Qantas Ltd v Povey
[2003] VSCA 227
•23 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7223 of 2001
| QANTAS LTD. and BRITISH AIRWAYS PLC | |
| Appellants | |
| v. | |
| BRIAN WILLIAM POVEY | Respondent |
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JUDGES: | ORMISTON and CHERNOV, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 28-30 July 2003 | |
DATE OF JUDGMENT: | 23 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 227 | |
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PRACTICE AND PROCEDURE – Appeal from refusal to give judgment for airline defendants or to order that proceeding be stayed, and from refusal to strike out paragraphs in statement of claim – Long-haul international flights – Plaintiff passenger allegedly sustaining bodily injury – Deep vein thrombosis and its complications – Whether pleading of bodily injury caused by an accident – Article 17 of the Warsaw Convention 1929 as amended by The Hague Protocol 1955 and by Protocol No. 4 of Montreal 1975.
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| APPEARANCES: | Counsel | Solicitors |
| For the 1st Appellant | Mr J.L. Sher, Q.C. | Minter Ellison |
| For the 2nd Appellant | Mr A. Meagher, Q.C. Mr B. Shields | Ebsworth & Ebsworth |
| For the Respondent | Mr J.B.R. Beach, Q.C. Mr B.F. Quinn | Slater & Gordon |
ORMISTON, J.A.:
These appeals put in issue the meaning of the word “accident”, as it is used in Article 17 of what is called “The Montreal No. 4 Convention”[1] (“the Convention”), as appearing in Schedule 5 to the Civil Aviation (Carriers’ Liability) Act 1959 (“the Act”)[2]. Article 17 of the Convention states:
“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.”
[1]See s.8(1)(e), s.25J and in particular the definition in s.5 of the Act. More fully the treaty is known as the “Warsaw Convention as amended at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975”: see also the heading to Schedule 5 of the Act and Article XV of the Montreal Protocol No. 4.
[2]The Montreal No. 4 Convention is given “the force of law in Australia” by s.25K of the Act, although regrettably neither the section nor any other part of the Act, nor any part of the Convention as printed in Schedule 5 of the Act, makes clear to which “carriages” by air the Convention applies. Article 1 refers merely to the place of departure and place of destination of the air carriage as being within the territory of “two High Contracting Parties or within the territory a single High Contracting Party”. Notwithstanding that the respondent originally pleaded, and the appellants as defendants originally admitted, that the relevant convention was the Warsaw Convention as amended at The Hague set out in Schedule 2 to the Act, the parties later agreed that it was Schedule 5 which set out the relevant convention and they agreed that the pleadings should be amended to reflect that, if the action were to proceed. It is doubly regrettable that there is no easy means of ascertaining who the relevant High Contracting Parties are to treaties which are made the law of the land.
In short the dispute is whether the word “accident” both connotes and requires a need for the plaintiff to prove a specific event, happening or incident, assuming it to be a cause of death, wounding or other bodily injury, in order to hold a carrier liable under the Convention, or whether it is sufficient to establish an omission to act or a failure to take some step or precaution together with other circumstances, which viewed as a whole are unusual or unexpected and are sufficient to amount to a cause of death or injury.
More particularly the respondent’s claim that an “accident” had occurred took the following form. He alleged that he had suffered from deep venous thrombosis (“DVT”) “during the course of or following the flights” conducted by the two appellants, saying that that condition and the resulting injuries were “caused by an accident which took place on board the aircraft upon which the flights were undertaken”. Particulars of the accident were given in the proposed amendments to the statement of claim which, in the first place, picked up from existing particulars some five “flight conditions”, being a confined and restricted physical environment in which the respondent was immobilised for a long time, impediments to his getting out of his seat, the supply of alcohol, tea and coffee to the respondent during the flights, discouragement from moving around the cabin and encouragement to remain seated and a failure to provide him with information or any warning about the risks of DVT and about measures to reduce those risks (which I shall call “the para.6 particulars”)[3]. Secondly, it was alleged that the appellants knew that those flight conditions were capable of causing or increasing the risk of passengers’ experiencing DVT in the absence of appropriate preventative measures, so it was unexpected and unusual that the plaintiff was subjected to those conditions. Finally, it was said that the respondent was not provided with any information or warning about the risk of DVT or of any measures to reduce the risk and that the respondent and other passengers expected to be provided with appropriate warnings, so that the failures to provide the warning and information were “unexpected and unusual”. Otherwise the facts and proceedings leading to this appeal by both carriers from a refusal to strike out the respondent’s claim are comprehensively set out in the judgment of Ashley, A.J.A.
[3]Because they appeared and still appear in para.6 of the Statement of Claim and are directly incorporated into the new particulars of the accident in para.21 of the proposed amended Statement of Claim.
In my opinion the word “accident” in Article 17 requires proof of a specific incident or occurrence which can be characterised as fortuitous. In other words it should be given its natural and ordinary meaning, namely an unexpected or unusual event, one which occurs by chance and without design, at least on the part of the person suffering death or injury. In the law the word “accident” has been given a number of meanings according to its context and it has perhaps been misused so as to cover the consequences of an untoward or fortuitous event, although rarely has it been used to comprehend occurrences which do not have the necessary element of chance, at least from the viewpoint of the victim. At one time the word ordinarily meant an event for which no reason could be advanced or blame ascribed, a truly fortuitous occurrence for which no person could be held responsible, as was once connoted by the coronial verdict of accidental death. More recently the word has been used to describe circumstances alleged to give rise to claims in negligence, where the essence of the allegation is not chance, but carelessness or worse. The meaning I prefer, however, is consistent with its meaning in “ordinary language” given by a majority of the High Court (Wilson, Deane and Dawson, JJ.) in Australian Casualty Co. Ltd. v. Federico[4]:
“It is something which happens without intention or design. When used with reference to something which causes injury, it means an unexpected and unintended mishap.”
[4](1986) 160 C.L.R. 513 at 527.
More importantly the meaning I would give to the word is consistent with the meaning given to the same word, as it appeared in identical terms in Article 17 of the original Warsaw Convention, in the opinion of the United States Supreme Court, delivered by O’Connor, J., in Air France v. Saks[5]:
[5]470 U.S. 392 (1985), at 405. Article 17 appears in identical form in the Montreal No. 4 Convention, but the official U.S. translation of the original Convention into English differs from that in Schedule 5 (and the other Schedules, including Schedule 1) of the Act in that “shall be” is substituted for the word “is” as the third word of the article: see 470 U.S. at 397. No significance has ever been placed on the difference.
“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.”
Her Honour proceeded immediately to say: “This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.” But, in order to show what flexibility she had in mind, the judge gave examples both as to the place where the accident occurs[6] and as to events when the cause of the accident is deliberate, such as a terrorist attack or a hijacking where it may properly be said that, although the persons causing the accident may have acted deliberately, it is entirely fortuitous and unexpected from the viewpoint of the passenger. Her Honour then continued[7]:
“But 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.”
Finally she said[8]:
“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.”
As will be seen, the latter words have been misunderstood on occasions, but it should be noted that again the critical expression “an unusual or unexpected event” appears there in almost identical terms to those found in the definition already quoted.
[6]Especially as to the “course” of embarkation and disembarkation: cf. Maugnie v. Compagnie Nationale Air France (1977) 549 F. 2d 1256.
[7]At 406.
[8]Ibid.
Although the respondent appeared to challenge the applicability and reliability of the definition in Saks, it has been subsequently followed without criticism (as one might expect) in the United States[9] and it has also been cited with approval by superior courts in the United Kingdom, Canada and Australia. In the House of Lords it has been approved in Morris v. KLM Royal Dutch Airlines[10], as well as in the Court of Appeal in particular in relation to a claim for DVT: see The Deep Vein Thrombosis and Air Travel Group Litigation[11]. In Canada it has been approved in Quinn v. Canadian Airlines International Ltd.[12] and McDonald v. Korean Air[13], both in the Ontario Court of Appeal. In this Court it was likewise cited, albeit in relation to the equivalent provision (s.28) in Part IV of the Act: see Agtrack (N.T.) Pty. Ltd. v. Hatfield[14]. Moreover counsel for the respondent were unable to take us to any decision in any jurisdiction, common law or civil, where the definition given in Saks had been disapproved. Having regard to the obvious desirability that treaties should be read and construed consistently,[15] the Saks definition should be accepted, whatever its merits or supposed deficiencies.
[9]See e.g. El Al Israel Airlines Ltd. v. Tseng (1999) 525 U.S. 155 at 165fn.9 and at 177 fn.1.
[10][2002] 2 A.C. 628 at 655 per Lord Hope of Craighead para.[71] and at 672 per Lord Hobhouse para.[134].
[11][2003] 3 W.L.R. 956. It had been earlier followed by that court in Chaudhari v. British Airways P.L.C. [1997] EWCA Civ 1413, as well as in Morris [2002] Q.B. 100 at 110.
[12][1997] Ont. CA. Lexis 267.
[13]18 February 2003, unreported.
[14][2003] VSCA 6 at para.[15].
[15]See Great China Metal Indonesia Co. Ltd. v. Malaysian International Shipping Corporation Berhad (1998) 196 C.L.R. 161 at 176, 186, 213.
The respondent contends that the word “accident” has a meaning which “is wide enough to include any kind of unfortunate or undesirable circumstances (or combination of positive and negative temporal conditions) whether brought about by an act or an omission”. Counsel on his behalf insisted that the primary focus in deciding whether something was an accident lay in the element of mischance, mishap or misadventure “the product of or involving the miscalculation of forces, or inadvertence to them”. This was not precisely the way in which the judge concluded that it was inappropriate to strike out the relevant paragraph of the statement of claim and the proposed particulars. His Honour clearly enough held that a mere failure to warn could not constitute an accident (see para.[35] of his judgment[16]), but he appeared to conclude that it was open to find an accident, within the definition in Saks, by showing that there was a failure to warn of the risks of DVT known to the appellants and to advise as to precautions which they knew passengers could take to minimise or eliminate those risks. In those circumstances his Honour held that a failure to warn would be but one, “even if the most important, of the many factors which the plaintiff includes in the particulars of the relevant accident as he argues it upon his expanded case”: para.[44].
[16][2002] VSC 580.
