Ford v Malaysian Airline System  EWCA Civ 1163 (27 September
The Claimant was travelling on the Defendant’s scheduled flight from Heathrow to Melbourne, via Kuala Lumpur. She fell asleep during the flight and woke up at 6am and went to the toilet. She found that she was unable to urinate, which she attributed to her pre-existing cystitis. Her cystitis medication was inaccessible, having been stored in the hold. She asked the cabin crew for some cranberry juice or bicarbonate of soda, neither of which was available. Sometime later, the claimant was informed that another passenger was a doctor who might be able to help. The claimant did not know, at this time, know the doctor’s name, nor any other details. However, she agreed to let the doctor administer a diuretic by injection in her buttock, in a cornered off area of the flight deck.
The injection was ineffective and the claimant did not urinate. She experienced acute fluid retention (the doctor had advised the Claimant to drink fluids and she had complied) and increased discomfort. After landing, it transpired that the claimant 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 Claimant 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 Claimant’s pain and discomfort.
The Claimant brought a claim for damages pursuant to Article 17 of the Montreal Convention. She relied upon the classic definition of an ‘accident’, derived from the judgment of Justice O’Conner in Saks v Air France, namely that a passenger’s injury must be:
“caused by an unusual or unexpected event or happening that is external to the passenger”
The Claimant’s case was that her injury (the increased discomfort and pain) had been caused by an external event (the administering of an injection), which was unusual (having never happened to her before, and occurring in the awkward confines of an aircraft travelling at tens of thousands of feet).
The claim was tried on a preliminary issue basis (had there been an accident within the meaning of the Montreal Convention?) by HHJ Robert Owen QC in the Birmingham County Court in July 2012. The preliminary issue was resolved in the Defendant’s favour. The Court was not satisfied that the events constituted an accident. Its reasoning appears to have been two-fold. First, whilst possibly ‘unusual’, the injection certain wasn’t ‘unexpected’, since the claimant had discussed it carefully with the doctor on board the flight and knew exactly what was proposed. The Court did not think that the words “unusual” and “unexpected” were intended to be disjunctive, but rather that they were different ways of expressing the same notion of something being ‘unintended’. Similarly, the event was not ‘external’ to anything done or omitted to be done by the Claimant, since she had positively consented to it from outset and played an active role in ensuring that it occurred.
The Claimant obtained permission to appeal. The Court of Appeal was satisfied that “unusual” and “unexpected” fall to be construed disjunctively. However, dismissing the Claimant’s appeal, it was held that there had not been an accident within the meaning of the Convention.
Aikens LJ, delivering the judgment of the Court, stated as follows:
In my view, the key issue is whether the actual act of giving Mrs Ford an injection of a diuretic in the circumstances that prevailed can be characterised as an “unusual” event from the perspective of the “victim”, Mrs Ford, and the “unusual” nature of that event was “a cause” leading to the “bodily injury” alleged …
… I find this a difficult question, which can be easily argued both ways. 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 each other is not part of the 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 that it would relieve the condition complained of (cystitis), is quite usual. […]
I have concluded that the circumstances in which the injection was administered by the doctor cannot be characterised as “unusual” for the purposes of Article 17.1
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 is that there is no evidence that any of those characteristics had any causative effect in the chain of events that led to Mrs Ford’s “bodily injury”
The same chain of events would have taken place wherever the injection had been administered. It seems to me that the simple fact that the injection was administered in mid-flight rather then elsewhere cannot provide the circumstances with the necessary “unusual” characteristics so that this event constitutes an “accident” within Article 17.1.