‘Accident’ for the purposes of Article 17.1 of the Montreal Convention 1999, Anne Ford v Malaysian Airlines Systems Berhad

Kennedys successfully defends claim by passenger against Malaysian Airlines for bodily injury as a result of an alleged ‘accident’ which occurred on board an aircraft. The Court of Appeal (Civil Division) confirms that a passenger consenting to an injection from a doctor on board an international flight does not constitute an ‘accident’ for the purposes of Article 17.1 of the Montreal Convention 1999, for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), even if it subsequently transpires that the injection was the incorrect treatment for the passenger’s condition. As a result the claim was successfully defended in its entirety and costs awarded against the Claimant.

The Claimant was travelling on the Defendant’s flight from London Heathrow to Melbourne Australia via Kuala Lumpur on 26 July 2009. The Claimant had a history of gynaecological issues and had suffered recurrent episodes of cystitis. She had packed ‘over the counter’ medication -in case she had an episode- in her checked luggage and boarded the Defendant’s aircraft without having any symptoms. After a few hours she could not urinate and requested assistance from the crew. A doctor (another passenger) offered to administer a diuretic by injection, which should have helped empty the Claimant’s bladder and minimized her discomfort. The passenger agreed, the injection was administered and the doctor advised the passenger to drink plenty of fluid as she was dehydrated. Unfortunately, unbeknown to both parties, the passenger was suffering from urethral stenosis which meant she experienced fluid retention resulting in discomfort until the aircraft landed at Kuala Lumpur, where she received medical treatment and was catheterised following which she was able to continue her flight to Australia.

The Claimant initiated proceedings against the Defendant airline seeking damages for personal injury on the basis that the act of administering a diuretic by injection was –as seen from her perspective- an unusual event and, accordingly, it was capable of constituting an ‘accident’ within the meaning of Article 17.1 of the Montreal Convention 1999. The airline denied that this act could, as a matter of law, constitute an ‘accident’ within Article 17.1 as the injection was not an unusual, unexpected or unintended event external to the Claimant. The parties agreed for this point of law to be dealt with as a preliminary issue and the case was put before HHJ Robert Owen, QC, sitting in the Birmingham County Court.

The preliminary issue to be determined was whether in the circumstances of this case, the act of administering an injection of a diuretic to a passenger in the course of an international flight -which injection was actually the incorrect treatment for the passenger’s existing condition and thereby exacerbated the passenger's physical discomfort caused by fluid retention resulting from urethral stenosis- constituted 'an accident' for the purposes of art 17.1 of the Montreal Convention 1999. By his Judgment dated 11 July 2012, Judge Owen held it was not. Judge Owen held that the Defendant’s submissions were to be preferred to those of the Claimant’s as it was clear that the injection complained of could not constitute an unexpected or unusual event and that accordingly there was no ‘accident’ for the purposes of Article 17.1 of the Montreal Convention. The Claimant appealed to the Court of Appeal.

The case was heard in the Court of Appeal before Lord Justice Maurice Kay, Lord Justice Leveson and Lord Justice Aikens on 20 June 2013. The Court upheld the judgment of Judge Owen. Lord Justice Aikens examined the case presented by both parties and their reliance upon Saks v Air France¹ , Morris v KLM Royal Dutch Airlines² , In re Deep Vein Thrombosis and Air Travel Group Litigation³ and the most recent English Court of Appeal judgement on the meaning of ‘accident’ under the Montreal Convention which was handed down by Laws LJ in Barclay v British Airways PLC⁴ . Lord Justice Aikens reiterated the analysis of ‘accident’ in those cases, concluding that ‘accident’, within the context of article 17 of the Montreal Convention, refers to the cause of the passenger’s injury not the injury itself; that this cause must be an ‘event’ or ‘happening’ which itself has the characteristic of being ‘unexpected’ or ‘unusual’; that the quality of the event or happening has to be considered from the victim’s perspective and that the ‘unexpected’ or ‘unusual’ event must be external to the passenger. The Court concluded that, in the present circumstances, it could not be denied that the effect the injection had on the Claimant was due to her urethral stenosis and therefore the immediate cause of the alleged bodily injury was the peculiar internal condition of the Claimant.

Lord Justice Aikens went on to state that the key issue to be decided is whether the actual act of administering an injection of a diuretic in the prevailing circumstances on board a flight can be characterised as an ‘unusual’ event from the perspective of the ‘victim’.

He concluded that the mere fact that the injection was administered mid- flight rather than elsewhere is not sufficient to determine that this was an ‘unusual’ event that constitutes an ‘accident’ within Article 17.1.

The injection was a normal act and the mere fact that it took place on board an aircraft does not make it an unusual event.

This is a useful precedent for airline Defendants to personal injury actions made under Article 17.1 of the Montreal Convention. It clearly demonstrates the requirement for Claimants to identify an unusual and/or unexpected external event, as the mere fact that an event takes place on board an aircraft does not turn that event into an ‘unusual’ event.