Falling slowly – slipping and tripping accidents under the Montreal Convention

Articles | Wed 16th Mar, 2022

1. In Barclay v British Airways [2010] QB 187, the Court of Appeal held that where a passenger injured herself after slipping on an inert, non-defective plastic strip embedded in the floor of an aircraft, there had been no ‘accident’ within the meaning of article 17 the Montreal Convention. What had occurred was no more than the passenger’s peculiar reaction to the usual, normal and expected condition or operation of the aircraft. There was nothing ‘external’ to the passenger which was unusual or unexpected which had caused the injury.

2. In JR v Austrian Airlines (C589/20) Advocate General Emiliou reached the same conclusion in respect of a passenger who had fallen whilst walking down boarding stairs. There was no slippery substance (such as water, snow, dirt or grease) on the stairs, nor was there any defect in the metal corrugated surface of the steps. The passenger fell for ‘no ascertainable reason’ other than her own carelessness.

3. The Advocate General’s conclusion on the law, and its application to the facts of the case, is a fundamentally unsurprising one. This article focuses on certain, nuanced aspects of his reasoning and its potential significance in similar cases pursued under the

Satisfying the externality criterion

4. The Advocate General was clear that a substance lying on the surface of the boarding steps or the aircraft floor would almost invariably constitute an ‘unexpected or unusual event or happening external to the passenger’, and therefore an ‘accident’ within the meaning of the Convention. He noted that “the plaintiff does not need to establish why something unexpected or unusual happened – why there was no snow on the steps, or anything else”. This statement requires some unpicking.

5. The Advocate General relied in support of his proposition on the decision of the New South Wales Court of Appeal in Air Link v Patterson [2009] NSWCA 251. That was a case in which a passenger disembarking a plane put his foot on a small, freestanding step which flipped over under his weight, causing him to fall and suffer injury. There was no inherent defect with the step. The Court held that:

“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”:

6. On the facts of Air Link v Paterson, the court’s conclusion that the specific reason why the step flipped is irrelevant must be correct, not least because it was obvious that step, in its usual, operative state, should not flip over at all. The same might be true, on a wider level, about the crash of an aircraft. The fact that it was due to an electrical failure or a fuel problem could hardly be said to affect its externality to the claimant, nor its unusual or unexpected nature. Indeed, any more searching enquiry into the explanation which lies behind an otherwise unexpected event would tend to undermine the role of the Convention as a qualified strict liability regime, in which the fault of the carrier is in no way a pre-condition to establishing liability under article 17. As Ormiston JA observed in Povey v Qantas (2003) VSCA 227:

“enquiries into negligence are not only misconceived, but in my view mischievous, inasmuch as it diverts attention from the real question”

7. However, there are two, related ways in which the quality of the allegedly ‘unusual or unusual expected or happening’ (which is said to constitute the accident) may require further analysis from the court.

Aviation related hazards or incidents of ordinary life?

8. In many cases decided in the US Courts, air carriers have successfully argued that the relevant event must be an ‘aviation-related hazard’ or a risk inherent in air travel. The CJEU rejected this approach, however, in GN v ZU (C-532/18), where a young girl was scalded when a cup of coffee was placed on the tray table in front of her but tipped over and spilled its contents onto her lap.

9. In JR v Austrian Airlines, on the facts before the Court, the air carrier advanced a modified version of the same argument. It was suggested that since ‘falling down the stairs is a hazard of everyday life’, it could not be an unusual or unexpected event just because it occurred on a flight. The Advocate- General concluded, in light of GN v ZU, that this was legally irrelevant: the fact that the accident could have occurred other than on an aircraft will not, of itself, prevent liability being established under article 17, providing the other criteria are met.

10. However, it is clear that the opposite is also true: the mere fact the events occurred on a flight will not be enough either. By way of example, in Ford v Malaysian Airlines [ 2014] 1 Lloyds Rep 301, the claimant passenger developed what she thought was a urinary infection on board a flight. The air carrier asked if any medically trained passengers on board could assist. A fellow passenger, a doctor, advised, good faith, that a diuretic should be administered by injection and obtained the claimant’s consent to do so. In fact, the claimant was suffering from urinary stenosis and the diuretic made her symptoms temporarily worse. The court held that the only factor which made the administration of the injection ‘unusual or unexpected’ was the fact that it was carried out on board a flight by another passenger. The court noted that “the same chain of events would have taken place wherever the injection was administered”.

11. We are left with a position, therefore, in which the aviation-related context of an event will not preclude liability, but nor will it establish it. It is submitted that the escape from this potential circularity lies in focusing on the perspective adopted to assess the quality of the unusual or unexpected event to begin with.

