In a first-of-its-kind case, Ukraine International Airlines (UIA) was deemed to be negligent for allowing the ill-fated flight PS752 to depart from Tehran, Iran in January 2020. Following an 18-day trial, Ontario Superior Court Justice J.T. Akbarali's detailed decision on June 10, 2024 in S. v. Ukraine International Airlines JSC, 2024 ONSC 3303 paves the way for plaintiffs to surpass a cap in the Montreal Convention that otherwise limits compensatory damages.
In this blog post, we outline the events that ended in a mass casualty event on January 8, 2020, explain why Justice Akbarali found the airline breached the standard of care owed to passengers on board due to negligence, and examine the notable suggestion Justice Akbarli made to counsel which led to the implementation of novel trauma-informed trial guidelines.
Background
UIA flight PS752, carrying 176 passengers on route to Toronto through Kyiv, was shot down over Tehran by the Iranian Revolutionary Guard Corps (IRGC) in the early morning hours of January 8, 2020.
The decision to take off came against a backdrop of heightened military tensions between the United States and Iran due to a series of escalatory events that began two years earlier.
In April 2018, the United States government designated the IRGC as a foreign terrorist organization. It marked the first time an official military government force had received this designation. One month later, the US withdrew from an agreement created with the objective of slowing down Iran's nuclear power program. Relations between the two countries further deteriorated in the aftermath of attacks on oil tankers the US attributed to the IRGC and the downing of an unmanned US aircraft Iran claimed violated its airspace between 2018-2019.
On December 27, 2019, an Iranian attack killed an American contractor and wounded four American troops near Kirkuk, Iraq. In response, on December 29, the US launched airstrikes on targets in Iraq and Syria against an Iranian-backed group. Supporters of this and other Shia militias surrounded and entered the American embassy in Baghdad on December 31.
In a major escalation of tensions, on January 3, 2020, a US airstrike killed a senior leader in the Iranian government – an unprecedented action against a foreign government by the American government. When Iran's leader threatened retaliation, then-American president, Donald Trump, warned Iran over social media that the US military had identified 52 sites, "some at a very high level & important to Iran and Iranian culture," and he would hit them "VERY FAST AND HARD."
Early on the morning of January 8, Iran launched ballistic missiles at two Iraqi bases where American soldiers were stationed – an unprecedented attack by the country.
Mere minutes after taking off from Imam Khomeini airport at 6:12 am Tehran time, UIA flight PS752 was struck by two missiles fired in succession by an IRGC Air Defence Unit. Damage to the aircraft from the missile strikes rendered the aircraft uncontrollable, and it crashed, killing everyone aboard.
Suing for Damages Under the Montreal Convention
As a result of the accident, 101 individual actions and a class action were commenced in Toronto. A group of eight law firms, led by Howie, Sacks and Henry LLP and Camp Fiorante Matthews Mogerman LLP, sued UIA for damages under the Montreal Convention. This multilateral treaty, formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, amended important provisions on compensating victims of airplane accidents that previously existed in the Warsaw Convention.
Article 17 of the Montreal Convention makes the carrier (airline) "liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." However, the airline's strict liability can be limited to 100,000 Special Drawing Units (or roughly $230,000 CAD) in damages under Article 21 of the Montreal Convention. For that cap to apply, the carrier must prove damage in excess of that amount "was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or [that] such damage was solely due to the negligence or other wrongful act or omission of a third party."
Unlike most civil lawsuits, where a plaintiff seeking compensation must prove that the defendant's negligent actions or inaction breached the standard of care causing harm, Article 21 specifically creates a reverse onus which shifts the burden to a defendant to prove it was "not negligent" on a balance of probabilities.
Standard of Care
The Court concluded that UIA failed to meet the standard of care in conducting its risk assessment on January 8, 2020, for several reasons, including:
- It did not take into account a Federal Aviation Authority Notice to Air Missions issued prior to take off warning of the potential risk for misidentification and miscalculation in the Tehran airport region;
- Other specialized industry groups, such as Osprey, had warned of the exact risk that materialized hours before the flight and UIA took no steps to review the Osprey warnings;
- Despite the airline's own manual, and other industry documentation that required a safety risk assessment of hazards related to flying in or near conflict zones be completed, UIA's actions that morning ensured that no one could fulfil their obligation to conduct the risk assessment that was required; and,
- It failed to make the pilot of the flight (who had authority to delay or cancel the flight for safety reasons) aware of the presence of military equipment and the military activities ongoing in the region of the airport.
