Ford v Malaysian Airline Systems Berhad

The question in this appeal is whether, in the circumstances of this case, the act of giving an air passenger an injection of a diuretic in the course of an international commercial flight, which injection (it is assumed for present purposes) thereby exacerbated the passenger’s physical discomfort caused by fluid retention resulting from urethral stenosis, constituted “an accident” for the purposes of Article 17.1 of the Montreal Convention 1999 “for the Unification of Certain Rules for International Carriage by Air” (“the Montreal Convention”). Judge Robert Owen QC had to decide this question at the trial of a preliminary issue that had been ordered in relation to a claim brought in the Birmingham County Court by Anne Ford (“Mrs Ford”) against Malaysian Airline System Berhad (“the airline”) for damages for “bodily injury”. The claim by Mrs Ford against the airline was made (as it had to be) (Footnote: ¹) exclusively on the basis of the Montreal Convention. Mrs Ford alleged that the act of another passenger, a doctor, in administering the diuretic by injection was an “accident” which caused her bodily injury within the meaning of Article 17.1. The airline denied that this act could, as a matter of law, constitute an “accident” within Article 17.1. The preliminary issue ordered was: “whether on the basis of the facts pleaded by the Claimant, there was an accident within the meaning of Article 17.1 of the Montreal Convention 1999”. By his judgment and order dated 11 July 2012, Judge Owen held it was not. Mrs Ford appeals to this court.

There has been an international convention on the liability of air carriers for death or bodily injury to passengers and loss or damage to baggage and cargo since the Warsaw Convention was agreed in 1929. That convention was amended several times. The terms of the Warsaw Convention, in its amended form, were given the force of law in the United Kingdom by the Carriage by Air Act 1961. The Montreal Convention replaced the amended Warsaw Convention. It was given the force of law in the United Kingdom by virtue of the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002, (SI 2002/263) which had the effect of inserting the Montreal Convention as Schedule 1B to the 1961 Act.

In the case of Re Deep Vein Thrombosis Group Litigation, (Footnote: ²) Lord Steyn described the purpose of the Warsaw Convention as being to “...bring some order to a fragmented international aviation system by a partial harmonisation of the applicable law”. He described that Convention as providing an:

“...exclusive code of limited liability of carriers to passengers.

On the other hand, it enables passengers to recover damages even though, in the absence of the Convention and the Act, they might have no cause of action which would entitle them to succeed. It follows from the scheme of the Convention, and indeed from its very nature as an international trade law convention, that the basic concepts it employs to achieve its purpose are autonomous concepts. For present purposes the compromise agreed at Warsaw involved the imposition of a form of strict liability on carriers in respect of accidents causing death, wounding or bodily injury to passengers in return for the limitations of liability expressed in the Warsaw Convention." (Footnote: ³)

Those views on “purpose”, “scheme” and “concepts” must equally apply to the Montreal Convention.

The Montreal Convention applies to all international carriage of persons, baggage and cargo by air for reward. Chapter II deals with the documentation and duties of the parties relating to the carriage of passengers, baggage and cargo. Chapter III is headed “Liability of the Carrier and Extent of Compensation for Damage”. Article

I therefore need only quote Article 17.1 and Article 20, which were the two articles particularly referred to in argument before us.

The relevant wording of Article 17.1 of the Montreal Convention is, for present purposes, the same as that of Article 17 the Warsaw Convention, although the latter did not have sub-articles. The correct interpretation of the Warsaw Convention Article 17 wording, in particular the proper interpretation of the words “the accident” and “bodily injury”, have been the subject of much judicial interpretation in many jurisdictions. Because the Convention is international in scope, it is accepted that the English courts should pay careful attention to those interpretations. It was common ground before us that the leading modern authority on the interpretation and scope of the words “the accident” in Article 17 of the Warsaw Convention is the opinion of the US Supreme Court in Air France v Saks, (Footnote: ⁵) which was given by Sandra Day O’Connor J. As Lord Scott of Foscote recognised in his speech in In re Deep Vein Thrombosis and Air Travel Group Litigation, (Footnote: ⁶)O’Connor J’s opinion in Saks has been widely followed both in the US and in the courts of other states who were parties to the Warsaw Convention. Lord Scott said that both the standing of the court and the reasoning of the opinion justified that reliance. Moreover it was, he said, important that, if possible, a uniform interpretation of the Convention should be applied in all signatory states. I respectfully agree. I shall have to consider that case, a number of subsequent English authorities and an Australian authority later on in this judgment.

