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?

Liability of an air carrier for passenger injury or death is governed by the common law and the negligence and fatal accident statutes of each province.

Nature of carrier liability

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

Liability for an air carrier is fault-based. The Supreme Court of Canada has ruled that although the carrier of passengers is not an insurer, there is a heavy burden on the defendant carrier to establish that it had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a ‘very high degree’.

Liability limits

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

There is a limit of liability for non-pecuniary damages for pain and suffering, which relates to the severity of injuries. Catastrophic injuries not resulting in death have a current ceiling of approximately C$390,000 and increase incrementally. There is no limit for other heads of damages, such as past and future loss of income, loss of future earning capacity and cost of future care.

Main defences

What are the main defences available to the air carrier?

A carrier may defend against claims on the basis that it was not negligent, that the injury or death was the result of a third party or an intervening act, or was caused by contributory negligence of the claimant or a failure to mitigate.

Damages

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

Yes.

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?

Where damage was caused in whole or in part by the person claiming compensation, the claimant is entitled to compensation based on comparative negligence. In apportioning damages, courts are concerned with the relative fault or blameworthiness of the parties involved. A claimant’s overall award will be reduced by the amount they are found to be at fault.

However, in an action with multiple defendants, where the claimant is found contributory negligent, the liability of a single defendant in certain provinces may not be joint and several, resulting in each defendant being found liable only for its ‘share’ of damages.

To determine whether a child is contributorily liable, courts will consider whether the child exercised the care expected of a reasonable child of their age and experience. Similarly, courts will consider whether a mentally disabled person exercised the care expected of a reasonable person with the same abilities or mental capacity.

Statute of limitations

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

The limitation period for an action against an air carrier can vary depending on the limitation of actions statute or other relevant provincial statutes. In most jurisdictions, a claim must be brought within two years of the date that the cause of action arose, or the date of discovery. This is subject to an ultimate limitation period after the day on which the act or omission took place. The ultimate limitation period varies from 10 years in Alberta, to 15 years in BC and Ontario, to 30 years in Manitoba. The limitation period does not run during the time in which the claimant is a minor or incapable of commencing a proceeding by reason of physical or mental condition.

Service and filing requirements differ between provinces and between different levels of court. An action is typically commenced once a notice of claim is filed with the court registry.