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?

For domestic carriage, the Warsaw Convention and the Guadalajara Convention 1961 apply with certain exceptions and modification. The Carriage by Air (Application of Provisions) Order 1975 (1975 Order), made pursuant to the powers conferred under section 12 CAA 1974, provides for non-international carriage and carriage of mail and postal packages.

The liability of an air carrier for passenger injury or death is that provided under the Warsaw-Hague Convention - namely, article 17 as is incorporated under the 1975 Order. The provisions in section 5 of the CAA 1974 and the Third Schedule will apply to non-international carriage in the case of death of a passenger.

Nature of carrier liability

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

In the case of passenger injury or death, article 17 of the 1975 Order read together with section 5 of the CAA 1974 renders the carrier’s liability for passenger injury and death strict, subject to the carrier’s ability to exonerate itself under article 20 or that the passenger was contributorily negligent under article 21.

Liability limits

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

Under article 22(1) of the 1975 Order, the liability of the carrier is limited to the sum of 250,000 francs. The conversion to ringgit equivalent is regulated by the Carriage by Air (Ringgit Equivalents) Order 1978, and Order 2 prescribes the ringgit equivalent to be 48,000.

The compensation limit in article 22(1) can, however, be dislodged or removed by the passenger under article 25 of the 1975 Order if the passenger succeeds in proving that the damage that resulted from an act or omission of a carrier was done with intent to cause damage, or recklessly and with knowledge that damage would probably result.

Article 22(4) provides that legal costs can be awarded in addition to this limit.

Main defences

What are the main defences available to the air carrier?

The carrier can avail itself of various defences under the provisions of the 1975 Order:

  • article 20 exonerates the carrier if it proves that he, she or its servants or agents took all necessary measures to avoid the damage or that it was impossible for him, her or them to take such measures;
  • article 21 provides the carrier with the defence of contributory negligence. In this defence, the carrier bears the burden to prove that the damage was caused or contributed by the injured person’s negligence; and
  • article 29 prescribes that a right to damages is extinguished if an action for damages is not brought within two years.
Damages

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

Yes. The carrier’s liability for damages is joint and several with any contributing party or tortfeasor for any one single indivisible loss.

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?

In the event that the carrier succeeds in the defence of contributory negligence, article 21 of the 1975 Order and section 8 of the CAA 1974 mandate the application of the rules of apportionment of liability as prescribed under section 12 of the Civil Law Act 1956 (CLA). Under section 12 of the CLA, damages recoverable will be reduced to such extent as the court thinks just and equitable having regard to the passenger’s share in the responsibility for the damage.

There are no provisions that exempt the application of section 12 of the CLA to minors or persons with reduced mental capacity.

Statute of limitations

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

Article 29(1) of the 1975 Order prescribes the limitation to be two years reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived or on which the carriage stopped. The High Court in Malaysia has decided that the right to damages would be extinguished if an action was filed in court outside the two-year limitation and that this limitation is absolute.

There are no provisions for tolling under Malaysian law.