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September 10th 2019

In-Flight Accidents: What is the Montreal Convention?

In-Flight Accidents: What is the Montreal Convention?

For several decades, one of the most contentious parts of the Montreal Convention 1999 (and the Warsaw Convention that preceded it) has been the interpretation of the word “accident”.  For such a simple word, there has been a lot of fuss.  The reason why there has been such a proliferation of caselaw, in several jurisdictions, is as a result of Article 17.1 of the Montreal Convention:

For several decades, one of the most contentious parts of the Montreal Convention 1999 (and the Warsaw Convention that preceded it) has been the interpretation of the word “accident”.  For such a simple word, there has been a lot of fuss.  The reason why there has been such a proliferation of caselaw, in several jurisdictions, is as a result of Article 17.1 of the Montreal Convention:

The carrier is liable for damage sustained in the 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 embarking or disembarking.

At first blush, inclusion of the word “accident” might not seem particularly controversial. Indeed, it is widely considered that the drafters of the Montreal Convention intentionally used the word “accident” (rather than “occurrence” or “event” – words used in the Warsaw Convention and the Hague Convention respectively in relation to claims for property damage) to narrow the category of claims that could be brought for personal injury (as compared with claims for property damage) to aid what was, at the time, a fledgling industry.  But lawyers like a good argument and there have been plenty of those…as well as some bad arguments too…

As an English lawyer, one might usefully turn to the Oxford English Dictionary which defines “accident” as:

An unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury.

Not wishing to rely on such a definition, in the 1980s and 1990s, American lawyers fought several cases in an attempt to clarify what constitutes a qualifying accident for the purposes of the Convention.  This resulted in what is commonly accepted as the leading authority on the definition of accident for the purposes of Article 17: the case of Air France v Saks1.  In this case, the US Supreme Court favoured the airline’s defence and declined compensation to a passenger who had suffered deafness due to routine depressurisation during landing.  The Supreme Court found that the injury was not caused by anything unusual about the flight.  In doing so, Justice O’Connor confirmed an “accident” only arises if a passenger’s injury is caused by:

an unexpected or unusual event or happening that is external to the passenger.

This definition has since been endorsed, amongst other cases, by the House of Lords in England in the case of Morris v KLM Royal Dutch Airlines2.

Interestingly, in the Air France v Saks case, Justice O’Connor also confirmed:

This definition should be flexibly applied after assessment of all circumstances surrounding a passenger’s injuries.”

And, with that, ensued significant further litigation around the world…

So called “non-events” produced different results in different countries: the US Supreme Court found in the Claimant’s favour in relation to a passenger who was not permitted to change seat to sit further away from cigarette smoke, but who subsequently died on the flight as he was allergic to second-hand smoke3.

By contrast, the Australian, Canadian and English Courts determined that inaction was a non-event and only an “event” could be an “accident” for the purposes of the Montreal Convention.  In the DVT (also known as “economy class syndrome”) Litigation4 the fact that some passengers experienced blood clots in their legs (sometimes causing strokes, heart attacks and paralysis) from sitting in cramped conditions for long periods of time did not persuade the Court that a qualifying “accident” had taken place.  Indeed, the English Judges were quite critical of the American jurisprudence and some of the logic applied by the Judges in both the Air France v Saks and Olympic Airways v Husain cases.  Lord Scott in the DVT Litigation confirmed:

“It is not the function of the court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to Article 17 liability. The language of the Convention itself must always be the starting point…[a] judicial formulation of the characteristics of an Article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention…I venture…to express my respectful disagreement with an approach to interpretation of the Convention that interprets not the language of the Convention but instead the language of the leading judgment interpreting the Convention. This approach tends, I believe, to distort the essential purpose of the judicial interpretation, namely, to consider what “accident” in Article 17 means and whether the facts of the case in hand can constitute an Article 17 accident.”

The DVT Litigation in England was unsuccessful as Lord Scott determined that 2 of the requirements for an “accident” recognised in the Air France v Saks case were not present, namely:-

  1. an event that is more than the normal operation of the aircraft in normal conditions (also noting that there was no industry practice to warn of the dangers of DVT, and no passenger that experienced discomfort was refused assistance from a flight attendant); and
  2. the event that caused the damage must be external to the passenger (NB it is the “event” that is centrally important here).

The English Court’s view of DVT claims and non-events has also been shared by Courts in America, Canada and Australia5.

So what of other “events” that may, or may not, be accidents?  In another English casethe Claimant was injured when she slipped on the floor strip which was part of the aircraft design within the cabin.  In the first instance decision, the County Court Judge repeated the words of Lord Scott in the DVT Litigation and confirmed that the starting point must always be the language of the Montreal Convention itself, and to apply that language to the facts of the instant case.  When the Barclay case reached the Court of Appeal, Lord Justice Laws, in dismissing the case, stated:

 “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…I conclude that Article 17.1 contemplates, by the term “accident”, a distinct event not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger.  This gives the term a reasonable scope which sits easily in the balance the Convention strikes.”

This appears an eminently sensible decision and reinforces the fact that the Convention is not a strict liability regime.  But what of injuries caused by spillages or debris on the floor?  Unsurprisingly, there are conflicting decisions in different jurisdictions that will continue to shape this area…

…from American decisions that injuries sustained following a slip on a discarded piece of plastic/rubbish on the aircraft cabin floor is not an “accident” (apparently, it is not “unexpected or unusual” for rubbish to be dropped on flights and flight attendants should not be considered “janitors”!)7

…to particularly pro-Claimant French decisions where a Claimant fell, it could not be determined what caused the fall, but the Judge found in favour of the Claimant that an accident had occurred (“his fall, whether it originated from a material obstacle or a clumsiness whilst moving, is the consequence, on the ground, of a physical law that was external to him, which is insurmountable and would immediately punish any clumsy person”)8

…to English decisions that slipping on water on the floor of an air bridge (i.e. a covered area) is a qualifying “accident” as it is unexpected or unusual9.  It is worthy of note that slipping on water cases have failed in the English Courts when the incident occurs on the external steps to the aircraft (as it is certainly not “unusual” for it to rain in England!)

