FALL DOWN AIRCRAFT STEPS WAS AN “ACCIDENT”: HIGH COURT DECISION

Several posts last week dealt with claims relating to aircraft and the limitation period. The Montreal Convention was considered in   Labbadia v Alitalia (Societa Aerea Italiana SPA) [2019] EWHC 2103 (QB). (One essential point to take home is that this incident, with someone falling down aircraft steps, is subject to a two year limitation period).

THE FACTS

The claimant was a passenger in a plane that flew from London to Milan. The aircraft landed in poor weather conditions. The claimant disembarked from the rear and fell, suffering significant injuries.

THE ISSUE

The question was whether the fall was an accident within the meaning of the Montreal Convention.

    1. The starting point for considering the meaning of ‘accident’ for the purposes of the Montreal Convention is the natural meaning of the words in Article 17 which states:
The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition that the accident which caused the death or injury took place on board the aircraft or in the course of the operations of embarking or disembarking.
    1. Therefore, there are three requirements for liability: (i) the passenger has suffered a bodily injury; (ii) the bodily injury was caused by an accident; and (iii) the accident took place on board the aircraft or during the process of embarking or disembarking.
    2. Article 20 of the Montreal Convention provides a defence of ‘partial exoneration’ (equivalent to contributory negligence) if the injury was caused or contributed to by the passengers. Article 20 states:
If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.”

THE JUDGE’S FINDINGS: THIS WAS AN “ACCIDENT” WITHIN THE MEANING OF THE CONVENTION

Margaret Obi, sitting as a Deputy High Court Judge,  found that the claimant had slipped and fallen.  She then considered whether this was was an “accident” within the Convention.
    1. Although I was helpfully referred to various English and foreign authorities the key issue is whether the Claimant’s fall from the aircraft stairs constituted an ‘accident’. The word ‘accident’ is to be given a natural but flexible and purposive meaning in its context and as predicted by O’Connor J in Saks, there will be cases at the borderline between accident and no accident. It is well-established that although the decisions of other courts are likely to be of assistance, the weight to be attached to these decisions will depend on the standing of the court and the quality of analysis. In particular as stated by Lord Scott in the DVT case:
‘…the balance struck by the Convention between the interests of passengers and the interest of the airlines ought not to be distorted by a judicial approach to interpretation in a particular case designed to reflect the merits of that case.’
    1. The essential components of an ‘accident’ can be determined by considering the following questions:
(i) Was there an event?
(ii) If so, was the event unusual, unexpected or untoward from the Claimant’s perspective?
(iii) Was the event external to the Claimant?
    1. As stated above Mr Stride’s written submissions were refined during his oral submissions. To the extent that his written submission implied that the ‘distinct event’ was the presence of snow and ice and/or the fact that the Claimant had slipped on snow or ice, he resiled from that position. He was right to do so. There was a chain of causes which led to the Claimant’s injuries. The links in that chain are set out in my findings of fact culminating in the Claimant slipping on the aircraft stairs due to the presence of snow and/or compacted snow. The poor weather conditions from 9.20 onwards on 5 February 2015 and at the point that the Claimant exited the aircraft was simply a ‘state of affairs’. In any event, there is nothing unexpected or unusual about adverse weather in Milan during the month of February. According to the meteorological data the most common forms of precipitation throughout the winter season (November to February) are light rain, moderate rain and thunderstorms but there is a 9% average chance of snow. Mr Stride invited me to take into account the 5% chance of snow in February but in my view that would be too restrictive. The meteorological data is at best a guide and merely supports the well-known fact that although weather by its very nature is variable and, as a consequence unpredictable, there is a greater chance of snow in winter than at any other time.
    2. The use of aircraft stairs without a canopy is a different matter. There was no dispute that aircraft stairs were always used at Milan airport for the disembarkation of passengers. These stairs conformed to the technical specifications for safety required by the aeronautical regulations and by the national and community regulations for the protection of health and safety of passengers and airport personnel. There was no evidence that the stairs were defective in any way. As the passengers prepared to disembark, they may or may not have been forewarned that it was snowing. The Claimant could not recall any such warning, but in any event, inaction could not, in and of itself, be properly characterised as an event and Mr Stride did not suggest that the failure to warn of a potential risk could constitute a relevant event.However, the use of the stairs without a canopy was not a non-event. It required a positive decision on the part of the airport personnel to use stairs either with or without a canopy. This decision involved  a series of actions and omissions culminating in the aircraft stairs being aligned to the aircraft and the authority being given for the passengers to disembark. This was an event. According to the evidence of Mr Tosseli in bad weather stairs with a canopy should be used ‘where possible’. On occasions when canopied stairs are not available, for whatever reason, in accordance with the airport’s operating manual policy, prior to authorising passengers to disembark, the stairs should be free from the accumulation of snow or ice. On 5 February 2015 at 10.30am the stairs were not free from contamination. Mr Harding suggested that the stairs may have been cleared but as the snow was continuing to fall it was an on-going ‘state of affairs’. It is unnecessary for me to consider what the situation would be in the event of continuing snow in such circumstances because I am satisfied that the snow had not been cleared. At the time the Claimant disembarked the snow had compacted and unsurprisingly the flat surface had become slippery. Only two or three people had disembarked from the aircraft ahead of the Claimant. In my judgment, had the aircraft stairs been free from snow at the point that the first passenger disembarked it is unlikely to have become compacted with snow by the time the Claimant disembarked a relatively short period later. The use of the uncovered stairs at the point of disembarkation did not comply with the airports operating manual and was therefore not the ‘normal operation of the aircraft’. The event was not mere inertia or inaction. It was an event involving a combination of acts and omissions.
    3. The event was unusual from the point of view of the Claimant. He was a frequent flyer and had never experienced having to descend aircraft stairs at the airport without a canopy and reasonably anticipated that the stairs would be free from compacted snow. Of course, there are inherent risks in disembarking from aircraft stairs with luggage. The Claimant may have anticipated that aircraft stairs exposed to the elements would be wet from precipitation, but he had no reason to expect that the stairs would be slippery due to compacted snow. Therefore, the event was unexpected and unforeseen from his perspective. The event was also external to the Claimant.
Exoneration
    1. Mr Harding submitted that if liability is established the Claimant should be held to be partly responsible under Article 20. He contended that although the Claimant knew that it was snowing and that the steps may be slippery, he did not immediately reach for the handrail, which would have reduced the risk of a fall. Mr Harding invited me to conclude that the Claimant did not take proper care of his own safety and that as a consequence a reduction should be made to any damages awarded. Mr Stride submitted that there should be no reduction for contributary negligence.
    2. In my judgment the Claimant was not the author of his own misfortune. He did nothing other than descend the disembarkation steps on the instruction of the Defendant. There is no basis for a finding of contributory negligence.
Conclusion
  1. The Claimant’s fall was directly caused by acts and omissions by airport personnel which was an unusual or unexpected event and external to him. It was not a reaction to the normal operation of the aircraft or an immutable state of affairs. I am satisfied that the Claimant sustained his injuries as a result of an accident within the meaning of Article 17 of the Convention.
  2. In my view this decision is not inconsistent with the decisions in CannonVanderwall and Chendrimada for the reasons articulated by Mr Stride during his oral submissions.