Impact of CJEU decision in JR v Austrian Airlines on the interpretation of the definition of “accident” under the Montreal Convention

The Court of Justice of the European Union has been expanding the ambit of consumer protection in claims for accidents pursued under the Montreal Convention. This is particularly clear in the case of JR v Austrian Airlines, Case C-589/20.

What is the Montreal Convention?

The Montreal Convention imposes a strict liability regime in cases of “accidents” leading to the death or injury of passengers in the course of a flight or in the process of embarking or disembarking the same. Therefore, the key question to ask when a passenger slips, trips or falls (with no identifiable external cause of the fall) can be considered as an “accident” for the purposes of Article 17 of the Montreal Convention 1999.

The concept of “accident” had been traditionally interpreted by both national courts and the CJEU, as an “unusual and unexpected event external to the passenger” which means that the fall itself cannot constitute the accident (i.e. Court of Appeal at Barclay v British Airways [2010] QB 187). Or, in similar terms, an “unforeseen, harmful and involuntary event and that concept does not require that the damage is due to the materialisation of a hazard typically associated with aviation or that there be a connection between the ‘accident’ and the operation or movement of the aircraft” (ie. CJEU decision on Niki Lufthart (C-532/18, EU:C:2019:1127). However, this interpretation has not been exempt from polemic.

In the recent case of JR v Austrian Airlines, the CJEU decided the exact opposite: this is, that the fact that there was a fall was enough to constitute an accident and that it was for the carrier to prove a defence to the claim under Article 20 of the Convention.

Analysis of JR v Austrian Airlines

The facts of the accident in JR were that the claimant was disembarking a flight operated by the defendant using a mobile stairway and holding a handbag on one hand, and her two-year-old son on the other. She then tripped suffering injury and issued court proceedings against the carrier in Austria.

The Austrian District Court dismissed the claim on the basis that the defendant had not breached their obligations: the stairway in question did not have any defects and it was in line with regulations. The Austrian court also concluded that the claimant had not taken all the necessary precautions to avoid the accident.

The claimant appealed and the CJEU was referred two questions regarding the interpretation of Article 17(1) and Article 20 of the Montreal Convention, for which the CJEU concluded:

1. Article 17(1): “must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up for the disembarkation of passengers of an aircraft and injures…herself constitutes an ‘accident’… including where the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard.”

2. As to Article 20, the CJEU determined that where the air carrier proves that the damage was caused by the negligence of the injured claimant, that carrier is to be wholly or partly exonerated from its liability to that person “to the extent that that negligence…caused or contributed to the damage”: The question of how to assess the contributory negligence, however, was a matter that must be assessed in accordance with national law, provided that those laws comply with the principles of equivalence and effectiveness.

Conclusion

The CJEU held that given that the aim of the Convention is to create a regime of strict liability, the fact that the accident was not caused by any fault on the part of the carrier did not prevent the unexplained fall from constituting an ‘accident’. However, it also concluded that it was open to the carrier to rely upon Article 20 which is a ‘contributory negligence’ provision that permits a finding of 100% negligence on the part of the injured claimant — although without allowing the carrier to rely on its own reasonable care as a defence to the claim (unless the claim exceeds £100,000 in value).

It seems to me that in practice, proving that a passenger is 100% responsible for an accident will not be an easy task. It would not be surprising to see judges concluding that finding an injured claimant as 100% responsible for his/her accident would be contrary to the spirit of the Convention (which intends to apply a strict liability regime).

It is perhaps worth mentioning that whilst CJEU decisions are no longer binding on the English Courts following the withdrawal of the United Kingdom from the European Union, they can be taken into account if they are relevant pursuant to section 6(2) of the European Union (Withdrawal) Act 2018. In any event, the interpretation of the Convention, as an international treaty, has never properly been a matter of European law.