The Unparalleled Series – JR v. Austrian Airlines AG – Clarity on the definition of “accident” and possible exoneration of airlines’ liability under the Montreal Convention

Author: Ann Bugeja

On 2^nd June 2022, the Court of Justice of the European Union (“CJEU”) delivered a preliminary ruling with respect to the definition of an “accident” in terms of Articles 17(1) and 20 of the Montreal Convention (“the Convention”) following a request made by the Korneubourg Regional Court of Austria (“Regional Court”) in JR v. Austrian Airlines AG (“Austrian Airlines”), whereby the plaintiff brought an action for damages against the defendant air carrier after having fallen on the lower third of the stairway while disembarking from the aircraft, and this resulted in a fracture of her left forearm.

Applicable Law

Prior to assessing the facts of the present case, the CJEU looked into a number of provisions emanating from the Convention, predominantly the third paragraph of the preamble to the Convention removing around the protection of the interests of consumers in international carriage by air the need for equitable compensation via the principle of restitution. The CJEU then assessed both Articles 17(1) and 20 of the Convention:

Paragraph 1 of Article 17, entitled “Death and injury of passengers – damage to baggage” stipulates “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Article 20, entitled ‘Exoneration’ 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 CJEU also made reference to Council Regulation (EC) No. 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air (the “Regulation”), whereby Recital 9 thereof allows air carriers to be exonerated in cases of contributory negligence of the passenger concerned.

Facts of the Case

On 30^th May 2019, JR, her husband and their two-year-old son travelled from Thessaloniki (Greece) to Vienna (Austria) on a flight operated by Austrian Airlines. Upon landing in Vienna, uncovered boarding stairs with a handrail were put in place on each side and positioned at both the front and rear of the aircraft to allow passengers to disembark. JR’s husband proceeded to descend the steps first, holding a piece of wheeled hand luggage in each hand. When he approached the lower third of the steps, he almost fell, however managed to regain balance to stay on his feet. JR followed, holding a handbag in her right hand, and her son in her left arm. She fell exactly in the same place where her husband had almost fallen, hitting the edge of the stairway and consequently, sustaining a number of injuries, predominantly a fracture of her left forearm as well as an injury in her lower back area.

Case before the Austrian Courts

JR brought an action against the defendant before the Bezirksgericht Schwechat (District Court, Schwechat, Austria), seeking damages in the amount of EUR 4 675.00 plus interest and costs. She claimed that according to Austrian law, the carrier was liable for her injuries since it had breached its contractual obligation to ensure sufficient safety of its passengers. JR argued that the airline should have provided covered boarding stairs as well as further ensure that such are not greasy, wet and dirty, thereby reducing any potential passenger slips.

The Airline’s rebuttal was very straightforward. It argued that there was no breach of safety on its part since the stairs used were equipped with perforated/corrugated treads which considerably reduce the possibility of passengers slipping. Furthermore, the airline claimed that it is expected that passengers make use of the handrails for better stability, especially following her husband’s near fall. Lastly, the airline held that JR, acted contrary to medical advice, she did not seek immediate treatment at a nearby hospital but rather travelled back to Linz (Austria) and only sought such treatment until late into the evening of 30^th May 2019, which may have aggravated her injuries. On 15^th March 2020, the Bezirksgericht Schwechat (District Court, Schwechat) on the basis of Article 1295(1) of the Austrian General Civil Code, dismissed JR’s action and ruled in favour of the airline.

Appalled at the decision, JR lodged an appeal with the Regional Court in Korneuburg (Landesgericht). The Regional Court doubted whether the fall sustained by the claimant qualifies as an “accident” in terms of Article 17(1) of the Convention and whether the negligence of the passenger (failing to hold onto the handrails) could potentially exonerate the carrier from any liability found under Article 20 of the Convention.

As a consequence, the Regional Court of Korneuburg decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

1. Is Article 17(1) of the Convention to be interpreted as meaning that the concept of “accident” within the meaning of that provision covers a situation in which a passenger falls on the last third of a mobile boarding stairway when disembarking from an aircraft – for no ascertainable reason – and sustains an injury, which was not caused by an object used when serving passengers, and there was no defect in the quality of the stairway, which, in particular, also was not slippery?
2. Is Article 20 of the Convention to be interpreted as meaning that any liability on the part of the air carrier ceases to exist in its entirety if circumstances such as those described [in the first question] exist and the passenger was not holding on to the handrail of the stairway at the time of the fall?

Principles in Preceding Case Law

In the case Air France v. Saks [1985] 470 US 392, the US Supreme Court opined on the definition of an accident under the Convention, stating:

• Since Art. 17 points primarily to the accident rather than the injury, liability shall arise where the injury is caused by an “unexpected or unusual event or happening that is external to the passenger”.
• There can be no accident “when an injury indisputably results from a passenger’s own internal reaction to the usual, normal and expected operation of the aircraft”.

In the case of Barclay v. British Airways Plc, when faced with a similar question to that in the present case (see question 1 above), the UK Court of Appeal provided an outright “no”. It held that there must be an unusual or expected event external to the passenger, and as such the fall itself cannot constitute the accident.

CJEU’s appraisal and decision

Notwithstanding the aforementioned congruent perspectives, the CJEU’s take in JR v. Austrian Airlines AG was to merely re-assert the strict liability regime placed on air carriers in terms of the Convention’s “equitable balance of interest”, as well as to emphasise the importance of Article 20 therein, which may be relied upon as a defence to such “accidents”. In a nutshell, the CJEU held the exact opposite to previous case law on the matter, as it held that the fact that there was a fall, was enough to constitute an accident and that it was for the carrier to prove a defence to the claim under Article 20 of the Convention.

On the grounds established above, the Court ruled that:

1. Article 17(1) of the Montreal Convention should be interpreted as meaning that a particular situation where, for no ascertainable reason, a passenger slips and falls on a mobile uncovered stairway set up for disembarkation of passengers of an aircraft and sustains injuries shall constitute an “accident”, within the meaning of such provision, including instances where the air carrier concerned has not failed to fulfil its own diligence and safety obligations in that regard.
2. The first sentence of Article 20 of the Montreal convention must be interpreted as meaning that, where an accident which caused damage to a passenger consists of a fall of that passenger, for no ascertainable reason, on a mobile uncovered stairway set up for disembarkation of passengers of an aircraft, such air carrier may be exonerated from its liability towards that passenger only to the extent that, taking into account all the circumstances in which the damage occurred, the carrier proves in accordance with applicable national rules and principles of equivalence and effectiveness, the damage suffered by the passenger was in fact caused or contributed to by negligence on his/her part, within the meaning of that provision.

Concluding remarks

There did not seem to be any reference to preceding case law such as Air France v. Saks in the CJEU’s ruling. This is in high contrast to the opinion given by the Attorney General, who cited extensively domestic case law from various signatory states. While the CJEU is not bound to follow domestic court rulings when it comes to the interpretation of a European legal instrument (such as the Montreal Convention), as stated in Stott v. Thomas Cook AC 1347 – “it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law”.

Considering the CJEU’s final ruling, it seems to be interested in a more dynamic and broad approach of the provision. One which might significantly affect air carriers in re-thinking their approach to liability and potentially causing them to increase air fares in their search to mitigate such possible costs.