Air Canada 624 Crash: Is a Class Action the Right Approach?

by John McKiggan

Over the last 72 hours new coverage in Nova Scotia has been dominated by stories involving the crash (or “hard landing” as Air Canada prefers to describe it ) of Air Canada flight 624.

Most of the coverage has revolved around how the crash happened, why it happened, and concerns about the delayed response to passengers who had to wait on the tarmac for rescue.

Class action being filed?

As a lawyer who practices class action litigation I have to say I was surprised to see reports in the media less than 72 hours after the crash that two firms in Halifax are considering filing a class action on behalf of the passengers of AC624.

Class actions are a tremendously flexible tool that provides access to justice for plaintiffs who have claims that may otherwise be too expensive to bring to court.

But is a class action really the best option for the passengers for AC624?

No serious injuries?

There were 133 passengers on board the aircraft. According to media reports no one was seriously injured.

CBC reported Airport officials indicated:

“Twenty-three people on board were taken to hospital, none with critical injuries.”

Global news quoted a spokesperson for Air Canada as saying:

“All of us at Air Canada are greatly relieved that there have been no critical injuries as a result of this incident,”

It appears, based on initial reports, that the majority of the passengers managed to escape the crash with little or no physical injuries.

That being said, just like a car accident, the initial injuries may not appear to be significant, but may give rise to longer term discomfort or pain.

Psychological distress?

Media reports indicate one of the passengers is considering filing a class action for compensation for the psychological trauma he suffered in the crash.

There is no doubt that the experience would have been extremely frightening and traumatic. I suspect that some of the passengers may have emotional or psychological consequences stemming from the crash.

But if passengers have suffered psychological distress, is that the type of harm that they are entitled to receive compensation for?

Compensation for mental distress in Canada

The difficulty is that it has been challenging for plaintiffs who have suffered psychological, but not physical, harm from a negligent act to recover compensation.

The case law surrounding compensation for mental harm (what was previous referred to as “nervous shock”) typically found that only nervous shock that produced a physical condition was recoverable under negligence law.

The courts usually ruled that if the plaintiff had not suffered a physical injury in addition to the psychological harm, they were not entitled to compensation for psychological injuries.

History of compensation for psychological harm in Canada

In 1953 in the Supreme Court of Canada decision Guay v. Sun Publishing a plaintiff claimed to have suffered mental distress after reading a news report about the death of her husband and children. The report turned out to be incorrect. The plaintiff sued for compensation.

Estey J. agreeing with the majority denied the plaintiffs claim for compensation and referred to Pollock on Torts:

“A state of mind such as fear or acute grief is not in itself capable of assessment as measurable temporal damage. But visible and provable illness may be the natural consequence of violent emotion, and may furnish a ground for action against a person who’s wrongful act or want of due care produced that emotion…in every case the question is whether the shock and the illness were in fact natural or direct consequences of the wrongful act or default; if they were, the illness, not the shock, furnishes the measurable damage, and there is not more difficulty in assessing it than assessing damages for bodily injuries of any kind.”

[Emphasis added]

Fifty years later, in the 2003 of the Supreme Court of Canada addressed the issue again in Odhavjai Estate v. Woodhouse. The Supreme Court indicated that in order to recover compensation for psychiatric injury the plaintiff must prove that they suffer from a “recognizable physical or psychopathological harm”.

The Supreme Court of Canada used the same “visible and provable illness” test in its subsequent decision in Odhavjai.

So since the 1950’s compensation for mental distress in Canada has required that a plaintiff who suffered injury as a result of negligence prove that any mental harm was a consequence of a physical injury or that the mental distress was a recognized psychiatric injury as defined in psychiatric diagnostic tools like the DSMV.

Did Mustapha change the rules?

In 2008 the Supreme Court of Canada heard the appeal in Mustapha v Culligan of Canada Ltd. In that case the plaintiff developed a psychological illness after seeing a fly in a bottle of water that had been delivered to his home by the defendant Culligan of Canada.

The Supreme Court of Canada accepted that psychological injury can, in some cases, give rise to damages. However, the court held the injury in the Mustapha case was too remote. While the case is usually referenced with respect to its analysis on the test for remoteness in negligence claims there is some commentary on the circumstances under which mental harm can give rise to compensation.

The Court distinguished between “psychological disturbance that rises to the level of personal injury” and mere “psychological upset”.

The court stated:

“The law does not recognize upset, disgust, anxiety, agitation, or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometime reluctantly, accept…quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.”

What does this mean for the passengers of AC624?

Any of the passengers who suffered physical injury are entitled to compensation because they were injured through no fault of their own. They would also be entitled to compensation or any out of pocket expenses they suffered for things like lost luggage, delayed flights etc.

However, as media reports have indicated, few of the passengers appear to have suffered any significant physical injuries. Therefore, while they may be entitled to compensation the amounts involved would be comparatively insignificant.

This means that it would likely not be practical for passengers to sue for compensation for their physical injuries. Under such circumstances a class action might seem to be the appropriate remedy.

However, it has also been reported that Air Canada has been contacting the passengers to offer them compensation directly. If that is the case, and the measure of compensation being offered by Air Canada is similar to what the passengers would be entitled to receive if they successfully sued the company, then it may be not be necessary for passengers to participate in a class action.

In fact the class action may not even be certified. One of t5he factors the courts look at in determining whether to certify a class action is whether the class action is the “preferred procedure” for awarding compensation. If there is an alternate means by which class members can receive fair compensation, the courts may not certify the class action.

So what should passengers of AC 624 do?

As in any case involving the determination of legal rights, the best thing for passengers to do is to get legal advice in order to guide them in their decision making process.

If they have been offered compensation for their injuries they should contact a lawyer experienced in personal injury law to determine whether the amount of the compensation being offered is fair and reasonable.

If they have suffered more significant losses then they may want to consider pursing an injury claim on their own behalf rather than participating in a class action.

If the injuries they have suffered are solely limited to psychological injuries for mental distress there may be some difficulty in recovering those types of damages in a traditional personal injury claim.

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