Physical contact in confined spaces and the Montreal Convention
Prosser v British Airways Plc [29.11.18]
In a recent decision, Pontypridd County Court examined the nature of modern air travel and passenger expectations of their personal space, and whether encroachment in the space could amount to an “accident”.
The claimant was travelling from Bangkok to London Heathrow in the World Traveller (economy) cabin. The claimant alleged that he sustained an injury to his back during the flight due to having to sit in an uncomfortable position because the passenger sat next to him was so large that he encroached into the claimant’s space. The issue was reported to cabin crew, but, due to the aircraft being at capacity, it was not possible to move seats. The claimant brought proceedings for bodily injury under the Montreal Convention, arguing that the incident amounted to an accident for the purposes of the Convention.
The claim was defended on the following basis:
- There was, in fact, no encroachment on the claimant’s space by the other passenger
- Even if there was encroachment, this would not amount to an accident for the purposes of the Convention
- The evidence of the senior member of cabin crew was that, whilst the other passenger was certainly tall, he was not of a size that could have caused him to encroach on the claimant’s space.
Perhaps of more interest was the argument on whether encroachment could amount to an “accident” for the purpose of Article 17 of the Montreal Convention. To what extent could the inevitable contact experienced between passengers and passengers, and passengers and crew when travelling on board an aircraft amount to an “accident”?
Is encroachment an accident?
In addressing whether such circumstances would amount to an accident, the judge highlighted the importance of understanding what ‘encroachment’ meant in the context of this case – and the common issues that arise during the course of air travel.
The judge held that:
"Aeroplanes are confined spaces. Each major flight operator offers a number of different classes of seating…. The seating area in question in this case, is the Defendant’s equivalent to what is usually known as economy class, which provides the smallest seating areas upon the plane available to paying customers. Travelling in such seats gives rise to a number of common incidents which could ordinarily be termed as encroachments. Neighbouring passengers can be expected to inadvertently make physical contact with their neighbour any number of times throughout a flight, be that a stray elbow whilst someone makes themselves comfortable or a dropped object as someone sleeps. A neighbouring passenger might commandeer the arm rest, the passenger in front may recline their seat or the cabin crew might be required to pass items over a passenger’s head. There are any number of events that could be termed as encroaching upon a fellow passenger."
However, the judge distinguished between these ‘ordinary’ encroachments and an encroachment for the purpose of this claim:
"…It is not however, incidents of this type to which I refer in using the word. I intend “encroachment” to mean the continued or consistent occupation of part of a neighbouring seat itself or of the space above it, such that it can be said that the Claimant did not have the benefit of being able to occupy the entire area which was allocated to him."
Taking these factors into account, while the judge was satisfied that Mr Prosser had suffered a bodily injury on the flight, he did not consider that: “… there was a continued or consistent encroachment upon Mr Prosser's seating area by his neighbouring passenger.”.
Therefore, the encroachment alleged by the claimant was within the scope of physical contact that could be expected during a flight, and such circumstances would not amount to an accident for the purposes of the Convention.
Applying this reasoning to other instances of physical contact that can be expected within the confines of an aircraft cabin, it is clear that contact that is within the usual scope of what can be expected does not amount to an accident, just because the particular circumstances of the claimant result in bodily injury being suffered. The mere fact of a bodily injury being suffered does not result in the circumstances which led to it amounting to an “accident”; an unexpected or unusual event external to the passenger must also be present.
We welcome the approach taken in this case and the clarity provided in the judgment for airline passengers who find themselves in similar situations.