AN AIR PASSENGER’S UNFORTUNATE FALL DOWN THE STAIRS ‘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 suffered injuries from falling on board or during embarking or disembarking would obviously be better advised not to claim a specific reason for the fall in the first 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 Ryanair36 recently upheld a first 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 find the presence of slippery fluid on the floor 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. If we follow the interpretation of the CJEU in case C-589/20 pursuant to which even a passenger’s fall for no ascertainable reason constitutes an accident – how could a judge then determinate whether that reason was unusual or unexpected? The problem, however, may even go far beyond events of falls: if one completely disregards the criterion of an external event and only requires that the harmful event must have been ‘unforeseen and unintentional’, completely different health-impairing events occurring within the time frame of liability of the MC, such as thromboses or hearing damage due to changes in air pressure, could also have to be re-evaluated, which would turn decades of international case law ‘upside down’. Apart from the concept of accident in the MC, it generally appears problematic that the CJEU, due to its exclusive competence to interpret Union Law,37 interprets international conventions such as the MC at its own discretion, without itself having to justify serious deviations from the existing established international case law. This entails the risk of fragmentation of international law, 36 High Court of Justice, King’s Bench Division, 16.01.2023, Athern v. Ryanair, [2023] EWHC 46 (KB). 37 Article 19 TEU.
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