A Legal Memo - Eleanor Fletch and Virgin Atlantic - Article Example

A Legal Memo Customer Inserts His/Her Name Customer Inserts Grade Course Customer Inserts Tutor’s Name Insert Date Here (Day, Month, Year) Facts Eleanor Fletch is 64 years old and an avid traveller. During her last trip overseas, she travelled to New York from Brisbane on avid traveller. During her journey, there was significant turbulence and passengers were forced to remain on the seat for longer period of time. Between the breaks from turbulence, the cabin crew circulated refreshments like free coffee, tea and wine. While the cabin crew was moving around, passengers were motivated to remain seated with the seat belt buckled but during this period, passengers were not provided with any information on the harmful effects if they remain seated for the longer period of time. After the flight journey, Eleanor had to suffer severely that had an affect on her life. Issues Broad Issues: 1. Is there a claim against Virgin Atlantic? As the case states though cabin crew were helping the passengers still they should have provided information to the passengers regarding the ill effects if passengers do not make any movement or exercise while remaining confined to their seat belts. 2. Was it the duty of the Cabin Crew to inform the passengers of the ill effects? 3. During the course of the whole journey, to what extent there has been negligence on the part of the Cabin crew? 4. Was the negligence only in the form of lack of information being provided to the cabin crew or in the other areas also during the course of journey? Narrow Issues 1. Inconvenience caused to the passengers owing to the turbulences. 2. Is there a duty to passengers to exercise certain cautions or precaution? 3. If there is a duty what is the standard of care? 4. Was there a breach of the standard? 5. If there was a breach, did the breach was responsible for the ill effect on Eleanor Fletch? Details Eleanor Fletch has a cause of action against Virgin Atlantic because according to her, staff of airlines should have warned her about the subsequent health risks and that its failure to do so constitutes an “action” for purpose of Article 17 of the Warsaw Convention.1 The district court declared that the failure to warn about health risk in the above said case does not constitute an “accident” under Article 17 of the Warsaw Convention. When appealed Eleanor Fletch gave arguments that failure of the Virgin Atlantic to give adequate information makes her liable for filing the case. According to the Article 17 of the Warsaw Convention as amended by the Hague Protocol of 1955, the Convention has the force of law in Australia by virtue of s 11(1) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act").2 Article 17 of the convention gives passengers the right to sue for injury and health.3 Hereby, the Article 17 of the Convention states, “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”4 What are the claims arising out of the legal cases raise most important questions related to the appropriate legal forum in which claims are to be adjudicated. Any air accident has to pass through several enquiry procedures. Issues arising out of the negligent navigation and pilot error also raise issues of negligence on the part of the carrier themselves. This Civil Aviation (Carriers' Liability) Act 1959 (Cth) has been modified by the Civil Aviation Carriers Liability Act 1991.5 The courts have shown their hesitation to hold carriers responsible where there has been no accident, but many cases have come in front of the court where passengers have suffered either psychological or mental injury on account of the inaction on the part of the crew. For e.g. in the case of Husien v Olympic Airways, a passenger was suffering from breathing difficulties on account of the smoke emanating from the passengers during a long haul flight with the carrier. Passenger asked the crew that he should be moved elsewhere, but was refused inspite of the fact that there being availability elsewhere. Due to the disregard shown by the crewmember, the carrier was held liable.6 Psychological injuries are claimable under the present legal regime but only under certain conditions.7 The legal status and the act clearly states that Fletcher’s has a cause of action against Virgin Atlantic and as her case suggests, she suffered from the emotional and mental trauma and also was finding unsuitable to travel at will. As her case reflects and the act states, Eleanor Fletch has a cause for action against Virgin Atlantic. Discussion and Analysis Mrs. Fletcher’s statement of claim asserts that her cause of action appears under the Act and Article17. But she is making the claim under an act but not under the Article 17, which could give certain base for her to fight action against Virgin Atlantic. According to the international agreement whereby Australia too signed does not make her obliged to accept rights or liabilities or impose duties under the domestic law of this country. Legislation that gives effect to an international agreement is required before the contents of the agreement have any significance in Australian law. It is Pt IIIC of the Act, particularly s 25K, that gives the Montreal Protocol No 4 the force of law in Australia. 