The Montreal Convention and “Accidents”

In the recent case of Prosser v British Airways Plc [2018] EW Misc B13 (CC), DJ Andrew Barcello considered an unusual claim under art. 17 of the Montreal Convention (and one which has generated publicity in the press). In summary, the claimant said that he had suffered personal injuries as a result of being forced to sit at an awkward angle over the course of a long-haul flight by a very large passenger “encroaching” into his seating area.

This blog post sets out the law on “accidents” under the Convention and looks at how this odd case may fit into the liability framework provided by the authorities.

It will be recalled that under the Convention 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’.[1]

There are therefore three criteria to establishing liability under the Convention:

“The requirements of liability are, first, that the passenger has suffered a bodily injury (a requirement that gives rise to questions about psychiatric injury which, happily, do not need to be addressed in the present case), second, that the bodily injury has been caused by an “accident” and, third, that the accident took place on board the aircraft (or in the process of embarkation or disembarkation)”.[2]

Prosser concerned the second of these criteria. The claimant alleged that he had suffered back injuries as a result of having to sit in an awkward position on a long flight from Bangkok to London as a result of a very large passenger in a neighbouring seat encroaching into the claimant’s seating area. He brought a claim against the carrier under art. 17 on the basis that this unfortunate course of events qualified as an “accident” entitling him to compensation.

While the judge was satisfied that the claimant had suffered the injury complained of, he did not accept that the large neighbouring passenger had in fact been encroaching into the claimant’s seating area. Since the claimant’s awkward sitting position had not been “forced upon him”, the judge concluded that there could not have been an accident: there was nothing “unusual or unexpected about there being a large person sat next to Mr Prosser”.

Would the result have been any different if the judge had accepted that the large passenger had been encroaching into the claimant’s seating area? This article will review the law on “accidents” under art. 17 before looking at how the principles may have applied in Mr Prosser’s case.

The Key Authority: Air France v Saks

It is now very well-established that concepts employed by the Convention are “autonomous” and do not depend on the interpretations of similar concepts in national legal systems. Domestic courts may therefore look to the approaches taken by the courts of other Convention countries in determining how the language of the Convention is to be interpreted; the decisions of US courts tend be given particularly significant weight in this context.[3]

The key authority on the meaning of “accident” in the context of art. 17 is thus a decision of the US Supreme Court on the precursor provisions of the Warsaw Convention: Air France v Saks (1985) 470 US 392, 405. Justice O’Connor, who delivered the opinion of the court, held that:

“liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.”

She later commented (at 406) that:

“Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.”

This test may be split into four elements: (i) an “event or happening” which is (ii) “unexpected or unusual” and (iii) “external to the passenger” and which (iv) constitutes a link in the causal chain to the claimant’s injury.

An “Event or Happening”

The usual understanding of an “event or happening” might be that it signifies an occurrence which is self-contained and easily identifiable: the airplane crashing would be a particularly striking example.[4] However, in the Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 at [75], Lord Mance made clear that there was no requirement for the relevant event to be “instantaneous and immediately noticeable, rather than continuous and unrecognised.”

He therefore approved of the comment of Ashley AJA in his partially dissenting judgment in the Court of Appeal of Victoria in Povey v Qantas Ltd and Anor [2003] VSCA 227 at [211]-[216] that the continuous malfunction of the aircraft’s pressurisation system could constitute an accident if it caused injury.

Can a carrier’s failure to act amount to an accident? The Court of Appeal in the Deep Vein Thrombosis and Air Travel Group Litigation [2003] EWCA Civ 1005 was clear in its view that a failure to warn of the risks of deep vein thrombosis could not be an accident, with Lord Phillips MR commenting that

“It is not an event; it is a non-event. Inaction is the antithesis of an accident.”[5]

That approach may be contrasted with the subsequent US Supreme Court decision of Husain v Olympic Airways (2004) 124 S Ct 1221, where a flight attendant refused an asthmatic passenger’s wife’s requests to move him away from the smoking section of the aircraft, with the result that he suffered a severe asthma attack and died. The majority of the court was satisfied that the failure to move the passenger constituted an accident for the purposes of the Convention.

When the House of Lords later considered the effect of Husain in the Deep Vein Thrombosis and Air Travel Group Litigation, Lord Scott and Lord Steyn were of the view that the act/omission issue simply did not arise on the facts ([22] and [40] respectively). Lord Walker characterised the failure in Husain to move the asthmatic passenger as a part of a positive “confrontation” rather than a non-event ([46]). Lord Mance suggested in a similar manner that a way around the issue was to hold that “an event may in some circumstances exist, where there has been crew inaction in a context where action would normally be expected” ([74]).

“Unexpected or Unusual”

In Saks, Justice O’Connor identified two aspects of the Warsaw Convention which she considered to establish that a simple event causing an injury was insufficient to ground liability.

