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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Deep Vein Thrombosis and Air Travel Group Litigation, Re [2002] EWHC 2825 (QB) (20 December 2002)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2002/2825.html
Cite as: [2002] EWHC 2825 (QB), [2003] 1 All ER (Comm) 418, [2003] 1 All ER 935

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Neutral Citation Number: [2002] EWHC 2825 (QB)
Case No: HQ01X04522

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

20th December 2002

B e f o r e :

THE HONOURABLE MR JUSTICE NELSON
____________________

THE DEEP VEIN THROMBOSIS AND
AIR TRAVEL GROUP LITIGATION

____________________

Stuart Cakebread, Christopher Pain (instructed by Collins & Co) for the Claimants
Dr Guiseppe Cala (instructed by David Parry & Co) for some of the Claimants
Robert Lawson (instructed by Beaumont & Son, Olswang, DLA and Barlow, Lyde &
Gilbert) for the Defendants other than Qantas
Bankim Thanki (instructed by Barlow Lyde & Gilbert) for Qantas
Hearing dates: 5th, 6th, 18th - 21st November 2002

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Nelson:

  1. The Claimants in this Group Litigation were all passengers of the Defendant carriers on international flights. Each of them suffered a deep vein thrombosis (DVT) resulting in serious injury or death, alleged to have been caused, in essence, by cramped seating conditions and a failure to warn of the danger posed by the flight or to advise of the appropriate steps to minimise or eliminate the danger of suffering a DVT. There are currently fifty-five claims on the group register and twenty-seven air carriers.
  2. DVT cannot be regarded as anything other than a serious personal injury, leading as unhappily on occasions it does, to death. I was told by Mr Stuart Cakebread in argument on behalf of the Claimants that its incidence is high with hundreds of DVT claims both here and in Australia. Mr Robert Lawson on behalf of the Defendants submitted that the matter should be considered in proper perspective by taking into account the fact that in 2001 1,584,000,000 passengers were carried by the top 200 scheduled airlines in the world, 15 of the top 25 of which were defendant carriers in this Group Litigation.
  3. The Deep Vein Thrombosis and Air Travel Group Litigation Order (GLO) dated 8 March 2002 and amended 10 March 2002 requires three issues of law to be resolved. They are, in summary, firstly, whether, on the basis of the agreed specimen matrix, the Claimants have a claim under Article 17 of the Warsaw Convention for the DVT allegedly suffered by them, and in particular whether the specimen matrix discloses an 'accident' for the purposes of Article 17; secondly whether a claim can be brought outside the Warsaw Convention at common law in the alternative or in addition to a claim within the Warsaw Convention; thirdly whether section 3 of the Human Rights Act 1998 (HRA) and Article 6(1) and 8 of the European Convention on Human Rights (ECHR) apply to the Claimants' claims and if so whether they enable, on the basis of the agreed specimen matrix, a claim to be brought either within the Convention, or at common law outside it. A further issue, in respect of which I gave permission to be argued at the commencement of the hearing of these legal issues, arises in relation to four of the Claimants on the register whose claims are prima facie time barred under the provisions of the Warsaw Convention. The issue raised on their behalf is whether EC Regulation 2027/97 provides the Claimants with a separate cause of action outside the Warsaw Convention.
  4. There are no facts to be found by the Court, as these are all dealt with by the agreed specimen matrix. The facts within the matrix have been agreed solely for the purposes of the hearing of the issue, and are otherwise strongly contested. Thus, for example, it is assumed for the purpose of the specimen matrix alone that the nominal Claimant suffered from a symptomatic DVT caused by the flight, even though the Defendants deny the existence of any causal link between air travel and the onset of DVT. Further, it is assumed for the purposes of the specimen matrix alone that the Claimants' assertion that the nominal Defendant knew or ought to have known prior to the flight that carriage by air created an increased risk of DVT, is correct whereas the Defendants deny such an assertion.
  5. DVT is defined in the matrix as a condition in which a small blood clot, or thrombus, forms mainly in the deep veins of the legs. Complications occur when a thrombus breaks away from the wall of the vein and is carried along with the flow of the blood as an embolus. Such an embolus may reach a point in a blood vessel through which is cannot pass thereby blocking it and producing an embolism, the most serious of which, a pulmonary embolism, gives rise to chest pain, breathing difficulties and in the worse cases death from respiratory failure. The relevant parts of the remainder of the specimen matrix are as follows:-
  6. "3. The Defendant is a commercial air carrier.

