Up in the air?

In the past year, flight turbulence has been brought into focus, largely given the prominence of Singapore Airlines SQ321 from London Heathrow to Singapore Changi in May 2024. A Boeing 777-300ER encountered 19 seconds of severe turbulence, leaving more than 100 passengers and crew requiring hospital assistance. One British passenger died.

The incident is not the only one newsworthy over the past few months. In November 2024, turbulence on a Lufthansa flight from Buenos Aires to Frankfurt left 5 passengers and 4 crew injured and, in January 2025, United Airlines Flight UA613 from Lagos to Washington Dulles encountered severe turbulence. Nearly 40 passengers and crew were injured, 6 seriously.

Despite this, there is no clear consensus as to the damages which may be recoverable when turbulence impacts a flight.

Readers are likely familiar with the applicability, scope, and exclusivity of the Montreal Convention (“the Convention”), which applies to many aviation claims, but the following provisions are particularly relevant as regards this article:

Article 17(1)

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.

Article 20

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…

Article 21

1. 1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
   2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 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

The phrase “accident” as referenced in Article 17(1) takes us out of the typical remit of the tortious duty, breach, and causation questions. Under the Montreal Convention, an “accident”, has been defined an “unexpected or unusual event or happening that is external to the passenger.” Such a definition is to be applied flexibly but an incident will not be deemed an accident “when an injury indisputably results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft.” (Air France v. Saks [1985] 470 US 392).

Turbulence is, in many ways, a normal and expected operation of the aircraft. How, then, could it be an “accident”?

It is not possible to say, as a blanket rule, that turbulence will/will not constitute an accident. In Future v. Hawaiian Airlines Inc (a 2022 case in the Hawaii District Court), the Court ruled on the Defendant’s application for summary judgment (the test being whether there was the “absence of a genuine issue of material fact”). The Defendant had argued that the turbulence could not be an “accident”. The Defendant highlighted that there was nothing unexpected about turbulence preceded by a warning.

The Court found that such matters were always going to be fact specific – it was not the case that turbulence – even if light – would always be “exempt from the definition of accident.”

The Court also commented on flaws in the Defendant’s argument that the Plaintiff’s failure to fasten his seatbelt was an internal reaction to the turbulence, highlighting (amongst other things) that damage to the aircraft itself occurred.

It seems probable that turbulence severe enough to cause injury will be deemed an accident, presuming there is nothing specific about a passenger’s individual state such as to render a reaction to turbulence in particular. If categorisations about the strength of turbulence are required, parties may wish to refer to the Appendices of EU Regulation 923/2012 (much of which is now assimilated law) for broad definitions as to what constitutes moderate, and severe turbulence.

Assuming then, that an Airline finds itself in a position where turbulence has been, or may be deemed, to constitute an “accident.” Might it be exonerated as a result of passengers’ contributory negligence? There is rather a dearth of case law regarding turbulence, certainly within this jurisdiction, but three interesting decisions arise.

In Chisholm v. British European Airways [1963] 1 Lloyd’s Rep 626, the plaintiff had gone to visit the bathroom when the aircraft suddenly dropped in altitude. She was thrown across the floor and sustained a fractured ankle. The plaintiff accepted there had been a general warning of adverse flying conditions and an announcement that passengers should fasten their seat belts, but that nobody had warned her specifically to remain in her seat, or of the risk if she did not.

The issue here was not in relation to the flying or routeing of the aircraft but instead the actions taken by the cabin crew when it became clear the aircraft would experience turbulence. Evidence given by one of the Defendant’s witnesses addressed their safety policies but also highlighted that crew did not wish to go too far in emphasising the potential severity of turbulence so as not to alarm the more apprehensive passengers. The Court ultimately found no negligence on the part of the Defendant, allowing full exoneration of its liability under what was then Article 21.

By way of slight contrast, in Goldman v. Thai Airways International Ltd (1981) 170 ER 266, the Court took the view that “to say that a person who takes his seat belt off during some time throughout a very long flight… in order to go to the lavatory or to go back and talk to some friend that he has got two or three rows back in the aircraft, or whether he has got cramp in his legs and wants to stretch, is acting in a contributory negligent manner seems to me to be an impossibility.”

That said, Claimants may wish to bear in mind that the Defendant in Goldman successfully appealed (albeit not on that precise point). 

Outside the jurisdiction, in 2019, and more in keeping with Chisholm, the 11^th Circuit Court of Appeal upheld the finding of a US jury. In Quevedo v Iberia lineas Aereas (811 Fed Appx 559), the plaintiff had been found 99% contributorily negligent for failing to fasten her seatbelt – despite a recommendation from crew that passengers kept their seatbelts fastened at all times. The Airline had a policy in place to ensure seatbelts were checked (and, if necessary, to wake passengers or move their clothing for confirmation) but in this case, the passenger’s seatbelt had appeared buckled and tightened. Turbulence hit, and the passenger was severely injured, as was a member of cabin crew who unbuckled himself in an attempt to secure the passenger. Perhaps of particular relevance when the finding of contributory negligence was made was the fact that the only two injured were the plaintiff and member of cabin crew not wearing their seatbelts.

Contributory negligence will always be a matter of degree. It seems rather a common-sense approach, as the first-instance Judge noted in Goldman, that a passenger on a long-haul flight might occasionally leave their seat. However, a passenger remaining in their seat without their seatbelt secured may be deemed contributorily negligent, and particularly so if a warning about turbulence had been made during the flight.   

If Airlines are found liable in some respects, they will wish to limit their liability as much as is possible under the Convention. As of December 2024, Article 21 has been amended so carriers shall not be able to limit liability for proven injury below 151,880 SDRs (approximately £159,460 at the time of writing). For damages over and above that, Airlines in turbulence claims may well wish to rely on Article 21(2).

One factor which may be relevant is the type of turbulence in question. That arising from thunderstorms, or wake turbulence from other aircraft, should be easier to predict and, where possible, avoid. In contrast, clear air turbulence (“CAT”) can be unexpected not just in its presence, but its severity. Airlines wishing to rely on this may, however, need to accept that running an argument about the ‘unexpected’ nature of CAT might be deemed a concession as to the existence of an ‘accident.’  In any event, expert evidence will be needed in showing the type and severity of turbulence, especially if an Airline hopes to show it was unavoidable.

Airlines may also seek to ensure that appropriate announcements are given in safety briefings prior to and during the flight. Additionally, policies should be in place so that seat belt signs are switched on as necessary, and crew members take steps to check passengers’ compliance.

Airlines in this jurisdiction may also wish to bear in mind that it seems to remain unlikely that damages for pure psychiatric injury are recoverable (notwithstanding the CJEU decision in BT v. Laudamotion GmbH (C-111/21) which, notably, took place after exit day). Anxiety from a bumpy flight, nerves due to an elevated heart rate, or PTSD from seeing other passengers injured during turbulence, as standalone injuries, ought not to be recoverable. Similarly, even for passengers who suffered bodily injury, damages for psychiatric harm should not be awarded if such psychiatric harm flows from the accident and not the injury itself.

More guidance may be provided by the Courts in due course, not least as it is thought turbulence will become more commonplace over the coming years. Passengers should be sure to comply with in-flight safety briefings to avoid findings of contributory negligence slashing an award for damages. Airlines will need to take steps to, at the very least, ensure they cannot be deemed negligent, but ideally to avoid turbulence as much as is possible.