ISSUE 54 EWJ web - Journal - Page 46
resulted from the normal and expected operation of
the aircraft, this was not deemed to be an accident
within the scope of the Warsaw Convention.
Singhal v British Airways Plc [2007] 10 WLUK 552
A passenger sustained an injury whilst disembarking
from an aircraft. The jetway for disembarkation was
aligned around six inches lower than an aircraft door,
causing the passenger to lose her footing and fall. As
the passenger was unaware of the six inch drop, it was
unusual and unintended from her viewpoint, “especially in the absence of any warning of the unexpected 6 inch
step”, and this was considered to be an accident.
This definition has since been generally accepted in
the UK Courts (Barclay vs. British Airways plc [2010] QB
187) and continues to be relevant in relation to the
Montreal Convention. The starting point, however,
must always be a reading of the language in Article
17.1, and not the judicial analysis of the same (per
Lord Scott and Baroness Hale in In re Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72,
pp. 503F, 512A-C).
Barclay vs. British Airways plc
A passenger slipped on a plastic strip along the edge
of the aisle. The strip was not loose or otherwise defective. This was deemed to be contact between the
passenger and the aircraft “in its normal state”: not an
accident.
A Brief View of Europe
Although no longer binding on the UK Courts, there
is merit in considering the recent approach of the
Court of Justice of the European Union (CJEU) to the
application of the Montreal Convention.
Buckley vs. Monarch Airlines Ltd [2013] 2 Lloyd’s Rep
235
A passenger suffered from a hot drink burn from a
cup spilled from a tray table. There was no evidence
that the spillage was caused “by the operation of the aircraft”: not an accident.
In GN vs. ZU C-532/18, a passenger had been burned
after a spillage of hot liquid from a cup. The cause of
the accident was unclear. The matter was referred to
the CJEU to determine if, in addition to the Air France
vs. Saks definition, parties must also prove that “a hazard typically associated with aviation” has taken place.
In light of the absence of a definition of “accident”
within the Montreal Convention, the CJEU reviewed
the original wording in line with the current legal
landscape. In so doing, it affirmed the traditional definition of an accident as laid out in Air France vs. Saks
and rejected the notion that a hazard typically associated with aviation was required for a successful claim.
Arthern vs. Ryanair DAC [2023] EWHC 46 (KB)
A passenger had slipped on liquid that was a mixture
of de-icing fluid and water (or ice) which had been
tracked into the cabin by passengers on the soles of
their feet while they were entering the plane: not an
accident. An attempt by the client to rely upon JR vs.
Austrian Airlines was rejected by the Court. Farbey J
took the view that “the judgment does not demonstrate the
same degree or quality of reasoning as […] the domestic appellate courts” and generally disregarded it. The Court
instead relied principally upon Barclay vs. British
Airways plc.
In JR vs. Austrian Airlines C-589/20, a passenger (JR)
was disembarking from an aircraft using a mobile
stairway. Her husband had almost fallen on the stairway and JR did in fact fall and consequently fractured
her arm. The CJEU gave weight to the Montreal Convention’s objective of protecting the interests of consumers balanced against the interests of air carriers
and focused on the strict liability of carriers. In doing
so, the CJEU determined that Article 17 “must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up
for the disembarkation of passengers of an aircraft and injures himself or herself constitutes an ‘accident’.”
Practice Points – What is an Accident?
- The Montreal Convention is an exclusive remedy
for passengers injured during air travel or during
embarking and disembarking.
- Article 17 is always the starting point when
considering if an accident has occurred. This is always
fact specific.
- Air France vs. Saks provides helpful judicial
interpretation in practice: has there been (i) an unusual or unexpected event; (ii) which was external to
the passenger.
The Landscape of UK Case Law
In navigating these principles, several cases provide
helpful analyses of what constitutes an accident in
relation to the Montreal Convention:
- Article 17 provides for strict liability – a pursuer does
not need to prove negligence.
- Following Arthern, caution is recommended in
reliance on CJEU decisions in England and Wales.
Morris vs. KLM Royal Dutch Airlines; King vs. Bristow
Helicopters Ltd [2002] 2 A.C. 628
Morris confirms that a deliberate act or assault by
another passenger will be an accident under the Montreal Convention. Despite being intentional, this is not
a usual or expected occurrence and takes place
externally to the passenger.
What is an Injury?
At first glance, it may seem straightforward to
determine what is - and what is not - an injury. As with
the term “accident”, we must consider the judicial interpretation of the term “bodily injury” when used in
relation to the Montreal Convention and the practical
limits to be aware of in this context.
In re Deep Vein Thrombosis
Passengers claimed for the onset of DVT which had
arisen due to the normal cabin conditions on aircraft.
There was deemed to be no unusual or unexpected
external cause of the passengers’ injuries: not an
accident.
EXPERT WITNESS JOURNAL
In Morris vs. KLM Royal Dutch Airlines; King vs. Bristow
Helicopters Ltd [2002] 2 A.C. 628, the definition of a
“bodily injury” was considered within the meaning of
the Montreal Convention. It was determined that a
44
APRIL 2024