Planes, trains and automobiles

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Who are BL Claims Solicitors

BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.

We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset

Unfortunately this article does not explore the 1987 comedy movie Planes, Trains and Automobiles! However it does seek to provide you with some guidance as to bringing a claim if you have an accident involving a plane, train or car.

Accidents in the air

If you have an accident while you are travelling by air or during the embarkation or disembarkation of the aircraft then your claim for damages is most likely to be governed by the Montreal Convention.  The Convention provides that the airline will be strictly liable provided you can show you had an accident during the course of international carriage or during the operation of embarkation or disembarkation.  In other words, if the circumstances meet the requirements for an accident then the airline will be liable and you do not need to show the airline was at fault.

An accident for the purposes of the Convention has been defined as follows:-

"an unexpected or unusual event or happening that is external to the passenger[and which does not arise] from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft"[1]

Turbulence or air pockets which result in a passenger being injured will therefore not satisfy the requirements of an accident under the Convention but a bag falling from an overhead locker or a passenger who slips due to a spillage on the steps of the aircraft will.  A passenger who is burned by a hot cup of coffee falling from the hands of the cabin crew will also satisfy the Convention's requirements.

While the Convention provides for a strict liability regime, the airline may be able to defend the claim if it can show that the damage was caused by the passenger who is seeking compensation[2].  There is also a limit to the airline's liability which is currently 100,000 Special Drawing Rights per passenger (just under £100,000 or US$155,000).  The limit on liability is a trade off for the airline being strictly liable when the provisions of the Convention apply.  Certain jurisdictional rules apply to a claim under the Montreal Convention and these dictate where the airline can be sued[3]. It is also important to establish there is "international carriage" which, depending on the journey, may require some careful thought[4].

EU based airlines are subject to the provisions of the Montreal Convention by virtue of EC Regulation 889/2002.  Domestic flights within the UK will also be subject to the Convention by virtue of the Carriage by Air Act 1961.

Crucially, any claim falling under the Montreal Convention is subject to a strict 2 year limitation period.  The Convention also provides for an exclusive cause of action.[5]  This means that if the Convention applies you cannot bring a claim by some other means, for example through the law of negligence.  If you miss the 2 year time limit for bringing a claim then you could be left with no means of redress against the airline.

The types of damage which can be claimed under the Convention are more restrictive than at common law.  General damages for pain, suffering and loss of amenity will be recoverable as will most financial losses arising as a result of the accident and the injuries.  Damages for psychological harm are not, however, recoverable.[6]  It is unsettled law whether damages for loss of enjoyment can be claimed, although in the case of Walz v Clickair SA (C-63/09) the ECJ decided that damages for distress and disappointment could be recovered.  Walz involved a claim for lost/damaged baggage and not bodily injury but the reasoning does arguably open the way for distress and disappointment damages which flow from a bodily injury claim under the Convention. 

In the case of T (a child) v British Airways (2007) Lawtel a 12 year old girl recovered damages of £2745.00 for damage caused to her ear when the cabin pressure dropped and the airline had to make a quick descent to land. 


Accidents on trains

If you have an accident whilst you are travelling on a train or whilst getting on or off a train then you may have a claim against the railway company responsible for operating the service/ the station under the Occupiers Liability Act.

As an employee working for a railway company if you have an accident at work you may have a claim against them for breach of Health and Safety regulations / statute.

Passenger

As a passenger injuries may arise  in the context of    :

- Travelling on a train as a passenger and  sustaining  injury owing to a crash or derailment;

- Being injured by an item falling from overhead luggage racks;

- Faulty train doors closing on you as you enter or exit the train;

 - If there is the chance to purchase food on board the train or indeed on some of the cross country services a buffet car there is  the   possibility of being injury as a result of spilt hot drinks or even food poisoning  from items purchased;

 - Slipping on a railway platform or in railway premises owing to rubbish or a defect in the flooring. In the case of  Collins- Williamson v Silverlink Train Services Limited (2008) ( Lawtel)  the railway company was found to be at fault for injuries sustained by a claimant who fell in a gap between the station platform and the train. In this case the Claimant had been drinking and as the train proceeded out of the station he fell into the gap and suffered a serious leg injury resulting in amputation.

