My client and her husband were on their way to Cancun, Mexico on an Air Transat flight from Vancouver. They had purchased a package vacation which included hotel, transfers and the flight to the holiday destination. They were looking forward to an active vacation including visiting ruins and going parasailing. They had been to the same resort before. They decided to return.
The couple was seated in the last row of the Air Transat aircraft. Behind them was a corridor. At the other end of the corridor the flight attendants stored the food carts that are wheeled though the cabin.
Unfortunately, one of the flight attendants had forgotten to attach one of the food carts prior to landing. The landing was a hard and fast one. When the plane touched down the brakes were applied heavily. The food cart hurtled forward, rolled down the corridor gathering speed and struck the back of my client’s seat. This produced a whiplash injury that was severe. There was permanent physical injury. Medical evidence presented at trial showed that my client suffered injury to the paraspinal muscles of her cervical spine and upper back. This injury caused irritation of the lower nerves of the brachial plexus.
The injury ruined the vacation for both of them. My client wore a neck brace. She took medication. She lay in her room or by the pool. She was in pain. The doctor told her not to go to the beach. She could only do short walks.
In addition to the physical injury there was psychological injury. My client was diagnosed with major depression, chronic pain disorder and PTSD.
The trial took eleven days. Mr. Justice Funt’s decision awarded damages for psychological injury for the first time in Canadian history in a case that was governed by the Montreal Convention. This convention provides for automatic compensation for the passenger when there is an accident on an international flight, but it limits the amount that will be paid for that injury. From the inception of this international treaty and its predecessor, all payments had been for bodily injury only. However, starting in the United States, injured passengers began to recover for a psychological injury when that injury was the result of a bodily injury. Mr. Justice Funt found that this principle applied in this case.
In addition, Mr. Justice Funt awarded damages for the spoiled holiday, something that had never been awarded before under the Montreal Convention. My client received a refund of the cost of the vacation for herself and her husband and an additional amount, not quantified, as solace for the pain and suffering experienced during the spoiled holiday.
Cases governed by the Montreal Convention are examined around the world and cited in cases dealing with similar issues. The decision of Mr. Justice Funt was cited by the United States Court of Appeals for the 6th Circuit in the Etihad case. Wettlaufer v. Air Transat