Doubtless it is desirable, as O’Connor, J. observed in Saks, to give the term “accident” a flexible meaning and one which is capable of adaptation to a variety of circumstances, but I fail to see how that which is now pleaded by way of particulars could amount to an “accident”, for those matters amount to no more than a chain of circumstances, indeed, as argued, a “particular set of conditions”, which could never be characterised as the kind of “event or happening” or “mishap” which can constitute an “accident”. What one is looking for, in the ordinary acceptation of the term, is a mishap, a chance occurrence, a fortuitous and unexpected event. Moreover, in the present context one may not look individually at any one (or more) of those circumstances which might lead to a conclusion that an outcome is fortuitous or unexpected, unless that circumstance amounts to an act or event which is accidental. Nor can one look to a mere set of circumstances, howsoever fortuitous and unexpected the resulting physical condition or disorder might be, as in the chance incurring, unrelated to a specific act or event, of an injury or other medical condition.
In the first place, one must be cautious not to characterise the accident by reference to its alleged outcome, the unfortunate and unexpected incurring of DVT. That is not because in different contexts the word “accident” cannot in some circumstances apply to an injury which a person unexpectedly suffers: indeed, in many contexts of the law “accident” may well mean “accidental injury”, as is the conventional shorthand in claims for negligence and in a large range of entitlements to compensation arising out of “injury by accident”. What is presently clear is that that was not what was intended to be covered by Article 17, and I am yet to see any authority which suggests that it does, although some American decisions, to which I will have to refer briefly, have tended to slide towards that conclusion by a misunderstanding of what was said in Saks. From time to time one can place too fine a distinction upon the use of words or the order in which they appear, but O’Connor, J. was fully aware of this, concluding nevertheless that the word “cannot be stretched to impose carrier liability for injuries that are not caused by accidents”[17].
[17]At 406.
The respondent placed considerable weight on the meaning given to the word “accident” by their Lordships in the well-known decision of Fenton v. Thorley & Co. Ltd.[18], but that is to misunderstand what O’Connor, J. was saying about the observations which she cited from the speech of Lord Lindley. Although his Lordship defined the term in an unexceptionable way, in general by referring to its meaning “any unintended and unexpected occurrence”, her Honour introduced her citation of the passage with these words[19]:
[18][1903] A.C. 443.
[19]At 398. The emphases are those of O’Connor, J. in both this passage and in that quoted below at fn.21.
“Second, the text of article 17 refers to an accident which caused the passenger’s injury, and not to an accident which is the passenger’s injury.”
She then said that the word “accident” can be used in many senses, and followed by quoting the relevant passage from the speech of Lord Lindley which concluded[20]:
“But [the word accident] is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word ‘accident’ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.”
As to this O’Connor immediately observed[21]:
“In article 17, the drafters of the Warsaw Convention apparently did make an attempt to discriminate between ‘the cause and the effect’; they specified that air carriers would be liable if an accident caused the passenger’s injury.”
[20]Fenton v. Thorley at 453.
[21]At 398-399.
The distinction between cause and effect so far as it applies to accidents and consequential injuries has been recognised for many years, the traditional starting point being the decision in Fenton and in particular the speech of Lord Macnaghten who, distinguishing other collocations of the words “accident” and “injury”, said this[22]:
[22]At 448.
“Now the expression ‘injury by accident’ seems to me to be a compound expression. The words ‘by accident’ are, I think, introduced parenthetically as it were to qualify the word ‘injury’,
confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design.”
The parenthetical or adjectival use of “accident” in relation to claims for workers’ compensation and the like based on the statutory requirement of proof of an “injury by accident” has been accepted for a century in the United Kingdom, Australia and the United States, at the least, and it has been well understood that the use of expressions such as “an injury caused by an accident” may well require proof separately of both accident and injury. It is sufficient to point out that the distinction has been repeated and reinforced time and time again by decisions in this country and in particular in the High Court: see e.g. McGuire v. Union Steamship Co. of New Zealand[23], when, even at that time, Knox, C.J. said that it must be taken as “settled by a long series of decisions” that the statutory expression meant “accidental injury”[24] and Isaacs and Rich, JJ. said that Lord Macnaghten’s speech had by then “practically the force of an Act of Parliament”[25]. Again in Hetherington v. Amalgamated Collieries of W.A. Ltd.[26], another case of general importance on the meaning of the workers’ compensation legislation, Latham, C.J. said[27], in referring to Fenton, that the phrase “injury by accident” meant accidental injury and that since that decision “it has not been necessary to show, first, that something to be described as an accident happened, and secondly, that something else, namely, an injury, was brought about or caused by that accident”. It is clear that the other judgments in that case approached the matter on a similar basis but these are all reasons why it is necessary to be cautious in applying Fenton’s case to the present, as O’Connor, J. clearly held in Saks. More recently, when a similar issue arose relating to the expression “bodily injury caused by an accident” in a disability policy, the High Court again recognised the distinction, although the majority took a somewhat different approach from that of the other members of the Court: see Federico, in the passage cited above in para.[4] esp. per Gibbs, C.J.[28] and per Brennan, J.[29]. See also the detailed and informative discussion in Sutton Insurance Law in Australia, 3rd ed., paras.10.56 – 10.87.
[23](1920) 27 C.L.R. 570.
[24]At 573-574.
[25]At 585. See also per Gavan Duffy and Starke, JJ. at 591.
[26](1939) 62 C.L.R. 317.
[27]At 325.
[28]At 518-519 and 521.
[29]At 534.
Even if there may be doubt as to the proper construction of certain statutes and insurance policies, I do not doubt that the use of the word “accident” in Article 17 is not parenthetical or adjectival. It is not a provision where words such as “caused by accident” or “caused by an accident” are inserted as merely descriptive of the word “injury”, for there is a separate clause stating the circumstances under which liability arises expressed in terms “if the accident which caused the damage so sustained took place on board the aircraft etc.”. In those cases where the word “accident” has been used in an adjectival sense it is usually clear that the conditions for liability depend on the time or place of the suffering of injury or at least it is sufficiently ambiguous for it to be said that it depends on the time and place of the “accidental injury”, if so it should be properly construed.
In Article 17 there can be no ambiguity, for a condition of recovery is clearly proof that the posited accident has occurred at a prescribed time and place, in that the article requires the accident to take place either “on board the aircraft” or “in the course of any of the operations of embarking or disembarking”. Whatever the latter expression may precisely mean, and it has posed difficulties over the years, liability must depend on proof of an accident at one of those prescribed places and during one of the stages of the journey (since a journey may take place over a number of legs). The article requires not that the injury should take place during one of those stages (or at those places), although it may be highly likely in most cases that it would, but that the accident should so occur. It is not analogous to some workers’ compensation provisions whereby it was sufficient to prove an accidental injury so long as it “arose out of the employment”, for the article is concerned with the activities of the carrier, so that liability must logically be confined to those places (or times) for which the carrier may be seen in broad terms to be responsible. It would be curious, especially having regard to the history of the Convention, if a carrier were responsible for a merely fortuitous injury arising in the course of a journey by aircraft, unless something which took place on or in close proximity to the aircraft led to the injury. I would reach this conclusion notwithstanding that Article 20 permits the carrier to establish that it has “taken all necessary measures to avoid the damage or that it was impossible for [it] to take such measures”, for that language seems more apposite to the construction which I would put on the article than that which involves liability for any “accidental injury”.[30]
[30]See also the observations on article 20 by O’Connor, J. in Saks at 402. Note that the form of article 20 there discussed was that in the original Warsaw Convention, but its substance was virtually identical.
Of course the respondent did not argue directly along such lines, for that would have been inconsistent with existing authority, though it was argued that the ratio of Saks was narrow and might be challenged hereafter. Rather counsel said that a broad meaning should be given to the word “accident” so as to create liability in respect of those injuries such that, though the injuries did not flow from a direct or sudden occurrence, the word could be treated as wide enough to comprehend a set of circumstances in which one or more activities of the carrier could be described as unexpected or fortuitous. I note that the words actually used in the respondent’s submission to describe the required circumstances are “unfortunate or undesirable”, neither of which really have the connotation, required by the definition in Saks, that they be “unexpected or unusual”. That which is “undesirable” can be so characterised for a number of reasons, most of which would suggest some blame being ascribed to the carrier, whereas “unfortunate” has a pejorative tone but does not truly import the need to show a chance event as a cause of the injury. One may, however, assume that the onset of the plaintiff’s illness in this case was one which was fortuitous and unexpected, and it is alleged that the injury was in fact suffered on the last leg of the flight back to Sydney. But that, as I have said, is not sufficient.
The second aspect of the judgment in Saks which the respondent relies on, therefore, was the third passage from Saks set out above[31] in which O’Connor, J. said that the Court required “only that the passenger be able to prove that some link in the chain [of causes] was an unusual or unexpected event external to the passenger”. It was argued that it is sufficient to show only that some element in the chain is unusual or unexpected, although it could not be characterised as a specific unexpected or unusual event or happening. As the opening words of the sentence indicate, however, it was directed to a perennial problem in causation, namely, that it is often difficult to identify (where that is required) precisely what is the “proximate cause” of a particular injury. That difficulty, nevertheless, as O’Connor, J. there stated, might properly be overcome by requiring that the required unexpected or unusual event should be only a cause of the subsequent injury. She was not laying down an alternative means of recovery by showing that a chain of circumstances could in some way be characterised as so unusual or unexpected as to convert them into an “accident”: all she was recognising was that there could be a series of events and a set of circumstances which might lead to injury, but that amongst the facts and circumstances leading to the injury there should be an event “external to the passenger which could be characterised as unusual or unexpected”. Thus the requirement for an “accident”, in the correctly understood meaning of that term, remained as she had originally stated it. If some of the courts in the United States which have considered Saks have misunderstood what her Honour was saying, then I would not, with respect, accept their conclusions or their reasoning.
[31]See para.[5] fn.8.
A third argument depended upon drawing a positive inference from another passage quoted above from the judgment of O’Connor, J.[32] where she observed that, when an injury “indisputably results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft”, Article 17 cannot apply because the injury has not been caused by an accident. From this negative proposition it was sought to infer that, if one could find an injury flowing from an unusual, or abnormal, or unexpected aspect of an aircraft’s flight (or the embarking or disembarking of passengers from the flight), then that would be sufficient to amount to an “accident”, notwithstanding that no specific incident or event could be isolated as one of the causes of the injury. So the argument proceeded to give examples of aspects of flights which were out of the ordinary which might be said to be a cause of injury. In particular it was said that the failure to warn of DVT and give necessary advice about it was here unusual, because knowledge by the appellants of DVT at the relevant time was alleged and it is usual for carriers to issue warnings and advice about risks of which they had knowledge.
[32]See the second passage quoted in para.[5] fn.7.
