Tearing up the definition of ‘accident’ under the Montreal Convention – The judgment of the CJEU in JR v Austrian Airlines
Articles | Thu 22nd Sep, 2022
- If an airline passenger slips, trips and falls during the course of a flight, or during embarkation or disembarkation, but there is no identifiable external cause of the fall, has an accident occurred for the purposes of the Montreal Convention 1999?
- In Barclay v British Airways  QB 187, the Court of Appeal provided a resounding ‘no’ to this question. There must be an unusual or expected event external to the passenger. The fall itself cannot constitute the accident.
- This reasoning was endorsed by Advocate General Emiliou in his opinion in JR v Austrian Airlines (C589/20), in which a Claimant fell down a flight of non-defective boarding stairs for no ascertainable reason. In an earlier article, I explained why his careful analysis was to be commended.
- In a decision handed down on 2nd June 2022, the Court of Justice of the European Union (CJEU) reached the opposite conclusion: the fact of the fall was enough to constitute an accident and it was for the carrier to plead and prove a defence to the claim under Article 20 of the Convention. The implications of this decision for future litigation in this corner of the law are potentially significant.
- It is important to begin with an acknowledgment that the any decision of the CJEU after the withdrawal of the United Kingdom from the European Union does not bind the domestic courts, but can be taken into account insofar as it is relevant: section 6(2) of the European Union (Withdrawal) Act 2018. In fact, although the Montreal Convention has for some time been incorporated into the European legal order by the Montreal Regulation (EC 2027/97), the interpretation of the Convention, as an international treaty, has never properly been a matter of European law. The Supreme Court emphasized this point in Stott v Thomas Cook  AC 1347:
“To summarise, this case is not about the interpretation or application of a European regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation. The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention. The governing principles are those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such question arises and there is no basis for supposing that the Montreal Convention should be given a different “European” meaning from its meaning as an international convention. On the contrary, it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law.”
- The short judgment of the Court in JR v Austrian Airlines was somewhat perfunctory in its analysis. Two primary strands of reasoning can be distilled from the 35 paragraphs devoted to the issue.
- First, the court noted, by reference to the earlier decision in GN v ZU, C‑532/18, that the concept of an accident must be given an ordinary meaning, and “in the context of which it forms part, is that of an unforeseen, harmful and involuntary event and that that concept does not require that the damage is due to the materialisation of a hazard typically associated with aviation or that there be a connection between the ‘accident’ and the operation or movement of the aircraft”.
- The immediate difficulty with the court’s reliance on GN v ZU is that there was, in that case, a readily identifiable external event (the spillage of coffee by a third party), entirely distinct from the injury sustained by the Claimant (a burn). The focus of the court was on the characteristics of the event, and whether it needed to relate to aviation related risks, but there was no analysis, since there did not need to be, as to whether a triggering ‘external’ event was necessary in the first place.
- The ‘externality’ of the event which constitutes the accident has been an accepted aspect of the definition of an accident under the Convention since the US Supreme Court decision in Air France v Saks (470 US 392) in 1985. It has been accepted, and consistently applied, in the Courts of most, if not all, major signatory states. In Barclay, the Court of Appeal sought to explain, by a process of deductive reasoning, why a slip and fall to the ground simpliciter, without any wider factual context, could never fulfil this criterion. It took as an example the case of a person who has a heart attack on board, slips and falls down, and injures themselves. There is no triggering external event at all, and the English courts have found that no liability arises in these circumstances: Chaudhuri v British airways (1997, Unreported, CA). Yet, if a person were to slip and fall for ‘no ascertainable reason’, as on the facts of JR (and without there being any pre-existing medical explanation), the same ‘slip’ is present in both scenarios, yet one produces liability and the other does not. The Court of Appeal in Barclays regarded this as producing irrational and unsupportable outcomes having regard to the balance struck by the convention:
“If the appellant’s case is good, then Article 17.1 would appear to impose liability for a very wide range of injuries suffered on board aircraft. Any slip or fall resulting merely from contact with an inert piece of equipment, installed and operating as intended, would constitute an accident. Indeed, it is hard to see how any injury, save only one caused by an autonomous collapse or deterioration in the passenger’s state of health having nothing to do with conditions on the aircraft, would be excluded: there would presumably always be some event causing the injury, which could be categorised as an “accident” just as Mr Menzies has sought to categorise his client’s slip. But even if that goes too far, the multitude of instances where on Mr Menzies’ case there would certainly be an “accident” discloses, in my judgment, a scenario which is far distant from the careful balance of interests struck by the Convention”
- The CJEU’s answer to this in JR was simply to re-assert that the convention is intended to create a regime of qualified strict liability. Accordingly, the fact that the accident was not caused by any negligence or fault on the part of the carrier did not prevent the unexplained fall from constituting an ‘accident’, and it was always open to the carrier, as part of the equitable balance of interest struck by the convention, to rely upon the Defence in Article 20.
