Organophosphates Poisoning/Aerotoxic Syndrome Compensation Case Ruling In Australia
There has been a very interesting development arising from the Australian Appeal Court in connection with successful compensation being awarded in a toxic cabin air case.
The case of Turner –v- East West Airlines Limited  NWSDDT10
was the subject of an Appeal by the unsuccessful Defendants when the New South Wales Court of Appeal handed down Judgment on the 3rd September 2010.
Joanne Turner was a flight attendant travelling on the 4th March 1992 on a BAE 146 flight between Sydney and Brisbane when there was an oil leak into the aircraft cabin from a faulty auxiliary power unit.
The BAE 146
has a considerable history of cabin fume events
and indeed here in the UK many of these aircrafts have been withdrawn from service and replaced by other aircraft.
This case is unique in that it appears for the first time that a court or tribunal has established a causative link
between the inhaling of such cabin fumes and the development of symptoms
. Here in the UK there has been considerable doubt about the ability of an injured party to establish a causative link, and it is very interesting to note that similar problems also exist in Australia but are somewhat circumventive in this case by the claim being pursued through the Australia DUST Disease Tribunal
rather than through the usual court system. By using the DUST Disease Tribunal the Claimant was able to concentrate firmly on respiratory symptoms
that had been caused to her by this event rather than other symptoms, and the Judge was willing to accept that she had developed a persistent cough and a reactive airways dysfunction syndrome.
The initial decision handed down on the 5th May 2009 can be read in full at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2010/159.html
From perusal of the Judge’s decision it is clear that he did have some reservations about the evidence relating to the Claimant’s condition but was satisfied on the whole that she had developed the cough following the event in 1992.
Once he had decided on that fact, he then had to consider whether it was attributable to breach of duty and/or negligence on behalf of her employer.
This appears to have been a much easier aspect of the case for the Judge to decide. He was assisted by expert evidence and the history of the BAE 146’s performance, and it was not disputed that the fumes had arisen because oil had escaped from the auxiliary power unit and became heated causing it to undergo pyrolysis, and it then seeped through the airways into the cabin. Indeed, there had been a history of four previous recorded incidents of oil loss shortly before this incident occurred. Further, they found that the pyrolysed effects of Mobil Jet Oil II is harmful to the lungs.
The Judge appears to have found the issue of liability an easier one to adjudicate than that of causation. Certainly, the aircraft and the type of oil used and the previous history relating to both meant the issues of liability could be proved.
What does this mean for UK victims of cabin air fumes?
It certainly helps but the strength of the adjudication as an authority must be qualified.
The case did of course turn on its own facts as will every case. There was a well documented fume event and a history of poor maintenance leading up to that event. The ability of the Claimant to pursue the case through the DUST Disease Tribunal meant she could avoid some of the causation challenges that would face a UK mitigant. She simply had to establish that she had a pathological condition of the lungs. When she established this she could effect a recovery.
Further, there were no limitation issues because the proceedings were before the Industrial Disease Tribunal.
One of the more inhibiting factors which may have restricted Mrs. Turner ability to win this case in the UK is the costs burden of funding the case to court. To pursue this case in the UK would mean a High Court action and without the victim having financial backing it is unlikely that many lawyers would pursue the case on a no win no fee basis given the high level of risk in pursuing the case and also the likely cost of were the case to be unsuccessful. No win no fee agreements rely upon insurance policies to cover any losses. Insurers are reluctant to provide cover in these cases because of the high level of costs risks and the uncertainly of success.
It is interesting to note that another cabin crew member is bringing a case against BAE Systems in Australia, but has had to represent herself because she cannot afford lawyers.
This case represents a step in the right direction for victims of cabin air fumes, but is unlikely to be the wedge which can finally force the firmly locked door open on these matters.