Causation and Foreseeability
The Court concluded that UIA failed to disprove causation based on the facts and expert testimonies in the case.
The Court decided that, but for the airline's negligence in obtaining and considering the relevant information that was reasibly available, it would have reached the same conclusion as other airlines operating in the area at the time, such as KLM and Air Canada, as well as Osprey and the FAA. These entities determined that the uncertainty of the risk of misidentification and miscalculation in Iranian airspace warranted delaying or modifying flight plans to monitor how the situation developed.
The Court further concluded that the risk of UIA PS752 being struck by a surface to air missile was not remote, but rather reasonably foreseeable. The Court cited warnings of this risk issued by both Osprey and the FAA, a relatively recent example of flight MH17 having been struck unintentionally, and evidence introduced at trial that showed that a passenger on the plane had texted her brother expressing fear of the very risk that materialized.
Significance of this Case and Trial
This case is the first of its kind to consider the standards to which airlines must adhere when flying in or near conflict zones.
In an interview with Insurance Business Magazine, Andrew Nicholson, CEO of Osprey, explained the implications of this landmark case for the airline industry.
"We are risk-assessing thousands of flights every day and are seeing the potential risks at close hand," Nicholson said. "All airlines, of course, prioritise the safety of passengers and crew; however, the challenge of security in volatile regions is especially acute. Traditionally, airlines have relied heavily on guidance from regulators and governments regarding airspace safety and overflight risks. However, as this case clearly demonstrates, such information is often delayed, classified, or influenced by political considerations. The outcome of the PS752 case underscores the growing risks and liabilities facing airlines and the industry rapidly needs to adjust to this."
Nicholson added: "What the Canadian ruling has shown is that the impact of such an event goes beyond the tragic loss of life. Operators carry this risk of unlimited liability, making the need for mandatory risk assessments, for regulated, forward-looking, pre-emptive risk management a clear requirement in need of advocacy."
Beyond the precedents established in this case, Justice Akbarali also proposed using Trauma Informed Guidelines to adapt the trial process to reduce the additional trauma that legal proceedings might cause.
These guidelines, which were developed and approved by counsel prior to the trial, included:
- Providing advanced notice of potentially traumatic evidence and allowing individuals to step out of the courtroom if needed.
- Offering resources to assist with recognizing and coping with trauma during the trial.
- Limiting the oral testimony of a family member to prevent unnecessary distress.
- Having trauma specialists available for support.
- Maintaining regular communication between the Court and counsel to manage expectations and demystify the process for observers.
At the start and conclusion of the trial, the judge directly addressed the family members, acknowledging their loss and emphasizing that their grief was recognized throughout the proceedings.
The trauma-informed approach aimed to balance the adversarial nature of the trial with sensitivity to the participants' emotional well-being, demonstrating that a more humane and considerate process is possible without compromising legal advocacy. The guidelines and appendices used in this trial were attached to the court's reasons to serve as a resource for future cases, encouraging a broader adoption of trauma-informed practices in the legal system.
Hope Starts Here
While nothing can change the tragic loss of life that occurred on January 8, 2020, this important case will have positive effects for the loved ones of the passengers who were killed, all other airline passengers flying in or near active conflict zones, and potentially other participants in trials involving traumatic events and evidence.
Justice Akbarali's decision removes the cap on compensation that the passengers' family members are owed. The precedent this case sets will hopefully make airlines to reevaluate their risk management practices when flying into, out of, or through active conflict zones. Finally, the establishment of trauma-informed trial guidelines could spur participants of other similarly traumatic cases to adopt a more humane process that reduces the risk of retraumatizing victims or vicariously traumatizing people in court while maintaining the system's goal of just and fair outcomes.
As counsel for some of the plaintiffs in the case, we are delighted with the result of this trial and hopeful for the long-term effects it will have in our justice system. At HSH LLP, we work diligently to show our clients that Hope Starts Here.
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