PERSONAL INJURY AND LIABILITY
OF A CARRIER
ARTICLE 17
By: Aga Zaheer
Ahmed
Barrister-at-Law
Introduction:
In Pakistan Warsaw
Convention as amended at Hague in 1955 came into force through the ratifying
act of Carriage by Air (International Convention) Act, 1966[1].
Article 17 of the Warsaw Convention imposes strict liability[2] on
carrier if a passenger sustains personal injury[3] as
to:
I.
Death,
II.
Wounding,
or;
III.
Any
other bodily injury
In recent years many issues
have arisen regarding Article
1.
Whether
Convention provides exclusive cause of action and remedy?
2.
What
amounts to an accident
within the meaning of Art.17?
3.
Whether
bodily injury encompasses
conditions such as mild post turmeric stress or depression in the
absence of physical harm?
4.
When does convention apply? What is meant by ‘in the course of embarking’ within the meaning of section 17?
1.
Whether Convention provides exclusive cause of action and remedy?
The main significance of the Sidhu
case[9]
was confirmation by the House of Lords that Art.17 provided the sole avenue of
redress for injured passengers. Passengers on a British Airways flight brought
proceedings in
“So
the stark issue which is before us in this appeal is whether a passenger who
has sustained damage in the course of international carriage by air due to the
fault of the carrier, but who has no claim against the carrier under Article 17
of the Convention is left without a remedy”
It was accepted that they were still in the course of
international carriage by air. Although the passengers were in the terminal
when they were arrested they were still in transit to their ultimate
destination. Lord Hope of Craighead, in Sidhu[10]
discussed at some length the approach to be adopted in the construction of the
Convention. The judgement was concurred in by the
other Law Lords. Using golden/purposive rule his Lordship emphasised
that the focus should be on the Convention itself, rather than the Carriage by
Air Act 1961, which implemented it. The legislative history and travaux préparatoires[11]
may be considered to resolve ambiguities or obscurities, when the material is
publicly available and points to a definite consensus among delegates[12].
Case law from the
Lord Hope concluded that the Convention
provided the sole remedy available to the appellants, to the exclusion of
domestic law. Although at first sight it might not seem just to deprive the
parties of other remedies normally available to them, Lord Hope justified his
conclusion as follows:
"I believe that the answer to
the question raised in the present case is to be found in the objects and
structure of the Convention. The language used and the subject-matter with
which it deals demonstrate that what was sought to be achieved was a uniform
international code, which could be applied by the courts of all the high
contracting parties without reference to the rules of their own domestic law.
The Convention does not purport to deal with all matters relating to contracts
of international carriage by air. But in those areas with which it deals--and
the liability of the carrier is one of them--the code is intended to be uniform
and to be exclusive also of any resort to the rules of domestic law.
An answer to the question, which leaves
claimants without a remedy, is not at first sight attractive. It is tempting to
give way to the argument that where
there is a wrong there must be a remedy. That indeed is the
foundation upon which much of our own common law has been built up. The broad
principles, which provide the foundation for the law of delict
in
Alongside these principles, however,
there lies another great principle, which is that of freedom of contract.
Any person is free, unless restrained by statute, to enter into a contract with
another on the basis that his liability in damages is excluded or limited if he
is in breach of contract. Exclusion and limitation clauses are a common feature
of commercial contracts, and contracts of carriage are no exception. It is
against that background, rather than a desire to provide remedies to enable all
losses to be compensated, that the Convention must be judged. It was not
designed to provide remedies against the carrier to enable all losses to be
compensated. It was designed instead to define those situations in which
compensation was to be available. So it set out the limits of liability and the
conditions under which claims to establish that liability, if disputed, were to
be made. A balance was struck, in the interests of certainty and
uniformity."
