In this article Christopher Loxton analyses the recent judgment of HHJ Saunders in Wuchner v British Airways (July 2024). A case that an examined the interplay between Article 20 (contributory negligence) and Article 21(2) (limits on damages) of the Montreal Convention.
Wuchner v British Airways PLC, Central London County Court, Claim no. F22YY049, 3 July 2024 (HHJ Saunders)
In a recent case concerning a fall at a boarding gate, His Honour Judge Saunders gave useful guidance as to the operation of Articles 20 and 21 of the Montreal Convention concerning contributory negligence and the damages cap on liability.
The claim arose out of a slipping accident which occurred on 11 November 2017, when the Claimant slipped on a spillage of Baileys liqueur in a boarding gate area at London Heathrow Airport. He alleged he sustained serious injuries, although the extent of those injuries is to be the subject of a future quantum trial.
BA admitted that the Claimant had slipped over, and that an accident had occurred within the meaning of article 17(1) of the Montreal Convention, but contended that the fall was solely or partially due to the Claimant’s own carelessness relying on Article 20. BA also invoked the limitation of damages limit/cap set out in Article 21(2).
The Articles in question
Article 20 provides:
‘If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21.’
Article 21(2) reads:
‘The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 113,100[1] Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.’
Facts
Having heard evidence from the Claimant, and two of BA’s staff who had manned the boarding gate in question, HHJ Saunders made the following findings:
- The Claimant had slipped and fell, whilst carrying four coffees in a tray under his left thumb, whilst carrying a carry-on bag in his left hand. In his right hand, he was carrying a mobile phone and another carry-on bag.
- BA’s boarding gate staff had been aware of the spillage prior to the Claimant’s fall and, in accordance with BA’s protocols, had telephoned the airport operator to arrange the attendance of a cleaner but had been unable to obtain an answer.
- The Claimant had placed himself under considerable pressure in being late for the plane, and that this was a contributory factor in the mechanics of the accident. He had placed himself in a ‘vulnerable position’ and was conscious that he had to catch the plane and that his colleague was waiting for him at the boarding gate.
- The Claimant therefore contributed significantly to his own downfall by leaving himself almost no time to catch the flight, which could have been avoided, and placed himself in a position whereby he could not give sufficient attention to his actions, coupled with the fact that he appeared to have been substantially overloaded. That meant he was not able to adapt to the situation and contributed to the accident accordingly.
- The Claimant failed to look where he was going or to notice the spillage when moving towards the boarding gate.
- The Claimant moved too quickly towards the boarding gate because he was rushing to avoid missing the flight; and/or the Claimant failed to pay attention to or respond to one of the BA’s staff members warning to him of the spillage.
- By reason of the above facts, the Claimant was 20% contributory negligent to the circumstances of the accident and therefore BA was partially exonerated from liability to the Claimant pursuant to Article 20 of the Montreal Convention.
- BA were 80% responsible of the accident at it have should expected (and would be familiar) with the concept that passengers are frequently late for their flights – this is a ‘normal everyday occurrence which BA and other airlines experience’ – and whatever the delay between the spillage being identified and the accident occurring, it was incumbent on BA’s staff to ‘protect the area’ around the spillage, or to re-route any passengers as soon as it was discovered. It was not enough to simply call cleaners employed by Heathrow Airport for them to attend and clear the spillage (who had not arrived in time before the accident).
Whilst HHJ Saunders was clearly at liberty to arrive at conclusion (8), it was arguably obiter dictum because whether BA was negligent / at fault for the accident has no relevance to whether an accident occurred (within the meaning of Article 17(1)), and only tangential relevance to whether the Claimant was at fault. In other words, had BA’s staff not noticed the spillage prior to the Claimant’s fall, an accident would likely still have occurred (because the fall would have been ‘an unexpected or unusual event or happening that is external to the passenger’[2]). The only question would then have been how responsible the Claimant was for the accident.
Findings of fact as to a carrier’s responsibility for an accident are highly relevant, however, where Article 21(2)(b) of the Convention is relied upon, namely where the carrier seeks to prove that the damage complained of ‘was solely due to the negligence or other wrongful act or omission of a third party’. In this case, it was not BA’s case that the accident was solely due to the actions of a third party (e.g. the airport operator).
The legal issues
Having made the above findings of fact, HHJ Saunders was required to resolve the following legal issues:
- Whether BA’s liability for damages was limited to no more than 113,100 Special Drawing Rights (“SDRs”)[3] pursuant to Article 21(2).
- If the answer to (1) was ‘Yes’, whether any deduction for contributory negligence falls to be applied to (a) the value of the claim as limited under Article 21(2), or (b) the total notional value of the claim (i.e. without regard to any such limit).
As the Judge himself commented[4], given the purported value of the claim (in excess of £5 million), whether the claim was limited and how a deduction should be applied to the limited claim, or without consideration of the limit, was ‘highly important’.
The Judge was also originally to have decided what the applicable date was for the conversion of SDRs into pound sterling for the purposes of entering any judgment on the claim. However, by the time of the trial the parties had agreed that the conversion date would be the date at which quantum was determined (whether by judgment or settlement), since the Claimant’s losses crystallised on that date.
In relation to the first issue, the Judge commented that there was no definition of in the Convention of the phrase ‘negligence or other wrong act or omission’ found in Article 21(2). He therefore held that it was for national courts to interpret these terms under their respective choice-of-law rules, in this case English law principles.[5]
The Judge noted the distinction in Article 21(2) between ‘the carrier or its servants or agents’ on the one hand, and ‘a third party’ on the other. Relying on Mather v easyJet Airline Co Ltd [2023] CSIH 8, a decision of the Scottish Court of Session (First Division, Inner House), the Judge found, unsurprisingly, that BA’s employees fell within the definition of ‘the carrier or its servants or agents’.
