Michael Dougherty – ‘Accident’ within the Montreal Convention 1999 – Steps of clarification

The judgment of the High Court – on the effect of a fall on airline steps – in Carmelo Labbadia -v- Alitalia (Societa Aerea Italiana S.p.A) [2019] EWHC 2103 (QB) provides analysis and clarification on the definition of an ‘accident’ within article 17(1) Montreal Convention 1999.

‘Accident’ within the Convention  

Liability of carriers for personal injuries of an international airline passenger is exclusively governed by Article 17 of 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.”

The necessary ingredients are therefore

(1) (death or) a bodily injury,

(2) caused by an accident,

(3) taking place on board or during embarkation or disembarkation.

In Labbadia – it being agreed that C suffered significant injury while disembarking – the main question for the court was whether the circumstances giving rise to the injury were properly considered to be capable of comprising an accident within the meaning of Article 17.

Consideration of ‘accident’ in preceding case law

Given the international effect of the Convention, the concept of what constitutes an accident has been considered in multiple jurisdictions. The leading modern authority is recognised as Air France v Saks [1985] 470 US 392. The observations of the US Supreme Court have the effect that:

(1) ‘accident’ in Article 17 is not the same as what is termed an ‘event’ in Article 18

(2) as Article 17 points to the accident as opposed to the injury, liability arises where the injury is caused by ‘an unexpected or unusual event or happening that is external to the passenger’.

As to the first of these points, the fact that the term ‘event’ (or ‘occurrence’ as it then was by the Warsaw Convention) has a neutral quality, as distinct from the particular quality connoted by the word ‘accident’, was noted by Lord Scott in Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72.

In respect of the second, there can be no accident ‘….when an injury indisputably results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft’ – Air France v Saks

The leading authority contemplating ‘accident’ before the English courts is Beverley Anne Barclay v British Airways PLC [2008] EWCA Civ 1419. Laws LJ postulated three circumstances, two of which were at opposite extremes –

1. A passenger injury from a hot coffee spillage by a crew member – recognised as an accident
2. A heart attack unprovoked by any factor within the aircraft – distinguished as not being an accident
3. The circumstances in Barclay – a passenger fall caused by tripping over an embedded plastic strip, inert and forming part of the aircraft

In finding that the Claimant in Barclay did not experience an accident, the Court of Appeal concluded that Article 17(1) of the Convention contemplates a ‘distinct event’ – not being any part of the usual, normal and expected operation of the aircraft, and ‘happening independently of any act or omission’ on the part of the passenger. On the facts of Barclay all that happened was that the Claimant’s foot came into contact with the inert plastic strip, and she fell.

The applicability of omission or inaction were considered in Deep Vein Thrombosis, Lord Phillips saying, “I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident.”

In Labbadia v Alitalia, Margaret Obi (sitting as a Deputy High Court Judge) followed the reasoning in Air France v Saks and Barclay by reference to three sequential questions

1. Was there an event?
2. If so, was it unusual, unexpected or untoward from C’s perspective?
3. Was the event external to C?

In consequence, where an incident arose purely from omission there could be no liability.

Relevant facts of Labbadia v Alitalia

The Claimant was disembarking, by the rear doors, a flight which had landed in poor weather conditions in Milan in February 2015. Among the material facts relied upon in evidence:

1. C was in an aisle seat, and did not look out of the window during descent or landing
2. There had been one announcement that conditions on the ground were cold / freezing, but no further announcement or indication of a need for caution
3. C and a witness were frequent travellers to Milan in winter, and had not experienced snow at that location
4. D’s witness exhibited operating manual extracts relating to use of aircraft stairs in adverse weather, which stated:
   1. ‘check that the aircraft stairs floor area does not present conditions that could be dangerous for passengers or operators, such as the accumulation of snow, ice and trash. If abnormalities are found they must be removed before authorising the disembarkation of passengers.’
   2.  ‘Make sure that passenger stairs are free from contaminations of ice or snow’
5. The front aircraft stairs had a canopy cover, whereas those at the rear did not

Factual findings of the court arising from the evidence were

1. The steps used by C were covered with snow and / or compacted snow
2. There was no canopy on these steps
3. It was snowing at the time of C’s fall
4. The surface was slippery in consequence
5. The slippery quality, and C’s slip, were due to the presence of the snow / compacted snow

Judicial Reasoning in Labbadia

Was there an event?

The factual findings of the court identified matters which were links falling within a ‘chain of causes’. These were a combination of acts and omissions.

The poor weather was a ‘state of affairs’, which was not capable of being unexpected or unusual at the particular time of year. The failure to warn passengers as to the conditions was not said to constitute a relevant event.

The use of stairs without a canopy however was ‘not a non-event’ – it derived from a conscious and positive decision as to whether to use stairs with a canopy or without. Use of the stairs in this way did not comply with the operating procedures and so was not within the normal operation of the aircraft.

Was the event unusual, unexpected or untoward from C’s perspective?

The event was unexpected and unforeseen from the point of view of the Claimant. Notwithstanding that he had noted snowfall as he approached the exit, he had no reason to expect that the stairs would be slippery due to compacted snow.

Was the event external to the Claimant?

The positive decision to use uncovered steps was one made by the airport personnel. That decision culminated in the aircraft stairs being aligned to the aircraft and authority being given to passengers to disembark.

Effect of Judgment

Labbadia further clarifies the scope of the decision in Barclay.

Practitioners contemplating claims by Article 17 should seek to identify all the circumstances to inform a careful evaluation of the nature and characteristics of the event giving rise to injury – in particular instances of act or omission, allied with the perspective of the Claimant, and the external nature of the event to the Claimant.

It is apparent that cases of injury arising from circumstances said to involve an accident onboard, or while boarding or disembarking an aeroplane, will continue to be considered on a fact-specific basis, with the key aspects of inquiry directed to the above factors.

Subtle differences in the factual pattern are capable of shifting the status of the event. In Barclay the court did not go on to consider what may have been the effect of any modification to the inert flooring strip. It is contended that this would be capable of bringing the incident within range of Article 17. In Labbadia, the court was satisfied no efforts had been made to clear the steps prior to or during use, such that it was not necessary to consider D’s proposition that the fact of the snow was otherwise simply a continuing state of affairs. There may be force in such a proposition – however that may not be capable in isolation of curing the position arising from the decision to use uncovered steps, it having been noted in Air France v Saks that it is required “only that the passenger be able to prove that some link in the chain was an unusual or unexpected event to the passenger”.