BEVERLEY ANNE BARCLAY v BRITISH AIRWAYS Plc [2008] EW Misc 1 (EWCC)

IN THE OXFORD COUNTY COURT
[2008] EW Misc 1 (EWCC)Case No Claim No: 6OX03505
Between
BEVERLEY ANNE BARCLAYClaimantBRITISH AIRWAYS PlcDefendant
Before
RECORDER WEST-KNIGHTS QCCounsel for the Claimant: Richard Menzies Esq, instructed by Barrett & Co, Didcot, OX11 9QACounsel for the Defendant: Jonathan Chambers Esq, instructed by Gates and Partners, London EC3R 8EEHearing dates 12, 13, 27 February 2008
[1]Background On 17 October 2004 the Claimant Mrs Barclay boarded a British Airways Boeing 747 as a passenger to take a scheduled flight from Phoenix, Arizona to London Heathrow airport. She suffered a ligamentous injury to her right knee when she slipped as she was making her way along the row to the seat in which she intended to sit. There is a Schedule of Agreed Facts pursuant to a direction which I gave during the trial: the basic facts are not in issue but the interpretation to be placed upon them, and their result, are hotly contested. The quantum of the Claimant's damage was agreed on the second day of the trial at just over £24,000 including interest.[2]Mrs Barclay's action is brought under Article 17.1 of the Montreal Convention 1999 which by virtue of Schedule 1B of the Carriage by Air Act 1961 has the force of law in England. It is common ground that at the material time the terms of the Convention governed the carriage of the Claimant from the USA to the UK, both countries having ratified the Convention which thus superseded the Warsaw Convention.[3]It is also common ground that the Convention makes provision for the only remedy available to the Claimant: she will succeed under the Convention or not at all. All domestic or other notions such as tort or contract are displaced by the Convention, for reasons of international consistency. It matters not whether British Airways (BA) were negligent or otherwise at fault. The Convention is all that counts. The Convention[4]The terms of Article 17.1 are, on the face of it, simple:
"The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking"
Its terms are not exactly the same as those of its predecessor, Article 17 of the Warsaw Convention 1929 as amended, but for the purposes of this action any differences between the 2 Conventions are, I am told, immaterial.[5]The elements which are required for recovery in this case are thus: i) bodily injury ii) caused by "an accident" iii) on board the aircraft The basic issue[6]In common parlance it would be easy to conclude that each of the elements was present and that the Claimant should recover. There can be and is no dispute on elements (i) and (iii). However, the issue in this case is whether there was, within the meaning of the Convention, an accident. That issue has a number of strands to it. My initial reaction to the dispute was that any meaning for "accident" which did not encompass what had happened to the Claimant was likely to be wrong and Counsel for BA was aware that that was my starting-point.[7]The nub of the dispute is that Mrs Barclay says that what she had was obviously an accident, and that there is no binding authority to displace the natural meaning of the word. BA say that she must show that there was something external to her which caused the fall, and that that "something" must be unusual or unexpected. A "mere" fall, with no (unusual) external cause, will not do. At the heart of that is that a fall, simpliciter , is not an event external to the Claimant, thus there needs to be proven a cause for the fall which is external, unusual or unexpected. At first blush, BA's proposition involves adding words to the Convention which are not present. Approach to the law and facts[8]This is a County Court claim. I will therefore give such reasons for my conclusion as pay appropriate respect to the intelligent and vigorous arguments of both Counsel, to whom I am grateful. Both sides say they will ask for permission to appeal the outcome of this case to the Court of Appeal. So be it: my function is to determine the facts and then ascertain and apply the law, not to seek to make law or give my opinion on it save in so far as it touches on the question of permission to appeal or is otherwise necessitated by the international citation (as will be seen) of cases such as this, and to give reasonably succinct reasons for my decision. I fear that I have failed on "succinct".[9]It is logical to start with what happened and then, in the absence of binding authority on a slipping such as this (I will not use the word "accident" for obvious reasons), to deal with the canons of construction for an international Convention, determine the relevant case law and apply it in setting out my conclusions. What happened - the agreed facts[10]They are, so far as material, as follows:
"3 The Claimant was shown down the port aisle of the aircraft to her seat, number 26E, which was the second seat in a row of 4 seats (26D-G). The 4 seats were in the centre of the aircraft with an aisle either end. The Claimant's seat was immediately to the port of the aircraft's midline. 4 Immediately ahead of the said row of 4 seats there was another row of 4 seats. The first 2 seats of that row ahead (25D-E) were in a reclined position. 5 In order to reach her seat the Claimant passed sideways to her right between the reclined seats ahead and the first seat in her row (26D). In order to do so she had to lean slightly backwards. 6 As she lowered herself into her seat, with her bodyweight towards the right, the Claimant's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left. 7 Upon slipping the Claimant heard and felt her knee 'pop' and as it gave way it struck the armrest. 8 The Claimant sustained bodily injury. 9 The layout of the passenger cabin, the seating space available to each passenger, the type of passenger seats and the strips installed on the aircraft covering the seating tracks were all in accordance with the Defendant's usual standard for an aircraft of that type flying on the route in question and were not defective and in full working order. 10. All of the aircraft's seating and all of its systems affecting the passenger cabin environment and floor were in their normal working order. 11 The aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulation."
