Last week the Court of Justice of the European Union (CJEU) decided, in LE v Transport Aereos Portugueses SA (Case C-74/19), that a carrier is not liable for flight delay caused by an unruly passenger (a violent one, in this case) in instances in which the passenger’s behaviour can be characterised as extraordinary circumstances not inherent in normal air carrier activity and all reasonable measures were taken to limit the resulting delay (to the blameless passenger).
These were the settings for four Supreme Court judgments today, delivered by video link given the prevailing restrictions. Principles of vicarious liability were raised by two cases. Recovery of by way of damages of sums paid under a commercial contract for surrogacy was raised in a third and the fourth concerned recovery by an insurer of a settlement which it argued was vitiated by misrepresentation. This blog is necessarily short and serves only as a summary of today’s judgments.
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