Clarity provided on test for "unusual and unexpected" event under Montreal Convention

On 16 January 2023, the High Court of England and Wales provided clarification on the test to be applied in determining whether an event resulting in bodily injury during carriage by air amounts to an accident within the meaning of the Montreal Convention 1999 (the Convention).

The judgment addresses the question of whether the nature of an "unusual and unexpected" event causing bodily injury under the Convention ought to be considered from the subjective perspective of the claimant, or objectively. The Court held that the assessment of "unusual or unexpected" is from the perspective of the ordinary, reasonable passenger; this passenger must be regarded as a person with experience of commercial air travel and with reasonable knowledge of established or common airline practice. The reference to established or common airline practice is of particular interest in the context of some recent decisions which suggest that the test was more subjective in nature.

Interpretation of the Montreal Convention 1999

Article 17 of the Montreal Convention provides:

This means that for the airline to be liable, an accident must have occurred in the course of carriage by air (including during the course of the operations of embarking or disembarking), causing the passenger to sustain bodily injury.

English case law, following that of the United States’ Supreme Court, has interpreted what amounts to an accident within the meaning of the Convention as an unusual or unexpected event external to the passenger and outside of the normal operation of the aircraft.

Recent cases have arguably muddied the waters regarding how the test of "unusual and unexpected" should be applied, particularly whether the test should be subjective or objective (see Deep Vein Thrombosis Group Litigation [2006] in England and Wales, and Moore v British Airways PLC [2022] in the US). Is the subjective opinion of what the claimant regarded as unusual and unexpected the defining test? Or is it an objective test - what the carrier would regard as unusual or unexpected?

Airlines and their insurers favour the latter approach, but those acting on behalf of claimants have routinely sought to argue the test should be a subjective one.

Arthern v Ryanair DAC - background

In Arthern v Ryanair DAC, the claimant was a passenger on a Ryanair flight from Manchester to Hamburg. Ambient temperatures were below freezing and the aircraft had been de-iced prior to departure. During the flight, shortly after the seat-belt signs had been turned off following take-off, the claimant left his seat to visit the lavatory. On his way, he slipped in liquid by the cabin door, sustaining injury. For the purposes of trial, it was accepted that this liquid was a mixture of water and de-icing fluid tracked in by passengers who had walked across the apron to board the aircraft via steps.

County Court decision

Ryanair was successful at first instance. Her Honour Judge Evans held that whilst the circumstances amounted to an event (as opposed to a state of affairs), the presence of a mixture of water and de-icing fluid on the cabin floor at the entrance of the aircraft was not unusual or unexpected.

The claimant’s evidence was that he found the presence of de-icing fluid in the cabin at that point in the flight to be unexpected. While this evidence was accepted, Evans J considered the event from the perspective of the objective passenger, determining that an objective passenger would not find the presence of a mixture of de-icing fluid and water on the floor of the aircraft in these circumstances to be unusual or unexpected.

It was therefore held that the claimant’s fall was not caused by an accident and the claim was dismissed. The claimant appealed.

Appeal hearing

On appeal, Mrs Justice Farbey, sitting in the High Court Appeal Centre in Manchester, considered the "perspective element" of the test in more detail, specifically referring to the Deep Vein Thrombosis Group Litigation decision, which claimants have previously used to argue for the subjective test approach. She concluded, referencing the decision in Moore v British Airways, that the test is not a subjective one and stated and that it is the standpoint of an ordinary, reasonable passenger that counts:

Mrs Justice Farbey held that, using this test, the events did not amount to an accident within the meaning of the Convention and dismissed the claimant’s appeal.

Comment

This is an important clarification of the approach to be taken in considering whether circumstances amount to an accident within the meaning of the Convention.

In air travel, many events giving rise to passenger injuries inevitably involve matters with which some passengers may not be familiar (for example, as in this case, de-icing aircraft). However, applying the above test - considering the circumstances giving rise to an injury from the perspective of a person with reasonable knowledge of established or common airline practice - a claimant’s evidence as to their subjective view as to what they consider to be unusual or unexpected is not relevant. Evidence as to established or common airline practice to support a defence of "no accident" may be the key area for debate.

Kennedys acted for Ryanair DAC in these proceedings.

Related items

• Can a “hard” landing, within an aircraft’s normal operating parameters, constitute an accident under the Montreal Convention?
• Physical contact in confined spaces and the Montreal Convention
• CJEU renders decision on meaning of “accident” under Article 17 of the Montreal Convention