The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of accident in Fenton required adjustment in this context: for Convention purposes the ‘loss or hurt’ cannot itself be the ‘accident’. Article 17 distinguishes between the bodily injury on the one hand and the ‘accident’ which was the cause of the bodily injury on the other. It is the cause of the injury that must constitute the ‘accident’. Second, it is important to bear in mind that the ‘unintended and unexpected’ quality of the happening in question must mean ‘unintended and unexpected’ from the viewpoint of the victim of the accident. It cannot be to the point that the happening was not unintended or unexpected by the perpetrator of it or by the person sought to be made responsible for its consequences. It is the injured passenger who must suffer the ‘accident’ and it is from his perspective that the quality of the happening must be considered. There was now a strong international consensus as to the interpretation of the convention.
Baroness Hale of Richmond: ‘Once it is clear that the accident which causes the injury must be something other than the injury itself, it becomes equally clear that the suffering of an internal reaction to an ordinarily uncomfortable journey by air, during which nothing untoward other than that reaction took place, cannot fall within article 17 of the Warsaw Convention. ‘
Lord Mance: ‘The concepts deployed in the Convention are thus autonomous international concepts. The legislative history and travaux preparatoires may be considered to resolve ambiguities or obscurities, when the material is publicly available and points to a definite consensus among delegates. It is also legitimate to have regard to any subsequent practice among the parties which is capable of establishing their agreement regarding interpretation.’
Lord Mance: ‘there was no unexpected or unusual event on board or during embarkation or disembarkation within the useful paraphrase suggested in Saks, however broadly that may be viewed, and that, viewing the matter in the simple terms of article 17 (which is the ultimate test), the situation does not fall within any ordinary or extended conception of ‘accident’.’
Judges:
Lord Scott of Foscote, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance
Citations:
[2005] UKHL 72, Times 12-Dec-2005, (2006) 87 BMLR 1, [2006] 1 All ER 786, [2006] 1 Lloyd’s Rep 231, [2005] 3 WLR 1320, [2006] 1 AC 495, [2005] 2 CLC 1083, [2006] PIQR P14, [2006] 1 All ER (Comm) 313
Links:
Statutes:
Carriage of Air Act 1961 Sch 1 Art 17
Jurisdiction:
England and Wales
Citing:
Cited – King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines HL 28-Feb-2002
Psychiatric Injury under Warsaw Convention
The applicants were passengers who claimed damages for psychiatric injury, after accidents in aircraft.
Held: The Convention created strict liability on air carriers, but explicitly restricted damages to be payable for ‘bodily injury’. That . .
Cited – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .
Cited – Fenton v J Thorley and Co Ltd HL 1903
A workman who ruptured himself by an act of over-exertion in trying to turn a wheel was held to have suffered an injury ‘by accident.’ The act of turning the wheel was not in itself an accident. But the injury which the man sustained while carrying . .
Cited – Stag Line v Foscolo, Mango and Company HL 1931
English statutes which give effect to international conventions need to be interpreted with the international origin of the rules well in mind. The Act only applies to contracts of carriage of goods outwards from ports in the United Kingdom, and the . .
Appeal from – In re Deep Vein Thrombosis and Air Travel Group Litigation CA 3-Jul-2003
Passengers on air flights who had suffered deep vein thrombosis through inactivity whilst travelling sought damages.
Held: The claim in its nature was for something unrelated to any particular event. The word ‘accident’ necessitated some sort . .
At first instance – In re Deep Vein Thrombosis and Air Travel Group Litigation QBD 20-Dec-2002
The claimants claimed to have suffered deep vein thrombosis having been sat in cramped conditions for long periods whilst travelling by air. They sought compensation, saying that the failure by the airlines to warn them and take steps to minimise . .
See Also – Deep Vein Thrombosis and Air Travel Group Litigation, Re CA 3-Jul-2002
Group litigation between the appellant passengers and the respondent carriers. Most of the passengers allege that they have suffered deep vein thrombosis leading to serious injury, as a result of travelling in the carriers’ aircraft. In some . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Cited – Chaudhari v British Airways Plc CA 16-Apr-1997
The passenger injured himself as he fell from an aeroplane chair because of pre-existing injury.
Held: He had no claim under the Convention. The falling of a semi-paralysed person whilst he was trying to get to his feet to go to the lavatory . .
Cited – Swiss Bank Corporation v Brink’s MAT Ltd 1986
. .
Cited by:
Cited – Barclay v British Airways plc CC 27-Feb-2008
(Oxford County Court) The claimant slipped as she boarded an aircraft and sought damages for injuries to her knee. Her claim was brought under the Convention. The defendant denied that the injury occurred as the result of an accident, saying that an . .
Cited – Barclay v British Airways Plc CA 18-Dec-2008
The claimant sought damages for personal injury. The airline said that the injury was not the result of an accident within article 17.1. She was walking down the aisle and slipped.
Held: The appeal was dismissed. The meaning of ‘accident’ . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Damages, Transport
Updated: 04 August 2022; Ref: scu.236381