Two passengers are flying to Majorca, one sitting at the front and the other at the back of the plane. Both were injured approximately simultaneously during the flight. The front passenger was returning from the bathroom and slipped on a plastic strip embedded in the aircraft floor and landed on his wrist, causing an injury. Meanwhile, the passenger at the back was simply sitting when, without any fault on the cabin crew’s part, hot coffee spilt from the cafetière onto the person’s hand.
Typically, only one of these individuals might be eligible for compensation. An experienced EL/PL personal injury lawyer might argue that the front passenger who tripped will win the case, and that might seem correct! However, that assumption could be mistaken.
The Montreal Convention of 1999 aims to provide clearer and better rights for airline passengers, addressing the shortcomings of the old Warsaw Convention. It allows claimants to sue airlines without proving fault, under strict liability. While this might appear to simplify matters for injured passengers, the reality is more complex than it seems.
When does the Convention apply?
A flight must be international for the Convention to apply
For a flight to be considered international, your departure and destination must be in different countries unless there is a planned stop in another country. A carriage is not restricted to airplanes, it can even include hot air balloons.
Article 17(1)
The Conventions section for dealing with personal injury is Article 17(1), which says the following:-
The carrier is liable for damage sustained in 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 any of the operations of embarking or disembarking.
Breaking that down, the requirement is:-
- It’s an accident
- Which causes death or bodily injury
- Takes place on board of the aircraft or during embarking or disembarking
What is meant by embarking and disembarking from an aircraft?
In the case of Phillips v Air New Zealand [2002] 1 ALL ER 801, the Claimant was travelling from Fiji to the UK. She was medically unfit to carry luggage, so the Defendant arranged for wheelchair assistance at the airport through its ground handler. While being pushed up an escalator, the wheelchair slipped back, causing a neck injury. The helper worked for a local ground handling company, not the airline.
The High Court heard submissions on preliminary issues, mainly;
- Did the Warsaw Convention apply?
- Did this mean she was statute barred as she brought the claim at three years, instead of the two-year limitation period for the Warsaw Convention?
The conclusion was that the Warsaw Convention did apply and because it did, she was bringing the claim outside of limitation and the defendant obtained Judgment in their favour. The Judge noted that passengers had been called to board, she was taken upstairs to reach the departure gate, and boarding was underway:-
14. The Warsaw Convention applies so soon as the passenger has presented a valid ticket for travel and the ticket has been accepted and a boarding pass issued. In other words, the carriage begins when the passenger has successfully completed the check-in procedure. That is the beginning of the contract of carriage. In my view the question as to when the carriage begins is different from the question as to when art 17 comes into effect.
It is clear that the Judge would say that even once you have completed the check-in and you are in the departure lounge, it could mean that you are within the ‘embarkation’ process.
In the Scottish case of Mather v Easyjet Airline Co Ltd & Anor [2023] Scot (D) 14/2, the Court of Session Inner House held that, although the pursuer (a Scottish Claimant) had already left the aircraft cabin, he was still considered to be disembarking. At the time, he was in an airport wheelchair arranged as part of the arrival process, being physically transported along the air bridge, and had not yet reached the arrivals gate. He remained under structured assistance linked directly to his flight. The Court stated that this was still part of the disembarkation operations. The carriage contract ends when the passenger passes through the destination gate and enters areas shared with other airlines.
What is an accident under the Montreal Convention?
In re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495 was the House of Lords decision in the case concerning a large group of passengers developed deep vein thrombosis (DVT) after long flights. They claimed that cramped seats, low cabin pressure, humidity, and limited movement increased DVT risk, and that airlines did not warn passengers or suggest prevention methods like moving around or drinking water. They sued various airlines under Article 17 of the Warsaw Convention (which was the predecessor of Montreal Convention). It was agreed, at least for this preliminary issue, that air travel raises the risk of DVT.
The question was whether DVT suffered during air travel amounted to an ‘accident’ within the meaning of Article 17. The House of Lords found that DVT arising from the normal conditions of air travel was not an ‘accident’.
The Lords adopted and reinforced the test for the definition of an accident from an American case of Air France v Saks [1985] 470 US 392, where the US Supreme Court qualified the definition of accident:-
“Liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger.
What does it mean to be external to the passenger? For example, the passenger who has coffee spilt on them, completely external to the passenger. What about the passenger who trips on the plastic strip? That was considered in the case of Barclay v British Airways [2010] QB 187, where the Claimant’s foot slipped on a plastic strip on the floor when going to take her seat.
The Court of Appeal dismissed the appeal, finding that an “accident” under Article 17 requires a sudden, unexpected external event unrelated to normal aircraft operation. Whereas the Claimant’s accident was caused by her reaction to normal conditions, not an external or malfunctioning event, Article 17 therefore did not apply.
What is bodily injury?
The terminology seems to exclude psychological injury. The Scottish Inner House Court of Session was of the view that it did exclude psychological injury.
The pursuer in King v Bristow Helicopters Ltd [2001] SC 54 was a passenger on the Defendant’s helicopter the North Sea. The helicopter crash-landed after engine failure. The survivor but developed severe PTSD and experienced minor symptoms like nausea, sleep problems, and weight loss, with no major physical injuries. The Court of Session found that Article 17 only allowed recovery for physical injury, not for pure psychiatric injury. Mental or psychological injuries, even medically recognised conditions like PTSD, are not included in “bodily injury.” Minor physical symptoms of psychiatric illness, such as nausea or sleep issues, do not qualify as bodily injury.
The House of Lords (in King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines [2002] 1ALL ER (Comm) 285)did uphold that principle, but found that the peptic ulcer, caused by the PTSD, was a physical injury which was recoverable.
Two-year limitation
Article 35 says:-
The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
As the Convention is a self-contained set of rules, s33 Limitation Act 1980 (which can be utilised by the Court to dispense with the impact of s11 Limitation Act) cannot assist a Claimant who attempts to bring a claim after the two-year period.