ST Explains: With compensation on the table, what’s next for injured passengers and crew of SQ321?


An injured SQ321 passenger being transferred from Samitivej Srinakarin Hospital in Bangkok to another hospital on May 21. - ST File

SINGAPORE: Offers made by Singapore Airlines (SIA) to compensate the 211 passengers on board turbulence-hit Flight SQ321 are just the start of what legal experts say will be a lengthy process to determine how much the national carrier will ultimately pay out.

Sudden, extreme turbulence hit the Boeing 777-300ER aircraft on its way to Singapore from London on May 21, leaving a British passenger dead from a suspected heart attack and dozens of others injured, some seriously.

Three weeks on, those who suffered minor injuries have been offered US$10,000 (S$13,500) each in compensation.

SIA has also offered US$25,000 as an advance payment for passengers with more serious injuries to meet their immediate needs ahead of discussions over the final compensation amount.

The Straits Times looks at what this means for SQ321 passengers and crew.

Is it normal for airlines to offer compensation?

Senior Counsel Lok Vi Ming, who represented SIA in the deadly SQ006 crash in Taipei in 2000, said it is not unusual for airlines to offer advance compensation as the compensation process can take time.

However, such advance payments would not be considered admission of liability, he noted.

On whether SIA’s offers are within expectations, Lok said it is best for each passenger to decide that with the help of legal and professional advisers.

“Even passengers with minor injuries would suffer injuries of varying degrees of severity, and so it would be difficult to draw a line for the entire group.”

In the SQ006 crash that killed 83 people, SIA offered immediate financial relief of US$5,000 to each survivor a few days after the accident.

SIA later offered US$400,000 in compensation to the families of those who died and US$20,000 to those injured.

Some rejected the offers and sued for higher damages.

In all, 40 lawsuits were filed against SIA in Singapore, and more than 60 were filed in the United States.

By October 2006, all of them were settled out of court for undisclosed sums.

For SQ321, Meritus Law consultant and former district judge Rajaram Ramiah said the initial compensation offered by SIA may be to sieve out passengers who suffered minor or no injury as soon as possible.

This is so the carrier can commit its resources to dealing with more complex cases, especially since some of the injuries may have long-term effects, both physiologically and psychologically, added Ramiah, who had represented victims of the SQ006 crash.

National University of Singapore aviation law professor Alan Tan said serious cases will likely end in confidential settlements, which could possibly go into millions of dollars.

What do the laws say?

Lok said compensation issues will be determined according to the 1999 Montreal Convention.

Singapore is a signatory to this international treaty, and it has been incorporated into the law here.

Under the Convention, claims of up to about US$170,000 can be made for death or bodily injuries arising from international aviation accidents, regardless of whether the airline was at fault.

For claims exceeding this sum, the airline may avoid liability if it can prove that the damage was not due to negligence on its part, or was due solely to a third party.

One issue that may arise is whether passengers heeded any warnings to belt up. Some have also questioned if the plane could have avoided the turbulence.

Even with the Montreal Convention, Prof Tan said, the final amount claimable by each passenger will still depend on the actual losses suffered and the supporting evidence. “The passenger can’t just name a price,” he added.

Ramiah said damages for psychological trauma may also be recoverable, but Prof Tan noted that damages for mental injury are not normally claimable unless they are linked to physical injury.

Prof Tan said different courts recognise and quantify claims differently, so where passengers decide to file their claims is important as well.

Under the Montreal Convention, passengers can choose to bring claims in relevant jurisdictions, such as their country of residence, the country of their final destination, or the country where the airline is based.

Noting how some states award more generous sums for certain claims than others, Prof Tan said the likely venues for SQ321-related lawsuits include Singapore, Britain and Australia.

“Beyond hospitalisation costs, there could be claims for pain and suffering, loss of future income as a result of disability, et cetera. These areas are not standardised by the Montreal Convention,” he added.

The experts also pointed to a two-year limitation period for claims to be brought against the carrier.

Said Prof Tan: “It’s a hard rule, so action must be taken within two years and no later.”

What about the crew?

For the 18 crew members who were on board the flight, SIA did not directly address queries on whether any compensation was offered to them.

It only said that it will ensure that affected crew members receive the support they need, including medical, psychological and financial assistance they may require during their recovery.

SIA said affected crew members will return to work only when they have received the necessary medical clearance, and are ready to resume their duties.

Citing privacy reasons, it was unable to share more details about their medical status, saying only that all 18 SQ321 crew members have returned to Singapore.

Lok said crew who are injured would be entitled to compensation, too, and they may seek legal advice over whether their claims would fall within the Montreal Convention framework.

Ramiah said employees, including airline crew, may claim compensation for injuries sustained either under the Work Injury Compensation Act (Wica) if it is applicable, or under common law, which is law based on judgments made in previous cases. However, claims cannot be made under both.

Under Wica, compensation benefits include medical leave wages, claims for medical expenses and lump sums for incapacity or death.

What happens next?

For passengers with minor injuries, Prof Tan said they can either accept the US$10,000, or they can reject it and go to court.

But if they choose the latter, they will have to prove that their losses exceed the US$10,000 sum and also factor in the legal costs.

“If the court decides (a passenger’s) bruise attracts only $100, they take that risk,” Prof Tan said.

Similarly, those with serious injuries can either accept what SIA ultimately offers or opt for legal action.

Prof Tan added: “Because lawyers’ fees eat away at the ultimate award, court action makes sense only for larger claims involving serious injuries.”

Australian law firm Carter Capner Law is advising 12 SQ321 passengers, including a number of them from Singapore, said its director, Peter Carter.

Their injuries range from concussion to spinal injuries, and the passengers will need to be assessed by specialists to verify the extent of their injury and how it will affect them in the future, he told ST.

“It is putting the cart before the horse to talk about money until that’s done,” Carter added.

He said the medical evaluation can take time as some passengers still require surgery and their injuries will also need to stabilise before assessments can be made on the extent of their impairment.

“Those things usually don’t become apparent until at least nine months after the injury,” he said.

On SIA’s compensation offer, Carter said the US$25,000 advance payment for those seriously injured is welcome as it does not require them to sign away their future legal rights.

But he described the US$10,000 compensation offer for those with minor injuries as “problematic”.

He added: “It shouldn’t be up to the airline to decide who is injured and who isn’t.” - The Straits Times/ANN

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