Aviation claims: Potential challenge to concept of accident in the Montreal Convention

Europe

A recent Court of Justice of the European Union (CJEU) decision in December 2019 may give scope to challenge the definition and concept of the term “accident” within Chapter III - Article 17 (1) of the Montreal Convention 1999.

Article 17 (1) of the Montreal Convention 1999 states that:

“…The carrier is liable for damage sustained in the 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…”

In GN v ZU (C-532/18) reported in December 2019, a ruling was made on what is deemed the ordinary meaning and concept of the term ‘accident’. The question arose from the Austrian Supreme Court following an original liability claim hearing in 2015.

The action was pursued by a child following a personal injury suffered on board an aircraft. She was travelling with her father when she sustained a scalding injury. A hot drink placed on an adjacent tray table tipped over and split the contents onto her chest.  

The first-tier court determined in favour of the child concluding that the harm was caused from an accident deemed an unusual event that was based on an external action and as such was compensable.  The defendant successfully appealed to the second-tier (Higher Regional Court) arguing that the terms of the Convention only applied to accidents caused by a “hazard associated with aviation” and when applying such definition to be the material facts, the child’s injuries were not caused by a hazard arising from the nature, condition or operation of the aircraft, or from an aviation facility used when embarking on or disembarking from the aircraft.  The second-tier court allowed the appeal. The Austrian Supreme Court referred the case to the CJEU to determine the interpretation of the term “accident”.  

Noting that the concept of ‘accident’ is not defined in the Montreal Convention the CJEU ruled that the term was to be interpreted according to its ordinary meaning but in the light of the object and purpose of the Convention. An ‘accident’ was an unforeseen, harmful and involuntary event.  Further discussion was raised on the balance between enabling passengers to be compensated easily and swiftly against the economic burden to carriers. The purpose of the Montreal Convention was to "lay down a system of strict liability for air carriers". The CJEU concluded that the Convention was not limited solely to hazards associated with aviation; "the concept of 'accident' . . . covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typically associated with aviation".

Comment

The CJEU’s decision has extended the liability placed upon carriers to circumstances that are not just directly related to aviation operations but may also include any unusual or unexpected event on board the aircraft. Whilst there is currently no judicial precedent following this judgment, the case having been referred back to the Austrian Supreme Court, and the impact and effect has yet to be tested beyond the original referral, carriers may wish to give consideration to modifying their assessment procedures, investigation, monitoring and/or training to extend the scope of their risk management and future proof for potential on board liabilities caused by factors outside of  normal aviation operations.

This comes shortly after the recent High Court decision of Carmelo Labbadia v Alitalia in which the court considered whether a failure to act can be an ‘accident’ under Article 17 of the Montreal Convention in circumstances where the aircraft steps were uncovered and had not been cleared of snow. To read more on the decision see our previous Law-Now.

Further reading:

GN v ZU (C-532/18)
Carmelo Labbadia v Alitalia [2019] EWHC 2103