against. Dr Dao’s non-consent was made clear when he did not accept the offer to give up his airplane seat and what is unmistakably physical resistance when he was yanked out of his seat.
However, such criminal force may be warranted if there had been a grave and sudden provocation. Depending on the context, this may include shouting of profanities, physical threats or physical force being made by the complainant towards the airplane crew or security officers in a dispute. In such a case, what is generally described as criminal force might be a lawful exercise of their right of private defence.
To illustrate an example for a better understanding of how this applies, an airplane officer can act lawfully even if he/she have caused bruises or minor fractures in the course of restraining a passenger if the passenger had conducted himself/herself in such an aggressive and hostile manner so as to endanger the safety of the other passengers and the airline crew.
This right to inflict criminal force in certain circumstance is allowed, for example if there had been grave and sudden provocation. Such force, though legal and allowed, must be exercises proportionatly and must not exceed what is necessary to prevent further harm.
Voluntarily causing grievous hurt
Section 322 of the Penal Code also provides for situations whereby a person intentionally caused or would have reasonably known that his action will likely cause grievous hurt. What type of injury is considered grievous hurt is set out in section 320 of the Penal Code. This includes fracture, dislocation of a bone and severe bodily pain within the space of twenty (20) days after the incident occurred.
The Prosecution might also proceed with a charge for assault under Section 351 of the Penal Code. A case can be made out for assault if the complainant (i.e the officer in Dr Dao’s situation) can prove that a gesture or preparation was made to him by the assailant (Dr Dao) such that it caused apprehension on the part of the complainant that criminal force was about to be committed.
If a scenario similar to Dr Dao’s harrowing experience on an airplane is to be tried under Singapore’s criminal jurisdiction, the facts would have easily met the threshold for assault, if not criminal force or voluntarily causing grievous hurt.
How can we help you?
At I.R.B Law LLP our experienced team of lawyers will be able to guide you through each and every stage of your proceedings in such an event and advise you on your next course of action. We understand that sustaining an injury is a traumatic event and your focus should be recovering and getting back on your feet. So do not hesitate and drop us a call or inquiry at Hello@irblaw.com.sg or call us at 6298 2537 to schedule an appointment with us today.