This case review was co-authored by Maeve Morrissey, Trainee Solicitor, London.
A Court of Justice of the European Union (CJEU) decision issued on 12 May 2021 concerned a claim brought by a passenger alleging she sustained a spinal disc injury following an allegedly “hard” landing of an Alternrhein Lufttfarht GnbH (the air carrier) flight from Vienna, Austria to St Gallen/Altenrhein airport, Switzerland.
The passenger brought an action for damages against the air carrier, alleging that the “hard” landing constituted an “accident” within Article 17 of the Montreal Convention.
The air carrier denied liability, asserting that a harder landing was safer at St Gallen/Altenrhein airport because of the alpine environment and the short landing strip. However, the allegedly “hard” landing was within the normal operating range of the aircraft. The flight data recorder recorded a vertical load on landing of 1.8g, well within the maximum tolerance of 2g for the aircraft type concerned, pursuant to the aircraft manufacturer’s specifications. There was no evidence of pilot error. At first instance the court held that events commonly occurring during a flight do not justify an air carrier’s incurring liability since a reasonably well-informed passenger is aware of that type of event and expects that they may occur.
This was upheld by the Higher Regional Court but a point of law was referred on appeal to the Austrian Supreme Court who decided to stay the proceedings and refer to the CJEU for a preliminary hearing.
Referral to the CJEU
Following appeal, the Austrian Supreme Court referred a question to the CJEU, asking whether a “hard” landing, within the normal operating range of the aircraft, could be classified as an “unforeseen, harmful and involuntary event” amounting to an “accident” for the purposes of the Montreal Convention.
The CJEU held that an “accident” should not be determined from the passenger’s perspective because two different passengers could view the same event from different perspectives. Such an approach could lead to paradoxical results where an event would be “unforeseen” to one passenger but not to another. The CJEU held that classification of a harmful event as “unforeseen” must be made taking into account the normal operating range of the aircraft on board which the event occurred, rather than from the perspective of the passenger.
The court held that the concept of “accident” does not cover an aircraft landing that has taken place in accordance with operating procedures and limitations applicable to the aircraft in question.
In other words, as long as the landing was within the operating tolerances of the aircraft, then it could not amount to an accident, even if it did result in bodily injury to a passenger.
The decision reflects accepted jurisprudence, at least in common law jurisdictions, as to the meaning of “accident”. However, questions have been raised as to whether this decision introduces a consideration of negligence to the “accident” analysis.
The cause of action under Article 17 gives rise to qualified strict liability. In other words, it is not necessary for the claimant to prove any element of fault, prior knowledge or negligence.
However, as the CJEU held that this was not an accident due to: 1) the aircraft landing within the aircraft manufacturer’s specifications and 2) the absence of pilot error (rather than just the former), the CJEU has arguably introduced a mechanism whereby negligence plays a role in the court’s analysis of “accident”.
This approach would result in a negligence-based approach to establishing liability – a clear divergence from the existing qualified strict liability regime, which focuses on whether the event which caused the injury was unusual and unexpected, not whether the event arose due to any negligence in the mechanism by which the event was precipitated.