Barclay v British Airways Plc [County Court (UK)]
| Jurisdiction | England & Wales |
| Judge | Recorder West-Knights |
| Judgment Date | 27 February 2008 |
| Court | County Court |
| Date | 27 February 2008 |
Oxford County Court.
Recorder West-Knights QC.
Richard Menzies (instructed by Barrett & Co, Didcot) for the claimant.
Jonathan Chambers (instructed by Gates and Partners) for the defendant.
The following cases were referred to in the judgment:
Air France v Saks (1985) 470 US 392.
Carswell v Qantas (2 July 1994, NSW District Court).
Chaudhari v British AirwaysUNK (unreported, 16 April 1997, CA).
Craig v Air France (1994) 45F 3d 435.
Deep Vein Thrombosis and Air Travel Group Litigation [2005] 2 CLC 1083; [2006] 1 AC 495.
MacDonald v Air CanadaECAS (1971) 439 F 2d 1402.
Morris v KLM [2001] CLC 1460 (CA); [2002] CLC 820; [2002] 2 AC 628 (HL).
Potter v Delta Airlines (1996) 98 F 3d 881.
Schwartz v LufthansaECAS, Aviation Cases 1039 3.94 24 Avi 17,841.
Sethy v Malev-Hungarian Airlines [2000] US Dist Lexis 12606.
Singhal v British Airways (20 October 2007, Wandsworth County Court, Recorder Bueno QC).
Aviation — Personal injury — Aircraft — Slipping — Passenger suffered knee injury after slipping while getting into seat — Injury not caused by requisite unusual or unexpected event external to passenger — Airline not liable — Montreal Convention 1999, art. 17 — Carriage by Air Act 1961, Sch. 1B.
This was a claim by a passenger against an airline in respect of an injury suffered on board an aircraft.
The claimant boarded a British Airways Boeing 747 as a passenger to take a scheduled flight from Phoenix, Arizona to London Heathrow airport. She suffered a ligamentous injury to her right knee when she slipped on a plastic strip embedded in the floor as she was making her way along the row to the seat in which she intended to sit. The quantum of the claimant's damage was agreed at just over £24,000 including interest.
The action was brought under art. 17.1 of the Montreal Convention 1999 which by virtue of Sch. 1B to the Carriage by Air Act 1961 had the force of law in England. The claimant's only remedy was under the Convention.
Article 17.1 provided that the carrier was 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.
The claimant said that she had obviously had an accident, and that there was no binding authority to displace the natural meaning of that word. BA argued that the claimant had to show that there was something external to her which caused the fall, and that that something had to be unusual or unexpected.
Held, giving judgment for the defendant:
1. Liability under art. 17 of the Convention arose only if a passenger's injury was caused by an unexpected or unusual event or happening that was external to the passenger. The event constituting the accident and the injury had to be two separate matters: it was necessary to prove that the injury was caused by an accident, injury of itself was not enough. (Air France v Saks(1985) 470 US 392, Morris v KLM[2002] CLC 820; [2002] 2 AC 628 and Deep Vein Thrombosis and Air Travel Group Litigation[2005] 2 CLC 1083; [2006] 1 AC 495applied.)
2. The admitted slipping was not an event external to the claimant. A mere fall was not an event external to the claimant for the purposes of determining whether there was an accident within the relevant meaning of the word. All that could be said was that a slipping occurred on the plastic strip. It could not be established that the slipping occurred by reason of something to do with the strip (except its passive and usual presence). The evidence, such as it was, tended to suggest that the initiation of what led to the slipping had no cause to do with the plastic strip, and indeed no cause outside the claimant at all. (Chaudhari v British Airways (unreported, 16 April 1997, CA) applied.)
3. Even if the strip actually caused the slipping, somehow, and was thus a cause external to the claimant, there was nothing unusual or meaningfully unexpected about that cause. Looking backwards, in terms of causation, for an unusual or unexpected cause for the slipping/loss of balance, to see if there was any prior (pre-fall) event passing the Saks test, in this case there was none. The claimant's claim therefore failed on the ground that there was no relevant accident.
Recorder West-Knights QC:
1. On 17 October 2004 the claimant Mrs Barclay boarded a British Airways Boeing 747 as a passenger to take a scheduled flight from Phoenix, Arizona to London Heathrow airport. She suffered a ligamentous injury to her right knee when she slipped as she was making her way along the row to the seat in which she intended to sit. There is a Schedule of Agreed Facts pursuant to a direction which I gave during the trial: the basic facts are not in issue but the interpretation to be placed upon them, and their result, are hotly contested. The quantum of the claimant's damage was agreed on the second day of the trial at just over £24,000 including interest.
2. Mrs Barclay's action is brought under Article 17.1 of the Montreal Convention 1999 which by virtue of Schedule 1B of the Carriage by Air Act 1961 has the force of law in England. It is common ground that at the material time the terms of the Convention governed the carriage of the claimant from the USA to the UK, both countries having ratified the Convention which thus superseded the Warsaw Convention.
3. It is also common ground that the Convention makes provision for the only remedy available to the claimant: she will succeed under the Convention or not at all. All domestic or other notions such as tort or contract are displaced by the Convention, for reasons of international consistency. It matters not whether British Airways (BA) were negligent or otherwise at fault. The Convention is all that counts.
4. The terms of Article 17.1 are, on the face of it, simple:
“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.”
Its terms are not exactly the same as those of its predecessor, Article 17 of the Warsaw Convention 1929 as amended, but for the purposes of this action any differences between the 2 Conventions are, I am told, immaterial.
5. The elements which are required for recovery in this case are thus:
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(i) bodily injury
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(ii) caused by “an accident”
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(iii) on board the aircraft
6. In common parlance it would be easy to conclude that each of the elements was present and that the claimant should recover. There can be and is no dispute on elements (i) and (iii). However, the issue in this case is whether there was, within the meaning of the Convention, an accident. That issue has a number of strands to it. My initial reaction to the dispute was that any meaning for “accident” which did not encompass what had happened to the claimant was likely to be wrong and Counsel for BA was aware that that was my starting-point.
7. The nub of the dispute is that Mrs Barclay says that what she had was obviously an accident, and that there is no binding authority to displace the natural meaning of the word. BA say that she must show that there was something external to her which caused the fall, and that that “something” must be unusual or unexpected. A “mere” fall, with no (unusual) external cause, will not do. At the heart of that is that a fall, simpliciter, is not an event external to the claimant, thus there needs to be proven a cause for the fall which is external, unusual or unexpected. At first blush, BA's proposition involves adding words to the Convention which are not present.
8. This is a county court claim. I will therefore give such reasons for my conclusion as pay appropriate respect to the intelligent and vigorous arguments of both Counsel, to whom I am grateful. Both sides say they will ask for permission to appeal the outcome of this case to the Court of Appeal. So be it: my function is to determine the facts and then ascertain and apply the law, not to seek to make law or give my opinion on it save in so far as it touches on the question of permission to appeal or is otherwise necessitated by the international citation (as will be seen) of cases such as this, and to give reasonably succinct reasons for my decision. I fear that I have failed on “succinct”.
9. It is logical to start with what happened and then, in the absence of binding authority on a slipping such as this (I will not use the word “accident” for obvious reasons), to deal with the canons of construction for an international Convention, determine the relevant case law and apply it in setting out my conclusions.
10. They are, so far as material, as follows:
“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 4 seats (26D–G). The 4 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 4 seats there was another row of 4 seats. The first 2 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 bodyweight 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...
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Barclay v British Airways Plc
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