Wuchner v British Airways Plc [2024]: A Rare Case on the Operation of the Montreal Convention Limit on Liability

Articles

04/07/2024

In a recent decision His Honour Judge Saunders gave guidance as to the operation of the Montreal Convention where an accident is known to have occurred, but the Defendant raises the issues of contributory negligence and limitation of liability.

The facts

The claim arose out of a slipping accident which occurred on 11th November 2017 as a result of which the Claimant sustained life changing injuries. In summary, he slipped on a spillage of Baileys liqueur whilst making his way to a boarding gate in order to catch a British Airways flight from Heathrow to Zurich. The Defendant admitted the circumstances of the accident, but contended that it was solely due to the negligence of the person who spilled the Baileys or (solely or partially) to the Claimant’s own carelessness, and invoked the limitation of liability provision set out in Article 21(2).

In evidence Mr Wuchner said that he was the last passenger to board the flight. He approached the boarding gate carrying two cups of coffee and with his mobile phone in his hand, with a briefcase in one hand and a carry on bag in the other. As he went as quickly as possible to the gate, he slipped, and fell backwards, hitting his head. He subsequently saw that a bottle of Baileys had been dropped on the floor, and smashed, creating a spillage which had caused him to slip. The BA staff said that they had identified the spillage previously and had called for a cleaner; after the accident they called again, and the cleaner arrived soon afterwards and placed a warning sign on the spillage. It was common ground that BA was not, as a matter of fact, responsible for cleaning operations at the airport.

The law

The parties agreed that the incident was an ’accident’ within the meaning of Article 17 of the Convention, which reads:

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.

The Defendant was therefore prima facie liable to the Claimant for the accident, and indeed admitted as much at an early stage.

The parties also agreed that the Defendant was entitled to limit its liability pursuant to Article 20 of the Convention if it should prove, on the balance of probabilities, that the accident was wholly or partially caused by the Claimant himself:

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.

Furthermore, pursuant to Article 21(2) the Defendant could limit its liability to 113,100 Special Drawing Rights (increased from 100,100 SDRs pursuant to an amendment made by the Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2009), which approximates to about £120,000:

1. For damages arising under paragraph 1 of Article 17 not exceeding [113,100] Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger [113,100] Special Drawing Rights if the carrier proves that:

(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.

The burden of proving that Article 21(2) was engaged rested on the defendant. It had an uphill struggle showing that Article 21(2)(b) was engaged because the negligence must be solely due to the negligence of a third party (presumably, here, the passenger who had dropped the Baileys). In Manufacturers Hanover Trust Co v Alitalia Airlines 429 F Supp 964, for example, even though the damage was caused by armed robbers, it was held that the loss was not solely due to the wrongful act of a third party, because the carrier did not have sufficiently reasonable security systems in place to prevent or deter robberies.  In that case it was held that the carrier had failed to take ‘all reasonable measures that prudent foresight would have envisioned for the securing of high-value cargo’. It was somewhat easier for the carrier to show that Article 21(2)(a) was engaged because in order to satisfy that limb of the test it simply needed to show either that it was not negligent or that any such negligence did not cause the accident.

The issues

There was a high level of cooperation between the parties, and the issues before His Honour Judge Saunders were agreed as follows:

  1. Whether the Defendant’s liability for damages under Article 17 of the Montreal Convention is limited to no more than 113,100 Special Drawing Rights pursuant to Article 21(2).
  2. Whether the Claimant’s alleged bodily injury was caused or contributed to by his own negligence, such that the Defendant is wholly or partly exonerated from liability to the Claimant pursuant to Article 20 of the Montreal Convention, and if so to what extent.
  3. If the answers to (1) and (2) are ‘Yes’, whether any deduction for contributory negligence falls to be applied to (a) the value of the claim as limited under Article 21(2), or (b) the total notional value of the claim (i.e. without regard to any such limit).
  4. The applicable date for the conversion of the limit of liability under Article 21(2) of the Montreal Convention into sterling for the purposes of entering any judgment on the claim.

By the time of the trial the parties had agreed that the answer to the fourth question was that the conversion date would be the date at which quantum was determined, since the Claimant’s loss crystallised on that date. The remaining issues remained very much in dispute, however.

The decision

The judge found that ‘some considerable time’ elapsed between the identification of the presence of the spillage and the accident. During that time the BA staff had not attempted to clean it up, in accordance with protocol. However, the judge found that BA should have had procedures in place to alleviate the situation temporarily, pending the arrival of the cleaners. In failing to have any protocol in place either for the placement of a physical barrier or for rerouting passengers around the spillage or warning them of its presence, BA was at fault and could not, therefore, show that Article 21(2) was engaged.