First, she noted that art. 18 imposed liability for destruction or loss of baggage as a result of an “occurrence”[6]; she concluded that the deliberate choice of the word “accident” in art. 17 necessarily signified more than a mere occurrence. It was recognised that this required the drawing of a potentially arbitrary line – but Justice O’Connor felt that this was required by the wording of the Convention.

Second, she noted that art. 17 referred to an accident which caused the passenger’s injury, not an accident which was the passenger’s injury: the accident and the injury were therefore clearly separated.

This approach has since been approved and applied in England.[7] The House of Lords accepted that the term ‘accident’ must have been intended to denote an occurrence of a particular quality or characteristics – i.e. something more than a mere occurrence.[8] It also accepted that this term referred to the cause of the injury rather than the injury itself.[9]

The House of Lords agreed with the US Supreme Court’s approach that the relevant event or happening must have the characteristic of being ‘unexpected’ or ‘unusual’.[10] The ‘unintended’ or ‘unexpected’ nature of the event was to be assessed from the point of view of the victim of the accident.[11]

An unexpected or unusual event or happening could not include one which was ‘no more than the normal operation of the aircraft in normal conditions’.[12] It would not therefore include injuries to hearing caused by the normal operation of the aircraft’s air pressurisation system (as in Saks), or problems caused by the cramped seating conditions and low pressure common on airplanes (as in the Deep Vein Thrombosis and Air Travel Group Litigation), or seat belt injuries caused by the ordinary process of deceleration on landing, or back injuries caused by prolonged sitting in an ordinary aircraft seat.[13]

A more unusual example is provided by Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163, where the Court of Appeal held that an injection of a diuretic by a doctor on an international flight (with detrimental consequences) could not be characterised as sufficiently ‘unusual’ (nor, where consented to, ‘unexpected’) to qualify as an “accident”: doctors commonly administered injections, such that the only unusual circumstance was that the injection had been administered during the course of an international flight – but this could not be enough since it would necessarily be a feature of every case.[14]

“External to the Passenger”

The event must be ‘external’ to the passenger and not be caused by the ‘peculiar internal condition’ of the passenger.[15] Thus, the development of a deep vein thrombosis[16] and hearing loss[17] in the course of the normal operation of the aircraft were characterised as internal events; so were the collapse of a disabled person whilst attempting to leave his seat to go to the lavatory[18] and the collapse of an intoxicated passenger.[19]

In the Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 at [49], Lady Hale thought that focusing on externality as a criterion was unhelpful: she went further in indicating her view that an injury to a passenger as a result of a fall would automatically qualify as an “accident”. However, she was in the minority in this respect and Laws LJ in Barclay v British Airways Plc [2008] EWCA Civ 1419 considered her conclusion to be “problematic”, since the requirement of externality was critical to the rejection of liability in Saks.

In Barclay, the claimant had slipped on a plastic strip embedded in the floor of an aircraft and sustained bodily injury. The strip was a standard fitting and the cabin environment was in normal working order. In considering the externality criterion, Laws LJ divided the potential scenarios into three categories (at [10]):

  1. A member of cabin staff loses his footing and spills hot coffee on a passenger (i.e. a purely external event): this would constitute an accident.
  2. A passenger suffers a heart attack unprompted by any event in the aircraft (i.e. a purely internal event): this would not constitute an accident.[20]
  3. An injury is caused by an event constituted by some contact or interaction between the passenger and the airplane in its normal state, such as the slipping accident involved in Barclay itself.

Laws LJ noted at [34] that allowing the third situation to fall within the meaning of the word “accident” would mean that almost any injury save one caused by an autonomous collapse having nothing to do with the conditions of the aircraft would lead to liability under art. 17. He concluded at [35] that it must mean “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”: the interaction between the passenger and the airplane in its normal state was not enough.

In the New South Wales Court of Appeal case of Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354, Sackville AJA suggested at [120] that this conclusion could be taken as meaning that a claimant would have to prove that “the event causing injury occurred independently of anything done or omitted by the passenger”. However, this interpretation was rejected by Aikens LJ in Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [29], who considered that Laws LJ had simply been emphasising that the unusual nature of the event and the relevant link in the causative chain had to be independent of anything done or omitted by the passenger (and therefore not that the claimant’s input into the course of events leading to the injury would exclude liability).

While Barclay confirmed that an injury merely involving a standard fitting on the aircraft would not constitute an “accident”, the position where a standard fitting is rendered dangerous, for example, by virtue of being wet and slippery is subject to conflicting decisions.[21] Where a fitting on the aircraft is defective (e.g. a defective seat causing spinal injuries), then establishing liability for injuries caused thereby may be more straightforward.[22]

Importantly in this context, it appears that “accidents” can include deliberate acts. Thus, in Morris v KLM Royal Dutch Airlines [2002] QB 100 there was no appeal against the Court of Appeal’s finding that a sexual assault constituted an accident. The approach in Morris is consistent with the approach in Saks, where O’Connor J had noted without disapproval that lower courts in the US had found that the term encompassed terrorist attacks, hijackings, and torts committed by fellow passengers.[23]

In Barclay at [18], Laws LJ noted that, as a matter of ordinary language, the event giving rise to the injury in Morris could “hardly be described as an accident at all”, since it was deliberate; it was therefore a clear example of how the autonomous meaning diverged from the everyday use of the term.

