A US Court may provide the flexibility needed for passengers of a Qantas flight that plunged hundreds of metres to sue the aircraft's manufacturers for psychological damages. Angela Priestley reports

It's difficult to dispute the feeling of sheer terror that passengers may have felt when their Qantas aircraft suddenly plunged hundreds of metres towards the Earth during a flight to Perth in 2008.

While the flight eventually landed safely in Learmonth, WA - with many of the passengers on board suffering both minor and major physical injuries - the 20 seconds of terror, followed by a second 17 second plunge, could hardly be forgotten.

But is it enough to claim compensation for psychological damages?

According to American lawyer Floyd Wisner, it is. He's launched a class action in the US targeting manufacturers Airbus and Northrup Grumman - the manufacturer of the airplane's air data inertial reference unit.

More than 120 passengers on board the 2008 Qantas Flight 72 from Singapore to Perth, including 90 Australians, have now joined the class action - with a two-year statute of limitations regarding the incident due to expire on 7 October.

While the physical injuries some passengers suffered as a result of the two plunges may be relatively straight-forward to prove, the psychological injuries are a different matter all together. Claiming for such damages would be highly difficult in Australia, but a Chicago-court may just be more amenable.

"It's not a matter of just turbulence," explains Wisner. "Everyone experiences some turbulence on a flight. I would never try to bring a suit against an airline or anybody else for just turbulence. The issue is that this plane went into a plunge twice towards the ocean where people thought they were going to die."

For the claimants, a US court will allow for a component of aviation compensation claims known as "pre impact terror", which is the psychological damage a person goes through during an air crash.

"That's a big part of a case in the US, and one that we always include. We have experts who talk about that - what your body and mind goes through.

"I've had cases before where a plane went into a dive because of a mechanical function from 30,000 feet and it takes a while to get to the ground. What the body goes through is very unsettling."

Wisner claims that the aircraft was defective and "unreasonably dangerous" at the time it left the custody of Airbus across a number of possible areas - including the aircraft's air data inertial reference unit and its flight control computers which were reported to have presented dangerous flight control movements.

In Australia, meanwhile, separate claims are being pursued against Qantas. Peter Carter, from Carter Capner Law, confirmed with Lawyers Weekly that he is representing around 30 passengers in suing Qantas for their liability in the incident, as carrier under the relevant international conventions. While Carter can't act on behalf of the crew of pilots because they don't qualify for the claim, he says there are some individuals participating in both the claim against the manufacturers, and Qantas.

"People can't recover twice for the same loss, but claims have to be won first," he says. "Some people think it's better to have a foot in two camps."

But in Australia, pursuing any kind of damages as a result of injuries sustained on an aircraft is particularly difficult. According to Tom Goudkamp, the managing director of Stacks/Goudkamp, passengers who sustain injuries while on an aircraft are entitled to compensation under the Warsaw Convention - which was ratified in Australia by the Civil Aviation (Carriers Liability) Act 1959 as well as corresponding state law, but liability under the Convention is generally strict, and there is a limit on damages - althought these have been opened up somewhat by the Montreal Convention, ratified by Australia in 1999.

As for claiming compensation for psychological injuries, Goudkamp says the situation becomes even more complicated in Australia.

"At common law, people who have sustained only psychological injuries as a result of accidents are generally entitled to recover compensation if they can prove that they have a recognised psychological condition, and if a person of normal fortitude would have sustained psychological injuries in the same circumstances," says Goudkamp.

"It may be more difficult to claim for a psychological injury under the Warsaw Convention if a physical injury has not also been sustained," adds Goudkamp, referring to the 1998 case, American Airlines Inc v Georgepoulos and Anor.

Goudkamp says if an injured individual can prove the injury was caused by the negligence of someone other than the carrier, "there may be entitlements to claim greater compensation under product liability laws of the relevant State or Country."

Indeed, Goudkamp has been successful in such a case, having sued Teledyne Continental in Mobile, Alabama on behalf of a woman who was seriously injured and the only survivor of a Cessna crash at Picton, when the engine suddenly failed and the plane fell out of the sky.

As for the passengers on Flight 72, their claim in the US appears to be in good hands. Wisner's firm, Wisner Law Firm, has successfully claimed compensation for the families of victims of numerous major airline disasters over the last 15 years. Compared to his other cases, however, he says this case is unique in that the two nose dives on the Qantas flight did not result in death.

Still, he believes they could have. Currently involved in a compensation claim surrounding the 2009 Air France 447 disaster, Wisner says it shares some "troubling similarities" with the Qantas plunge.

>> Expert view: Middletons' Ronald Bartsch on the QF72 class action

Lawyers Weekly asks Ronald Bartsch, a Middletons aviation consultant and former senior executive with Qantas, to respond to questions regarding the QF72 class action against Airbus and other manufacturers of the aircraft involved in the incident. [read more]