It is unclear why it was felt necessary to decide the above point, particularly when the Judge made no findings (and appears not to have been asked) as to whether Heathrow Airport’s cleaners would have constituted agents of BA. This was, perhaps, to be expected though given the absence of any findings that London Heathrow’s acts/omissions caused or contributed to the accident.
As the Judge found that BA was 80% responsible for the accident, and the Claimant was only 20% responsible, he held that the damages cap in Article 21(2) did not apply[6].
Although the Judge was not required to answer the second issue in light of his conclusions on the first issue, he went on to consider it, namely whether the 20% deduction for contributory negligence should be made to the total of recoverable damages (as the Claimant argued), or upon the total damages available under the damages cap (as BA argued).
On the Claimant’s argument, quantum would have been calculated as follows:
- £5 million less 20% contributory negligence, limited to 131,100 SDRs (approximately £140,000[7]) = £140,000
On BA’s argument, quantum would have been calculated thus:
- £5 million, limited to £140,000 less 20% contributory negligence = £112,000
Referring to the limited academic commentary[8] on the issue (and in the absence of any authority), HHJ Saunderson favoured the Claimant’s argument and held[9] that the deduction for contributory negligence should be made from the total, not the total subject to the damages cap. He explained that this view would ‘be consistent with the combination of my reading of the effect of the totality of Articles 17, 20 and 21(2)’[10].
Comment
Whilst the case provides helpful guidance on the application of Article 20, and the Montreal Convention generally, it is highly questionable whether the (obiter) conclusion on when Article 21(2) applies is correct.
The effect of the conclusion is that even where a claimant is, for example, found 50% responsible for an accident, provided the quantum of their claim proved up to the damages limit/cap, they can recover damages up to that limit in full. That cannot be right or fair as it means the claimant’s culpability has no impact on the amount s/he recovers.
The decision is also contrary to the text of Article 20, which ends with the sentence: ‘This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21’. The drafters therefore explicitly intended that findings of contributory negligence be applied to quantum after the application of Article 21.
In the author’s view, the correct position is that a finding of contributory negligence is simply applied after a determination as to the value of the claim. In other words, if a claimant is only found to be entitled to damages up to the SDR limit/cap – because the carrier has proved that the damage was not due to its negligence or wrongful act/omission and/or the same was solely due to the negligence or wrongful act/omission of a third party – then the percentage finding of contributory negligence is then applied to that SDR limit/cap. On the other hand, if a claimant is found to be entitled to damages in excess of the SDR limit/cap – because the carrier has not proved the Article 21(2) defence – then the percentage finding of contributory negligence is applied to whatever damages are found to have been proved (above the limit).
In other words, had the Claimant in this case proved his entitlement to £5 million, and the SDR limit did not apply, he would be entitled to £4 million. However, if it had been found that the damages cap under Article 21(2) applied then he would be entitled to £112,000 (140,000 less 20% contributory negligence). Either way, the finding of contributory negligence “bites”.
Put another way, if:
- Claimant A is found to be entitled to damages that amount to being 1 SDR (or the currency equivalent) under the 131,100 SDR-limit (and therefore Article 21(2) does not apply), but is found to be 50% contributory negligence; and in another case
- Claimant B is found to be entitled to 1 SDR over the amount of 131,100 SDRs, but is also found to be 50% contributory negligence;
those same findings of contributory negligence cannot be applied differently to each claimant, otherwise it would produce absurd and unfair results: Claimant A would only be entitled to 65,549 SDRs and Claimant B would be entitled to 131,100 SDRs, and yet the quantum of their claims were only found to differ by 1 SDR. The more logical and fairer outcome would be that Claimant A would be entitled to 65,549 SDRs and Clamant A would be entitled to 65,555.50 SDRs.
Whilst the judgment is one from a highly respected circuit judge, with substantial experience of aviation and travel claims, its impact on this second issue is likely to be limited given it was obiter and would not constitute a binding legal precedent in any event.
We watch this space for any future English judgment that provides guidance on the meaning of “agent” versus “third party” in Article 21(2), so as clarify if and what acts / omissions of an airport operator (providing cleaning services for example) might provide a defence to carriers under that Article.
[1] Now 128,821 SDRs by virtue of The Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2021 but this was not in force at the time of the accident or the issue of the claim.
[2] As defined in Air France v Saks, 470 U.S. 392, 405 (U.S. 1985, United States Supreme Court), and followed in re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495.
[3] SDRs being an artificial currency instrument created by the International Monetary Fund (IMF), the value of which are calculated from a weighted basket of major currencies, including the U.S. dollar, the euro, Japanese yen, Chinese yuan, and the British pound.
[4] At [78].
[5] Relying on the practitioners’ text The Montreal Convention: A Commentary, 2023, Elgar Commentaries, Ed. Leloudas et al, at paragraph 21.33, and Silverman v Ryanair DAC [2021] EWHC 2955 (QB).
[6] At [121].
[7] Applying exchange rates at the time of writing.
[8] Drion “Limitation of Liabilities in International Air Law” (1954); The Montreal Convention: A Commentary; and Saggerson on Travel Law, 2022, 7th Ed.,Wildy, Simmonds & Hill, Ed. Chapman KC et al.
[9] At [131].
[10] Ibid.
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