On 6 July 2023, the European Court of Justice (‘ECJ’) delivered a preliminary ruling concerning a request on the interpretation of Articles 17(1), 29 and 35 of the Convention of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999 (‘Montreal Convention’). The request was made in proceedings of the case of DB (‘plaintiff’) vs Austrian Airlines AG (‘defendant’), which related to a claim brought by the plaintiff seeking compensation for injuries caused by the defendant and for injuries caused and for inadequate first aid administered mid-flight.
Facts of the Case
On 18 December 2016, the plaintiff was on a flight operated by the defendant company, during which the plaintiff was scalded with hot coffee that fell off the catering trolley, following which, first aid services were administered. A few years later, on 31 May 2019, DB brought an action before the Handelsgericht Wien (‘Vienna Commercial Court’) against the defendant, in order to seek €10,196 in damages and to establish the defendant’s liability for all future damage resulting from the aggravation of his injuries due to the inadequate first aid administered.
The plaintiff claimed that the defendant was not only liable for the recklessness of its employees which led to him being injured, but also for the inadequate first aid services administered after. According to the plaintiff, since the first aid cannot be classified as an ‘accident’ within the confines of Article 17(1) of the Montreal Convention, then the case is governed by national law. Consequently, the three-year limit for bringing an action for damages had not expired, as provided for in Paragraph 1489 of the Allgemeines bürgerliches Gesetzbuch (Austrian General Civil Code) (‘ABGB’).
In furtherance of the above, Article 17(1) of the Montreal Convention provides 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’.
The defendant in its rebuttal claimed that they did their utmost and properly treated the injuries sustained by the plaintiff and that since the Montreal Convention was applicable in this case, the two-year limit described in Article 35(1) thereof, had expired. The Vienna Commercial Court dismissed this action in its judgement of 17 June 2020, which was subsequently confirmed on appeal by the Oberlandesgericht Wien (‘Vienna Higher Regional Court) on 28 October 2020, which confirmed that the injuries sustained by the plaintiff resulted from an ‘accident’ as defined under Article 17(1), even though such injuries might have been mitigated or avoided had the plaintiff received proper first aid. The court therefore held that the action brought by the plaintiff fell within the scope of the Montreal Convention and the time limit of two years under Article 35(1) had expired as brought forward by the defendant.
The plaintiff appealed the decision of the Oberster Gerichtstof (‘Austrian Supreme Court’) on a point of law, whereby he claimed that the first aid administered on an aircraft is not covered under Article 17(1) of the Montreal Convention and therefore, the convention was not applicable in this case, and that the limitation as provided for in Paragraph 1489 of ABGB applied.
According to the Austrian Supreme Court, the concept of ‘causation’ under Article 17(1) supports the thought-process that the jug of coffee falling on the plaintiff and the first aid administered form part of one and the same ‘accident’ under the aforementioned article of the convention. The same court held that, if the ‘single accident’ approach were to be adopted, the plaintiff’s claim for damages would have been time-barred via Article 35(1) of the convention, which states that ‘the right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped’. However, the court did not completely rule out the idea of these events being independent from one another and asked the ECJ for a ruling on this point.
The Austrian Supreme Court remained uncertain, in light of Article 29, if an action for damages may be brought under national law for damages caused to a passenger by the administered first aid. Such court held that such a claim can be brought under national law only if the convention were to be understood as not covering bodily injuries sustained by a passenger on board an aircraft where no accident took place, as an independent harmful event.
In the abovementioned circumstances, the Austrian Supreme Court stayed the proceedings and referred the following questions to the ECJ for a preliminary ruling:
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- Can first aid which is administered on board an aircraft following an accident within the meaning of Article 17(1) of the Montreal Convention and which leads to further bodily injury to the passenger which can be distinguished from the actual consequences of the accident to be regarded, together with the harmful event, as a single accident?
- If the above question is answered in the negative, in that they are not to be considered as a single accident – Does Article 29 of the Montreal Convention preclude a claim for compensation for damages caused by the administration of first aid where that claim is brought within the limitation period under national law but outside the period for bringing actions which is laid down in Article 35 of the convention?
Considerations of the Court
In regard to the first question posed by the Austrian Supreme Court, the ECJ made reference to Article 3(1) of Regulation No. 2027/97 as amended by Regulation No. 889/2002, whereby the liability of an EU air carrier in respect of passengers is to be governed by the relevant provisions of the Montreal Convention. Pursuant to Article 17(1) of the Montreal Convention, the air carrier is to be held liable for damage sustained in case of death or bodily harm of a passenger only if the accident which caused the death or injury took place on board the aircraft or during the process of embarking or disembarking.
When considering the concept of an ‘accident’, the ECJ held that it is not always possible to attribute the occurrence of damage to an isolated event where that damage is the result of a series of interdependent events. Therefore, within the meaning of Article 17(1), where a set of intrinsically linked events taking place in succession uninterrupted, they are considered to constitute a single ‘accident’ and the ECJ held that the falling of the coffee jug injuring the plaintiff and the administering of first aid are to be considered as a single ‘accident’.
By restricting the concept of an ‘accident’ by means of Article 17(1), passengers are able to be compensated easily without imposing a huge burden on aircraft carriers. In light of the above, the ECJ held that the answer to the first question was that the inadequate first aid administered to the plaintiff, along with the event that caused the bodily injuries, are to be regarded as forming part of that same ‘accident’. It was also held that the notion that “subpar” medical attention broke the chain of causation linking the accident to the injury, was rejected.
As for the second question, this did not require any examination since the first question posed by the Austrian Supreme Court was not answered in the negative.
Preliminary Ruling delivered by the ECJ
The ECJ ruled that Article 17(1) of the Montreal Convention must be interpreted as meaning that the inadequate first aid administered by the defendant airline company to the plaintiff, which ultimately aggravated his bodily injuries caused by an ‘accident’, within the meaning of such provision, must be regarded as forming part of that one same accident.
Author: Gabriel DeBono
Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgment being covered in this law report. This article was first published in The Malta Independent on 17/01/2024.