What if a passenger suffers bodily injury?
Montreal Convention
Liability in international air transport is regulated in particular by the Montreal Convention (hereinafter: the Convention). The Convention provides rules for European member states on when and for what type of damage airlines are liable. In doing so, the Convention covers both freight and passenger transport and distinguishes between different types of damage:
- property damage;
- damage to luggage;
- damages resulting from death or bodily injury to a passenger.
This article focuses on the latter type: damages for death or bodily injury to a passenger.
Damages for death or bodily injury to a passenger
With respect to these damages, the Convention provides that the air carrier is liable, “by reason only of the fact that the accident which caused the death or injury occurred on board the aircraft or during any act connected with the boarding or disembarkation of the aircraft” (Article 17(1)).
In other words, if something happens on or around the aircraft that results in death or bodily injury, the airline is liable. That’s the bottom line. So that liability goes pretty far.
There is an exception to this principle. Indeed, if there is fault or negligence on the part of the passenger concerned, the airline may be relieved of liability (Article 20). The airline will then have to prove that a) there was fault or negligence on the part of the passenger and b) that this fault or negligence caused or contributed to the damage. If this succeeds, the airline will not be liable for (part of) the damage.
Court ruling on personal injury passenger
The Court of Justice of the European Union recently ruled (C-589/20) on a case involving personal injury to a passenger. This was in response to a preliminary question – a request for interpretation – on the Convention raised by the Austrian court.
This case involved the question of liability for Austrian airline Austrian Airlines. In mid-2019, a couple flew to Vienna with their child. After arriving at the airport, the husband, while descending the airplane stairs, almost fell down. His wife walked behind him with both her arms full and fell, in the same spot. The woman broke an arm and thus suffered bodily injury. She is suing Austrian Airlines for damages.
According to the court, there was no evidence that anything was wrong with the stairs in question and the woman did not take any precautions to prevent her fall, despite seeing that her husband almost fell. The Austrian court rejected the woman’s claim. When the woman appealed, the Austrian Court turned to the Court of Justice for an explanation of the Montreal Convention.
Court’s interpretation of Montreal Convention articles
The Court explains that Article 17 of the Convention does not mean that an airline is only liable for damages resulting from a “typical aviation risk. Thus, the accident need have nothing to do with flying or the movement of the aircraft itself. When a passenger falls for a completely unclear reason on an aircraft staircase with which there is nothing wrong, there is already an accident. The airline may therefore be liable for this.
The Court then turns to the next question, namely on the interpretation of Article 20. It explains that the purpose of Article 20 is to strike a balance between the interests of both the airline and the passengers. The Court emphasizes that the airline may be relieved of liability to the extent that it proves, given all the circumstances of the case, that it was the fault or negligence of the passenger that caused or contributed to the damage suffered by the passenger. Whether this is the case in a specific case should be left to the national court, according to the Court. Indeed, the Convention does not provide any specific rules on this proof.
Dutch court on fault and negligence passenger in personal injury case
The national court will thus have to assess whether an airline has proven that the damage was (partly) due to fault or negligence of the passenger concerned. In doing so, all circumstances of the case will be taken into account, such as, for example, the attention that can be expected of a passenger (with or without children) or to what extent the passenger sought adequate medical assistance after the accident. In assessing these various circumstances, the Dutch court will look to the rules of national law.
Advice on aviation and law?
LVH Advocaten is experienced in assisting airlines against various types of passenger claims. Do you have any questions as a result of this article? If so, please contact Jacolien Leuvenink.
