International Journal of Tourism, Travel and Hospitality Law 2023

AN AIR PASSENGER’S UNFORTUNATE FALL DOWN THE STAIRS • ‘any sudden event resulting from an external cause which kills or injures the traveller’;8 respectively • ‘a sudden event based on an external cause, determined in time and place, as a result of which the passenger is killed or injured’;9 The French Court of Cassation also requires ‘some event outside the passenger’s person’ for an accident to occur.10 All these interpretations have in common the requirement of an external event,11 which must be proven by the injured party as a prerequisite for a claim.12 Likewise, the relevant doctrine requires that the cause of the injury or death must have arisen external to the person concerned.13 It was regarded as clear that the ‘event’ external to the passenger cannot be the passenger’s slip or trip itself.14 3. FALL INCIDENTS IN WARSAW CONVENTION AND MONTREAL CONVENTION JURISPRUDENCE As expected, the case law on the WC and MC has had to deal with various fall incidents on several occasions, for which the following rulings can be cited as examples: In MacDonald v. Air Canada,15 the US Court of Appeal for the 1st Circuit had to decide on a fall of a passenger at the baggage claim area in the airport building. The plaintiff was standing at a pillar near the baggage carousel while her daughter was taking care of the bags. When the daughter turned around to receive the next piece of luggage, the plaintiff fell for an undeterminable reason and injured her face, wrists and knee. The court saw no basis for qualifying this as an accident in the meaning of the Warsaw Convention because there was no ascertainable external impact. However, it also denied claims under the Warsaw 8 German Federal Court (BGH), judgement of 21.11.2017, X ZR 30/15. 9 Austrian Supreme Court (OGH), judgement of 30.01.2020, 2 Ob 6/20a. 10 French Cour de Cassation, judgement of 29.11.1989, Sanchez c Air France (RFDA 1989 539, 540): „un quelconque événement extérieur à sa personne“. 11 OGH, reference for preliminary ruling of 30.01.2020, 2 Ob 138/19m 12 Reuschle MÜ2 Art 17 Rn 28. 13 See Schmid in Giemulla/Schmid MÜ Art 17 Rn 46; Reuschle ibid. Rn 13; Jahnke, Haftung bei Unfällen im internationalen Luftverkehr, 183 u. 226; Grant/Mason/Bunce Holiday Law6 13 -008. 14 Saggerson on Travel Law and Litigation7 [2022], p. 431 (10.51). 15 US Court of Appeals for the 1st Circuit 25.03.1971, MacDonald v. Air Canada, 439 F.2d 1402 [1st Cir. 1971].