I am afraid I cannot accept that what cannot be identified as a specific incident or event in relation to this or any other flight can properly be described as an “accident”, within the meaning of Article 17. The allegations in substance do no more than state a failure to do something, and this cannot be characterised as an event or happening, whatever be the concomitant background to that failure to warn or advise. That is not to say that a failure to take a specific required step in the course of flying an aircraft, or in picking up or setting down passengers, cannot lead to an event or happening of the requisite unusual or unexpected kind and thus be an accident for the purpose of the article. A failure by a pilot to use some device in the expected and correct manner, such as a failure to let down the landing wheels or a chance omission to adjust the level of pressurisation, may lead, as has been held, to an accident contemplated by Article 17, but I would venture to suggest that it is not the failure to take the step which is properly to be characterised as an accident but rather its immediate and disastrous consequence whether that be the dangerous landing on the belly of the aircraft or an immediate unexpected and dangerous drop in pressurisation. It is a slide in reasoning to say that every failure to do that which a carrier ought to do necessarily amounts to an accident, although it may frequently lead to such an event. A complete failure to do that which one might otherwise be under a duty to do may well be negligent and so “unexpected” by a passenger or any objective observer, but that will not in itself necessarily amount to an event or occurrence of the required kind. The question in each case still is whether there has been an accident. That is clear from the context in which the passage appears in O’Connor, J.’s judgment and from the tenor of her remarks generally.
Moreover it is hard to see how a failure to warn or advise passengers, a “non-event” as it were, can ever constitute an accident within the meaning of the article, notwithstanding the presence of surrounding circumstances which would make the failure unexpected or unusual. That again flows, as I have already pointed out, from the requirement to show that the accident “took place on board the aircraft” or in embarking or disembarking from it. Whatever might be said about failures to take specific actions in the course of flying an aeroplane, which will usually have disastrous consequences which themselves may easily be characterised as events or happenings, a failure to warn or advise is the non-performance of an expected duty which by its nature ordinarily is continuous. Obviously a failure to warn or advise would comprehend a period including the embarkation stage and the flight itself, but, if the respondent’s contentions be correct, surely in circumstances such as the present and in relation to a condition such as DVT, one would fairly expect the warning and advice to be given, at least in the first place, well before the embarkation and flight stages. The embarkation stage is ordinarily quite short, though it might be sufficient to cover the waiting lounge, but the practicality and usefulness of a warning given then, and certainly of one given on board the aeroplane, would be relatively slight, unless the advice was of a kind which was practical and would invariably prevent the possibility of suffering DVT as a result of a flight. The need for a warning, if there be one (for public knowledge may make that now otiose), must arise at a much earlier stage, indeed before the ticket is purchased or at least before a passenger starts to embark, so that the passenger is given a choice whether or not to run the risk. Is the failure then to warn subsumed in the continuous failure to warn thereafter, including during the flight? As I have already stated, the object of Article 17 in defining the stage at which an accident occurs is surely to make clear that the carrier is liable only for events which take place at an identifiable time, i.e. “on board the aircraft” or during embarkation or disembarkation.
Against this it was argued, as it has been in a number of the reported decisions, that to insist upon some event or action in the sense of an identifiable act or action on the part of the carrier or some person other than the passenger, as opposed to a failure to carry out one or more acts whether requested or not, would run the risk of inserting in the article the despised distinction between action and non-action, which from time to time has obtruded itself into the law of torts. But that is exactly what Article 17 on its face, particularly in the light of its gestation, was intended to do. It picked on the simple French (and English at that time) concept of an accident, something which would be capable of resolving the causative enquiry between the accident and the consequent injury required for liability to attach. Even at the time the Convention was entered into it was the concept of negligence which connoted, if not by then denoted, that what was required to be established in tort was a failure to take reasonable care.
The battles fought about action and inaction have nothing to do, essentially, with Article 17, for the posited event there is an “accident”. There is no need to incorporate into that undefined word concepts which are alien to the required precondition of an event or an occurrence of the requisite kind. Moreover the word in fact chosen was “accident”, with its connotation of “that which befalls one”. One may concede that usage in the English language tends to become less precise, dependent on the whims and usages of the day, but the same cannot be said[33] of the French language where a definition of the word “accident” in that language has been translated for the benefit of the Court as meaning a “fortuitous and unfortunate event, causing physical injury or material damage”. I cannot see that mere non-action or any failure to act, however egregious the negligence involved, should in itself be characterised as an accident. Sometimes inaction, indeed gross negligence, may lead to an event which may be characterised as an accident, but that is quite a different thing from mere inaction or any negligent failure to act, however serious. Thus significance has been placed in some American cases on one particular example of gross negligence by a flight attendant which resulted in severe scalding of a passenger.[34] But it was not the negligence which amounted to the accident in that case, it was the physical consequence or consequential event, in the example given, of the application of a boiling compress by the attendant on board the plane, which amounted to the accident. Of course, for liability to attach under the Convention, there was no need at that stage to concern oneself with negligence at all, for the Court was not required to concern itself with the reason for the application of the compress, only the fact of the unexpected application, just as in any other case it is the accident, not its cause, which will give rise to liability if that itself causes injury. So enquiries into negligence are not only misconceived, but in my view mischievous, inasmuch as it diverts attention from the real question, except where intent to harm or recklessness under Article 25 is also alleged.
[33]See esp. the discussion of the French text by O’Connor, J. in Saks at 398-400, esp. the Larousse definition at 400.
[34]Fishman v. Delta Airlines Inc. (1998) 132 F. 3d 138.
Fourthly, the respondent relied on contextual indications from other relevant articles. In particular he points to Article 25 of the Convention which reads:
“In the carriage of passengers and baggage, the limits of liability specified in article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.” (Emphasis added.)
Article 22, which need not be set out, is the article which imposes specific monetary limits for recovery of damages but includes limits not merely referable to Article 17, but also under Article 18, which gives a right to damages for loss of or damage to baggage during the whole of the period of “carriage”, and under Article 19, which makes the carrier liable for damage “occasioned by delay” to either passengers or baggage. It was argued that the word “omission” in Article 25 shows that an “accident” within Article 17 can comprehend such an omission, but in my opinion that is not established by the language used in Article 25. The article is dealing with particular exceptions to the limits laid down by Article 22 and thus it requires proof that the damage resulted from deliberate or reckless conduct on the part of the carrier or its agent. It does not require any separate enquiry whether an accident has occurred, for that must be assumed for the article to have any application to claims proved under Article 17, but looks at the reasons behind the accident which otherwise might be characterised as fortuitous and unexpected. It is thus concentrating on the cause of the accident, not on the accident itself, nor on its consequences, for it is seeking to impose additional liability where the cause of the disaster can be fairly sheeted home to carrier or agent. Thus a reckless omission may give rise to an accident, but that does not mean that the accident itself may be constituted by an omission. Moreover the limits in Article 22 apply not only to Article 17 but to Articles 18 and 19 and clearly enough “delay” in Article 19 might well come about by reason of an omission, for liability under that article is also intended potentially to be excepted from the limits in Article 22. No inference of the kind asserted can fairly be drawn, therefore, from the language of Article 25.
Parenthetically I should observe that one of the few matters upon which I agree with the contentions for the respondent is that the “unexpected or unusual” character of the event or happening should be determined from the viewpoint of the passenger. It must be accidental from the viewpoint of a passenger by reason of the fact that to him or her the event or happening is unexpected or unusual, whatever may be in the mind of the carrier or anybody else who perpetrates the act or event which is said to amount to an accident. That is an aspect of what is intended by the word “accident” which is not unlike that which is assumed in compensation and insurance law, for there would be little point in giving a remedy if the carrier could avoid liability by saying that to it the matter was usual, commonplace or merely within its expectations. Such a conclusion is consistent with the reasoning of O’Connor, J. who gave approval[35] to cases where the acts in question were the deliberate acts of others. Nor should there be some objective test based on what might generally thought to be unusual or unexpected, although the test as to what is “unusual or unexpected” is not to be determined by reference to the individual passenger; rather it should be ascertained from the viewpoint of an ordinary, reasonable passenger.
[35]At 405.
Fifthly, it was said that Saks stood only for what did not amount to an “accident” within the meaning of the article. In other words, the case was directed to circumstances where the injury was suffered by the plaintiff by way of severe pressure and pain in her ear occurring on board the aircraft but which was conceded to be no more than the passenger’s own “internal reaction to the usual, normal and expected operation of the aircraft”. It was, however, there alleged that that was an occurrence which consisted in the normal cabin pressure changes which the lower court held either individually or collectively could amount to an accident of the relevant kind. But that was why O’Connor, J. said that, where an injury results from the passenger’s internal reaction to such usual, normal or expected events, it has not been caused by an accident, because, even from the viewpoint of a reasonable passenger, it could not for that reason be so characterised. It was just one of the natural consequences of a flight. The injury itself may have been unexpected or unusual but that was why her Honour spent so much time pointing out the distinction in the article between “injury” and “accident”. So it was necessary to conclude that what must be shown is an unexpected or unusual “event or happening that is external to the passenger”. The relevant case law, the history of the Convention and the question of causation were each discussed by her in terms which lead me to the conclusion that her definition was directed[36] just as much to the event or happening which constitutes an accident as to the other negative issue raised before the Court. There is no reason in my opinion to limit the ratio of Saks.
[36]See the opening paragraph at 394.
Next it was said that this Court should not follow the recent decision of the English Court of Appeal in the DVT Group Litigation, but should prefer the decisions given in a number of U.S. jurisdictions, notably Husain v. Olympic Airways[37] and Fulop v. Malev Hungarian Airlines[38].
[37](2000) 116 F.Supp. 2d 1121; (2002) 316 F. 3d 829. An appeal by the defendant to the U.S. Supreme Court has been heard and judgment reserved on 12 November 2003.
[38](2001) 175 F.Supp. 2d 651, though it should be noted that the defendant was ultimately successful at trial (2003) 244 F. Supp. 2d 217.
I do not intend to canvass the wide variety of circumstances considered in the many decisions cited to this Court from the United States or in the further many cases themselves cited in those decisions. On occasions they have led to interpretations of the Warsaw Convention which, with the greatest respect, seem to have forgotten the language used there and the careful analysis by O’Connor, J. Regrettably, as I have already suggested, the reasoning seems in many cases to import notions of fault and negligence into an area where, with two very particular exceptions, it is irrelevant. Those exceptions relate to contributory negligence (Article 21) and to the removal of the limit in amount of damages under Article 25, where in effect gross negligence is proved. Each of those articles assumes that liability already has been found against the carrier.