    4. The Claimant was carried by air by the Defendant, for reward, on an international flight to which the provisions of the Warsaw Convention applied. The flight was characterized by the following features:
    (1). The layout of the passenger cabin, the seating space available to each passenger and the type of passenger seat installed on the aircraft performing the flight were all in accordance with the Defendant's usual standard for an aircraft of that type flying on the route in question;
    (2). The flight was operated in accordance with the Defendant's usual procedures and practices;
    (3). Nothing happened in the course of the flight which adversely affected the performance or flight characteristics of the aircraft;
    (4). Throughout the flight all of the aircraft's seating and all of its systems affecting the passenger cabin environment were in their normal working order;
    (5). The aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations; and,
    (6). Whether or not the above operation of the aircraft minimized and/or eliminated the risk of passengers suffering from DVT, the Defendant took no further or other steps to minimize and/or eliminate such risk.
    5. The Claimant asserts that there is a causal link between air travel and the onset of DVT. The Defendant denies the existence of any such link. For the purpose of this specimen matrix alone it is assumed that the Claimant suffered from a symptomatic DVT caused by the flight.
    6. The Claimant asserts that the Defendant knew, or ought to have known, prior to the flight that by virtue of carriage by air passengers would be at an increased risk of suffering DVT over and above that incurred in everyday life. The Defendant denies these assertions. For the purpose of this specimen matrix alone it is assumed that the Claimant's assertions are correct.
    7. The Defendant did not give the Claimant any warning as to the risk assumed in paragraph 6 above, or any advice as to how to minimize any such risk, at any time before or during the flight."

  7. I propose to deal with the issues in the following order, firstly whether the agreed facts in the specimen matrix disclose an 'accident' under Article 17, secondly whether the Warsaw Convention provides an exclusive remedy, and thirdly whether the HRA and ECHR ensure a remedy either within the Warsaw Convention, or outwith the Convention, at common law. Lastly I shall deal with whether EC Regulation 2027/97 creates a separate cause of action to the Warsaw Convention. In deciding these issues it is necessary to consider the relevant Conventions and the proper principles of interpretation to be applied to them.
  8. The Conventions

  9. The Warsaw Convention was concluded in French on 12 October 1929. The Carriage by Air Act 1932 gave the force of law to a translation of the French text into English, and the Warsaw Convention came into force in February 1933.
  10. The Warsaw Convention was amended by protocol concluded at The Hague in 1955. (Warsaw-Hague). It came into force on the 1st June 1967. On the same date the Warsaw Convention in its unamended form was re-enacted by the Carriage by Air Acts (Application of Provisions) Order 1967, which also copied provisions of the Convention into English law in respect of domestic air carriage. (The 1967 Order).
  11. All of these versions of the Warsaw Convention continue to have the force of law. Where there is any inconsistency between the text of the Convention in English and French, the text in French prevails.
  12. The Warsaw Convention is strewn with amendments or attempts to amend the system. In 1975 at Montreal Protocols 1 and 2 restated the carrier's liability by reference to Special Drawing Rights and Protocol No. 4 changed the provisions in Warsaw-Hague in relation to the international carriage of cargo. These protocols are in force in the United Kingdom; Protocol No. 4 by reason of the Carriage by Air Acts (Implementation of Protocol No. 4 of Montreal 1975) Order 1999, SI 1999 1312 (the 1999 Order).
  13. Some states are party to some versions of the Warsaw Convention but not to others. Many are not parties to the Warsaw-Hague Convention as amended by Protocol Number 4 of Montreal 1975 (Warsaw-Hague-MP 4). There are different liability limits in force in different parts of the world and the European Community has placed restrictions on Community carriers which are not applicable in all circumstances to non-Community carriers. Thus under EC Regulation 2027/1997 and the 1999 Order, various limits and defences in the Convention are not available to Community air carriers.
  14. Recently an attempt has been made to 'modernise and consolidate the Warsaw Convention and related instruments' at the Montreal Convention signed 28 May 1999. This has not yet however come into force and has no application to the legal issues to be determined here, save in so far as it demonstrates the continued attempt by states to maintain harmonisation of international law relating to carriage by air.
  15. In each version of the Warsaw Convention Chapter III sets out the Liability of the Carrier. The relevant articles are as follows: -
  16. i. Article 17 which sets out the circumstances in which a carrier is liable for bodily injury to a passenger,

    ii. Article 18 which sets out a carriers liability for damages for baggage and cargo,

    iii. Article 19 which sets out a carriers liability for delay in respect of passengers, baggage or cargo,

    iv. Article 20 which provides a defence to the carrier if he is able to establish that he and his servants and agents have taken all necessary measures to avoid damage. It should be noted that this defence is not available to a Community air carrier for claims below 100,000 Special Drawing Rights (the 1999 Order) in respect of claims for death, wounding or personal injury.

