THE SCOPE AND LIMITATION ON LEGAL LIABILITY FOR COMPENSATION BY THE AIRLINE COMPANIES TO THEIR PASSENGERS INFECTED BY CORONAVIRUS (COVID-19) THROUGH AIRLINE’S NEGLIGENCE WHILE ON BOARD AN AEROPLANE
Abstract
On 11 March 2020, the World Health Organization (WHO) declared Coronavirus Disease (Covid-19) pandemic and a global health emergency. This followed disclosures that, 114 countries had reported the presence of this disease in their territories, from which 118, 000 people had already been infected, and 4,291 deaths recorded.1 Towards midMarch 2020, there was a sense of panic by several States from which several countries reacted by either closing their borders entry points2 or, and restricting movements within some specific areas which were already reporting an upward surge of Covid-19 cases. Some other States went further and enacted legislations which were meant to reduce the spread and protect their public from contracting this deadly virus. For instance, the United Kingdom (UK), came up with a legislation known as Coronavirus Act 2020,3 this legislation obligated UK public to strictly follow the public health protective measures, as well as other rules aimed at preventing the spread of the disease in the UK. The precautionary measures announced by the WHO, do require and recommend the wearing of the face masks or/and shields, regularly washing of hands with water and soap or sanitizing hands with alcohol based sanitizers, as well as keeping reasonable social distance of at least one metre between one person and another. In addition, the WHO came up with the recommendatory guidelines for the States to adopt; these guidelines are contained in WHO handbook titled, “Handbook for public health capacity-building at ground crossings and crossborder collaboration.”4 The convention relating to International Health Regulations (2005)5, require States to introduce measures which can stop the cross-infection of people whenever there is serious contagious disease, to enable contain its spread. Covid-19 presents a high risk to the public gatherings especially at social places where groups of people converge; these places include the passengers meeting at the airports or inside the aircrafts, whereby it is unavoidable to interact socially with other people or strangers. Therefore, there is need for the airlines to observe all necessary precautions as much as possible to prevent cross-infection of their passengers with Covid-19. With the aforementioned measures of preventing spread of Covid-19 infection, the legal aspect on the liability come to ashore, where flight passenger get infected with the Covid-19 through negligence acts of a concerned airline.
References
https://www.who.int/docs/default-source/coronaviruse/transcripts/who-audio-emergencies-coronavirus-pressconference-full-and-final-11mar2020.pdf?sfvrsn=cb432bb3_2, Accessed 22 March 2020.
2Africa Continent shut down their international airports, (March 2020) https://www.aci-africa.aero/files/StatusCOVID19-in-Africa-02-04-20.pdf, Accessed 22 March 2020.
3See Coronavirus Act, 2020 available at https://www.legislation.gov.uk/ukpga/2020/7/pdfs/ukpga_20200007en.pdf, Accessed on 28 March 2020
4World Health Organization’s ‘Handbook for public health capacity-building at ground crossings and cross-border collaboration’ file:///C:/Users/Joseph/Downloads/9789240000292-eng.pdf, Accessed 22 March 2020
5See Article 57 of the International Health Regulations (2005)
6World Health Organization, ‘Operational considerations for managing COVID-19 cases or outbreak in aviation, Interim guidance 18 March 2020’ https://apps.who.int/iris/bitstream/handle/10665/331488/WHO-2019-nCoVAviation-2020.1-eng.pdf?sequence=1&isAllowed=y, Accessed 30 March 2020
7World Health Organization, ‘Guide to Hygiene and Sanitation in Aviation, 3rd Edn. (WHO, Geneva, 2009), 1-59 https://www.who.int/water_sanitation_health/hygiene/ships/guide_hygiene_sanitation_aviation_3_edition.pdf, Accessed 30 March 2020
8See Article 14 of Convention International Civil Aviation Organization (ICAO) 1944; Also see ICAO, Annex 9 ‘International Standards and Recommended Practices’ 15th Edn. (ICAO, Montreal, 2017)
https://www.icao.int/WACAF/Documents/Meetings/2018/FAL-IMPLEMENTATION/an09_cons.pdf, Accessed 29 March 2020
9Denis Keenan, Smith & Keenan’s English Law, 4th Edn. (Pearson Education Limited, Harlow, 2004) 533
10Benjamin C. Zipursky. The Restatement (Third) and the Place of Duty in Negligence Law, (2001) 54 Vanderbilt Law Review. 657. 657-750. https://ir.lawnet.fordham.edu/faculty_scholarship/835, Accessed 5 March 2020
11Myfanwy Badge, Trans-boundary Accountability for Transnational Corporations: Using Private Civil Claims, (2006) Working paper 1/2006-, 8,
https://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/ilp_tnc.pdf, Accessed on 5 March 2020.