[11]Paragraph 3 to 6 of the agreed facts contain the actual physical elements of the events leading to and being the accident on which the Claimant relies, with the slipping set out at paragraph 6. Although agreed, those facts require some elucidation/qualification, not least because there is a need to look at all the circumstances. As will become apparent, there is more qualification than elucidation. What happened - elucidation/qualification of the agreed facts[12]First, paragraph 6 of the statement of agreed facts represents a quotation from part of paragraph 6 of the Particulars of Claim, as amended at the start of the trial. That paragraph was at all material times admitted by BA. There was no suggestion that the Defence might require amendment after paragraph 6 was changed. The amendment to paragraph 6 was to remove the word "metal" before "strip". There was no objection to such an amendment and, as I say, that paragraph 6 remained admitted in its new form.[13]Secondly, the agreed facts reflect other changes to Mrs Barclay's case and to BA's understanding of it. Paragraphs 3 to 5 of the Particulars of Claim, together with the fact that the Claimant's assigned seat was 26 F - the second in from the starboard end of the middle row - were read by BA to indicate that Mrs Barclay had been moving along the starboard aisle of the aircraft, and seeking to sit in the second seat along to port of that aisle, 26F. Accordingly, and whether this misunderstanding was justified or not, BA took a number of photographs of an aircraft, said to have its seats in a materially identical configuration, and in particular of the block of 4 seats in the middle of rows 24, 25 and 26, all from what turned out to be the "wrong" end of that block - the starboard end not the port. Mrs Barclay's case at trial was that she was in the port aisle moving starboard to the second seat in, 26E, as now reflected by the agreed facts.[14]Those photographs were sent to Mrs Barclay and at some stage about a month before trial she drew on the photograph which became p 83 of the bundle an ink circle round the strip (formerly "metal strip") on which she said, and it is admitted, she slipped. That photograph so marked was sent to BA's solicitors. Objectively, and once one knows the layout of the aircraft being photographed, it is reasonably clear that the strip thus identified by Mrs Barclay is what became known as a "fat strip": a piece of plastic covering the seat fix tracking and the wiring for the seat entertainment systems at the external side margin of the seat next to the (port) aisle - 26D. There is such a strip at each end of this block of 4 seats.[15]That marking should have alerted BA to the fact that Mrs Barclay cannot have been talking about trying to move to port from the starboard aisle, as she had circled something on the floor right at the "far end" of the row of 4 seats, but no further photographs were taken and there was, apparently, no response to her letter enclosing the marked photograph.[16]BA brought to court for the trial various physical exhibits, including a model of the leg and foot of the relevant type of seat (which are made of metal) and several exemplars of the fat strip - which is specially made for BA of blue plastic. The evidence was that BA never had metal-coloured (or metal) strips on these planes, and I accept that.[17]It seems to have been the production of this blue plastic fat strip which caused Mrs Barclay to seek to amend to delete the word "metal". Before trial, BA appear to have been content to assume that any allegation of slipping on metal could relate only to the leg or foot of the seat in front, or to an erroneous (and thus defeasible) allegation that the plastic strip(s) were broken or misplaced, thus revealing metal which should be covered. The latter was in fact disavowed by a letter from Mrs Barclay's solicitors dated 10 September 2007 (p21 - answering a Notice to Admit Facts, p 20) in which she alleged only that the (metal) strip was "defective in that it was very slippery".[18]What was plainly not apparent until Mrs Barclay gave her oral evidence was that she was not claiming to have slipped on the fat (plastic) strip, but rather on a much narrower strip of the same material running under the seats - a strip which covers only the seat fix tracking. Unsurprisingly, these were called thin strips. They are not only narrower, they stand less (if at all) proud of the carpet than fat strips, and hence are inherently less likely to be the cause of slipping. Mrs Barclay explained that she had misunderstood the photograph, and it is a fact that the photograph is not very clear. Moreover, she may have been making an (erroneous) assumption about the spacing of the thin strips.[19]To complete the unsatisfactory picture of the actual events, Mrs Barclay gave an oral account of the whereabouts of the actual (thin) strip she slipped on, in answer to a question from the court. Making due allowance for the fact that the photographs were taken from the "wrong end", and that she was trying to describe a mirror-image, she positively identified a thin strip which would have been beyond the seat towards which she was moving, sideways; a strip on which, on the face of it, she could not have slipped. This difficulty was compounded by the fact that Mrs Barclay and her team appear to have assumed, despite the photographs, overall, showing otherwise, that the thin strips coincided with the edge of one seat and the start of the next. In the block of 4 seats the sequence of strips was fat, thin, thin, fat. Accordingly the thin strips were somewhere nearer the middle of the seats they passed under than the edge (so, too, for the same reason, were the legs and feet of the seats in front). The sequence would need to be fat, 3 thins, fat for those strips (and the legs/feet) to coincide with the edges of the seats.[20]Neither party pursued this - BA perhaps because Mrs Barclay had not improved her case, and they being content to avoid the emergence of new allegations or detail, Mrs Barclay's counsel perhaps because it would have been impossible to repair her evidence without unacceptable leading. There was a faint suggestion that the aircraft selected for the photographs was somehow the wrong type but I am satisfied by the evidence of Mr Brown for BA that the aircraft was of the same configuration, and that the location of seat fix tracking (which predicates the location of the strips) is fixed in the manufacture of the aircraft. Re-configuring the seating involves designing seats and banks of seats which fit the locations of the immutable floor tracking, not changing the tracking in the floor.[21]Were it not for the fact that slipping on a (now plastic, inevitably) strip remained an admitted fact, I might well have rejected Mrs Barclay's account altogether. However her pleaded case on slipping stayed admitted, and accordingly I must deal with the somewhat artificial situation thus created.