ISSUE 54 EWJ web - Journal - Page 45
Personal Injury and the Montreal
Convention - What is an Accident?
by Andy MacDonald - www.digbybrown.co.uk
As a specialist travel team within a personal injury
firm, we regularly come across incidents which have
taken place onboard aircraft. This has complications
in the common law tradition, as the usual personal injury practice underpinned by delict (tort in England
and Wales) is suspended. Instead, there is a codified
set of rules laid out in The Montreal Convention on
International Carriage by Air 1999 (“the Montreal
Convention”). This includes some areas which require extreme caution, including a strict two-year time
limit for bringing an action as opposed to Scotland’s
usual three year time-bar window, as well as some interpretations specific to Montreal Convention cases.
Here we consider some basic principles along with a
question that is harder to answer than at first it seems
– what is an accident?
Strictly Speaking
Article 17.1 of the Montreal Convention creates strict
liability for “carriers” in relation to “death or bodily injury
of a passenger” occurring as a result of an “accident”
which took place “on board the aircraft or in the course of
any of the operations of embarking or disembarking.” An injured person bringing a claim on this basis therefore
does not require to prove fault on the part of the
carrier.
An accident is not simply any occurrence on an aircraft (or during embarking/disembarking) which results in injury (Ford v Malaysian Airline Systems Berhad
[2013] EWCA Civ 1163). So, what is an accident?
Unexpected or Unusual Events
The US Supreme Court considered the definition of
an accident in the context of the Montreal Convention’s predecessor, the Warsaw Convention, in Air
France vs. Saks 470 U.S. 392 (1985). Justice O’Connor
delivered the Court’s opinion that liability would only
arise “if a passenger's injury is caused by an unexpected or
unusual event or happening that is external to the
passenger. This definition should be flexibly applied after
assessment of all the circumstances […] [W]hen the injury indisputably results from the passenger's own internal reaction
to the usual, normal, and expected operation of the aircraft,
it has not been caused by an accident [...]” (emphasis added)
The Treaty
The Montreal Convention is an international treaty
with the aim of unifying certain legal obligations relating to all international carriage of persons, baggage,
or cargo by aircraft for reward. The UK is a signatory
to the Montreal Convention which applies in the UK
to both international and domestic flights under the
Carriage by Air Act 1961. It is an exclusive remedy for
passengers injured during air travel or during embarking and disembarking.
Even where the Montreal Convention does not provide a remedy, where its terms apply, no alternative
domestic remedy will be available at common law or
otherwise (Sidhu vs. British Airways [1997] A.C. 430; El
Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155
(1999)).
EXPERT WITNESS JOURNAL
In Saks, a passenger onboard an aircraft which was
landing suffered pressure and pain in her left ear, resulting in permanent deafness. This was a result of
the ordinary changes in pressure on the aircraft’s descent. The aircraft’s pressurisation system was, however, functioning normally. As the passenger’s injuries
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APRIL 2024