Airlines are subject to a unique blend of national and
international laws. Among the most interesting questions arising
from this milieu is what the word "accident" means. This
is important since, if a person is injured on board an aircraft and
no "accident" has occurred causing the injury, the
airline cannot be held liable.
Canada signed the 1999 Montreal Convention (designed to
update the 1929 Warsaw Convention, to which Canada also
belongs) which provides at Article 17 that:
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.
This wording resembles that in the Warsaw Convention,
allowing older cases under the Warsaw Convention to inform
interpretation of the Montreal Convention.
The 1985 United States Supreme Court judgement in Air France
v. Valerie Hermien Saks is the leading decision on the meaning
of "accident." In Saks, the Court determined
that it must be the accident that occurs that causes the
injury for an airline to be liable. To clarify, injury
must be "... caused by an unexpected or unusual event or
happening that is external to the passenger." The Court
explains this definition is to be flexibly applied, considering all
of the surrounding circumstances.
Given the judgement in Saks, it seems and accident is
something "unusual" or "unexpected."
Canadian Courts followed the American lead. In two
cases related to turbulence, the 1994 decision in Rena Ann
Quinn v. Canadian Airlines International Ltd. and in 2001,
Koor v. Air Canada, the Courts determined that the
plaintiffs who suffered injury during turbulence were not
entitled to compensation since the turbulence was not severe enough
to be called "unusual."
What About Omissions?
Until recently, unlike in tort law, omissions did not seem to be
enough to cause liability. In the 2002 Ontario case McDonald v. Korean Air, the
plaintiff, McDonald, contracted deep vein thrombosis and was
hospitalized for 11 days. McDonald claimed the airline was
negligent, as it did not inform him of the risk of DVT associated
with long flights, and that this failure to warn was an
"accident" under Article 17. The Court held that:
... in not advising passengers of the risk they assume, an
airline may be negligent, but this negligence is not in itself an
accident within the meaning of Article 17 in the sense
that the DVT sustained by the passenger is not linked to an unusual
and unexpected event external to him as a passenger.
This decision was upheld at the Court of Appeal, and leave to
appeal to the Supreme Court of Canada was denied.
What "Accident" Means in Canada
Given the weight of case law above, "accident" in
Canada seems to mean an "unusual or unexpected event or
happening" taking into account the specific circumstances.
Until recently, case law indicated that an accident could not be
merely an omission to do something. A positive event or action had
to occur. Airlines must be conscious, however, of a trend in the
jurisprudence making airlines liable for omissions.
McCarthy Tétrault Notes
While airlines have until recently been sheltered from liability
stemming from omissions, this is changing. In the 2004 American
decision in Husain v. Olympic Airways the passenger was
allergic to cigarette smoke. The flight attendant refused to move
the passenger away from the smoking section. The passenger died,
and Olympic Airways was held liable. The United States Supreme
The distinction between action and inaction (...) would perhaps
be relevant were this a tort law negligence case. But (the airline)
vigorously rejects that a negligence regime applies under Article
17 of the Convention. The relevant "accident" inquiry
under Saks is whether there is an "unexpected or
unusual event or happening."
While ultimately determining that it did not have jurisdiction
to decide the matter, the Ontario Superior Court followed
Husain in the 2010 case Balani v. Lufthansa German Airlines
Corp. The Court decided Lufthansa's refusal to provide
a wheelchair was sufficient to found liability, after a passenger
fell and sustained injuries.
In short, recent case law puts airlines on notice that there is
a movement in Canadian interpretation of the Montreal Convention to
assign more liability to airlines. The effect is to impose a
positive, tort-like duty upon airlines.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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