The interpretation of the word ‘Accident’ within the meaning of the Montreal Convention: the Decision in Arthern v Ryanair DAC [2023] 46 (KB)

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In a recent decision on appeal Farbey J reconsidered the approach to be taken to the interpretation of the word ‘accident’ within the meaning of Article 17 of the Montreal Convention on the Carriage of Passengers by Air.

The Court reviewed the international and domestic caselaw on the issue and commented on the recent decisions of the Court of Justice of the European Union in this respect, preferring the American and English courts’ approach to interpretation of the Convention to that of the CJEU. As a result, the court upheld the conclusion at first instance that the presence on the floor of an aircraft galley of a large quantity of plane de-icer and water did not constitute an accident within the meaning of the Convention and the claim must therefore fail.

Arthern v Ryanair DAC (judgment handed down 16th January 2023)

What are the practical implications of this case?

Article 17(1) of the Montreal Convention on the Carriage of Passengers by Air states:

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.

This renders an airline or contracting carrier liable for a claim for death or personal injury as long as the claimant can show that (s)he suffered the injury as a result of an accident occurring during embarkation, carriage, or disembarkation. Crucially, the claimant need not prove fault on the part of the carrier, so ‘pure’ accidents are actionable under the Convention regime. However, to balance out this disadvantage to carriers the courts of the signatory states to the Convention have devised a particular meaning for the word ‘accident’, which must be an ‘unexplained or unusual event external to the passenger’. The court in Arthern confirmed that this interpretation remains good law even following recent caselaw from the Court of Justice of the European Union which seemed to expand the definition to include events for which there is no ascertainable explanation.

What was the background?

The claimant slipped and fell during the course of a flight from Manchester to Hamburg on 12th December 2017. The weather was cold, and the flight had been delayed so that the aircraft could be de-iced. The passengers had trodden a large quantity of water and de-icer into the cabin whilst embarking. A short time into the flight the claimant went to use the aircraft toilet, but as he walked into the galley in order to do so, he slipped on the accumulation of water and de-icer, and fell, sustaining an injury as he did so.

To an English common lawyer this would appear to be an accident, but the court at first instance found that the presence of de-icer on the floor of the galley was not unusual or unexpected, because in cold weather it was to be expected that passengers would tread water and de-icer into the aircraft cabin, and although there was a large quantity of it, such that it had not evaporated by the time the seatbelt signs had been extinguished, this did not take the event outside the ordinary operation of the aircraft. The claimant appealed on the grounds that Defendant’s own witness had stated that although water and de-icer did sometimes accumulate on the galley floor, it would soon evaporate, and so the cabin crew were not obliged to mop it up.

What did the court decide?

Fabey J reviewed the American and English authorities, particularly the leading cases of Air France v Saks 470 US 392 (a US Supreme Court authority) and Barclay v British Airways [2008] EWCA Civ 1419 (an English decision of the Court of Appeal), and found that the test to be applied to the event alleged to be an accident was whether it was ‘a distinct event, not being part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger.’ She accepted the claimant’s contention that the event need only be either unusual or unexpected, but found the CJEU authority of JR v Austrian Airlines AG (Case C-589/20) not to be highly persuasive. In that case the Court had found that where a claimant fell down stairs for no ascertainable reason the incident comprised an accident within the meaning of the Convention. In this respect Farbey J concluded,

In so far as the judgment forms part of international law about the Montreal Convention, I have considered it. However, I do not regard it as having high persuasive value because the reasoning is brief. The judgment does not demonstrate the same degree or quality of reasoning as (in particular) the domestic appellate courts in the cases that I have cited above.

The judge went on to consider the application of the international caselaw to the facts of the appeal. She concluded that the judge was entitled to take the view that it would not be unusual or unexpected, from the viewpoint of a reasonable passenger, that a large amount of liquid would be tracked into the cabin by the numerous passengers who had boarded following de-icing. The appeal therefore failed.

The case is notable in that it reconfirms the domestic courts’ orthodox, Saks based, approach to the interpretation of the word ‘accident’ within the meaning of the Convention. Whilst the CJEU took a more flexible, rights-based stance in considering the ambit of Article 17(1), this did not find favour with the High Court, which preferred the more restrictive interpretation, even if, as Farbey J acknowledged, this might lead to results which seem to the eye of the common lawyer to be unduly harsh.

Case details

  • Court: High Court, King’s Bench Division
  • Judges: Farbey J
  • Date of judgment: 16/1/23

This case note first appeared in Lexis Nexis, 27th January 2023

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