What apparently has led the United States’ courts down this sterile and confusing path was O’Connor, J.’s correct but misunderstood reference to the need to show that the activating and causative “event or happening” is “unexpected or unusual”. This has been turned, by some courts, especially those deciding Husain, into an enquiry whether the injury has resulted from “unexpected or unusual” behaviour on the part of the defendant airline and more particularly of that of its staff. But “behaviour”, whether or not negligent, may not comprehend any event, happening or “accident” at all, more particularly where that behaviour consists merely in a failure to take expected steps or steps acceptable, or which otherwise should be required, in the industry. Although such behaviour is to be condemned, as may be discerned from the colourful language used in a number of the judgments, it does not answer the question whether there has been a defined event or happening which amounts to an accident within the meaning of the convention, however “flexibly” that should be applied. Too often in the cases the test of what is unusual or unexpected has been answered by reference to a failure to comply with the “recognised”, “controlling”, or “industry” standard of care of an airline, or its flight attendants or other staff: see the various expressions used in Husain[39]. The Court there also relied on what was described as a “failure to adequately respond”[40] and the “blatant disregard of industry standards”[41] But failures to respond do not necessarily result in “accidents”, though frequently, as may be seen from the law of torts, they lead to the suffering of injury. I believe some courts have been influenced by cases where failures of that kind have in fact led to accidents, such as where there has been a sudden diving of the aeroplane or the loss of pressure or even, as earlier noted, the application of a scalding compress, but colourful descriptions of the events are unnecessary where the enquiry is as to whether there has been an accident and in particular as to whether the event is unexpected or unusual.
[39]At 1132.
[40]Ibid.
[41]At 1134, second column.
In summary, the word “unexpected” (and the word “unusual”) was used by O’Connor, J., in my opinion, to reflect the obvious connotation of the word “accident”, namely, that the “event or happening” should be a fortuitous incident, that is, one which happens by chance and not by design, at least of the person who suffers the consequences. What is “expected” or “unexpected” should have nothing to do, in this context, with what one might expect in an ideal world, where nobody acts carelessly and where the standards of reasonable care are observed. It should be concerned with what actually happens in the ordinary course of events and whether in the conduct of carriage by air one might fairly contemplate or expect that a particular event or incident might happen, having regard to the way in which flights and related activities are ordinarily conducted. It is a simple factual enquiry, at least it ought to be, and no issue should arise as to what might be expected in an ideal, or at least a non-negligent, world. That is why concepts of negligence are irrelevant. As O’Connor, J. said[42], Article 17 requires “an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury”. That is one of the reasons why I prefer the clear and simple conclusions of the English Court of Appeal in the DVT Group Litigation case. One may regret that so few changes have been made to a convention negotiated over 70 years ago, but it was worked out as a compromise in light of existing circumstances and the laws of many countries at that time. The benefit of obtaining recovery without proof of fault, albeit partly qualified and up to fixed limits, was doubtless seen by the signatories as a fair trade-off for avoiding potential liability in more obscure cases based on allegations of negligence, faute or the like. It may in due course be renegotiated[43] but that had not been achieved by the time of the Montreal No. 4 Convention in 1975 with which we are here concerned.
[42]At 407.
[43]Apparently no change was made to the “accident” provision, as such, by the 1999 Montreal Convention, ratified by the U.S. on 31 July 2003.
Application of Article 17 to Alleged Circumstances
One may accept that it is inappropriate to strike out a pleading or dismiss it for failing to disclose a cause of action unless that is clearly required by law on consideration of the alleged facts and circumstances. Often it is said, and it is unnecessary to repeat the authorities, that it is better for a court and in particular an appellate court to know precisely what is the evidence before concluding that that evidence is insufficient to amount to a claimed cause of action. The present case may, on its surface, appear to raise some circumstances which would invoke the application of that rule of practice. On closer analysis, however, I do not think it does.
The allegations started out in relatively simple terms largely derived from a description of “the flight conditions” particularised in five different but cumulative ways and a bald allegation that there was “an accident which took place on board the aircraft”. Insofar as the description of the flight conditions referred to events or activities, such as the supply of beverages and discouraging the plaintiff from moving around the cabin, they could hardly, on the widest of interpretations, come within the expression “unexpected or unusual event or happening” used by O’Connor, J. in Air France v. Saks. So far as the ordinary conduct of flights are concerned those kinds of activities can only be described as common and mundane, whatever vices they might otherwise have. To this was added in paragraph (e) an allegation that the plaintiff had not been “provided with any information or warning about the risk of DVT” or about measures to reduce that risk. That factor on its own certainly could not amount to an accident for not only did it refer to a non-event and mere inaction but it described a state of affairs which did not change from the start to the end of each flight. That was recognised sufficiently by the learned primary judge for him to conclude that it could not amount to an accident on its own. In any event, the particulars were described in the pleading merely as “the flight conditions”, albeit that it was said that those “conditions” and procedures caused the plaintiff’s injury. On their own or in combination they seem far removed from the description of an accident given in Air France v. Saks for they are merely the broad description of circumstances attending the flights.
Both judge and the respondents on the hearing of this appeal placed greater reliance on the particulars to paragraph 21 which were later supplied, although they do not presently form part of the statement of claim, and which are set out in full in the judgement of Ashley, A.J.A. at para.[61]. But those particulars add nothing to the known circumstances except to the extent that they seek to characterise the appellants’ conduct and, in particular, seek to characterise the conditions and the carriers’ inactivity as “unexpected and unusual”. To my way of thinking those allegations seek merely to add to the existing claim by characterising the behaviour of the airlines as blameworthy and thence to treat what they had done as unexpected because they were “expected” in the light of those circumstances to have done better and to have passed on their knowledge of the connection between the flight conditions and DVT by telling passengers of that fact and by giving warnings and information about the risks that they were exposed to.
One is left at the end of the day, notwithstanding the added particulars to paragraph 21, with a description of the conditions and circumstances of the flight rather than anything which could in ordinary language be described as an event, occurrence and more particularly an “accident”. Nothing occurred on the flight which changed the conditions in which the passengers were placed when the flight commenced. As I understand it, what is said is that, by using the description “unexpected and unusual”, the U.S. Supreme Court was implying that anything about a flight which satisfied that description would be an accident within the meaning of the article. No such thing was said, nor could one fairly believe that the Court intended to say that. As I have pointed out, the words were used, not on their own, but in the phrase “an unexpected or unusual event or happening”. Now doubtless the English language has been distorted sufficiently for the words ”event” or “happening” to have acquired secondary meanings to refer to occasions which extend over a significant period of time. But that is not what was intended in Article 17, nor by what O’Connor, J. said in Air France v. Saks. One must resist the temptation to read the word and O’Connor, J.’s explanation as comprehending an “unusual state of affairs”, as a number of the U.S. authorities appear to do.[44] Indeed, as explained by O’Connor, J. there was good reason for her Honour to describe the matter in terms of an event or happening and to exclude even the word “occurrence”, because of the contrast with the use of that word in Article 18.[45]
[44]Cf. McCaskey v. Continental Airlines Inc. (2001) 159 F.Supp. 2d 562.
[45]See at 406.
The respondent contends that, even if total inactivity might not come within the article, inactivity together with other factors may produce a set of circumstances which could be described as an “accident”. Consistently with what is said in plain terms in the DVT Group Litigation, I consider that no accident can be said to have occurred merely because a set of circumstances or conditions exist which may be so unusual as to call for criticism and which would be compensable outside the Warsaw and Montreal Conventions. One must avoid the temptation of using the interpreted phrase devised by O’Connor, J. as the words of the Convention. It is not that O’Connor, J. was in error or that relevantly her definition does not provide great assistance: it is simply that one cannot take those words and seek to place a further construction upon them without having regard to Article 17 itself. In the first place her Honour did not use the words “unexpected or unusual” on their own, so that we are not concerned with an unexpected or unusual injury, nor with unexpected or unusual behaviour of an airline unrelated to a specific incident, as is implicitly suggested in some of the U.S. authorities and in the approach of the respondent.[46]
[46]For example in Fulop the judge eventually reveals the dependence of his reasoning on notions of negligence by concluding (at 672) that, if the carriers were right, then, in cases of “inaction” or “substandard response” to a medical condition, the carrier “could escape all liability and duty of care” to the affected passenger.
Secondly O’Connor, J. used those words as part of the expression “an unexpected or unusual event or happening”, so that to exclude or overlook the last three words is to distort what her Honour intended. Even then she was merely using synonyms as a means of emphasising the chance element clearly connoted by the word “accident”. The “event or happening” still has to be an accident and moreover it must take “place on the board the aircraft or in the course of any of the operations of embarking or disembarking”. When one looks at those words together, as I have said previously, one is looking to something which occurred at a specified place or time and not otherwise. To speak of conditions or circumstances “taking place” would, I suggest, be an artificial and curious use of language, especially when they consist of inaction. What those drafting the article were concerned with was proof of a specific incident of a fortuitous kind which itself causes injury.
Finally it should be observed that it is the accident which must take place on board the aircraft or during embarkation or disembarkation and not the injury suffered.[47] If I may say so, the concentration on the airline’s behaviour and whether it is expected or unexpected, usual or unusual, misses the point. The article is directed to the occurrence of an accident which must take place on board the aircraft etc., but it is irrelevant for the purposes of Article 17 who caused it. The strict or presumptive liability of the article does not seek an answer to that question, so long as it occurs in one of the designated places. That is why the acts of hijackers satisfy the article, although there may be no responsibility in common law terms for their activities on the part of the airline. Moreover one should not be misled by O’Connor, J.’s careful exclusion of those injuries which result from “the passenger’s own internal reaction” to the normal operation of aircraft and the requirement that the accident should be “external to the passenger”, because that is merely reflecting the need under the article to find both an accident and a consequent injury. The article clearly did not give recovery merely by reason of the suffering of an injury: the precondition for liability is the occurring of an accident, so that injury resulting from the passenger’s own health or condition is necessarily excluded in the absence of the required accident on board the plane etc. Likewise the word “accident” clearly connotes that the event or incident cannot be the result of activities by the passenger, for self-harm or the like would not have the necessary element of chance.
[47]Agtrack at para.[15].
