A lawyer’s take on a Montreal convention ruling in the appeal court

The law firm Blake Lapthorn is acting for the claimant in a case where the Court of Appeal has ruled that a British Airways passenger who was injured while boarding a plane did not have an “accident” as defined by the Montreal convention.

This is the first time the Court of Appeal has been asked to determine the meaning of the word accident in the context of the convention, which provides the remedy for anyone suffering an accident on board an aeroplane.

The claimant, Beverley Barclay, is being represented by Spencer Baker, senior solicitor in Blake Lapthorn’s personal injury team. Mrs Barclay was trying to get into her seat on the British Airways Boeing 747. She had to lean backwards as the seats in front were reclined and injured her knee as a result of slipping on a plastic strip.

Although what happened would seem to fit the normal meaning of the word accident, the Court of Appeal decided otherwise, relying on previous authority.

The court said the terms within the Montreal convention had to be considered autonomously because it was an international trade law convention. Consistency of approach worldwide was important and relying on a definition from a US Supreme Court judgment, the court effectively upheld the view that an accident had to be an unexpected and unusual event, external to the passenger and not attributable to the normal operation of the aircraft.

This decision, while upholding the status quo, produces a number of anomalous outcomes.

For example, deliberate terrorist or passenger activity that causes injury would constitute an accident. Tripping over a bag left in the aisle would also constitute an accident in the UK, but not in the US.

Similarly, if some aspect of an aircraft that causes injury can be demonstrated to be inherently dangerous, but is nevertheless compliant with airline regulations and a normal part of the aircraft, there will be no accident within the Montreal convention.

Permission is currently being sought to appeal to the House of Lords.

Nish Kanwar is head of the travel team at Blake Lapthorn