Slips, trips, and the Montreal Convention – what’s the position?

This blog post is by Max Archer and James Beeton of 12 King’s Bench Walk.

In Labbadia v Alitalia (Societa Aerea Italiana S.p.A) [2019] EWHC 2103, Margaret Obi, sitting as a Deputy High Court Judge, ruled on whether a slipping incident that took place as the Claimant disembarked from the Defendant’s flight was an ‘accident’ within the meaning of art. 17 of the Montreal Convention 1999.

The case provides a useful starting point for analysis of the particular issues associated with slipping and tripping cases under the Convention. These issues are considered in this blog post.

Background

On 5th February 2015 the Claimant boarded the Defendant’s flight from London to Milan Linate. The aircraft landed in poor weather conditions. The Claimant disembarked from the rear of the aircraft using an uncovered staircase. There was snow present on the stairs and the Claimant slipped, falling headfirst from the aircraft’s stairs to the ground. He sustained significant injuries to his right dominant shoulder and right pelvis.

The Defendant called evidence from the head of operations at Milan Linate Airport. In evidence he conceded that the operating manual for the stairs that were used on the day of the accident stated that prior to the positioning of the aircraft stairs the operator must check that there were no accumulations of snow or ice. He also conceded that it was highly unusual for aircraft stairs to have snow or ice on them whilst passengers were disembarking from the aircraft.

The judge accepted that: (i) it was snowing when the Claimant exited the aircraft, (ii) there was no canopy covering the rear aircraft stairs, (iii) the surface of the stairs was very slippery (iv) the Claimant slipped on the aircraft stairs whilst disembarking from the aircraft, and (v) the Claimant slipped due to the presence of snow and/or compacted snow on the aircraft stairs.

The law

The central dispute between the parties was whether or not the Claimant’s slip constituted an accident for the purposes of art. 17 of the Montreal Convention 1999, which states:

‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition that the accident which caused the death or injury took place on board the aircraft or in the course of the operations of embarking or disembarking.’

The judge set out the authorities on the meaning of an ‘accident’ in some detail. The leading authority on the interpretation and scope of the word ‘accident’ is the US Supreme Court judgment in Air France v Saks [1985] 470 US 392. This – and other cases dealing with the meaning of the term ‘accident’ – is dealt with in detail in a separate blog post here.

The leading domestic authority on slipping accidents specifically is Barclay v British Airways Plc [2008] EWCA Civ 1419. In Barclay, the Claimant slipped on a plastic strip embedded in the floor of the aircraft. Laws LJ held that this was not 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.

There was no accident here that was external to the claimant, no event which happened independently of anything done or omitted by her. All that happened was that the claimant’s foot came into contact with the inert strip and she fell.’

Having considered the authorities, the judge concluded that the question of whether there had been an ‘accident’ depended on whether there had been an injury (i) caused by an event (ii) which was external to the claimant and (iii) which was unusual, unexpected or untoward rather than resulting from the normal operation of the aircraft.

When is a slip an ‘accident’?

The judgment contains a useful discussion of the various cases dealing with slipping and tripping cases under the Convention. The cases are as follow:

  • In Singhal v British Airways PLC (20 October 2007, Wandsworth County Court), the claimant lost her footing when disembarking from an aircraft onto a jetway that was aligned against the door at a level approximately six inches below its sill. Recorder Bueno QC held that the step down was unexpected and unforeseen from the claimant’s viewpoint. It was also the result of an external factor. The loss of footing therefore constituted an accident within the meaning of the Convention.
  • In Gezzi v British Airways PLC v British Airways PLC 991 F.2d 603, the US Court of Appeals upheld a first instance decision concluding that the proximate cause of Mr Gezzi’s fall was the presence of water on stairs used to embark on a flight at Heathrow Airport and that this was ‘unexpected and unusual’ and ‘external’ to the passenger. It therefore met the definition of ‘accident’ within the Convention.
  • But in Cannon v My Travel (2005, Lawtel, His Honour Judge Caulfield) the claimant’s slip on a wet aircraft ramp at Zakynthos Airport was held not to amount to an ‘accident’. Significantly, the ramp in Cannon was fixed in place and was always exposed to the elements: there was no evidence that it was the airport’s practice to dry the ramp (by contrast to the stairway in Labbadia).
  • In Vanderwall v United Airlines 80 F.Supp 3d 1324, a passenger’s trip on a piece of litter in the aisle of an aircraft was held not to constitute an ‘accident’. But in that case the passenger had made a crucial concession that the presence of litter in the aisle was not anything unusual or unexpected. In Labbadia, the Claimant specifically argued that the presence of compacted snow on the stairway was unusual and unexpected.

