Coffee, claims and the courts: an airline’s liability considered

In the mid-1990s, the litigation involving hot coffee served by McDonald’s in the USA acquired almost urban myth status. According to the key legal reference source that is Wikipedia, the “1994 product liability lawsuit became a flashpoint in the debate in the United States over tort reform” – which suggests to me that reports of the case would probably have ‘gone viral’ had social media been around at the time.

Much more recently, and in the very different settings of European air travel and the special legal regime of the Montreal Convention, the case of a passenger burned by hot coffee came before the Court of Justice of European Court (CJEU).  This is a serious case and far from an EU ‘bendy banana’ style scare story: the claimant was aged six at the time of the incident in which she suffered second degree burns.

The preliminary question for the court was whether the coffee spill was an “accident” for the purposes of the Montreal Convention, given that “accident” is the trigger for engaging an air carrier’s strict liability under the Convention.

In a detailed and principled judgment last month the CJEU held that this was an “accident”, dismissing the carrier’s argument that “accident” should be understood as relating to hazards typically associated with aviation rather than, say, food or drinks service.

Unsurprisingly, claims under the Convention are a specialist technical field.  My colleague Sandeep Aujla practices exclusively in the travel area and provides below her expert analysis of the case and its implications for the sector.

Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com

GN (represented by HM) v ZU, C-532/18, CJEU judgment of 19 December 2019

Live issues & determination

Article 17(1) of the Montreal Convention states:

  1. 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.

The case was initially heard in Austria. The question ultimately referred to the CJEU by the Austrian Supreme Court was:

‘Where a cup of hot coffee, which is placed on the tray table of the seat in front of a person in an aircraft in flight, for unknown reasons slides and tips over, causing a passenger to suffer scalding, does this constitute an “accident” triggering a carrier’s liability within the meaning of Article 17(1) of the [Montreal Convention]?’

The CJEU concluded that:

“Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that the concept of ‘accident’ within the meaning of that provision covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typically associated with aviation.”

Factual background

The reference arose from the case GN (represented by HM) v ZU.  In 2015, the applicant, GN, who was six years of age at the time, travelled with her father, HM, from Mallorca, Spain to Vienna Austria on a flight operated by Niki Luftfahrt (the air carrier owned by the late Formula One Champion and Non-Executive Chairman of Mercedes-Benz Grand Prix, Niki Lauda).

During the flight, HM was served a cup of hot coffee.  After the cup had been placed on the folding table in front of HM, it tipped over onto his right thigh and onto GN’s chest, causing her second-degree scalding; it was not possible to determine what caused the cup to tip.

The applicant, GN, represented by her father HM, pursued a claim against the now insolvent carrier for damages in accordance with Article 17(1) of the Montreal Convention for the harm caused to her, which was estimated at €8,500.

The defendant denied liability on the basis that there was no accident.  The defendant argued that Article 17(1) required the materialisation of a hazard typically associated with aviation in order for liability to be triggered; a condition which they argued had not been met in the present case.

By judgment dated 15 December 2015, the Regional Court in Korneuburg, Austria upheld the applicant’s claim for compensation, taking the view that the harm caused to GN stemmed from an accident caused by an unusual event which was based on an external action i.e. the varying inherent inclinations in an aircraft which can result in objects placed on horizontal surfaces starting to slide.  The court also found there was no fault on the part of the defendant for serving a hot drink without a lid, as this was common accepted practice.

The defendant appealed this finding and by judgment dated 30 August 2016, the Higher Regional Court in Vienna, found in favour of the defendant.  The higher court accepted the defendant’s argument that Article 17(1) of the Montreal Convention only covered accidents triggered by a hazard typically associated with aviation, but in the present case there was no evidence of such a hazard.

The applicant then appealed on a point of law before the Supreme Court in Austria, seeking a declaration that the carrier was liable and her claim for compensation was well founded.

