The British Columbia Civil Resolution Tribunal (BCCRT) – the equivalent of British Columbia's Small Claims Court – recently ruled in favour of an air carrier, dismissing a passenger's claim for compensation arising from an alleged fall sustained while exiting the aircraft.(1)
In its decision, the BCCRT considered and opined on what constitutes an 'accident' under Article 17 of the Montreal Convention. This decision also provides helpful guidance on the evidentiary requirements in personal injury cases.
The applicant was a passenger on a flight operated by the respondent air carrier, WestJet Airlines Ltd, on 23 December 2018 from Palm Springs, United States to Vancouver, Canada.
The applicant stated that on arrival at the terminal in Vancouver, she fell on the bridge when exiting the aircraft and sustained injuries. She sought compensation of C$5,000 for pain and suffering.
The respondent, WestJet, denied liability on various grounds and particularly that no 'accident' had occurred according to the definition of that term in Article 17 of the Montreal Convention.
The undisputed facts were that the passenger required a wheelchair for travelling long distances but was able to walk short distances. A wheelchair was provided for the passenger at the bridge connecting the aircraft to the terminal. The passenger walked from her seat to the bridge in order to access the wheelchair and sustained a fall while exiting the aircraft.
However, the BCCRT received conflicting evidence on whether the bridge floor had been wet and uneven, the injuries that the applicant had sustained and whether WestJet's staff had refused to help the passenger disembark.
The passenger's evidence was that the crew had refused to help her disembark.
She stated that there had been some congestion at the exit of the bridge when she was disembarking and as she attempted to negotiate her way to the wheelchair, she did not notice that the floor between the aircraft and bridge was uneven and wet. Her evidence was that it had been raining in Vancouver that day (but no objective evidence or explanation of how rain entered the bridge or aircraft was provided in support of this allegation).
The passenger stated that:
- she had stepped on the uneven and wet floor and lost her balance; and
- her fall caused painful bruising around her ribs.
The air carrier relied on two incident reports prepared by its staff: one prepared by the lead flight attendant on the day of the incident and another prepared by a customer service agent. Neither of these reports stated that the floor of the bridge had been uneven or wet.
The lead flight attendant's report stated that the passenger had been the last to deplane. The lead flight attendant had asked the passenger whether she needed assistance getting to the aircraft door and to the wheelchair, but the applicant had declined. The lead flight attendant had reportedly followed the applicant in case she needed assistance and as the passenger stepped onto the bridge, she was observed temporarily losing her footing.
The lead flight attendant's report went on to state that after the passenger had lost her footing, she informed the lead flight attendant that she was out of breath and may have broken a rib. The agent waiting with the wheelchair asked the passenger if she would like a paramedic and the passenger said that she would.
The customer service agent's report stated that the passenger had tripped on leaving the aircraft and had hit her ribs on the bridge door. The customer service agent stated that the applicant had possibly bruised or cracked her ribs and requested paramedics, who suggested that she go to a hospital.
Finally, the passenger also submitted a report from the hospital that she attended the day following the incident. The two-page medical report did not mention bruising and stated that X-rays confirmed that the passenger did not have rib fractures. It concluded that the applicant had "had an unsteady episode".
The key issue was whether WestJet was liable for the applicant's injury suffered while exiting the aircraft.
As the passenger had been travelling on an international flight, the Montreal Convention governed the air carrier's liability. The Montreal Convention is an international treaty to which Canada is a state party, which has the force of law under the federal Carriage by Air Act. The Montreal Convention governs the type and scope of claims that can be advanced for disputes regarding international air travel.
Article 17 of the Montreal Convention states that:
The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Article 17 is the exclusive basis for a passenger's injury claim against an air carrier and if an accident occurs, the air carrier is liable without the passenger being required to prove that the air carrier was at fault, subject to a cap on damages.
Therefore, in order to be found liable, the incident would have to constitute an 'accident' under Article 17.
The BCCRT found that the passenger, a 93-year-old woman who fell exiting the aircraft, had not experienced an 'accident' as defined in Article 17 of the Montreal Convention.
The BCCRT reconciled the conflicting evidence, noting that there was no mention of a wet or uneven floor in the two incident reports or the medical report. Had the floor been wet or uneven, the BCCRT found that this would likely have been mentioned as the reason for the fall in the medical report.
The medical report stated that the passenger had fallen against the cockpit door, but gave no indication of any possible causes external to the passenger. The report concluded that the applicant had had an "unsteady episode", meaning that she had suddenly felt unsteady on her feet.
The BCCRT went on to say that even if the passenger had lost her balance because of uneven floor levels, it would not have been an accident under Article 17 of the Montreal Convention.
The BCCRT found that because the lip between the bridge and the aircraft was inert, there was no incident external to the passenger which had caused her to fall.
The BCCRT noted that in some cases, the intentional acts of an air carrier can constitute an accident in a chain of causation leading to an injury. For instance, in Gontcharov v Canjet (ONSC 2279), a flight attendant's refusal to give a passenger a blanket, leading to bronchitis, was held to be an accident under Article 17 of the Montreal Convention.
However, in this case, the BCCRT preferred the evidence of the air carrier with respect to whether the passenger had been offered appropriate assistance exiting the aircraft. The air carrier's position was supported by the lead flight attendant's incident report and the passenger's booking information, which noted that the applicant required a wheelchair only for long distances and did not require one to travel along the aisle and exit the plane.
As a result, the evidence presented did not satisfy the BCCRT that the incident constituted an accident for which the air carrier could be liable.
This case provides helpful insight into what constitutes an 'accident' under Article 17 of the Montreal Convention.
Air carriers should also note the importance of preparing a thorough incident report when a passenger may be injured, as the incident report was relied on to a great extent in this case.
Endnotes
(1) Quinn v WestJet Airlines Ltd, 2019 BCCRT 1446.