8 Nevertheless, the liability in this case is measured by the terms of Art 17. Article 17 must be interpreted in the context of an international agreement, which includes a Code that makes the carriers from many countries liable to follow it. 9 It is a case of Povey v Qantas Airways Ltd whereby an Australian Court declined passenger’s efforts to sue Qantas Airways Ltd and British Airways for causing him deep vein thrombosis (DVT) during long-haul flights. A Sydney businessman filed case against Qantas Airways posing a claim that he had been disabled permanently by a stroke triggered by deep vein thrombosis (DVT). Lawyer of Povey stated that both Qantas Airways, with whom he flew to London, and British Airways, which flew him back did not give adequate information to the passengers about the risk of DVT. 10 The Victoria State Appeal Court gave the ruling that the civil law suit of Brian Povey should be removed and the case and actions against these airways should remain permanently stayed putting an end to the long legal battle. The court’s ruling was based on the fact that Povey’s condition could not be considered as an accident as per the above acts. Compensation can only be granted if there is any death or injury or psychological disturbance in case of accident in the course of the flight. In the light of the Povey vs Quantas Airlines case and in case of the above said statements, Mrs. Fletcher’s case could not be considered. Though this Court needs to follow the rights and liabilities under the Australian statute, they should not take a narrow-minded approach to the contents of the Article 17. Neither this act should be interpreted according to the several presumptions nor technical rules laid down for the interpretations nor for interpreting domestic statutes or contracts. Instead an Australian court should follow as stated by the interpretation of international treaties that the Vienna Convention on the Law of Treaties (Australian Treaty Series, (1974) No 2) and the Court of Appeals for the 9th Circuit has codified.11 (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Great China Metal Industries Co Ltd v Malaysian International Shipping Corp, Bhd (1998) 196 CLR 161)12 According to the Article 31, the interpretation of the treaty must be done with good faith, as regards and in keeping the original meaning of its terms and their context and keeping in mind the object and purpose of the treaty. Article 31 also states that meaning can be confirmed also from the external sources and in certain circumstances and it is very important for the case that these sources be consulted to be assured of the meaning that would arise while applying Article 31. This would also be used to determine the meaning where in the case the meaning of the application of Art 31 comes out to be absurd, unreasonable, ambiguous or obscure.13 Under the light of the Australian Constitution and the above said acts, the likelihood of her success if she proceeded with the lawsuit against the airline company is very nil and marginal. If the Australian courts do not take a narrow-minded approach of the construction of Article 17 and in the interpretations of the construing domestic statutes or contracts and rather follow the rules of interpretation of international treaties, then there are very less chances for Mrs. Fletcher’s case to come forward. Conclusion In the statement of the claim, Mrs. Fletcher states that the Airways are liable to pay her compensation in accordance with Art 17 of the Warsaw Convention as Amended by the Hague Protocol of 1955.14 That Convention has the force of law in Australia by virtue of s 11(1) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act").15 The appeals to the Court of Appeal, however, were conducted by reference to the Convention as Amended by the Hague Protocol of 1955 and the Montreal Protocol No 4 of 1975, which has the force of law in Australia by virtue of s 25K of the Act.16 According to these acts, clients expect all the medical claims concerning the compensation in cash that may occur on account of her treatment. If she wins the case, she may get partial or full compensation according to the seriousness of the case. Under the tort law she can claim monetary compensation in lieu of the injury occurred to her in the carrier in which she was travelling. It is a part of law which states that a person who is injured in the carrier or the because of the consequence of the fault occurring in the career can use the tort law to recover the damages. It implies injury that comes under the law. And under the contract law she can gain the compensation in the form of kind like partial refund of the airfare ticket. Reference List Abeyratne, R.I.R. (2004). Aviation in Crisis. Burlington, VT: Ashgate Publishing, Ltd. Bor, R. & Hubbard, T. (2006). Aviation Mental Health: Psychological Implications for Air Transportation. Burlington, VT: Ashgate Publishing, Ltd. Cane, P. (2003). REFORMING TORT LAW IN AUSTRALIA: A PERSONAL PERSPECTIVE. Melbourne University Law Review 26. Diederiks-Verschoor, I.H.P. & Butler, M.A. (2006).An Introduction to Air Law. Hague, Netherlands: Kluwer Law International, 2006 Gillies, P. & Moens, G. (1998). International Trade and Business: Law, Policy, and Ethics. Sydney, NSW: Cavendish Publishing Ltd. Goldhrisch, L.B. (2000). The Warsaw Convention Annotated: A Legal Handbook. Hague, Netherlands: Kluwer Law International. Goldring, J., Maher, L. & McKeough, J. (1998).Consumer Protection Law Annandale, NSW: Federation Press Gunn, J. (1988). High Corridors: Qantas, 1954-1970. University Queensland Press: Queensland. High Court of Australia. (2005) Povey - vs - Qantas Airways Ltd. Retrieved on November 5, 2008 from W.W.W: http://www.ipsofactoj.com/international/2006/Part01/int2006(01)-014.htm Kean, A.(1982). Essays in Air Law. Dordrecht, Netherlands: Kluwer Law International, 2006. Margo, R.D., Cunnungham, S.D., Balfour, J., Mackrell, M. & Weeks, J. (2005). The Liability Reporter. International Air Transport Association. Retrieved on November 5, 2008 from W.W.W: http://www.iata.org/NR/rdonlyres/2EE7CD58-1C6B-429F-9431-EAFDDFAEA0AB/0/2005LiabilityReporter.pdf Moens, G. & Jones, R. (2002). International Trade and Business Law Annual. New Port, NSW: Cavendish Publishing Ltd Steele, J. (2007). Tort Law: Text, Cases, and Materials. New York: Oxford University Press. Wassenbergh, H.A., Masson-Zwaan, T.L. & de Leon, P. M. (1992). Air and Space Law: De Lege Ferenda: Essays in Honour of Henri A. Wassenbergh. Norwell, MA: Martinus Nijhoff Publishers. Zeller, B. (1999). International Commercial Law for Business. Annandale, NSW: Federation Press. Read More