[22]The remaining positive complaint, made in the said letter, that the strip (still metal at that stage) was "defective in that it was very slippery" - so much so that Mrs Barclay slipped on it despite wearing non-slip shoes according to the letter - is mostly removed by the agreed statement of facts, paragraphs 9 and 10. Moreover, it was expressly no part of Mrs Barclay's case or evidence that there was anything spilt or left on any strip so as to render it slippery.[23]In her evidence she said that she did not see what she slipped on, but rather felt something under her foot. She did not examine the floor after the slipping; she had initially been in great pain and was placed in the row in front, which happened to be a "bulkhead row" - one facing a wall rather than other seats - which afforded leg-room that was less restricted.[24]I have been able to see and touch a piece of the plastic in question. It is not obviously slippery in the "fat strip" form, and it is less obviously the potential cause of slipping in its thin form, especially given the vertical and lateral proximity of the surface of the thin strips to carpet. It was not seriously suggested that the plastic was inherently slippery: to the extent that it was I can say that it appeared and felt not to be. In her evidence, Mrs Barclay accepted that the strip was "not slippy", though she added, perhaps unnecessarily, that the plastic was more slippery than carpet. I take into account also the evidence that the use of this kind of plastic is absolutely standard on BA 747s; it is possible but unlikely that BA would select a slippery substance for use on the cabin floor in the passenger compartment. I cannot and do not find that there was anything inherently unduly slippery about the plastic strips.[25]I should say here that mentioned in BA's skeleton was the possibility of pre-existing weakness in Mrs Barclay's knee being the explanation for her fall - this was not pursued in cross-examination, and it would not have helped BA if it had been. Mrs Barclay's evidence, which I accept, was that pre-existing troubles with her knee were painful but had no effect on function.[26]So, it is admitted that "Mrs Barclay's right foot suddenly slipped on a strip embedded in the floor and went to the left" but there is no agreed, indeed no, explanation for the mechanics or cause of that event - whether external or internal to the Claimant.[27]Is such a slipping an accident for the purposes of Article 17.1? That is the question to be answered. The law[28]In the bundle of authorities before me there were 7 English and Scottish reports from the High Court, Court of Appeal and House of Lords, 1 Australian case, 6 American including 1 from the Supreme Court and 6 English County Court cases. It will not be necessary to refer to them all. There is attached to this judgment a list of those authorities and cases.[29]BA's submissions are that a) the fall was not an event external to Mrs Barclay and b) in any case, the cause of the fall was not "unexpected" or "unusual" in that neither of those adjectives would be apt to describe the strip on which she slipped (or the presence of reclined seats).[30]In addition, as the conversely-expressed version of the above propositions, BA submit that the slipping should properly be characterised as only a "personal peculiar or particular reaction to the normal operation of the aircraft".[31]None of those disputed words or phrases in paragraphs 29 and 30 above appearing in the words of Article 17.1, what is the source for them if they be requirements for a Claimant to prove? The question is posed particularly in the context of the underlying law which requires a court, as will be seen, to start with the natural meaning of the words in the Convention and to take care not to spend too much time analysing the analysis or treating explanations of the words as being as important as the words themselves.[32]There is no dispute as to the basic canons of construction, and I take them from the summary by Lord Scott of Foscote, in In re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495 starting at [11]:
"[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, with the French text prevailing in case of any inconsistency with the English text [that caveat no longer applies - this was the Warsaw Convention] ; (2) the Convention should be considered as a whole and given a purposive interpretation; (3) the language of the Convention should not be interpreted by reference to domestic law principles or domestic rules of interpretation; and (4) assistance can and should be sought from relevant decisions of the courts of other Convention countries, but the weight to be given to them will depend upon the standing of the court concerned and the quality of the analysis. I would add to these that the balance struck by the Convention between the interests of passengers and the interest of airlines ought not to be distorted by a judicial approach to interpretation in a particular case designed to reflect the merits of that case. The point was well put by Scalia J in his dissenting opinion in Husain v Olympic Airways (2004) 124 S Ct 1221, 1234 (an opinion with which O'Connor J concurred): "
A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an 'accident'. Whatever that term means, it certainly does not equate to 'outrageous conduct that causes grievous injury'. It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue … Unless there has been an accident, there is no liability, whether the claim is trivial … or cries out for redress." [12] I think at this point a word of caution about the process of interpretation is in order. It is not the function of any court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to article 17 liability, or of any of those conditions. The language of the Convention itself must always be the starting point. The function of the court is to apply that language to the facts of the case in issue. In order to do so and to explain its decision, and to provide a guide to other courts that may subsequently be faced with similar facts, the court may well need to try to express in its own language the idea inherent in the language used in the Convention. So a judge faced with deciding whether particular facts do or do not constitute an article 17 accident will often describe in his or her own language the characteristics that an event or happening must have in order to qualify as an article 17 accident. But a judicial formulation of the characteristics of an article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention. It should be treated for what it is, namely, an exposition of the reasons for the decision reached and a guide to the application of the Convention language to facts of a type similar to those of the case in question." Natural meaning[33]The natural meaning of the word "accident" is not simply determinative of this case on its own - it has a number of meanings depending on its context. However, there is high authority to which I shall refer, and on the wording of the Convention alone it is clear from Article 17.2 (formerly 18) that "accident" must be something more than a mere "event" or "occurrence" - that much is agreed, as is the necessity for the accident and the injury to be 2 separate things.