The court found that the Claimant and the train company were equally to blame for the accident. The train company was held to be vicariously liable for the actions of its employee, the guard, in that he was negligent in signalling to the driver to start the train and failing to take other action when it was clear that the Claimants behaviour before the accident on the platform was idiotic as he as unsteady on his feet. The claimant was to blame by virtue of being under the influence of alcohol at the time.

Employee  

As an employee of the railway claims may arise in the context of:

- The use of work equipment on the railways that is defective resulting in injury;

- Lifting heavy items on the railway as a guard or otherwise resulting in injury;- Electrocution as a result of working on railway track maintenance where the source is not turned off;

- Noise Induced hearing loss as a result of exposure to noise on the railway.

- Exposure to asbestos on railway premises/ during railway maintenance In the case of Harris v English Welsh and Scottish Railway ( 2005) ( Lawtel)  the Claimant was a train driver that was exposed to noise whilst driving various types of locomotive trains. The Court held on the basis of the factual and expert evidence available that the Claimant had been exposed to noise in excess of 85 db and had not been provided with hearing protection.  He was awarded £10,000.00 on account of his injuries.

Accidents on the road

Road traffic accidents are still very common and every year in the UK about quarter of a million people are killed or injured in such accidents. We all know friends and families who have been affected by such tragic accidents. Accidents on the road arise in a wide range of scenarios where people are injured as a result of being:

- A car driver;

- A passenger;

- A pedestrian;

- A cyclist- Victim of a hit and run accident Where the individual that caused the accident is known any claim will be against the Road Traffic Insurer of the vehicle subject to the terms of the policy.

If the individual is not insured or can not be traced a claim can be made for compensation against the Motor Insurance Bureau ( MIB) This is a statutory government body that was set up to ensure that people who are injured in these circumstances are not left without a remedy. You can read our guide to Road Traffic Accidents here.

Some examples of cases that this firm has dealt with are:

1. Mr H who was driving his car at the time of the accident and was not wearing a seatbelt. We took over the case from another firm of solicitors. About a year had passed since his accident. Liability had not formally been admitted, no interim payments received and no support provided to the family.  An offer of £100,000 had been made which the current solicitors thought a little light and so advised him not to accept.  They valued compensation for his physical injuries (General Damages) at £30,000 and placed it in the mild to moderate bracket. They thought the offer was low but not far from a likely award.  No expert reports had been obtained at this stage. Mr H had been in an induced coma for 3 months and had suffered a severe brain injury.  His behaviour was erratic and volatile.  He was physically aggressive towards family members and posed a danger to himself and others.  At trial he was awarded £150,000 for General Damages.


Upon our appointment, we ensured liability was admitted and funding secured to appoint a case manager and to move him to his own accommodation with appropriate support. Expert medical evidence was obtained to report on his injuries.  This also confirmed that although he was not wearing a seat belt, this fact did not make a difference to his injuries and therefore no deduction should be made for contributory fault.


It was accepted that he was unable to work.  The dispute between the parties related to level of care required both past and future.  A 7 day quantum assessment took place in the Royal Courts of Justice and Mr H was awarded £2.85 million.  Mr H lacks capacity and so a Deputy was appointed to manage his financial affairs.  A house was purchased with his award and appropriate support provided. Mr H now has a long term partner and young son.    Whilst he is unable to work, his behaviour is managed with appropriate support.

2. Miss B who was an  18 year old female who sustained devastating orthopaedic injuries as well as a mild head injury, extensive scaring and psychological injuries when she was riding pillion passenger on a motor bike driven by her boyfriend. The bike rider turned out to be uninsured and so the claim was directed to the Motor Insurers Bureau as well as the car driver who was also involved.

