Domestic carriage – liability for injury or death of a passenger
What laws in your state govern an air carrier’s liability for passenger injury or death during domestic carriage?
Section 55(2) of the CAA 2022 provides that the Montreal Convention as amended and set forth in the Second Schedule to the Act, as amended from time to time, shall have the force of law upon coming into force of the Act and will apply to non-international carriage regardless of the nationality of the aircraft performing the carriage. The Amended Agreement will govern, subject to the provisions of the Act, the rights and responsibilities of carriers, passengers, shippers, consignees and other persons under the Amended Agreement.
Nature of carrier’s liability
What is the nature and conditions of an air carrier’s liability?
The liability of an air carrier in the context of internal transport is that stipulated in the amended version of the Montreal Convention made applicable to internal transport. It is based on the “strict liability” of the carrier and is subject to the terms of the Montreal Convention concerning exemption and limitation of limits of liability.
Limits of liability
Is there a limit of the carrier’s liability in the event of bodily injury or death?
In the event of death or injury of passengers, the monetary limit for which the carrier cannot exclude or limit its liability is set at US$100,000 – article 21 of the Montreal Convention as amended. It is envisaged that the courts will uphold this limit subject to a claimant’s ability to rebut the defenses available to the carrier in Article 21(2).
We are not aware of any limitation of liability for personal injury or death incorporated into any notice or contractual agreement.
What are the main defenses available to the air carrier?
The defenses available to the air carrier are the defenses set out in the Montreal Convention. With respect to personal injury or death, the two main defenses available to the carrier are: that the damage was not due to the negligence or other wrongful act of the carrier or its servants or agents and that the damage was solely due to the negligence or other wrongful act or omission of a third party.
Is the air carrier’s liability in the event of damage joint and several?
The air carrier’s liability for injury or death of a passenger under the amended Montreal Convention is circumscribed in Articles 17 and 21 and a claimant’s claim against the air carrier for damages in this respect must come directly under the Convention. Liability is not joint and several.
Allocation of fault rule
What rule do the courts in your state apply to apportion fault where the injury or death was caused in whole or in part by the person seeking relief or the person from whom the right arises?
The issue of contributory negligence for air carrier liability has yet to be heard in the Nigerian courts. However, under general law in Nigeria, the effect of a successful contributory negligence plea is the apportionment of blame between the parties and, therefore, an apportionment of liability.
There are no statutory provisions that specifically set out the principles courts must follow in apportioning fault or assessing recoverable damages where the defense of contributory negligence has been successful. Case law suggests that it falls within the discretionary power of a court, which must be exercised judicially and judiciously based on the evidence presented before the court. In a specific case of recovering damages for injuries caused to a motorcyclist by a vehicle, the trial court found that the accident was caused by the negligence of the motorcyclist but proceeded to apportion the damages between the plaintiff and defendant. The Supreme Court reversed the decision and held that the defendant should not pay damages given the finding that the plaintiff was solely responsible.
There is little Nigerian case law on the application of the principle of contributory negligence to minors and persons with impaired mental capacity. In keeping with the practice of Nigerian courts to regard the decisions of other common law jurisdictions as a persuasive authority on undecided issues, the decisions of these courts will provide some direction as to how such issues will be decided. For children, a review of case law in England suggests that the age of the child is a key factor in determining whether or not the child is responsible for contributory neglect. As suggested in Fleming v Kerry County Council, there must be a certain age up to which the child cannot be guilty of contributory neglect. In other words, there is a certain age until which a child cannot be expected to take precautions for his own safety. In cases where contributory negligence is alleged against a child, it is for the trial judge to decide, in each particular case, whether the plaintiff, having regard to his age and mental development, can legitimately expect him to take certain precautions for his own safety and, therefore, be liable to be guilty of contributory negligence. Having found in the affirmative, it becomes a question of fact for the jury, on the basis of the evidence, to determine whether he has failed to meet the standard that might reasonably be expected of him in view of his age and development. In the case of an ordinary adult, the standard is what one would expect of a reasonable person. In the case of a child, the standard is what can reasonably be expected, having regard to the age and mental development of the child and the other circumstances of the case.
What is the time limit within which an action against an air carrier for injury or death must be brought?
The action against an air carrier for injury or death must be brought within the two-year limitation period provided for in Article 35 of the Montreal Convention. The cases determined under the Warsaw Convention in Nigeria have recognized and upheld the time limit set out in Article 29 of the Warsaw Convention and it is expected that the issue of limitation under the Montreal Convention will follow the precedent established in these cases.
In Nigeria, an action is deemed to have been brought or commenced against a party on the date the instituting proceedings are filed in court. In this regard, in order to determine whether the action was brought within the time stipulated by a statute of limitations, courts generally examine the plaintiff’s pleadings to determine the date on which the cause of action arose such as established by plaintiff and compare it with the date of filing of the document initiating proceedings. If the time between these two time limits is greater than the limitation period for taking legal action, the action is deemed to be time-barred and will be dismissed.