We, at Malcolm Lyons and Brivik Inc., have litigated various aviation incidents
including both domestic and international incidents.
Aviation accidents are not limited to airplane or helicopter crashes, but
have also included, in our practice, hot air balloon incidents and injuries
arising out of paragliding accidents.
The distinction between a domestic and an international aviation matter lies
not where the accident took place, but whether the flight would fall within
definition out of the WARSAW convention.
International carriage is defined as a contract made by parties where the
place of departure and destination are situated either within territories of
two high contracting parties, in other words in territories subject to a
different sovereign or mandate of authority.
The incident may have geographically happened in South Africa, but if the
flight was destined to fly abroad would be considered to come under the
WARSAW convention.
Should that be the case, the litigation may be brought on behalf of the
survivors or family of the deceased either in the airlines’ principal place of
business alternatively the place at which the airline conducts its business or
alternatively where the contract was made i.e. the ticket issued or finally in
the country of destination.
The damages, however, would be calculated in accordance with the country
in which the incident took place.
The recovery of damages is limited to 250 000 francs or 16 600 special
drawing rights. The value of the drawing rights is amended periodically.
If the incident involves a domestic flight i.e. the helicopter ride or short
haul flight in a small airplane, negligence must be shown against the pilot
alternatively the authorised maintenance organisation alternatively the
manufactures of the aircraft in order for a claim to be sustainable.
Once negligence is shown on the part of either one of those parties, then
the claim for compensation is calculated as follows:
1. Recovery of all medical and hospital expenses;
2. Recovery of all future medical and hospital expenses;
3. Any past and future loss of earnings; and
4. General damages for pain and suffering.
Should a claim fall within the WARSAW convention, it must be lodged
within two years of date of the incident which differs from the ordinary three
year period which would apply in other delictual matters.
You can contact Malcolm Lyons and Brivik Inc. should you or a member of
your family be a victim of an aviation incident.
