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22 December 2010
A recent decision from the Superior Court of Justice in Ontario(1) expanded on the interpretation of an air carrier's liability for an 'accident', as contemplated by Article 17 of the Warsaw Convention.
The plaintiff purchased a return ticket in India for a flight from New Delhi to Toronto via Frankfurt. She alleged that, during the flight but before arrival in Toronto, she had requested that Lufthansa should provide a wheelchair on arrival. The carrier was alleged to have not made these arrangements and, as a result, the plaintiff was required to walk from the aircraft to the terminal. When she encountered an escalator inside the airport, she fell and injured herself. She commenced an action in Toronto.
Lufthansa brought a motion to dismiss the claim on the basis that the court did not have jurisdiction over the action pursuant to Article 28(1) of the convention. At issue was whether the suit fell within a cause of action provided for under Article 17 of the convention.
The law in Canada is unclear as to whether the convention must explicitly provide a remedy for harm suffered in order for it to apply ('weak exclusivity') or whether all actions arising from carriage by air are governed by the convention, regardless of whether a remedy is available under it ('strong exclusivity').
The plaintiff took the position that the accident occurred in the terminal where she fell. Lufthansa argued that the accident took place either on board the aircraft or in the course of the plaintiff disembarking.
Definition of Article 17 'accident'
The motions judge considered and applied the US Supreme Court's decision in Air France v Saks(2) which defined an Article 17 'accident' as an "unexpected or unusual event or happening that is external to the passenger".
The motions judge also held that the Supreme Court's decision in Olympic Airways v Husain(3) should be applied for the proposition that inaction by an air carrier could amount to a link in the chain of causation which results in injury or accident within the meaning of Article 17.
In Husain the court held that the carrier's unusual and unexpected refusal to assist a passenger, by failing to move a passenger with a severe allergy to cigarette smoke from the smoking section, was a link in the chain of causation which resulted in injury and that therefore the omission amounted to an accident under Article 17.
In the case at bar, the motions judge noted that the claim, as pleaded, fell within the meaning of an Article 17 accident as the allegations made against the carrier included a failure to obtain or provide a wheelchair for the plaintiff during the course of the flight and at the time that she left the aircraft after its arrival in Toronto.
The motions judge concluded that the place of the alleged injury-causing event or accident (the failure to provide the wheelchair) had been either on board the aircraft or, alternatively, after it arrived in Toronto but before the plaintiff left the aircraft or the gate. The judge therefore rejected the plaintiff's argument that it was necessary to apply the three-part test from Day v TransWorld Airlines Inc(4) in order to determine whether the plaintiff had been in the course of embarking or disembarking the aircraft within the meaning of Article 17.
Article 28(1) base for jurisdiction
Having found that the convention provided the exclusive remedy because the incident fell squarely within Article 17, the motions judge went on to consider the four Article 28(1) bases for jurisdiction, which include:
Relying on Ashad v Lufthansa,(5) the court found that Lufthansa is ordinarily resident and has its principal place of business in Germany.
Having further found that the contract had been formed in India and that India had been the final destination, the motions judge concluded that none of the four bases pointed to Ontario as the proper jurisdiction for the claim.
The action against Lufthansa was therefore dismissed. Moreover, claims brought by the passenger's husband and son - which had been brought pursuant to the Family Law Act and were derivative in nature - were also dismissed.
The decision has been appealed to the Ontario Court of Appeal.
For further information on this topic please contact Tae Mee Park or Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (firstname.lastname@example.org or email@example.com).
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