    v. Article 21 which exonerates a carrier wholly or in part from his liability where contributory negligence on the part of the passenger is established. This defence is also not available to a Community air carrier under the 1999 Order in respect of claims for death, wounding or personal injury.

    vi. Article 22 which sets out the financial limits of a carrier's liability. The limitation under article 22(1) does not apply to a Community air carrier under the 1999 Order in respect of claims for death, wounding or personal injury.

    vii. Article 23 which prohibits a carrier from contracting on terms concerning liability more favourable to him than those provided for by the Convention.

    viii. Article 24 which provides that any action for damages, however founded, is subject to the conditions and limits set out in the Convention.

    ix. Article 25 which provides that the limits of liability do not apply where the act or omission causing the damage was done with intent, or recklessness with knowledge that damage would probably result, by the carrier.

  17. I am mindful of the fact that the actions on the group register and any future claim, will not all be governed by the same version of the Warsaw Convention as not all states have signed and ratified each version. Article 17 remains the same in each of them however and the only relevant change on amendment which requires consideration of the exact text is the amendment to article 24 of Warsaw-Hague-MP4. There is no material difference between the French and English text in Warsaw Convention.
  18. Article 17 states: -
  19. "The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

  20. The treaty that became the Warsaw Convention was first drafted at an international conference in Paris in 1925. That draft was revised several times by a committee of experts on air law, and the draft of article 21, the precursor of article 17, which was submitted to the conference convened in Warsaw in 1929 stated: -
  21. "The carrier shall be liable for damage sustained during carriage: (a) in the case of death, wounding or any other bodily injury suffered by a traveller; (b) in the case of destruction, loss or damage to goods or baggage; (c) in the case of delay suffered by a traveller, goods or baggage."

  22. Article 22 of this draft, like the original Paris version, permitted the carrier to avoid liability by proving it had taken reasonable measures to avoid the damage. None of the early drafts required that an accident cause the passenger's injury. (See Air France v Saks 470 US 392 [1985]).
  23. It should also be noted that in article 18 it is an 'occurrence' which triggers liability rather than an 'accident'. Thus the wording of article 18(1) of Warsaw-Hague MP4 is:
  24. "The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, any registered baggage, if the occurrence which caused the damage so sustained took place during the carriage by air."

  25. When delegates met at Guatemala in 1971 the protocol they drafted sought to change the word 'accident' to 'event' in article 17. The protocol was however never ratified and has never had the force of law.
  26. Article 24 in the Warsaw Convention was as follows:-
  27. "(1) In the case covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.

    (2) In the cases covered by article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights."

  28. Article 24 as amended by Warsaw-Hague MP4 is as follows:-
  29. "(1) In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

    (2) In the carriage of cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits of liability set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. Such limits of liability constitute maximum limits and may not be exceeded whatever the circumstances which give rise to the liability."

  30. The general character and purpose of the Hague Rules have been described in Holmes v Bangladesh Biman Corpn [1989] AC 1112, 1129 by Lord Bridge, and by Lord Hope in Sidhu v British Airways plc [1997] AC 430, 453-454, and in Morris v KLM Royal Dutch Airlines King v Bristow Helicopters Ltd [2002] 2 WLR 578, 601. In Morris Lord Hope said: -
  31. "They impose liability on the carrier without proof of fault in respect of the death or of injury to passengers, damage to or loss of baggage or cargo and delay to passengers, baggage or cargo. They impose limits on the amount recoverable in respect of the death, injury, damage, loss or delay. They nullify contractual provisions tending to relieve the carrier of liability or to lower the limits of liability. Actions for damages to enforce the rights given by the Rules can only be brought subject to the Rules, and they exclude other remedies. What was sought to be achieved was a uniform international code which could be applied by the courts of all the high contracting parties. In those areas with which it deals the rules which it lays down were intended to be uniform and exclusive of resort to domestic law.

