Tourism Law in Europe

The courts’ attempts to draw a clear line between ‘ an unexpected or unusual event or happening that is external to the passenger’ (a qualifying accident if injury results) and a passenger’s own internal reaction to the ‘ usual, normal and expected ’ operation of the aircraft (not a qualifying accident), have led to some arguably curious decisions. For example, a lady who broke her leg after slipping on a wet floor in the vicinity of a cabin toilet had no Article 17 ‘accident’ claim (cf Kedgley v Britannia Airlines, unreported, 1 st September 2004 ); neither did a lady who slipped on a marble ramp at Cardiff airport made treacherous by rain (cf Cannon v MyTravel Airways Limited, unreported, 8 th July 2005 ). In Barclay v British Airways Plc [2009] 3 WLR 369 the Claimant slipped on a floor strip in the cabin of a BA aircraft whilst boarding a flight to London Heathrow. By virtue of slipping on the strip she fell over and suffered bodily injury. There was nothing defective about the strip. It was not loose or worn. It was an inert piece of material commonly found on this type of aircraft. The Court of Appeal rejected the Claimant’s argument that the slip and fall itself were sufficient to constitute an accident without some form of additional external, and unusual, triggering event. Laws LJ said: “ If the appellant's case is good, then Article 17.1 would appear to impose liability for a very wide range of injuries suffered on board aircraft. Any slip or fall resulting merely from contact with an inert piece of equipment, installed and operating as intended, would constitute an accident. Indeed, it is hard to see how any injury, save only one caused by an autonomous collapse or deterioration in the passenger's state of health having nothing to do with conditions on the aircraft, would be excluded: there would presumably always be some event causing the injury, which could be categorised as an "accident" just as Mr Menzies has sought to categorise his client's slip (…) I conclude that Article 17.1 contemplates, by the term "accident", a distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger (…) the happening of an event which is anterior to and separate from any involvement of the passenger (…)”. This attempt to limit liability may well be rooted, at least in part, in the UK courts’ suspicion of strict liability. The meaning to be given to the expression ‘ bodily injury ’ in Article 17 has also been a matter of considerable controversy. In Morris v KLM Royal Dutch Airlines the House of Lords concluded that somebody who suffered no physical injuries but suffered mental