Special Briefing – The Montreal Convention – A Double-Edged Sword
Articles | Fri 14th May, 2021
- The liability regime created by Article 17 of the Montreal Convention is a double-edged sword. Wielded with care, the cause of action is a potent weapon for injured passengers. But in this complex area of the law, there are numerous dangers for the unprepared.
- The Convention cause of action gives rise to qualified strict liability. It is not necessary for the claimant/passenger to prove any element of fault, prior-knowledge or negligence (In Re: DVT (2005) 3 WLR 1321, per Lord Scott, para 3). Indeed, it has been said that “enquiries into negligence are not only misconceived, but … mischievous, inasmuch as it diverts attention from the real question” (Ormiston JA in Povey v Qantas (2003) VSCA 227).
- The ‘real question’ is a narrow one: was the injury caused by an ‘accident’? An accident is an “unexpected or unusual event or happening that is external to the passenger”, which is not part of the “usual, normal and expected operation of the aircraft: Saks v Air France 470 US 392.
- The laser-like focus on the need to fulfill the definition of an accident can often prevent an insurmountable obstacle for injured Claimants. The exhortation in Saks that the definition of an accident “should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries” often gives way to highly legalistic arguments about whether each and every granular component of the definition (‘unusual’, ‘unexpected’’, external’, ‘event’ etc) can be proved. As the US Second Circuit Court of Appeal explained in King v American Airlines (2002) 284 F 3d 353 (a case concerned with racial discrimination pursued under the Convention:
“It is our responsibility to give the specific words of the Treaty a meaning consistent with the shared expectations of the contracting parties.’ … It is not for the courts to rewrite the terms of a Treaty between sovereign nations. …The Convention massively curtails damage awards for victims of horrible acts [of] terrorism; the fact that the Convention also abridges recovery for … discrimination should not surprise anyone.”
- This, then, is the sword’s other edge: the application of the Convention does not require proof of fault, but nor should it be applied to promote strongly-felt notions of fairness or ‘justice’ in individual cases where to do so would subvert the straightforward language of an international treaty.
- Two recent decisions, one in favour of the airline, the other benefiting the passenger, provide a useful point of comparison.
YL v Altenrhein Luftfahrt
- In YL v Altenrhein Luftfahrt GmbH (C-70/20), the Court of Justice of European Union was asked to give a preliminary ruling on whether a ‘hard landing’, which caused the claimant a spinal injury, was an ‘accident within the meaning of article 17 of the Convention.
- The critical point was that even though such a landing may be subjectively perceived by the passenger as being hard (and therefore ‘unusual’ or ‘unexpected’), it was, from an aeronautical point of view and also taking into account the margin of error, within the normal operating range of the aircraft in question. Indeed, in the mountainous nature of the environment in which the airport (in Switzerland) was situated, hard landings are safer than landings which are ‘too soft’.
- The Court concluded that:
“It is necessary to reject from the outset…an interpretation of the concepts referred to in [the Convention] based on the perspective of each passenger. In so far as perspectives and expectations may vary from one passenger to another, such an interpretation could lead to a paradoxical result if the same event were classified as ‘unforeseen’ and, therefore, as an ‘accident’ for certain passengers, but not for others”
- It followed that, analysing the question objectively, a landing which did not exceed the limits laid down by the procedures applicable to the aircraft in question, including the expected tolerances and margins concerning the performance factors that have a significant effect on the landing, could not properly be regarded as ‘unforeseen’ within the extended definition of an ‘accident’.
- The decision of the CJEU places it on a collision course with English Law. In Re: Deep Vein Thrombosis (2005) 3 WLR 1320 Lord Scott stated as follows:
“Second, 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”
- This observation has been cited with approval, and as a central component of the court’s reasoning, in a number of subsequent decisions. For example, in Labbadia v Alitalia (2019) EWHC Admin 2103, where the passenger slipped on snow/ice on aircraft steps, the Court held that the passenger’s perspective was critical to the determination of liability:
“The event was unusual from the point of view of the Claimant. He was a frequent flyer and had never experienced having to descend aircraft stairs at the airport without a canopy and reasonably anticipated that the stairs would be free from compacted snow. Of course, there are inherent risks in disembarking from aircraft stairs with luggage. The Claimant may have anticipated that aircraft stairs exposed to the elements would be wet from precipitation, but he had no reason to expect that the stairs would be slippery due to compacted snow. Therefore, the event was unexpected and unforeseen from his perspective. The event was also external to the Claimant.”
- Can the decision in YL and the approach of Lord Scott in Re DVT be reconciled? The answer is ‘no’ if they are both taken at face value. For Lord Scott, as a matter of principle the passenger’s perspective should be the controlling factor. For the CJEU, this would lead to inconsistency in an area of law where uniform application is key.