    From the point of view of the passenger or the owner of baggage or cargo, the imposition of liability without proof of fault on the carrier and the nullification of provisions relieving him of liability or restricting the amount of his liability are very significant advantages. From the point of view of the carrier too however there are significant advantages in the system laid down by the Convention. A principal consequence of that system is the exposure of the carrier to liabilities without the freedom to contract out of them. But it defines those situations in which compensation is to be available, and it sets out the limits of liability and the conditions under which claims to establish liability, if disputed are to be made. A balance has been struck between these competing interests, in the interests of certainty and uniformity." (paras 65-66)

    Principles of Interpretation

  32. The Warsaw Convention was born of discussion and negotiation by delegates from many different states. The wording finally agreed upon was intended to apply in a uniform way across national and legal boundaries. Like all international conventions it is subject to rules of construction which recognise its international nature and these prima facie apply irrespective of the fact that the Convention has been given the force of law with the text of the treaty scheduled to an Act of Parliament.
  33. The Convention must be considered as a whole and it should receive a purposive construction. The difficulties which might arise as to which law or laws govern the contract of carriage with a different proper law being applied by different countries rendered it desirable to create an international code for air carriage. The need for a uniform international code to be applied by the courts of the various countries adopting the Convention was one of the main objects at which the Convention aimed. It was therefore essential that the Convention was approached with a proper appreciation of this object in mind Grien v Imperial Airways Ltd [1937] 1 KB 50 74-76 per Greene LJ. The need for a purposive construction is stated in Fothergill v Monarch Airlines Ltd [1981] AC 251, 279, Sidhu v Buitish Airways plc [1997] AC 430, 441 442, Morris v KLM Royal Dutch Airlines [2002] 2 WLR 578, 603 604 paragraphs 76-77.
  34. The ordinary natural meaning of the words used in the English text provides the starting point with the French text to prevail if there is any inconsistency. Sidhu paragraph 76.
  35. The language of the Convention should not be interpreted according to English law.
  36. "What one is looking for is a meaning which can be taken to be consistent with the common intention of the states which were represented at the international conference. The exercise is not to be controlled by technical rules of English law or domestic precedent. It would not be right to search for the legal meaning of the words used, as the Convention was not based on the legal system of any of the contracting states. It was intended to be applicable in a uniform way across legal boundaries." (Morris paragraph 77 per Lord Hope. See also Lord Hobhouse in Morris at para 147.)

  37. International Conventions are apt to be more loosely worded than Acts of Parliament and should not therefore be construed as strictly. The language of a convention should be construed on broad principles leading to a result that is generally acceptable. (Sidhu para 78.) In Stag Line Ltd v Foscolo, Mango & Co [1932] AC 328, 350 Lord Macmillan referring to the Carriage of Goods by Sea Act 1924 said: -
  38. "It is important to remember that the Act of 1924 was the outcome of an International Conference and that the rules in the Schedule have an international currency. As these rules must come under the consideration of foreign Courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedence of antecedent date, but rather that the language of the rules should be construed on the broad principles of general acceptation."

  39. See also Fothergill per Lord Scarman 293 and James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, 157D.
  40. The broad principle of general acceptation does not however mean that a broad construction has to be given to the words used in the Convention. (Sidhu para 78.)
  41. A record of the proceedings at an international conference leading to a protocol or an agreement is usually kept. The discussions amongst, and statements by delegates, known as the 'travaux préparatoires' or preparatory work, can be considered by the court in order to resolve ambiguities or obscurities. But such material can only be considered with caution as the delegates may not have shared a common view, and an expression by one of them as to his own view is likely to be of little value if it was met simply by silence on the part of the other delegates. The travaux must clearly and indisputably point to a definite intention on the part of the delegates as to how the point at issue should be resolved if it is to be helpful. (Morris paragraph 79 per Lord Hope.) Lord Hobhouse in Morris at paragraph 148 in relation to the use of the travaux préparatoires said: -
  42. "It is equally mistaken to try and find out what the individual delegates thought they were agreeing to as it is to investigate the various domestic laws of the signatory countries. The investigation is equally liable to be based on incomplete or imperfect evidence. It may well be that different delegates may have different beliefs. The views of one delegate, however distinguished, articulate and well-published, may not represent the views of others. The examination must be an objective one."

