UK: Court of Appeal clarifies "accident" according to Article 17 of the Montreal Convention

Michael Wukoschitz's picture

 The plaintiff had a history of some gynaecological issues and she had been prone to recurrent symptoms suggestive of urinary infection, ie. cystitis. She had treated herself and had bought "over the counter" medication to take if she had an episode of it.  She had packed this medication in her main luggage before going on her flight from London Heathrow to Melbourne via Kuala Lumpur with the defandant carrier.  Before the plainitff boarded the aircraft she urinated normally at about 9pm. After she had boarded she slept for some time and awoke at about 6 am and went to the lavatory. She found she was unable to urinate and attributed this inability to cystitis. Because her cystitis mediation was in her hold luggage and she was concerned about the prospect of discomfort until she landed in Kuala Lumpur, the plainitff asked one of the cabin crew whether they had cranberry juice or bicarbonate of soda on board, as she had found them to be an effective and early means of treating a cystitis attack. The crew had none of either.

A crew member told the plaintiff that there was a fellow passenger on board in the First Class compartment who was a doctor and who might be able to help. The plainitff agreed to see the doctor. She did not know the doctor and, it seems, she did not ask for any details of the doctor's name or her qualifications or specialisation, if any. The plaintiff explained her symptoms and said that she might be experiencing the early symptoms of cystitis. The doctor asked the crew what medications they had on board and it appeared that there was nothing suitable. The doctor then suggested to the plaintiff that she administer an injection of a diuretic. The plainitff was unsure what that was but the doctor explained that this would help her to pass urine within an hour. The doctor and the plaintiff then went into a curtained off area of the flight deck and the doctor took the plaintiff's blood pressure which was "on the low side". The doctor then administered the injection of diuretic into the plaintiff's buttock. The doctor also told the plainitff that she was dehydrated and that she should drink fluids and green tea, which she duly did.

Unfortunately the plaintiff was not able to urinate, although she tried on three occasions after the injection. She started to feel unwell and suffered increasing lower abdominal discomfort over the next 2 hours or more. The airline alerted the airport at Kuala Lumpur to the problem and upon landing there Mrs Ford was medically examined and catheterised so that she could continue her journey to Melbourne. During that eight hour flight she could not urinate.

After landing, it transpired that the plaintiff was in fact suffering from an underlying urethral stenosis, probably associated with premature menopause. The medico-legal expert explained that the injection had been inappropriate because, due to the urethral stenosis, the plaintiff was physically unable to urinate. By administering a diuretic, the doctor had increased the urge, but not the ability, to urinate and had increased the plaintiff’s pain and discomfort.

The plaintiff filed a law suit for damages pursuant to Article 17 of the Montreal Convention.

The first instance judge concluded that the injection could not properly constitute an "unexpected or unusual event or happening" or an "unintended and unexpected happening". He emphasised the fact that the plaintiff had consented to the injection and that it was administered in the hope and expectation that it would relieve what were believed to be the symptoms of cystitis. The event complained of could not be said to be "external to anything done or omitted by the passenger victim"; it was not external to the plaintiff. Moreover, there was no reason to suppose that the diuretic was mistakenly or inadvertently injected. Even if the injection of the diuretic was "inappropriate" as later concluded, the reason for that was that, unbeknown to all concerned, it had no prospect of being effective, due to the underlying physical condition of the plaintiff. This could not bring the facts in this case within the meaning of the word "accident" in Article 17. He therefore dismissed the claim.

The Court of Appeal upheld this judgement. It was clear from all the cases that there was no distinction in meaning between "event" or "happening". However, there could be a distinction between an event which is "unexpected" and one which is "unusual". Although an event which is "unexpected" was likely to be "unusual", an event which is"unusual" was not necessarily one that was totally "unexpected". However, in many cases an event that was "unusual" would be one that is also "unexpected". The administration of an injection in the course of an international flight by a doctor passenger after a very brief discussion with the patient when neither previously knew the other was not part of the usual, normal or expected operation of the aircraft, although the action of the air hostess in asking the doctor passenger if she could help probably was. On the other hand, the actual administration of an injection by a doctor, in the hope and expectation that it would relieve the condition complained of (cystitis), was quite usual. Therefore, if the act of administering the injection was to be characterised as "unusual" and this unusual characteristic was a cause leading to the plaintiff's "bodily injury", then this must be because the particular circumstances in which the act was performed, viewed from the perspective of the plaintiff, make it so, whilst excluding from consideration the plaintiff's actual reaction to the injection, which was the result of her "peculiar internal condition".

The only "unusual" aspect of the whole process was that it was carried out in the course of an international flight by a passenger doctor on another passenger (with proper consent) as a result of a request to the doctor for assistance by a crew member. But the key point was that there was no evidence that any of those characteristics had any causative effect in the chain of events that led to the plaintiff's "bodily injury". The same chain of events would have taken place wherever the injection had been administered.

Full text of the Court of Appeal's judgement in case Ford v Malaysian Airline System [2013] EWCA Civ 1163 (27 September 2013) avialable here>>.

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