- It is submitted that the answer may lie in a slight ‘adjustment’ to Lord Scott’s reasoning. He was plainly concerned that the ‘unexpected’ nature of the event could easily be diminished by evidence from airline itself about how frequently events occur in the industry. But there is a sensible middle ground, which was most eloquently explained by Ormistan JA in the Supreme Court of Victoria (Court of Appeal) in Qantas v Povey  VSCA 227:
“200. The cases to which I have just referred make the point that the focus is upon whether an event is unexpected or unusual – and not upon whether it is, for example, inadvertent, careless, intentional or criminal. They also show, I think, that characterisation of an event as unexpected or unusual does not involve consideration particularly from the perspective of the airline or the passenger(s); nor, a fortiori, particularly from the perspective of a reasonably careful airline operator or a reasonable passenger in all the circumstances. The latter formulations, in any event, would introduce notions of domestic torts law; and for that reason, as I said earlier when discussing Husain and Fulop, I would not accept their application. Rather, it seems to me, the question whether an event is to be so characterised is to be answered from the perspective of a disinterested bystander who is apprised of all relevant circumstances. Would such a person describe the event so described, an event causing injury, as one that was unexpected or unusual?
201.That conclusion appears to me to be consistent with authority. In Saks, O’Connor J said that:
“…in cases where there is contradictory evidence, it is for the trier of the fact to decide whether an `accident’ as here defined caused the passenger’s injury…
203.Such an approach avoids the risk that what is unexpected or unusual will be determined by reference simply to the different sectional interest of airline or passenger. But it does not mean that in a particular case the circumstances of an individual passenger may not be relevant as part of the factual matrix in which the event said to constitute an accident falls to be considered. Neither does it exclude from consideration the practice of a particular airline defendant or an airline industry practice. Husain may be said to be an example of these last observations, although there language appropriate to common law notions was at times used; and I have already expressed my opinion that such use was inappropriate.”
- It will be interesting to see how the English court resolve this difficult issue in future cases.
Dinsey-Aboe v KLM
- The recent decision in Dinsey-Aboe v KLM Royal Dutch Airlines (2020, Manchester County Court, District Judge Bartley) provides a good example of how the proper application of the convention can benefit as well as disadvantage passengers.
- The Claimant sustained a meniscal tear to her knee whilst she was boarding an airport shuttle bus in Ghana on 12th March 2017. She was returning to the UK on a KLM flight via Amsterdam. She was the last passenger to board the bus. As she was stepping through the doors, with one foot on the bus and the other on the ground, she claimed that the bus doors began closing and the bus moved. She was startled, stepped back and landed heavily on her twisted right knee, although managed to avoiding falling over completely.
- The Claimant’s version of events was corroborated by a contemporaneous incident form that she completed on the plane, email correspondence to the Defendant’s customer services department in the days after the accident, and by various entries in her medical records.
- The Defendant denied liability on the basis that the Claimant’s version of events was ‘impossible’, since the shuttle bus was fitted with a safety device which prevented it from moving whilst the doors were still open. Whilst it was possible for the device to be ‘overridden’ in the event of malfunction, this would require the driver to open a hatch in the bus which, the Defendant contended, was not done.
- The Court concluded that the Claimant was a reliable and truthful witness whose evidence on the cause of her injury had been entirely consistent at all times. By contrast, the judge found the evidence provided by the Defendant’s primary witness, the ground handler’s maintenance manager, to be unsatisfactory. In particular, he could not provide a cogent explanation for missing maintenance records relating to the bus. Furthermore, the short letters, rather than witness statements, provided by the bus drivers working on the day, did not bear a statement of truth and carried relatively little weight.
- Nonetheless, the Defendant maintained that the Claimant could not discharge the burden of proof, since a finding that the bus started moving as the Claimant was stepping onto it necessary entails a finding that there was a defect. The presence of a defect was, the Defendant submitted, inherently unlikely (for various reasons), with the result that the Claimant’s version events was also fundamentally improbable.
- The judge rejected the Defendant’s argument, relying instead on the decision of the New South Wales Court of Appeal in Air Link v Paterson (2009) NSWCA 251 to the effect that, in a claim under the Convention:
“It is not essential for a passenger to establish the reason why the aircraft, or the airline’s equipment, did not operate in the usual or expected manner. What is required is proof that the injury was caused by an unexpected or unusual event that is external to the passenger”
- Having accepted the truthfulness and accuracy of the Claimant’s account, the judge found as a fact that “the bus did move whilst the claimant was boarding”. The movement of the bus was an unexpected event external to the Claimant. That being the case, the judge declined to make any findings in respect of why the ‘accident’ happened since it was unnecessary for him to do in within the confines of the liability regime under the Convention.
- The case serves as a salutary reminder that any claim proceeding under the Montreal Convention requires very careful analysis in the context of the distinctive, and exclusive, liability regime which governs this specialist area of the law, untrammelled by concepts derived from English common law.
About the Author
Called to the Bar in 2004, Jack Harding has been listed in the legal directories as a tier 1 recommended practitioner in travel and consumer law for many years. Together with his colleagues at 1 Chancery Lane, Matthew Chapman QC and Sarah Prager, he co-writes the leading legal textbook in the area, and has been involved in many of the leading cases in the field in the last decade.