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Law Bulletin - April 2008

What is “an accident” on a plane?

Although this was just a County Court decision and is not binding, it is an excellent summary of what constitutes an “ accident” under the relevant so-called “no fault” liability conventions. The Judge ends up asking the parties to take this to the Court of Appeal so there can be some binding guidance on the point.

The claimant was flying from Heathrow to Arizona. As she went to her seat, she slipped on a metal strip on the floor of the plane. She brought her case under the Montreal Convention 1999, Article 17.1 (superseding the Warsaw Convention).

Article 17.1 provides: “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 embarking or disembarking.”

The basic issue was: what is an accident? It emerged that a plain and simple accident,( “ a mere fall”) in the normal meaning, on a plane was not sufficient to bring a case under the conventions so as to create so called “strict” liability. The Judge went through several authorities and derived that, rather than just be an accident, the event in question had to fulfil the following criteria:

• An injury caused by
• An external event caused by
• Something unusual or unexpected.

The point of this definition was to rule out cases such as DVT or eardrums bursting under normal air pressure or any events where someone had an injury simply in the normal course of using the aircraft without some unusual or unexpected event. For example, injuring a knee on the metal arm of a seat while passing someone else is not an injury that arose from anything unusual or unexpected about the plane. The accident was unusual but the plane’s condition was not.

In this case, and following case law, the Judge found that this was a “mere fall” and a mere fall was not an event “external” (or an unusual state of affairs on the plane) to the claim so as to create an accident in terms of the convention.

“An event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an Article 17 accident and, second, the event … that has caused the damage of which complaint is made must be something external to the passenger.”

Lord Scott in the DVT Litigation.

The Judge commented that he thought the previous authorities that found against claimants who had tripped over a bag in the aisle or on a wet floor of a lavatory were, by reason of other external, physical circumstances, unusual causes on the plane and thus were wrongly decided.

Permission was granted to appeal to the Court of Appeal.

Barclay -v- British Airways plc. Oxford County Court,7,8, 27 February 2008, Recorder West- Kinghts QC
Claim 6OX03505