These broad observations, admittedly repetitive of matters stated earlier, is intended to provide an explanation why “accident” cannot ordinarily consist of circumstances or conditions, whatever may have been said in certain United States courts. I deal with one matter at this stage, merely to put it to one side. It is not unusual for an accident of the required kind to take place in circumstances where that accident is likely to cause injury either generally to passengers or to one or more specific passengers by reason of circumstances relating to them. The U.S. Supreme Court adopted the concepts of causation familiar to common law courts[48], so it is sufficient that the particular accident is merely some link in the chain leading to an injury, in other words that it was a cause of the injury. The surrounding circumstances may thus have had a bearing on the likelihood of suffering injury and in some decisions considerable weight has been placed upon them, but in the end it is sufficient that there be an accident which is but one cause of the injury.
[48]See at 406.
What is the more difficult case, and several have come before the Courts and have been frequently the subject of discussion, is where there has been a defective piece of equipment which has either become defective without immediately causing injury or, in the more extreme of cases, where the defect has existed from the outset to the end of the flight, but some injury has been suffered in the course of the flight because of the conditions produced by the defective piece of equipment or the like. There it was said that surely one does not have to look for a particular event or incident. But if an aberrant pilot points the controls of a plane towards the ground, though it is easy to characterise his behaviour as unusual or unexpected, no accident in fact takes place until the plane hits the ground.[49] Terrible though that may be, one is simply not concerned with the reasons for the behaviour at this stage of the enquiry, so that liability would likewise result even if the pilot is totally without blame.[50] Indeed, one could see why, when the article was first drafted, this was a desired outcome, for black boxes and the like did not appear on the scene for many years. The same, though with some more difficult aspects of proof, may be said of a wrongful alteration to the pressurisation controls. It must be the change in pressure to that which is harmful, rather than the movement of the controls themselves, which amounts to the accident. Sometimes the two will be virtually coincidental, so that the cause of the accident and the accident itself will be seen to be relevantly causative of the injury and defining the accident more precisely will be of little consequence. Where the defect has come into existence before the aircraft takes off, there may be greater problems, although it must be remembered that in the case of a crash or similar accident there will be no need under Article 17 itself for the passenger to track down the reason: claimants will have no difficulty in identifying the relevant accident. As to pressurisation itself, the accident may come about only when the pressure reaches a dangerous stage, that is, the pressure may be at a tolerable level for some part of the journey, say immediately after take off, but there will be a point reached when the pressure becomes dangerous and that can fairly be characterised as an accident, whatsoever and whosoever was originally responsible for it. Air France v. Saks was itself a case about pressurisation, but the injury was confined to the plaintiff and no deleterious change in pressure was established.
[49]Assuming that other effects, such as changes of pressure or the like, are not themselves accidents.
[50]Subject to Article 20, but the onus rests on the carrier. Perhaps it is better to describe the liability as “presumed liability” rather than “strict liability”.
Moreover it is the causative event that is critical, not the unusual or unexpected behaviour, if so it may be described, of those responsible for adjusting the plane’s controls. The event which is unusual or unexpected is the crash or the pressure reaching a stage where it is dangerous to human safety. The concomitant circumstances will be largely irrelevant, although one may find a series of events each capable of being a cause of the injury and there would be no reason to deny recovery for that reason, so long as any one or more of them was an incident which was in fact a cause of the passenger’s injury.
I mention only one other example where unfortunately common law courts have picked on inexcusable behaviour and treated that as amounting to an unexpected or unusual “event”. A number of decisions have put forward examples relating to diversion of planes to deal with conditions suffered by passengers. They have posited a passenger collapsing, for no reason connected with the flight of the aircraft, and requiring medical assistance not available on the aircraft.[51] It has been said that a failure to divert in these circumstances amounts to an accident, indeed in one case it was said that “the notion that this is not an unusual event is staggering”.[52] But there the injury must have already occurred, the example given involving a person who had “ceased breathing through no initial accident”; so why there should be any further enquiry into the issue whether there was or was not an accident is difficult to follow. Doubtless in other circumstances and applying common law rules (as in intrastate flights involving non-commercial aircraft), there may well be some cause of action. Even if one could say that there was a further cause of the damage sustained in the event of death, it is hard to see why a refusal to divert to another airport amounts to an accident in the common and proper acceptation of that term. I concede that the U.S. cases (or some of them) suggest that “refusal” to divert may amount to an accident. Perhaps, on occasions, the surrounding events may amount to what can accurately be described as an “event or happening”, but ordinarily inactivity cannot amount to an “accident”, however blameworthy it may be. Hard cases make bad law, the Convention ought perhaps to be amended, but pejorative language directed to the conduct of persons in control or on board does not turn inaction into an accident.
[51]Cf. Fulop.
[52]McCaskey v. Continental Airlines Inc. (2001) 159 F.Supp. 2d 562 at 574.
In the present case the respondent’s case, if it goes at all beyond non-action, must consist in the describing of the alleged circumstances in coloured terms, such that the alleged behaviour becomes unexpected or unusual, but it does not, for the reasons I have endeavoured to state, turn it into an accident, i.e. a fact, event, happening or incident of a fortuitous kind for which Article 17 otherwise provides compensation, essentially without fault or at least on a presumptive basis.
I am grateful to Ashley, A.J.A. for his careful and detailed exposition of the arguments and the authorities. Although I agree with his analysis of many of those cases, I cannot take the same approach to them, for I consider that several depart from the language of the Convention. I would therefore prefer, with only minor qualifications, the straightforward approach of the English Court of Appeal in the DVT Group Litigation, as described by Chernov, J.A. I agree with Ashley, A.J.A.’s conclusion as to total inactivity, but, with respect, cannot accept his conclusions about the additional particulars and the potential cause of action therein adumbrated. In the end I am in no doubt as to the proper outcome of the appellants’ pleading summonses.
Consequently, I would allow the appeals and strike out the respondent’s statement of claim and make consequential orders directed to bringing the action to an end. If the result seems harsh, and we have no means of testing how the allegations would stand up at common law, then that is the result of this nation’s choosing to enter into specific treaty arrangements as are embodied in the Convention, and inevitably they embody compromises designed to benefit some and deny rights to others.
CHERNOV, J.A.:
I have had the advantage of reading the draft judgment of Ashley, A.J.A. and agree, for the reasons given by his Honour, that it is not reasonably arguable that the respondents’ failure to warn the appellant and the other passengers that they risked suffering deep vein thrombosis during the flights in question, where the passengers were not seized of that information, amounted to an “accident” for the purposes of Article 17 of the Warsaw Convention (“the Convention”). This leaves for resolution the question whether it is reasonably arguable that the expanded flight conditions, in particular, discouraging the appellant from moving about the aircraft when it was in flight and, inferentially, encouraging him to remain in his cramped seat, and offering him beverages, in circumstances where, contrary to the “usual” practice, the airlines failed to pass on their relevant knowledge to passengers who were ignorant of the risk, amounted to an “accident” which caused the appellant’s injury.
A starting point in seeking to establish the meaning of the word “accident” in Article 17 is to ascertain its usual meaning. In ordinary parlance, the word suggests a happening or an event that is unforseen or unexpected.[53] Such a definition, however, may not be determinative of the meaning of the word for the purposes of Article 17 simply because “accident” may have a different connotation because of its context. But if one examines Article 17, it seems apparent that, on its proper construction, the meaning to be ascribed to the term ”accident” is that which I have just outlined. Indeed, that “accident” in Article 17 contemplates an event or happening that is unexpected or unusual, is confirmed by appellate courts in other jurisdictions that have interpreted the provision in light of, inter alia, its international
operation and the desirability for uniformity in its construction.[54] In that context, it has been recognised in the United States[55] and in England[56] by, inter alia, the House of Lords in Morris v. KLM Royal Dutch Airlines[57] and by the Court of Appeal in The Deep Vein Thrombosis and Air Travel Group Litigation[58] (“the DVT case”) that Air France v. Saks[59] provides a useful guide for determining whether an injury was caused by an “accident” within the meaning of Article 17 notwithstanding that the decision does not seek to replace “accident” in the article with the terms used in the judgment to describe its meaning, or provide an exhaustive definition of “accident”.
[53]See The Shorter Oxford English Dictionary, 3rd ed. See also the definition of accident in the Oxford English Dictionary, 2nd ed.: “An event that is without apparent cause or unexpected; an unfortunate event, especially one causing injury or damage”. The Macquarie Dictionary, 2nd ed. defines accident as ”an undesirable happening; casualty; mishap.”
[54]In England, for example, in Morris v. KLM Royal Dutch Airlines [2002] 2 A.C. 628; Deep Vein Thrombosis and Air Travel Group Litigation [2003] 3 W.L.R. 956 (“the DVT case”). In Canada, in Quinn v. Canadian Airlines International Ltd. 18 OR (3d) 326 and McDonald v. Korean Air 18 February 2003, unreported. In Australia, in Agtrack (N.J.) Pty. Ltd., v. Hatfield [2003] V.S.C.A. 6 at [15] per Ormiston, J.A.
[55]See, for example, Blansett v. Continental Airlines Inc. (2002) 246 F.Supp 2d 596; Wallace v. Korean Air (2000) 214 F.3d 293.
[56]See, for example, Morris and the DVT case.
[57][2002] 2 A.C. 628.
[58][2003] 3 W.L.R. 956.
[59](1985) 470 US 392.
In delivering the Opinion of the Supreme Court in that case, O’Connor, J. emphasised[60] that the essential enquiry is whether the accident caused the injury and not whether the accident is the injury. And it is the cause of the injury that must satisfy the definition of “accident” in Article 17. After examining closely the language of the article in the context of the Convention, the evolution of its drafts before it was finally settled, its character and purpose, the ordinary and dictionary meanings ascribed to the word “accident” and the decisions of, inter alia, appellate courts in the United States and elsewhere as to the interpretation and operation of Article 17, her Honour concluded[61] that “accident” suggests an unexpected or unusual event or happening on board of the aircraft that is external to the passenger which causes the injury or death of the passenger. The judge emphasised that, where the injury or death “results from the passenger’s own internal reaction to the usual, or normal and expected operations of the aircraft, it has not been caused by an accident [within the meaning of Article 17]”.
[60]At 398.
[61]At 400.
The reasoning in Saks was approved by the House of Lords in Morris and by the Court of Appeal in the DVT case. Thus, for example, in the DVT case, the Master of the Rolls said[62] that the natural meaning of “accident” suggests an untoward event which impacts on the body in a manner which causes death or injury. His Lordship cited with approval the meaning attributed to the word “event” by Lord Mustill in Axa Reinsurance (UK) Plc v. Field[63], namely, “something which happens at a particular time, at a particular place, in a particular way.”
[62]At 21.
[63][1996] 1 W.L.R. 1026 at 1035.
