Anne Ford v Malaysian Airline Systems Berhad
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Leveson,Lord Justice Maurice Kay |
| Judgment Date | 27 September 2013 |
| Neutral Citation | [2013] EWCA Civ 1163 |
| Docket Number | Case No: B3/2012/2265 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 September 2013 |
[2013] EWCA Civ 1163
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE OWEN QC
1IR00278
Royal Courts of Justice
Strand. London, WC2A 2LL
Lord Justice Maurice Kay. VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Leveson
Lord Justice Aikens
Case No: B3/2012/2265
Matthew Chapman (instructed by Irwin Mitchell LLP) for the Appellant
Robert Lawson QC & Stephanie Barrett (instructed by Kennedys Aviation LLP) for the Respondent
Hearing dates: 20/06/2013
I. The Question
The question in this appeal is whether, in the circumstances of this case, the act of giving an air passenger an injection of a diuretic in the course of an international commercial flight, which injection (it is assumed for present purposes) thereby exacerbated the passenger's physical discomfort caused by fluid retention resulting from urethral stenosis, constituted "an accident" for the purposes of Article 17.1 of the Montreal Convention 1999 "for the Unification of Certain Rules for International Carriage by Air" ("the Montreal Convention"). Judge Robert Owen QC had to decide this question at the trial of a preliminary issue that had been ordered in relation to a claim brought in the Birmingham County Court by Anne Ford ("Mrs Ford") against Malaysian Airline System Berhad ("the airline") for damages for "bodily injury". The claim by Mrs Ford against the airline was made (as it had to be) 1 exclusively on
the basis of the Montreal Convention. Mrs Ford alleged that the act of another passenger, a doctor, in administering the diuretic by injection was an "accident" which caused her bodily injury within the meaning of Article 17.1. The airline denied that this act could, as a matter of law, constitute an "accident" within Article 17.1. The preliminary issue ordered was: "whether on the basis of the facts pleaded by the Claimant, there was an accident within the meaning of Article 17.1 of the Montreal Convention 1999". By his judgment and order dated 11 July 2012, Judge Owen held it was not. Mrs Ford appeals to this court.II. The relevant terms of the Montreal Convention
There has been an international convention on the liability of air carriers for death or bodily injury to passengers and loss or damage to baggage and cargo since the Warsaw Convention was agreed in 1929. That convention was amended several times. The terms of the Warsaw Convention, in its amended form, were given the force of law in the United Kingdom by the Carriage by Air Act 1961. The Montreal Convention replaced the amended Warsaw Convention. It was given the force of law in the United Kingdom by virtue of the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002, (SI 2002/263) which had the effect of inserting the Montreal Convention as Schedule 1B to the 1961 Act.
In the case of Re Deep Vein Thrombosis Group Litigation, 2 Lord Steyn described the purpose of the Warsaw Convention as being to "…bring some order to a fragmented international aviation system by a partial harmonisation of the applicable law". He described that Convention as providing an:
"…exclusive code of limited liability of carriers to passengers. On the other hand, it enables passengers to recover damages even though, in the absence of the Convention and the Act, they might have no cause of action which would entitle them to succeed. It follows from the scheme of the Convention, and indeed from its very nature as an international trade law convention, that the basic concepts it employs to achieve its purpose are autonomous concepts. For present purposes the compromise agreed at Warsaw involved the imposition of a form of strict liability on carriers in respect of accidents causing death, wounding or bodily injury to passengers in return for the limitations of liability expressed in the Warsaw Convention." 3
Those views on "purpose", "scheme" and "concepts" must equally apply to the Montreal Convention.
The Montreal Convention applies to all international carriage of persons, baggage and cargo by air for reward. Chapter II deals with the documentation and duties of the parties relating to the carriage of passengers, baggage and cargo. Chapter III is headed "Liability of the Carrier and Extent of Compensation for Damage". Article 17, which I set out below, is the first of the articles in this chapter. It deals with the liability of the air carrier for death and injury to passengers and damage to baggage. Article 18 deals with the destruction or loss of or damage to cargo. Article 19 deals
I therefore need only quote Article 17.1 and Article 20, which were the two articles particularly referred to in argument before us.
Article 17 — Death and injury of Passengers — Damage to Baggage
17.1 The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
…..
Article 20 — Exoneration
If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in the Convention, including paragraph 1 of Article 21.
The relevant wording of Article 17.1 of the Montreal Convention is, for present purposes, the same as that of Article 17 the Warsaw Convention, although the latter did not have sub-articles. The correct interpretation of the Warsaw Convention Article 17 wording, in particular the proper interpretation of the words "the accident" and "bodily injury", have been the subject of much judicial interpretation in many jurisdictions. Because the Convention is international in scope, it is accepted that the English courts should pay careful attention to those interpretations. It was common ground before us that the leading modern authority on the interpretation and scope of the words "the accident" in Article 17
of the Warsaw Convention is the opinion of the US Supreme Court in Air France v Saks, 5 which was given by Sandra Day O'Connor J. As Lord Scott of Foscote recognised in his speech in In re Deep Vein Thrombosis and Air Travel Group Litigation, 6 O'Connor J's opinion in Saks has been widely followed both in the US and in the courts of other states who were parties to the Warsaw Convention. Lord Scott said that both the standing of the court and the reasoning of the opinion justified that reliance. Moreover it was, he said, important that, if possible, a uniform interpretation of the Convention should be applied in all signatory states. I respectfully agree. I shall have to consider that case, a number of subsequent English authorities and an Australian authority later on in this judgment.III. The Facts
The preliminary issue was decided by the judge on the basis of assumed facts as set out in the claimant's statement of case. The judge also drew upon facts set out in paragraphs 5 to 8 of Mrs Ford's witness statement and those set out in a medico-legal report dated 28 April 2011 by Mr Matthew Fletcher, a consultant urological surgeon. He had examined Mrs Ford on 12 April 2011. Both documents were before the judge as evidence for the purposes of the preliminary issue.
Mrs Ford, who was bom on 11 January 1962, had, by July 2009, a history of some gynaecological issues and she had been prone to recurrent symptoms suggestive of urinary infection, ie. cystitis. 7 She had treated herself and had bought "over the counter" medication to take if she had an episode of it. 8 She had packed this medication in her main luggage before going on her flight from London Heathrow to Melbourne Australia, via Kuala Lumpur, on 9 July 2009. There was no evidence before the judge concerning the nature of this medication. Before Mrs Ford boarded the aircraft she urinated normally at about 9pm. After she had boarded she slept for some time and awoke at about 6 am and went to the lavatory. She found she was unable to urinate and attributed this inability to cystitis. Because her cystitis mediation was in her hold luggage and she was concerned about the prospect of discomfort until she landed in Kuala Lumpur, Mrs Ford asked one of the cabin crew whether they had cranberry juice or bicarbonate of soda on board, as she had found them to be an effective and early means of treating a cystitis attack. The crew had none of...
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