B e f o r e :
| BEVERLEY ANNE BARCLAY
|BRITISH AIRWAYS Plc
Counsel for the Defendant: Jonathan Chambers Esq, instructed by Gates and Partners, London EC3R 8EE
Hearing dates 12, 13, 27 February 2008
"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.
i) bodily injury
ii) caused by "an accident"
iii) on board the aircraft
The basic issue
Approach to the law and facts
What happened - the agreed facts
"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 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 regulation."
What happened - elucidation/qualification of the agreed facts
a) the fall was not an event external to Mrs Barclay and
b) in any case, the cause of the fall was not "unexpected" or "unusual" in that neither of those adjectives would be apt to describe the strip on which she slipped (or the presence of reclined seats).
" Counsel for the parties were in broad agreement as to the principles of interpretation of article 17 that should be applied. The important principles for present purposes are that:
(1) the starting point is to consider the natural meaning of the language of article 17, with the French text prevailing in case of any inconsistency with the English text [that caveat no longer applies - this was the Warsaw Convention];
(2) the Convention should be considered as a whole and given a purposive interpretation;
(3) the language of the Convention should not be interpreted by reference to domestic law principles or domestic rules of interpretation; and
(4) assistance can and should be sought from relevant decisions of the courts of other Convention countries, but the weight to be given to them will depend upon the standing of the court concerned and the quality of the analysis. I would add to these that the balance struck by the Convention between the interests of passengers and the interest of airlines ought not to be distorted by a judicial approach to interpretation in a particular case designed to reflect the merits of that case. The point was well put by Scalia J in his dissenting opinion in Husain v Olympic Airways (2004) 124 S Ct 1221, 1234 (an opinion with which O'Connor J concurred):
"A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an 'accident'. Whatever that term means, it certainly does not equate to 'outrageous conduct that causes grievous injury'. It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue Unless there has been an accident, there is no liability, whether the claim is trivial or cries out for redress."
 I think at this point a word of caution about the process of interpretation is in order. It is not the function of any court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to article 17 liability, or of any of those conditions. The language of the Convention itself must always be the starting point. The function of the court is to apply that language to the facts of the case in issue. In order to do so and to explain its decision, and to provide a guide to other courts that may subsequently be faced with similar facts, the court may well need to try to express in its own language the idea inherent in the language used in the Convention. So a judge faced with deciding whether particular facts do or do not constitute an article 17 accident will often describe in his or her own language the characteristics that an event or happening must have in order to qualify as an article 17 accident. But a judicial formulation of the characteristics of an article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention. It should be treated for what it is, namely, an exposition of the reasons for the decision reached and a guide to the application of the Convention language to facts of a type similar to those of the case in question."
"a determination that plaintiff's injury amounts to an "accident" under [Article 17] would be tantamount to the imposition of strict liability on air carriers, which the drafters of the Convention clearly did not countenance."
 The definition of "accident" in Saks gives that word a natural and sensible meaning in the context in which it appears and has been approved by this court. We propose to apply it in the present case.
 There is nothing in Saks that justifies the requirement that an "accident" must have some relationship with the operation of the aircraft or carriage by air. Nor do we consider that a purposive approach to interpretation requires that gloss on the word. Article 20 of the Convention provides: "The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures."
 Liability under article 17 only arises in relation to an accident that occurs on board the aircraft or in the course of embarking or disembarking. Thus the accident will occur at a time when the passenger is in the charge of the carrier. In those circumstances it seems to us to be a logical and reasonable scheme of liability that, whatever the nature of the accident [emphasis added], a passenger should be entitled to be compensated for its consequences where the carrier is not able to discharge the burden imposed by article 20.
Unusual or unexpected
"15 In Air France v Saks 470 US 392 O'Connor J, having cited Lord Lindley's definition of an "accident", having surveyed the French case-law and dictionaries and having reviewed the history of the negotiations that had led to the Convention, concluded, at p 405:
"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.""
16 Two features of this conclusion, both of which can be regarded as prompted by the facts of the Saks case, warrant some comment. The facts were these. The claimant had suffered damage to and become permanently deaf in an ear as a result of pressurisation changes while the aircraft was descending to land. But the pressurisation system of the aircraft had operated in an entirely normal manner. The airline contended that the normal operation of a normal pressurisation system could not qualify as an article 17 accident. O'Connor J agreed. The damage to the claimant's ear could not itself constitute the article 17 accident. The cause of the damage had to be the accident. But the pressurisation system had operated normally. This is the factual background that led O'Connor J to formulate the requirement of an "unexpected or unusual event or happening that is external to the passenger" (emphasis added). In doing so she noted, at p 404:
"European legal scholars have generally construed the word 'accident' in article 17 to require that the passenger's injury be caused by a sudden or unexpected event other than the normal operation of the plane."
And, at pp 404-405:
" American decisions while interpreting the term 'accident' broadly nevertheless refuse to extend the term to cover routine travel procedures that produce an injury due to the peculiar internal condition of a passenger."
17 Both the requirement that the causative event be unusual and that it be external to the passenger were prompted by the facts of the Saks case. Both requirements were emphasised by O'Connor J in passages at p 406 of her opinion:
"when 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."
"Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger."
"18 O'Connor J's opinion in Saks has been widely followed both in the United States and in the courts of other signatory states. Both the standing of the court and the reasoning of the opinion justify that reliance. Moreover, as I have already observed, it is of importance that if possible a uniform interpretation of the Convention should be applied in all signatory states."