The agreed matrix of facts, the basis upon which the Court of Appeal was asked to determine whether it was reasonably arguable that the injuries of the plaintiffs were caused by an “accident”, emphasised the cramped seating configuration in the cabin of the aircraft in which the plaintiffs were transported and the relevant knowledge of the airlines, rather than, as here, acts of their crew members in the course of the flight. It seems clear enough that it was accepted by the plaintiffs in that case that, for the purposes of the argument, this seating configuration and the circumstances relating to it were typical and usual features of air travel at the relevant time[64]. In that context, the Master of the Rolls considered[65] that such features of the aircraft, and the subjecting of its passengers to them, were not capable of amounting to an “event” that satisfied the first part of the meaning of accident for the purpose of Article 17 to which I have already referred. It followed, said his Lordship, that the question whether there was an “unexpected or unusual” event did not arise for consideration. But even if such features of the aircraft could be said to constitute an “event”, said the Master of the Rolls, the fact that they were reflective of what was typical and accepted in the industry, precluded them from being unexpected or unusual. The Master of the Rolls considered that nothing happened that involved the actions of anyone other than the plaintiff and his reaction to the normal flying conditions – there was no unexpected or unusual event or happening. Moreover, said his Lordship, the failure by the airlines to advise the passengers of the relevant risks, of itself, could not be said to fall within the definition of accident, a mere failure to warn, being mere inaction or inertia, could not amount to an accident.
[64]The Master of the Rolls used the term “typical procedures of the industry” at [33].
[65]At [28].
Notwithstanding the analysis of the large number of authorities that have been cited to us on the issue now under consideration, as Judge and Kay, L.JJ. recognised in the DVT case[66], at the end of the day, the question is whether it is reasonably arguable that the appellant can establish that, on any recognised meaning of the word, an accident on board the aircraft caused his injury. In my view, the answer is, no, and I have come to this conclusion for the following reasons. First, I consider that the acts alleged do not constitute an event or happening as those terms were interpreted in the DVT case and AXA. In my view, on a proper reading of the pleadings, the only acts of the respondents that could be said to have amounted to an event or a happening were the discouragement of his moving around the cabin of the aircraft and the offers made to him of beverages for consumption during flight. Such acts, I consider, describe continued circumstances which were part of the standard operation of the airlines and do not amount to an event or happening. Secondly, even if the acts in question could be properly described as an event or happening, it seems to me that, on a proper characterisation of the pleaded facts, the appellant’s injury resulted from his own reaction to standard flight conditions and was not caused by an event or happening on board the aeroplane that was external to him. Thirdly, even if I am wrong in both of my above views and the acts of discouragement and offers of beverages could be said to have been an event or happening for relevant purposes that caused the injury, they were plainly not unexpected or unusual. It is not said that such acts were contrary to industry practice or the airlines’ own procedures, such as arguably arose in Husain v. Olympic
Airways[67], McCaskey v. Continental Airlines[68] and Fulop v. Malev Hungarian Airlines[69] and which enabled the plaintiffs in those cases to cross the prima facie threshold. Here, the alleged acts are said in the pleadings to have been standard travel procedures on such flights. In those circumstances such conduct could not be reasonably characterised as amounting to an unexpected or unusual event or happening, even where it was performed in the context where the airlines failed to inform the passengers of the risk of developing deep vein thrombosis during such a flight.[66]At [70] and [82] respectively.
[67](2000) 116 F.Supp. 2d 1121, US DC.
[68](2001) 159 F.Supp 2d 562, US DC.
[69](2001) 175 F.Supp. 2d 651, US DC.
In the circumstances, I would uphold the appeals.
ASHLEY, A.J.A.:
The subject of the appeal
These appeals concern the meaning of Art. 17 of the Warsaw Convention 1929 (“the Convention”) as amended by the Hague Protocol 1955 and by Protocol No. 4 of Montreal 1975.[70] The Convention as thus amended (Montreal No.4) sets out rules relating to international air travel, particularly for present purposes the circumstances in which an injured passenger may recover damages from an airline.
[70]The hearing below was conducted on the basis that it was Art. 17 of the Convention as amended at The Hague in 1955 that was in point. The Convention as so amended is Schedule 2 to the Civil Aviation (Carriers’ Liability) Act 1959. The Convention as further amended at Montreal in 1975 is Schedule 5 to that Act. It was eventually common ground on the appeal that the Convention as amended in 1975 –the Montreal No. 4 Convention – applied in the present case. There is no difference in the text of Art. 17.
By s. 25K(1) of the Civil Aviation (Carrier’s Liability) Act 1989 (Cth) (“the Carriers Act”) the provisions of Montreal No. 4 have force of law in Australia in relation to any relevant carriage by air. By s. 25L of the Carriers Act, ss. 35-39 of that Act are made applicable to carriage under Montreal No. 4. One consequence is that s. 36 applies to such carriage. By that section the liability of a carrier “in respect of personal injury suffered by a passenger” is, subject to a presently irrelevant exception, “in substitution for any civil liability of the carrier under any other law in respect of the injury”. It is not in debate that in consequence of these sections Art. 17 of Montreal No. 4 defines the circumstances in which the appellants, Qantas Airways Ltd and British Airways Pty Ltd (“Qantas” and “BA”, collectively “the airlines”) could be liable to the respondent, Mr Brian Povey, for bodily injury which he allegedly suffered by reason of the incidents of a return journey between Sydney and London which he undertook between 15 and 20 February 2000.
By his statement of claim dated 21 August 2001, Mr Povey made claim against the airlines and the Civil Aviation Safety Authority (“CASA”). The last-mentioned is not a party to the appeal. The gist of his claim, so far as it concerned the airlines, was that during the course of or following the flights, which he undertook travelling economy class, he suffered from deep vein thrombosis (“DVT”), this leading on to pulmonary embolism and to other serious, long-term consequences. His injury, he alleged, was:
“caused by the conditions of and procedures relating to passenger travel upon the flights.”
These he characterised as “the flight conditions”.
He particularised the flight conditions this way:
“The flight conditions included:
(a)a confined and restricted physical environment in which the Plaintiff was immobilised for long periods of time in a seated position;
(b)impediments to the Plaintiff getting out of his seat during the flights;
(c)the offer and supply of alcoholic beverages, tea and coffee to the Plaintiff during the flights;
(d)discouraging the Plaintiff from moving around the cabin of the aircraft and encouraging the Plaintiff to remain seated during the flights;
(e)The Plaintiff not being provided with any information or warning about the risk of DVT or information about the measures which the Plaintiff could take to reduce such risk.”[71]
[71]See Appeal Book, A2, A3.
Having pleaded the applicability of the Warsaw Convention as amended at The Hague – this was an error, but nothing turns on it – he alleged by paragraph 21 of the statement of claim that:
“The DVT and the injuries resulting therefrom constituted bodily injuries caused by an accident which took place on board the aircraft upon which the flights were undertaken within the terms of Art. 17 of the Convention.”
Qantas sought further and better particulars of paragraph 21. By particulars dated 12 October 2001, Mr Povey alleged that the accident causing the injury comprised the flight conditions; and that it occurred for the duration of the flights to and from the UK. He alleged also that he first experienced symptoms of DVT on the return journey whilst travelling between Kuala Lumpar, a stopover point, and Sydney[72].
[72]Appeal Book, A23, para numbered 1.
BA also sought further and better particulars of the statement of claim, in particular of paragraph 11(a) by which Mr Povey pleaded, against CASA, that it knew or ought to have known
“the flight conditions, which were the standard conditions of and procedures relating to passenger travel on prescribed flights.”
By further and better particulars dated 13 February 2002, Mr Povey said that the “standard conditions on prescribed flights” referred to in paragraph 11(a) of the statement of claim were the same as the “flight conditions” defined in paragraph 6 of the statement of claim.[73]
[73]Appeal Book, A43-44, para numbered 7.
Each of the airlines filed a defence which denied, inter alia, if Mr Povey suffered from DVT and any injuries relating therefrom, that the same were caused by any accident which took place on a flight conducted by it (or in the case of Qantas, in the course of a flight for which it could be liable).[74]
[74]Paragraph 13 of Qantas amended defence dated 25 March 2002, Appeal Book, A 47. Paragraph 9 of BA defence dated 12 October 2001, Appeal Book, A 33.
There the matter stood when on 26 March 2002 the airlines filed summonses which sought, in the alternative:
· judgment against the plaintiff, or a permanent stay of the proceeding under R 23.01 of Chapter 1 of the Rules;
· the striking out of the pertinent paragraphs of the statement of claim.
The argument on the applications was conducted on the footing that a number of factual matters alleged by the respondent, though in fact in dispute on the pleadings, should be taken to be established. The issue debated was whether the respondent had pleaded a case, in substance rather than in form, which could establish that the damage he had allegedly sustained was caused by an accident which took place on board the aircraft. That picks up the critical language of Art. 17, which as it appears in Montreal No 4.reads as follows:
“The carrier is liable for damages 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.”
Bongiorno J concluded that the statement of claim did not in substance allege anything that could constitute an accident. But in light of foreshadowed further particularisation of the alleged accident, particularisation which he considered would arguably allege an accident, he dismissed the summonses and gave the plaintiff an opportunity to re-plead. It is not in debate that this was a proper course if the proposed particularisation would meet the airlines’ attack.
The plaintiff in fact provided further particulars. They read in full as follows:
“The plaintiff provides the following Further and Better Particulars of the allegation in paragraph 21 of his Statement of Claim that the DVT and the injuries resulting therefrom were caused by an “accident” within the terms of Article 17 of the Convention:
(a)The “accident” causing the Plaintiff’s bodily injuries comprised the flight conditions particularised in the particulars sub-joined to paragraph 6 of the Statement of Claim.
(b)At the time of the flight Qantas and/or British Airways knew that the flight conditions were capable of causing or increasing the risk of the passengers on the flight experiencing DVT and knew of preventative measures which may have minimised such risk. The plaintiff and other passengers had no such knowledge. Accordingly, in was unexpected or unusual that the Plaintiff was subjected to such flight conditions.
(c)The Plaintiff and other passengers were not provided with any information or warning about the risk of DVT or information about measures which they could take to reduce such risks. The Plaintiff and other passengers expected to be provided with warnings and information about risks of which Qantas and/or British Airways knew to which they may be exposed as a consequence of undertaking the flight, including the risk of DVT. The provision to passengers by Qantas and/or British Airways of warnings and information about such risks was usual, commonplace and expected. The failure by Qantas and/or British Airways to provide such warning and information was, accordingly, unexpected and unusual.” [75]
[158][82].
