Sidhu v British Airways Plc
| Jurisdiction | UK Non-devolved |
| Judge | Lord Browne-Wilkinson,Lord Jauncey of Tullichettle,Lord Mustill,Lord Steyn,Lord Hope of Craighead,LORD BROWNE-WILKINSON,LORD JAUNCEY OF TULLICHETTLE,LORD MUSTILL,LORD STEYN,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 12 December 1996 |
| Judgment citation (vLex) | [1996] UKHL J1212-5 |
| Court | House of Lords |
| Docket Number | No. 4. |
| Date | 12 December 1996 |
and Others (A.P.)
[1996] UKHL J1212-1
Lord Browne-Wilkinson
Lord Jauncey of Tullichettle
Lord Mustill
Lord Steyn
Lord Hope of Craighead
HOUSE OF LORDS
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I would dismiss both these appeals.
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I too would dismiss both these appeals.
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I too would dismiss both these appeals.
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend, Lord Hope of Craighead, which I have read in draft and with which I agree, I would dismiss both these appeals.
My Lords,
The question in these two appeals is whether the Warsaw Convention as amended at The Hague, 1955, as set out in the Schedule 1 to the Carriage by Air Act 1961, provides the exclusive cause of action and sole remedy for a passenger who claims against the carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air.
In both cases claims were made against the respondents, British Airways Plc., by passengers who had been travelling on a scheduled international flight from the United Kingdom to Malaysia via Kuwait. The flight left London Heathrow for Kuala Lumpur on 1 August 1990. It landed in Kuwait for refuelling on 2 August 1990, about five hours after Iraqi forces had begun to invade Kuwait at the commencement of what became known as the Gulf War. The passengers and crew were all taken prisoner by the Iraqis. They were detained initially at Kuwait Airport, then at Kuwait City and thereafter in Baghdad. The appellants, who were subsequently released and returned to the United Kingdom, claimed damages against the respondents for the consequences of their captivity. Their claims for personal injury were made at common law, as it was accepted that they had no remedy in this regard under article 17 of the Convention.
Mrs. Judith Helen Abnett, to whom I shall refer as "the pursuer," raised her action in the Court of Session in Scotland. She was resident in England where the respondent's principal place of business is situated, and she had purchased her ticket there. But the respondents also have a place of business in Edinburgh, which the pursuer contended was sufficient to confer jurisdiction on the Scottish courts at common law. She based her claim on article 19 of the Convention under which the carrier is liable for damage occasioned by delay and, alternatively, at common law for breach of an implied condition of the contract that the respondents would take reasonable care for her safety. When the case came before the Lord Ordinary, Lord Marnoch, for debate on the procedure roll he was invited to dismiss the action on various grounds. One of these was that the Scottish courts had no jurisdiction, having regard to article 28 of the Convention. After a careful review of the wording of that article and of various authorities which were cited to him from the United States of America, France and Nigeria, he held that the Scottish courts did have jurisdiction and no appeal has been taken against his decision on this point. He also held that the pursuer's case for damage occasioned by delay under article 19 of the Convention was irrelevant, and that the Convention excluded recourse to any common law remedy by a passenger who suffered injury in the course of or arising out of an international flight. On 20 December 1993 he repelled the respondents' plea in law to the jurisdiction of the Court of Session, but he sustained their second and third pleas in law and dismissed the action as irrelevant, 1996 S.L.T. 529. The pursuer reclaimed on the single question as to whether her claim at common law had been excluded by the Convention. On 28 April 1995 an Extra Division (Lord Allanbridge, Lord Mayfield and Lord Clyde), who had the advantage of the judgment of the Court of Appeal in the English action which supported the view which had been taken by Lord Marnoch, refused her reclaiming motion: 1996 S.L.T. 529, 538-547. The pursuer has now appealed against this decision to your Lordships' House.
