December 3, 2013
The events of 29th November have left the families of the deceased and the injured devastated. As they face each day the question will be what now? The answer will be delays and legal complications.
There will be an investigation by the Air Accident Investigation Bureau (AAIB). They carry out investigations into any accident or serious incident involving an aircraft. A short report will come within weeks but we may wait a year for the full report.
Then there will be a Fatal Accident Inquiry. This will follow a full AAIB report but is likely to be anything up to two years away.
The Inquiry is essentially a fact-finding exercise carried out in the public interest. The purpose of a FAI is to determine:
· Where and when the death took place
· The cause of the death
· Reasonable precautions whereby the death might have been avoided
· The defects, if any, in any system of working which contributed to the death or any accident resulting in the death
· Any other relevant facts as to the circumstances of the death.
For those who have suffered the loss of a loved one or for those who have been injured or otherwise have suffered loss, the question of compensation will arise. And this is a question which needs to be addressed because for those who have lost a member of the family they may have been the main breadwinner or for those who are injured and unable to work it is a question of paying the bills and keeping going.
Then there is the necessary question of compensation for victims and their families. Some will have lost bread winners and some will be unable to work. It is here that the law adds complications to what might already be a bad situation.
In everyday accident claims for personal injury those at fault are liable to pay compensation to victims if they are at fault. The victim must prove fault. In this tragedy the law adds a twist; the law is different for those on the ground and those within the helicopter, despite the fact it is the same accident.
For those on the ground to be compensated someone must be at fault. If the victims or their families can prove this they can make a claim for their loss within 3 years of the date of the accident.
For those on board the helicopter it is quite different. The aircraft carrier accepts liability for any accident as a condition of carriage, even when there has been no negligence. The only proof required is that an accident occurred on an aircraft and that injuries were sustained. Under this law the carrier will be liable for death or injury caused to passengers. The liability is unlimited unless the carrier can prove they were not in any way at fault. In that event liability is limited to 100,000 special drawing rights SDRs defined and valued under the Montreal Convention. So the burden of proof is on the Carrier to escape unlimited liability, but even if there is no fault there is some automatic compensation albeit limited.
For those affected on the ground, claims must be made within 3 years and for those on board the aircraft it is 2 years.
This legal distinction between those on board and those on the ground can lead to very different outcomes albeit all were involved in the same tragic event. Many will think this bizarre.
For all, the Fatal Accident Inquiry will be crucial in exploring what caused this accident and why. In reality much will depend on what the AAIB find.
For all concerned the way ahead will be long, drawn out and fraught with legal hurdles. As always it will be the victims and their families who will have to shoulder this burden.
Professor Watson has been involved in some of the biggest litigation claims in British legal history including Piper Alpha, Lockerbie, Dunblane, RAF Chinook Crash and the Glasgow Air Crash.