CJEU renders decision on meaning of “accident” under Article 17 of the Montreal Convention

GN v ZU (administrator in the insolvency of Niki Luftfahrt GmbH) [19.12.19]

The Court of Justice of the European Union (CJEU)’s judgment applies the “ordinary meaning” of accident, stating this to be an unforeseen, harmful and involuntary event.

Background

The CJEU issued judgment on 19 December 2019 on a claim brought on behalf of a six-year-old Austrian girl who suffered a second-degree burn on board a Niki Luftfahrt GmbH flight between Spain and Austria in August 2015.

The facts of the case are relatively straightforward; the claimant’s father purchased a cup of coffee, which was placed on his tray table. The cup slipped from the tray table, causing a burn to his daughter seated next to him. It could not be established whether the spillage was caused by a defect in the tray table or the usual vibrations of the aircraft in flight.

At first instance (in December 2015), the Landesgericht Korneuburg (Austria) found that the coffee cup slipping in itself was an “unusual and unexpected event” which had been caused by a risk typical of aviation (because aircraft do change position in flight). The airline appealed to the Oberlandesgericht Wien in August 2016, which found against the claimant on the basis that the spillage had not occurred from an aviation specific risk.

Referral to the CJEU

This led to a referral to the CJEU on the question of whether air carriers were liable for an accident under Article 17 of the Montreal Convention, when a cup of hot coffee is placed on a tray table and, for unknown reasons, falls, causing a passenger to suffer a burn.

The question posed by the Austrian courts was very narrow, dealing only with a very specific (albeit not uncommon) situation. The CJEU heard representations from the parties and also from the Polish Government, the French Government and the European Commission.

The Advocate General’s opinion, rendered earlier in 2019, was wide ranging and looked into the overall meaning of Article 17, considering a wide range of cases from various jurisdictions. His recommendation was that the CJEU’s answer to the question should be:

Article 17 (1) of the Montreal Convention …. is to be construed as meaning that anyone who is a passenger and dies or suffers a bodily injury on board an aircraft or during embarkation or disembarkation which is caused by a sudden and unexpected event which is external to the passenger without needing proof that the event was due to a risk typical of aviation or its directly connected risks.

The CJEU’s judgment, albeit somewhat more limited in the scope of its jurisprudential analysis than that of the Advocate General, refers to the “ordinary meaning” of accident, stating this to be an unforeseen, harmful and involuntary event, but is specific to the context of situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without need for this to stem from an “aviation hazard”.

Comment

While the Advocate General’s opinion broadened the scope of the question referred to the CJEU and considered the meaning of “accident” within the context of the Montreal Convention as a whole, the judgment of the CJEU itself is limited to the specific questions posed by the referring Court, and is limited to those situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger.

The decision largely reflects the understanding of what is meant by an “accident” for the purposes of the Montreal Convention in many jurisdictions, namely that it is the event itself which must be “unusual or unexpected” not the circumstances which lead to it: in the context of a coffee spillage, it is the fact that coffee has been spilled at all which is “unusual and unexpected”, and it is not necessary that it was caused by a defect in the cabin fixtures or an act of the crew.

However, the reference to the “ordinary meaning” of accident, and defining this to be an unforeseen, harmful and involuntary event, and without need for this to stem from an “aviation hazard”, or by reference to anything done or not done by the carrier, would, applied to all factual scenarios, widen the scope of liability for bodily injury on carriers. Logically applied to other factual scenarios, this would broaden the definition of “accident” beyond that generally accepted in common law, and many civil law, jurisdictions, and certainly beyond that adopted by the Court of Appeal in Barclay v British Airways [2008].

That said, given the very limited jurisprudential analysis, and the focus of the judgment being the need, or otherwise, to evidence the event causing a coffee spill, the decision can be distinguished from the long line of common law decisions considering the meaning of “accident”.  

Related item: Physical contact in confined spaces and the Montreal Convention