‘Accident’ within the Montreal Convention 1999 – steps provide clarification

A slip and fall on snow covered airline steps in Carmelo Labbadia -v- Alitalia (Societa Aerea Italiana S.p.A) [2019] EWHC 2103 (QB) was held to constitute an accident within the meaning of Article 17 of the Montreal Convention 1999. The judgment reviews relevant case law, and provides some clarification on the definition of ‘accident’ in such passenger claims.

‘Accident’ within the Convention 

1.            Liability of carriers for personal injury affecting an international airline passenger is exclusively governed by Article 17 of the Montreal Convention 1999:

“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.

2.            In Labbadia it was agreed that the Claimant suffered significant injury while disembarking. The principle question for the court was whether the circumstances giving rise to the injury were capable of comprising an accident within the meaning of Article 17.

Principles in preceding case law

3.            Given the international effect of the Convention, the definition has been considered in multiple jurisdictions. The judgment accounted for a number of established principles arising therefrom;

a.            Air France v Saks [1985] 470 US 392 – in which the US Supreme Court opined that –  

(1)          ‘accident’ in Article 17 is not the same as that which 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’.

(3)          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’.

b.            Beverley Anne Barclay v British Airways PLC [2008] EWCA Civ 1419 – the leading authority before the English courts, in which

(1)          Article 17 contemplates a ‘distinct event’, not being any part of the usual, normal and expected operation of the aircraft;

(2)          ‘Happening independently of any act or omission’ on the part of the passenger.

c.             Deep Vein Thrombosis And Air Travel Group Litigation [2003] EWCA Civ 1005, [2005] UKHL 72 –

(1)          the term ‘event’ (or ‘occurrence’ as it then was by the Warsaw Convention) in Article 18 has a neutral quality as distinct from the particular quality or characteristics denoted by the word ‘accident’ – [2005] UKHL 72, per Lord Scott at para 7

(2)          in respect of omission or inaction, “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” – [2003] EWCA Civ 1005, per Lord Phillips MR, at para 25

4.            In Barclay (supra), Laws LJ postulated two hypothetical circumstances, at opposite extremes, alongside the facts in the case before him –

a.            A passenger injury from a hot coffee spillage by a crew member – an event, unexpected by the passenger, and arising from a source external to the Claimant, thereby meeting the definition of ‘accident’

b.            A heart attack unprovoked by any factor within the aircraft – not an accident, distinguished as arising from a source internal to the Claimant, comparable with the symptoms in Deep Vein Thrombosis (supra)

c.             The circumstances in Barclay – a passenger fall caused by tripping over an embedded plastic strip, inert and forming part of the aircraft

5.            In dismissing that appeal against a first instance judgment in favour of British Airways, Barclay confirmed the requirement for an event beyond the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft. Absent this, it was held that

“otherwise 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. It is hard to see how any injury, save only one caused by an autonomous collapse or deterioration in the passenger’s state of health having nothing to do with conditions on the aircraft, would be excluded” – per Laws LJ at para 34

Relevant facts of Labbadia v Alitalia

6.            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:

a.            C was in an aisle seat, and did not look out of the window during descent or landing

b.            There had been one announcement that conditions on the ground were cold / freezing, but no further announcement or indication of a need for caution

c.             C and a witness were frequent travellers to Milan in winter, and had not experienced snow at that location

d.            D’s witness exhibited extracts from an operating manual regarding use of aircraft stairs in adverse weather, which stated:

i.             ‘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.’ (emphasis added)

ii.            ‘Make sure that passenger stairs are free from contaminations of ice or snow’

e.            The front aircraft stairs had a canopy cover, whereas those at the rear did not

7.            Factual findings of the court arising from the evidence were

a.            The steps used by C were covered with snow and / or compacted snow

b.            There was no canopy on these steps

c.             It was snowing at the time of C’s fall

d.            The surface was slippery in consequence

e.            The slippery quality, and C’s slip, were due to the presence of the snow / compacted snow

Reasoning in Labbadia v Alitalia

Was there an event?

8.            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.

9.          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 did not constitute a relevant event.

10.          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.

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

11.          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 hazardous due to compacted snow.

Was the event external to the Claimant?

12.          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, causing the compacting of the snow.

13.          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. Accordingly, by reference to Laws LJ in Barclay, the event fell outside the Claimant’s own particular and personal reaction to normal operations.

Effect of Judgment

14.          Labbadia further clarifies the scope of the decision in Barclay, in particular in so far as the operation of the aircraft and its inert features.

15.          Injury claims within Article 17 would benefit from early analysis of all the circumstances, and 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 operating cause of the event.

16.          It is apparent that cases of injury 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.

Michael Dougherty, a member of Farrar’s Building accepts instructions from both Claimants and Defendants. Michael frequently delivers training, seminars and workshops upon request. Any such request should be made to the Farrar’s Building Clerking Team.

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