KLM Royal Dutch Airlines v Morris

This is the Judgment of the Court.

This is an appeal from a judgment of His Honour Judge Carter, QC, given in the Bury County Court sitting at Bolton on 1 December 2000. The material facts, which are agreed, are as follows.

On 6 September 1998 Kelly Morris, the respondent, who was born on 24 September 1982 and was almost 16 years of age, boarded the appellant's aeroplane at Kuala Lumpur on a flight to Amsterdam. She had visited her uncle in Kuala Lumpur and was travelling as an unaccompanied minor. She was seated next to two men who were speaking French to each other. After a meal, she fell asleep and woke to discover the hand of the man next to her touching her left thigh from the hip to the knee. He was caressing her between her hip and knee and his fingers dug into her thigh. She got up, walked away, and told an air hostess what had occurred. She became very distressed and on her return to her home in Bolton she went to see a doctor, Dr Cooling. He found that she was suffering from a clinical depression amounting to a single episode of a major depressive illness. Fortunately she has made a full recovery.

In this action the respondent claims damages in respect of her illness. She does not allege that she suffered any physical injury. Her claim is based on Article 17 of the Warsaw Convention of 1929, as amended at The Hague in 1955, ('the Convention'). The Convention is incorporated into English law as schedule 1 to the Carriage by Air Act 1961. The respondent's claim turns on important issues in relation to the interpretation of Article 17. Before Judge Carter each party claimed that those issues fell to be determined in a manner that entitled that party to summary judgment. Judge Carter resolved those issues in favour of the respondent and gave judgment in her favour on liability, with damages to be assessed.

The issues

Article 17 of the Convention provides that:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

The first issue is whether the respondent's illness was caused by an accident within the meaning of Article 17. The second issue is whether her illness constituted bodily injury within the meaning of Article 17. The meaning of these three words, in the context of Article 17, have been analysed repeatedly, and on occasion at very great length, in the courts of a number of signatories to the Convention. Some of the jurisprudence consists of detailed analysis of the architecture of what were found, at the end of the day, to constitute blind alleys. We propose to take advantage of the conclusions reached as a result of that analysis without duplicating the exercise that was required to reach those conclusions.

Principles of interpretation

The starting point in interpreting Article 17 must be to consider the natural meaning of the language of the Article itself. The English text of the Convention, as scheduled to the 1961 Act, is a translation of the French text, which is also scheduled to the Act. The French is the original text of the Convention and section 1(3) of the 1961 Act provides that if there is any inconsistency between the two texts, the French text is to prevail.

In interpreting the Article, it is necessary to consider the Convention as a whole and to give it a purposive interpretation: see Lord Diplock in Fothergill v. Monarch Airlines [1981] A.C. 251 at 279. Later in his speech, at p.281, Lord Diplock, referring to the Convention, said:

"The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co. Ltd v Babco Forwarding & Shipping (U.K.) Ltd [1978] A.C. 141, 152, 'unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation."

Lord Diplock went on to observe that it is legitimate to have regard to the "travaux préparatoires" or "legislative history" in order to resolve ambiguities or obscurities in the enacting words. As to this, Lord Wilberforce had earlier remarked at p.278:

"…there may be cases where such travaux préparatoires can profitably be used. These cases should be rare, and only where two conditions are fulfilled, first, that such material involved is public and accessible, and secondly, that the travaux préparatoires clearly and indisputably point to a definite legislative intention."

Lord Hope clearly had this passage in mind when he stated in Sidhu v. British Airways [1997] A.C. 430 at p. 442, referring to the Convention, that:

"It is sufficient to say that cautious use may be made of this material, the availability to the public of which is not in doubt. But it will only be helpful if, after proper analysis, it clearly points to a definite intention on the part of the delegates as to how the point at issue should be resolved."

Not only is it legitimate to look at the travaux préparatoires as a guide to the interpretation of a statute. It is also legitimate to have regard to 'any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation'. This principle of public international law is now embodied in Article 31.3(b) of the Vienna Convention on the Law of Treaties, which came into force, with prospective effect, on January 27, 1980.

Finally, assistance should be sought from the relevant jurisprudence both of this country and of other jurisdictions.

The doctrine of precedent requires this Court to follow decisions of the House of Lords and the Court of Appeal of this country, where applicable. While they are not binding, respect falls to be paid to relevant decisions of courts of other signatories to the Convention. In an ideal world the Convention should be accorded the same meaning by all who are party to it and careful consideration must be given to the reasoning of courts of other jurisdictions, particularly those of high standing, that have grappled with the same problems that are raised by this appeal.

The meaning of 'accident'

The same word is used in both the English and the French texts and there has been no suggestion that the meaning of that word differs in the two languages. On behalf of the appellant, Mr Haddon-Cave, QC, contended that the indecent assault suffered by the respondent could not properly be described as an accident. He submitted that:

"accident must involve an unexpected or unusual event or happening which is external to the passenger and which relates to the operation of the aircraft or could be regarded as a characteristic of air travel."

The latter part of this definition cannot be derived from the ordinary meaning of 'accident'. Mr Haddon-Cave submitted that the requirement that the accident must be related to air travel could be deduced from (i) the travaux préparatoires, (ii) a purposive approach to interpretation and (iii) a significant body of United States authority. In argument he relied principally on this final factor.

Mr Braslavsky, QC, for the respondent, was happy to address the meaning of 'accident' on the basis of the American authorities. He submitted (i) that the leading decision of the American Supreme Court did not justify a finding that there was a requirement that the accident had to be related to air travel but (ii) that if there was such a requirement, it was abundantly satisfied on the facts of this case.

The case on which both parties principally relied was Air France v. Saks (1985) 470 US 392. The claimant suffered loss of hearing in her left ear as a result of injury which she alleged was caused by the operation of the air pressurisation system as the aircraft lost height before landing. The issue was whether this was an 'accident' within the meaning of Article 17. The Supreme Court held that it was not. The Court drew a distinction between the use of the word accident to describe an event causing hurt or loss and the use of the same word to describe the occurrence of...