[34]There is a clear indication in the case of Morris in the Court of Appeal that the meaning of "accident" in the Convention is in fact wider in one context at least than its ordinary and natural meaning (to me). In that case the Court of Appeal held that the sexual groping by a neighbouring passenger of the Claimant was an "accident" within the Convention. That is squarely within Saks , and plainly right, but it does not accord with the more obvious ordinary meanings of the word. I have borne that in mind when considering the meaning in this case. Purposive/policy[35]Considering the Convention as a whole and giving it a purposive construction requires the purpose to be evident from some source. I am told that the travaux preparatoires do not help on the instant point. Plainly, international uniformity is a central purpose, as may be the avoidance of jurisidiction- or forum- or law-shopping or -uncertainty. Those factors do not help in this case. It appears from the quotation of Justice Scalia by Lord Scott set out above that the Convention (treating the 2 conventions as one) was for limiting claims by passengers, in support of the "fledgling industry", although in one sense the absence of the need to prove fault could be said to extend the ambit of potential claims. One does not know what type of claim the fledgling industry faced or feared in the 1920s, but it may be inferred from what Scalia J said (with which Justice O'Connor agreed) that the "accident" formulation represented, or was intended to effect, a net reduction of circumstances giving rise to a claim by passengers.[36]In this case, both BA and Mrs Barclay urge upon me that I should not find against them on personally-perceived "policy" grounds - "fair", and the like: I made it clear that this Court does not know what is or would be "unfair" as a matter of overall policy as regards liability for events affecting the carriage of persons by air, and consequently no such consideration would affect the outcome. The result will depend on the proper construction of the Convention in accordance with the guidance referred to.[37]I am bound to say that nothing was put before me directly to assist further with "policy" as it affects the construction of the word "accident", and where the non-Supreme Court US cases in particular import seemingly additional requirements to be established by a Claimant, the weight to be attached to those decisions must depend in part on the reasons given for, not just the fact of, such requirements.[38]On the question of policy, reliance is placed by BA on a dictum in Sethy v Malev-Hungarian Airlines [2000] US Dist Lexis 12606, a decision of a US Federal District Court affirmed (without reasons) on appeal. In that case the Claimant tripped over a bag in the aisle and suffered injury. An accident, one might suppose. No, held the US Court, adding " a determination that plaintiff's injury amounts to an "accident" under [Article 17] would be tantamount to the imposition of strict liability on air carriers, which the drafters of the Convention clearly did not countenance. "[39]That statement as to policy is not, in my judgment, by any means self-evident - either as to whether it would amount to strict liability (whatever that means in that context) or as to what the drafters did countenance; there is certainly not set out any basis for the conclusion as to what was countenanced. It could be contrasted, in terms of the apparent scope of liability, with what Lord Philips MR said in Morris in the Court of Appeal, [2002] QB 100 at [24-27], in a slightly different context: [24] The definition of "accident" in Saks gives that word a natural and sensible meaning in the context in which it appears and has been approved by this court. We propose to apply it in the present case. [25] There is nothing in Saks that justifies the requirement that an "accident" must have some relationship with the operation of the aircraft or carriage by air. Nor do we consider that a purposive approach to interpretation requires that gloss on the word. Article 20 of the Convention provides: "The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures." [26] Liability under article 17 only arises in relation to an accident that occurs on board the aircraft or in the course of embarking or disembarking. Thus the accident will occur at a time when the passenger is in the charge of the carrier. In those circumstances it seems to us to be a logical and reasonable scheme of liability that, whatever the nature of the accident [emphasis added], a passenger should be entitled to be compensated for its consequences where the carrier is not able to discharge the burden imposed by article 20.[40]Accordingly, I do not find the consideration of policy, as thus expressed, strongly helpful. Clear authority[41]There is, I am told, no English authority on cases of "slipping or tripping" by passengers in aircraft. So, the answer to this case must be derived first from what there is that is binding on this court in English law, and then by taking assistance from such other permissible sources as there are. Unusual or unexpected[42]The source of "usual and unexpected", as applied to the event which is said to constitute the accident, is undoubtedly Air France v Saks (1985) 470 US 392, as expressly adopted by the House of Lords (England) in Morris v KLM [2002] 2 AC 628 supra and DVT supra. That case, in the US Supreme Court, also made it clear that the event constituting the accident and the injury required to be 2 separate matters: it is necessary to prove that the injury was caused by an accident - injury of itself is not enough.[43]So far so good. As for "accident", in the context of a case about a damaged ear-drum occasioned in the normal operation of the aircraft, the Supreme Court decided as follows, as taken from Lord Scott's said speech, from [15]:
"15 In Air France v Saks 470 US 392 O'Connor J, having cited Lord Lindley's definition of an "accident", having surveyed the French case-law and dictionaries and having reviewed the history of the negotiations that had led to the Convention, concluded, at p 405: "liability under article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries .""