The ruling that the Convention provides
the sole remedy, to the exclusion of rights of action derived from domestic
law, has also been supported by the US Supreme Court[13]. However in Dr. Prof Haroon
v British Airways[14]
a different approach was taken by the learned single judge of Sindh High Court:
“From the scheme of the
Convention as well as the Act of 1966, it appears that cases of breach of
contract of the kind in hand are not contemplated therein. Thus it does not
mean that where a wrong done, breach committed or injury inflicted is not
within the contemplation of the Convention and the Act of 1966, the carrier is
absolved of any liability, aftermath or consequence Applying age old legal maxim
"ubi jus ibi remedium" (where there is right[15]
there is remedy). As to "statutory wrong" the Convention provides
complete code as to rights and liabilities both of the carrier and the
passenger However, any wrong, breach or mischief not within the contemplation
of the Convention or the Act of 1966, same could be redressed either under law
governing contract, in case of Pakistan under the Contract Act. 1872 or general
law or even in appropriate cases under Tort
… The convention is silent,
as regard liability of air carrier for the breach of contract of carriage. By
this, it does not mean that air carrier is rendered absolved of all the
liability in cases of breach of contract, occurrence of any wrong ether than
"statutory wrong" Such would be anomalous position, there is no wrong
without a remedy. Where any injury is caused or loss occurs during the
course of or in furtherance of carriage by air that may not be within the
contemplation of Convention, a passenger, consignee or any other person will
always have a remedy against the carrier. Where statutory liability of air
carried under the Convention terminates; realm of general law governing
contractual obligation begins or where no remedy under general law of contract
is available remedy under tort may be extended provided a case is made out”
Justice Mushir Alam placed reliance on the judgment in Pakistan Airlines
Corporation v Ali Raza Rizvi[16] to justify this conclusion. In this case
Pakistan Airlines Corporation’s appeal was dismissed on grounds of limitation[17]. No reference was made to the Convention[18]
or the Act of 1966[19].
At any rate, in Pakistan Airlines Corporation v Ali Raza Rizvi, the passenger
who was on transit at a foreign airport (India) claimed to have suffered mental
torture and agony, because of the fault of clerk of the airline who had torn
the relevant coupon of ticket and the passenger was left in lurch in another
High Contacting State (India). Article 17 of the Convention[20]
is applicable when a passenger is on transit[21]
and therefore the question of invoking the maxim "ubi jus ibi remedium"
did not arise in this case.
2.
What amounts to an accident within the meaning of Art.17?
In a group action in re Deep Vein Thrombosis
and Air Travel Group Litigation[22],
airline passengers brought claims against a number of international air
carriers. They alleged injury and in some instances death following the onset
of deep vein thrombosis ("DVT") caused by air travel.
The House of Lords considered the Meaning of
the word “accident” used in Article 17:
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. 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. However
"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".”
Thus it was concluded that Art.17, the situation does not fall within
any ordinary or extended concept of ‘accident’. An Accident for the purpose of
Art.17 requires an unexpected or unusual event or happening that was external
to the passenger.
In Eastern Airlines Inc v Floyd[23]
in 1991, passengers on an aircraft, which lost power and narrowly avoided
having to ditch in the ocean, sued the airline for damages for mental distress.
The Supreme Court ruled that the Convention had to be construed in the light of
the law prevailing in 1929 when it had been originally signed. Since
psychiatric injury was not widely recognised by the
law at that time, it did not amount to "bodily injury" within the
meaning of Art.17, and accordingly there could be no recovery. To the contrary
the Israel Supreme Court in Daddon v Air France[24]
in
In Sidhu[25]
the parties accepted that psychological damage did not fall within the scope of
"bodily injury". During the course of argument in the House of Lords,
it was suggested that "bodily injury" be construed as including
psychological damage, especially if supported by medical evidence as to its
effects. Lord Hope said that the point did not arise for decision, was not
fully argued, and he preferred to express no opinion on it.
The issue did came in
an Australia case of Kotsambasis v Singapore Airlines
Ltd.[26]
The plaintiff, who had been visiting her mother, boarded a flight in Athens
which would bring her home to Sydney. Shortly after takeoff, she was leaning
forward in her seat when a sudden jolt threw her backwards. Other passengers
were screaming because they could see smoke issuing from the starboard engine,
which had caught fire, and it was announced that they would be returning to the
terminal. The judge accepted evidence that this caused the plaintiff a severe
fright, and that she suffered a back injury in the terminal because of having
to carry two heavy bags. The plaintiff sued the defendant under Art.17. At
first instance, damages were awarded for psychological injuries resulting from
the fright, but not for the back injury because it had not been incurred
"in the course of embarking or disembarking". On appeal, Meagher and
Stein JJ.A., who delivered the two main judgments, agreed, “bodily injury"
in Art.17 could not include psychological injury. Meagher J.A. pointed out
that, although this term as used in English and Australian legislation had been
held to include psychological injury[27],
such interpretation could not guide the interpretation of the same phrase as
used in an international agreement. As Eastern Airlines Inc v Floyd[28] had confirmed, the proper approach was to
inquire what the term was intended to mean in 1929 when the Convention was
entered into. Stein J.A. added that reliance on Daddon
v Air
The recent authorities on the
interpretation of the words "bodily injury" in Art.17 are two cases,
one Scottish and the other English, the appeals in which were ultimately heard
together by the House of Lords[30].