Miss Kiran Sidhu, Miss Harjinder Sidhu and Mr. Ravinder Sidhu, to whom I shall refer as "the plaintiffs," raised their action in the Brentford County Court. In their particulars of claim they alleged that the loss and damage which they had suffered was caused by the respondent's negligence. Their proceedings were issued on 30 July 1993, which was outside the two year time limit allowed by article 29 of the Convention but inside the three year time limit which was otherwise applicable. No claim was made by them under any of the provisions of the Convention. The respondents applied for an order that their action be dismissed as it was time barred by article 29. When their application came before Judge Marcus Edwards they also submitted that the Convention provided the exclusive remedy in respect of claims for damages arising out of international carriage by air of persons and baggage for reward. On 28 February 1994 the judge, who was referred to Lord Marnoch's decision in the pursuer's case, held for the same reasons as those given by Lord Marnoch that the plaintiffs had no rights save under the Convention. He also held that their right to damages, if any, was extinguished by article 29 of the Convention two years after 2 August 1990, and he dismissed their claims. On 27 January 1995 the Court of Appeal (Leggatt, Swinton Thomas and Otton L.JJ.) (unreported), Court of Appeal (Civil Division) Transcript No. of 1995, dismissed the plaintiffs' appeal against the order which had been made by Judge Marcus Edwards. The plaintiffs' appeal to this House against the order made by the Court of Appeal was heard together with the pursuer's appeal against the interlocutor of the Extra Division of the Court of Session.
THE FACTS
The pursuer and the plaintiffs were all fare paying passengers on the same flight, BA.149, which left London Heathrow for Kuala Lumpur at about 6.15 p.m. on 1 August 1990. The flight was scheduled to travel to Kuala Lumpur by way of Kuwait and Madras. It was due to arrive at Kuwait in the early hours of the following day, 2 August 1990. According to the pursuer's pleadings in the Scottish action, relations between Iraq and Kuwait had been deteriorating for some days prior to the departure of the flight from Heathrow. She avers that the respondents knew or ought to have known that the passengers would be at severe risk if the aircraft were to land in Kuwait after hostilities had been commenced against Kuwait by Iraq. The same point is made by the plaintiffs in their particulars of claim, where they refer to the respondents' negligence in landing their aeroplane in Kuwait when they knew or ought to have known of the hostile situation between Iraq and Kuwait and the possibility that war might break out and Kuwait be invaded by Iraq. In the event the invasion of Kuwait by Iraq began at about 11.15 p.m. on 1 August 1990. About four hours later, at about 3.00 a.m. on 2 August 1990, the respondents' aircraft landed at Kuwait airport for refuelling. The passengers disembarked into the transit lounge at the airport terminal. While they were in the terminal the airport was attacked by Iraqi aircraft and taken over by Iraqi soldiers. The airport was closed, and the passengers and crew of flight BA.149 were detained by the Iraqis and later removed to Baghdad.
The pursuer avers that she was detained by Iraqi forces for a period of about a month. She claims to have suffered psychological injury due to the stress resulting from her captivity and the pain of separation from her family. She also claims that she was off work on a number of occasions as a result of the psychological consequences. She claims damages of £100,000 on the ground that the respondents were in breach of an implied condition of her contract with them that they would take reasonable care for the safety of their passengers, in respect that they allowed their aircraft to land at Kuwait when they knew or ought to have known that the passengers were exposed to risk due to the invasion. Her alternative claim for damages caused by delay under article 19 of the Convention was, as I have said, held by Lord Marnoch to be irrelevant and no further issue arises on that point. She made no claim against the respondents under article 17 of the Convention.
The plaintiffs state that they were detained by the Iraqi forces until about 21 August 1990. In their particulars of injuries they allege that they suffered physical and psychological injuries. These included mental injury comprising stress and anxiety and possible permanent psychological damage as a result, and bodily injury comprising loss of weight, eczema and excessive menstrual bleeding. They also claim for loss of baggage amounting to £2,562.93 as special damages. Their action has been based entirely on negligence at common law. The negligence relied on in their particulars falls under three heads: landing their aircraft in Kuwait when the respondents knew or ought to have known of the hostile situation between Kuwait and Iraq and the possibility that war might break out and...
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