Being a member of the legal profession, the author of this article tried to pick an example of aviation law to make sense of this approach. The subject is compensation for death or injury of an airline passenger.
by Dr. Ruwantissa Abeyratne
writing from Montreal
“Courts matter…”
Richard Susskind in his book Online Courts and the Future of Justice
While the global Coronavirus crisis portends apocalyptic proportions if we do not take draconian measures calculated to reach rigorous social distancing, our physicality as a means of social interaction continues to be constrained in every area of social intercourse. Restaurants and bars are closed, sports complexes and convention centres are shut as are libraries and schools. Following this compelling trend, the ultimate bastion of the dispensation of justice – the courts – have decided in many jurisdictions around the world to re-schedule the hearing of cases already listed in their dockets.
Meanwhile, proactive training centres and universities have switched to online teaching, offering an alternative mode of instruction and learning. In this context, it is worthwhile discussing whether some aspects of adjudication by courts can be accomplished online as interestingly, even before the COVID-19 crisis, several countries, including The United States, Canada, China, Singapore and Australia already had this practice in operation.
Richard Susskind, known to some as the godfather of legal tech, in his book Online Courts and the Future of Justice aligns his argument to the fact that a court is more a service than a place where judges, lawyers and litigants gather, arguably as much as a supermarket or restaurant that resorts to home delivery when they are compelled to close. Susskind argues that there are certain matters of a litigious nature before the courts that can be read and extrapolated by judges online, thus obviating the necessity for the above categories to congregate in a courthouse. In describing his book Susskind says: “ there are two aspects to this: online judging, which involves human judges deciding cases on an asynchronous basis; and the extended court, which guides users on law and process, and offers various forms of non-judicial settlement”.
He discusses the aspect of online dispute resolution (ODR) which Lord Dyson said in 2015 was “ an exciting milestone in the history of our (English) judicial system”. The core methodology Susskind offers is as follows: “There are two broad ways in which online judging can be introduced and conducted. The first is to transplant a simplified version of current processes and procedures into an online environment. In England and Wales, for example, this would involve online judging largely mirroring and to some extent replicating traditional judging – performing as impartial arbiters, judges would still receive arguments and evidence from both sides. Parties would lay out their cases in a prescribed order, in a structured form that strongly resembles traditional pleading, except that users of the online court would not have the opportunity to make oral arguments. The rules of the online court would be a simplified version of the traditional rules, although much of their complexity would be hidden by embedding them in the system. For most judges and barristers, this approach would be reassuringly familiar. It would be a streamlined version of an age old set up with which current judges would be immediately conversant.”
Susskind by no means claims that all matters of litigation and adjudication should be transferred lock stock and barrel to online processes but suggests that such issues as claims for compensation that are straightforward be remanded to an online process. He bases his argument on what he calls the “outcome thinking” where all that the litigant seeks is the outcome, as much as a citizen does not seek soldiers but peace in the land. Susskind also hastens to add that he is not advocating “algorithmic justice” where artificial intelligence dispenses justice, as in the end, it is a human judge who would make the decision. As a reviewer of the book says, the book offers: “ways of letting people digitally file disputes and accompanying evidence with judges who they may never meet; where the judges adjudicate via a digital platform and the entire matter is resolved without anyone entering a courtroom in person. And this may – it is hoped – also reduce the cost of delivering justice, and speed it up as well and online services that provide what we can call informational litigation support, including means and pathways to avoid escalation of disputes to the stage where they may need to go to court. To some degree these services already exist, though clearly they need to be expanded”.
Being a member of the legal profession, the author of this article tried to pick an example of aviation law to make sense of this approach. The subject is compensation for death or injury of an airline passenger. Article 17 of the Montreal Convention of 1999 provides that the air carrier is 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. The 2017 case of Doe v. Etihad Airways is a good example. It involved the plaintiff’s claim who was pricked by a hypodermic needle that lay hidden within the seat pocket in front of her when she dipped her hand to recover a defective knob that she had placed in the pocket after having retrieved it from the floor. The knob was a part of the tray table that was defective. She drew blood.
The plaintiff sought damages from Etihad for her physical injury and her “mental distress, shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of possible exposure to” various diseases. Etihad argued against the carrier’s liability on the basis that the words “damage sustained in case of death or bodily injury” meant “damage caused by bodily injury”. It was Etihad’s position that the damage allegedly caused i.e. “mental distress, shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of possible exposure to” various diseases were caused not by the plaintiff’s bodily injury but by her apprehension of illness. Although the court of first instance (District Court) accepted this interpretation it was rejected in appeal by the United States Court of Appeal for the Sixth Circuit which held that Etihad had wrongfully read into Article 17 the words “caused by” and that the Convention covered all forms of injury with the words “in the case of”.
Could the court, which based its judgment on a matter of treaty interpretation have reached its verdict without a physical hearing but with only the submission of counsel on both sides and research on jurisprudence offered by online sources? The jury may be still out on this one, but it gives us food for thought, particularly in the context of the COVID-19 crisis.
Dr. Abeyratne is an aviation consultant in Montreal who also teaches air law and policy at McGill University.
Post a Comment