  43. Lord Hobhouse regarded the use of the absence of travaux préparatoires as a tool of construction as being a 'descent into unprincipled subjectivism'. The question in Morris was whether a psychiatric condition caused by a sexual assault during a flight amounted to a bodily injury under article 17. Lord Hobhouse said that the fact that during the delegates discussions no mention was made of liability for mental injury could not properly be regarded as highly significant, as the Court of Appeal had stated, as that was to speculate about the subjective intentions of the delegates. (paragraph 148). Lord Steyn in Morris at paragraph 17 did however consider that the omission of any reference to claims for mental injury during working sessions was revealing as if the idea of including such claims had been under consideration it would have demanded discussion. It was not therefore a case of 'mere silence'.
  44. These passages do not differ in principle even if they differ in the application of such principles. Mere silence cannot point clearly and indisputably to a definite intention on the part of the delegates as to how an issue should be resolved.
  45. Lord Diplock in Fothergill (283) considered that an English Court might well be under a constitutional obligation to have regard to any material which the delegates themselves had thought would be available to clear up any possible ambiguities or obscurities. That part of his speech does not however in any way detract from the need for caution to be used in relying upon travaux préparatoires for the reasons stated by Lord Hope and Lord Hobhouse in Morris.
  46. It is legitimate to have regard to any subsequent practice in the application of the treaty 'which establishes the agreement of the parties regarding its interpretation'. Article 31(3)(b) of the Vienna Convention on the Law of Treaties 1980. Article 32 confirms the use of the travaux préparatoires.
  47. It is clear that the subsequent practice can only be used if it shows that the contracting parties were in agreement as to the interpretation of the Convention. (Morris paragraph 80 per Lord Hope.)
  48. Relevant decisions of the courts of the Convention countries can also be considered. Considerable weight should be given to an interpretation which has received general acceptance in other jurisdictions, but in general the weight to be attached to a particular judgment will depend upon the standing of the court concerned. A discriminating approach is required if the decisions conflict or if there is no clear agreement between them. (Morris paragraph 81 per Lord Hope.)
  49. Learned commentaries may be persuasive but the extent to which they are will depend upon the cogency of their reasoning. (Fothergill per Lord Diplock 283G).
  50. Mr Stuart Cakebread on behalf of the Claimants submits that the Convention should be interpreted in such a way as to give a remedy to a claimant whenever this is possible in view of a passage in the speech of Lord Hope in Sidhu, where he said: -
  51. "No doubt the domestic courts will try, as carefully as they may, to apply the wording of article 17 to the facts to enable the passenger to obtain a remedy under the Convention." (453H-454A)

  52. I am satisfied that Lord Hope was there describing what he considered judges would in practice try to do. He makes no criticism of any judicial attempt to construe article 17 on the facts to enable a passenger to obtain a remedy under the Convention, and implicitly might thereby be said to accept that it would be an appropriate approach by the courts. He acknowledges however that such attempts may well fail as happened on the facts of Sidhu where it was conceded that no such remedy was available.
  53. Whilst Lord Hope may not criticise judicial attempts to find a remedy within article 17 for an injured passenger he does not state that it is a requirement of construction that such an attempt be made. This is clear both from the language used and the fact that the passage is not set out under the section of the judgment which deals with the approach to the construction of the Convention from page 441 - 444. There is therefore in my judgment no requirement that the Convention should be interpreted in such a way as to give a remedy to the claimant whenever possible. I shall deal with this issue again when considering the third issue relating to the Human Rights Act.
  54. It was also submitted on behalf of the Claimants that as a matter of interpretation section 3 of the Human Rights Act requires article 17 to be read and given effect in a way which is compatible with the rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). I shall deal with this submission when considering, in relation to the third legal issue, the impact of the Human Rights Act.
  55. I . THE CLAIM UNDER THE WARSAW CONVENTION ARTICLE 17

  56. The question which arises is whether a culpable act or omission by a carrier resulting in a passenger suffering from DVT on an aircraft which complied with, and on a normal flight which was carried out in accordance with, all applicable aviation regulations, amounts to an 'accident' under article 17. The facts set out in the agreed matrix relating to the nominal claimant reveal that no event occurred during the course of the flight, which could therefore be described as a normal and unremarkable flight save in the sense that the failure to warn of the risk of DVT or provide less cramped seating, that is the culpable acts or omissions, continuing throughout the flight.
  57. The Submissions

  58. I have had the benefit of detailed and well-argued submissions both in writing and orally from all parties ranging over all the issues before me and analysing many of the foreign aviation cases and the English aviation cases. I propose to set out here the essence of the competing arguments and will, where necessary, set out some of the detailed submissions as I consider the various principles of interpretation and their application to the Warsaw Convention and the agreed matrix of fact.
  59. (i) The Claimants submissions

