Much has been written lately, including by the team at 1 Chancery Lane, about the impact of the Covid-19 pandemic on the aviation industry. In this Special Briefing we consider whether airlines’ attempts to provide passengers with vouchers rather than refunds are likely to lead to litigation; and whether passengers who have contracted Covid-19 after flying are likely to be able to bring claims against airlines under the Montreal Convention.
Claims under Regulation 8 of the Denied Boarding Regulations (EU Regulation 261/2004)
Readers could hardly be unaware of the increasing controversy surrounding the operation of Regulation 8 of the Denied Boarding Regulations, which provides that where a flight is cancelled, the passenger has the right to reimbursement of the cost of it. There is no right to the compensation provided for in Regulation 7, however, where the carrier can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken (Article 5(3)). However, even in these circumstances, the passenger is entitled to a refund.
As a result of the Covid-19 pandemic the Foreign and Commonwealth Office is currently advising indefinitely against all but essential travel; and a number of nations have completely closed their borders to UK travellers, with others imposing stringent quarantine and other measures. Consequently, thousands of flights have been cancelled, and British passengers are entitled to refunds in respect of all of them.
Initially the UK government appeared to suggest that it might be possible to legislate to allow for vouchers rather than refunds to be provided by airlines; but it appears to have altered its position. In answer to Parliamentary Questions raised of the Secretary of State for Transport on 30th April, she stated without comment that the Civil Aviation Authority expects airlines to provide refunds within a reasonable period. The difficulty for the government is that it cannot unilaterally amend the Denied Boarding Regulations because they originate from the EU rather than domestic legislation; for a Member State unilaterally to amend them domestically would be a breach of its obligations under the Treaty of Rome (although last week Italy appears to have done just that). This would of course leave the UK government open to a Frankovich claim for breach of its international obligations, which continue to apply in the transitional period prior to Brexit.
One solution to the airlines’ difficulty would be for the Regulations to be amended at EU level, and a group of twelve member states have written to the Commission asking it to do just that. Any amendment is likely to cause controversy within the European Parliament however, particularly given the fact that the chair of the Transport Committee is a member of the Green party. Furthermore, unless it is retrospective, by the time the relevant legislative amendments can be made, European airlines will already have incurred very significant refunds liabilities.
There remains the possibility that airlines might seek to challenge the operation of the Regulations in these unprecedented circumstances; when they were promulgated no one predicted a global pandemic that would lead to worldwide lockdown and to the imposition of refund obligations on such a scale as to threaten the very existence of so many airlines across Europe and indeed the world.
The difficulty with any such approach is that it has been attempted before, to no avail. In McDonagh v Ryanair Case C12-11 the CJEU examined the meaning of the Regulations in the context of the eruption of the Icelandic volcano Eyjafjallajokull in March and April 2010, which covered much of northern and western Europe in an ash cloud, and caused the cancellation and disruption of flights all over the continent. Ms McDonagh’s flight from Faro to Dublin was scheduled for 17th April 2010, by which point the airspace over part of Europe, including Ireland, had been closed to air traffic; she was unable to fly to Ireland until 24th April. During her week’s enforced stay in Faro, Ryanair refused to provide her with the care stipulated in Regulations 5 and 9 of the Denied Boarding Regulations. On her return she brought a claim against the airline for reimbursement of the costs of accommodation, meals and transport she had incurred herself but which, she said, Ryanair ought to have provided her with in accordance with its obligations under the Regulations.
Ryanair defended the claim on the basis that not only were the eruption and its consequences ‘extraordinary circumstances’ so as to relieve it of the obligation to compensate its passengers under Regulation 7, they were super extraordinary circumstances which justified it in not providing them with care or reimbursement under Regulations 8 and 9.
