Air Navigation and Transport (International Conventions) Act 2004

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Liability of carrier if a passenger dies.

7.—(1) In this section—

“dependant”, in relation to a passenger in respect of whose death a liability is imposed on a carrier by a relevant Article, means any of the following persons who has suffered injury or mental distress because of the death:

(a) the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister, stepbrother or stepsister of the deceased;

(b) a person whose marriage to the deceased—

(i) has been dissolved by a decree of divorce that was granted under the Family Law (Divorce) Act 1996 , or

(ii) has been dissolved in accordance with a law of a country or jurisdiction (other than the State), but only if the dissolution is recognised in the State;

(c) a person who, although not married to the deceased passenger, had, until the date of death, been cohabiting with the deceased as the deceased's spouse for a continuous period of not less than 3 years;

“relevant Article”—

(a) in relation to the Warsaw Convention, means Article 17 of that Convention, or

(b) in relation to that Convention as amended, means Article 17 of that Convention (as amended), or

(c) in relation to the Montreal Convention, means Article 17 of that Convention.

(2) For the purposes of subsection (1), a person who is acting as a guardian or parent of a child is taken to be a parent of the child.

(3) Any liability to pay damages imposed on a carrier in respect of the death of a passenger by the relevant Article supersedes a liability of the carrier in respect of the death of the passenger under any law of the State (including the common law).

(4) The following provisions have effect in relation to the action to enforce such a liability:

(a) the liability is enforceable for the benefit of the dependants of the deceased passenger;

(b) only one action for damages may be brought in the State against the same person in respect of the death;

(c) the action may be brought—

(i) by the personal representative of the deceased passenger, or

(ii) by all or any of the passenger's dependants, if, at the end of 6 months after the death of the passenger, there is no personal representative for the passenger, or if, within that period, there is such a personal representative but that representative has not brought an action within that period;

(d) the action is for the benefit of all the dependants of the deceased passenger who either reside in the State or, if not residing in the State, express a wish to benefit from the action;

(e) the plaintiff must provide the defendant with particulars of the persons for whom the action is brought;

(f) subject to paragraph (m)—

(i) the damages are to be the total of such amounts (if any) as the court considers proportionate to the injury resulting from the death to each of the dependants, respectively, for whom the action is brought, and

(ii) subject to paragraph (g), the total of the amounts (if any) as the court considers reasonable compensation to each of the dependants for mental distress resulting from the death;

(g) the total of all amounts (if any) awarded under paragraph (f)(ii) may not exceed—

(i) the amount specified in paragraph (b) of section 49 (1) of the Civil Liability Act 1961 (as amended by the Civil Liability (Amendment) Act 1996 ), or

(ii) if an order made under subsection (1A) of that section (as inserted by section 2 of the Civil Liability (Amendment) Act 1996 ) specifies another amount for the purposes of that paragraph, that other amount;

(h) each amount awarded under paragraph (f) must be indicated separately in the award;

(i) in addition, damages can be awarded in respect of funeral and other expenses actually incurred by the deceased passenger, or by the deceased passenger's dependants or personal representative, as a result of the accident that caused the passenger's death;

(j) if the defendant decides to pay money into court in respect of the action, the money can be paid as a single sum as damages for all the dependants without apportioning it among them;

(k) the amount recovered in the action must, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as the court determines;

(l) in assessing the damages, the court may not take account of any sum payable on the death of the passenger under a contract of insurance, pension, gratuity or other similar benefit payable (whether under an enactment or otherwise) in consequence of that death;

(m) the court before which the action is taken may, at any stage of the proceedings, make such orders as appears to it to be just in view of—

(i) the applicable provisions limiting the liability of the carrier, and

(ii) any proceedings that have been, or are likely to be, taken outside the State in respect of the death of the passenger;

(n) a person referred to in paragraph (b) of the definition of “dependant” in subsection (1) is not entitled to be awarded damages in respect of mental distress alleged to have been caused to the person by the deceased's death;

(o) in fixing damages to be awarded to a person referred to in paragraph (c) of the definition of “dependant” in subsection (1), the court shall consider whether or not the person had an enforceable right to financial maintenance by the deceased and, if it finds that the person had no such right, shall take that fact into account, along with any other relevant consideration.