- Article 20 of the Convention provides as follows:
‘If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21.’
- Article 20 is therefore a ‘contributory negligence’ provision, but permits a finding of 100% negligence on the part of the passenger. What it does not do, however, is allow the Carrier to argue that even if the passenger was not wholly to blame, nor was the carrier. In other words, it does not provide the carrier with any legal basis for relying upon its own reasonable care as a defence to the claim. Such a defence is available under article 21 for any damages exceeding 100,000 special drawing rights, but that is not likely to feature in many lower value cases, and in any event it applies only to the element of damages which exceed the 100,000 threshold, not those beneath it.
- It is submitted that proving that a passenger is 100% responsible for an accident will not be an easy task. Plainly, it is a very different proposition from establishing that a defendant is not itself at fault. Since questions of contributory fault under article 20 fall to be determined by national courts according to their domestic law, it will also be a notion which is alien to most English judges. The facts of JR provide a good example. The airline did nothing wrong. The claimant was not holding one of the handrails on the stairs. Yet, the claimant was carrying her young son at the time. The CJEU noted that:
“… in making that assessment, the national court cannot ignore the fact that a passenger travelling with a minor child must also ensure the safety of that child, which may lead that passenger not to hold that handrail, or to stop doing so, in order to take the necessary measures to prevent the safety of that child from being compromised”
- Would an English judge, in these circumstances, truly hold that the passenger was 100% at fault? After all, English law has for some time adopted the position that even though a Defendant is strictly liable, without ‘fault’, their ‘responsibility’ having regard to the underlying policy of the law must be weighed in the balance when deciding the extent to which a reduction should be made to reflect the Claimant’s fault. In Reeves v Commissioner of Police for the Metropolis (2000) 1 AC 360, Lord Hoffman, referring to the Law Reform (Contributory Negligence) Act 1945 said this:
“ … what section 1 requires the court to apportion is not merely degrees of carelessness but ‘responsibility’ and … an assessment of responsibility must take into account the policy of the rule, such as the Factories Acts, by which liability is imposed. A person may be responsible although he has not been careless at all, as in the case of breach of an absolute statutory duty. And he may have been careless without being responsible, as in the case of ‘acts of inattention’ by workmen.”
- Whilst this reasoning does not strictly apply to a claim under the Convention, it is not difficult to see judges concluding that the policy behind, and balance of interest struck by, the Convention would be undermined if the Court were too readily to find an accident was 100% the responsibility of an injured claimant.
- There is no mention whatsoever of Air France v Saks in the CJEU’s judgment in JR v Austrian Airlines. This is to be contrasted with the opinion of the Advocate General, who cited extensively from case law of the various signatory states. The CJEU is not, of course, bound to follow the decisions of domestic Courts when it comes to the interpretation of a European legal instrument in the form of the Montreal Regulation. However, as the Supreme Court observed in Stott (above) “it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law”. In reaching the conclusion that it has, the CJEU might be said to have achieved the opposite.