McKendry v British Airways PLC

Susie Power ~ Costs Consultant

Is it a bird? Is it a plane? Is it a public liability claim or a claim under the Montreal Convention?


The recent judgment in McKendry v British Airways PLC brings a welcome outcome to Claimants in relation to costs. Our Susie Power, Costs Consultant, takes a look.

The Judgement can be viewed on Gordon Exall’s highly informative website – Civil Litigation Brief.  Click here to view.

Briefly the case of McKendry: the Claimant received a head injury whilst on an airplane in London when a suitcase fell from an overhead locker above her seat.

The Montreal Convention is a multilateral treaty which relates to compensation to victims concerning international carriage of passengers, baggage and cargo. It amends provisions of the Warsaw Convention (compensation for the victims of air disasters). The Montreal Convention brought about amended liabilities in relation to death or injury whilst the victim is on board an aircraft.

One of the most important parts of the Montreal Convention is Article 17 which confirms that the carrier is liable for damages sustained whilst onboard an aircraft “or in the course of any of the operations of embarking or disembarking”. This is further supported by Article 29 which states that “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

During the cases of McKendry consideration was given to whether a claim brought due to an injury on an aircraft was within the scope of the Pre-Action Protocol for Low Value Claims. In McKendry District Judge Baldwin states that the preamble to the Convention identifies the international agreement in relation to consumer protection for air carriage. Specific reference to Article 17 was also made, and it was found that the Low Value Protocols did not factor in to accidents such as this.

It was further noted that the new Package Travel Protocol specifically excludes Athens and Montreal Convention claims.

So, what did we learn from this case?

  1. Despite the fact that the injury occurred whilst on ‘English soil’, the case still falls under the Montreal Convention due to being onboard an airplane at the time of the injury. Therefore, claims of this nature should be pursued under the Montreal Convention rather than via a Portal.
  2. The costs should be recovered under standard assessment rather than falling within any of the Low Value Portals which are subject to the fixed costs provisions of CPR Part 45, including that of the new Package Travel Protocol.

Should you have any queries regarding potential costs recovery on air accident cases, contact PIC today by clicking here and we can leverage our wide experience to assist you.  If you would like to contact Susie directly regarding this article click here.