Introduction
Facts
Decision
Comment
It is well known that an air carrier is liable for damage sustained in the case of death or bodily injury of a passenger where such death or injury took place onboard the aircraft or while embarking or disembarking.
It is also possible for an airline to be liable for personal damage suffered by a passenger in situations other than the aforesaid. A case adjudicated by the People's Court of Pudong New District, Shanghai, in 2020 discussed the airline's duty in a personal damage claim regarding damage that occurred in a check-in area that was managed by the airline.
On 21 March 2019, passenger Q checked in at a check-in counter. When he had finished, he turned around to leave and tripped over passenger C's luggage, which was laid flat on the ground behind passenger C. Passenger Q suffered serious personal injuries.
When the accident happened, a queuing isolation zone had been set up in the check-in waiting area, and warning lines in a bright yellow color had been placed between the check-in area and the queuing waiting area to ensure the orderliness of the entire check-in process and enable the passengers to pass smoothly.
Before the accident happened, the entire check-in area was in good order. There was also sufficient space between the check-in counter, where passenger Q stood, and the exit aisle, which was completely unobstructed.
Due to the incident, passenger Q claimed against passenger C, the airport and the airline as co-defendants, and requested compensation arising from his personal damage.
The Court held that the airline was not liable for passenger Q's personal damage. Its reasoning was as follows.
An individual's right to health is protected by laws. Operators and managers of business premises who fail to perform safety assurance obligations and cause others to suffer damages shall bear tort liability. In the event of damages caused by an act of a third party, the third party shall bear tort liability; business operators, managers or organisers who have failed to perform safety protection obligations shall bear the corresponding supplementary responsibilities.
In this case, passenger Q was injured because he tripped over passenger C's luggage, which was laid flat on the ground behind passenger C. Passenger Q had been about to leave the airline's check-in counter at the time. According to CCTV footage, when the incident happened, all passengers were queuing at the check-in counter in an orderly fashion, without any sign of pushing or squeezing, or any other chaos.
Based on the above, passenger Q was unable to prove that the airline or the airport had failed to perform their safety protection obligations. Therefore, neither the airline nor the airport was responsible for his damage.
In addition, under the Tort Law (which was effective when the accident happened and during the trial), if the infringed party is also at fault for the occurrence of damages, the tortfeasor's liability could be mitigated accordingly.
In this case, the Court held that occurrence of the incident was mainly caused by passenger Q's negligence to notice passenger C's luggage, which was laid flat on the ground. Therefore, the Court determined that passenger Q was mainly responsible for his own injuries, while passenger C, who placed their luggage flat on the ground, shall take a small amount of responsibility – namely, 20%. Passenger C did not appear in court, and the Court entered a default judgment. If passenger C had appeared in court, the Court might have determined a lower level of responsibility, considering passenger Q was mainly responsible for his own injuries.
Although this case was adjudicated before the implementation of the Civil Code, it still has referential value to airlines and airports, which could be deemed to be the operator or manager of the business premises, as the Civil Code has incorporated the principles and provisions of the Tort Law, which constitutes the basis of this case.
Article 1198 of the Civil Code stipulates that:
Operators, managers of business premises such as hotels, shopping malls, banks, stations, airports, sports stadiums, entertainment premises, etc and public premises or organizers of mass activities who failed to perform safety assurance obligations and caused others to suffer damages shall bear tort liability. In the event of damages of others caused by an act of a third party, the third party shall bear tort liability; business operators, managers or organizers who have failed to perform safety protection obligations shall bear the corresponding supplementary responsibilities. After bearing the supplementary liability, the business operator, manager or organizer may claim compensation from the third party.
Based on article 1198, if a passenger suffered damages due to a third party at the check-in counter, as the manager of the check-in counter, the only liability the airline may have to bear is supplementary liability. The airline is entitled to pursue recovery from the third party after it takes the supplementary liability.
Importantly, for the airline to bear such supplementary liability, the passenger must be able to prove that the airline has failed to carry out its safety protection obligations as the premises manager.
Based on this case, it appears the airline will be deemed as performing its safety protection obligations as the premises manager if:
- a queuing isolation zone is set up in the check-in counter waiting area;
- there are bright yellow warning lines on the ground to isolate the check-in area from the queuing waiting area to ensure the orderliness of the entire check-in process and the smooth passage of passengers; and
- the entire area outside the check-in counter and the exit aisle is left with sufficient space and is completely unobstructed.
Also, based on this case, it seems that the airline will not be over-requested to remind or instruct other passengers how to put their luggage in the check-in area or the check-in counter waiting area. It would be rather difficult for an airline to make this happen in practice.
According to this case, as an adult, the infringed party has to perform a reasonable and prudent duty of care when they are on such business premises. Article 1173 of the Civil Code specifies as follows: "Where the infringed party is at fault for occurrence or amplification of the same damages, the liability of the tortfeasor (s) may be mitigated."
Therefore, if an airline or the airport fails to perform its safety protection obligations, their liability could be mitigated to some extent if the passenger themselves does not keep an eye on their own safety and such failure eventually causes their personal injury.
For further information on this topic please contact Jin Yu-Lai at KaiRong Law Firm by telephone (+86 21 5396 1065) or email ([email protected]). The KaiRong Law Firm website can be accessed at www.skrlf.com.