The preliminary issue was decided by the judge on the basis of assumed facts as set out in the claimant’s statement of case. The judge also drew upon facts set out in paragraphs 5 to 8 of Mrs Ford’s witness statement and those set out in a medico-legal report dated 28 April 2011 by Mr Matthew Fletcher, a consultant urological surgeon. He had examined Mrs Ford on 12 April 2011. Both documents were before the judge as evidence for the purposes of the preliminary issue.

Mrs Ford, who was bom on 11 January 1962, had, by July 2009, a history of some gynaecological issues and she had been prone to recurrent symptoms suggestive of urinary infection, ie. cystitis. (Footnote: ⁷) She had treated herself and had bought “over the counter” medication to take if she had an episode of it. (Footnote: ⁸) She had packed this medication in her main luggage before going on her flight from London Heathrow to Melbourne Australia, via Kuala Lumpur, on 9 July 2009. There was no evidence before the judge concerning the nature of this medication. Before Mrs Ford boarded the aircraft she urinated normally at about 9pm. After she had boarded she slept for some time and awoke at about 6 am and went to the lavatory. She found she was unable to urinate and attributed this inability to cystitis. Because her cystitis mediation was in her hold luggage and she was concerned about the prospect of discomfort until she landed in Kuala Lumpur, Mrs Ford asked one of the cabin crew whether they had cranberry juice or bicarbonate of soda on board, as she had found them to be an effective and early means of treating a cystitis attack. The crew had none of either.

At around 7.30 am a crew member told Mrs Ford that there was a fellow passenger on board in the First Class compartment who was a doctor and who might be able to help. Mrs Ford agreed to see the doctor. Mrs Ford did not know the doctor and, it seems, she did not ask for any details of the doctor’s name or her qualifications or specialisation, if any. (Footnote: ⁹) Mrs Ford explained her symptoms and said that she might be experiencing the early symptoms of cystitis. The doctor asked the crew what medications they had on board and it appeared that there was nothing suitable. The doctor then suggested to Mrs Ford that she administer an injection of a diuretic. Mrs Ford was unsure what that was but the doctor explained that this would help her to pass urine within an hour. The doctor and Mrs Ford then went into a curtained off area of the flight deck and the doctor took Mrs Ford’s blood pressure which was “on the low side”. The doctor then administered the injection of diuretic into Mrs Ford’s buttock. The doctor also told Mrs Ford that she was dehydrated and that she should drink fluids and green tea, which Mrs Ford duly did.

Unfortunately Mrs Ford was not able to urinate, although she tried on three occasions after the injection. She started to feel unwell and suffered increasing lower abdominal discomfort over the next 2 hours or more. The airline alerted the airport at Kuala Lumpur to the problem and upon landing there Mrs Ford was medically examined and catheterised so that she could continue her journey to Melbourne. During that eight hour flight she could not urinate. When Mrs Ford arrived at Melbourne she was examined by Dr Russell Brown at the airport, who gave her some antibiotic medication. On 4 August 2009 Mrs Brown was seen by Dr Bachman and then by Dr Kapoor on 7 August 2009, who said that Mrs Ford was fit to fly back to the UK on 10 August 2009. Upon her return to the UK, Mrs Ford was examined by a number of doctors and various procedures were performed. The problem of being unable spontaneously to urinate apparently resolved itself by December 2009.

Mrs Ford was examined by Mr Fletcher on 12 April 2011. In his report dated 28 April 2011 he stated that the investigations carried out after Mrs Ford returned to the UK (which included examinations, scans and neurological investigations) demonstrated that there was no underlying neurological cause for Mrs Ford’s condition during the flight, nor was there any particular bladder problem. Mr Fletcher considered that Mrs Ford had suffered urine retention in the bladder, which then affected the kidneys’ ability to function properly. He considered that the most likely underlying cause was marked urethral stenosis, probably associated with Mrs Ford’s premature menopause.

