Accidents that cause injury to passengers during the course of international travel by air are governed by two overlapping international conventions: The Warsaw Convention of 1929, and the Montreal Convention of 1999.
For the injured passenger, Article 17 of the Warsaw Convention provides that:
The carrier shall be 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.
With minor variations, the Montreal Convention of 1999 adopted the language of Article 17 of the Warsaw Convention.
For an injured passenger to recover damages there are three conditions that need to be met: A). Involvement in an “accident”; B). Death or bodily injury caused by the “accident,” C). While the injured person was a passenger on board of the aircraft or while in the process of embarking or disembarking the aircraft.
What is an “Accident?”
By far, the greatest extent of litigation on the international frontier relates to whether or not a passenger was involved in an “accident.” The most frequently cited decision interpreting the term “accident” is the decision of Air France v Saks  which defined the term as
an unexpected or unusual event or happening that is external to the passenger”, and also providing that, “Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event.”
Determining what event or chain of events would constitute an “accident” is not as clear as it would appear to be.
For instance, in Carmelo Labbadia v Alitalia  EWHC 2103, a passenger claimed damages due to injuries sustained while descending mobile snow-covered stairs from an aircraft after landing in Milan after a flight from London, England. Applying the interpretation of the term “accident” established by Air France v Saks, the English High Court ruled that the incident was indeed an “accident” within the meaning of the Montreal Convention. The Court held that the event was exemplified by a series of acts and omissions by airport personnel by reason of a failure to clear the stairs of snow and opting not to provide a canopy over the stairs at the time of the passengers’ descent from the aircraft.
In the 2003 decision of Olympic Airways v. Husain, by Majority, the U.S. Supreme Court determined that a passenger who died due to an allergic reaction to second-hand smoke was involved in an “accident.” In this case, the passenger’s wife requested a flight attendant to re-assign their seats due to her husband’s second-hand smoke allergy but was incorrectly told that there were no unoccupied seats available on the aircraft. The U.S. Supreme Court found that the flight attendant’s failure to provide assistance served to satisfy the criteria of an “unexpected or unusual event or happening that is external to the passenger.” In dissent, Justice Antonin Scalia assessed the flight attendant’s conduct as a non-event rather than an event, which in his ruling did not give rise to an “accident.”
The French Court in the 1979 decision of La Compagnie Nationale Air France, SA v. Haddad, ruled that the term “accident” was expandable beyond technical or mechanical accidents affecting the aircraft. Accordingly, while the act of hijacking is clearly an intentional act, where passengers aboard an international flight from Tel Aviv to Paris suffered physical injuries resulting from a hijacking, the injuries were determined to be compensable pursuant to Article 17 of the Warsaw Convention. The Court held that the term “accident” includes incidents occurring during a normal flight that result from “unforeseen intervention by malevolent third parties.”
What Types of Injuries are Recoverable?
Article 17 of the Warsaw Convention and the Montreal Convention make specific reference to the term “death” and “bodily injury.” By consequence, pure emotional damage that is unaccompanied by physical injury would appear to be excluded from the compensatory scope of the international conventions.
In the 1991 decision of in Eastern Airline v. Floyd, the U.S. Supreme Court held that an event that was the epitome of every passenger’s worst nightmare was not compensable under Article 17 of the Warsaw Convention. In this case, the aircraft lost power in all three engines and was preparing for an amphibious landing directly into the ocean which was thankfully avoided when the engines suddenly restarted and the aircraft made a safe landing. The Court held that the pure psychological distress stemming from this event was not recoverable. However, where emotional trauma stems from a physical injury, or where a physical injury is manifested in the form of a psychological illness, dependent upon the circumstances, such damages would likely be recoverable.
If you have suffered an injury due to an accident while in the course of an international flight, please contact us for a confidential assessment of your case, at no charge.