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.

 

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