Some Toronto plane crash survivors could be entitled to compensation. Here’s what they could claim

CTV News' Scott Hurst with the latest on the investigation saying it's too early to determine an exact cause, but there is a lot of evidence to sift through.

Two passengers who were harmed as a result of the Delta Airlines crash at Toronto Pearson airport earlier this week have retained legal representation and the firm says that it expects “more” passengers could eventually join “potential litigation.”

Twenty-one out of the 80 people onboard the flight sustained injuries after the plane flipped over on landing on Monday afternoon and burst into flames on the runway.

All but two of those individuals have since been released from hospital.

• IN PHOTOS: Plane crashes at Pearson airport

Paramedics said he injuries included back sprains, head injuries, nausea and vomiting due to fuel exposure.

On Wednesday, Rochon Genova announced it has been retained, adding its clients have “suffered personal injuries of a serious nature that required hospital attention.”

The firm says these passengers can be compensated for a myriad of things, including damages for their pain and suffering, cost of treatment and rehabilitation, loss of income and mental health treatment connected to any physical injury they sustain.

Here is what you need to know about potential compensation for passengers on board Delta Flight 4819:

Injured passengers could be entitled to up to US$200,000

It remains unclear what exactly caused the plane to land belly up on the tarmac following a hard landing but any passenger who sustained physical injuries may be able to claim up to US$200,000 (roughly CA$284,000) in damages without having to prove Delta’s liability under the Montreal Convention, according to Erin Applebaum, an aviation partner at Kreindler and Kreindler in New York.

The Montreal Convention is an international treaty establishing an air carrier’s liability for carriage of travellers, baggage and cargo—which both the U.S. and Canada are part of. Since the flight came from Minneapolis and landed in Toronto, what happened on that trip will be governed by this treaty, standardizing the process for all passengers despite where they are filing the claim from or who they are filing it with.

“The treaty says that the airline is strictly liable to passengers for accidents that occur while they are on board the aircraft,” Applebaum told CTV News Toronto. “Passengers are able to surpass that cap on damages if the airline cannot show that they were not negligent in allowing the accident to happen. I expect here they will not be able to show that they weren’t negligent, so I suspect that damages will not be capped for the passengers here.”

Delta Airlines can be found liable if there was a pilot error, poor training or if there was an operational failure, Rochon Genova notes. However, air traffic control and the airport, the aircraft manufacturer and any other entity that may have had contact with the CRHJ-900 jet before, during or after the landing may also be held liable depending on the outcome of the ongoing investigation.

What claims can’t be made under the Montreal Convention?

John Nelson, one of the plane crash survivors, told CNN immediately after the accident that he has been left feeling “stressed, nervous, and shaky,” despite being physically OK. Sonia Leith, partner at Neinstein Personal Injury Lawyers in Toronto, explains that filing a claim for any mental trauma cannot be done unless it is tied to a physical injury.

“One would look at this crash and say, ‘My gosh, how could they get on an airplane again?’ and ‘I’m so scared.’ There’s certainly a massive mental psychological component,” Leith told CTV News Toronto.

“For someone to say ‘I was really upset about it’ and ‘I was very depressed or anxious,’ or ‘I was traumatized’—there has to be a bodily injury in order to make that claim.”

• READ MORE: Delta plane crash survivors share their stories

Applebaum says the psychological injury does not have to stem from the physical injury they sustained, but it has to occur at the same time.

“A bruise from the seatbelt when they were hanging upside down or a bump on the ceiling when they had to unbuckle and fall to the ground to get out. That would qualify as a physical injury.”

Travellers have up to two years to file their claim. Vincent Genova, head of the Rochon Genova’s Aviation Litigation Group, tells CTV News Toronto they expect to retain more passengers.

“We have been in touch with attorneys in the U.S. whom we have worked with on other aviation cases. They have been approached by some American passengers and we will likely have an opportunity to work with them to advance claims,” Genova said. “That will include our own investigation into whether other parties apart from the airline should be involved in potential litigation.”

What about the crew members onboard the flight?

Applebaum says it is “very different” for the crew members onboard the plane that day to make a claim against the airline, adding they are barred from suing the airline due to the workers' compensation law in the U.S.

“They can take advantage of the worker’s compensation law to be compensated for their damages and their medical bills, but they are not permitted to sue the carrier like a passenger would be,” Applebaum explained.

Hypothetically speaking, however, if the investigation determines the plane had faulty landing gear as a result of the way the aircraft was designed, Applebaum says Bombardier could potentially be subject to a suit for the design flaw.

Where are we at in the investigation?

The Transportation Safety Board of Canada (TSB) said Tuesday its investigators sent the flight data recorder and cockpit voice recorder from the crash to its lab for further investigation.

TSB senior investigator Ken Webster said the Bombardier CRJ-900 “impacted the runway during landing.”

“The fuselage came to rest slightly off the right side of the runway, upside down, facing the other direction,” Webster said in a video statement.

Eugen Abramovici, chief engineer of materials, engineering and failure analysis at Bombardier Aerospace says the aircraft’s fuselage is “absolutely untouched” despite the severity of the landing in the video.

Transport Canada, the U.S. National Transportation Board, the U.S. Federal Aviation Administration, Delta and the jet’s manufacturer are all supporting the TSB’s investigation into the crash.

What has Delta said?

The airline has said that it has deployed a incident response team to Pearson airport and that specially trained members of that team “will provide support for customers and their loved ones.”

“The hearts of the entire global Delta family are with those affected by today’s incident at Toronto-Pearson International Airport,” Delta CEO Ed Bastian said in a statement issued Tuesday. “I want to express my thanks to the many Delta and Endeavor team members and the first responders on site. We are working to confirm the details and will share the most current information on news.delta.com as soon as it becomes available. In the meantime, please take care and stay safe.”