""accident" is not to be construed as including any injuries caused by the passenger's particular, personal and peculiar reaction to the normal operation of the aircraft"
"what befell Mr Chaudhari was not caused by any unexpected or unusual event external to him but, but by his own personal, particular and peculiar reaction to the normal operation of the aircraft. As the judge said, he fell as the result of his pre-existing medical condition".
Other help with "mere fall"
" I would particularly like to associate myself with the observations of my noble and learned friend, Lord Scott of Foscote, on the dangers of interpreting the words of the decision of a court, which is interpreting the words of the Convention, as if the court's words were those of the Convention. If I fall over during a flight to New York, and break an arm, I suspect that we would all agree that my broken arm was caused by the accident of my fall; and we would do so irrespective of the reason for my fall; if it was my own silly fault, article 21 may relieve the airline of some or all the liability imposed by article 17, but that is another matter. In reaching those conclusions, we should not be agonising too much over whether my fall was an event "external" to me. We should simply be asking whether it was an "accident" which led to my injury. My own synonym for "accident" would be "untoward event" but that is by the way."
" Death from entirely natural or internal causes may be described as accidental, but it is not caused by an accident, which is what matters under article 17; and, if a passenger were to suffer bodily injury as a result of a fall on board which was due to some internal condition (such as partial paralysis or drunkenness) not sensibly attributable to the airline, it seems improbable that his injury should be regarded as caused by a relevant accident: "
The cause of the injury, or of the event?
a) injury caused by
b) an external event caused by
c) something unusual or unexpected
whereas on their face the Convention and Saks require only
a) injury caused by
b) an unusual or unexpected external event.
Other US cases and an Australian case
"nothing in the Husain case casts doubt upon the two important requirements of an article 17 accident that were established in the Saks case and have been applied fairly consistently ever since, namely that an event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an article 17 accident and, second, that the event or happening that has caused the damage of which complaint is made must be something external to the passenger." Lord Scott in DVT at ;
"Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger." Lord Steyn at ;
"the issue before us can be broken down into three aspects, namely whether there was (a) an event, which was (b) unexpected or unusual and (c) external to the passenger." per Lord Mance at .
Application of this decision
i) decisions of the County Court in England do not bind any court, including the same or any other County Court
ii) if this case, in the absence of clear English authority, is cited, particularly abroad, for the purposes of persuasion it should be recognised that this is a decision on its peculiar facts. In particular, this case is not about tripping over a bag in the aisle or on the wet floor of a lavatory or by reason of other external causes which, in my view, are causes which are unexpected from the point of view of the passenger and which do pass the Saks test. In common with the court in Singhal v BA, supra, I consider that the cases deciding to the contrary have, with respect, arguably strayed too far from the ordinary meaning of the word "accident" and may have resulted in a regime which is not "no fault liability" but, in practice in falling-over cases, something closer to "no no fault liability".
Judgment and costs
Permission to appeal
1. Sidhu v British Airways  AC 430 (HL)
2. Chaudhari v British Airways Plc The Times, 7th May 1997 Transcript No.590 of 1997 (CA)(BAILII:  EWCA Civ 1413 )
3. Morris v KLM Royal Dutch Airlines  QB 100 (CA)
4. Morris v KLM  2 AC 628 (HL)
5. In Re Deep Vein Thrombosis and Air Travel Group Litigation  1 All ER 935 (QB)
6. In Re Deep Vein Thrombosis and Air Travel Group Litigation  QB 234 (CA)
7. In Re Deep Vein Thrombosis and Air Travel Group Litigation  1 AC 495 (HL)
8. Air France v Saks (1985) 470 US 392 (US Supreme Court)
9. Carswell v Qantas No.5303 of 2002 (District Court of New South Wales)
10. Craig v Compagnie Air France (US District Court- affirmed by US Court of Appeals 9th Circuit 45 F 3d 435 (1994))
11. MacDonald v Air Canada 1971 439 F 2d 1402 (US Court of Appeals 1st Circuit)
12. Sethy v Malev Hungarian Airlines Inc 2000 U.S. Dist. Lexis 12606 (US District Court - affirmed by US Court of Appeals 2nd Circuit Lexis 12144)
13. Schwartz v Lufthansa German Airlines Aviation Cases 1039 3.94 24 Avi 17,841 (US District Court).
14. Potter v Delta Airlines Inc. 1996 98 F.3D 881 (US Court of Appeals 5th Circuit)
15. The Carriage by Air Act 1961 (as amended), and Schedule 1B thereto.
County Court Judgments
16. Williams v Air UK Leisure Ltd Liverpool County Court 28th April 1997.
17. Kedgley v Britannia Airlines Mr Recorder White Wandsworth County Court 1st September 2004.
18. Cannon v Mytravel HHJ Caulfield Manchester County Court 8th July 2005.
19. Duffy v Britannia Airways Ltd Mr Recorder Leeming QC Lancaster County Court 19th September 2005.
20. Singhal v British Airways plc DJ Banks (first instance) Uxbridge County Court 2nd November 2006.
21. Singhal v British Airways plc Mr Recorder Bueno Q.C. (on appeal from DJ Banks) Uxbridge County Court 20th October 2007 (corrected 23rd October 2007).
22. Shawcross & Beaumont Air Law (Volume 1) VII 629 662.