  60. The Claimants submit that it is inconceivable that the delegates at the Warsaw Convention intended to exclude liability for culpable acts or omissions. There is no reason why an accident should not cover omissions as well as acts. Whether a purposive construction of the Warsaw Convention is applied by a fault based theory of liability, or a risk apportionment theory of liability, the agreed specimen matrix discloses an 'accident'. On a fault-based theory of liability article 17 imposes liability wherever a carrier is at fault and any culpable external event or happening which causes death or injury to a passenger is an accident. Such an interpretation is consistent with the travaux préparatoires, linguistic considerations and the French text. Here the nominal carrier was at fault when it failed to respond to the known risk of DVT with the result that each act or omission that was a cause of DVT could be an accident under article 17. On the risk apportionment theory of liability the Convention apportions or balances risk between the carrier and the passenger, so that the carrier bears the risk of a passenger sustaining injury or death when the event or happening that is the cause of it is within its own control or influence. The risk of a passenger developing DVT during a flight is uniquely within the carrier's control and influence and so again in principle, each act and omission that caused DVT was an accident under article 17.
  61. The Claimants submit that 'fault theory' was the basis of the drafting of Chapter III of the Convention as can be seen from the travaux préparatoires.
  62. The concept of risk apportionment is inherent in the judgment of the Court of Appeal in Morris v KLM [2002] QB 100 and was the basis for the decisions in Husserl v Swiss Air Transport Co Ltd 485 F.2d 1240 (1973) and Day v Trans World Inc 528 F.2d 31, 34 (1975), both of which were approved in Saks.
  63. Modern risk apportionment theory requires a construction of the Convention which recognises that it is the airlines which are in a position to recognise risks, avoid them and insure against them. The fact that the carrier is liable in hijacking cases such Day or Husserl is because the means of minimising or preventing terrorist attacks is within the control of the carrier rather than the passenger.
  64. A detailed consideration of the travaux préparatoires shows that there is no significant distinction between the word 'accident' and 'occurrence' set out in article 17 and 18 respectively. In so far as the authorities, and in particular Saks do not recognise this, it is because the travaux were not fully argued before the court.
  65. Accident cannot bear its natural meaning as it is clear that it is intended to cover intentional or reckless acts committed with intent to cause injury, even though a dictionary definition could not possibly include such a meaning. Article 25, commonsense and Naval-Torres v North-West Airline Inc 159 DLR (4th) 67, 76 make this clear. The normal definition of an 'unexpected, unforeseen or unusual event' cannot therefore apply as foresight plainly does not exclude liability. There is equally no reason why the fact that a carrier should habitually operate its aircraft in a manner that causes preventable damage should be able, to, contend that it should escape liability. The delegates cannot have intended the carrier to be able to escape liability simply because it carried out each of its flights in the same way and hence could contend that they were usual and that there was therefore no accident. It would be immoral and unprincipled for a carrier to have no liability simply because its acts or omissions were habitual. The carrier should not be permitted to ignore developments in science which created an awareness of new risks. El Al Israel Airlines v Tseng 525 US 155 (1999) gives support to the proposition that the routine operation of a known unsafe system could be an accident.
  66. The classic definition of 'accident' under the Warsaw Convention in Air France v Saks (1985) 470 US 392 is 'an unexpected unusual event external to the passenger.' It did not and was not intended to address the question of whether a carrier guilty of a culpable act or omission would come within the ambit of article 17. The facts of Saks did not require such a decision. The same is true of Chaudhari v British Airways plc 16th April 1997 CA where the matter was not argued. Where the matter has been considered in very recent first instance cases in Australia (Van Luin v KLM Royal Dutch Airlines 11th October 2002 District Court New South Wales) and Canada (McDonald v Korean Air and China Travel (Canada) Ltd 18th September 2002 Ontario Superior Court of Justice) the matter was not subject to as detailed an argument as before me, as both of those cases were strike out applications.
  67. Fulop v Malev Hungarian Airlines 175 F. Supp. 2d 651 (2001) and Hussain v Olympic Airways 116 F. Supp. 2d 1121 (2000) both demonstrate that if a carrier fails to reduce or remove a known risk or to warn its passengers of that risk such a failure amounts to an 'accident'. This is so either because the carrier is liable under the fault theory or because under the apportionment theory the risk of injury was uniquely within the control of the airline.
  68. The Claimants defined 'accident' in accordance with their above submissions as 'an external event or happening which causes injury or death to a passenger and will include any culpable act or omission'. If too much emphasis is placed upon the unexpected or unusual nature of the event the situation would arise in which the more unexpected or unusual the event, the more likely it would be to amount to an accident, when at the same time it would be more likely that the defence available to the carrier under article 20 would succeed. This would be illogical.
  69. They further submit that the specimen matrix reveals an 'accident' within the classic definition of that word under article 17 as exposing passengers to a known risk without taking the steps necessary to avoid that risk could only be described as unexpected or unusual conduct external to the passengers. Saks required its definition of 'accident' to be applied flexibly.
  70. Culpability is not an essential condition for article 17 liability simply a sufficient one. Nor is the concept of culpability one which over complicates the Convention. Culpability is already relevant and has to be considered under articles 20, 21, 22 and 25; there is no reason why it should not also be considered under article 17.
  71. (ii) The Defendants submissions

