“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
“1 The defendant is a commercial air carrier. 2 On Sunday17 October 2004 the claimant was the defendant’s passenger for reward on international flight number BA288 from Phoenix Arizona in the United States to London Heathrow in the United Kingdom. 3 The claimant was shown down the port aisle of the aircraft to her seat number 26E, which was the second seat in a row of four seats (26D-G). The four seats were in the centre of the aircraft with an aisle either end. The claimant’s seat was immediately to the port of the aircraft’s midline. 4 Immediately ahead of the said row of four seats there was another row of four seats. The first two seats of that row ahead (25D-E) were in a reclined position. 5 In order to reach her seat the claimant passed sideways to her right between the reclined seats ahead and the first seat in her row (26D). In order to do so she had to lean slightly backwards. 6 As she lowered herself into her seat, with her body weight towards the right, the claimant’s right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left. 7 Upon slipping the claimant heard and felt her knee ‘pop’ and as it gave way it struck the armrest. 8 The claimant sustained bodily injury. 9 The layout of the passenger cabin, the seating space available to each passenger, the type of passenger seats and the strips installed on the aircraft covering the seating tracks were all in accordance with the defendant’s usual standard for an aircraft of that type flying on the route in question and were not defective and in full working order. 10 All of the aircraft’s seating and all of its systems affecting the passenger cabin environment and floor were in their normal working order. 11 The aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations. 12 The provisions of the Montreal Convention applied to the flight. This Convention provides the exclusive cause of action and sole remedy available against an air carrier in respect of loss, damage or delay suffered by passengers, or their baggage, in the course of, or arising out of, their international carriage by air.”
“We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.”
“… [W]hen 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.”
“From the point of view of the passenger or the owner of baggage or cargo, the imposition of liability without proof of fault on the carrier and the modification of provisions relieving him of liability or restricting the amount of his liability are very significant advantages. From the point of view of the carrier too however there are significant advantages in the system laid down by the Convention. A principal consequence of that system is the exposure of the carrier to liabilities without the freedom to contract out of them. But it defines those situations in which compensation is to be available, and it sets out the limits of liability and the conditions under which claims to establish liability, if disputed, are to be made. A balance has been struck between these competing interests in the interests of certainty and uniformity.”
“146. ... The substantive provisions provide a division of risk between the carrier on the one hand and the goods or baggage owner or passenger on the other. In relation to carriage by sea, the salient features of this division of risk are provisions which impose evidential burdens on the carrier, give him limited exceptions which he can rely on and which give him either an absolute or qualified right to limit his liability. In the Warsaw Convention effectively the same scheme is followed for the carriage of passengers, their baggage and commercial cargo. In each case an agreed code divides the risk between the carrier and his customer. It provides uniformity and certainty; conflicts of laws problems are avoided as far as possible; the incidents of where any accident or litigation may occur are sought to be removed as far as possible; the negotiation and acceptance of the ‘five freedoms’ of international air transport were facilitated. 147. It follows from this that considerations of national or local law should not be allowed to intrude upon, let alone govern, any question of construction that may arise on the provisions for division of risk. As Lord Hope of Craighead said in Sidhu... at 453, ‘The code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.’ It is not right to attempt to construe the words of the Convention by reference to the rules of any domestic law, English, American, German or even French. We know that those rules were and are not all identical. The purpose of uniformity means that it is the duty of the national court to put to one side its views about its own law and other countries’ laws. Quite apart from defeating uniformity, such a course can only lead to the complication of simple issues, the inadequately informed investigation of other legal systems and, most importantly, to uncertainty.”
“11. Counsel for the parties were in broad agreement as to the principles of interpretation of article 17 that should be applied. The important principles for present purposes are that: (1) the starting point is to consider the natural meaning of the language of article 17 …; (2) the Convention should be considered as a whole and given a purposive interpretation; (3) the language of the Convention should not be interpreted by reference to domestic law principles or domestic rules of interpretation; and (4) assistance can and should be sought from relevant decisions of the courts of other Convention countries, but the weight to be given to them will depend upon the standing of the court concerned and the quality of the analysis. I would add to these that the balance struck by the Convention between the interests of passengers and the interest of the airlines ought not to be distorted by a judicial approach to interpretation in a particular case designed to reflect the merits of that case. The point was well put by Scalia J in his dissenting opinion in Husain v Olympic Airways (2004) 124 S Ct 1221, 1234 (an opinion with which O’Connor J concurred): ‘A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an “accident”
“[i]t is irrelevant what bodily injury means in other contexts in national legal systems”
“[L]ower courts in this country have interpreted Article 17 broadly enough to encompass torts committed by terrorists or fellow passengers.”
“[T]he concept of an accident taking place on board an aircraft which causes death, wounding or bodily injury is a simple one. The words naturally suggest an untoward event which impacts on the body in a manner which causes death, wounding or injury.”
“23. One can break down the definition of an accident into two elements. (1) There must be an event; (2) the event must be unusual, unexpected or untoward. I would endorse the approval by the United States Court of Appeals, Third Circuit in Abramson v Japan Airlines Co Ltd (1984) 739 F 2d 130, 132, of the following charge to a jury as to the correct legal standard for determining the occurrence of an accident under Article 17: ‘An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual or unexpected, an unusual or unexpected happening.’”
