unexpected or unusual factor that is external to the passenger’) when interpreting the concept of an accident. The CJEU does not even discuss the convincing arguments of the AG, but is content with a reference to its own judgment Niki Luftfahrt and the interpretation of the concept of accident advocated there - where, however, (as already noted) the ‘externality criterion’ did not play a role because the 34 injury there was undoubtedly caused by an external event. However, this is completely diferent in the case of a fall on a passenger staircase ‘for no ascertainable reason’, because such a fall can have a multitude of causes that lie solely in the passenger himself, such as in particular neurological causes, cardiovascular causes, orthopaedic causes, metabolic disorders, and so on. If the specifc reason for the fall remains not ascertainable, such intrinsic causes can no more be excluded than extrinsic causes. However, the wording of Art 17 para 1 MC indicates that the burden of proof for a damage-causing 35 accident on board an aircraft or during boarding or disembarking rests with the passenger, which has also been completely undisputed in case law up to now. A ‘non-ascertainable cause’ would therefore have to weigh against the passenger, who would have to prove it, but the CJEU seems to relieve him of his burden of proof by considering the fact of the fall itself (regardless of its non-ascertainable reason) as an ‘accident’. Based on this interpretation, passengers who have sufered injuries from falling on board or during embarking or disembarking would obviously be better advised not to claim a specifc reason for the fall in the frst place: if this remains non-ascertainable, the air carrier will be liable in any case (following the view of the CJEU), even if the actual reason may have been of an intrinsic nature, but could not be ascertained. To regard this as ‘in accordance’ with the goal of a ‘fair balance of interests’ seems rather bold. The High Court for England and Wales in the case of Arthern v Ryanair 36 recently upheld a frst instance judgement according to which, on an icy day when the ground outside was wet and the aircraft had to be de-iced, a reasonable passenger would not fnd the presence of slippery fuid on the foor next to the aircraft’s entrance to be unusual or unexpected. If the passenger slipped, fell and injured himself under such conditions he can, therefore, not refer to an ‘accident’ in the meaning of the MC. AG CJEU, opinion of 20.01.2022 in case C-589/20 – JR v. Austrian Airlines, 34 margin 53. ‘… upon condition only …‘. 35 High Court of Justice, King’s Bench Division, 16.01.2023, Athern v. Ryanair, [2023] 36 EWHC 46 (KB).
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