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.

Do you know of any international cases that this claim might compare to - particularly where the claim involves injury, rather than death?

There are few aviation cases of this type litigated in Australia as compared to the United States where there have been numerous such claims (for both death and injury and even pure economic damage) relating to defective products in commercial aviation. In the US, the primary recognised causes of action seeking to recover for loss or injury caused by defective products is strict liability, negligence and breach of implied warranty. Product liability is imposed by state law in the US and varies significantly between states. Generally, most states recognise three types of product defects; namely manufacturing defects, design defects and warning or other marketing defects. Product liability claims can be based on negligence, strict liability, or breach of warranty of fitness, depending on where the claim originates. Most of the time, product liability is considered a strict liability offence.

How does this aviation compensation claim compare, in terms of size, to similar claims internationally?

This claim is not likely to result in anywhere near the amount of previous awards of damages in which there have been multiple deaths. However, in terms of the number of injuries and the seriousness of them, it has the potential to be comparable with some of the largest such claims.

What's your understanding on why the claim is being pursued in a US court?

There are many reasons why this claim is being brought by the plaintiff lawyers before the US courts. First, and probably most fundamentally, is the various causes of action, as mentioned previously, that can be brought against manufacturers and others in respect to defective products and services. This case, as with most claims in respect to international air transport, presents complex jurisdictional issues.

Previously under the Warsaw System, and in accordance with the doctrine of forum non conveniens, the jurisdictions in which actions could be brought were limited to: 1) the domicile of the carrier; 2) the country in which the carrier has its principal place of business; 3) a country where the carrier has established premises by which the ticket was purchased or the contract for carriage was made; and 4) the country that was the claimant's destination. Under this system, plaintiff lawyers often still argued that claims should be heard in the US jurisdiction and usually before the US Court of Appeals for the 9th Circuit.

Following the ratification by Australia, along with some 100 other nations, of the Montreal Convention 1999, most air claims are dealt with under the new regime. Now, under the Montreal Convention, in addition to the options available under the Warsaw Convention, a claim for damages may also be brought in the country where the passenger resides at the time of the accident, provided that it is a country from which the carrier operates and where it has a premises. This means that a significantly greater number of claims are now likely to end up before US courts.

Finally, though certainly not least, damages awarded by jury courts in the US for such claims are of the highest payouts in the world. The extensive award of not only general damages but of exemplary or punitive damages (which are not usually awarded in Australia), particularly in respect to aviation accidents, are often in the order of tens of millions of dollars and sometimes even greater.

Should this compensation claim be successful, what do you believe could be the ramifications for Qantas?

I would not expect there would be any significant ramifications for Qantas Airways in this instance. There were no findings of fault on behalf of the carrier or any of its contractors. Indeed, the Australian Transport Safety Report (ATSB) into the accident found that there were no contributory factors on behalf of Qantas and the actions taken by the pilots and other flight crew were found to have been exemplary.

What arguments would you expect Airbus - alongside its associated suppliers - to use in its defence?

Aibus would very much like the case to be heard in Australia for the reasons stated previously. In fact, Airbus filed a motion to transfer the case to Australia but it is almost certain that the claim will be heard before US courts. This is not the first claim that the plaintiffs lawyers, US-based Wisner law firm, have brought against Airbus. Wisner was successful in obtaining a confidential multi-million dollar settlement for their clients in respect to the crash of American Airlines Flight 587 in 2001 on takeoff from New York's John F Kennedy International Airport. In that incident, the Airbus A300 aircraft involved lost its vertical tail (rudder) and crashed into the Belle Harbor neighbourhood, killing all onboard and five others on the ground. During that case, Airbus argued, inter alia, that the crash was mostly American Airlines' fault in that the airline did not train its pilots properly in respect to the characteristics of the rudder. The National Transport Safety Bureau (the US equivalent to our ATSB) report into the accident lent support to this argument, in that American Airlines' Advanced Aircraft Manoeuvring Program (AAMP) tended to exaggerate the effects of wake turbulence on large aircraft. However, in relation to this incident, the findings of the ATSB do not support such a case against the carrier, Qantas. It will indeed be interesting to see what other arguments Airbus and the manufacturer of the allegedly "faulty" air data inertial reference unit (ADIRU) may present to the court.

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