July 12, 2019 2:53 pm
Updated: July 13, 2019 3:30 pm

Air Canada turbulence: What are the rights of passengers injured on a flight?

WATCH: An Air Canada flight from Vancouver to Sydney was diverted to Honolulu Thursday, after severe turbulence. Thirty-seven people were hurt, with 30 taken to hospital and nine people in serious condition. Priya Sam has more.

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If you’ve been injured while on an airplane, a number of factors can determine what kind of compensation you’re entitled to, experts say.

A sudden, severe incident of turbulence caused Air Canada Flight 33 to be diverted to Honolulu Thursday — leaving almost 40 passengers injured in the process.
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READ MORE: Turbulent Air Canada flight recounted by B.C. teen: ‘heads hit the ceiling’

The plane was diverted to Hawaii from its original route to Sydney, Australia from Vancouver Thursday morning. Thirty-seven people sustained minor injuries, and have since been treated and released, according to Air Canada. The Boeing 777-200 was carrying a total of 269 passengers and 15 crew.

A spokesperson from Air Canada said they were “fully engaged in this matter and we will be dealing appropriately with our customers.”

According to experts and personal injury lawyers, a passenger’s rights to compensation depend on the following factors:

Is the flight domestic or international?

Domestic and international flights are governed under different pieces of legislation. This detail can determine how much money a passenger is entitled to.

Domestically, passengers are able to make a claim against the airline through the normal channels: by retaining counsel and filing a lawsuit. International flights, on the other hand, are regulated by a treaty called the Montreal Convention, a multilateral treaty adopted by a Canada and other countries in 1999.

When making a claim for an injury sustained on a domestic flight, the case is handled the same as any other Canadian civil case. There is no cap on the reimbursement the passenger may receive in this situation, but there is also no base level of compensation.

If an injury is sustained on an international flight, however, there are two levels of compensation the passenger may be able to receive.

WATCH: Honolulu officials say they ‘were ready’ to handle injuries from diverted Air Canada flight

The first is triggered if the airline or the aircraft staff was not negligent. In this case, $100,000 in Special Drawing Rights is a cap on damages they could get without proving fault, so long as they prove there was an accident within the meaning of the convention. Special Drawing Rights are a form of international money often used in transnational treaties. In Canadian dollars, this amount is closer to $180,000.

Their damages are still assessed using normal damages law, which means that many injured passengers will be entitled to far less than the strict liability cap.

The second is triggered in cases where the airline was negligent, and the payment can be much higher.

Flight AC33 is an international flight, and would therefore be governed under the Montreal convention.

WATCH: ‘The plane just dropped’: Teen describes ordeal on Air Canada plane diverted because of turbulence

“Any time the trip itinerary involves two countries — regardless of whether the plane actually took off and landed in two different countries or not … So as in this case, this is what happened with Canada and Australia, it would this international treaty though for these kind of flights” explained Drew Sinclair, a personal injury lawyer with Oatley Vigmond.

However, seeing as turbulence caused the injuries to those on board the aircraft, Sinclair predicts that that these circumstances wouldn’t warrant the second level of compensation. Passengers are only able to claim the second level of compensation if they can prove that the airline was negligent.

He warns that as an injury must be established in order to receive compensation, extremely minor injuries may be harder to prove.

Under this treaty, two levels of compensation are available for passengers depending on whether the aircraft was negligent.

Was the aircraft staff negligent?

What counts as negligent? According to Sinclair, the line between reasonable behaviour and negligence is hard to define.

They’re all held to the standard of what a reasonable pilot would do, or what a reasonable airline would do, or what a reasonable stewardess or a flight attendant would do. They have to engage in some conduct that’s outside of normal rules,” he explains.

READ MORE: Flight AC33 to resume with new plane after bout of severe turbulence injured 37

Whether or not an airline has been negligent usually comes down to whether they’ve performed their duties to a reasonably viable standard.

The onus is on the individual or party bringing the suit to prove that the aircraft was negligent.

Are there other obstacles to being compensated for your injuries?

Besides the presence of negligence, there are a number of things that may impact a passenger’s ability to obtain compensation should they be injured in an aircraft.

For example, if the passenger has engaged in something called “contributory negligence,” meaning that they did not take base reasonable actions to protect themselves, their compensation may be reduced. An example of this could be if the passenger chooses not to wear their seatbelt while the light is flashing.

“They might have a harder time being successful in the lawsuit and getting any compensation if they weren’t following all of the rules or any specific instructions that had been given to them by the airline staff,” explained Jessica Mahabir, a personal injury lawyer with Defrel Injury Law.

READ MORE: 37 believed injured after turbulence forces Vancouver-Australia flight to divert to Hawaii

In addition, Stephen Birman, a partner at Thompson Rogers Law Firm, warns that under the Montreal Convention, “psychiatric injury” and “punitive damages” are not covered. In order to seek compensation under this legislation, those involved need to demonstrate physical injuries.

Lastly, Gabor Lukacs, the founder of the travellers’ advocacy group Air Passenger Rights, warns that it’s important to keep a detailed record of any incidents (damages/expenses, lost wages) you encounter as a result of your injury, as well as keep track of all bills incurred during your travel experience.

© 2019 Global News, a division of Corus Entertainment Inc.

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