Reference from the Austrian Supreme Court

The Austrian Supreme Court noted that there were different interpretations of Article 17(1).  These can be summarised as follows:

  1. The concept of accident only covers situations in which a hazard associated with aviation materialises. The materialisation of a hazard would arise from the nature, condition or operation of the aircraft, or from an aviation facility used when embarking on or disembarking from the aircraft. Where an accident has no connection to aviation activity and could have occurred in other circumstances (as in the present case), the carrier’s liability is not triggered.  In addition, the burden of proof rests with the person claiming injury and where no cause for the accident can be determined, any action brought must be dismissed;
  2. The carrier’s liability is not triggered when a hazard typically associated with aviation materialises. The wording of Article 17(1) does not include such a requirement. If such a requirement did exist, almost all injury would be excluded, as it could occur in a similar way anywhere other than on an aircraft.  The court noted that spillages of hot drinks and food onto the body of a passenger are recognised by some legal commentators as an ‘accident’ within the meaning of Article 17(1).

The Austrian Supreme Court considered an ‘intermediate solution’ for interpreting Article 17(1) whereby liability is based solely on the fact that an accident occurred on board the aircraft or in the process of embarking or disembarking and does not require the materialisation of a hazard typically associated with aviation.  In this scenario the burden of proving that there is no connection between the accident and the operation or nature of the aircraft would fall on the carrier.

The Supreme Court decided to stay the claim and referred the following question (already noted above) to the CJEU for a preliminary ruling:

‘Where a cup of hot coffee, which is placed on the tray table of the seat in front of a person in an aircraft in flight, for unknown reasons slides and tips over, causing a passenger to suffer scalding, does this constitute an “accident” triggering a carrier’s liability within the meaning of Article 17(1) of the [Montreal Convention]?’

CJEU analysis and decision

The CJEU noted that the question posed by the referring court required an interpretation of the concept of “accident” without it being necessary to consider whether that accident stemmed from a hazard typically associated with aviation.

The CJEU considered that Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331), which codifies general international law binding on the European Union, states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (judgment of 12 April 2018, Finnair, C‑258/16, EU:C:2018:252, paragraph 21 and the case-law cited).  Accordingly, the Montreal Convention must be interpreted uniformly and autonomously, taking into account rules of interpretation of general international law, and not the various meanings given in the internal laws of Member States of the European Union.

The wording of Article 17(1) of the Montreal Convention states that in order for liability to be triggered, the event causing death or bodily injury must be classified as an “accident” and that accident must take place on board the aircraft or in the course of embarking or disembarking.

The Montreal Convention does not provide a definition of “accident”, therefore reference must be made to the ordinary meaning of the concept in light of the object and purpose of the convention.

The CJEU determined that the ordinary meaning of “accident” is “an unforeseen, harmful and involuntary event”. 

In addition the CJEU noted that Article 20 of the Montreal Convention provides that if the carrier proves the damage was caused or contributed to by a wrongful act or omission of the passenger, or by that passenger being negligent, then the carrier is to be wholly or partially exonerated from its liability to the passenger.  Article 21(1) of the Convention states that the air carrier may not exclude or limit its liability for damages arising under Article 17(1) where those damages do not exceed a certain compensation threshold.  If damages exceed the threshold, the air carrier is able to exclude its liability pursuant to Article 21(2) if it proves the damage was not caused by its negligence or it was caused solely by the negligence of a third party.

Given the defences available to carriers pursuant to Articles 20 and 21 of the Montreal Convention, the CJEU did not consider it necessary to limit the liability of carriers solely to accidents related to a hazard typically associated with aviation. It followed the Advocate General’s opinion that making the carrier’s liability subject to a condition that the damage was due to the materialisation of a hazard typically associated with aviation was simply not consistent with the ordinary meaning of the concept of “accident” at Article 17(1) of the Convention.

The CJEU therefore held that Article 17(1) of the Convention must be interpreted as meaning that the concept of “accident” covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to the passenger.

Implications for carriers

The CJEU’s broad approach to the meaning of “accident” is not unexpected, but it potentially leaves carriers open to more claims as a natural consequence of the wider and more flexible interpretation. It is worth reviewing other relevant cases before reflecting further on the decision in GN v ZU.

