Passenger Claim Fails “Accident” Test

An Australian Court has once again been asked to consider whether a passenger injury during domestic carriage was caused by an “accident”, as required by Part IV of the Civil Aviation (Carrier’s Liability) Act 1959.

In this case the passenger alleged that she had suffered pain, injury and damages as a result of tripping on board the aircraft sustaining a serious injury.  The passenger claimed to have been asked to move seats soon after boarding, and in doing so, her foot became caught on the metal “rod” that anchors the bottom of the seat to the floor of the aircraft, causing the passenger fall and suffer a broken ankle.

The plaintiff argued that the rod connecting the seat to the floor was a tripping hazard, and that her injury was caused by an “accident” within the meaning of the Act.

A Notice of Motion was filed on behalf of the Airline seeking to strike out the claim on the basis that, on the allegations as pleaded, the plaintiff’s injury was not caused by an “accident” within the meaning of Section 28 of the Act, and her claim was therefore bound to fail.

It was successfully argued on behalf of the Airline that the circumstances of this injury were not unusual or unexpected, nor external to the passenger, in particular, as the metal “rod” (which was actually a seat bracket) was a normal part of the aircraft cabin.

While the plaintiff’s claim was brought under Australian legislation governing domestic carriage by air, the trigger for liability on the part of the carrier in Section 28 of the Act is almost identical to the requirements of Article 17 of the Warsaw Convention.  The Court therefore based its decision upon cases dealing with both Section 28 of the Act and the Warsaw Convention.

The Court applied the test in the well known decision of Air France v Saks (US Supreme Court), that in order to fall within the definition of “accident”, the injury must be caused by an event that was “unusual or unexpected”  and “external” to the passenger.  The Court said encountering a chair mounting or some other “passive condition”, free of any other defect, is not unusual or unexpected.  It was held to be the passenger’s own reaction to this passive condition that caused her injury, and it therefore did not fall within the definition of “accident”.  Accordingly, the Court ordered the plaintiff’s claim to be struck out and for the plaintiff to pay the airlines costs.

It remains to be seen whether the decision will be appealed.

Amber Pittlik
Simon Liddy