Interpreting ‘Accident’ under the Montreal Convention

United Kingdom

Carmelo Labbadia v Alitalia [2019] EWHC 2103

The High Court recently considered if a failure to act can be an ‘accident’ under Article 17 of the Montreal Convention 1999 in circumstances where the aircraft steps were uncovered and had not been cleared of snow.

Background

The claimant was a passenger aboard Alitalia’s flight from London to Milan on 5 February 2015, which landed in poor weather conditions; there was a mixture of snow and rain at the airport that morning and it was still snowing as the aircraft landed. As the Claimant disembarked the aircraft on a set of mobile stairs, he slipped on compacted snow suffering injuries to his right shoulder and pelvis for which he claimed compensation. Crucially, there was no canopy to protect the steps from the weather. The airline defended the claim, contesting liability on the basis that there was no ‘accident’ within the meaning of the Montreal Convention 1999.

Legal Regime

The term ‘accident’ set out in the article 17(1) of the Montreal Convention 1999 received a well-known and now almost universally accepted interpretation by the US Supreme Court judgment in Air France v Saks [1985] as “an unexpected or unusual event or happening that is external to the passenger”, also holding 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”.

Against Alitalia, the Claimant argued that the use of uncovered steps in the presence of snow or ice was unusual from the perspective of the passenger. Further, on the evidence of the airport’s head of operations, the presence of compacted snow was unusual since the airport adopted special measures to ensure that the steps were free of contamination. As such, there was an active decision to use uncovered stairs, without ensuring that they were free from contamination.

The airline relied on Barclay v BA [2008], the leading authority on whether a slip amounts to an accident under the Convention to argue that a passenger’s slip lacked the necessary element of externality to constitute an ‘accident’. They also relied on a passage by Lord Phillips in re Deep Vein Thrombosis and Air Travel Group Litigation [2004], who stated “I cannot see… how inaction can ever properly be described as an accident…inaction is the antithesis of an accident” to argue that the presence of snow and ice is not an event, nor unexpected in February, and that the failure to clear it is inaction or an omission that cannot amount to an accident.

Decision

The judge considered that the term 'accident' should be given a natural but flexible and purposive meaning, where the essential components can be determined by considering the following questions:

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

The judge decided that there was an accident: the event was a series of acts and omissions by airport personnel for deciding to use stairs without a canopy, with authority being given to the passengers to use them without first clearing the stairs of ice and snow. The event was unusual and external to the Claimant because use of stairs without a canopy did not comply with the airport’s safety manual and so was not part of “normal operations of the aircraft’. Further, the passenger should reasonably expect that the stairs would be free of ice and snow.

It is worth noting that the judge dismissed the carrier’s argument under the contributory negligence provision at Article 20 of the Montreal Convention, that the injury was caused or contributed to by the Claimant’s failure to immediately reach for the handrail; the judge found that the Claimant did nothing other than descend the stairs on the instruction of the carrier and consequently he was not the author of his own misfortune.

Comment

It is no surprise that the judge’s analysis clearly follows the formulation set out in the US Supreme Court judgment in Air France v Saks [1985]. She notes that “there was a chain of events which led to the Claimant’s injuries” and then emphasised what “event” – the decision making process - the airline was responsible for. The following points should be kept in mind:

  1. Although the Barclay decision found in favour of the airline it does not necessarily mean that a slip will always lack the necessary qualities to be an accident under the Convention.
  2. Airlines should welcome the acknowledgement that the mere presence of snow on uncovered steps in adverse weather is not an ‘event’ nor an “accident”. However, attention must be given to requisite safety standards and local protocols; the decision may have been different if the local airport operating manual did not require the stairs to be free from contamination.
  3. The judge said that “inaction could not, in and of itself, be properly characterised as an event”. Although describing that the absence of a warning to the passengers about the risk of snow was not in itself an ‘event’, it highlights a weak idea expressed in the Court of Appeal DVT decision that inaction cannot form the basis for an accident. This notion was rejected by the House of Lords in the subsequent appeal, recognising the danger or inconsistency when interpreting the Convention by the language of the leading judgments, rather than the interpreting the language of the Convention itself.

To review the full decision, please use this link: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2019/2103.html&query=labbadia