Tearing Up The Definition Of 'accident' Under The Montreal Convention ' The Judgment Of The CJEU In JR V Austrian Airlines

• Published date: 23 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Mr Jack Harding

1. If an airline passenger slips, trips and falls during the course of a flight, or during embarkation or disembarkation, but there is no identifiable external cause of the fall, has an accident occurred for the purposes of the Montreal Convention 1999?

2. In Barclay v British Airways [2010] QB 187, the Court of Appeal provided a resounding 'no' to this question. There must be an unusual or expected event external to the passenger. The fall itself cannot constitute the accident.

3. This reasoning was endorsed by Advocate General Emiliou in his opinion in JR v Austrian Airlines (C589/20), in which a Claimant fell down a flight of non-defective boarding stairs for no ascertainable reason. In an earlier article, I explained why his careful analysis was to be commended.

4. In a decision handed down on 2^nd June 2022, the Court of Justice of the European Union (CJEU) reached the opposite conclusion: the fact of the fall was enough to constitute an accident and it was for the carrier to plead and prove a defence to the claim under Article 20 of the Convention. The implications of this decision for future litigation in this corner of the law are potentially significant.

5. It is important to begin with an acknowledgment that the any decision of the CJEU after the withdrawal of the United Kingdom from the European Union does not bind the domestic courts, but can be taken into account insofar as it is relevant: section 6(2) of the European Union (Withdrawal) Act 2018. In fact, although the Montreal Convention has for some time been incorporated into the European legal order by the Montreal Regulation (EC 2027/97), the interpretation of the Convention, as an international treaty, has never properly been a matter of European law. The Supreme Court emphasized this point in Stott v Thomas Cook [2014] AC 1347:
   
   "To summarise, this case is not about the interpretation or application of a European regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation. The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention. The governing principles are those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such...