Perspective

12. In YL v Altenrhein Luftfahrt GmbH (C-70/20), the CJEU 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. 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 were 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”

13. As I noted in a previous briefing, the CJEU’s decision in this regard was clearly inconsistent with English law, where the courts (including dicta in the House of Lords, endorsed in the Court of Appeal) had held that the passenger’s point of view was determinative.

14. In JR v Austrian Airlines, the Advocate General sought to forge a middle path. He was quick to point out that in YL, the European Court had not endorsed the airline’s perspective as the appropriate basis for determining liability either, noting that “adopting the subjective perspective of one or other of the interested parties does not always lead to a balanced outcome”. Instead, he suggested (as Ormistan JA had done in the Supreme Court of Victoria (Court of Appeal) in Qantas v Povey [2003] VSCA 227) that:

“the unexpected’, unusual, or unforeseen character of the event causing the injury should rather be assessed from the perspective of the disinterested bystander, namely an hypothetical passenger, with some prior – and good/positive – experience of air travel”

15. Even adopting this (it is submitted, entirely sensible) compromise, there will always be cases on the margins which continue to cause difficulty. Indeed, within the course of his opinion, the advocate general identified three such examples which he regarded as obvious but which the domestic courts have struggled with.

16. First, he asserted that “Such a bystander would, for instance, certainly not expect to find some foreign substance or item – water… oil, a banana skin, and so on – on a cabin floor or on boarding stairs”. Yet there are many US cases in which courts have accepted that some amount of litter on the floor of the cabin is undoubtedly to be expected during the course of a long flight. In Rafailov v El Al Israel Airlines 32 Avi 372, for example, the US District Court for New York held that

“The presence of a discarded blanket bag on the floor of an aircraft is no more unexpected or unusual than the presence of luggage in the aisle of an aircraft during boarding or passengers’ shoes on the floor of a seat row during a flight. After four hours in flight, it would seem customary to encounter a certain amount of refuse on an airplane floor, including blanket bags discarded by passengers who had removed the bag’s contents in order to use the blanket”

17. It is easy to discern an element of fault impermissibly creeping into the assessment of the US courts on these sorts of issues (i.e. that it would not be reasonable to expect an airline to prevent any litter on the floor) but this is clearly a fertile ground for future litigation.

18. The Second area of potential controversy is adverse weather. The Advocate General in JR v Austrian Airlines returned to the possibility of snow on the boarding steps on a number of occasions in his opinion. At paragraph 61 he held that:

“In my view, when a passenger slips and falls on a greasy stain on the cabin floor, on boarding stairs treacherously covered in snow, or as a result of other similar circumstances, the resulting injury is caused by an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention”

19. Again, it is far from clear that this is correct as a broad proposition, since there may well be situations in which snow or rain on steps is precisely what is expected in general terms. An example is Labbadia v Alitalia (2019) EHWC 2013 in which the high court accepted that the presence of snow in Milan, in mid-winter, was itself entirely unexpected and usual, but that it was the use of uncovered steps (contrary to the claimant’s previous experience, and indeed contrary to the airline’s own policy) which was the relevant unexpected ‘link’ in the chain of events which constituted the accident.

20. Lastly, there is the issue of turbulence. At paragraph 58 of his opinion, the Advocate General expressed the view that:

“If a passenger falls and injures himself or herself on board the aircraft because of sudden air turbulence, one should, in my view, conclude that the injury was caused by an ‘unforeseen’ event and thus by an ‘accident’ irrespective of whether such turbulence exceeded the limits laid down in these essential requirements”

21. It is not clear, at first blush, how or why ‘ordinary’ (i.e. as judged by international industry standards) turbulence should differ from the sort of hard landing that the court considered in YL v Altenrhein Luftfahrt (above). There is no English authority on the issue of turbulence under the Convention, but an extensive body of US case law has suggested that each case must be considered on its own facts, and that any attempt to create a ‘bright line’ rule was to be deprecated: see for example Brunk v British Airways 195 F. Supp. 2d 130 (D.D.C. 2002)

Conclusion

22. It is important to emphasize that this is only the opinion of the Advocate General which will not necessarily be followed by the Court. Even then, now that the United Kingdom has left the European Union, the final decision of the CJEU will at best be persuasive rather than binding (pursuant to section 6(2) of the European Union (Withdrawal) Act 2018).

23. Finally, the author (with appropriate humility) cannot finish this article without reference to the fact that the Advocate General, in reaching his opinion, cited not once, but twice, from Saggerson on Travel Law & Litigation (co-authored by Matthew Chapman QC and Sarah Prager). A new, 7^th edition of that work will be published later this year.