October 2012, we reviewed the Ontario Superior Court of
Justice's decision in Gontcharov v. Canjet, 2012 ONSC 2279.
The Gontcharov decision affirmed the Ontario court's
alignment with the U.S. approach to interpreting the word
"accident" in Article 17 of the Montreal
Convention. Citing the U.S. Supreme Court decision in Air France v. Saks, 470 U.S. 392, 105
S. Ct. 1338 (1985), Ontario's Justice J. Wilson stated, at
para. 47, "The term "accident" used in art. 17 of
the Convention has been consistently interpreted to mean "an
unexpected or unusual event or happening that is external to the
In January 2015, the U.S. District Court (S.D. Florida) released
its decision in Vanderwall v. United Airlines, 2015
WL 309094 (S.D. Fla.). The Court similarly followed Saks for its
interpretation of "accident", noting that "not every
incident or occurrence during a flight is an accident within the
meaning of Article 17 even if the incident gives rise to an
The Plaintiff, Ms. Vanderwall, slipped and fell on a piece of
plastic during a flight from Houston, Texas to London, England.
About an hour or so prior to arrival, Ms. Vanderwall left her seat
to use the washroom, and slipped while walking back to her aisle.
She tore a ligament in her knee during the fall. The Defendant,
United Airlines, filed for summary judgment.
At trial, the central factual argument was whether it was
"unexpected or unusual" (i.e., an "accident")
for there to be trash or debris, including plastic items, on the
cabin floor and in the aisles during a transatlantic flight. United
led evidence that it was common for trash to be dropped on the
aircraft floor by passengers, and that their in-flight service
teams did not remove it within a specified timeframe. The
Plaintiff's witnesses agreed that flight attendants were not
janitors, and should not be expected to clean up "every scrap
of paper, plastic, crumb, or other refuse, no matter its size or
The Court concluded that the facts established that the cause of
Ms. Vanderwall's injuries was not an "accident". The
Court accepted that after a few hours, it should be expected by
passengers that there would be a certain amount of refuse on the
cabin floor of an aircraft.
American decisions such Vanderwall are of assistance to
Canadian courts grappling with what constitutes an
"accident" in a Montreal Convention case. There
are few reported Canadian decisions that engage with this question,
and several of those arguably fall clearly on one or the other side
of the "accident" line. For example, the Court in Ashad v. Deutsche Lufthansa, 2009
CanLII 64820 (ONSC), held that it was an "accident" when
a passenger was served a fruit bowl containing shredded glass,
which he consumed, leading to injury. Conversely, in McDonald v. Korean Air, 2002 CanLII
3901 (ONSC), an airline's failure to warn a passenger of the
possibility that he might suffer from deep vein thrombosis was not
an "accident", as it did not constitute and unusual or
unexpected event external to the passenger. In cases that are not
as clear cut, Canadian courts can, and do, frequently turn to U.S.
jurisprudence to aid their decision-making.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).