Barclay v British Airways Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Thomas,Lord Justice Wilson |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1419 |
| Docket Number | Case Nos: B3/2008/0596 & B3/2008/0596(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2008 |
[2008] EWCA Civ 1419
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(MR RECORDER WEST-KNIGHTS QC)
6OX03505
Lord Justice Laws
Lord Justice Thomas and
Lord Justice Wilson
Case Nos: B3/2008/0596 & B3/2008/0596(A)
Mr Richard Menzies and Robin Gist (instructed by Barrett & Co, Didcot) for the Appellant
Mr Robert Lawson (instructed by Gates and Partners, London EC3) for the Respondent
Hearing date : 8 October 2008
Judgement
INTRODUCTION
This is a claimant's appeal, brought with permission granted by the court below, against the decision of Mr Recorder West-Knights QC given in the Oxford County Court on 27 February 2008, by which he dismissed the appellant's claim for damages for personal injuries against British Airways.
The appellant's claim could only prevail if it fell within the terms of Article 17.1 of the Montreal Convention 1999, which provides:
“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 17.1 has the force of law in England by virtue of Schedule 1B to the Carriage by Air Act 1961. It provides an exclusive remedy: Sidhu v British Airways plc 1997] AC 430, El Al Airlines Ltd v Tseng (1999) 525 US 155. Its predecessor was Article 17 of the Warsaw Convention 1929 as amended, whose terms were in material respects to the same effect as those of Article 17.1 of the Montreal Convention. I should note, however, that the Warsaw Convention was concluded in French. An English translation appeared in the Carriage by Air Act 1932, which gave the Convention the force of law in England. The result was that in relation to international carriage by air, the French text was to prevail in the case of difference. The Montreal Convention, however, was drafted in English.
The question in this case was, and is, whether the injuries sustained by the claimant were caused by an accident within the meaning of Article 17.1. The learned Recorder, after much citation of learning in this jurisdiction and the United States, held that they did not.
THE FACTS
A Statement of Agreed Facts was placed before the learned Recorder. It is in these terms:
“1 The defendant is a commercial air carrier.
2 On Sunday 17 October 2004 the claimant was the defendant's passenger for reward on international flight number BA288 from Phoenix Arizona in the United States to London Heathrow in the United Kingdom.
3 The claimant was shown down the port aisle of the aircraft to her seat number 26E, which was the second seat in a row of four seats (26D-G). The four seats were in the centre of the aircraft with an aisle either end. The claimant's seat was immediately to the port of the aircraft's midline.
4 Immediately ahead of the said row of four seats there was another row of four seats. The first two seats of that row ahead (25D-E) were in a reclined position.
5 In order to reach her seat the claimant passed sideways to her right between the reclined seats ahead and the first seat in her row (26D). In order to do so she had to lean slightly backwards.
6 As she lowered herself into her seat, with her body weight towards the right, the claimant's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left.
7 Upon slipping the claimant heard and felt her knee 'pop' and as it gave way it struck the armrest.
8 The claimant sustained bodily injury.
9 The layout of the passenger cabin, the seating space available to each passenger, the type of passenger seats and the strips installed on the aircraft covering the seating tracks were all in accordance with the defendant's usual standard for an aircraft of that type flying on the route in question and were not defective and in full working order.
10 All of the aircraft's seating and all of its systems affecting the passenger cabin environment and floor were in their normal working order.
11 The aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations.
12 The provisions of the Montreal Convention applied to the flight. This Convention provides the exclusive cause of action and sole remedy available against an air carrier in respect of loss, damage or delay suffered by passengers, or their baggage, in the course of, or arising out of, their international carriage by air.”
There was some little confusion about the facts at trial, or rather before trial, which was caused in part (as the Recorder put it at paragraph 78 of his judgment) “by the preparedness of BA to admit the claimant's case without having fully understood it”. However the only gloss I need place on the agreed facts, for the sake of completeness, is that the strip referred to was a narrow plastic strip running under the seats and covering what was referred to as the seat fix tracking. This was an entirely standard fitment on a BA Boeing 747.
The books contain a great deal of learning as to the interpretation of the term “accident” as it appeared in the predecessor provision, Article 17 of the Warsaw Convention. So far as is shown by counsel's researches, however, this is the first case in this court on Article 17.1 of the Montreal Convention. Both parties accept (correctly) that authorities on the earlier measure are just as valuable in relation to the current legislation.
By common consent the leading case on Article 17 of the Warsaw Convention, no less applicable to Article 17.1, is Air France v Saks (1985) 470 US 392 in the United States Supreme Court. The claimant, a passenger aboard an aircraft coming in to land, suffered pressure and pain in her left ear and was later diagnosed permanently deaf in that ear. The aircraft's pressurisation system was working normally. The airline moved for summary judgment against the claimant on the ground that she could not prove that her injury had been caused by an “accident” within Article 17 of the Warsaw Convention.
O'Connor J, delivering the opinion of the Supreme Court, analysed the text of the Convention (in both languages), the negotiating history of the Convention and the travaux preparatories, along with existing authority of courts in the United States and elsewhere. She identified two “clues”, as she described them, to the meaning of the term “accident”. The first was the contrast between the word “accident” in Article 17 and “occurrence” in Article 18 (dealing with liability for the destruction or loss of baggage) —“accident” thus means something different from “occurrence”. (I should say that Article 18.1 of the Montreal Convention has the word “event” in place of “occurrence”, but the force of the contrast, I think, remains the same). The second clue was that Article 17 refers to an accident which caused the passenger's injury, not an accident which was the passenger's injury. So the accident and the injury are clearly separated.
At length O'Connor J stated at p. 405:
“We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries.”
She added at p. 406:
“… [W]hen the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply.”
Mr Menzies for the appellant submitted (skeleton argument paragraph 18) that “[t]his passage is not part of the Saks definition and should not be considered as cumulative with [the formulation at p. 405] – it merely demonstrates a situation where the definition… is not fulfilled… It is not a 'gloss' or a 'second limb' to the test”. I shall have to consider that.
THE ISSUE
It is convenient at this stage to identify precisely the issue we have to decide. As I have indicated, the appellant must show that her injuries were caused by an accident within the meaning of Article 17.1. Thus the scope of the term “accident” is critical. It is clear (I shall cite relevant authority shortly) that proof of fault on the part of the carrier is not required. But “accident” cannot mean any occurrence on the aircraft which causes injury. So much at least is clear from Saks. To elucidate its scope in a thumbnail sketch, we may postulate three situations. (1) A member of the cabin staff loses his footing in the gangway and spills hot coffee, burning a passenger's hand. Plainly there is an accident; in the language of the Saks decision, “an unexpected or unusual event or happening that is external to the passenger”. (2) A passenger suffers a heart attack unprompted by any event in the aircraft. As Mr Menzies accepted, plainly there is no accident; there is no event which might qualify as such. This situation is not far from the actual facts in ( Chaudhari unreported: transcript 16 April 1997, Court of Appeal), to which I will refer. (3) The third situation is this present case. On the one hand, there is no event entirely unconnected with the passenger, such as the crew member losing his footing in situation (1). On the other, the injury is not caused by an autonomous collapse in the...
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