The orthopaedic injuries were so severe her left lower leg had to be amputated. Both femurs were broken and had to be pinned. The right tibia and fibia were fractured and needed surgery to repair. She also sustained a broken elbow, scaring and damage to both knees. Following months of hospitalisation and multiple surgeries, our client was discharged with a fixator attached to right lower leg and she was wheelchair dependent. She had been living in a second floor flat that had no lift so she was discharged into local authority housing. Although liability was being investigated and hotly contested at this time, the MIB and car insurer jointly agreed to fund the appointment of a case manager to coordinate on going rehabilitation as well as paying for furniture for the flat and suitable flooring.

Our client had little memory of the accident. The bike rider was prosecuted and imprisoned for driving offences. Despite this the MIB refused to deal with the claim and raised a Clause 6 defence arguing that she knew or ought to have known that the bike rider had no insurance. If this argument was successful, this would prevent her claiming any compensation from the MIB at all.

To succeed, the MIB had to prove the clause 6 defence. Therefore the obligation and responsibility was theirs. Proceedings were issued and liability accepted by the MIB. The car insurer dropped out at this point.

Further funding was made available to enable her to move into a bungalow, purchase state of the art artificial limbs, under go knee surgery and counselling.

Expert medical evidence dealt with injuries sustained and had to predict what the future had in store for her in terms of arthritis, future knee replacement surgery, cosmetic surgery to improve scar appearance and on going Counselling. Expert reports also predicted future limbs and equipment as well as care.

The case was compromised at a round table meeting for £1.62 million. The award was made up of a lump sum payment of £1.2 million with the balance being periodical payments of £12,000 a year for case management and care.

This settlement secures the clients future and ensures she can have future surgery and equipment when needed. It also proves just how important it is to wear helmets. This individual sustained devastating life altering orthopaedic injuries but fortunately only mild head injuries that have a minor impact on her day to day life. She is therefore able to study, work and live independently. She was saved from significant head injuries by wearing a suitable helmet.

3. Ms D who was hit whilst crossing the road and suffered multiple injuries. In particular, she suffered head injuries causing a cognitive deficit as well as injuries to her right shoulder, left hip and left and right knee which required surgical intervention and plating and pinning. She also suffered psychological symptoms in terms of a low mood and anxiety symptoms. She sustained scaring to her shoulder which represented a significant cosmetic blemish. The Defendant driver fled the scene and was convicted by the Police for doing so. Initially letter of claim was sent to his insurers. The denied cover and indicated that the claim should be made against the Motor Insurance Bureau as the car in which the Defendant was driving was a hire car. There was a question as to whether the policy of insurance covered him as he was not named on it and secondly whether cover had lapsed at the time of the accident.

As neither party would deal, proceedings were issued against the driver, the named driver on the insurance policy, the insurance company and the Motor Insurance Bureau. Following issue of court proceedings the insurance company accepted primary liability but alleged that Ms D was in part at fault for her accident for walking out without looking.

They alleged that she had failed to look to her right before crossing and crossed from behind a high sided vehicle. They placed reliance on the police report and the witness evidence of their client and the passenger in the vehicle at the time of the accident. We adduced witness evidence from an independent witness who saw the accident that she looked to her right and that there was no high sided vehicle.

In light of the issues offers to compromise liability were made and this settled on a 60/40 basis in Ms D favour.

Reports were then obtained from a Neurologist, Orthopaedic Surgeon and an Knee specialist. Initial reports were interim reports and were updated a year later when the medical experts were of the opinion that Ms D had reached her final recovery point.

Following negotiation the claim settled for £130,000.00.


[1] Air France v Saks 919850 470 US 392 and confirmed by the Court of Appeal in Barclay v British Airways Plc [2008] EWCA Civ 1419.

[2] Article 20.

[3] Article 33.

[4] Article 1.

[5] See Sidhu v British Airways plc [1997] AC 430.

[6] King v Bristow Helicopters Ltd and Morris v KLM Royal Dutch Airlines [2002] UKHL 7.  The decision in this case suggests that if the psychological or mental injury can be shown to be the result of physical damage to the brain then it would be recoverable as a physical/bodily injury.

BL Claims Solicitors are here to help

If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at info@blclaims.co.uk