A Melbourne woman is suing Air Asia for a broken ankle.....

[Alanslegal]

In summary, Air Asia plane hits turbulence, Melbourne woman falls out of her seat (sucked in for not wearing a seatbelt), Air Asia stewardess loses her balance and falls onto her ankle and as a result suffers some injuries.....

I thought about this long and hard, and at the end of the day accidents do happen ....... and there should be some contributory blame against Erin Crocker for not wearing her seat belt. Personally I hope she does not succeed in her claim, I hope they are unable to establish causation. Had she worn her seat belt, these injuries may probably have never occurred.


Melbourne woman sues AirAsia after air stewardess fell on her foot, causing injuries - Australia/New Zealand News & Top Stories - The Straits Times

 

[Pushka]

She could argue the steward should have been ordered to wear their seatbelt too if it was that bumpy.

 

[mannej]

I am sorry, but no article I have seen on this has actually stated that the lady was sitting down at the time.

There is minimal information available, yet it hasn't stopped many dropping the boot in (over on the Facebook page for one).

For all we know the ladies costs may have blown up and is seeking a way to recoup costs/lost income etc.

 

[anat0l]

I guess it would depend on how quickly the onset of the turbulence was. The longer the onset of turbulence, the higher chance Air Asia would have a need to prove themselves against a charge of negligence, i.e. if it was already so bumpy and, for instance, the captain had switched on the "Fasten Seat Belts" signal, why were there still flight attendants up and walking about. That's a simplified point but is one to take into consideration.

Then there will be witnesses as to whether the woman was standing or sitting and where her foot was positioned when it was trampled / fallen upon. Again this will also factor in the length of turbulence, e.g. if it was already quite turbulent and she was sitting in her seat, then her not fastening her seat belt would mitigate damages claimed against Air Asia.

Interesting that Air Asia came forth with a settlement but also a contractual clause preventing further claims; I imagine this might be standard across many damage claims (not just against Air Asia let alone airlines). I wonder if she claimed on travel insurance (assuming she had some) whether the insurance company would insist on possibly taking legal action on her behalf to discharge any possibility that the medical expenses can be claimed as part of a damages lawsuit rather than paid out by the insurance company directly.

I think it will be quickly dismissed that the FA did not intentionally hurt the woman in question (although the FA may not have a job any more for that matter), so the only main establishment of causation will be via a charge of negligence.

If it comes out that there was not much that Air Asia could do to prevent that happening and the woman was hurt anyway, then I'm not sure to what degree Air Asia legally has to cough up any form of compensation to the passenger. I suppose Air Asia has access to insurance for precisely these kinds of incidents...

 

[MEL_Traveller]

montreal convention no? no need to prove any negligence on behalf of the airline or passenger. airline strictly liable up to pre-set limit (about aud180k or something). passenger just needs to show they were injured on the flight as a result of an accident. malaysia and Australia are signatories to the convention

only if the pax wants more than that does the airline get to argue its case.

(edit: see below - Article 20 may reduce airline's liability!)

 

[Revolio]

.....there's always a story behind the story.......

 

[anat0l]

montreal convention no? no need to prove any negligence on behalf of the airline or passenger. airline strictly liable up to pre-set limit (about aud180k or something). passenger just needs to show they were injured on the flight as a result of an accident. malaysia and Australia are signatories to the convention

only if the pax wants more than that does the airline get to argue its case.

Oh well I guess that settles that AirAsia must pay, but it doesn't really set forth how much and what can be claimed under the convention, let alone a claim does not mean the full discharge of 100k SDRs under the Convention. It could be a lot less, and any more than 100k SDRs must result in a legal test of negligence on part of the carrier.

For example, I assume the airline will at least be up for her medical bills, but can she also pursue under the convention some of the other things she claimed, i.e. consequential losses, emotional losses..... I think those latter types are outside of the Convention.

On top of that, Article 20 of the convention is interesting.

All of that is testable in a court of law.

 

[MEL_Traveller]

Oh well I guess that settles it. It just now is a case of how much is allowable under the Montreal Convention, although I suppose some legal approach will still be required to enact the payment under the convention.

That all said, if the amount the woman wants to claim exceeds the Montreal Convention and/or she wishes to prove a charge of negligence or deprivation of those things which she claims she has lost as a result of the airline's actions, then she'll need her day in court.

in excess of the initial (strict liability) of 180k (or whatever it is at today's exchange rate) the airline must prove it was not negligent. the passenger doesn't have to prove the airline was.

I guess the case might play on the convention's definition/interpretation of 'accident'. severe turbulence has been deemed an 'accident' previously (as has a terrorist attack etc etc). but as always, I suppose there will be degrees and variations. plus then, as you say, the amount of damages will probably be disputed.

no doubt air asia's insurers would push for a court ruling.

 

[anat0l]

in excess of the initial (strict liability) of 180k (or whatever it is at today's exchange rate) the airline must prove it was not negligent. the passenger doesn't have to prove the airline was.

I guess the case might play on the convention's definition/interpretation of 'accident'. severe turbulence has been deemed an 'accident' previously (as has a terrorist attack etc etc). but as always, I suppose there will be degrees and variations. plus then, as you say, the amount of damages will probably be disputed.

no doubt air asia's insurers would push for a court ruling.

Sorry, updated my post with subtly different content...

The exchange rate of today is 1 SDR = 1.42 USD

 

[MEL_Traveller]

anat0l - thanks for raising the Article 20 mitigation. My mind was on recent events where that won't play a part.

more facts will be needed to determine where the passenger was at the time of the accident.

 

[drron]

Personally I find it hard to believe that an air asia FA falling on you would cause a fracture in a foot.
the woman says she was thrown to the floor.Seems to me a twisting injury falling or getting a foot caught would be more likely the cause of such an injury.

But maybe this woman has a better case-
https://au.totaltravel.yahoo.com/ne...-landing-after-shoe-knocks-woman-unconscious/