At paragraph 3.7 of his report, Mr Fletcher states that, in his opinion it was “quite clear” that under the circumstances pertaining on the flight, “the administration of a diuretic.. .was an inappropriate action to take”. His report continues:

“With fluid restriction and no diuretics being administered, it is highly likely although Mrs Ford would have had an extremely uncomfortable flight, an episode of retention would not have been precipitated in this way.”

The judge summarised the “practical effect” of the intervention of the doctor on the flight as being: “...perhaps to exacerbate the discomfort which [Mrs Ford] experienced after about 6.00 am and which she would have experienced certainly to some degree, in any event due to her ‘constitutional’ condition”. (Footnote: ¹⁰) There was no evidence before the judge (or us) as to what the effect would have been if Mrs Ford had been able, during the flight from London to Kuala Lumpur, to take the medication that she had obtained for cystitis and there is, therefore, certainly no evidence to suggest that the effect would have been the same as that produced by the injection of a diuretic.

The judge reviewed the authorities, starting with Saks v Air France (Footnote: ¹¹) and continuing with Morris v KLM Royal Dutch Airlines (Footnote: ¹²) the judgments of the Court of Appeal and the House of Lords in In re Deep Vein Thrombosis and Air Travel Group Litigation (Footnote: ¹³) and the most recent English Court of Appeal judgment on the meaning of “accident” in the Montreal Convention, which was given by Laws LJ (with whom Thomas and Wilson LJJ agreed) in Barclay v British Airways PLC. (Footnote: ¹⁴) The judge also referred to two further US decisions.

The judge concluded that the injection could not properly constitute an “unexpected or unusual event or happening” or an “unintended and unexpected happening” (Footnote: ¹⁵). He emphasised the fact that Mrs Ford had consented to the injection and that it was administered in the hope and expectation that it would relieve what were believed to be the symptoms of cystitis. (Footnote: ¹⁶) The event complained of could not be said to be “external to anything done or omitted by the passenger victim”; it was not external to Mrs Ford. (Footnote: ¹⁷) Moreover, there was no reason to suppose that the diuretic was mistakenly or inadvertently injected. Even if the injection of the diuretic was “inappropriate” as Mr Fletcher later concluded, the reason for that was that, unbeknown to all concerned, it had no prospect of being effective, due to the underlying physical condition of Mrs Ford. (Footnote: ¹⁸) This could not bring the facts in this case within the meaning of the word “accident” in Article 17.1. (Footnote: ¹⁹)

On behalf of Mrs Ford, Mr Matthew Chapman referred us to the judgment O’Connor J in Saks v Air France. (Footnote: ²⁰) He relied particularly on the conclusion at the start of section III of her judgment, which states:

“We conclude that 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 the passenger’s injuries... ” (Footnote: ²¹)

He also relied on the passages at pages 406 and 407 of the report.

Mr Chapman referred us also to the other cases that I have mentioned at [15] above. Mr Chapman submitted that, in the circumstances in which it was administered, the injection of the diuretic was an “unusual event or happening” and that this “unusual” event was a “link in the chain” (Footnote: ²²) producing the exacerbated fluid retention and associated bodily discomfort that Mrs Ford suffered for (at least) the rest of the flight to Kuala Lumpur. That exacerbated fluid retention and associated bodily discomfort constituted “bodily injury”, or that fact could be assumed for the purposes of the preliminary issue. He submitted that the judge’s emphasis on the fact that Mrs Ford had consented to the injection being given was an irrelevant consideration; the event was still an unusual one and was the result of something that was “external to the passenger” to use the phraseology of O’Connor J in Saks v Air France. (Footnote: ²³)

