The Court of Justice of the European Union has clarified the scope of what constitutes an “accident” giving rise to liability under article 17(1) Montreal Convention 1999. An airline will be liable for harm caused to a passenger by accidents which have occurred on board the aircraft, and there is no requirement to establish that an aviation-related hazard contributed to the accident.
A six-year-old girl was scalded by a hot cup of coffee when it slipped off a tray table "for reasons unknown" during a flight from Majorca to Vienna. A claim for compensation of c.€8,500 was filed against the defendant airline, Niki Luftfahrt.
As is well known, article 17(1) imposes liability on airlines for damage sustained from death or injury to passengers caused by accidents that have taken place on board or in the course of embarking or disembarking the aircraft. The airline contended that no accident had occurred because this concept "requires the materialisation of a hazard typically associated with aviation" and no sudden or unexpected event had occurred. It could not be established whether the cup slipped as a result of a defect in the table tray or vibration of the aircraft.
An appeal was brought in the Austrian Supreme Court on a point of law in relation to what constituted an "accident" under Article 17(1). The Austrian court considered two approaches:
- An accident must result from a hazard associated with aviation, i.e. arise from the nature, condition or operation of the aircraft. If that view were correct, the applicant's claim would fail because the accident was not related to an aviation activity and could have occurred in other circumstances; or
- An accident does not require an aviation-associated hazard. The wording of Article 17(1) does not include such a requirement. This interpretation would stop injuries being excluded on the basis that the accident could have occurred in a similar way in other situations. The court noted that hot food and drink spillages had been recognised by commentators as "accidents" for the purposes of Article 17(1).
Referral to the CJEU
The Austrian Supreme Court asked the CJEU whether the facts in this case constituted an "accident" triggering liability under Article 17(1). In essence, the question was whether the court had to examine whether the accident was caused by a typical aviation-related hazard.
In its judgment, the CJEU stated that the Montreal Convention does not define the concept of accident. For that reason, it must be given its ordinary meaning in the context and with regard to the purpose of the convention. A key objective of the Montreal Convention is to protect consumer interests and the need for equitable compensation. The definition of "accident" offered by the CJEU was "an unforeseen, harmful and involuntary event". Whilst the Advocate General in his Opinion also referred to the requirement - typical of the approach adopted in a number of US and UK decisions - that an "accident" must be external to the passenger, the CJEU made no reference to such a requirement. The “externality” element seems of some importance given that, while there are a number of cases in which a spillage has been found to be an accident, there is at least one English authority where the lack of explanation of the circumstances, and thus inability to demonstrate a cause external to the passenger, was material to the conclusion that there was no accident.
The CJEU concluded that the first approach was not consistent with the ordinary meaning of "accident" under Article 17(1), nor was it aligned with the objectives of the Montreal Convention and the system of liability that it established. Therefore, the CJEU ruled that "accident" must be interpreted so that it may cover situations on board an aircraft in which a passenger suffers bodily injury caused by an object used to serve them. There is no requirement that the accident stem from an aviation-specific hazard. Both the Advocate General and the CJEU seemed to conclude that retaining such a requirement would be incompatible with the development of the Warsaw / Montreal regime to one of strict liability.
The case has now been referred back to the Austrian Supreme Court for a final decision.
Key Points for Airlines
This ruling confirms that under EU law, airlines remain liable to passengers for accidents occurring on board an aircraft, even when the precise cause of the accident is not attributable to an aviation-associated hazard.
Of course an airline’s ability to invoke contributory negligence of the passenger under Article 20 remains. In that event there may, however, be difficulties of proof, as may arise if the accident occurs because of the carelessness of another passenger.
Even though EU law has applied the 1999 convention since 2002 it is only relatively recently that courts of member states have taken to referring questions of interpretation to the CJEU. The Advocate General described this as the first reference addressing the concept of accident under Article 17. This is perhaps not surprising since those courts have been interpreting these questions under the Montreal Convention and its predecessors for many years, and doing so in line with decisions of courts in other states party to the same treaty regime. Airlines might now be concerned, given the heavily pro-consumer approach taken by the CJEU under Regulation 261 that, in traditional air carrier’s liability cases, the pendulum may swing in favour of passengers in courts in the EU.
Case C-532/18 – GN v ZU