This is a case study on events after flight
Sexual assaults would rarely be referred to as “accidents”. Such acts are typically malicious and premeditated. However, the nature of the international treaties which govern international air transport is such that a judicial exercise of characterizing such actions as an “accident” will be required before an airline can be made liable for the unlawful touching of a passenger by another passenger or by a crew member.
Recently, Perth woman Laura Bushney alleged that a Malaysian Airlines flight attendant touched her in a sexual way and massaged her legs three and a half hours into a Kuala Lumpur to Paris flight, under the guise of calming her nerves.
The Montreal Convention of 1999 controls the liability of airlines for injuries and deaths to passengers and many would think it uncontroversial that the airline would be liable for any emotional distress caused to the passenger. However, the law which applies is more complex. Under the Convention emotional distress unaccompanied by physical injury is typically not compensable. Furthermore, any injury at all howsoever defined cannot be the legal “fault” of the airline unless the proper characterization of it is an “accident” as that term is understood in Article 17 of the Convention.
Ms. Brandi Wallace faced the same situation like Ms. Shani when she fell asleep in the window seat during her economy class flight aboard Korean Air flight 61 from Seoul to Los Angeles. Next to her was seated Mr. Kwang Yong Park.
The District Court dismissed the suit, concluding that the sexual assault was not “a risk characteristic of air travel,” and therefore was not an “accident” under Article 17 of the Warsaw Convention.
In a similar case in the United Kingdom, Morris v KLM in 2002 flight UKHL7, a 15 year old girl was fondled by a neighboring male passenger during a flight from Kuala Lumpur to Amsterdam. Here the Court of Appeal and then the House of Lords confirmed that the assault was an “accident” for the purposes of the relevant Convention. As such the airline was liable. However, the Court found that even so, compensation was not available as there was no bodily injury – Ms. Morris had claimed for mental trauma unaccompanied by physical injury.
Considering the case of Morris v KLM in 2002, Ms. Shani can make the airline liable for the incident and get compensation.
On the other hand if this Sri Lankan girl have complained to a cabin crew and the cabin crew fail to act to his issue, then the airline would have been liable for the inaction or negligence to the passenger. The record reveals no act or omission by defendant which had any connection to plaintiff's injuries and which might lead to a finding that plaintiff's injuries were the result of an “accident” within the meaning of Article 17. Moreover, unusual touching such as that alleged by plaintiff is not a risk characteristic of air travel or related to the operation of an airplane, and air carriers are not in a special position to develop defensive measures or insure against such incidents.
Plaintiff's misfortune may have occurred on defendant's airplane, but an assessment of the circumstances surrounding her injuries shows that they did not result from an “accident” within the meaning of Article 17 of the Warsaw Convention.For the Scary landing she could be compensated by the airline.