Slips and Trips under the Montreal Convention 1999 – a recent example

In Anderson v British Airways (Unreported) 7 December 2017, Bury St Edmunds County Court, Aliyah Akram of 12 King’s Bench Walk, instructed by Jaime Padron of Slater & Gordon, appeared for the claimant in a case considering the application of Article 17 of the Montreal Convention 1999.

Mr Anderson was a passenger on a British Airways flight from Cairo to London Heathrow.  As he was disembarking via an airbridge he slipped and fell to the floor.  He alleged that his fall had been caused by a small puddle of water on the floor.

Mr Anderson brought his claim under Article 17 of the Convention, which provides that:

“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.”

British Airways denied that the floor had been wet and argued that, even if it had been, Mr Anderson had not suffered an accident within the meaning of the Convention.

Findings of Fact

The judge found that the floor had been wet and that that wetness had not, in any way, been caused by Mr Anderson.  She did not consider that she needed to make any further finding as to how the floor had become wet but thought that it was more likely that it was because of rain rather than as a result of a spillage: there was evidence that it had been raining that day but no evidence to enable her to conclude that there had been a spillage.

Legal Background

The leading case in relation to the meaning of “accident” in Article 17 is Air France v Saks 470 US 392 a decision of the US Supreme Court (since the Convention is an international instrument the jurisprudence of any State signatory’s court is relevant to its interpretation). Although Air France v Saks related to the Warsaw Convention, which preceded the Montreal Convention, there is no material difference between the two in this respect.

In Air France v Saks, Justice O’Conner set out that “[w]e conclude that liability… arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger.  The definition should be flexibly applied after assessment of all the circumstances surrounding the passenger’s injuries.”

Had there been an “Accident”?

British Airways denied that the accident was unusual and/or unexpected and denied that the accident occurred because of anything external to Mr Anderson.  Counsel for the airline relied in particular on the decision in Barclay v British Airways [2008] EWCA Civ 1419.  In Barclay, the claimant had slipped on a plastic strip in the aisle of the airplane and suffered injury.  The plastic strip was a standard fitting of the plane and so the Court of Appeal had found that there had not been an accident within the meaning of the Convention.

The judge stressed that in interpreting the meaning of an accident for the purposes of the Convention context was crucial.  It would not be sensible to look at each of the factors in total isolation.  She distinguished Barclay on the basis that in this case the airbridge had not been in its normal state.  She stated that she was reassured in her interpretation of Barclay by the comments of Aikens LJ at paragraph 29 of Ford v Malaysian Airlines [2013] EWCA Civ 1163.

The wet floor had not been expected by Mr Anderson and the defendant’s witness accepted that if he had known the floor had been wet he would have asked the air crew to warn the passengers before they disembarked and would have ensured that warning signs were put up.  The condition of the floor which caused the fall had therefore been unusual or unexpected.  Equally, the fact that the floor was wet was independent of anything done by Mr Anderson and so was external to him.  In summary, Mr Anderson’s fall was caused by an unexpectedly wet floor which was an event external to him. The result was that there had been an “accident” and Mr Anderson’s claim could succeed.

Permission to appeal was denied by the judge.

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