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Neely v Flybe

CitationNeely v (1) Flybe (2) OCS Limited (2014) Manchester County Court

Air travel comes with its own set of particular risks and challenges for disabled passengers. Passengers with restricted mobility, and wheelchair users, are often at the mercy of others and tend to be more vulnerable to suffering injury during air travel.  For example, in Phillips v Air New Zealand [1992] All ER D 431 the claimant who was in a wheelchair was injured when a handling agent took the decision to transport her upstairs on a moving escalator.

The Montreal Convention 1999

Accidents that occur during air travel are governed by international conventions.  The Montreal Convention 1999 is the most well known of these and imposes liability on air carriers for bodily injuries upon condition that the injury is caused by “an accident on board an aircraft or in the course of embarking or disembarking…”.   A body of international jurisprudence has developed as to the meaning of the word "accident".

To summarise the UK approach, the courts have held that an accident cannot be the very fact of the injury.  The accident cannot be some personal, particular or peculiar reaction of the passenger to the normal operation of the aircraft (Chaudhari v British Airways [1997] The Times 07.05.1997). There has to be an event that is unusual or unexpected and external to the passenger that caused the injury (Deep Vein Thrombosis v Air Travel Group Litigaton [2005] UKHL 72).

When a claimant in a Montreal Convention case has pre-existing health problems, care has to be taken to investigate the medical history when determining whether an injury has been caused by "an accident" within the meaning of the Montreal Convention. This was illustrated by a judgment in Manchester County Court handed down on 15 August 2014. I represented the First Defendant, Flybe.

Neely v Flybe

In Neely v (1) Flybe (2) OCS Ltd the claimant, Darren Neely, suffered from spinal muscular atrophy and was a wheelchair user.  In April 2012, at Manchester Airport, he was being transferred from his wheelchair to an aisle chair at the door of an aircraft operated by Flybe.  The manual lift transfer was being undertaken by two handling agents employed by OCS. During this transfer Mr Neely's arm was broken.  He initially sued Flybe on the basis of the Montreal Convention.  Flybe joined OCS as a third party and Mr Neely then brought OCS in as a Second Defendant.

The value of the claim (quantum agreed at £7,000) was small.  However Mr Neely's costs were colossal: £193,000 in total.

The trial turned on the Judge's findings of fact as to how the lift was performed.  Was it a normal lift performed with due care during which Mr Neely's arm was incidentally broken, as OCS maintained?  Or, was his arm broken, as Mr Neely and his family contended, by a negligently performed lift when he was dragged by his arms?

Flybe contended that the first situation did not amount to a Montreal convention "accident".  Mr Neely was a regular traveller and he accepted that a manual lift was the usual way he was assisted to board an aircraft.  Further, his medical records showed that he suffered from brittle bones and severe osteoporosis.  Flybe put questions to Mr Neely's medical expert who confirmed that Mr Neely was predisposed to fractures during transfer lifts as a result of these factors.

However if Mr Neely was manhandled, then this may have constituted a Montreal Convention "accident". In those circumstances however Flybe claimed a contribution from OCS as it was permitted to do under Article 37 of the Montreal Convention.

Mr Neely contended that Flybe was liable under the Montreal Convention as he had suffered an "accident" regardless of how the lift was performed.  However on the day of trial Mr Neely accepted that if it was a normal lift then there was no liability of Flybe to Mr Neely under the Montreal Convention.

Having heard the evidence, District Judge Moss held that Mr Neely was not mishandled but instead sustained injury as a consequence of the propensity of his bones to fracture during an otherwise unremarkable lift.  The Judge said:

"there is no scope for a conclusion, on the findings of fact that I have made, that this was other than an injury that fell within the category of this passenger's particular, personal or peculiar reaction to the normal operation of the aircraft."

Held

The Judge dismissed the claim against both defendants.

This case highlights the need for a passenger's underlying health status to be considered by both parties in Montreal Convention cases.  In the event that the passenger has a particular condition, this may be the real cause of the injury, not any Montreal Convention “accident”.

Jasmine Murphy was instructed by Bally Atwal of the Smith Partnership for Flybe, the First Defendant. The hearing took place on 4 July 2014 and judgment was handed down on 15 August 2014. Manchester County Court. District Judge Moss.