[44]That basic statement, emphasis added, was the locus classicus in English and American law and remains so. He went on: 16 Two features of this conclusion, both of which can be regarded as prompted by the facts of the Saks case, warrant some comment. The facts were these. The claimant had suffered damage to and become permanently deaf in an ear as a result of pressurisation changes while the aircraft was descending to land. But the pressurisation system of the aircraft had operated in an entirely normal manner. The airline contended that the normal operation of a normal pressurisation system could not qualify as an article 17 accident. O'Connor J agreed. The damage to the claimant's ear could not itself constitute the article 17 accident. The cause of the damage had to be the accident. But the pressurisation system had operated normally. This is the factual background that led O'Connor J to formulate the requirement of an "unexpected or unusual event or happening that is external to the passenger " (emphasis added). In doing so she noted, at p 404:
"European legal scholars have generally construed the word 'accident' in article 17 to require that the passenger's injury be caused by a sudden or unexpected event other than the normal operation of the plane."
And, at pp 404-405:
"… American decisions … while interpreting the term 'accident' broadly … nevertheless refuse to extend the term to cover routine travel procedures that produce an injury due to the peculiar internal condition of a passenger." 17 Both the requirement that the causative event be unusual and that it be external to the passenger were prompted by the facts of the Saks case. Both requirements were emphasised by O'Connor J in passages at p 406 of her opinion: " when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and article 17 of the Warsaw Convention cannot apply. " "
Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger."[45]The words in bold are the obverse formulation of the same test, or at least the other end of the spectrum from, "unusual and external" and reflect the fact that the injury in Saks - the eardrum damaged by normal pressure changes - could aptly be so described. I call it the negative formulation.[46]Continuing:
"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."
[47]Accordingly, the accident must be constituted by, or encompass, an event external to the passenger which is unusual or unexpected.[48]The use of the words "external" and "internal" make great sense in the context of an injury the mechanics of which were undoubtedly internal and where there was no material external event: determining what is "external" in a different context is less easy, and whether "external", as used by O'Connor J, was in contradistinction only to "internal" (to the Claimant, as in the effect on a particular eardrum, the onset of DVT on a particular passenger as the flight progressed, a pre-existing personal difficulty with standing up) is perhaps not immediately clear. I add that in the case of Mrs Barclay, there is little material to help with "assessment of all the circumstances" when applying, flexibly as I must, the Saks test.[49]The first English case cited and which approved Saks is the decision of the Court of Appeal in Chaudhari v BA , 16 April 1997, CA unrep. In that case, where the unsuccessful appellant did not appear, Leggatt LJ (with whom the other members of the Court agreed) held that the falling of a semi-paralysed person whilst he was trying to get to his feet to go to the lavatory did not constitute an accident. The Court of Appeal adopted the second, negative formulation, part of the Saks explanation of "external", and offered a generally-applicable formulation for it thus [p7, final paragraph]: ""accident" is not to be construed as including any injuries caused by the passenger's particular, personal and peculiar reaction to the normal operation of the aircraft" and concluded: " what befell Mr Chaudhari was not caused by any unexpected or unusual event external to him but, but by his own personal, particular and peculiar reaction to the normal operation of the aircraft. As the judge said, he fell as the result of his pre-existing medical condition ".[50]There the Court of Appeal is undoubtedly, albeit in a case where there was scarcely full argument, focusing on not just the immediate cause of the injury - the fall - but on the reason for the fall . The fall, though probably of itself unusual and unexpected, was not treated as the material "event" for the purposes of the Convention use of the word "accident".[51]BA submit here that Mrs Barclay's fall was her "particular, personal and peculiar reaction to the normal operation of the aircraft". For myself I am quite unable to shoe-horn the slipping, whatever its mechanism, into that sentence. It makes literally no sense. It may be the converse of "liable", or "external event etc", and she may not have had an accident, but the negative formulation does not assist in this type of case where there is nothing "(internally) wrong" with the Claimant and where the notion of "reaction" to "normal operation" is linguistically inapt.[52]For what it is worth, it appears that those English cases which subsequently approved Saks do not necessarily approve the reasoning in Chaudhari but the ratio , of course, binds this court. There is also a plain difference on the facts: here the Claimant has no "internal peculiarity", and none forms part of the causative chain, whereas Mr Chaudhari's fall was exclusively referrable to his own particular condition. Whether that renders the case distinguishable or the formulation obiter I address below. Other help with "mere fall"[53]There is guidance to be had in DVT in the House of Lords on "mere fall". Unhappily, the statements in question are obiter dicta and, in my judgment, probably mutually contradictory. The first is in the very brief speech of Baroness Hale of Richmond at [49], where she said this:
"[49] 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."
