In our September 2008 Insurance and Reinsurance Review we summarised the decision in Barclay v British Airways (2008 1 CLC 253) in which the Court considered the meaning of “accident” in the context of Article 17.1 of the Montreal Convention 1999 (the Convention). In this blog we explain the decision in Barclay v British Airways (2008 2 CLC 995) in the Court of Appeal.
The Claimant was a passenger on a British Airways flight. She suffered a knee injury while taking her seat when her foot slipped on a plastic strip embedded in the floor of the aircraft as covering for the seat fix tracking. The plastic strip was a standard fitting on the aircraft, a British Airways Boeing 747. It was decided, at first instance, that the claimant’s slip was a “mere fall” and was not to be considered an event external to the Claimant and thus not within the Convention meaning of “accident”. The judge readily gave permission to appeal as the current state of the law was “complicated, uncertain and diffuse” and needed to be “nudged back on track” by the Court of Appeal.
The Convention is the only exclusive jurisdiction in which claims for personal injury arising from international air travel can be brought. The issue in the appeal was whether, where an injury is caused by an event (in this case a slip) constituted by some contact or interaction between the passenger and the aeroplane in its normal state, such an event was an “accident” within Article 17.1 of the Convention. In this instance, the formulation established by Air France v Saks 470 US 392 that an “accident” had to be an “unexpected or unusual event or happening that is external to the passenger” did not address the question. Lord Justice Laws stated that the “scope of the term accident was critical” and put forward three scenarios: the first in which there is an event ‘external’ to the passenger e.g. a crew member spills hot coffee on a passenger; the second where a passenger suffers an injury unprompted by any event in the aircraft e.g. a heart attack; and the last, similar to the present case, in which there is no event ‘external’ to the passenger; but where the injury is prompted by an event on the aircraft.
Laws LJ surmised that Article 17.1, by the specific use of the word “accident”, contemplates a distinct event and placed emphasis on the importance of the causative event being “external” to the passenger and not related to the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft. In this instance, no “accident” occurred that was external to the passenger. All that happened was that the appellant’s foot came into contact with the inert plastic strip and she fell. The Court, therefore, affirmed the decision in the County Court by Recorder West-Knights QC that it was a “mere fall” and not an “accident” within the meaning of Article 17.1 of the Convention. The appellant’s claim therefore failed.
