ABSTRACT
When there is incontrovertible evidence of a person contracting a disease such as tuberculosis as a result of being infected in an aircraft while on board, liability issues pertaining to the airline arising from the incident may involve principles of private air carrier liability. The Warsaw Convention of 19291 provides that the carrier is liable for damage sustained in the event of death or wounding of a passenger, or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Of course, on the face of the provision, the words ‘wounding’ and ‘bodily injury’ do not necessarily lend themselves to being associated with infection. A fortiori, according to the Warsaw Convention, the wounding or injury must be caused by ‘accident’, which is not typically a synonym for ‘infection’. However, the recent decision in El Al Israel Airlines Limited v. Tseng2 introduced a new dimension to the word ‘accident’ under the Warsaw Convention by giving it pervasive scope to include such acts as security body searches performed by the airlines. In this context, the word ‘accident’ loses its fortuity and it becomes applicable to an expected or calculated act. Thus, if an airline knows or ought to have known that an infected passenger was on board its flight, causing others on board to be infected, it may well mean that the act of the airline would be construed by the courts as an accident within the purview of the Warsaw Convention.