And then there are the slightly more obscure cases…

When a 75 year old passenger’s bag, which contained her medication and life support breathing device, was confiscated from her, the U.S. Court of Appeal10 determined that an “accident” had occurred as the airline had failed to comply with a health-based request.  The airline had previously provided assurances that the bag would remain with the lady during her journey and that the bag, when removed, would accompany her on the same flight.  As neither happened, this was deemed to be an unexpected or unusual event which was external to the passenger.

However, a different approach was taken by the English Court in another medically-related, on-board incident in the case of Ford v Malaysian Airline Berhad11.  The Claimant was on a flight and, when she needed to use the toilet, found that she was unable to urinate.  The Claimant believed this was due to her pre-existing cystitis, but her medication was not available as it was in her hold luggage.  There was a doctor on board the flight and she agreed to allow the doctor to inject a diuretic in her buttock. Unfortunately, unbeknown to everyone, the Claimant was suffering from urethral stenosis.  This meant that she experienced fluid retention, resulting in additional discomfort until the plane landed and further medical treatment was received.

The Claimant in the Ford case submitted that administering a diuretic by injection was, from her perspective, an unusual event; the diuretic had increased her urge, but not her ability, to urinate and this resulted in additional pain and discomfort.  However, the Judge in Ford determined that an “accident” had not occurred as:-

1.the event was not “external” to the Claimant: as the Claimant had consented to the injection it was not external to anything done or omitted to be done by the Claimant; and

  1. the event was not “unusual or unexpected”: the Claimant had discussed the procedure with the doctor, consented to the injection and was aware of what was intended.

What is apparent from the Ford case is that the Judges toiled somewhat in reaching their conclusion as Lord Justice Aikens stated:

“In my view, the key issue is whether the actual act of giving Mrs Ford an injection of a diuretic in the circumstances that prevailed can be characterised as an “unusual” event from the perspective of the “victim”, Mrs Ford, and the “unusual” nature of that event was “a cause” leading to the “bodily injury” alleged… I find this a difficult question, which can be easily argued both ways. The administration of an injection in the course of an international flight by a doctor passenger after a very brief discussion with the patient when neither previously knew each other is not part of the normal or expected operation of the aircraft, although the action of the air hostess in asking the doctor passenger if she could help probably was. On the other hand, the actual administration of an injection by a doctor in the hope that it would relieve the condition complained of…is quite usual…I have concluded that the circumstances in which the injection was administered by the doctor cannot be characterised as “unusual” for the purposes of Article 17.1…The only “unusual” aspect of the whole process was that it was carried out in the course of an international flight by a passenger doctor on another passenger (with proper consent) as a result of a request to the doctor for assistance by a crew member.   But the key point is that there is no evidence that any of those characteristics had any causative effect in the chain of events that led to Mrs Ford’s “bodily injury”…The same chain of events would have taken place wherever the injection had been administered.   It seems to me that the simple fact that the injection was administered in mid-flight rather then elsewhere cannot provide the circumstances with the necessary “unusual” characteristics so that this event constitutes an “accident” within Article 17.1”.

What is clear from the above is that there remains enough ambiguity and conflicting case law for this area of the law to continue to evolve.  Some bad cases will continue to be run and, in doing so, there will be unusual decisions. “Sometimes accidents happen in life from which we have need of a little madness to extricate ourselves successfully” (Francois de La Rochefoucauld).

1470 US 392 (1985)

2(2002) UKHL 7, (2002) 2 WLR 578

3Olympic Airways v Husain 541 US 1007, 157 L.Ed.2d 1146, 124 S.Ct.1221 (2003)

4Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72, [2005] 3 WLR 1320

5US cases: Blansett v. Continental Airlines 379 F.3rd 177 (5th Cir. 2004); Blotteaux v. Qantas Airways 171 Fed. Appx. 566 (9th Cir. 2006); Caman v. Continental Airlines, 455 F.3rd 1087 (9th Cir. 2006)

Canadian cases: Ben-Tovim v. British Airways, [2006] O.J. No. 3027; 2006 ON.C. Lexis 3241 (2006); McDonald v. Korean Air [2002] O.J. No. 3655; 2002 ON.C. Lexis 482 (2002)

Australian cases: Van Luin v KLM Airlines (10377/01 NSW Dist. Ct.); Povey v Qantas Airways (M167/2004, 2005 HCA 33 (2005))

6Barclay v British Airways Plc (2008) EWCA Civ 1419, (2009) 3 WLR 369

7Vanderwall v. United Airlines, 2015 WL 309094 (S.D. Fla.); Rafailov v. El Al Airlines, 2008 US Dist. Lexis 38724 (S.D.N.Y. 2008)

8Merah v Aigle Azur, Rennes Court of Appeal, 12 October 2011

9Anderson v British Airways (unreported), Bury St Edmonds County Court, 7 December 2017

10 Prescod v. AMR 383 F.3rd 861 (9th Cir. 2004)

11(2013) EWCA Civ 1163, (2014) 1 Lloyd’s Rep 301

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