In Barclay v British Airways (2008 1 CLC 253) the Court considered the meaning of “accident” in the context of the Montreal Convention 1999.
The case concerned a decision of Recorder West-Knights QC sitting in Oxford County Court, who had to decide whether a slip by a passenger was an “accident” within the meaning of Article 17.1 of the Montreal Convention 1999 (Convention) (which has force of law in England due to the Carriage by Air Act 1961). The Claimant suffered ligament damage when she slipped whilst making her way to her seat on a BA Boeing 747 bound for London. To reach her assigned seat the Claimant had to pass along a group of four seats in the middle of the plane. It was an agreed fact that as she lowered herself into her seat her foot slipped on a plastic strip used to cover the seat tracking and wiring for the in-seat entertainment and her knee ‘popped’ hitting the armrest of the seat as it gave way. It was not suggested by the Claimant however that the plastic strip was inherently slippery and the judge held that it was not unduly slippery.
The Convention, which applies to international travel, offered the only remedy to the Claimant as it displaces all other heads of claims including tort and contract. Article 17.1 provides that “[T]he 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 issue for the judge was whether the Claimant’s injury was the result of an “accident” within the meaning of the Convention. BA argued that for there to be an “accident” the Claimant had to show that there was something external to her which caused the slip. The Claimant argued that her injury was the result of an accident and there was no binding authority to displace the natural meaning of the word.
The judge quoted the basic principles of construction of Article 17, as summarised in In re Deep Vein Thrombosis Group Litigation  1 AC 495:
- the starting point is the natural meaning of the language in Article 17
- the Convention should be considered as a whole and given a purposive intention
- the Convention should not be interpreted by reference to domestic law principles or domestic rules of interpretation
- assistance can be sought from relevant decisions from other Convention countries.
He also cited a passage from Air France v Saks 470 US 392 where the judge stated that: “liability under article 17 of the Warsaw Convention [Article 17 of the Montreal and Warsaw Conventions were treated as the same for the purposes of the Barclay action] arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries ... 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 external to the passenger.”
The judge considered whether the claimant’s slip was an event external to the claimant and decided that it was not; it was instead a ‘mere fall’. Based on the Court of Appeal’s decision in Chaudhari v BA (16 April 1997, unreported) and the weight of foreign case law, a mere fall was not to be considered an event external to the Claimant within the Convention meaning of “accident”. It had also not been established that the plastic strip caused the Claimant to slip and, the judge found, even if the strip had caused the Claimant to slip there was nothing unusual or meaningfully unexpected about that as a cause. The judge also held that there was no event in the chain of events prior to the fall that could be described as unusual or unexpected. The claim therefore failed because the Claimant’s injury was not due to an “accident”; a conclusion the judge described as “mildly counter-intuitive”.
The judge’s decision, being one in a county court, is not binding on any other court. He readily gave the Claimant permission to appeal, describing the current state of the law as being “complicated, uncertain and diffuse” and needing to be “nudged back on track” by the Court of Appeal. Certainly, the judge’s decision entailed a compendious review of the authorities, both English and foreign, involving fine and often tortuous distinctions in the quest to define “accident”. The Court of Appeal is due to hear the appeal in early October 2008 and clarification from the appellate court will be welcomed by all dealing with Article 17 Convention cases.