  • The leading authority in this area is Saks v Air France [1985] 470 U.S. 392. The claimant sought damages for loss of hearing in her left ear after feeling severe pressure and pain in her ear when descending to land in Los Angeles on a trip from Paris.  She alleged the carrier had not correctly maintained the pressurisation system within the aircraft.  The US Supreme Court held that a carrier’s liability under Article 17 of the Warsaw Convention (the precursor to the Montreal Convention) only arises if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger, and not where the injury results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft.  The court also held that “Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event”.
  • In Barclay v British Airways PLC [2008] EWCA Civ 1419 the Court of Appeal dismissed the claimant’s appeal stating that Article 17 of the Montreal Convention required there to be an unexpected and unusual event or happening external to the passenger. There was no accident external to the claimant, who had slipped on a plastic strip embedded in the floor of the aircraft. The Court of Appeal found that the accident occurred as a result of the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft. [Saks was cited favourably in this case.]
  • In Ford v Malaysian Airline System [2013] EWCA Civ 1163 the claimant, who suffered from gynaecological problems, was given a diuretic injection by a doctor who was a fellow passenger. The proper consent was obtained. Unknown to both the claimant and the doctor, she was suffering from a condition which resulted in fluid retention, meaning that the injection caused her increased suffering until she landed in Kuala Lumpur and was medically examined and catheterised.  She sought claimed damages under Article 17 of the Montreal Convention. The Court of Appeal upheld the initial judgment dismissing the claim, finding that the injection was not an unexpected, or unusual event or happening or an unintended or unexpected happening.  The only ‘unusual’ aspect of the process was that it was carried out during an international flight by a passenger doctor, on another passenger (with full informed consent), at the request of assistance by a crew member. There was no evidence that this chain of events caused the claimant’s bodily injury, which could have taken place wherever the injection had been administered.
  • In Prosser v British Airways Plc [2018] EW Misc B13 (CC) the claimant pursued an Article 17 claim alleging he suffered personal injury as a result of being forced to sit at an awkward angle during of a long-haul flight because a very large passenger was “encroaching” into his seating area. The claim was dismissed on the basis that the claimant’s awkward sitting position had not been “forced upon him”. There was nothing unusual or unexpected about a large person being seated next to the claimant and there was no evidence that person had encroached into the claimant’s seating area.

Looking at the case of GN v ZU in accordance with the leading authority Saks, it might be argued that the provision of a hot drink to passenger HM was not ‘unusual’ or ‘unexpected’ as it is a normal event during a flight.

It is likely HM requested a coffee and he would have been aware this would be served hot without a lid. The Austrian courts determined that there was no negligence on the part of the carrier for providing the drink without a lid as this was normal industry practice.  The cause of the coffee cup tipping from the seat tray and burning the claimant, GN, could not be determined but the court found that the spill was an “accident”. On the face of it, that finding would tend to fulfil the Saks criteria of: (a) an unexpected or unusual event or happening, (b) external to the passenger, and (c) not due to the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft.

The position might, however, have been different had the crew member spilt the drink directly over the claimant as that could have been unexpected and external to the passenger (and would very likely  have amounted to negligence). Perhaps a distinction might be drawn between the “usual, normal and expected” service of hot drinks and the unusual and unexpected spill from the seat tray?

Disturbance due to light turbulence would be within the expected normal operation of the aircraft when in flight. It is entirely possible that the coffee cup tipped for that reason and had that been the finding here then perhaps, looking at the Saks definition of an accident, this case could easily have been decided the other way, in favour of the carrier.

While the CJEU’s judgment is specific to circumstances where an object is used to serve passengers this in itself could encompass a wide range of circumstances including food or drink, duty free goods sold on board the aircraft from a trolley or items provided by crew to passengers such as blankets, ear plugs, eye masks etc.  If, in the service of any of these items or as a result of service the passenger sustains injury, the decision in GN v ZU tends to suggest that there may be no need to show that the cause was related to a hazard typically associated with aviation and, further, that the ordinary and wide meaning of “accident” is likely to be adopted by the courts.

It will be interesting to see how this extends to other types of accidents such as slips or trips on board (such as in Barclay), medical issues or incidents (such as Ford) and how the courts will seek to maintain and balance the interests of both carriers and passengers alike within the unique strict liability regime of the Montreal Convention.


Sandeep Aujla, Solicitor, BLM
sandeep.aujla@blmlaw.com

 

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