Furthermore, although at the time of the accident Mr Wuchner was hurrying to catch his flight, having placed himself under pressure of time by going to buy coffee before boarding, this was not the substantial cause of the accident, and His Honour Judge Saunders assessed contributory negligence at 20%.

The result of these findings of fact was that the value of the claim was not limited pursuant to Article 21(1). However, the judge went on to consider the interesting legal question at (3); whether, had the Defendant shown that the claim should be limited under that provision, any contributory negligence would be deducted from the total value of the claim or from the limited value. To illustrate the point, where a claim is worth, as in this case, £5 million, and where a court finds that the defendant carrier was not negligent, but the claimant contributed to the accident, the carrier would argue that the court should interpret the Convention so that the limitation is first applied, and then contributory negligence:

£5 million, limited to £120,000, less 20% contributory negligence = £96,000

Conversely, the claimant would argue that the court should conduct the calculations in the opposite order:

£5 million, less 20% contributory negligence, then reduced by Article 21(2) = £120,000

Perhaps surprisingly, the interpretation of the interplay between these provisions of the Convention has never been considered in any reported authority, either domestically or internationally, although there is some limited academic commentary on the point. Nor do the travaux preparatoires to the Convention assist, this part of the discussions between the interested parties having occurred behind closed doors. It was necessary, therefore, for the parties and the court to grapple with the question from first principles.

His Honour Judge Saunders, in a careful and erudite judgment, made the following observations:

  • It is intended that signatory states should attempt to adopt a uniform interpretation of the Convention;
  • The courts can and should seek assistance from relevant decisions of other Convention countries (such as the USA). However, the weight of these cases should depend upon the standing of the court concerned and the quality of the legal analysis within the decision;
  • Cases decided under the previous Warsaw Convention assist in interpretation of the Montreal Convention;
  • The judicial task is to apply the language of the Convention to the facts of the case;
  • The balance the Convention seeks to strike between the interests of airlines and their passengers should not be distorted by a judicial approach designed to reflect the merits of the case;
  • There is no definition of “negligence or other wrong act or omission” in the Convention. It is therefore for national courts to interpret these terms under their respective choice-of-law rules;

Approaching the question with these overarching interpretive tools, and having examined the academic commentary on the issue, the judge came down firmly on the side of the claimant. He held that as a matter of logic and in accordance with the order of the provisions of the Convention itself, questions of liability should be determined prior to the consideration of the damages limit. Therefore the court should undertake the process:

  • Determine whether the carrier is liable for the accident (here, it was agreed that it was);
  • Determine whether the claimant contributed to the accident (here, the judge found that he had, by 20%);
  • Determine whether the damages limitation in Article 21(1) applies (here, it did not apply because the Defendant had not shown that the accident did not occur due to its negligence).

It follows that in cases where both contributory negligence is found, and the limitation on liability applies, the deduction for contributory negligence is made prior to consideration of the damages cap.

Comment

This case will be of particular interest to domestic and international practitioners undertaking work in this area for two reasons:

  1. The court has found that air carriers owe a duty to take action in respect of spillages impeding embarkation (and, by extension, disembarkation). It is not enough for carriers to rely on the fact that they do not, in fact, bear responsibility for cleaning; they must warn, reroute or otherwise protect passengers from the foreseeable risk of slipping on such spillages. This is so notwithstanding that their protocols may allow for them to take no such action;
  2. As a matter of interpretation, the limit on liability imposed by Article 21(1) of the Convention is applied after and not before consideration of contributory negligence. It is therefore perfectly possible for a claimant who has been partially or even predominantly to blame for the accident to recover the entire capped sum. Where, for example, a claimant has been 90% responsible for an accident, as long as his claim is worth £1,200,000 or more, (s)he will recover the capped sum of £120,000 in its entirety.

During the course of submissions the Defendant’s counsel described this latter outcome as ‘surprising’; but, where the Convention is concerned, surprising outcomes are to be expected. It may be thought to be surprising that a person who is sexually assaulted during the course of a flight can bring a claim against the airline, for example; or that any resulting psychiatric injury would not be recoverable in any such claim; or that slipping on litter on board a flight is not actionable; or that the effects of turbulence can be. An English common lawyer cannot intuit the likely result of any case brought under the Convention by reference to purely domestic notions of fairness, but must always have regard to the wording of the Convention itself and to international jurisprudence. This case is a contribution to that body of law, and a much needed one.

Sarah Prager KC, instructed by Philip Banks and Nina Harrison of Irwin Mitchell, represented the Claimant Mr Wuchner in this case.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

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Sarah Prager KC

Call 1997 | Silk 2023

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