Having considered these cases, the judge in Labbadia set out her approach in the following way:

‘The use of the uncovered stairs at the point of disembarkation did not comply with the airports’ operating manual and was therefore not the ‘normal operation of the aircraft’. The event was not mere inertia or inaction. It was an event involving a combination of acts and omissions. The event was unusual from the point of view of the Claimant. He was a frequent flyer and had never experienced having to descend aircraft stairs at the airport without a canopy and reasonably anticipated that the stairs would be free from compacted snow. Of course, there are inherent risks in disembarking from aircraft stairs with luggage. The Claimant may have anticipated that aircraft stairs exposed to the elements would be wet from precipitation, but he had no reason to expect that the stairs would be slippery due to compacted snow. Therefore, the event was unexpected and unforeseen from his perspective. The event was also external to the Claimant.’

She therefore held that there had been an ‘accident’ within the meaning of art. 17 of the Convention. The Defendant’s submission that the Claimant had in effect been contributorily negligent because he knew that it was snowing but failed to take proper precautions by holding the handrail was rejected.

Commentary

For those who are unfamiliar with the Montreal Convention it may seem unsurprising that a slipping incident could be anything other than an accident. However, it must be remembered that the Montreal Convention is a prescriptive strict liability regime that balances the interests of injured passengers and the airline industry.

A key aspect of this decision was the judge’s characterisation of the accident as arising from the positive decision to use an uncovered stairway rather than a failure to warn the Claimant about the stairway’s dangerous condition. This allowed the judge to dodge the difficult issue of whether a failure to act can ever amount to an accident within the meaning of the Convention – a point considered by the Court of Appeal in Deep Vein Thrombosis and Air Travel Group Litigation [2003] EWCA Civ 1005, where Lord Phillips MR commented that “Inaction is the antithesis of an accident.”

The distinction between acts and omissions is notoriously fluid. See, for example, the comment of Charlesworth & Percy on Negligence, 13th Ed, at [2-54]: ‘Whether conduct should be characterised as misfeasance or non-feasance depends very much on the choice of the level of abstraction for describing it.’

It is submitted that the judge’s characterisation of the decision to use the uncovered stairway as one positive act within a ‘series of acts and omissions’ necessarily reflects an implicit policy decision based on the particular facts of this case. The judgment cannot and should not be taken as authority for the proposition that injuries caused by the presence of snow on aircraft stairs will always constitute an ‘accident’. Close analysis of the surrounding circumstances leading to the injury will always be necessary.

In respect of the other elements of the test, the judge was surely right to assess the “unexpected or unusual” criterion by reference to Claimant’s point of view, since this is what the authorities require (see Lord Scott in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 74 [14]). Less convincing is the distinction apparently drawn between steps which are slippery because they are wet with rain, and steps which are slippery because of the presence of snow – particularly where the Claimant could see that it was snowing and that the stairs were uncovered:

‘The Claimant may have anticipated that aircraft stairs exposed to the elements would be wet from precipitation, but he had no reason to expect that the stairs would be slippery due to compacted snow.’

It is submitted that the focus in this and other slipping cases ought not to be on the precise material rendering the steps slippery. It should be enough that a surface that the Claimant reasonably expects to be safe has been rendered unsafe by the unusual or unexpected presence of foreign matter.

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