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Air France Class Action Settlement Approved
Published in the January 2010 issue of Transportation Notes - View Article
On December 24, 2009, Justice Lax of the Superior Court of Justice of Ontario approved a partial settlement of the class action for damages arising from the Air France accident involving Flight 358 on August 2, 2005. The accident occurred when the aircraft overshot the runway on landing at Pearson International Airport in Toronto. Although there were no deaths, some passengers were seriously injured.
The passenger class brought an action against the following parties: Air France, the Captain and First Officer (collectively “Air France”); the Greater Toronto Airports Authority (“GTAA”); Airbus S.A.S., the manufacturer of the A340 aircraft; Goodrich Corp., the manufacturer of the emergency evacuation system and slides for the aircraft; and NavCan, the provider of air traffic control and navigation services at Pearson. Members of the passenger class reside primarily in Canada and France and class counsel had identified 436 family class members residing worldwide. Of the 297 passengers on board Flight 458, 45 have opted out of the class action and another 68 had already settled their claims with Air France prior to certification of the class action. Justice Lax noted in her decision that there have been 24 days of discovery in the class action, including eleven days of discovery of Air France, and documentary discovery of all defendants.
Under the proposed settlement, Air France will pay $10 million CDN plus accrued interest into a settlement fund in exchange for a release of all claims arising from the events of Flight 358. Goodrich and Airbus will pay the sum of $1,650,000 CDN into a fund for a release of the claims against them. Justice Lax was advised at the hearing of the motion for approval that a settlement in principle was also reached with the GTAA for payment of $2 million into the fund, for which approval would later be sought. NavCan is therefore the only non-settling defendant.
Payment of class counsel fees and disbursements and administration expenses (estimated to be about $500,000 in total), will be deducted from the fund.
The proposed settlement agreements draw a distinction between Warsaw/Montreal Convention damages and damages under domestic law, the effect of which is to make Air France solely responsible for the payment of the Convention damages, while limiting the scope of liability of NavCan to its several share of liability for “Extra Convention Damages”. Under the agreements, Convention Damages are defined as damages for bodily injury and baggage loss, damages and delay as specified in the Warsaw Convention and the Montreal Convention. Extra-Convention damages are defined as damages as are available under the laws of Canada and Ontario other than Convention Damages. The majority of the class members’ claims are governed by the Montreal Convention.
“The plaintiffs acknowledge that a significant legal issue for class members in this case is the ability to recover from Air France damages for purely psychological injury, including PTSD, under Article 17 of the Warsaw and Montreal Conventions.”
According to class counsel, the vast majority of the passengers suffered fright, emotional upset and fear of flying and a large number have post-traumatic stress disorder (“PTSD”) or PTSD-like symptoms of varying degree. Approximately 23 passengers suffered severe physical injuries and another 37 passengers suffered moderate physical injuries. Of the remaining passengers, 80 reported no or minimal physical injuries. Under the proposed settlement, an administrator would manage and distribute the settlement fund with assistance from a management committee of counsel and in accordance with the individual damages assessments that were done at an earlier stage in the proceeding (subject to a review of the assessment amount on request). The maximum assessment for a passenger claimant for PTSD or similar injury will not exceed $100,000 unless accompanied by evidence of other significant permanent personal injury, in which case, the maximum assessment of non-pecuniary damages shall not exceed $175,000.
The test for approval of a class settlement is whether the settlement is fair, reasonable and in the interests of the class as a whole. Justice Lax noted several legal issues facing the class that favoured a settlement, including: difficulty in recovering for purely psychological injury under Article 17; difficulty in recovering for Family Law Act damages under Article 17; jurisdictional limitations of the Conventions; difficulty in proving liability against Goodrich and Airbus. Justice Lax also noted that the claims process resembles a process approved by the court in another class action, Nunes v. Air Transat A.T. Inc., 2005 CanLII 21681 (S.C.J.) which proved to work efficiently and economically. Accordingly, the proposed settlement was approved.
Abdulrahim v. Air France, [2009] O.J. No. 5550 (S.C.J.).