What a scream!

By Legal Eagle

An American tourist is suing Qantas after she was seated next to a three-year-old child who allegedly screamed so loudly in the woman’s ear that she was deafened:

“The pain was so excruciating that I didn’t even know I was deaf,” Ms Barnard said, reliving the incident during a deposition for a civil lawsuit she filed against Qantas in the US District Court in Los Angeles.

Ms Barnard has been locked in a legal tussle with Qantas for more than a year, with the 67-year-old claiming she suffered severe and permanent injuries, including sudden sensio-neural hearing loss, from the child’s scream and sought damages for physical and mental suffering, medical expenses and loss or impairment of earning capacity.

Her lawyer, Brian Lawler, argued Qantas was negligent because the plane’s cabin and cockpit crew failed “to take all the necessary precautions to prevent the accident that resulted” in her “injury”.

Qantas’s US legal team vigorously fought the case, claiming there was evidence Ms Barnard had a hearing problem before she departed the US for Australia, and defended the flight staff and crew, telling the court: “Plaintiff’s injuries, if any, were caused by the arbitrary and volitional act of a three-year-old child. Flight attendants cannot predict when children aboard an aircraft are about to scream. There is no evidence that the child was screaming in the terminal, or on board the aircraft prior to the particular scream which allegedly caused the damage.”

Qantas referred to emails allegedly written by Ms Barnard to a travel companion prior to the Australian trip in which she admitted wearing hearing aids, and submitted a volatile email Ms Barnard allegedly wrote a day after the incident to the US travel agent who booked the trip.

“I guess we are simply fortunate that my eardrum was exploding and I was swallowing blood. Had it not been for that, I would have dragged that kid out of his mother’s arms and stomped him to death. Then we would have an ‘international incident’,” Ms Barnard allegedly wrote.

The parties have since entered into a confidential settlement. A nasty part of me wonders if this kid picked up the unpleasant vibes from this woman, and screamed in response to that.

Serious question: I wonder what measures Ms Barnard thinks the airline should have taken to avoid her injury? What could the airline and its staff possibly do to prevent a three-year-old from screaming? Maybe, channelling Catherine Deveny, she thinks kids should be banned from planes?

I get cross when parents don’t attempt to prevent their children from wreaking havoc in public places, and I try to restrain mine from doing so. I also understand that having a child screaming in your ear is unpleasant. Certainly, when I am on a plane or some other kind of shared conveyance, I try to ensure that my children are quiet and well-behaved. But unfortunately, there are limits to one’s ability to manage this. When my daughter was two, she threw one particularly appalling tantrum which lasted all the way around Coles. It should have been evident to anyone watching that I was attempting to stop the tantrum, but with no success. In that kind of circumstance, I’d like it if people showed some sympathy rather than glaring at me.

Sometimes I think Australians need to be more litigious, and more willing to stand up for their legal rights. Then I see a case like this, and I thank my lucky stars that we don’t have litigation culture like America.

20 Comments

  1. Melaleuca
    Posted July 20, 2010 at 3:38 pm | Permalink

    Agreed in all respects, LE.

    The silly old bitch should also be denied further entry into this country based on her OTT threatening email.

  2. Posted July 20, 2010 at 4:34 pm | Permalink

    I can understand a kid troubled by air pressure changes, although a 3yo could possibly be encouraged to swallow and relieve the problem.

    If all else failed, the evil biologist in me contemplates C2H(OH)2Cl3, or at least phenergan.

  3. Posted July 20, 2010 at 4:36 pm | Permalink

    Dang…. sub tags not recognized! Here’s the CAS

  4. Bea
    Posted July 20, 2010 at 5:14 pm | Permalink

    She must have been exceedingly ugly for the child to react like that. Seriously though, she’s clearly a con artist. I call bullshit that she was “injured”, bullshit that she hasn’t been able to work since a child screamed at her and bullshit that she’s a “senior partner in an international business consulting firm”.

  5. Peter Patton
    Posted July 20, 2010 at 8:55 pm | Permalink

    LE

    Surely you have learnt by now that when you are on terra firma, you have a lot more weapons to cajole your screaming spawn. But once you get above 20,000 feet, they KNOW they hold all the cards, and if they want to have a meltdown, they know there is sweet FA mummy can do about it! 🙂

  6. Peter Patton
    Posted July 20, 2010 at 8:58 pm | Permalink

    I suggest we hold a plebiscite on who should be banned from planes; children or Miss Deveney. Heck, let’s hold similar plebiscites on banning in ALL public spaces.

