In Prosser v British Airways Plc  EW Misc the Claimant was unsuccessful in his claim for damages arising from an injury suffered as a result of sitting next to a passenger of large stature on the Defendant’s aircraft.
THE RELEVANT TEST
The relevant test was:
- that the claimant suffered injury;
- as a result of an accident;
- which took place on board an aircraft.
Here the Claimant failed on the second limb as the judge determined that no ‘accident’ had taken place. This decision was based on the particular facts of this case and shouldn’t necessarily be a total barrier to a claimant in slightly different circumstances being successful.
THE CLAIM UNDER THE CONVENTION
The claim was brought pursuant to the provisions of the Montreal Convention 1999 Article 17 which provides:
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 relevant test for liability was set out by Lord Scott in Deep Vein Thrombosis and Air Travel Group Litigation  1 AC 495:
The requirements of liability are, first, that the passenger has suffered a bodily injury […], second, that the bodily injury has been caused by an “accident” and, third, that the accident took place on board the aircraft (or in the process of embarkation or disembarkation).
In this case it was admitted that the third limb of the test was satisfied. The court therefore had to determine whether the Claimant had suffered an injury and whether it was as a result of an accident.
Whilst there was some criticism of the manner in which the Claimant gave his evidence on the point, the court was satisfied that he suffered an injury, namely a soft tissue injury to the lumbar spine which exacerbated a degenerative injury. The first limb of the test was therefore made out.
NO ACCIDENT AS DEFINED BY THE CONVENTION
The claim failed on the second limb, namely whether the injury was caused by an accident. The court adopted the definition of “accident” from the decision of Connor J in the US Supreme Court in Saks v Air France 470 US 392
An unexpected or unusual event or happening that is external to the passenger
The claim was premised upon the ‘encroachment’ of the neighbouring passenger into the Claimant’s seat. The court heard evidence from the Claimant and from the Defendant’s employee, the flight attendant who dealt with the Claimant’s complaint during the flight. The evidence of the Defendant’s witness, namely that there had been no encroachment, was preferred on the basis that:
I have formed the conclusion that the likelihood is that Mr Prosser simply did not wish to come into bodily contact with his neighbouring passenger, a risk that was heightened owing to his neighbour being of a large stature. It may be that this caused him to sit in an awkward manner, however his sitting position was not forced upon him by there being any physical encroachment upon his seating area. Alternatively, there is a very real prospect that the injury was simply caused by Mr Prosser’s apparent reluctance to mobilise whilst upon the flight. He is a man with a pre-existing back injury. One that Mr Evans agreed, could have been exacerbated by sitting in a normal position for long periods of time.
Ultimately the claim here failed because of the factual findings about how the Claimant sat during the flight and the fact that this could not be termed an ‘accident’. This wouldn’t necessarily preclude a successful claim in circumstances where the factual matrix was different.