Mr Robert Lawson QC, appearing for the airline, emphasised that this court should not engage in “interpreting an interpretation” (Footnote: ²⁴) of the wording of Article 17.1 by attempting to fit the facts of the present case to those of other cases where the meaning of “accident” in Article 17.1 has been in issue. Mr Lawson submitted that the Saks interpretation of Article 17 of the Warsaw Convention had been almost universally adopted in other common law jurisdictions (and indeed others) and should be followed. He accepted that the “informed consent” of Mrs Ford was irrelevant to the issue of whether there had been an “accident” within the meaning of Article 17.1. He submitted that the key issue was the nature of the event, “external to the passenger”, that had happened. In this case, he submitted, the event was not “unusual” and it was not made “unusual” by the fact that the injection of a diuretic was unsuccessful in dealing with Mrs Ford’s condition. Mr Lawson also submitted that it was vital to recognise and give effect to the difference between the word “accident”, used in Article 17.1 and the word “occurrence” used in Article 18 of the Warsaw Convention. (Footnote: ²⁵) He relied on the passage in Lord Scott’s speech in the Deep Vein Thrombosis case, (Footnote: ²⁶) quoted by Laws LJ in the Barclay case (Footnote: ²⁷) in which Lord Scott emphasised that “occurrence” permitted no distinction to be drawn between different types of happening, whereas “accident must have been used, in contrast, to denote an occurrence of a particular quality...[or] having particular characteristics”. An injection that is administered in a normal manner is not ‘"unexpected” or “unusual” or “untoward”. (Footnote: ²⁸) Mr Lawson emphasised that the “accident” must cause the bodily injury rather than the injury being itself accidental.

In conclusion Mr Lawson submitted that this court should pose the same question as that posed by Kay LJ in his judgment in the Deep Vein Thrombosis case, (Footnote: ²⁹) adapted to the circumstances of this case. So, to the question: was there, on any recognised meaning of the word, an “accident” in circumstances where a passenger was given an injection (in a normal manner) during a flight? He submitted that the answer, as that given by Kay LJ, was “quite simply, no”.

In Fenton v J Thorley & Co Ltd (Footnote: ³⁰) Lord Lindley pointed out that “accident” is not a technical legal term with a clearly defined meaning. He said that, generally speaking, “...an accident means any unintended and unexpected occurrence which produces hurt or loss”. Lord Lindley also pointed out that the same word is often used to denote an unintended or unexpected loss or hurt apart from its cause. In Saks v Air France O’Connor J began her analysis of what “accident” meant in Article 17 of the Warsaw Convention by quoting this well-known passage from Lord Lindley’s speech in the Thorley case, but she went on to demonstrate that the word “accident” in the Convention does not have the same meaning as that suggested by Lord Lindley. Thus, as Lord Scott of Foscote noted in the Deep Vein Thrombosis case, (Footnote: ³¹) O’Connor J was clear, first, that “accident” in Article 17 refers to the cause of the passenger’s injury, not the injury itself. Secondly, this cause must be an “event” or a “happening” (Footnote: ³²) which itself has the characteristic of being “unexpected” or “unusual”. It is clear from all the cases that there is no distinction in meaning between “event” or “happening”. However, there could be a distinction between an event which is “unexpected” and one which is “unusual”. Although an event which is “unexpected” is likely to be “unusual”, an event which is“unusual” is not necessarily one that is totally “unexpected”. However, I accept that in many cases an event that is “unusual” will be one that is also “unexpected”.

In the Deep Vein Thrombosis case Lord Scott of Foscote states that the relevant event or happening must be “unintended and unexpected” (Footnote: ³³) from the point of view of the victim of the accident. It is from the victim’s perspective that the quality of the event or happening has to be considered. (Footnote: ³⁴) In other words, it is from the victim’s point of view that the event or happening has to be “unexpected” or “unusual”.

It is also clear that it is the “unexpected” or the “unusual” nature of the event that must be “some link in the chain” which results in the “bodily injury” of the passenger. Hence, at page 406 of the Saks case, O’Connor J states:

“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”.

This leads on to a consideration of the third qualification which was made by O’Connor J and which has been universally accepted since Saks v Air France, viz. that the “unexpected” or “unusual” event must be “external” to the passenger. The facts of the Saks case itself show the point that O’Connor J was making. There the passenger had been made deaf in one ear as a result of the normal operation of the aircraft’s normal pressurisation system. The injury to the passenger was caused by “the peculiar internal condition” of the passenger, rather than some “unusual” or “unexpected” external event which was (at least) a cause of the “bodily injury” of the passenger.

