Readers will recall that last year the Court of Justice of the European Union significantly expanded liability under the Montreal Convention on carriage by air. First, in JR v Austrian Airlines AG, Case C-589/20, it found that where a passenger falls for no ascertainable reason whilst disembarking an aircraft, this will amount to an 'accident' within the meaning of Article 17(1) of the Convention, without the passenger needing to prove that anything else out of the ordinary has occurred. Then, in BT v Laudamotion GmbH, Case C-111/21, it held that purely psychological or psychiatric injuries fall within the meaning of 'bodily injury' in Article 17(1). Both decisions are inconsistent with other caselaw decided under the Convention, in particular American jurisprudence, and it should be borne in mind that, following Brexit, neither is binding on the courts of England and Wales, although decisions of the CJEU remain of persuasive weight. It will be interesting to see whether the domestic courts follow the European or the 'rest of the world' authorities on these issues.
Now, in another case involving Austrian Airlines, DB v Austrian Airlines, Case C-510/21, the CJEU has determined a further Montreal claim in favour of a claimant and against the grain of some of the rest of the world authorities.
The claim arose out of the administration of first aid to the Claimant during the course of the flight, after a jug of coffee fell from the catering trolley, scalding him. The accident occurred on 18th December 2016. On 31st May 2019 the Claimant brought an action before the Handelsgericht Wien (the Commercial Court in Vienna) seeking the sum of ?10,196 by way of damages, together with a declaration that the airline would be liable for all future damage resulting from the aggravation of his burns on account of inadequate first aid administered on board the aircraft. The claim was brought well outside the two year limitation period provided for in Article 35 of the Convention, but the Claimant claimed that Austrian Airlines was liable not only for the carelessness of its employees, which led to the jug of coffee falling, but also for the inadequate first aid administered on board the aircraft to treat the burns he suffered as a result. Since DB contended that first aid cannot be classified as an 'accident' within the meaning of Article17(1) of the Montreal Convention, it was, so he alleged, governed by national law. Therefore under Austrian law the claim had been brought within the relevant limitation period.
This is an argument which would almost certainly have found favour had the Claimant been fortunate enough to be bringing the claim in the English rather than the Austrian courts. In Ford v Malaysian Airline Systems Berhard (2014) 1 Lloyds Rep 301 the Court of Appeal considered whether a Claimant who had suffered an adverse reaction to the injection of a diuretic administered on board a flight could sue the airline under the Convention. Aikens LJ held that the administration of the injection was not an 'accident' because the mere fact that an otherwise normal injection was administrated mid-flight 'cannot provide the circumstances with the necessary 'unusual' characteristics so that this event constitutes an "accident"'. The claim therefore failed; but in the different circumstances in DB following this line of reasoning might well lead to the claim succeeding, because (if the air stewards were indeed negligent in their administration of first aid) it would have been brought within time and against a defendant whose fault led directly to the loss claimed. It would be odd indeed if the fact that the treatment was said to have been negligent had the effect of rendering it sufficiently unusual to fall within the Convention, and therefore lead to the claim being time barred.
The decision in Ford is not mentioned in the CJEU judgment, which is not in itself unusual, since the Court generally does not have regard to the decisions in other jurisdictions, even when interpreting the Convention. The questions referred to the Court by the Austrian domestic court were as follows:
- Is first aid which is administered on board an aircraft following an accident within the meaning of Article17(1) of the [Montreal Convention] and which leads to further bodily injury to the passenger which can be distinguished from the actual consequences of the accident to be regarded, together with the triggering event, as a single accident?
- If Question 1 is answered in the negative:
Does Article29 of [the Montreal Convention] preclude a claim for compensation for damage caused by the administration of first aid where that claim is brought within the limitation period under national law but outside the period for bringing actions which is laid down in Article35 of [that] convention?'
The Court answered the first question in the affirmative, and therefore declined to go on to consider the second question. First aid administered in response to an event which is an 'accident' within the meaning of the Convention must be considered to form part of the accident, and is therefore subject to the two year limitation period. On the other hand, it is also subject to the 'no fault' provisions in Article 17 of the Convention and does not break the chain of causation for Convention purposes. The court held [23, 24]:
...where there is a series of intrinsically linked events that take place successively, without interruption, in space and time, that series of events must be regarded as constituting a single 'accident' within the meaning of Article17(1) of the Montreal Convention.
That is the case where, as in the present case, a jug containing hot coffee fell and caused scalding to a passenger, requiring members of the flight crew immediately to administer first aid. In view of the continuity in space and time between the jug of coffee falling and the first aid administered to the passenger injured by it, it cannot be disputed that there is a causal link between the jug of coffee falling and the aggravation of the bodily injuries caused by it on account of inadequate first aid being administered...
