The International Who’s Who of Aviation Lawyers brings together two leading contentious experts to discuss key issues facing practitioners today.
According to the Aviation Safety Network, the average number of airliner accidents has shown a steady and persistent decline since 1997. Has this impacted the type of contentious work available to lawyers? How has your practice been affected?
Simon Liddy: The improvements in aviation safety over the years are well recorded and are to be applauded. Australia is fortunate in having an excellent aviation safety record, without any major airliner accidents.
When accidents of a lesser nature do occur, they can have just as much impact on those involved. The Australian aviation authorities, the police, the coroner’s office and other organisations, where appropriate, conduct rigorous investigations. These investigations have contributed to the overall safety record in Australia.
Our firm provides a broad range of services to the aviation, transport and insurance industries, and while we have a number of lawyers experienced in emergency response across a number of transport modes including aviation, these events are thankfully not an everyday occurrence.
Frank Silane: Fortunately, commercial aviation disasters are infrequent – they are the exception, not the rule. The foundation of our practice has always been to provide a full range of legal services, litigation and commercial, to the aviation and insurance industries. Accordingly, while we have represented airlines in many major losses, it is the occurrence of a major loss which changes our day-to-day practice rather than the absence of such losses. Such losses will never be eliminated entirely, but we can hope that they become increasingly rare.
Are the plaintiffs bar still seeking recovery in the US for extraterritorial air crashes? Are these types of cases on the rise? What difficulties can claimants face trying to bring a case in the US courts?
Simon Liddy: This trend still appears to be continuing, although I understand from colleagues in the USA that defendants have been able to obtain dismissal of some cases on forum non conveniens grounds. This may have an impact on future claims of this nature.
Anti-suit injunctions are available in Australia, and there may well be other defensive mechanisms available under Australian law that may be used in these types of situations.
Frank Silane: Each case is different, legally and factually. Plaintiffs will certainly continue to try to bring lawsuits into the United States whenever there is a reasonable chance of avoiding a forum non conveniens dismissal. However, there have been several relatively recent decisions granting forum non conveniens dismissals in major air crash cases. These decisions have undoubtedly caused potential litigants to evaluate the merits of their venue issues more carefully than would have occurred several years ago.
Have you seen a lot of activity in passenger rights claims? Do you expect these types of cases to continue? What are the main claims passengers bring against airlines?
Simon Liddy: Australia and its states have legislation covering a number of relevant areas, particularly anti-discrimination laws. These laws have been relied upon with varying degrees of success by passengers across a number of transport modes.
There has been a growing recognition by governments and the broader community of the difficulties facing people with disabilities in a variety of areas including transportation, access to buildings, access to services, education, etc. The transport industry as a whole, including the aviation sector, has responded positively to these developments with improved facilities, policies and procedures, and training. As such I would expect there to be an increased level of acceptance of these improvements, and for the improvements to continue as technology develops.
Frank Silane: Passenger rights claims have been and will remain with us, regardless of airline efforts to prevent them. Claims based on real or perceived slights to passengers are inevitable. These have included and will include claims of discrimination based on race, sometimes associated with security screening issues, and physical disability, under the Americans with Disabilities Act. These types of claims have always been with us but we have not seen any dramatic increase in their numbers.
Have you seen an increase in the number of consumer class actions brought against airlines? How are airlines shielding themselves against these cases?
Simon Liddy: In short – no. While there are a broad range of consumer laws in Australia, class action activity of this nature in the transport sector is low.
Many states have specialist tribunals that deal with consumer claims, but these are dealt with on an individual basis. For claims arising from international carriage by air, which are governed by Australian federal law, these tribunals lack jurisdiction in some instances. These are therefore dealt with in state or federal courts.
The aviation industry in Australia takes its customer’s experiences very seriously, and have specially trained personnel for that purpose. A proactive response to customer issues in most cases results in a positive outcome, and this reduces the scope for escalation and litigation.
Frank Silane: Although our firm has been involved in defending several such class actions, I do not have enough information to know whether there has been any demonstrable increase in the number of consumer class actions filed. If there is an increase, it is not so extreme as to be a trend that would be obvious to anyone other than someone specifically studying the issue.
Airlines are acutely aware of their need to maintain a high level of customer satisfaction from a purely competitive standpoint. They are also aware of the legal implications associated with consumer rights issues, whether in connection with class actions or otherwise. Accordingly, there would be no reason to go beyond what airlines typically do to provide a responsible and professional service and to comply with the existing laws and regulations.