After a disaster such as the London helicopter crash the media reflect the public mood by asking why did this happen and who was to blame? Legal commentators are used to the concept of fault and answer accordingly, often anticipating long legal battles with allegations based on independent technical investigation.
However, for this crash there is an immediate legal answer that requires no proof of blame. Section 76 (2) of the Civil Aviation Act 1982 indicates that damages for ground victims are recoverable from the aircraft without proof of negligence.
The fact that this is a little known legal provision is a very good thing. It says much about aviation safety that it has not often been called upon, but it also says something about our luck. Incidents like this crash are rare but I have acted in several mid-air collisions over densely populated areas where the tragic loss could have been much worse.

Strict liability

A strict liability provision is uncommon in personal injury cases but aviation lawyers will be familiar with the concept. It has many similarities to the provisions of the Warsaw and Montreal Conventions that govern passenger rights but without it being an exclusive regime or limiting damages. It is clearly a favourable provision, no doubt recognising the potentially devastating consequences to ground victims from aircraft.
It is a statutory definition, though, and lawyers love to argue about words. The victim must show that they have suffered ‘material loss and damage’ caused by aircraft. It has long been clear that damage means death or personal injury but it needed a test case in London to deal with the argument that personal injury did not include psychiatric injury.
I acted for 13 residents of Great Hallingbury who suffered trauma when a Korean cargo jumbo jet crashed shortly after take-off from Stansted Airport in 1999. They were denied compensation by the insurers of the aircraft on the basis they were ‘mere bystanders’. You can imagine how that went down with my clients.
The court held that trauma was compensable but there was no happy ending. Awards for trauma in England are low, starting at £2,800 and by the time we completed the long legal battle all but one had moved from their homes as they could not endure living so close to the flight path.

Bandwagon allegations

So while I recognise without question those who died and were injured last week, I also recognise that limiting the number of victims to them is optimistic. We have heard the dramatic accounts of others and logic dictates that some will develop trauma in spite of counselling that it is to be hoped will be available to them.
I can already hear the accusations of ‘jumping on the bandwagon’. Not so. There are rules to stop the floodgates opening even beyond the rigours of the statutory definition.
The test case ruled that psychiatric injury was recoverable but after that the usual rules of negligence apply. Suffering shock is not enough; you need a diagnosable illness. You need to be a primary victim in ‘the zone of danger’. Secondary victims outside the zone will only recover if they have a tie of love and affection to a primary victim, which is most unlikely. Definition of ‘the zone of danger’ is hugely controversial.
It seems that in spite of a strict liability statutory provision there will still be much for lawyers to argue about.