Like in the CJEU case, the staircase was neither slippery nor dirty, but its last step (i.e. the distance to the ground) was about twice as high as all the preceding steps and signifcantly higher than required by relevant, albeit nonbinding, standards, which is why the plaintif lost her balance and fell. The trial court dismissed the claim on summary judgment because the plaintif had ofered no evidence that such a design of the staircase was unusual or that the staircase difered in that respect from commonly used passenger stairs. The Court of Appeal pointed out that for an accident to occur, there had to be an unexpected or unusual event afecting the passenger from the outside, whereas an injury attributable to the passenger's own reaction to the ordinary, normal and expectable operation of an aircraft could not be considered to have been caused by an accident. Whether an event qualifed as ‘unexpected’ had to be assessed from the objective point of view of an averagely experienced, reasonable passenger. As it could not be ruled out that a reasonable jury would reach this conclusion, because non-binding standards could also be decisive for the expectations of an average passenger, the dismissal of the claim ordered by the court of frst instance was set aside. In all the cases referred to, there was either an external circumstance or - where such external circumstance could not be established - an accident was denied as a prerequisite for a claim under the Warsaw or Montreal Convention. 4. The CJEU's previous case law and the GA's opinion in the case JR v. Austrian Airlines The CJEU has already had to deal with the concept of ‘accident” in the MC on two occasions, each time on the basis of a referral from the Austrian Supreme Court. 21 The frst case dealt with the scalding of the plaintif by an overturned cofee mug, and the question at issue was whether liability under Art 17 was limited to accidents in which a typical aviation risk had materialised. The CJEU denied such an additional requirement: the usual meaning of the term ‘accident’ was that of an ‘unforeseen, harmful and involuntary event’. 22 In the second case, the plaintif claimed an injury due to a ‘bumpy’ landing 23 at St. Gallen/Altenrhein Airport. The vertical load recorded by the fight OGH references for preliminary ruling of 26.06.2018, 2 Ob 79/18h, and of 21 30.01.2020, 2 Ob 138/20m. CJEU, judgement of 19.12.2019 in case C-532/18 – Niki Luftfahrt. 22 CJEU, judgement of 12.05.2021 in case C-70/20 – Altenrhein Luftfahrt. 23
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