The court did not go on to consider whether the fact that the first aid was negligently provided might break the chain of causation; but this is perhaps understandable since the concept of negligence has no place in a consideration of the interpretation of Article 17, which provides for no fault liability.
The Opinion of Advocate General Emiliou, as well as containing (at [29]) a flattering reference to Saggerson on Travel Law and Litigation (clearly the Court's go-to textbook in the field of travel law), sets out the arguments in rather more detail than the judgment itself.
Having reminded himself that spilling a jug of coffee over a passenger qualified as an accident within the meaning of Article 17 of the Convention (following the Court's decision in GN v Luftfahrt, Case C-532/18), he then asked himself whether the aggravation to the burns sustained by the Claimant as a result could be said to be a separate and distinct injury. He framed the question in this way:
...the case in the main proceedings, seen in light of DB's argument, raises, quite plainly, an issue ofcausation. In essence, whether or not the applicant's claim falls within Article17(1) of the Montreal Convention and, as such, is governed exclusively by that instrument, depends on whether or not the initial accident that took place on board the aircraft, that is to say the fall of the jug, can be regarded as having 'caused', within the meaning of that provision, the injuries in respect of which he is seeking compensation, given that the administration of first aid by the crew intervened in between. That issue should be addressed as such.By contrast, it would be inappropriate to deal with it somewhat indirectly, under the concept of 'accident', by wondering whether those two distinct factors should be treated as one event for the purposes of the same provision...
The issue of causation could not be resolved by reference to domestic concepts, but had, instead, to be given an autonomous interpretation under the Convention. The Advocate General concluded that for the purposes of the Convention two distinct tests must be applied consecutively.
The first test is a factual one: whether the accident made the injury happen, that is, whether 'but for' the accident the injury would not have occurred. This test is relatively easily satisfied; as long as the accident forms one of the links in the chain of causation, it is considered as having in fact caused the injury.
The second test is a legal one. The Advocate General formulated it as follows:
...That test is alegalone and, as such, involves a policy choice. It is a matter of determining whether the causal relationship between an 'accident' and a passenger injury, beyond mere satisfaction of the 'but for' test, is sufficiently significant, so that it appears justified and reasonable, in light of the object and purpose of the Montreal Convention, to apply Article17(1) and to hold the carrier liable under that provision. That test corresponds to what is known as 'adequate cause' in civil law countries and 'proximate cause' in common law countries...
Generally speaking, in the laws of the State Parties,among all the factors which contributed to a particular injury, a given conduct or event will be regarded as an 'adequate' or 'proximate'and, thus, actionable cause of that injury if the latter is a natural result of the former. The classic sub-test is to verify whether the injury at issue was a foreseeable consequence of that conduct or event- that is, whether, in retrospect, a hypothetical bystander could reasonably have foreseen, in light of all the circumstances and past experience, that it would cause such an injury. Another closely related sub-test, mentioned by the German Government, consists in verifying whether the injury may be regarded as the materialisation of a risk inherent to the conduct or event in question.Neither sub-test is fulfilled when it would appear improbable that the relevant conduct or event would have resulted in that injury, and that it happened only because of a particularly atypical or highly extraordinary chain of events. That legal test should be applied not in an abstract manner, but rather with its clear and sound policy intent in mind: whereas people should generally answer for their harmful actions, civil liability cannot reasonably extend to far-fetched consequences of the latter...
Applying this test, the aggravation of the Claimant's injuries caused by the inadequate medical treatment would not have occurred but for the original accident, and was inherent to it. Therefore, so the Advocate General opined, it formed part of the natural consequences of the accident and was covered by Article 17 of the Convention. He explicitly rejected the notion that the provision of 'subpar' medical attention broke the chain of causation linking the accident to the injury.
This reasoning is not set out in the Court's judgment, which is (as is its wont) on the terse side. However, the two stage factual and legal tests appear, in themselves, to be relatively easily applied. Where the zone of uncertainty arises is in relation to the second test; that of either foreseeability or inherence. The Opinion foreshadows that some medical treatment may fail the test, but only where it is 'particularly atypical' or 'highly extraordinary', which seems likely to require something more than merely the intervening act which might break the chain of causation under the English common law.
The CJEU has, over the last few years, built up a distinct body of caselaw interpreting the Convention. Whether or not the courts of the rest of the world, and in particular (post-Brexit) those of England and Wales, are likely to follow these authorities remains to be seen - but this latest decision, taken with the Opinion underpinning it, is an interesting addition to the jurisprudence on the Convention, in particular in respect of the issue of causation.
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