Echoing Judge LJ, his Lordship emphasised that Saks did not substitute a new form of words. He said this:
“If one asks oneself the simple question was there, on any recognised meaning of the word, an accident in circumstances where a person suffered deep vein thrombosis merely because of the effect of a flight on an aeroplane without there being any triggering event, the answer in my opinion is quite simply no.[159]”
His Lordship added that if the appellant’s arguments were correct, it seemed to him inevitable that the language of Article 17 would have been different.
[159][84].
I go to the cases cited with approval by the Master of the Rolls.
Van Luin was a defendant’s application to dismiss on the ground that no reasonable cause of action was disclosed; or that the statement of claim be struck out as disclosing no reasonable cause of action.
The judge noted a submission for the defendant that the statement of claim did not plead that injury was caused by an unexpected or unusual event or happening; and a further submission that a proposed amendment which sought to rely upon failure to advise of the need to move about and failure to advise that the plaintiff should drink extra fluid would only plead the plaintiff’s own internal reaction to the usual, normal and expected operation of the aircraft.
The judge noted that it had been argued for the plaintiff that “accident” should apply where injury consisted of unexpected internal trauma caused or contributed to by the normal operation of the aircraft; and that Saks should not be followed. He recorded an alternative argument that the proposed amended case arguably pleaded accident.
His Honour concluded that the acts or omissions of the crew might constitute an unexpected or unusual event; but that failure to advise was not such an event external to the plaintiff. He said that he followed Saks in so concluding.
The judge further said that if the alleged failures did constitute an unexpected or unusual event external to the plaintiff, nonetheless the plaintiff’s thrombosis resulted not from such event or happening but from the plaintiff’s own internal reaction to the normal operation of the aircraft. He referred to normal operations cases including Abramson, Volander, Scherer and De Marines.
In summary, the case as pleaded alleged no accident. The plaintiff sought to amend to plead accident constituted by failures to advise. He sought to raise no allegation about the state of pertinent knowledge of airline and passengers. No allegation was made of positive conduct on the part of the defendant. A hopeless contention was advanced that Art. 17 really meant accidental injury, and that the Court should not follow Saks. The judge held that the acts or omissions of a crew might constitute accident; but that according to Saks failures to advise were not such an event external to the plaintiff. He did not say why Saks led to such a conclusion. He did not contrast acts and omissions, nor characterise failure to advise as a particular kind of omission. He said that if the failures did constitute an accident, the DVT nonetheless resulted from the plaintiff’s own internal reaction to normal aircraft operation. That seems to have assumed that there could be but one cause of injury, something at odds with Saks. All in all, Van Luin was a considerably different case to that which is before this Court; and one in which the reasoning was not fully exposed.
Rynne, decided in the Queensland District Court, was the resolution of an application for summary judgment.
The judgment shows that the plaintiff asked a cabin attendant if she could move about the cabin. She was told she would have to wait until service trolleys passed by. Then she developed calf pain. Once during the first leg of her trip she told a flight attendant that her leg was painful. Nothing was done. Several times she asked for water; but she was given none. Twice during the second leg of her journey she told cabin staff of her painful leg. Nothing was done. She had developed superficial thrombophlebitis in the presence of pre-existing varicose veins.
The plaintiff did not squarely plead accident. She did plead failure to adopt procedures to advise passengers of risks of venous thrombosis or to advise or warn of risks, or to advise activity or the need to drink large quantities of fluid.
According to counsel’s submissions, as noted by the judge, the accident comprised the flight conditions and procedures referred to in the statement of claim and further particulars. “Accident” should be broadly construed, being easier to satisfy than the technical common law rules of negligence and capable of covering at least the same circumstances.
The judge accepted the applicability of Saks. He concluded that the requirement that the plaintiff remain in her seat until the trolleys passed by was part of the normal operation of the aircraft. The plaintiff had a medical condition of which the defendant could not have been expected to know. Otherwise, his Honour said, the claim alleged failures of one kind or another. The question was whether “such inaction is incapable of amounting to an unexpected or unusual event or happening which is external to the passenger.”[160]
[160][20].
In support of a conclusion that such inaction was so incapable, his Honour cited Van Luin, McDonald and DVT Group Travel[161]. He referred also to the present case, by way of disapproval of one aspect of the judgment of Bongiorno J.
[161]To the decision of Nelson J.
All in all, one matter aside, the plaintiff’s proposed case was based solely on failure to advise or warn. No allegation was raised of pertinent risks known to the defendant but not the plaintiff. No positive conduct was alleged. In my opinion the judge was right to accept Saks and he was right to conclude that the Convention should not be interpreted to reflect “modern risk allocation theory”. He treated the decision presently on appeal as affecting such a re-allocation of risk. Plainly, he accepted the decision at first instance in DVT Group Travel, concerning which he said that the facts there alleged and in the matter before him were virtually identical. I have attempted to explain that the pleadings here differ significantly from the factual matrix in DVT Group Travel.
McDonald, decided by Hermiston J of the Ontario Supreme Court of Justice at first instance, involved a defendant’s strike out application.
The judge noted that the plaintiff advanced an argument that DVT acquired on board an aircraft is an accident within the meaning of Art. 17; and a further argument that failure to warn and educate passengers represented an unusual or unexpected operation of the aircraft and constituted a marked departure from the duty of care which carriers owed to their passengers.
His Honour held that an airline may be negligent in not advising passengers of the risk they assume, but that such negligence was not in itself an accident in the sense that the DVT was not linked to an unusual or unexpected event external to the plaintiff as a passenger[162].
[162][17].
In all, the plaintiff’s claim in part rested on failure to warn. In part it involved a hopeless assertion that DVT acquired on board was an accident. In deciding the application favourably to the defendants, Hermiston J did not distinguish between acts and omissions. He relied on Scherer, where it had been held that there was no accident when a passenger suffered thrombophlebitis by sitting on a plane. Scherer did not involve any allegation that failure to warn was an accident; whether discretely or as part of a series of allegations of accident.
The decision in McDonald was affirmed in one line on appeal.
Obviously enough, the way in which McDonald was pleaded and argued was very far from the pleading and argument in this case.
Finally, I should refer to Volander. It was not cited in DVT Group Travel. The precise nature of the proceeding – that is, whether it was a trial or some preliminary application – is not clear to me. Some of the language used, both in the judgment at first instance and on appeal, suggests that it was the former. In any event, two issues seem to have been agitated. First, whether the claim was one falling within Art. 17. Second, whether the claim could be pursued under German national law. The precise basis of claim relied upon by the plaintiff in either connection is not extensively described.
Both the court at first instance and the higher regional court held that the plaintiff could not rely on Art. 17 because, as the appeal court said, “there was no accident involved with the event of damage according to [Article 17]”. The appeal court said that:
“It was not an incident caused by external forces at a particular time and place, which was unforeseeable and which caused personal damage or damage to property. The present case does not involve a sudden event but rather summation damage, which is not covered by the definition of the term ‘accident’.”
So far as I can see, Volander stands for the proposition that the thrombosis apparently suffered by the plaintiff was not an accident. The explanation given by the appeal court as to why that was so did not focus upon the issue of act or omission, or upon unexpectedness. In all, I do not think that the Volander is of much present assistance.
In reviewing the various authorities, here and overseas, presently without regard to the place of courts in the judicial hierarchy, I have been concerned to see whether uniformity of approach is disclosed upon the question of event and non-event. In my opinion the following conclusions, not all of which relate to that question, can be drawn from the cases to which I have referred:
· First, whether ‘accident’ be paraphrased as an unexpected or unusual event or happening (Saks) or as an untoward event (DVT Group Travel) a failure to act may, as Phillips MR said in DVT Group Travel, result in an accident or form part of a series of acts and omissions which together constitute an accident. In such circumstances, as his Lordship said, it may not be easy to distinguish between acts and omissions. Although the Courts which decided them did not draw a distinction between acts and omissions, Husain, Turturro, McCaskey and Fulop may be so explained. It is readily possible to think of very many circumstances justifying his Lordship’s conclusion.
· Second, a bare failure to warn or advise, unaccompanied by other circumstances, is unequivocally inaction, and not “accident” – either as an unexpected or unusual event or happening, or as an untoward event. That was the opinion of the Court of Appeal – most explicitly, of Phillips MR - in DVT Group Travel. It seems to me, with respect, that neither the frequent difficulty of distinguishing between acts and omissions, or Art. 25, the matters referred to by Bongiorno J, lead to a contrary conclusion. Bare failure to warn or advise is, as I have said, unequivocally inaction; and Art 25 does have a wider field of operation than just with respect to Art. 17. For reasons discussed, I do not think that much can be made of the decisions cited by Phillips MR, or of Volander; but neither can much be made of Blansett, Louie or Miller. All other things apart, in each of the American cases it was alleged that the failure to warn or advise was in breach of the usual, normal and expected operation of the aircraft. Moreover, neither the possible distinction simply between acts and omissions nor a possible distinction between failure to warn and the type of circumstances encountered in Husain, Fulop and McCaskey was the subject of examination in those judgments.[163]
[163]Or in the note of Louie.
· Third, allegations of the kind considered in Blansett, Louie and Miller were not made in DVT Group Travel. The logic of DVT Group Travel, however, is that the additional circumstances would make no difference. Indeed, although the Master of the Rolls did not illuminate the difference in the specimen matrix which was before him and the pleading in Blansett, his Lordship disagreed with that decision. In the present case, the respondent does not plead that it was industry practice, or the practice of the appellants, to warn of the risks of DVT and advise measures to reduce such risks. The allegation made by particular (c) to paragraph 21 of the statement of claim is less specific. In my opinion the occasion does not arise to consider whether in circumstances of the particular kind considered in Blansett, Louie and Miller, or just possibly as one aspect of a number of circumstances, a failure to warn could ever constitute accident; though my provisional opinion is that it could not do so.
· Fourth, none of the cases cited by counsel was on all fours with the relevant pleading in the present case. In my opinion it is not possible to say that the decision in DVT Group Travel decides the fate of this appeal. Indeed, as I have pointed out, Phillips MR agreed with the observation of Bongiorno J that the allegation of failure to warn was only part of the respondent’s expanded particularisation of his claim.
· Fifth, in some cases cited in the present connection there was discussion of unexpectedness. As I earlier observed, insofar as the language used could have imported common law notions of reasonable expectation, reliance and the like, I would reject the applicability of such notions in the context of Art. 17.