In the present case, on the assumed facts there can be no doubt that the effect of the injection of the diuretic, together with Mrs Ford drinking green tea and other fluid as the doctor counselled her to do, was that Mrs Ford’s kidneys became more active, so that more fluid was produced and, because of her urethral stenosis, she suffered increased fluid retention and increased discomfort. So the immediate cause of the alleged “bodily injury” was the “peculiar internal condition” (Footnote: ³⁵) of Mrs Ford, just as it was held to be in the Saks case itself and in the Deep Vein Thrombosis case. In those cases the trigger on the “peculiar internal condition” of the passenger which produced the “bodily injury” complained of was the “usual, normal and expected operation” (Footnote: ³⁶) of the aircraft. Hence there could be no “accident” in either case because there was nothing “unexpected” or “unusual” that had any causative effect in the “chain of causes” resulting in the “bodily injury” complained of. I think that the same analysis applies in the Barclay case, because it was the inept action of the passenger in relation to the aircraft’s plastic strip along the gangway, which was a normal and expected construction of the aircraft, that was the cause of the “bodily injury” in that case.

However, even if the immediate cause of Mrs Ford’s “bodily injury” was her “peculiar internal condition” (ie. her urethral stenosis), if a cause that led to the reaction was an event that was external to Mrs Ford and was one that was “unusual” from her perspective (as opposed to that of anyone else), then, as I understand the meaning of “accident” in Article 17.1 as interpreted in the cases, this would bring the present case within its terms. So, in my view, the key issue is whether the actual act of giving Mrs Ford an injection of a diuretic in the circumstances that prevailed can be characterised as an “unusual” event from the perspective of the ‘victim”, Mrs Ford and the “unusual” nature of that event was “a cause” leading to the “bodily injury” alleged. (Mr Chapman did not, rightly, argue that there was an “unexpected” event).

I find this a difficult question, which can be easily argued both ways. The administration of an injection in the course of an international flight by a doctor passenger after a very brief discussion with the patient when neither previously knew the other is not part of the usual, normal or expected operation of the aircraft, although the action of the air hostess in asking the doctor passenger if she could help probably was. On the other hand, the actual administration of an injection by a doctor, in the hope and expectation that it would relieve the condition complained of (cystitis), is quite usual. Therefore, if the act of administering the injection is to be characterised as “unusual” and this unusual characteristic was a cause leading to Mrs Ford’s “bodily injury”, then this must be because the particular circumstances in which the act was performed, viewed from the perspective of Mrs Ford, make it so, whilst excluding from consideration Mrs Ford’s actual reaction to the injection, which was the result of her “peculiar internal condition”.

I have concluded that the circumstances in which the injection was administered by the doctor cannot be characterised as “unusual” for the purposes of Article 17.1. There is no evidence that the actual administration of the injection was done in an abnormal way. The only “unusual” aspect of the whole process was that it was carried out in the course of an international flight by a passenger doctor on another passenger (with proper consent) as a result of a request to the doctor for assistance by a crew member. But the key point is that there is no evidence that any of those characteristics had any causative effect in the chain of events that led to Mrs Ford’s “bodily injury”. The same chain of events would have taken place wherever the injection had been administered. It seems to me that the simple fact that the injection was administered in mid-flight rather then elsewhere cannot provide the circumstances with the necessary “unusual” characteristics so that this event constitutes an “accident” within Article 17.1. I would adopt the language quoted by Lord Phillips of Worth Matravers MR in his judgment in the Deep Vein Thrombosis case: (Footnote: ³⁷) “If the event on board an airplane is an ordinary, expected and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening”. The event in this case is the actual administration of the injection. That, in itself, was not unexpected, or unusual.

There was some debate before us about the effect of statements made by Laws LJ at [35] of his judgment in the Barclay case (Footnote: ³⁸) and whether in Air Link Pty Ltd v Paterson (Footnote: ³⁹) the New South Wales Court of Appeal, in particular Sackville AJA, were correct in suggesting that Laws LJ had stated that a passenger must demonstrate that the “event causing injury occurred independently of anything done or omitted by the passenger”. (Footnote: ⁴⁰) I certainly do not read Laws LJ as laying down any such condition in that passage of his judgment; indeed, it would be inconsistent with all the case law since Saks v Air France. All he was doing was emphasising that the “unusual” or “unexpected” nature of the “event” or “happening” must be external to the passenger and the relevant cause (from the “unusual” or “unexpected” nature of the “event” or “happening” which is part of the causal chain leading to the “bodily injury”) must be independent of anything done or omitted by the passenger, rather than being what was done or omitted by the passenger. In that case it was the passenger’s action in the way she got into her seat that caused the injury.

I would dismiss the appeal.

I agree.

I also agree.