[54]Lord Mance said this at [56] "[56]…Death from entirely natural or internal causes may be described as accidental, but it is not caused by an accident, which is what matters under article 17; and, if a passenger were to suffer bodily injury as a result of a fall on board which was due to some internal condition (such as partial paralysis or drunkenness) not sensibly attributable to the airline, it seems improbable that his injury should be regarded as caused by a relevant accident:…"[55]Quite where the speech of Baroness Hale fits with the approval and adoption of Saks is not entirely clear, unless she was seeking to say that the "externality" requirement was particular to its facts: it can, I think, be said that the guidance in those two statements on "mere fall" does not assist this court. Lord Mance's reference to "partial paralysis", of course, matches the facts of Chaudhari The cause of the injury, or of the event?[56]Partly-concealed at paragraph 29(b) above is the second issue - whether the Claimant must show that the cause of the accident was unusual or unexpected. This formulation arguably adds a third stage in the requirement. Running "backwards": a) injury caused by b) an external event caused by c) something unusual or unexpected whereas on their face the Convention and Saks require only a) injury caused by b) an unusual or unexpected external event. Other US cases and an Australian case[57]Leaving aside Chaudhari for a moment, there is support for this extra (if it be such) requirement, and it is to be found in some of the other US cases and the Australian case cited. There is, according to counsel, no relevant approval (or disapproval) of those cases in England, although they have been followed in the majority of the County Court cases in the bundle. Indeed, one of those County Court cases was relied upon in the Australian case referred to. I mean no disrespect to the judges concerned when I do not recite the (other) English County Court cases. They are, as a fact, 4-1 in favour of BA's general position, but I pay little heed to that: to a degree the exercise is self-fulfilling and circular, and with the exception of one, Singhal v BA , Wandsworth County Court, Recorder Bueno QC, 20 October 2007 where the court found against BA, the reasoning set out is limited.[58]The "rank" of the US cases is that of Federal District Court and its next level of appeal - said to be one below the Supreme Court. They are not to be ignored where they are relevant - due weight must be given to them and I note that Lords Steyn and Scott in DVT , supra, both referred to DVT cases in "lower" courts in the USA - courts such as District Courts. Plainly such cases are of no help unless they all go more or less the same way: if the jurisprudence is not settled, there cannot be said to be a body of opinion with which to seek comity or to act as a reliable guide. In fact, and so far as they go, the cases do have a preponderance of opinion in common.[59]The first case is Craig v Air France , 45F 3d 435 (1994), US District Court for the Central District of California, affirmed on paper without reasons on appeal 16 September 1994. The Claimant fell while trying to climb past a sleeping passenger, perhaps slipping on a shoe. Held that even if she did slip on a shoe, the presence of such a thing was not an unusual or unexpected event hence there was no accident. The focus was not on the fall, but the cause of the fall.[60]Next, MacDonald v Air Canada , (1971) 439 F 2d 1402, US Court of Appeal 1 st Circuit 25 March 1971. The Claimant (a lady of some years) fell, but she failed to prove that it was due to anything external to herself and lost on the basis that the cause of the fall may just as well have been something internal. The case pre-dates Saks and is mentioned almost in passing by Justice O'Connor. BA says it was thus approved: it was certainly not disapproved. The mere fact of the lady's fall was not treated as an, or the, accident.[61]Then, the case of Sethy v Malev , US DC Southern District of New York, affirmed by summary order without reasons on appeal 12 June 2001, and referred to above. The Claimant fell over a bag in the aisle. That was said to be the event, the presence of the bag, which was not unexpected or unusual. The tripping may have been both unexpected and unusual, with a cause external to the Claimant, but that was not enough. The rationale appears to have been a choice between conflicting lines of pre-existing authority (and the reference to policy set out above). Again, the focus is on the cause of the fall, not the fall itself.[62]Next, Schwartz v Lufthansa , Aviation Cases 1039 3.94 24 Avi 17,841, another US District Court decision, 29 June 1993. A drunken passenger had an otherwise unexplained fall in a clean lavatory: held that being drunk was not an unusual or unexpected event external to the passenger. In that case there was no event save the fall itself, and that event had no external cause. It is "Lord Mance" rather than "Baroness Hale", if I may put it that way.[63]Lastly, as regards the USA, Potter v Delta Airlines (1996) 98 F 3d 881, US CA 5 th Circuit 6 November 1996 where a lady tried to negotiate past the back of reclined seat occupied by a rude and uncooperative man, her foot stuck on the carpet and she tore a knee ligament. Held that neither the man, nor the reclined seat, were unusual or unexpected external events (the fall was not treated as the event here, as elsewhere - all these courts are looking for the cause of the fall , and treat that as the event). Here, indeed, there was no event apart from the fall itself. There is no discussion of policy or rationale. BA say that Potter is on all fours with this case.[64]There is also an Australian case, said to be broadly at County Court level: Carswell v Qantas NSW District Court 2 July 1994. The Claimant "slipped or tripped" and hurt her knee. It was claimed that she had slipped on an armrest cover. Held: if so, the presence of an armrest cover was not an unusual or unexpected event. Again, the focus is on the cause of the fall, not the fall itself: it would be fair to say that there was an event namely the tripping/slipping on the cover, which (the slipping) might fairly have been described as unusual or unexpected. But if so, was it external?[65]Is the only "external" "event" the presence of the cover, in which case there was nothing unusual or unexpected in the external element (as the court held)? In fact, the Claimant lost on the primary facts, but the court went on to hold, based in part on a case in the Liverpool County Court of which I have been provided with a transcript, and another in Manchester (pp 39, 40), that the relevant "happening" would be the presence of something on the floor, and that that was not unusual. There is, with respect, no real analysis.