“6. The use in article 17 of the term ‘accident’ is to be contrasted with the choice of a different term in article 18. Article 18 imposes liability on carriers for damage to baggage or cargo... 7. The use of the term ‘accident’ in article 17 but the term ‘occurrence’ in article 18 must be significant. Both terms impart the idea that something or other has happened. But ‘occurrence’ is entirely general in its natural meaning. It permits no distinction to be drawn between different types of happening. ‘Accident’ on the other hand must have been intended to denote an occurrence of a particular quality, an occurrence having particular characteristics. In the many decided cases in which the issue was whether the occurrence in question constituted an ‘accident’ for article 17 purposes, the judges have had to ask themselves whether the occurrence possessed the necessary quality or characteristics to qualify as an ‘accident’. It is evident that it was never, or should never have been, enough for there to have been an occurrence that caused the damage. For article 17 liability the occurrence had to have the characteristics of an ‘accident’. This passage may be said to emphasise O’Connor J’s second “clue” to the meaning of the term “accident”
“18. O’Connor J’s opinion in Saks has been widely followed both in the United States and in the courts of other signatory states. Both the standing of the court and the reasoning of the opinion justify that reliance. Moreover, as I have already observed, it is of importance that if possible a uniform interpretation of the Convention should be applied in all signatory states.”
“33. Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident. It is closer to a passenger who suffers an asthmatic attack, congenital back pain, a hiatus hernia or simply from the wear and tear of extreme old age. Not surprisingly, such cases have in practice been treated as not amounting to accidents: see Shawcross and Beaumont, Air Law, VII, para 701 (Shawcross Issue 101). Consequentialist arguments militate in favour of treating essentially similar medical cases in the same legal way. After all, DVT is not immune from the general process of medical science.”
“66. ... [T]he Supreme Court’s definition was suggested with the clear purpose of delineating boundaries to the concept of ‘accident’. The claimant’s submission in Saks had been that ‘accident’ embraced any ‘hazard of air travel’, and the Court of Appeals, whose judgment the Supreme Court was reversing, had used a definition derived from another convention (that on International Civil Aviation of December 7 1944), namely ‘an occurrence associated with the operation of an aircraft which takes place between the time any person boards an aircraft with the intention of flight and all such persons have disembarked’. Such an approach would in one respect have introduced a limitation on the concept (to hazards or risk in some way associated with aviation travel) which is certainly not explicit if it exists in any degree in the Supreme Court's paraphrase... They would have opened up airlines to liability for bodily injury attributable to any such hazard or risk, whether or not involving anything untoward or unexpected or indeed internal in origin. ... 75. The present case involved carriage by air in an aircraft and in a manner, which were, in terms of industry standards and practice, at the relevant times, normal, usual and expected. Like the Master of the Rolls, I can see no basis on which the permanent features of the aircraft, or the subjecting of the passengers to carriage in aircraft with these features could amount to an ‘accident’ within article 17. That is not of course the same as saying that an unexpected event during the flight must always be instantaneous and immediately noticeable, rather than continuous and unrecognised. Ashley J in his partially dissenting judgment in the Court of Appeal of Victoria in Povey [2003] VSCA 227, at paras. 211-216, gave some examples of continuous situations (e.g. continuous malfunction of the pressurisation causing injury) where he thought that there would be an ‘accident’, and I am in sympathy with him on that point. But the situations he was envisaging were on any view unusual and contrary to expected airline standards and practice.”
“I share the view that this appeal should be dismissed and for essentially the same reasons. Once it is clear that the accident which causes the injury must be something other than the injury itself, it becomes equally clear that the suffering of an internal reaction to an ordinarily uncomfortable journey by air, during which nothing untoward other than that reaction took place, cannot fall within article 17 of the Warsaw Convention. But I would particularly like to associate myself with the observations of my noble and learned friend, Lord Scott of Foscote, on the dangers of interpreting the words of the decision of a court, which is interpreting the words of the Convention, as if the court’s words were those of the Convention. If I fall over during a flight to New York, and break an arm, I suspect that we would all agree that my broken arm was caused by the accident of my fall; and we would do so irrespective of the reason for my fall; if it was my own silly fault, article 21 may relieve the airline of some or all the liability imposed by article 17, but that is another matter. In reaching those conclusions, we should not be agonising too much over whether my fall was an event ‘external’ to me. We should simply be asking whether it was an ‘accident’ which led to my injury. My own synonym for ‘accident’ would be ‘untoward event’ but that is by the way.”
“In principle, ‘accident’ is not to be construed as including any injuries caused by the passenger’s particular personal or peculiar reaction to the normal operation of the aircraft.”
“86. Some of the decisions to which we have been referred suggest that courts have taken as their starting point other decisions on the application of the Article rather than, as I believe is inevitably correct, an initial consideration of the language of the Article itself. The result is a gradual journey so far away from the source that the origins can no longer be clearly seen.”
“… [W]hen 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.”