The eye of the beholder – the final word on passenger perspective under the Montreal Convention?
Articles | Fri 6th May, 2022
- An accident for the purposes of article 17 of the Montreal Convention 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 France470 US 392
- This is the third in an entirely unintended trilogy of articles that I have written on a single issue arising under the Montreal Convention. That issue concerns the perspective from which the unusual or unforeseeable event constituting an ‘accident’ under article 17 should be determined.
- The latest contribution to this issue comes from the United States Court of Appeals (First Circuit) and, by some margin, contains the most comprehensive and illuminating analysis to date.
- In Moore v British Airways (No.21-307) (1st Cir 2022) the plaintiff was disembarking from an aircraft by means of a mobile staircase. Each of the steps had a riser height of 7.4 inches except for the final step, which was 13 inches from the ground. Stepping down from the final step, the plaintiff lost her footing and fell, sustaining serious injury to both ankles.
- The matter came before the US Court of Appeals after the judge at first instance had granted summary judgment in favour of the airline.
- The event alleged to constitute the accident was the use of a mobile staircase comprising a final step which was significantly higher than each of the preceding steps. It was not alleged that the plaintiff’s fall to the ground was itself the relevant event. The narrow issue between the parties, in the context of the Saks definition, was simply whether the event was ‘unusual or unexpected’. The Court began by identifying the need to identify which aspect of the Saks test was relied upon:
“words often shadow dance with each other, and ‘unusual’ and ‘unexpected’ are admittedly, somewhat overlapping categories. But only somewhat. For example, a solar eclipse is likely to be an unusual event – but if it is widely forecast by astronomers across the globe, it is likely to be expected”.
- In the context of this case, it was the unexpected nature of the steps which was the bedrock of the plaintiff’s case. However, the court immediately identified the obvious difficulty:
“In mounting this inquiry, the problem of perspective looms large: what is or is not expected often lies in the eye of the beholder. An occurrence long foreseen by one person may blindside another. Or — framed in the context of the Montreal Convention — what an airline expects to happen in the course of a flight may not perfectly match a passenger’s expectations. The Saks formulation tells us that an unexpected event, external to the passenger, is an accident — but it says nothing about the relevant coign of vantage, leaving open the question: “unexpected by whom?”
- Just as they had done before the Court of Justice of the European Union in YL v Altenrhein Luftfahrt GmbH (C-70/20) and again in JR v Austrian Airlines (C589/20), the opposing parties suggested very different answers to this question, aligned with their interests in the litigation.
- The Defendant’s argument was that it was the airline industry’s perspective which was critical, since the use of the steps in question was ‘normal and routine’ in practice and it would impose an unreasonable burden on airlines to expose them to liability based on the perspective of an array of different passengers. The plaintiff proposed a test of a ‘hypothetical average traveller’.
- The Court adopted a solution closer to the plaintiff’s proposal, and with echoes of the advocate general’s proposal in JR. The unexpected nature of an event should, it held, be determined from “the perspective of a reasonable passenger, standing in the plaintiff’s shoes, with ordinary experience in commercial air travel”.
- The court identified a number of principled reasons for reaching for this conclusion.
- The first was that a proper textual analysis of the Convention (as an international treaty) had resulted in the interpretation of the term ‘accident’ as including even intentional torts by third parties, such as acts of terrorism. When used in that sense, i.e. in referring to an event happening wholly or partly through deliberate human agency, an ‘accident’ was necessarily an event which was unexpected only by the person to whom it happens, rather than by the deliberate perpetrator of it. That being so, it was both consistent and principled to focus the meaning of the word accident from the perspective of a passenger, not the airline.
- The US Court referred directly to the previous observations made by Lord Scott inRe: Deep Vein Thrombosis (2005) 3 WLR 1320, where he stated:
“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”
- However, the US Court, citing the decision of the CJEU in YL with approval, emphasised that the test was nonetheless an objective one and not subjective. Accordingly it sounded a ‘cautionary note’, stating that:
“Lord Scott’s opinion — if read literally — could be taken as privileging the passenger’s subjective expectations, no matter how idiosyncratic. Such a reading, however, has been roundly rejected. By and large, courts have been unwilling to adopt a subjective test.