The CJEU found that:
“…Regulation No 261/2004 contains nothing that would allow the conclusion to be drawn that it recognises a separate category of ‘particularly extraordinary’ events, beyond ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation, which would lead to the air carrier being exempted from all its obligations, including those under Article 9 of the regulation…”
The court was not sympathetic to Ryanair’s plea that it would incur very significant costs if it were to owe a duty to provide open-ended care for all passengers whose flights had been cancelled by the eruption for as long as the disruption lasted:
“…The importance of the objective of consumer protection, which includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators…”
It seems to the authors that the reasoning in McDonagh must apply to this unprecedented pandemic; after all, at the time, the Eyjafjallajokull eruption was itself unprecedented, a fact which does not seem to have troubled the court at all. As a result, the authors believe, refunds are payable to passengers whose flights have been cancelled, unless and until such time as the EU legislates to the contrary. Furthermore, unless highly unusual retrospective legislation is introduced, the cancellations which have already occurred ought to attract refunds, and not vouchers or other compensation such as credit notes.
The Montreal Convention and the Transmission of Covid-19 during International Carriage by Air
On 15th March 2003 a 72 year old boarded Air China Flight 112 from Hong Kong to Beijing. He was infected with Severe Acute Respiratory Syndrome (SARS). Over the course of the three hour flight he infected 20 other passengers and two aircraft crew. The infection spread throughout the aircraft to passengers over six rows away. Fast forward to 2020, and we are in the midst of a pandemic of a different order of magnitude. As lockdown measures begin to ease, discussion has inevitably turned toward how the aviation industry will resume operations whilst minimising the spread of Covid-19.
From a litigator’s perspective, this scenario poses an interesting question: would the transmission of Covid-19 during international carriage by air give rise to liability under the Montreal Convention 1999?
The Convention provides an exclusive cause of action for cases falling within its substantive scope. If it does not provide a remedy, the claim must fail. On the other hand, it is a qualified strict liability regime. Notions of fault are legally irrelevant. As Ormiston JA noted in Povey v Qantas (2003) VSCA 227 “enquiries into negligence are not only misconceived, but in my view mischievous, insasmuch as it diverts attention from the real question”.
The ‘real question’ is whether the Claimant can prove that he or she suffered a bodily injury caused by an ‘accident’. An accident is an unexpected or unusual event which is external to the passenger and which does not arise from the passenger’s own internal or peculiar reaction to the ordinary operation of the aircraft: Saks v Air France 470 US 392.
Where does leave the airline passenger infected with Covid-19? The biggest barrier to any claim is bound to be causation. Is it possible to demonstrate that transmission occurred on board the flight rather than whilst walking through the airport or at any other stage prior to boarding? Whilst this is plainly a considerable hurdle, it is perhaps not insuperable. As the Air China case demonstrates, extensive contact tracing may well make it possible to conclude, at least on the balance of probabilities, where the infection occurred.
If causation is established, the next question is whether Covid-19 qualifies as an compensable bodily injury. In Morris v KLM (2002) 2 AC 628 Lord Hobhouse made the following observation:
“A condition which requires treatment to enable the person to return to the normal is typical of an injury though not essential; many injuries heal over time without intervention. Contracting an illness may amount to an injury depending upon the degree to which the illness departs from the normal. One would not normally describe a person who caught a cold as having suffered an injury but, on the other hand, one would certainly describe someone who contracted a serious disease or condition, say, AIDS or hepatitis, as the result of the deliberate or negligent act of another as having suffered an injury”
It seems that it all depends upon the severity of the illness. In reality, it is unlikely that a claim would be brought for mild self-limiting symptoms of Covid-19. By contrast, a case which has resulted in, for example, hospital admission, would almost certainly fulfil Lord Hobhouse’s criteria.
If there is a bodily injury, the inquiry turns to whether it has been caused by an ‘external event’ which is unusual or unexpected. It is important to remember that this concept has been defined flexibly:
- The ‘unexpected’ nature of the event must be judged from the perspective of the (reasonable) passenger, not the airline: Re: Deep Vein Thrombosis Litigation (2006) 1 AC 495.
- It is only necessary to prove that ‘one link’ in the chain of causation constitutes an unexpected/unusual event (Air France v Saks); and
- An event may be ‘continuous and unrecognised’ rather than ‘instantaneous and immediately noticeable” (re: DVT, per Lord Walker at paragraph 75).
