Interpreting “Accident” in Article 17 of the Montreal Convention

In 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 passenger”.”

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 injury.”

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 visibility.”

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.