  72. The Defendant carriers and Qantas, who were separately represented, both submit that the Claimants' interpretation of 'accident' is contrary to the natural meaning of the word, contrary to the structure of Chapter III of the Convention and contrary to well established authorities. They submit that article 17 provides a form of strict liability, not one based on fault. Once death or bodily injury caused by an accident whilst on board, or embarking or disembarking, has been established the burden shifts to the carrier. It is only then, under articles 20, 21, 22 and 25 that the question of fault arises.
  73. It is correct that the risk is distributed between the carrier and the passenger, and that was the intention of the delegates when the Convention was drawn up. The risk was then apportioned on the basis that the carrier bore the risk of 'accident' and the passenger bore the risk of any injury outside article 17. This was the distribution of risk and remains so now. Modern theories of risk distribution cannot be imposed upon the Convention. They focus on accident prevention and whether a duty of care arises rather than on the true distribution of risk, which was fixed, for the sake of certainty, when the Convention was agreed. Any distribution of risk which relates a duty of care through the eyes of domestic law such as Fulop is incorrect. Husserl and Day were correctly decided on their facts but for the wrong reasons. Fulop and Hussain were wrongly decided on the basis of defective reasoning though their facts might be said to come within the definition of 'accident' in Saks.
  74. The Saks definition, namely 'an unexpected unusual event external to the passenger causing death or bodily injury,' was the normal natural meaning of the word in the context of Chapter III of the Warsaw Convention. That definition was well established and had been followed in many jurisdictions over nearly two decades. The intentional or reckless act may be within the definition because such acts are 'unexpected' and no less so even if the result is as intended as the act bringing about the result. The error made by the Claimants is in focusing on the reason for the event which causes the accident rather than on the event itself. If an employee of a carrier sabotages the air pressurisation system, it is not the act of sabotage which is the 'accident' but the consequence of that, namely the loss of pressure, which is the accident.
  75. There is no correlation between 'accident' and fault. There may be an 'accident' without fault on the part of the carrier, for example where a passenger assaults another passenger, or where there is an act of God, or equally there may be no accident where there has been fault, for example, where there is a culpable omission which does not cause any unexpected or unusual external event to occur. The fault in such circumstances may be in not departing from the usual normal and expected and hence would not be an 'accident'. A pure omission cannot be an accident in itself, even though an accident may be caused by an omission.
  76. The case of Saks is also authority for the proposition that 'accident' in article 17 has, and is intended to have, a different meaning to 'occurrence' under article 18.
  77. The travaux préparatoires give no assistance, on determining the meaning of 'accident' as the words used by the President of the Drafting Committee when introducing article 17 in its final form and the subsequent silence of the delegates cannot give rise to any clear inference as to their intentions. Furthermore the travaux préparatoires were considered in Saks.
  78. El Al Israel Airlines v Tsui Yuan Tseng 525 US 155 (1999) is not authority for the proposition that the routine operation of a known unsafe system would be an 'accident'. It is merely deciding that an intentional wrongdoing may amount to an accident, though it also may be said to accept that a routine procedure performed in an unexpected or unusual way may be an accident. Nor does the case of Morris in the Court of Appeal paragraph 26 support the Claimants contentions as Lord Phillips was not there seeking to suggest that there could be liability without an accident having occurred. Once it is established that there has been an accident within the meaning of article 17 a passenger should be entitled, as Lord Phillips held, to be compensated for its consequences where the carrier is not able to discharge the burden imposed by article 20.
  79. The tests set out in Saks should be flexibly applied, which means that an over prescriptive approach should not be used. The full circumstances must be looked at broadly and carefully. The test must be applied objectively.
  80. Use of culpability as a yardstick would produce very unsatisfactory results. Many jurisdictions would apply their own standards of care with numerous different results leading to lack of uniformity and uncertainty.
  81. The recent authorities on Van Luin and McDonald demonstrate that all common law jurisdictions are moving in the same direction. Once the test accepted in those jurisdictions is properly applied to the agreed factual matrix in this Group Litigation it can be seen that the flight was normal and unremarkable and did not constitute an accident under article 17.
  82. The application of the principles of interpretation

