Slips on Snow and Coffee Spills – Divergent Meaning of ‘Accident’ Under the Montreal Convention?

20th October 2020 by Christopher Loxton

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This article explores the extent to which two important recent cases on the meaning of “accident” under Article 17 of the Montreal Convention 1999 introduce new and contradictory definitions.

The Montreal Convention, more fully known as the “Convention for the Unification of Certain Rules for International Carriage by Air”1, provides the exclusive framework for liability in relation to international air carriage of passengers, baggage and cargo for reward.
Article 17(1) of the Montreal Convention provides as follows:

“The 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.”

Slips on snow

In Labbadia v Alitalia [2019] EWHC 2103, Margaret Obi (sitting as a Deputy High Court Judge), was asked to considered whether a passenger falling on aircraft stairs amounted to an “accident” under the Montreal Convention in circumstances where the stairs had no canopy and had not been cleared of snow.

The claimant had been a passenger aboard Alitalia’s flight from London to Milan on 5 February 2015. The aircraft landed in poor weather conditions. As the claimant disembarked the aircraft on a set of mobile stairs, he slipped and suffered injuries to his right shoulder and pelvis for which he claimed damages.

The judge found that there had been a combination of rain and snow at the airport that morning and that it was still snowing when the claimant exited the aircraft. She additionally found that the aircraft stairs were covered with snow at the time of the claimant’s disembarkation and it was these conditions which caused him to slip and fall.

The judge took as her starting point the well-known and widely accepted interpretation of “accident” by the US Supreme Court judgment in Air France v Saks [1985]2 as ‘an unexpected or unusual event or happening that is external to the passenger’.

Applying the US Supreme Court’s interpretation, whilst giving the word “accident” its ‘natural but flexible and purposive meaning in its context’3, the judge considered that the essential components of the term could be determined by answering the following questions:

(i) Was there an event4?
(ii) If so, was the event unusual, unexpected, or untoward from the claimant’s perspective?
(iii) Was the event external to the claimant?

The judge quickly answered the first question in the affirmative, holding that there was a clear chain of causation from the presence of snow on the aircraft steps to the claimant slipping on those steps and sustaining injury.

The framing of the second question was not without its problems with its emphasis on an event being unexpected or untoward from the claimant’s perspective and its addition of the word ‘untoward’. The imputation of an apparently subjective element to the article 17(1) test comes from the following passage5 of Lord Scott of Foscote in re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495 (HL):

“… it is important to bear in mind that the ‘unintended and unexpected’ quality of the happening in question must mean “unintended and unexpected” from the viewpoint of the victim of the accident. It cannot be to the point that the happening was not unintended or unexpected by the perpetrator of it or by the person sought to be made responsible for its consequences. It is the injured passenger who must suffer the “accident” and it is from his perspective that the quality of the happening must be considered.”

Whilst the other Law Lords (Lord Walker, Lord Steyn and Lord Mance) expressed explicit agreement with the totality of Lord Scott’s judgment, none explicitly or implicitly referred to the apparent requirement for an event to be unexpected or untoward from a claimant’s perspective. Lady Hale, for her part, summarised her that view ‘that this appeal should be dismissed and for essentially the same reasons’6 as those given by her judicial colleagues.

In terms of cases that post-date re Deep Vein Thrombosis Group Litigation, in Barclay v British Airways [2009] 1 Lloyd’s Rep 297 (CA), the Court of Appeal upheld a recorder’s decision that a claimant who had suffered an injury to her right knee when she slipped on a plastic strip embedded in the floor of the aircraft as an intrinsic and wholly unexceptionable part of that aircraft had not suffered an accident within the meaning of article 17(1). The Court of Appeal gave no apparent weight to perspective. Instead, Laws LJ (giving the only substantive judgment) held that it was not ‘a distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger’7.

In Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163, the Court of Appeal did specifically quote from and adopt Lord Scott’s passage8, however, the Court ultimately concluded that an injection administered by a doctor onboard a flight to a fellow passenger (the claimant) was not “unusual” for the purposes of article 17(1) as there was no evidence the administration of the injection was done in an abnormal way, and the fact that it was administered in mid-flight rather than elsewhere did not provide the ‘necessary “unusual” characteristics’9. No regard was actually paid to whether the claimant herself regarded what had happened to her as unexpected or unusual or would have in the circumstances; Aikens LJ’s determination was solely an objective one.

