As would-be holidaymakers continue to report chaotic scenes at airports both within the jurisdiction and abroad, and airlines, airports and government busy themselves playing Blame Roulette, the Court of Justice of the European Union has been steadily expanding the ambit of consumer protection, first in relation to cosmetics (Get Fresh Cosmetics, Case C-122/21), then (we anticipate) in respect of unlawful defeat devices in diesel vehicles (Advocate General Rantos’ Opinion in QB v Mercedes-Benz Group, Case C-100/21), and lastly in claims for accidents brought under the Montreal Convention (JR v Austrian Airlines, Case C-589/20). We’ve also been keeping a weather eye on Dusseldorf, where the Court of Appeal has just confirmed (applying the decision of the CJEU in Mennens v Emirates, Case C-255/15) that in interpreting Regulation (EU) No. 261/2004 where a consumer has purchased a ticket via an agent, in making a refund under the Regulation the airline need not always refund that part of the purchase price relating to the agent’s fees (Dusseldorf Court of Appeal 22 S 255/21).
Airline Liability for Accidents
In Case C-589/20 JR v Austrian Airlines AG, the CJEU was asked to consider two questions regarding the proper interpretation of Article 17(1) and Article 20 of the Montreal Convention (the “Convention”). The claim in question involved an accident suffered by C when she was disembarking a flight operated by D using a mobile stairway. Just prior to C’s accident, C’s husband, who was holding a piece of wheeled hand luggage in each hand, almost fell on the lower third of the stairway. C, who was holding a handbag and her two-year-old son, thereafter fell in the same place and suffered a fracture of her left forearm. C brought an action for damages against D in Austria.
The Austrian District Court dismissed C’s claim on the basis of Article 1295(1) of the Austrian Civil Code. It was found that (i) the corrugated surface of the steps ensured a particular non-slip quality; (ii) the stairway was a certified piece of equipment tested by the Austrian technical inspection association; (iii) the stairway showed no signs of defects or damage; and (iv) whilst the steps were wet, they were not dirty or oily. In short, then, D had not breached its obligation and C had failed to take the necessary precautions to prevent her fall. C appealed.
The Austrian Regional Court had doubts, first, as to whether C’s accident was covered by the concept of ‘accident’ within the meaning of Article 17(1) of the Convention as interpreted by the CJEU in Niki Lufthart (C-532/18, EU:C:2019:1127). It was considered that C’s scenario was distinguishable from that case on the basis that an object used when serving passengers had not caused C’s fall. Further, as regards Article 20, there was a referral on the issue of whether C’s contributory negligence should outweigh any liability owed by D.
Judgment on Article 17(1)
The question to be addressed in relation to Article 17(1) was whether it “must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up for the disembarkation of the passengers of an aircraft and injures himself or herself constitutes an ‘accident’, within the meaning of that provision, including where the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard.” .
The CJEU noted that it had previously been held that the concept of ‘accident’ is that of an “unforeseen, harmful and involuntary event and that that concept does not require that the damage is due to the materialisation of a hazard typically associated with aviation or that there be a connection between the ‘accident’ and the operation or movement of the aircraft” (see Niki Lufthart at ,  and ). At , the CJEU observed that a passenger who falls on a mobile stairway and injures herself has suffered an ‘accident’ within the meaning of Article 17(1) and that the question of whether the carrier had complied with its safety obligations is “not capable of calling into question that classification”. The carrier’s liability does not depend on fault or negligence. At : “Accordingly, the answer to the first question is that Article 17(1) of the Montreal Convention must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up for the disembarkation of passengers of an aircraft and injures himself or herself constitutes an ‘accident’, within the meaning of that provision, including where the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard.”
Judgment on Article 20
The question to be addressed in relation to Article 20 was whether it “must be interpreted as meaning that where an accident which caused damage to a passenger consists of that passenger’s fall, for no ascertainable reason, on a mobile stairway set up for the disembarkation of the passengers of an aircraft, the fact that that passenger was not holding the handrail of that stairway at the time of…her fall may constitute proof of negligence…by that passenger which caused or contributed to the damage suffered by ..her, within the meaning of that provision, and, to that extent, exonerate the air carrier concerned from its liability to that passenger.” .
The CJEU held, first, as per the first sentence of Article 20, that where the air carrier proves that the damage was caused by the negligent of the person claiming compensation, that carrier is to be wholly or partly exonerated from its liability to that person “to the extent that that negligence…caused or contributed to the damage”: . The question of how to assess the contributory negligence, however, was a matter that must be assessed in accordance with national law, provided that those laws comply with the principles of equivalence and effectiveness: . In other words, in C’s context it was “for the referring court to determine whether the air carrier concerned has proved negligence…by the passenger…and if so to assess the extent to which that negligence…caused or contributed to the damage suffered by that passenger in order to exonerate, to that extent, that carrier from liability towards the passenger”: . On the facts of C’s case, for example, the CJEU noted that it “should not be overlooked that the passenger asserts that the sight of such a near fall” (ie, C’s husband’s near fall) “led her to be particularly cautious” but it would be for the national court to “verify the significance of such an assertion in the light of the applicable rules of national law” . Conclusions
The decision is a helpful reminder of the correct interpretation of Articles 17(1) and 20 of the Montreal Convention. The CJEU’s conclusions on both issues were as follows:
- Article 17(1) “must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up for the disembarkation of passengers of an aircraft and injures…herself constitutes an ‘accident’… including where the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard.
