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PI and Civil Litigation

Law - practice - procedure

19 MAR 2014

Travel Claims: Ford v Malaysian Airlines Systems Berhad [2013] EWCA Civ 1163; (2014) APIL 008

Travel Claims: Ford v Malaysian Airlines Systems Berhad [2013] EWCA Civ 1163; (2014) APIL 008
Summary
The claimant failed in an action against the defendant airline because being given an injection of a diuretic by a doctor on board an international commercial flight which exacerbated the passenger's physical discomfort did not constitute an ‘accident', for the purposes of Article 17.1 of the Montreal Convention 1999.
27 September 2013
Court of Appeal
Maurice Kay LJ, Leveson LJ and Aikens LJ
The claimant was on board an international flight when she requested assistance from the crew as she was unable to urinate. A doctor (another passenger) offered to administer a diuretic by injection. Unbeknown to both parties, the claimant was suffering from urethral stenosis and the diuretic increased the discomfort. The claimant received medical treatment when the aircraft landed.
The claimant appealed against the first instant decision that being given an injection as outlined above did not constitute an ‘accident' within Article 17.1 of the Montreal Convention 1999.
On appeal, the Court found that the correct interpretation of Article 17.1 was following the US Supreme Court decision of Air France v Saks 5. To be an ‘accident' within the meaning of Article 17.1, the event must be an "unexpected or unusual event or happening that is external to the passenger." In this case, the Court found the administering of an injection was a normal event; it was not made unusual by the claimant's adverse reaction to it. The only unusual aspect of the whole process was that it was carried out by in the course of an international flight. However, the fact that the injection took place on a flight did not cause the adverse reaction; the same state of affairs would have arisen wherever the injection had been carried out. It followed that the event did not constitute an ‘accident' for the purposes of Article 17.1.
Comment
This case demonstrates the need to show that an unusual event must be the cause of the injury to be held within the definition of an ‘accident' under Article 17.1, not simply that the fact that the event took place on an aircraft makes it unusual.
The Court also gave its opinion on Law LJs statements from Barclay v British Airways Plc [2010] QB 187 which had been interpreted in a number of more recent cases as saying that in order to constitute an ‘accident', a passenger must demonstrate that the "event causing injury occurred independently of anything done or admitted by the passenger." The Court confirmed they did not read Laws LJ as laying down any such condition, but merely emphasising the unusual or unexpected nature of the event that must be external to the passenger and the relevant cause must be independent of anything done or admitted by the passenger, rather than being what was done or admitted by the passenger.
Katherine Browne, Anthony Gold

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