Ford v Malaysian Airline Systems Berhad

For Article 17.1 of the Montreal Convention 1999, an accident is the cause of bodily injury, not the injury itself. It requires an unexpected or unusual event or happening external to the passenger, assessed from the passenger’s perspective, and that characteristic must contribute to the causal chain. An event is not an accident merely because its setting is unusual. An ordinarily administered injection does not qualify where no evidence shows that the circumstances making it unusual caused the injury. A peculiar internal condition may be the immediate cause, but an external unusual event may still suffice if it contributes causally.

A passenger claimed damages for bodily injury under Article 17.1 of the Montreal Convention 1999 after a doctor who was travelling as a fellow passenger injected her with a diuretic during an international flight. The injection allegedly increased fluid retention and discomfort caused by underlying urethral stenosis.

On a preliminary issue, His Honour Judge Owen QC held by judgment and order dated 11 July 2012 that the pleaded facts did not disclose an accident. The appeal concerned whether the injection, assumed to have exacerbated the passenger’s discomfort, fell within Article 17.1.

1. Disposition. Lord Justice Aikens gave the judgment. Lord Justice Leveson and Lord Justice Maurice Kay agreed. The appeal was dismissed.
2. Autonomous interpretation. The Convention’s concepts are autonomous and should, where possible, receive a uniform interpretation among signatory states. The court therefore paid close attention to international authorities on the materially corresponding Warsaw Convention provisions, including Re Deep Vein Thrombosis Group Litigation [2006] 1 AC 495 and Air France v Saks (1985) 470 US 392.
3. Meaning of accident. Accident refers to the cause of the passenger’s death or bodily injury, rather than the injury itself. The cause must be an event or happening that is unexpected or unusual and external to the passenger. Unexpected and unusual are distinct qualities. The assessment is made from the victim’s perspective. Some link in the causal chain must possess the relevant unusual or unexpected character. A peculiar internal condition may be the immediate cause, but an external unusual event may still satisfy Article 17.1 if it contributes causally.
4. Application. The injection was administered in a normal manner, with no evidence of an abnormal procedure. Although giving an injection during an international flight by a doctor passenger was unusual in a broad contextual sense, there was no evidence that those circumstances had any causative effect. The same chain of events would have occurred wherever the injection was administered. The mid-flight setting therefore did not make the ordinary administration of the injection an accident. This reasoning was consistent with the approach in In re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234, Barclay v British Airways PLC [2010] QB 187 and Abramson v Japan Airlines Co Ltd (1984) 739 F 2d 130.
5. Passenger conduct. The court did not read Barclay as imposing a separate requirement that the event causing injury occur independently of everything done or omitted by the passenger. The relevant unusual or unexpected event and its causative character must nevertheless be external to the passenger. The suggested wider reading of Barclay in Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354 was not followed.

• Court of Appeal (Civil Division): On appeal from the Birmingham Civil Justice Centre, the court dismissed the appeal.
• Birmingham Civil Justice Centre: His Honour Judge Owen QC determined a preliminary issue and held by judgment and order dated 11 July 2012 that the pleaded facts did not disclose an accident under Article 17.1 of the Montreal Convention 1999.