News and Insights
28 September 2016
Flight 4U9525: a tragedy that raises so many questions.
German airline Lufthansa and its Germanwings subsidiary could be liable for hundreds of millions of pounds in compensation claims unless they are able to prove that the crash was not their fault.
Travel by air is, statistically speaking, safe. Each year, more than 3 billion air passengers are carried safely. Despite several high profile incidents last year, 2014 was the safest year ever for passengers, with one fatal accident per 2.38 million flights.
The Civil Aviation Authority has reported that there is one fatality for every 287 million passengers carried by UK airlines. Putting that into context, the chances of being struck by lightning are said to be around 19 million to 1.
However, accidents do happen. The recent tragedy of Germanwings Flight 4U9525 from Barcelona to Dusseldorf, which crashed into the French Alps on Tuesday 24 March, killing all 150 people on board, made headline news, particularly in the light of emerging evidence that that the co-pilot intentionally crashed the plane.
Investigations are continuing but it is becoming apparent that the German airline Lufthansa and its Germanwings subsidiary could be liable for hundreds of millions of pounds in compensation claims unless they are able to prove that the crash was not their fault.
Crash victims’ compensation rights
When accidents and incidents occur, the Montreal Convention 1999 (the “Convention”), a multilateral treaty adopted by International Civil Aviation Organisation (ICAO) member states, establishes airline liability in the case of death, injury or delay to passengers. Generally speaking, an airline cannot avoid liability for death of a passenger.
Under the Convention, Germanwings is strictly liable for up to £105,000 for each passenger; a total of around £15m for the 144 passengers on board. The compensation due to the families of the 6 crew members is calculated under a different regime.
But the financial ramifications for the airline may not end there; the Convention does not preculde victims’ efforts to seek further compensation and families are likely to sue the airline in negligence. According to Article 21 of the Convention, in order to avoid liability, an airline must establish that it is free from fault and that the crash was not due to “negligence or other wrongful act” by its employees.
On the evidence that has emerged so far, it would appear that the airline will find it difficult to mount such a defence: the crash almost certainly occurred owing to the wrongful act of a Lufthansa employee, the co-pilot.
It was claimed in the days after the crash that the co-pilot, Andreas Lubtiz, had spent 18 months in psychiatric treatment and had been designated “not suitable for flying” by the Lufthansa pilot training centre. The German newspaper Bild reported that he had to repeat classes because of depression, needed ongoing medical assessment, and was given a special coding on his pilot’s licence. A police search of Lubitz’s flat in Dusseldorf reportedly uncovered a number of torn-up medical documents, including a doctor’s note covering the day of the incident, which Lubitz appeared to be concealing from his employer. A leaked medical report has suggested that Lubitz was consulting at least five doctors, including psychiatric specialists and a neurologist.
What should we protect - data or people?
The crash has raised the important, and much debated, question of when public safety should outweigh doctor/patient confidentiality. Generally speaking, whilst there is no standard across the aviation industry, pilots face regular tests as to their physical capacity but are often expected to self-declare issues such as depression. The mental health of commercial pilots in the United Kingdom and Germany is assessed as part of pilots’ medical exams, which are typically carried out every year. It is understood that Lufthansa requires its pilots to undergo psychological assessment on a more regular basis. However, the success of this (and any similar) regime depends upon doctors being able to identify signs of trouble and having the freedom to report them to the appropriate airline/aviation authority. Care must be taken with any process whereby a doctor can violate the confidence of a patient.
Any reporting of suspicions will, inevitably, conflict with data protection legislation. Personal privacy is an oft-debated topic in Germany, which, as a result of its experiences in the twentieth century, has some of the strongest data protection laws in the world. Generally, German federal law prohibits health providers from disclosing a patient’s sensitive personal information, such as mental health treatment information. Disclosure of confidential personal information is only permitted in very limited circumstances, namely “to avert substantial threats to state security or public safety”. It is very likely that, if Lubtiz’s doctors had actual knowledge, or a reasonable suspicion, that he could deliberately crash a plane, disclosure would have been allowed. However, in the absence of a clear and substantial threat, German law would most likely have required the protection of the patient’s confidential information to prevail. In addition, posthumous disclosures of confidential medical information are also protected under German law. If families of victims issue proceedings, they may find themselves forced to obtain court orders for disclosure of Lubitz’s medical records.
A review of this issue is likely to involve grappling with the following. Since the lives of passengers are in the hands of the pilots, should there be a clause within their employment contracts that require them to waive their medical confidentiality?
Initial reaction in Germany to calls for access to records appears to be one of reluctance to change the status quo. The Federal Representative for Data Protection, Andrea Vosshoff, told Berlin’s Tagesspiegel newspaper: “The airplane tragedy and the background that has become known so far, should not lead to a premature demands for the loosening of data protection.” He added that it would be “mistaken to question the high protection which health data rightfully enjoys.”
Is the risk of a repeat of the tragedy high enough to justify a change to the approach to medical confidentiality? Many have called for relaxed restrictions on disclosing mental health conditions or other medical information in order to prevent future tragedies. It is very difficult to assess whether relaxed restrictions would indeed do so. There are concerns that without patient confidentiality, individuals might end up hiding information from their doctors and employers, (as appears to have occurred in this case).
Forum shopping – choosing the court that awards the most
The Convention does not place a ceiling on compensation payable, leaving it instead to national courts to decide how much money is appropriate for the loss of a relative. Claims for damages could be brought in any of several jurisdictions, including Germany or in the home countries of the passengers, such as Spain, England, Australia and the United States. The approach taken by national courts varies widely; for example the German legal system discourages litigation and is very stringent when putting a value on loss of life, whereas courts in the United States are well known for awarding large payouts to families, to the extent that insurers tend to offer bigger settlements to American families to avoid the risk of costly litigation in the United States. The quantum of damages will be calculated on a case by case basis. The deceased’s age, earning capacity and number of dependents are likely to be the primary factors taken into account.
For now we can only speculate as to the level of damages faced by the airline and its insurers and as to the potential impact upon data protection and medical confidentiality. It is likely that claims will be settled out of court, so we may never know the true financial implications of this tragedy.