When is an accident not an accident?

In order to recover damages under Article 17(1) of the Montreal Convention (where bodily injury was suffered on board an aircraft or in the process of embarking or disembarking) a claimant has to prove that there was an “accident”.  Sounds simple?  Unfortunately it is not – mainly due to the vagaries of language and the fact that there is a body of international case law brought to bear on the subject.

The first point to make is that the injury itself cannot be the accident.  This goes contrary to common parlance.  If you see a friend with a plaster cast on their arm you may enquire about their health and be told “it was an accident”.  It may have been an accidental injury but to fall within the scope of the Convention something more is needed.

In the United Kingdom the leading case on “what is an accident” is DVT and Air Travel Group Litigation [2005] UKHL 72.  Lord Mance broke the requirements of an Article 17 (1) Montreal Convention accident down to three important aspects: 

whether there was (a) an event, which was (b) unexpected or unusual and (c) external to the passenger. 

This test was applied by the Court of Appeal in Barclay v British Airways PLC [2008] EWCA Civ 1419.  The claimant slipped on a plastic seat tracking set into the floor of an aircraft.  There was no defect with the plastic tracking, the most that could be said was that it lacked friction.  The Court of Appeal found that: 

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

Recently I advised and defended Flybe at trial in Cardiff County Court in a case called Jefferson v Flybe.  The claimant passenger was descending a Flybe aircraft’s steps to the airport apron on a rainy day.  The steps were wet and on the bottom step the claimant slipped and fell and claimed damages.  The case was defended on the basis that there was nothing unusual or unexpected about rain in Cardiff, the aircraft steps, disembarking from an aircraft onto the airport apron or that fact that, due to rain the steps may be wet.  Dismissing the claim, Deputy District Judge Wilson-Williams found that the claimant’s slip was not capable of amounting to an accident within the meaning of Article 17(1) of the Convention.  Permission to appeal was refused.

Although this is a County Court decision and cannot be relied upon as establishing any new point or principle of law, it demonstrates the restricted operation of the Montreal Convention.  Although the Convention imposes strict liability on carriers for injuries caused by accidents, claimants have to be able to show that the facts of their case means that it falls within the ambit of the terms used in the Convention.