In none of seminal cases before the US Supreme Court on the meaning of ‘accident’, in particular Air France v Saks (1985) 470 US 392 (US SC) and Husain v Olympic Airways (2004) 540 US 644 (US SC), has that Court specifically required a plaintiff’s views to be considered on whether an event or happening is unusual or unexpected.

It is therefore with a note of caution that one approaches Judge Obi’s framing of the second question. Whilst a claimant’s subjective view may, or even must, inform the court’s objective determination of whether an event/happening is an unexpected or unusual event, it cannot be determinative.

In answering the second question, the judge held that, based on presented meteorological data, there was nothing unexpected or unusual about adverse weather in Milan during the month of February. However, the use of aircraft stairs without a canopy, as occurred in this case, was found to be unusual and unexpected because it was the carrier’s evidence that canopies were used ‘where possible’ in bad weather and, in accordance with the airport’s operating manual policy, prior to authorising passengers to disembark, the stairs should have been cleared of accumulating snow or ice (considerations which seems to veer perhaps uncomfortably close to questions of negligence, which have no place in the Convention regime). Given the absence of a canopy, and the mechanism of injury, the use of uncovered stairs at the point of disembarkation in the snowy conditions, was not part of the ‘normal operation of the aircraft’10. It is perhaps strange that the judge did not explicitly conclude that these ‘combination of acts and omissions’11 meant the event was therefore unusual and was external to the claimant, though this is undoubtedly implied from the tenor of the judgment.

Whilst giving no specific reasoning, in answer to the third question the judge held that the event was external to the claimant, presumably because the claimant’s slip was not caused by his own ‘internal reaction to the usual, normal, and expected operation of the aircraft’ (applying the words of O’Connor J in Air France v Saks).

The judge then dismissed the carrier’s argument that the claimant had been contributorily negligent under article 20 of the Montreal Convention in that his injury had been caused or contributed to by his own failure to immediately reach for the steps’ handrail. She found that the claimant had done nothing other than descend the stairs on the instruction of the carrier and therefore no finding of contributory negligence was made.

Coffee spills

In GN v ZU (C-532/18), the Court of Justice of the European Union was requested, for the very first time, to define the outlines of the concept of ‘accident’ within the meaning of Article 17(1) of the Montreal Convention.

The Court was asked to decide this issue as the EU itself is a signatory to the Montreal Convention and the international treaty forms part of EU law through Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (OJ 2002 L 140, p.2).

The claimant, a six-year-old girl, was scalded by a hot cup of coffee which had slipped off a tray table “for reasons unknown” during a flight from Majorca to Vienna. A claim for compensation of c.€8,500 was filed against the administrator of an insolvent airline, Niki Luftfahrt.

The court-appointed administrator denied liability, asserting that there had been no accident within the meaning of article 17(1), since no ‘sudden and unexplained event’ had led to the coffee cup being tipped over and no ‘hazard typically associated with aviation’ had occurred which, it was submitted, was a necessary condition to be satisfied.

On appeal on a point of law, the Oberster Gerichtshof (the Austrian Supreme Court), decided to stay proceedings and to refer the following question to the CJEU for a preliminary ruling:

‘Where a cup of hot coffee, which is placed on the tray table attached to the seat in front of a person on an aircraft in flight, for unknown reasons slides and tips over, causing a passenger to suffer scalding, does this constitute an “accident” triggering a carrier’s liability within the meaning of Article 17(1) of the [Montreal Convention]?’

In a thorough and detailed Opinion, Advocate General Saugmandsgaard Øe explored the potential literal, teleological, and contextual interpretations of the meaning of ‘accident’ article 17(1), examining predominantly US, German, and French case law on the topic, before concluding that the answer to the question referred should be that article 17(1):

‘ … must be interpreted as meaning that any event that has caused the death or bodily injury of a passenger and that occurred on board the aircraft, or in the course of the operations of embarking or disembarking, which is sudden or unusual and has an origin external to the person of the passenger concerned, is an “accident” capable of rendering the air carrier liable, without it being necessary to examine whether the event is attributable to a hazard typically associated with aviation or is directly connected with aviation.’