[66]These cases would be more useful if they contained more analysis and reasoning. They do, however, and so far as they go, tend the same way. One way of looking at them is that they are decided on the basis that there needs to be an unusual cause for the external event which caused the injury. If that be right, it seems to me to add a third requirement not present in the Convention, which appears to require only an external event which is itself unusual or unexpected, and injury as the result.[67]However, another (and in my judgment the better) explanation is that the courts have, in effect, decided that falling itself was not or could not be the required external event, and so have looked further back, causatively, where they find only a usual state of affairs. On that basis they are not inconsistent with Saks (on which, save for the one predating it, they purport to be based), subject to what I say below about the actual application of the "unusual or unexpected" part of the test.[68]To say that falling (or tripping or slipping) is an event internal to the Claimant does not sound right, but it can sensibly be described as not external to the Claimant. Externality again[69]I return to externality in the DVT case in the House of Lords for a last check on what guidance there is:
" nothing in the Husain case casts doubt upon the two important requirements of an article 17 accident that were established in the Saks case and have been applied fairly consistently ever since, namely that an event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an article 17 accident and, second, that the event or happening that has caused the damage of which complaint is made must be something external to the passenger ." – Lord Scott in DVT at [23]; "
Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger ." – Lord Steyn at [33]; " the issue before us can be broken down into three aspects, namely whether there was (a) an event, which was (b) unexpected or unusual and (c) external to the passenger ." – per Lord Mance at [69].[70]This case is not Chaudhari - there there was a clear internal and personally particular cause for what occurred. But what if Mr Chaudhari's hand had slipped off the armrest, by reason of his using his arms to push himself up. Would that then have ranked as an accident? Would the hand slipping be the "external event", itself "unusual or unexpected", in which case he would recover? Such a tiny, and fortuitous, difference in the mechanics of the events would not seem to justify a totally different result.[71]In this case, just as there is no internal reason for the fall, as in paralysis or drunkenness, nor either is there anything else, not even a bag in the aisle (whether that be external, unusual or unexpected or not). That is what separates it from all the English cases on the subject. The result[72]The first question is: was the admitted slipping an event external to the Claimant? On the evidence and the law, I have come to the conclusion that the Claimant has failed to prove that it was. This is, in effect, a case of "mere fall", and I hold on the basis of Chaudhari (which in my judgment requires me to come to this conclusion) and the preponderance of opinion in the foreign case law, that a mere fall is not an event external to the Claimant for the purposes of determining whether there was an accident within the relevant meaning of the word. I regard the statement of Lord Steyn set out at paragraph 69 above as persuasive in the same direction: he refers to the cause of the accident , not merely the event comprising the accident, having to be external. In this case, all that can be said is that a slipping occurred on the plastic strip.[73]That is where it happened, but I cannot find that that is why it happened. It cannot be established that the slipping occurred by reason of something to do with the strip (except its passive and "usual" presence). The evidence, such as it is, tends to suggest that the initiation of what led to the slipping had no cause to do with the plastic strip, and indeed no cause outside the Claimant at all. It may have been no more external than the failure of Mr Chaudhari properly to stand up. All that is proved is that the Claimant fell over, albeit that part of the mechanics, place and timing involved the plastic strip - a point at which there was less friction than that afforded by the carpet. Put another way - what was the external event here? None is identified, and none is proved beyond the fall itself, which does not count.[74]And, even if the strip actually caused the slipping, somehow, and was thus a cause external to the Claimant, there was nothing unusual or meaningfully unexpected about that cause.[75]I am satisfied that these conclusions not only accord with the wording of the Saks test, but also that there is no warrant for limiting the ambit of the references in Saks to "external" to those situations where internal aetiology such as ear-drum or vein damage are being considered. The line has to be drawn somewhere, subject to the sensible application of flexibility to the test, and the one drawn in Saks is of general application - including the concept of externality.[76]On the basis of the US/Australian cases referred to above, and consistent with the "chain of events" statement in Saks , and with the underlying ratio of Chaudhari in mind, in this case I then look backwards, in terms of causation, for an unusual or unexpected cause for the slipping/loss of balance, to see if there was any prior (pre-fall) event passing the Saks test. In this case there is none. Moving about behind, and the fact of, reclined seats and putting a foot on/the presence of a standard and non-defective plastic strip, are the bare components of this "accident" and they do not include, I find, anything which is unusual or sensibly to be described as unexpected.[77]The Claimant's claim therefore fails on the ground that there was no relevant accident. This is a conclusion which remains, to my mind, mildly counter-intuitive, but intuition is not the only or the best guide in this field, and I remind myself that "accident" in the Convention is, to a degree, a term of art.[78]The analysis has not been assisted by the artificiality engendered by the absence of cogent evidence as to the circumstances of the slipping, a situation caused in part by the preparedness of BA to admit the Claimant's case while not having fully understood it, but in the end that has probably not affected the outcome. Application of this decision[79]In light of the potentially wide publication of this decision, of which I was reminded by BA after the parties had seen it in draft, I should add two things: i) decisions of the County Court in England do not bind any court, including the same or any other County Court ii) if this case, in the absence of clear English authority, is cited, particularly abroad, for the purposes of persuasion it should be recognised that this is a decision on its peculiar facts. In particular, this case is not about tripping over a bag in the aisle or on the wet floor of a lavatory or by reason of other external causes which, in my view, are causes which are unexpected from the point of view of the passenger and which do pass the Saks test. In common with the court in Singhal v BA , supra, I consider that the cases deciding to the contrary have, with respect, arguably strayed too far from the ordinary meaning of the word "accident" and may have resulted in a regime which is not "no fault liability" but, in practice in falling-over cases, something closer to "no no fault liability".