It is tempting to think that the transmission of a virus is easily described as ‘an event’ and that it is certainly not something that would be ‘expected’ by anyone, even though they may regard it as a day to day possibility given the prevalence of the disease. On the other hand, in the midst of a global pandemic, if contracting the virus would not sensibly be described as unusual or unexpected outside an aircraft, can it fairly acquire these characteristics merely because it occurred on board? The Court of Appeal decision in Ford v Malaysian Airline Systems Berhard (2014) 1 Lloyds Rep 301 would suggest not. In Ford the Claimant suffered an adverse reaction to the injection of a diuretic administered on board a flight. Aikens LJ held that this 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””.
On the other hand, it is sometimes argued that if an event falls within the range of ‘aviation related risks’ this will be a strong pointer towards it being an ‘accident’. Indeed, in some US jurisdictions the ‘aviation related risk’ has become part of the test itself. The Court of Appeal in Morris v KLM (2002) QB 100 declined to apply these cases to English law, but held that on the facts of the case (a young girl sexually assaulted by a fellow passenger) it would be satisfied because the close confines of the aircraft led to a 15 year old girl sleeping in close proximity to an unknown man and this was “special risk inherent in air travel”.
It may be that a similar argument could be deployed in Covid-19 cases, with passengers (especially those in economy class) required to sit in close proximity and unable to maintain social distancing measures. One only has to recall the recent comments of Ryanair chief executive Michael O’Leary that he would refuse to fly with ‘idiotic’ social distancing rules.
If it is not possible to characterise the actual transmission of Covid-19 as a qualifying event, there remains the possibility of looking further back in the chain of causation to the conduct of the airline itself. Once new guidelines are in place to manage the risk of the virus, airline crew will come under increased scrutiny to ensure that every possible step is taken to prevent transmission on board. This may include social distancing, but also requiring passengers to wear face masks, isolation of symptomatic passengers on board and properly operating air circulation systems (all commercial aircraft have, since 1963, used ‘bleed air’ systems which draw compressed air from the engines and recirculate it through HEPA filters which trap bacteria and viruses).
The House of Lords in Re: DVT (above) refused to follow the US Supreme Court decision in Olympic Airways v Hussain (2000) 116 F Supp 1121 in holding that a mere failure or omission to act could constitute an accident. Husain was a case in which an asthma sufferer was allocated seats a short distance away from the smoking section of an aircraft and the flight crew refused to move him even though other seats were available. He suffered an asthma attack and died. Lord Walker, however, thought that the decision was justifiable on its facts as one where the refusal of the flight crew was not ‘mere inertia’ but was part of a more complex incident which positively resulted in the passenger being exposed to smoke. It is not difficult to imagine comparable issues arising in relation to social distancing in the current pandemic.
If the aircraft’s air filtration system is not working properly, the argument is perhaps clearer. In Dias v Transbrasil 26 Avi 16048 (D.C.N.Y 1998), a case decided under the Warsaw Convention it was alleged that a passenger contracted pneumonia and later died due to the poor quality of the cabin air. The Court held that this could constitute an ‘accident’. As ever, causation will be a critical factor, but the malfunction of aircraft equipment leading to the infliction of sufficiently serious disease would seem to fall comfortably within the Saks definition.
There is no easy answer. However, since the Montreal Convention is an international instrument, the Courts of England and Wales are encouraged to look overseas for guidance on its application and interpretation. It would not be a surprise to see litigation, particularly in the US, in the near future. It will be interesting to see if the Courts in this jurisdiction follow suit.
About the Authors
Called to the Bar in 1997 and 2004 respectively, Sarah Prager and Jack Harding have been listed in the legal directories as recommended practitioners in travel and consumer law for many years. Together with their colleague at 1 Chancery Lane, Matthew Chapman QC, they co-write the leading legal textbook in the area, and have been involved in many of the leading cases in the field in the last decade.