The ECJ itself paid no regard in its judgment to the case law from any State Parties, or to that part of the AG’s Opinion, apparently declining to reinforce the widely-accepted definition of accident as a sudden or unusual event that is external to the passenger concerned. Instead the Court held that the term should be given its ‘ordinary meaning… in its context, in the light of the object and purpose of that convention’12, which was that of ‘an unforeseen, harmful and involuntary event’13.

The Court roundly rejected14 the arguments advanced on behalf of the airline administrator that a carrier’s liability was subject to the condition that the cause of the accident need originate from a hazard typically associated with aviation. The Court therefore ruled that the definition of “accident” in article 17(1) covered ‘all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typically associated with aviation’15.

Comment

At first glance the ECJ’s dismissal of the airline administrator’s arguments are unsurprising. In Morris v KLM Royal Dutch Airlines [2002] QB 100, for example, the Court of Appeal16 rejected any suggestion ‘that an “accident” had, in some respect, to be related to or be a characteristic of air travel’17. The ruling therefore confirms the commonly accepted position that an accident need not be attributable to an aviation-associated hazard.

As mentioned, what is surprising is the absence of any reference to case law from State Parties to the Montreal Convention when considering the definition of “accident”. The House of Lords18 and US Supreme Court19 have consistently emphasised the importance of the international comity principle that a multinational treaty must be interpreted not as if it were a domestic instrument, but so as to accord with the shared expectations of the contracting State Parties, hence the need to consider how other State Parties’ courts have interpreted the Convention’s provisions.

The ECJ’s definition of accident as being ‘an unforeseen, harmful and involuntary event’ leaves absent the requirement of externality emphasised by the US and UK definition (which is similar to most French and German definitions) of ‘an unexpected or unusual event or happening that is external to the passenger’. If, for example, the cause of the spillage had been the passenger herself – due for example to some neurological condition – this would not have likely amounted to an accident under most Western and common law jurisdictions.

The use of the word ‘involuntary’ by the ECJ is also problematic when, for example, the US Supreme Court in Air France v Saks cited with approval20 lower courts’ findings that terrorism21 and hijacking22 were accidents within the meaning of article 17 of the Warsaw Convention23; and in Morris v KLM Royal Dutch Airlines [2002] QB 100, the Court of Appeal held that an accident had occurred in circumstances where a passenger was indecently assaulted during a flight by a fellow passenger who was unknown to her24.

Whilst the UK is obligated to follow EU law during the Brexit transition period, there may be reluctance thereafter for the judiciary to follow the ECJ’s rulings where they contradict establish Supreme Court authority.

Ultimately GN v ZU may simply turn on its own facts and have little wider impact. In Advocate General Saugmandsgaard Øe’s Opinion, it was recorded that the claimant’s father, who was sitting next to her on the aircraft, had received from a flight attendant the cup of hot coffee without a lid which is not industry practice for legacy carriers and Western European low-cost carriers. The Opinion also noted that the Austrian court at first instance could not, for whatever reason, determine whether the cup had tipped over because of a defect in the tray table, because of aircraft vibration or some other reason. Whether other courts would be so equivocal in future remains to be seen.

Returning to the decision in Labbadia v Alitalia, carriers will no doubt have welcomed the High Court’s decision that the sustaining of injury from the presence of hazardous weather is an “accident” per se. What the judgment emphasises is the importance of having regard, and adhering to, industry safety standards and protocols, both at an international and local level. Whether the outcome would have been different if the local airport operating manual had not required the stairs to be free from snow is open to debate. The decision appears to import a fault-based approach whereby carriers are only liable if an accident is caused by a state of affairs that falls below the standard reasonably expected of a carrier. Such a proposition is likely to be tested in the future.

Christopher Loxton
He can be contacted at christopherloxton@3harecourt.com

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