Some US decisions have additionally indicated that the relevant event must be related to the operation of the aircraft itself or to a characteristic of air travel.[24] However, in Morris the Court of Appeal disapproved of that approach – although it was ultimately unnecessary for the court to decide the point since the assault was rendered possible by the characteristic of air travel in requiring passengers to sleep in close proximity to strangers. [25]

A Link in the Causative Chain

The unexpected or unusual nature of the event must be a ‘link in the chain’ which results in the bodily injury. This means that the event need only be a cause of the injury, as opposed to the main or only cause thereof.[26]

Conclusion on Prosser v British Airways Plc

Although the situation in Prosser does not chime with what one normally understands by the word “accident”, on the basis of the above authorities it is possible to identify a line of argument for the claimant that:

  1. Such encroachment forcing the claimant to adopt an awkward sitting position over the course of a long flight could qualify as an “event” (there being no need for the event to be “instantaneous”);
  2. Although sitting next to a large passenger who fits within the confines of his seat cannot be said to be “unexpected or unusual”, this situation may be contrasted with the long-term encroachment of one passenger into the seating area of another;
  3. The cause of the injury is “external” to the claimant in that he is forced into an awkward position by the neighbour: it does not matter that the cause relates to the actions of another passenger rather than the operation of the aircraft itself;
  4. The encroachment was a cause of the injuries ultimately suffered by the claimant.

It is therefore disappointing that the judgment did not go on to consider these interesting points. Whether another suitable test claim on these odd facts will present itself soon remains to be seen!

[1] Article 17(1) Montreal Convention

[2] Per Lord Scott in the Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 at [3]

[3] See, for example, Morris v KLM Royal Dutch Airlines [2002] UKHL 7 and Sidhu v British Airways Plc [1997] AC 430

[4] As in Akehurst v Britannia Airways Ltd (Unreported) 22 May 2003, Cardiff County Court

[5] The same conclusion was reached by the Court of Appeal of Victoria in Povey v Qantas Ltd and Anor [2003] VSCA 227, with Ormiston JA noting at [17] that “a failure to do something … cannot be described as an event or happening…”

[6] Article 18 of the Montreal Convention uses the word “event” instead, but the effect is the same: per Laws LJ in Barclay v British Airways Plc [2008] EWCA Civ 1419 at [9]

[7] See, for example, Morris v KLM Royal Dutch Airlines [2002] UKHL 7

[8] Per Lord Scott in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 [7]

[9] Per Lord Scott in the Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 at [14] and Lord Steyn at [29]; see also Aikens LJ in Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [21]

[10] See Aikens LJ in Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [21] and Lord Hope in Morris v KLM Royal Dutch Airlines [2002] UKHL 7 at [71]

[11] Per Lord Scott in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 [14]

[12] Per Lord Scott in the Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 at [23]

[13] Examples given by Nelson J at first instance in the Deep Vein Thrombosis and Air Travel Group Litigation [2002] EWHC 2825 (QB)

[14] Per Aikens LJ in Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [28]

[15] Per Aikens LJ in Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [24]

[16] In the Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 and on appeal to the High Court of Australia in Povey v Qantas Ltd and Anor [2005] HCA 33

[17] In Air France v Saks 470 US 392

[18] In Chaudhari v British Airways Plc The Times, 7 May 1997 (assuming that the disability was the sole cause of the fall)

[19] In Padilla v Olympic Airways 765 F Supp 835 (1991)

[20] Although a refusal to divert an aircraft in order to treat a passenger’s heart attack might be considered an accident: Fulop v Malev Hungarian Airlines 175 F Supp 2(d) 651 (SDNY)

[21] In Gezzi v British Airways Plc 991 F 2d 603 (9th Cir, 1993, US Court of Appeals) it was held that slipping on wet stairs constituted an accident; see also Sharma v Virgin Atlantic Airways 31 Avi 17, 539 (CD Cal, 2006). In Cannon v MyTravel Airways Ltd [2005] 7 WLUK 216, HHJ Caulfield reached the opposite conclusion in relation to a wet marble ramp

[22] As in Malaysian Airline Systems Bhd v Krum [2005] VSCA 232

[23] For an example of a hijacking case, see Husserl v Swiss Air Transport Company Ltd 388 FSupp 1238 (1975); see also the judgment of Nelson J at first instance in the Deep Vein Thrombosis and Air Travel Group Litigation [2002] EWHC 2825 (QB) as affirmed in the Court of Appeal [2003] EWCA Civ 1005

[24] E.g. Stone v Continental Airlines, Inc 905 F Supp 823, 827; Price v British Airways (1992) 23 Av Cas 18, 465

[25] See Lord Phillips MR in Morris v KLM Royal Dutch Airlines [2002] QB 100, 102h-103d

[26] Per Aikens LJ in Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 at [26]

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