[80]I am indebted to Counsel for the care and detail with which the law in this case was presented; I should acknowledge that counsel for BA, successful in the event, had to work hard to counter my said initial views. Judgment and costs[81]There will be judgment for the Defendant British Airways plc. I have had brief written submissions on costs. That costs should follow the event in principle is agreed. However, Mrs Barclay wants to argue that some of the conduct of BA has served to increase the costs unnecessarily, though it is conceded that I would not be in a position to apply any sort of percentage disallowance without having to know a lot more than I do about the costs overall. BA say there was no unreasonable or expense-inducing conduct on its part. Neither party has asked me summarily to assess the costs, and I do not have the material with which to do so.[82]In the circumstances Mrs Barclays asks that I make such an order as preserves her right to take "conduct points" at any detailed assessment - if such rights require so to be preserved. It is an order which cannot prejudice either party, and I will make it - that the Claimant will pay the Defendant's costs of the action to be the subject of detailed assessment if not agreed, and the determination of any issue of the conduct of the parties in relation to costs is reserved to the costs judge. In so ordering I am not endorsing any suggestion that there was any relevant misconduct: the matter is entirely reserved, and indeed it is to be hoped there will be no need for detailed assessment at all. Permission to appeal[83]This being a final order in the County Court, the relevant appellate court is the Court of Appeal. Mrs Barclay seeks permission to appeal both on the merits - CPR Rule 52.3(6)(a) as a point of law only, and as regards a stated need for the Court of Appeal to clarify the position in cases such as this - "other compelling reason", CPR Rule 52.3(6)(b). That is opposed on the ground that Mrs Barclay has no (real) prospect of success; nothing is said on the second ground beyond my attention being drawn to the relevant passages in the White Book.[84]I have no hesitation in giving permission to appeal on the law. I cannot say that an appeal by Mrs Barclay has no real prospect of success. Further, there is another compelling reason why an appeal should be heard.[85]To determine this matter it has required the parties to put before the court a large bundle of legal materials, as reflected by the list attached. It was listed for, and took, 2 days for the trial itself, and then there was the extra time writing and handing down judgment. The judgment is not binding on anyone. The law remains complicated, uncertain and diffuse and that is not a satisfactory position. I note that the court in Singhal , supra, the other fully-reasoned English (County Court) case, expressed the hope that the Court of Appeal grant permission to appeal (that being a "second appeal" in that case, it was not open to the Recorder himself to grant it).[86]The next time a case such as this is fought, the court is likely to be faced with a similar range of materials, save that the County Court tally will be one greater. At the pre-action protocol stage, whether a case later fights or not, there will be a complex exchange of legal propositions, all novel to most prospective Claimants and founded on diffuse materials. English law, Convention law, on slips and trips in aircraft should be clear and simple, as was undoubtedly intended by the authors of the Convention(s), and I would respectfully regard it as beneficial that the Court of Appeal should lay down authoritative law and guidance: not just as regards "mere falls" but also cases such as those where passengers trip over bags in the aisle - or slip on "not unusual" wet floors (two of the English County court cases where the carrier won). That would produce a considerable practical benefit to carriers and passengers alike and (mostly) County Courts and actual and potential parties therein, reducing the cost of and, in many cases, the necessity for litigation. It would also clarify this jurisdiction's position to the advantage of courts in others.[87]Last, and least, as is already apparent my own view is that the "slipping and tripping" jurisprudence, currently developed partly on the basis of foreign, sometimes "junior", courts aligning themselves with English County courts, and vice versa, has taken a wrong turn, particularly as regards what is and is not "unusual or unexpected" so as unduly to limit what is an "accident", and needs to be nudged back onto track by the Court of Appeal. ************************************* LIST OF MATERIAL CITED UK Authorities 1. Sidhu v British Airways [1997] AC 430 (HL) 2. Chaudhari v British Airways Plc The Times, 7 th May 1997 Transcript No.590 of 1997 (CA)(BAILII: [1997] EWCA Civ 1413 ) 3. Morris v KLM Royal Dutch Airlines [2002] QB 100 (CA) 4. Morris v KLM [2002] 2 AC 628 (HL) 5. In Re Deep Vein Thrombosis and Air Travel Group Litigation [2003] 1 All ER 935 (QB) 6. In Re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234 (CA) 7. In Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495 (HL) Foreign Authorities 8. Air France v Saks (1985) 470 US 392 (US Supreme Court) 9. Carswell v Qantas No.5303 of 2002 (District Court of New South Wales) 10. Craig v Compagnie Air France (US District Court- affirmed by US Court of Appeals 9 th Circuit 45 F 3d 435 (1994)) 11. MacDonald v Air Canada 1971 439 F 2d 1402 (US Court of Appeals 1 st Circuit) 12. Sethy v Malev Hungarian Airlines Inc 2000 U.S. Dist. Lexis 12606 (US District Court - affirmed by US Court of Appeals 2 nd Circuit Lexis 12144) 13. Schwartz v Lufthansa German Airlines Aviation Cases 1039 3.94 24 Avi 17,841 (US District Court). 14. Potter v Delta Airlines Inc. 1996 98 F.3D 881 (US Court of Appeals 5 th Circuit) UK Statutes 15. The Carriage by Air Act 1961 (as amended), and Schedule 1B thereto. County Court Judgments 16. Williams v Air UK Leisure Ltd Liverpool County Court 28 th April 1997. 17. Kedgley v Britannia Airlines Mr Recorder White Wandsworth County Court 1 st September 2004. 18. Cannon v Mytravel HHJ Caulfield Manchester County Court 8 th July 2005. 19. Duffy v Britannia Airways Ltd Mr Recorder Leeming QC Lancaster County Court 19 th September 2005. 20. Singhal v British Airways plc DJ Banks (first instance) Uxbridge County Court 2 nd November 2006. 21. Singhal v British Airways plc Mr Recorder Bueno Q.C. (on appeal from DJ Banks) Uxbridge County Court 20 th October 2007 (corrected 23 rd October 2007). Texts 22. Shawcross & Beaumont Air Law (Volume 1) VII 629 – 662.