“Is the room airy?” asks the hotel guest when registering. “Well it’s got air in it”, replies Basil Fawlty in the spirit of helpfulness we’ve come to expect from Torquay hoteliers. And it is in just the same spirit of helpfulness that we bring you a Weekly Roundup devoted to the various difficulties associated with air travel. First, on 9th June 2021 the European Commission announced that it has decided to refer Slovakia to the Court of Justice of the European Union in relation to its domestic legislation, which allows for passengers to be offered either immediate alternative package holidays or much delayed refunds, contrary to the provisions of the Package Travel Directive (EU) No.2015/2302. The Slovakian government had promised the Commission faithfully that it would amend its legislation to bring it into line with the Directive, but has not yet done so, causing the Commission to lose patience. Then, a number of airlines and airports lost patience with the British government’s much maligned traffic light system, and announced that they would be bringing proceedings for judicial review of how the decisions which underpin the system are taken (our money’s on Grant Schapps pulling countries’ names out of a tombola). Meanwhile, our Commonwealth cousins in Australia have given judgment in a Montreal Convention case which raises some intriguing questions of international interest. Conor Kennedy and Russell Wilcox have the details.
Bodily Injury under the Montreal Convention Defined: Grueff v Virgin
Last month the Australian Federal Court handed down judgment in Grueff v Virgin Australia Airlines Pty Ltd  FCA 501, a case brought under the Montreal Convention. The decision is relevant to claims in England and Wales (and in the courts of other signatory jurisdictions) because the purpose of the Convention is to ensure “uniformity” and “certainty” for claims relating to the international carriage of passengers. The English courts have accordingly said that they will ensure decisions interpreting the Convention are “if possible, consistent with the mainstream views expressed in leading overseas authorities” (King v Bristows Helicopters Ltd  2 A.C. 628).
The facts of Grueff were that during a flight the applicants had been served water which was tainted with perfume. They subsequently experienced symptoms including stomach cramps, nausea, diarrhoea, sore throat, a lack of energy, anxiety, loss of weight and food intolerances. Their symptoms resolved within a few weeks, although both alleged that they experienced food sensitivities for several months.
Bodily injury defined
The relevant provision of the Montreal Convention, Article 17, provides that:
“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.”
Carriers have strict liability for any bodily injury sustained by a passenger during international carriage, provided it is caused by an accident. Accordingly, the question for the Federal Court was whether the applicants’ symptoms could be characterised as a “bodily injury” caused by an accident during the flight.
The term “bodily injury” is not defined by the Convention, so the court conducted a review of national and international case law on the convention. It accepted a number of key principles necessary to establish “bodily injury”, as follows:
- A claimant must show clear evidence of physical injury to the body, caused either by the accident or flowing from the psychological trauma from the accident;
- The injury must not be a mere transitory discomfort or inconvenience. A symptom of a few days’ duration is not normally sufficient to be described as an injury;
- An injury which requires treatment to enable a person to return to normal is typical of an injury, but this is not essential;
- Contracting an illness may be described as an injury depending on the degree to which the illness departs from the normal. For example, a cold is not an injury but a disease such as AIDS would be;
- Physical manifestations (such as weight loss) from emotional distress do not constitute a bodily injury although organic injuries (such as coronary thrombosis or stroke) from emotional shock could be;
- Purely psychiatric injury without physical injury is not a bodily injury;
- “Psychic” injury consequent upon a physical injury may be a bodily injury (the question remains open).
Upon review of the authorities, Griffiths J found that the applicants’ symptoms fell short of a bodily injury for the purposes of the Convention.
The decision of the Federal Court is a useful summary of existing US, UK and Australian authorities. Furthermore, the application of those authorities to the factual matrix of this case will be of particular utility in analysing the growing number of travel claims for gastric illness. In such claims, parties will need to work closely with medical expert witnesses to assess whether there is clear evidence of symptoms which meet the criteria of a bodily injury, as defined by the caselaw.
About the Author
Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.
Air Traffic (Light) Control: the Judicial Review Challenge to Government Policy
As readers will no doubt be aware, last week a group of interested parties led by Ryanair and the Manchester Airports Group announced that it was mounting a challenge to the government’s travel traffic light system by way of judicial review. That system was instituted on 17th May 2021, before which there were fines of up to £5,000 for individuals travelling abroad without valid reason. The idea behind the traffic light system was, of course, to establish a method of differentiating between the level of coronavirus risk in overseas countries or territories, rated red, amber or green: green attracting the fewest restrictions on travellers and red the most. It was touted as integral to the staged and carefully controlled loosening of travel restrictions as the effects of the global vaccination programme set in and the virulence of viral spread reduced.
Unfortunately, given coronavirus’ unpredictable track record, that mechanism had to allow for tightening as well as loosening depending upon changing epidemiological exigencies. As such, it was accompanied by three-week review checks, the first of which took place on 3rd June 2021, and resulted in Portugal being moved from the green list to the amber list. This was significant for the deeply wounded travel industry as it attempted to limp back into action as Portugal was perhaps the sole country on the original green list catering for something like the standard club-med summer get away. Moreover, the disincentives resulting from recategorization as amber were considerable, including standard government advice not to travel and prolonged periods of quarantine on return.
It was perhaps inevitable, therefore, that the methodology employed by the government in determining the status of each country would receive further scrutiny and challenge. What really seems to have annoyed industry leaders is the fact that other, competitor, countries in particular Germany, were being permitted to steal a march on the British operators.
There is particular annoyance that ministers failed to place the Balearics on the green list at a time when holiday makers from other European nations are flooding the islands. Thus, Jet2 chief executive Steve Heapy observed: “When you take the UK government’s own criteria for deciding where holidaymakers can travel to, and apply it to the Balearics, we are left bewildered as to why we cannot fly there”, and MAG chief executive Charlie Cornish complained that other EU countries were taking a much more positive approach to resuming international travel compared to the United Kingdom.
It is in light of these sentiments that the Ryanair/MAG challenge has been initiated. It seems that, given its time sensitive nature and importance to the industry as a whole, it will be heard early this week. Latest reports suggest that the initial litigants have now been joined by the likes of British Airways and Virgin Atlantic.
Depending on the outcome of this case we should all be prepared for a further clutch of challenges to government coronavirus restrictions as the case for maintaining them becomes more nuanced and difficult to make. No doubt Lord Sumption will also have a few additional words to say before the crisis is over!
About the Author
Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.
In the latest of 1CL’s series of webinars, on Thursday 24th June at 12pm Sarah Prager and Dom Smith will be speaking on dealing with deaths abroad, providing both a legal overview and some practical tips on how to handle these most sensitive of cases. The link to register for the webinar is here: 1CL Webinar: Dealing with Deaths Abroad – 1 Chancery Lane. The event promises to be all the more interesting because Sarah will be beaming in from one of the Greek islands, where, whilst diving, she will no doubt be taking the greatest care not to provide Dom with a worked example of the relevant principles.