  7. Posted July 21, 2010 at 8:56 am | Permalink

    The stomp to death thing really says it all. She’s about half a notch up from a rockspider, the filth.

    I have plenty of sympathy for people subject to screaming (or kicking etc) kids. If some sustained disruption is going on I think it’s also fair to expect parents to do what they can. But this sounds like a sudden thing that no-one had any control over.

    And ‘eardrum exploding’? Sounds like an air pressure thing to me. Or perhaps she’d been giving the kid dirty looks and he just turned around and whacked her on the ear.

  8. MikeM
    Posted July 21, 2010 at 10:08 am | Permalink

    Oddly, the only US media source that mentions this is Time, which essentially reprints the SMH report. One might have imagined that it would be mentioned by radio, TV or a newspaper (if there is one) in Barnard’s home town or in the location where the court hearing occurred.

    I wonder if the settlement was for the nominal sum of one dollar.

  9. Posted July 21, 2010 at 10:54 am | Permalink

    As an older (59-yr-old) person I need to say that as you age you might experience shrill noise as pain. It’s caused by presbyaudia, in which the muscles that control the way you hear sound don’t work as well as they used to. (It’s the same mechanism as presbyopia, when the muscles of your eyes don’t work as well and you need glasses to read.) If I’d been sitting near that child I would have been in pain, and would probably have been very unpleasant to sit near too.

    This is a hard one. I have seen some dreadful behaviour in young children tolerated on planes. I saw a toddler being allowed to roll in the aisle for the entire flight from London to Singapore once, even dozing off down there; at one point he tripped up a hostie. No amount of appeals from the crew to the parents seem to move them from their position that it was fine for their child to behave like that. The pilot even came back and threatened them with restraining the child – but of course that would only have led to screaming so wasn’t attempted in the end.

    Taking a plane ticket is such a crap shoot, and I don’t know what the answer is.

  10. Peter Patton
    Posted July 21, 2010 at 12:34 pm | Permalink

    I wonder if there is some evolutionary process that makes us intolerant of a baby’s screaming, the more we are certain that baby is not ours, or related to us?

  11. Posted July 21, 2010 at 5:11 pm | Permalink

    I must admit that I know where M-H is coming from on this. I’ve only got about 20% hearing left in my right ear thanks to glue ear as a kid, and I guard it pretty carefully. A screaming child next to me wouldn’t invite criticism, but I’m quite willing to tell parents to get their kids in line.

    I do think we have taken social disapproval of parents disciplining their children in public too far, with the result that people stuck with tantruming children are left with no sticks and very few carrots when it comes to keeping them under control. The other thing that has gone is the old ‘it takes a village to raise a child’, with the result that it becomes impossible for parents to rely on teachers or other authority figures to make genuine use of the old legal principle ‘in loco parentis’.

    People desperately want schools to be better disciplined and more structured, but legislation has deprived teachers of the capacity to achieve that — this, in part, explains the flight to private schools. The hostie and pilot on M-H’s flight were stuck in a similar position, and one only has to imagine a scenario where the hostie was injured thanks to falling over the child in the aisle to add a toxic topping on what would be a litigation shit sandwich.

  12. Douglas Clifford
    Posted July 21, 2010 at 6:11 pm | Permalink

    I haven’t searched the literature, but as a practising doctor, I’d be willing to bet that a screaming child would NEVER rupture an ear-drum. The woman concerned is obviously a rentier. I do have a degree of sympathy for her being trapped in the aluminium tube, but it is simply not possible for a screaming child to rupture a tympanic membrane. The suggestion that it caused bleeding is ludicrous.

  13. Nick Ferrett
    Posted July 21, 2010 at 7:50 pm | Permalink

    Douglas, I wondered about that. As a lawyer, I wondered how the crew was supposed to foresee that a child’s screaming would cause deafness. Is it possible that an air-pressure change caused a rupture of an already weakened membrane?

  14. Posted July 23, 2010 at 8:04 am | Permalink

    This is ridiculous although I had similar problems before with my own kids but however a child is a child and these things happen but the lady is defintely taking this too far

  15. Posted July 23, 2010 at 1:50 pm | Permalink

    Many young people on planes have dreadful inner-ear pain from the cabin air pressure, and why airlines do not routinely handout foam disposable earplugs is beyond me.

    silly litigation makes it tough on genuine litigants.

  16. Peter Patton
    Posted July 24, 2010 at 2:08 pm | Permalink

    One word. Phenergan. 😉

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