In the first case, King v Bristow Helicopters Ltd[31],
a passenger was on board a helicopter, however due to poor weather and failure
of engines the helicopter had to make an emergency landing. There was panic on
board and the passenger developed posttraumatic stress disorder. Because of the
stress, he suffered from a peptic ulcer disease, which developed after the
flight.
In the second case Morris v KLM Royal Dutch Airlines[32],
a passenger seated next to her physically molested a girl under the age of 16.
Consequently, after travel she was diagnosed as suffering from clinical
depression amounting to a single episode of a major depressive illness.
In King, citing Floyd[33] their lordships found that compensation
could be allowed for a passenger under Article 17 for physical manifestations
of a mental injury. A peptic ulcer disorder dissolves the issues and it is not
difficult to see that this is a kind of a bodily injury. The requirement of the
casual link to the accident was satisfied, as Mr. King was able to show that
the disorder was caused by a mental illness, which was itself caused by the
accident. Thus in the King case their lordships allowed the appeal.
Conversely, the appeal in the Morris case was not allowed. It was found
that damages for mere mental injury caused by air accidents would not be
allowed unless it was associated by a physical injury. Thus simple mental
injury as suffered by the passenger was held did not amount to bodily injury.
The Court found that there was a distinction between physical and mental
injury. Physical injury involves damage or adverse change to the structure of
the body, whereas mental illness adversely affects the well-being of the mind
without any organic change to the body. It was found that impact injuries
(referring to bodily injuries, cuts, bruises etc) and physical manifestations
of an injury (skin rashes, heart attacks) resulting from emotional distress
fell within the scope of ‘bodily injury’. Therefore it was held that recovery
for emotional distress was only limited to situations where this distress has a
physical manifestation. Recovery could not be given for distress of the
accident itself. Here the passenger did not allege any physical injury and
therefore it was found that she could not recover under the Convention.
In Montreal Convention on International
Carriage by Air, 1999, for liability of carrier on personal injury again the
phrase: ‘bodily injury’ is used[34].
By the time of contracting of the new Convention, the phrase “bodily injury”
was widely recognized to include serious psychiatric injury[35].
4.
When does convention apply? What is meant by in the course of embarking within the
meaning of section 17?
By Article 1 of the Warsaw Convention it
‘…applies to all international
carriage of persons, baggage or cargo performed by aircraft… ’.
International carriage is defined to mean any carriage in which the place of departure and the place of
destination are, by reason of agreement between the parties, within the
Territories of two High Contracting Parties. The Contract of carriage is
contained in or evidenced by the ticket, which incorporates the carrier’s
condition of carriage.
“Convention applies as soon as the
passenger has presented a valid ticket for travel and the ticket has been
accepted and a boarding pass issued. In other words the carriage begins when the passenger
has successfully completed the check-in procedure. That is the beginning of
contract of carriage”[36]
In Phillips v Air New
One of the issue for decision was whether the claimant's
accident occurred "in the course of any of the operations of
embarking" within the meaning of art. 17.
It was said obiter
that as to embarkation, to make a prima facie case that a particular claim is
within Article 17 it must be established:
(1) that the accident to the passenger is
related to a specific flight; and
(2) that it happened while the latter was
actually entering or about to enter the aircraft; or
(3) if it happened in the terminal building or
otherwise on the airport premises, that the location of the accident is a place
where the injured party was obliged to be in the process of embarkation.
While defining
embarkation, Morrison J. said:
“The processes of
embarkation will, I think, include the checking-in; the passage through security
and passport control and the "departure routine", that is, going to
the gate to be cleared for embarkation and proceeding thereafter to embark. In the most general sense, these activities are required by the airline
of its passengers. In a perfect world, one would arrive at an airport or
aerodrome, as it was when the Convention was agreed, and go straight on board.
