Traditionally, an accident within the meaning of the Warsaw and Montreal Conventions is defined by the Supreme Court in France as a sudden and unexpected event external to the passenger, consistently with the approach of the US Supreme Court in Saks v Air France; it is on this condition alone that a carrier's liability is engaged with regard to injuries sustained by a passenger.
On 23 June 2011 the French Supreme Court, in a case concerning a claim in which the passenger alleged flying had caused a deep vein thrombosis, confirmed that an accident must be "an event external to the passenger". This was not the case in this instance, the cause of the thrombosis remaining unknown. The Supreme Court specified on several occasions that the passenger must provide proof that the conditions for an accident were satisfied.
Although the Supreme Court seems to be holding to its position, which has been well-established for a long time, this position has met with some resistance from the lower courts of first instance and appeal, which often find it too severe with regard to the passenger as "victim".
It is important to clarify that French law is, generally, very favourable towards victims of bodily injury and is tending more and more towards a regime of automatic compensation and victims' rights through the creation of particular compensation regimes (for example, Law Number 85-677 regarding road accidents and Article 1386 of the Civil Code regarding defective product liability), whilst various defences are progressively being precluded by debatable interpretations of the rules of law. The guiding line seems to be: the victim has the right to be compensated and nothing, even the rule of law, can be done to oppose it. By way of example, several decisions have held the SNCF (France's national state-owned railway company) liable merely due to the fact that an injury occurred aboard a train, without the link between the transport and the injury being established.
Consequently, certain judges show real reticence in the face of carriers' defence arguments since they perceive the arguments to be highly suspect as they go against current thinking. The rule that only a sudden and unexpected external event can engage the liability of the carrier, which it is for the passenger to prove, falls into this category.
It is thus that certain recent decisions from the courts in France can be explained, starting with the decision of the Paris Court of Appeal on 21 September 2009 which was quashed by the Supreme Court on 23 June 2011 in its judgment mentioned above. In its decision, the Paris Court of Appeal proceeded to reverse the burden of proof, stating that there had been an accident as the carrier had been unable to prove that the thrombosis was due to the victim's previous state of health.
The Court of Appeal may have learnt a lesson from the Supreme Court order of 23 June 2011 as, on 22 February 2012 (in the case of Bomandouki v Air France), it quashed an interim order by the Paris Court President allowing a payment to a passenger who had been injured in a fall in an aircraft aisle, but who had cited no particular event as the cause of the fall. The Court admitted that the absence of an accident within the meaning of the Convention constitutes a serious argument against the passenger's request for an interim payment, and an interim payment can only be granted when there is no serious argument against the request. Conversely, the Paris Court President had decided that the carrier's obligation to indemnify the passenger was indisputable.
Sometimes, the judges' reticence to apply the rules of the Convention is hard to comprehend. Thus, in a judgment of 12 October 2011 in a case where a passenger fell in an aircraft (Merah v Aigle Azur) the Rennes Court of Appeal found that there had been an accident. The justification for this decision:
"Since it is not alleged that Mr Brahim Merah was the victim of a fit of dizziness leading to his fall and as, accordingly, not the slightest evidence was produced to prove this hypothesis (the majority of the judicial decisions submitted by the appellants were submitted for discussion before reaching a decision on the grounds), it cannot seriously be denied that the fall inevitably resulted from a sudden and unexpected external event, namely:
- the collision with an obstacle fixed to the floor or a trip/ slip brought about by some movement or other of the foot leading to a loss of balance
- the general effect of the universal law of gravitation when it comes to a fall following a disturbance in the body's balance point, whether due to a natural position or prompted by a weight shifting the centre of gravity; an external fact the start of which is unexpected and always leads to a body's fall which, out of clumsiness, finds itself in a position of imbalance
It therefore cannot be alleged on the basis of the pure facts discussed that Mr Brahim Merah was not the victim of an accident within the meaning of Article 17 of the Montreal Convention: his fall, whether it originated from a material obstacle or a clumsiness whilst moving, is the consequence, on the ground, of a physical law that was external to him, which is insurmountable and would immediately punish any clumsy person."
The original French version is itself difficult to comprehend. It seems to state that since the passenger was subject to the physical laws of gravity, his fall was an event external to him. Naturally, an appeal before the Supreme Court has been filed against this decision.
However, the judges in the lower courts do sometimes apply the rules of the Convention scrupulously and with all necessary rigour. For example, the Court of Bobigny in its decision in Guereiro v Air France on 16 November 2011 (which has not been appealed) rejected the submissions of a passenger who claimed that she had tripped over the gap between the aircraft and the footbridge. The Court, agreeing with the carrier's submissions, stated that the passenger had not provided proof of an unusual gap between the footbridge and the aircraft and had therefore not provided the necessary proof of a sudden and unexpected external event constituting an accident in order to engage the carrier's liability.