An article I read recently highlighted the possibility of germs, bacteria and other disease-causing pathogens on aircraft, particularly in toilets, reservoir water tanks, on seats, seat belts, inflight entertainment touch screens, door handles, food trays and cabin air.
Aircraft transports thousands of passengers to various destinations on a daily basis. The potential for disease causing pathogens on an aircraft rises with every boarding pass issued, increasing the possibility of contracting typhoid, cholera, influenza, urinary tract infections, fungal infections, viral hemorrhagic fevers and a lot more during flight.
Does contracting disease during flight impute negligence on part of an airline?
The tort of negligence under English common law has three ingredients; a duty of care, breach of the duty of care and damage directly resulting from the breach.
A DUTY OF CARE
The contract of carriage is concluded once a passenger has purchased an airline ticket, and is accepted on board an aircraft for purposes of travel. Airlines have several obligations under this contract. Under Article 17 of the Warsaw Convention (1929), a carrier is liable where a passenger dies, is wounded or suffers bodily injury on board the aircraft. Article 17 of the Montreal Convention (1999) is similarly worded.
Bodily injury includes physical injury, sickness and disease. So, airlines owe passengers a duty of care under the contract of carriage.
ALSO Read: What you should know about onboard hygiene
This duty of care is limited to infections that may spread to passengers due to improper cleaning or disinfecting of aircraft. Airlines are not liable for infections that spread directly from other passengers by droplet transmission, unless evidence available suggests that there were indicators of poor health on part of the infector, and it was reasonably foreseeable by airline staff that granting him/her boarding permission in that state would spread infections to other passengers.
Thus the “but for” test has to be satisfied. In such circumstances, an aggrieved passenger could successfully argue that they would not have contracted disease but for conduct of the airline officials who boarded a visibly ill or infected passenger, thus leading to spread of infection during flight.
BREACH OF THE DUTY OF CARE AND DAMAGE DIRECTLY RESULTING FROM THE BREACH
Res Ipsa Loquitur (Latin for “the thing speaks for itself”) infers negligence, especially if a passenger aboard an aircraft contracts an infection leading to illness or even death. By failing to effectively clean and disinfect aircraft, or boarding passengers who are visibly ill and should not be allowed to travel by aviation industry standards, an airline would be in breach of its duty of care, and is responsible for any infections that may be contracted.
However, negligence, just like any action in courts of law, has to be proved. This is quite difficult in the case of airlines, because infections or resulting illnesses do not show up instantly. For instance, Cholera symptoms begin 1-5 days, while typhoid symptoms begin 6-30 days after exposure to the bacteria.
In the case of droplet infections from visibly ill passengers, tests have to be conducted to prove that the aggrieved passenger suffers from the same ailment and that a similar strain of pathogen was passed from the infector to the infected. At the time of diagnosis, the infector could be thousands of miles away. This complicates the process of obtaining evidence.
Travelling from New York to East Africa aboard a European or Gulf carrier is a 20- to 40-hour journey, including transit time. If a passenger picks up an infection from one of the aircraft used for travel, chances are it will fly between five to fifty additional sectors after he/she has disembarked, carry thousands of passengers, and evidence of the infectious material on board may have disappeared by the time a diagnosis reveals the infection and its possible source.
In addition, the suspected aircraft(s) might be flying in jurisdictions several thousand miles away. Obtaining a Court order for purposes of searching and conducting tests to obtain evidence of disease causing pathogens, would be expensive, time consuming, and most probably a futile exercise.
Under the Warsaw and Montreal Conventions, a number of defenses are available to airlines, for instance, contributory negligence by the passenger, and that the airline did all it could in the circumstances to prevent spread of infections. The airline could also argue that the passenger probably contracted the infection from the busy airport terminal, before getting to the airport or after leaving the aircraft. Challenging this argument-especially in the developing world where hygiene standards in public places are generally not the best- would be an uphill task.
Bacteria and other pathogens may not be completely eliminated when aircraft are cleaned. Labels on common cleaning and disinfectant solutions indicate that they eliminate 99 percent of disease causing germs. This means that just like in any other environment, passengers have a duty to practice good hygiene while onboard aircraft.
Prevention is better than cure.
This post was earlier published in eTurboNews December 12, 2016 When airlines are liable for the spread of communicable diseases.