SLIP-AND-FALL CASES UNDER THE MONTREAL CONVENTION 1999:  IS BARCLAY REVISITED?

Surprisingly, cases dealing with falls of passengers during air transportation governed by Art. 17 of the Warsaw Convention System or the Montreal Convention 1999 are few and far between. The leading case in England & Wales (and arguably internationally) is Barclay v British Airways plc [2008] EWCA Civ 1419 where the Court of Appeal held that there was no accident when a passenger slipped on a strip embedded in the floor of the aircraft covering the seating tracks. The strip was a permanent feature of the aircraft, complied with aeronautical regulations and was not malfunctioning. The injury was not caused by an accident as it was the result of the passenger’s own reaction to the normal operation of the aircraft rather than of an unusual and unexpected event that is external to the passenger.

Having said that, Courts have held that the presence of water on stairs used to embark an aircraft qualifies as an accident , because it is both unexpected or unusual and external to the passenger (Gezzi v British Airways plc 991 F 2d 603 (9th Cir, 1993)), as does a six-inch step down between the jetway and the door of the aircraft, because it is unexpected and unforeseen although it complies with the operating procedures of Heathrow Airport (Singhal v British Airways plc (Wandsworth County Court, 11 October 2008)).

Eleven years since Barclay the English High Court was called to decide a slip-and-fall case in Labbadia v Alitalia (Societa Aerea Italiana SpA) [2019] EWHC 2103 (Admin). The facts were rather straightforward. A 72-year old frequent flyer fell from the stairs while disembarking from the rear of the aircraft at Milan Linate Airport. The rear stairs did not have a canopy (unlike the front ones which were covered) accumulating ice and snow as Milan was experiencing poor weather conditions at the time of arrival. The passenger brought a claim against the carrier for bodily injury under Art 17 of the Montreal Convention 1999.

Initially, the claimant relied on Gezzi and argued that the presence of snow and ice at the stairs is the unusual and unexpected event that caused him the injury to his right dominant shoulder and right pelvis. The Court strongly disagreed holding that the presence of snow and ice is simply “a state of affairs”, not an event  per se, and there is “nothing unexpected or unusual about adverse weather conditions in Milan during the month of February”. In that respect, the Court sided with the line of cases that have “demonstrated a reluctance to accept that weather…can sensibly be characterised as an unusual or unexpected event”.

This was not the end of the story as the High Court investigated the condition of the rear stairs. The air carrier argued that they complied with aeronautical regulations and were not in a defective condition. As such, there was no external event causing the injury, much like the strip in the Barclay case. The Court agreed but held that the decision to use stairs without canopy during poor weather conditions constitutes the external, unusual and unexpected event that triggers the carrier’s liability under Art 17 of the Montreal Convention 1999. This decision, the Court continued, is not in compliance with the airport’s procedures which suggest that canopies shall be used in bad weather “where possible” or, alternatively, the stairs should be free from ice and snow. Satisfied that they were not clear from ice and snow at the time of disembarkation, the Court held that the air carrier is liable as the bodily injuries of the passenger were caused by the abnormal operation of the aircraft that was external to him .

The decision in Labbadia clarifies a few issues regarding cases of slips-and-falls under the Montreal Convention 1999. Firstly, it does not overrule Barclay which remains authority that injuries caused by the interaction of passengers with permanent (and properly functioning) features of the aircraft are not recoverable. There is nothing in Labbadia doubting the main premise of Barclay. Secondly, Labbadia makes clear that compliance with industry standards or airport practices will not exonerate the carrier, if the aircraft’s feature in question is not fit for purpose. Thirdly, Labbadia adds to the argument that the presence of snow, ice or water on the stairs is not by itself an unusual or unexpected event. In that respect, it questions the decisions which have found otherwise. It is  interesting to see what its impact will be in future slip-and-fall cases.

 

Published by

Dr George Leloudas

Dr Leloudas joined the School of Law in 2011. He is a graduate of the National and Kapodistrian University of Athens. He holds LLM degrees in Commercial Law from the University of Bristol (England, 2002) and in Air and Space Law from the Institute of Air and Space Law of McGill University (Montreal, Canada, 2003). He also completed his PhD degree in air law with emphasis on liability and insurance at Trinity Hall, Cambridge University in 2009. Before joining the School Dr Leloudas worked as a Solicitor in a leading aviation law firm in London for several years where he advised on aerospace liability and airlines’ regulatory matters. He was also an assistant to the legal counsel of the International Union of Aviation Insurers (IUAI) providing support in relation to the replacement of the Rome Convention on Surface Damage. Dr. Leloudas is an instructor at the Training and Development Institute of the International Air Transport Association (IATA) where he teaches international air law for lawyers and legal professionals and law of aviation insurance. I joined the Institute of International Shipping and Trade Law (IISTL) in 2011 as a lecturer and I was promoted to Associate Professor in 2015. I am a graduate of the National and Kapodistrian University of Athens. I also hold LLM degrees in Commercial Law from the University of Bristol (England, 2002) and in Air and Space Law from the Institute of Air and Space Law of McGill University (Montreal, Canada, 2003). I completed my PhD degree in air law with emphasis on liability and insurance at Trinity Hall, Cambridge University in 2009. Before joining the Institute, I worked as a Solicitor at Gates and Partners in London for several years where I advised on aerospace liability and airlines’ regulatory matters. I was also an assistant to the legal counsel of the International Union of Aviation Insurers (IUAI) providing support in relation to the replacement of the Rome Convention on Surface Damage. I am an instructor at the Training and Development Institute of the International Air Transport Association (IATA) where I teach international air law for lawyers and legal professionals, law of aviation insurance and air cargo liability. I am also a contributing writer to Shawcross and Beaumont on Air Law. My principal research interest is the carriage of passengers and goods by air, but my interests extend to multimodal transport, insurance law and tort law. I am an active researcher and my doctoral thesis, "Risk and Liability in Air Law" was published by Informa in September 2009. My most recent article is entitled ʻ“Door to door” application of the international air law conventions: commercially convenient, but judicially dubiousʼ and has been accepted for publication in the August 2015 issue of Lloyd’s Maritime and Commercial Law Quarterly (August 2015 issue). I am also authoring a book together with Professor Malcolm Clarke of Cambridge University on Air Cargo Insurance (Informa law from Routledge, 2016).

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