The fact that air travel is bedeviled by security checks and waiting time does
not alter the gist of what I think the draftsmen of the Convention intended to
be covered by art. 17. If a passenger is required to take a particular step or
go to a particular place for boarding then he or she is engaged in a process of
embarkation. That means, I think, that during the many minutes a passenger
spends in the public or private lounges or goes shopping or eats or drinks in
restaurants or cafes, he or she could not be said to be in the process of
embarkation. At this stage the passenger is waiting, more or less
reluctantly. But he or she may have already been through a process of
embarkation (e.g. security, boarding card check and passport control) and will
inevitably have to go through other such processes, such as going to the gate
and getting on the aircraft. The process of embarkation does not have to be
a continuous one. In my judgment this makes good sense of the realities of
modern air travel. For some of the time a passenger is able to do what he or
she wants; for some of the time he or she has to comply with directions and
requirements imposed by the carrier. In the light of the Sidhu[38] decision, I see no reason to give a
restrictive interpretation to art.
In Dr. Haroon v British Airways[39]
case, Plaintiff, a professor and vary
famous philanthropist was seriously suffering from trigeminal neuralgia, a
treatment of which is not available in
The
Plaintiff and his son reported at the Check-in counter of Emirates at
The
Plaintiff alleged that by being refused accommodation and missing his medical
appointment, he suffered heavy financial loss and physical and mental agonies,
humiliation and defamation.
The
Plaintiff was denied boarding when he presented a valid ticket for travel and
the ticket was rejected. Since no boarding pass was issued, the case does not
fall within the scope of the Convention and as such the Plaintiff was eligible
for domestic law remedies. Mushir Alam
J. in his judgement came to the same conclusion but
on reasoning inconsistent[40]
with HL decision in Sidhu[41]
Correct lines of reasoning, it is submitted, were to
consider first whether convention applies to the instant case or not. If yes,
it provides the exclusive remedy for the claimant’s accident. If not (as in
this case), then remedy can be sought under domestic law.
[1]. Further
amendments to Warsaw Convention by Protocol No. 4 of the
[2]. save
to negligent act by the passenger himself
[3]. on
board the aircraft or in the course of any of the operation of embarking or disembarking
on an international carriage by air
[4]. PLD
2004
[5]. Sidhu v British Airways Plc [1997]
A.C; [2006] 1 Lloyd's Rep. 231; [2002] UKHL 7; [2002]
[6]. (1997)
[7]. (1984)
1 S. & B. Av. R. VII/141
[8]. [1997] 42 N.S.W.L.R
[9] Sidhu v British
Airways Plc [1997] A.C.
[10]
Sidhu v British Airways Plc [1997] A.C.
[11] Travaux Preparatories translates literally as ‘preparatory works’.
In Common law context it refers to consideration of public materials by the
courts in order to discern the purpose of the legislation. A common example is
the reports or working papers (though not the recommendations of law reform
bodies). See Learning Legal Rules byJames A.
Holland & Julian S. Webb fifth edition at page 224
[12] [1981]
A.C. 251.
[13] (1997)
[14] PLD 2004
[15] Should be ‘wrong’
[16] 1996 CLC 627
[17] 1996 CLC 627 at page 631 para 2
[18]
[19] Carriage By Air (International Convention)
Act, 1966
[20]
[21] Sidhu v British
Airways Plc [1997] A.C.
[22] [2006] 1
Lloyd's Rep. 231
[23] Floyd v Eastern Airlines Inc
[24] (1984) 1 S. & B. Av. R. VII/141.
[25] Sidhu v British
Airways Plc [1997] A.C.
[26] Kotsambasis v
Singapore Airlines Ltd [1997] 42 N.S.W.L.R
[27] See e.g. R. v Miller [1954] 2 Q.B.
282; R. v Chan-Fook [1994] 1 W.L.R. 689;
[28] Floyd v Eastern Airlines Inc
[29] (1984) 1 S. & B. Av. R. VII/141.
[30] [2002] UKHL 7; [2002]
[31] [2001] 1 Lloyd's Rep. 95 (IH (1
Div))
[32] [2001] EWCA Civ
790; [2002] Q.B. 100 (CA (Civ Div))
[33] Floyd v Eastern Airlines Inc
[34] Convention
for the Unification of Certain Rules of the International Carriage by Air,
1999, the
[35] See e.g. R. v Miller [1954] 2 Q.B. 282; R. v Chan-Fook [1994] 1 W.L.R. 689;
Aboushadi v CIC Insurance Ltd (1996) Aust.
Torts Rep. 81-384; and R. v
[36] Philips v Air New Zealand Ltd.
[2002] 2 Lloyds Rep 408
[37] [2002] 2 Lloyds Rep 408
[38] Sidhu v
British Airways Plc [1997] A.C.
[39] PLD 2004
[40] As discussed above
[41] Sidhu v
British Airways PLC [1997] A.C.