We agree with these courts, domestic and foreign, that an individual passenger’s subjective beliefs do not inform the question of whether an event is unexpected and, thus, may be found to be an accident. The appropriate inquiry is an objective one”
- The second principled reason for focusing the enquiry into the unexpected nature of the event on the passenger’s perspective was, the Court held, the object and purpose of the Convention. The Court noted that:
“The Montreal Convention does not mince words: it declares its purpose, in part, as “ensuring protection of the interests of consumers in international carriage by air” and recognizes “the need for equitable compensation based on the principle of restitution.”
- The Court emphasised the fact that the airline is, in every case, the economically stronger party and therefore better able to distribute the risk, regardless of whether or not it was at fault for the passenger’s injury. It would therefore be ‘perverse’ to “force injured plaintiffs to bear the cost of accidents unforeseeable to reasonable passengers with ordinary experience in commercial air travel especially when such incidents are within the reasonable anticipation of airlines and thus more easily built into their actuarial calculus”
- Pausing again, the concept of incidents being part and parcel of the operation of the airlines on a macro level is one which is familiar to any practitioner who has grappled with European case law under EC regulation 261/2004. The defence of ‘extraordinary circumstances’ to claims for compensation under that regulation has, over a series of decisions, become one which often revolves around the question of whether the events in question form an inherent part of the airline’s business activities. A recent example is the decision of the Court of Appeal in CAA v Ryanair DAC (2022) EWCA Civ 76, concerning strike action. It held that:
“The possibility of “disagreements”, “conflicts” and even strikes in relation to pay and employment conditions is inherent in running the business of an air carrier and so a strike about pay or employment conditions will not be “extraordinary circumstances” regardless of whether the employees’ demands are seen as reasonable or achievable”.
- Returning to the facts of Moore, and applying the perspective of a reasonable passenger with experience of the airline industry, the US Court held that the first instance judge had been wrong to enter summary judgment, for 4 reasons.
- First, the fact that each of the preceding steps was the same height was plainly important. The Claimant relied upon expert evidence that a person descending a staircase tends to develop a specific gait and stepping pattern as the staircase progresses, such that they will be caught off-guard by a sudden difference in riser height.
- Secondly, another passenger had provided evidence that she, too, was surprised by the difference in height in the bottom step. That passenger might be regarded, at the final trial, as a ‘proxy’ for the ‘ordinary reasonable passenger’ whose expectations were objectively reasonable.
- Thirdly, the absence of a warning, whether or not there was any independent duty to provide one, was a matter which was of potential relevance to the question whether a reasonable passenger would expect the final step to be a different height.
- Fourthly, the Claimant’s expect had provided evidence that the riser of the final step did not comply with British Standards. The airline’s position was that the standards were not binding and therefore ‘irrelevant’. However, the court held that ‘even voluntary standards may be evidence of what an ordinary, reasonable passenger might expect to encounter’. Whilst there was also a dispute about whether the standards had application to mobile (as opposed to fixed) staircases at all, this was a question of fact for trial and not suitable for summary disposal.
- The decision of the US Court in Moore will not of course bind English Courts. However, it is a decision of significant authority (sitting only one rung below the Supreme Court within the US judicial hierarchy) and contains a careful and extensive review of the case law and applicable principles. Since the final test proposed by the Court also closely mirrors the opinion expressed by the Advocate General in JR v Austrian Airlines, it would be surprising indeed if the CJEU in that case did not also reach a similar conclusion on the issue. Assuming that is the case, I think that it can be stated with some confidence that English Courts at all levels will proceed to adopt a similar approach to the meaning of the word ‘accident’ under article 17 of the Convention from hereon in.