Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

Section 48(2) of the CAA 2006 provides that the Montreal Convention as modified and set out in the third schedule to the Act, as amended from time to time, will from the commencement of the Act have the force of law and apply to non-international carriage irrespective of the nationality of the aircraft performing the carriage. The modified Convention will, subject to the provisions of the Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.

Some of the terms modified in the text applicable to domestic carriage include:

  • the monetary limit for injury and death is specifically indicated in the text of articles 21 and 22 in US dollars ($100,000);
  • stipulating a seven-year timeline for the review of the limits; and
  • providing for advance payment of US$30,000 for injury and death of passengers under article 28.
Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

An air carrier’s liability under domestic carriage is as stipulated in the modified version of the Montreal Convention made applicable to domestic carriage. It is based on the ‘strict liability’ of the carrier and subject to the terms of the Montreal Convention regarding exoneration and limitation of limits of liability.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

For death or injury of passengers, the monetary limit for which the carrier shall not be able to exclude or limit its liability is set at US$100,000 - article 21 of the Montreal Convention as modified. It is envisaged that the courts will uphold this limit subject to the ability of a plaintiff to rebut the defences open to the carrier in article 21(2).

We are unaware of any liability limits for personal injury or death incorporated by notice or contractual agreement.

Main defences

What are the main defences available to the air carrier?

The defences available to the air carrier are the defences set out in the Montreal Convention. With respect to personal injury or death, the two main defences available to the carrier are: the defence that the damage was not due to the negligence or other wrongful act of the carrier or its servants or agents and the defence that the damage was solely due to the negligence or other wrongful act or omission of a third party.

Damages

Is the air carrier’s liability for damages joint and several?

The air carrier liability for passenger injury or death under the modified version of the Montreal Convention is as circumscribed in articles 17 and 21 and a plaintiff’s claim against the air carrier for damages in this regard must come squarely under the Convention. The liability is not joint and several.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

The question of contributory negligence for air carrier liability has not yet been considered before the Nigerian courts. However, under general law in Nigeria, the effect of a successful plea of contributory negligence is the apportionment of blame between the parties and consequently an apportionment of liability. We are not aware of any case in which the doctrine of comparative negligence has been considered and applied in Nigeria.

There are no statutory provisions that specifically set out principles for courts to adhere to in apportioning fault or the damages recoverable where there has been a successful plea of the defence of contributory negligence. Case law suggests that it is within the ambit of a court’s discretionary powers, which must be exercised judicially and judiciously in line with the evidence led before the court. In a specific case for recovery of damages for injury caused to a motor cyclist by a vehicle, the trial court found that the accident was caused by the negligence of the motor cyclist but proceeded to apportion the damages between the plaintiff and the defendant. The Supreme Court overruled the decision and held that the defendant ought not to pay any damages given the finding that the plaintiff was solely liable.

There is a dearth of Nigerian case law on the application of the principle of contributory negligence to minors and persons with reduced mental capacity. In line with the practice of Nigerian courts to look to decisions of other common law jurisdictions as persuasive authority on undecided issues, these decisions will provide some direction as to how these questions will be decided. For children, a review of case law in England suggests that the age of the child is a key factor in any finding whether the child is or is not liable for contributorily negligence. As suggested in Fleming v Kerry County Council, there must be some age up to which the child cannot be guilty of contributory negligence. In other words, there is some age up to which a child cannot be expected to take any precautions for his or her own safety. In cases where contributory negligence is alleged against a child, it is the duty of the trial judge to rule, in each particular case, whether the plaintiff, having regard to his or her age and mental development, may properly be expected to take some precautions for his or her own safety and consequently be capable of being guilty of contributory negligence. Having ruled in the affirmative, it becomes a question of fact for the jury, on the evidence, to determine whether he or she has fallen short of the standard that might reasonably be expected from him or her having regard to his or her age and development. In the case of an ordinary adult person, the standard is what should be expected from a reasonable person. In the case of a child, the standard is what may reasonably be expected, having regard to the age and mental development of the child and the other circumstances of the case.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

An action against an air carrier for injury or death must be filed within the two-year limitation period stipulated in article 35 of the Montreal Convention. The cases determined under the Warsaw Convention in Nigeria recognised and upheld the time limit set in article 29 of the Warsaw Convention and it is envisaged that question on limitation arising under the Montreal Convention will follow the precedent laid down in these cases. The time limit is not subject to tolling.

In Nigeria, an action is deemed to have been instituted or commenced against a party on the date the originating process is filed in court. In this regard, for the purpose of determining whether the action was commenced within the time limit stipulated under any limitation law, the courts will usually look at the pleadings of the plaintiff to ascertain the date of the accrual of the cause of action as averred by the plaintiff and compare that with the date of the filing of the originating process. If the time between these two periods is more than the period limited for bringing the action before the courts, the suit is held to be statute barred and will be dismissed.