· Sixth, in DVT Group Travel there was both acceptance of the definition of “accident” provided in Saks, and yet an expressed concern that the language of Art.17 should not be treated as having been replaced by the language of Saks. It is, I think, necessary to tread a careful line in that connection. It is on the one hand true that the language of Art. 17 has not altered. But on the other hand it is clear that in striving for uniformity of interpretation of an instrument such as Montreal No 4, conformably with the approach to interpretation of treaties and conventions, the meaning given “accident” by Saks has been widely accepted. It has been the source of a very considerable jurisprudence. The acceptance of Saks reflects a general acceptance that it correctly paraphrased the word “accident”; for which reason there should be no different result in a particular case whether regard is had to the critical word in Art. 17 or to the Saks’ paraphrase.
“unexpected or unusual”
Saks was decided in 1984. Before and since, cases have dwelt upon the characteristic which renders an event (I use that word simply to convey a circumstance or set of circumstances) an accident.
Cases show that there may be an accident within the meaning of Art. 17 despite the event consisting of intentional, even criminal conduct by one passenger towards another passenger or towards all other passengers, See, for example Evangelinos v Trans World Airlines Inc,[164] Krystal v British Overseas Airlines Corp,[165] Oliver v Scandinavian Airlines System [166] and Wallace v Korean Air[167].
[164]550 F 2d 152 (CA3 1977).
[165]403 F Supp 1322 (CD Cal 1975).
[166]17 CCH Air. Cas. 18,283 (Md 1983).
[167]214 F 3d 293 (2nd Cir. 2000).
The cases to which I have just referred make the point that the focus is upon whether an event is unexpected or unusual – and not upon whether it is, for example, inadvertent, careless, intentional or criminal. They also show, I think, that characterisation of an event as unexpected or unusual does not involve consideration particularly from the perspective of the airline or the passenger(s); nor, a fortiori, particularly from the perspective of a reasonably careful airline operator or a reasonable passenger in all the circumstances. The latter formulations, in any event, would introduce notions of domestic torts law; and for that reason, as I said earlier when discussing Husain and Fulop, I would not accept their application. Rather, it seems to me, the question whether an event is to be so characterised is to be answered from the perspective of a disinterested bystander who is apprised of all relevant circumstances. Would such a person describe the event so described, an event causing injury, as one that was unexpected or unusual?
That conclusion appears to me to be consistent with authority. In Saks, O’Connor J said that:
“...in cases where there is contradictory evidence, it is for the trier of the fact to decide whether an ‘accident’ as here defined caused the passenger’s injury.”[168]
[168]At 403.
Her Honour cited De Marines v KLM Royal Dutch Airlines [169] in that connection. In De Marines the Third Circuit Court of Appeals held that a charge to the jury which made no suggestion other than the jury should apply its own perspective to determining whether an event was one which was unexpected or unusual “presented the correct legal standard for determining the occurrence of an accident.”[170]
[169]580 F 2d 1193 (CA 3 1978).
[170]At 1196.
Such an approach avoids the risk that what is unexpected or unusual will be determined by reference simply to the different sectional interest of airline or passenger. But it does not mean that in a particular case the circumstances of an individual passenger may not be relevant as part of the factual matrix in which the event said to constitute an accident falls to be considered. Neither does it exclude from consideration the practice of a particular airline defendant or an airline industry practice. Husain may be said to be an example of these last observations, although there language appropriate to common law notions was at times used; and I have already expressed my opinion that such use was inappropriate.
Counsel for the appellants submitted, inter alia, that the learned trial judge inappropriately imported notions of the common law into resolving the question whether an event could constitute an accident. They referred to his Honour’s use of phrases such as “objectively viewed”, “peculiar position of reliance and vulnerability”, “passengers’ expectations”, and “the objective requirement of the Saks test.”
I have no doubt that his Honour used some language apposite to the common law. I am not convinced, however, that in fact he proposed or relied upon common law notions in concluding that the respondent might establish an accident in this case. It seams to me more probable that his Honour was seeking to convey the point that in deciding whether an airline’s conduct causing injury was an event which should be characterised as unexpected or unusual, it was proper to bring to account the circumstances in which the conduct occurred, including consideration of the respective positions of airline and passenger; and that it was to be objectively assessed by the trier of fact in the sense that characterisation was not to be determined by reference to the subjective perspective of the airline or the passenger. I acknowledge, however, that this may not have been the intended import of his Honour’s language; and if such was the case then in my respectful opinion his Honour’s reasoning fell into error.
I should refer also to particulars (a) – (c) of para 21 of the statement of claim. I have described my understanding of their import at [83]-[86]. They refer to matters allegedly known to the airlines and unknown to the respondent and other passengers; to what was alleged to be the usual conduct of the airlines in warning of known risks; and to it being expected by passengers that such warnings would be given. The import of the particulars, I consider, is that the conduct of the airlines alleged to constitute an accident should be determined in the factual matrix thus described. There seems to me to be no resort to common law concepts in the respondent’s formulation. The references to knowledge, and use of the verb ”expected”, must be understood in context.
The temporal component of accident
A question which arises in this proceeding is whether it is in the nature of an accident that it should occur at an identifiable instant. The appellants so submitted. It was a consequence of the respondent’s case, according to their submissions, that every passenger on each of the flights suffered an accident throughout the course of such flight; an accident which went unrecognised. Such a situation, counsel submitted, showed that it made no sense to describe events, or non-events, occurring over the course of a flight as an accident.
The appellants’ submission gains some support from DVT Group Travel. Phillips MR referred to “an untoward event which impacts on the body in a manner causing death, wounding or injury.”[171] Speaking of Saks, where O’Connor J said that it was only required “that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger”, his Lordship said that he had
“not found it easy… to envisage a remote accident in a chain of causation that does not end in a direct cause of the death or injury that is, itself, an accident within Article 17.”
Referring to illustrations given in Shawcross and Beaumont of cases where courts had found accident, he said,
“almost all of these constitute untoward events which impacted directly and physically upon the passenger.”[172]
[171][22].
[172][22].
A similar notion may also be implicit, having regard to the particular circumstances of the specimen metrix, in the reasons of Kay LJ.[173]
[173]At [84] – [85].
No doubt it is the case, as Phillips MR said, that in almost all cases the alleged accident will impact directly and physically upon the passenger. But the critical question is whether accident is so confined.
In my opinion an accident for the purposes of Art. 17 might be constituted by something which happened, even if unrecognised by passengers at the time, throughout the course of a flight. An example should make the point.
Suppose that there was a continuous malfunction in cabin pressurisation equipment throughout the course of a flight, in consequence of which the level of pressurisation was aberrant, and a passenger developed a vascular abnormality in response. Then suppose a situation in which there was no malfunction, but that a crew member set a wrong pressurisation level at the commencement of a flight, that the level was aberrant throughout the flight, and that the hypothetical passenger suffered the same injury.
In each of those cases there would be injury. In neither case, let it be assumed, would the passenger know in the course of the journey that the pressurisation level was continuously aberrant. In each case that aberrant feature could properly be described as an event or happening. In each case it could be properly be described as unexpected or unusual – at the very least in the meaning of departing from the routine operation of the aircraft. In only second case, however, could the aberrant function be traced to an action or happening at a moment in the course of the flight.
It seems to me that it would be wrong in principle, as well as being at odds with the flexible application of the Saks definition of injury which Saks commended, to treat only the second case as involving accident causing injury.
Further, in neither case, I have assumed, and it seems inherently probable, would any passenger know at the time of the accident that he or she had suffered the same. That should not lead to a conclusion that there had been no accident. Again, the fact that all passengers suffered accident, but only one or some suffered injury, should excite no conceptual surprise.
A few reported cases are susceptible of description as involving an accident occurring over a protracted period of time. In Rosman v Trans World Airlines, Inc,[174] for example, passengers claimed to have suffered physical and psychological injuries in response to the hijacking of an aeroplane and to their being held on board the plane for a period of days.[175] The defendant did not claim that a hijacking was not an accident. It might be said that the accident was confined to the moment that the hijackers took over the plane; and that all that followed was injury caused by the hijacking. But that would be to ignore the continuing nature of the hijacking, a matter of significance because some of the alleged injuries arose out of the long-time detention of the passengers on the plane.
[174]Citation earlier
[175]See at 389
Resolution of the appeal
In my opinion, it is fairly arguable that part but not all of the case which the respondent seeks to pursue against the appellants could constitute “accident”. The import of particulars (a) and (b) to para 21 of the statement of claim is that what should otherwise have been characterised as the usual, normal and expected operation of the aircraft was not of that character by reason of the appellants’ knowledge of the matters set out in particular (b); and the want of knowledge of those matters by the plaintiff and other passengers. The question what was, in all the circumstances, the usual, normal and expected operation of the aircraft is ultimately a question of fact, to be determined by evidence. Fishman is a case in which a usual operation performed in an aberrant manner, was held to constitute an accident. The present pleading does not raise an identical issue; but I am not prepared to say that the respondent’s claim is evidently not viable. At least that is so in respect of the allegations raised by particular (d), probably particular (c), and just possibly particular (b) to para 6 of the statement of claim read in conjunction with particular (b) to para 21. Particulars (d) and (c) to para 6, evidently, allege acts done at different moments in the course of the flights. Particular (b) might also do so. Those particulars may be compared with particular (a), which refers to the static condition of the aircraft; and particular (e), which raises an allegation of failure to inform or warn. As to the last-mentioned, more in a moment.
There is, of course, a question whether the respondent could establish that the discouragement against moving pleaded by particular (d) to para 6 was causative of him not moving; and another question again whether that in turn was a cause of him developing DVT. In the case of the matter pleaded by particular (c), again, factual issues of some complexity would seem likely to arise. The matter pleaded by particular (b) is more complicated again; for it is not clear whether the pleading refers to impediments to movement created by the configuration of the seating cabin or to impediments resulting from some positive act or acts. I consider, however, that the issues which would seem likely to arise in connection with those three particulars do not provide a basis for summarily disposing of the proceeding in favour of the appellants; or striking out the allegations under discussion.
It is necessary, next, to refer to particular (e) to para 6 of the statement of claim read in conjunction with particular (c) to para 21. It follows from the opinion which I have expressed about failure to warn, particularly when considered in the context of the form in which particular (c) to para 21 is pleaded, that in my opinion the respondent has not there alleged an accident. No possible variation to that pleading was mooted in argument.
I would strike out the allegation raised by particular (e) to para 6; and I would not permit amendment to allege the proposed particular (c) to para 21. I would also strike out the allegation raised by particular (a) to paragraph 6. I would allow the appeals only to provide a vehicle for making such orders.
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