- The first sentence of Article 20 “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 stairway set up for the disembarkation of the passengers of an aircraft, the air carrier concerned may be exonerated from its liability towards that passenger only to the extent that, taking account of all the circumstances in which that damage occurred, that carrier proves, in accordance with the applicable national rules and subject to the observance of the principles of equivalence and effectiveness, that the damage suffered by that passenger was caused or contributed to by the negligence or other wrongful act or omission of that passenger, within the meaning of that provision.”
About the Author
Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas, but accepts briefs in all chambers’ areas of work.
Airline Liability for Cancellation and Delay
Any readers still living in blissful ignorance of the TRAVEL CHAOS of half term week and the forthcoming Summer holidays should look away now. The newspapers have been full of stories about short staffed airlines leaving passengers to be deplaned by the police, holidaymakers stranded abroad for lack of pilots, and baggage being left unhandled. It’s almost as if they were enjoying the drama.
The Business, Energy and Industrial Strategy Committee is unamused, however, and at an evidence session on 14th June will be questioning consumer representatives, unions and aviation industry bodies over the flight cancellations faced by holidaymakers over the half-term holiday. The Committee will ask those affected how much notice they got before their flights were cancelled, and whether compensation was offered and paid.
The Committee will hear first from Sue Davies, head of consumer rights and food policy at Which?, and from Simon Calder, veteran travel journalist and broadcaster, both of whom have been outspoken critics of some airlines’ failure to provide timely refunds during the Covid pandemic. The unions and airports will then be represented, as will the CAA, and the Minister for Aviation, Maritime and Security at the Department for Transport. You can watch the meeting here Parliamentlive.tv – Business, Energy and Industrial Strategy Committee if you wish to witness what is likely to degenerate as the morning wears on into an unedifying game of Pass the Blame.
The difficulty for airlines is that whether the staff shortages were due to government mismanagement of the pandemic and its knock on effects, or to failure to plan for the reopening of air travel, consumers are entitled to timeous refunds for cancelled and badly delayed flights; and in the light of the ongoing consumer disgruntlement following the Great Refund Saga of 2020 and 2021 and of increasing awareness of their rights, they are likely to insist on receiving them. It may even be that following the Committee hearing the CAA or CMA may feel moved to take enforcement action against those airlines seen as being recidivist; and Which? has recently conducted research to identify them.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.
As those who instruct us know only too well, the members of the team at 1CL are to litigation what an effervescent bath bomb is to your daily ablutions – a bracing and purifying force to be reckoned with. So it was with interest that we read the decision of the CJEU in Get Fresh Cosmetics, Case C-122/21, which wrestled with the interpretation of Directive 87/357 in the context of cosmetics. The Directive governs products which, although not foodstuffs, possess a form, odour, colour, appearance, packaging, labelling, volume or size, such that it is likely that consumers, especially children, will confuse them with foodstuffs and in consequence place them in their mouths, or suck or ingest them, which might be dangerous and cause, for example, suffocation, poisoning, or the perforation or obstruction of the digestive tract. Such products may not be marketed, imported, manufactured or exported. The Directive was transposed into UK law by way of the Food Imitation (Safety) Regulations 1989, although you would hardly know it from a cursory glance at many cosmetics aimed at children. In any event, the Lithuanian authorities took a dim view of some of the products, and in particular bath bombs, marketed by Get Fresh Cosmetics, and demanded that they be withdrawn from the market. Get Fresh challenged the order, and the matter eventually came before the Supreme Administrative Court of Lithuania, which asked the CJEU for clarification on the interpretation of Directive No. 87/357 in order to determine whether it must be shown by objective and substantiated data that the placing in the mouth of products which, although not foodstuffs, have the appearance of foodstuffs, may entail risks to health or safety. The Court held that the Directive does not establish a presumption that products which look like, but are not, foods are inherently dangerous; the risk of ingesting the product must be established on a case-by-case basis, although it need not be proven that ingestion will be dangerous.
We’d have thought that eating an effervescent bath bomb would be unlikely to do anyone any good, but what do we know? And given the propensity of children to choke on things which look like foodstuffs and are in fact foodstuffs, like grapes, we’ll be interested to see how the courts of England and Wales interpret the Regulations in the light of the decision, which is, of course, now not binding on the courts of the UK.