There is always more than one victim when someone dies in an aircraft accident. Specialist aviation claimant lawyer James Healy Pratt explains the legal rights of bereaved families
Most people in the UK have flown in an aircraft. As many are aware, it is common for airline captains to announce to passengers upon arrival that "we have just completed the safest part of our journey". The good news is that, while more of us are flying, flying is also getting safer. In 2006, there were 27 fatal airline disasters worldwide, which is eight less than in 2005. The average number of airline disasters worldwide each year over the past decade has been 37. In human terms, this means around 900 to 1,000 passengers killed in airline disasters every year. Accident rates for smaller aircraft, such as helicopters, business jets, and light aircraft are higher, with an average of about 1,500 passenger and pilot deaths per year.
Yet accidents like the Morecambe Bay/Centrica "Dauphin" A365N helicopter crash in December 2006 in the Irish Sea, where seven passengers and crew lost their lives, highlight the dangers of flying.
Protection
They also raise questions as to what protection those families that have to face the tragedy of their loved ones being killed or seriously injured in aviation accidents should be entitled to. Those families have to deal with the emotional, financial and legal aftermath of their loss.
Aviation accidents are usually investigated by experts from the government in the country in which the accident happened, the manufacturer of the aircraft and the country where aircraft is registered. Aviation is international by its very nature, and often a good deal of international co-operation goes on in investigating the cause of the accident. Generally, the official investigation looks at finding the cause of the accident without getting into blame or liability.
The investigators are more concerned with air safety and making recommendations for prevention of another accident, hoping to promote a "safety" rather than a "blame" culture.
However, this is not always the case, and some countries (including some EU members and parts of the Far East and the US) have instigated criminal investigations and prosecutions alongside the accident investigation - which generally causes friction between the authorities as well as reducing the flow of willing evidence.
Investigation
In the UK, the Air Accident Investigation Branch (AAIB), part of the Department of Transport, is the investigative body. Its chief inspector clearly states its purpose, which is: "To improve aviation safety by determining the causes of air accidents and serious incidents and making safety recommendations intended to prevent recurrence. It is not to apportion blame or liability".
Some accident investigations can become politicised, where different countries disagree among themselves or with the manufacturer on the causes of an accident. This can result in certain conclusions becoming compromised, which may have a real impact upon future air safety as well as the legal resolution of the compensation claims by the families of the victims.
Passengers may have life insurance or travel insurance that pays a fixed sum to them or their next of kin in the event of death or serious injury during air travel. However, these sums can be small in comparison to the potential compensation that can be obtained by the families of the victims against one or several of the following:
n The airline or aircraft operator
n The company that owns the aircraft lease (if leased by the airline or operator)
n The maintainer or overhauler of the aircraft
n The manufacturer of the aircraft
n The manufacturer of a component part of the aircraft, for example, engines, avionics, control systems
n The airport where the accident occurred
n The refueller or ground handler at the airport of departure of the aircraft
n The air traffic control provider in the region where the accident occurred
Usually, all of the above will have bought specialist aviation insurance cover to protect themselves from their fault or liability to third parties - including passengers.
A scheduled airline operating out of the EU would typically have in excess of $1bn cover in third party and passenger legal liability insurance on a per-accident/per-aircraft basis.
With the introduction of the "superjumbo", the Airbus A380, with around 555 seats, some airlines have sought up to $3bn per accident in third-party and passenger cover. A large aircraft manufacturer will typically buy around $2bn in aviation liability insurance.
The bulk of that aviation insurance cover is placed in the London market on a co-insurance basis, with companies like Global Aerospace or AIG, Allianz Marine & Aviation, and with Syndicates at Lloyd's of London like Ace Global Markets, Amlin, Catlin, Hardy, QBE or MSF Pritchard.
This is all important because it is the aviation insurers that instruct specialist aviation defence lawyers to represent their aviation client and their insurance money. As always, insurers are keen to ensure that they receive more money in premiums than they pay out as money for claims. It is no different in aviation insurance, where the aviation insurance market strives to restrict the liability of their clients and limit compensation to victims.
So can the families of victims claim compensation? The general answer is that families of passengers killed or injured in aviation accidents can, indeed, claim compensation. However, things get more difficult after that, as the next questions of "how much compensation?", "who from?" and "where?" are not generally straightforward. An international framework of laws usually applies to any aviation accident. Also, there can be complex technical issues too, relating to piloting, navigation, maintenance, manufacturing and design of the aircraft.
United States
Compensation in the US courts is far higher than anywhere else on the globe. Its courts and jurors are simply much more sympathetic and generous to the innocent victims of aviation accidents, especially when it comes to the emotional distress, grief and bereavement that families go through after losing a loved one. Even within different states of the US there are significant differences in attitudes to compensation, legal "micro-climates", where local knowledge is essential.
This is why families of aviation accident victims need specialist aviation claimant lawyers to advise them. General personal injury lawyers without that expertise simply do not have the international legal experience and knowledge, or the network of local specialists, to advise families on maximising compensation.
Also, general personal injury lawyers will not have extensive expert aviation resources to hand, to advise on the multiple technical issues that can arise. A working knowledge of the culture and workings of the aviation insurance market and access to it and its panels of defence lawyers is also a real advantage to any claimant.
IFAs have an important role to carry out too. Compensation payments to families and victims can be considerable. Specialist aviation claimant lawyers work closely with IFAs in different circumstances. For example, compensation may be agreed through structured settlements or annuity packages. Alternatively, lump-sum compensation payments deserve prudent investment strategies. In both cases, IFAs are essential to ensure the best advice is given to the families or victims.
James Healy Pratt is partner and head of Aviation at Stewarts Solicitors, London