12Nettleship v Weston [1971] 3 WLR 370 Court of Appeal (UK), Donoghue v Stevenson [1932] UKHL 100 (UK)
13Fleming James Jr, The Qualities of the Reasonable Man in Negligence Cases’ (1951) Missouri Law Review, Vol. 16, Iss. 1, 5, https://core.ac.uk/download/pdf/217040385.pdf, Accessed 25 February, 2020
14[1999] EWCA Civ 2107 (UK)
15Judy R. Nemsick and Sarah G. Passeri, ‘Flying with COVID-19: Navigating Potential Passenger Claims against Airlines’ (Holland & Knight Alert, 25 March, 2020)
https://www.hklaw.com/en/insights/publications/2020/03/flying-with-covid19-navigating-potential-passengerclaims. Accessed 28 March 2020
16Convention for the Unification of Certain Rules for International Carriage by Air (Warsaw Convention) 1929
17Ibid at Article 17
18Warsaw Convention 1929 as amended by The Hague Protocol (1955)
19Warsaw Convention 1929 as amended by the Montreal Protocol 1, (1975)
20Warsaw Convention 1929 as amended by the Montreal Protocol 2, (1975)
21Catherine Elliott and Frances Quinn, Tort law, (7th Edn Pearson Education Limited, 2009) 18
22[1932] UKHL 100 (UK)
23Peter Cane, Atiyah’s Accidents, Compensation and the Law, (7th Edn. Cambridge University Press, New York, 2006) 68
24Ibid
25Benjamin C. Zipursky. Foreseability in Breach, Duty, and Proximate Cause’ (2009), Wake Forest Law Review,
Vol. 44, 1256-1258 http://wakeforestlawreview.com/wpcontent/uploads/2014/10/Zipursky_LawReview_December2009.pdf, Accessed 25 February 2020
26Nettleship v Weston [1971] 2 QB 691 (UK)
27[1961] EWCA Civ 2 (UK)
28Joseph H. King Jr., Pain and Suffering, Noneconomic Damages, and the Goals of Tort Law, (2004), 57 SMU L. Rev. 163.168-169, https://scholar.smu.edu/smulr/vol57/iss1/8. Accessed 5 March, 2020
29[1963] UKHL 3 (UK)
30Law Commission ‘Damages for Personal Injury: Non-Pecuniary Loss’, (Law Com. No. 140, 1995)
31[2001] QB 272 (CA).
32[1883] 11 QBD 503 (UK)
33Ibid [n 36]
34[1937] AC 826 (UK).
35Law Reform (Miscellaneous Provisions) Act 1934 (UK)
36Dustin J. Lee. Injections, Infections, Condoms, and Care: Thoughts on Negligence and HIV Exposure. Cornell Journal of Law and Public Policy: (2015), Vol. 25: Iss. 1, Article 5. 257,
http://scholarship.law.cornell.edu/cjlpp/vol25/iss1/5, Accessed 5 March 2020
37[2001] 2 All ER (Comm.) 153, para 32 (UK)
38Ibid
39Ibid [n 41] para 13
40470 U.S. 392 (1985) (US)
41Ibid [n 42], Ibid [45] 396-408.
42Laurie S. Truesdell. Air France v. Saks: The Applicability of the Warsaw Convention to a Passenger Injury Sustained during a Routine International Flight (1986) 11 N.C. J. Int'l L. & Com. Reg. 157, 170.
http://scholarship.law.unc.edu/ncilj/vol11/iss1/13, Accessed 29 March, 2020
43Ibid (n 11)