    Natural meaning

  83. In its everyday and ordinary usage the word accident means an unlooked for mishap or an untoward event which is neither expected nor designed. It is characterised in its dictionary definitions as an event which is unexpected, unforeseen, unintended and unusual. The emphasis which is given to any particular part of its definition or meaning will vary according to the context in which it is being considered. It is therefore necessary to look at the Convention as a whole and its structure in order to consider the natural meaning of the word accident in its context. One must also consider the purpose of the Convention. In other words many of the principles of construction are interrelated.
  84. A continuing state of affairs or a pure omission is not in 'ordinary everyday language an accident, though it may be 'an accident waiting to happen.' Until some event or happening has taken place no accident will have occurred. It is important to note that the happening of the injury itself does not qualify as an accident under article 17 as under that, it is the cause of the injury which must satisfy the definition rather than the occurrence of the injury alone.
  85. The Claimants are correct in their submission that the natural meaning of accident as something which is unintended or not designed, as well as unexpected or unusual, cannot include an intentional or deliberate act such as a hijacking or other terrorist action. Yet the word has been construed in numerous cases so as to include such intentional acts. This demonstrates the fact that it is necessary to consider a word in its context in order to be able to construe it properly.
  86. The structure of the Convention

  87. Chapter III deals with the 'Liability of the Carrier'. Article 17 requires the passenger to establish firstly death, wounding or bodily injury, secondly an accident which caused such death or injury and thirdly that the death or injury occurred whilst the passenger was on board the aircraft or embarking or disembarking. Once the passenger has established these matters the burden passes to the carrier who can escape the liability which would otherwise be imposed upon him if he proves that he has taken all necessary measures to avoid the damage or that it was impossible for such measures to be taken. (Article 20). If the carrier proves that the damage was caused or contributed to by the negligence of the passenger then he may be exonerated wholly or partly from his liability. (Article 21). The prima facie limits which apply to the carrier's liability in article 22 shall not apply in the carriage of passengers and baggage if the damage resulted from an act or omission of the carrier done with intent to cause damage or recklessly with knowledge that damage would probably result. (Article 25). These provisions are taken from Warsaw-Hague MP4 and it should be noted as set out earlier in this judgment that different considerations now apply to Community carriers and non-community carriers. Community air carriers are not therefore able to rely on article 20 up to 100,000 Special Drawing. Rights and not entitled to rely on article 21 or limits in 22(1) at all in respect of claims for death, wounding or personal injury. Non-community carriers who are not on the journey in question travelling to and from the European Community are not subject to these restrictions. Thus, for example, the carriers from the United States of America, Russia and China are still able to rely upon articles 21 and 22(1) and article 20 in full. Whilst articles 20, 21, 22, 23, 25 and 25 do vary between the different versions of the Warsaw Convention article 17 is the same in each version.
  88. Prima facie therefore the concept of fault only comes into play once the passenger has established the necessary matters for liability under article 17. That is, (i) death or bodily injury (ii) caused by an accident and (iii) which occurred whilst on board the aircraft or embarking or disembarking. Fault is not an essential ingredient of establishing liability under article 17 but does come into play should the carrier seek to escape or diminish his liability under article 20 or article 21. It may however be that in the course of demonstrating that there has been an accident, a passenger may demonstrate fault. He certainly does not have to do so as liability under article 17 may be established as a consequence of the actions of a fellow passenger even though there is no fault on anyone's part, though the carrier may escape liability in such circumstances under article 20. ,
  89. The English and foreign authorities on the meaning and the structure of the Convention

  90. The meaning of accident under article 17 was considered by the Supreme Court in the United States of America in the case of Air France v Saks (1985) 470 US 392. It was there held that liability under article 17 rises only if: -
  91. 'a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger'

    The definition 'should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries.' (405). Having considered various examples in the American courts of the application of article 17 the Supreme Court stated that when the injury:-

    'indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and article 17 of the Warsaw Convention cannot apply.'

  92. The judgment of the Supreme Court in Saks was unanimous and carefully considered. It has been followed and adopted by courts in jurisdictions throughout the world for the past seventeen years. It was approved in England by the Court of Appeal in Chaudhari v British Airways plc unreported 16th April 1997 when the court considered that the reference to 'the passenger's own internal reaction' in the judgment was probably a reference to the injuries sustained by the particular passenger bringing the claim in Saks but accepted that 'accident' was not to be construed as including any injuries caused by the passenger's particular, personal or peculiar reaction to the normal operation of the aircraft. The definition of accident in Saks was described as giving the word 'a natural and sensible meaning in the context in which it appears' by Lord Phillips in Morris v KLM in the Court of Appeal. It was applied in that case. In the House of Lords in Morris Lord Hope agreed that the Saks definition of accident as an unexpected or unusual event that was external to the passenger was a natural and sensible meaning in the context of article 17 and he adopted that approach. Clearly the Saks definition has passed the test of general acceptation.
  93. The definition in Saks is therefore binding upon this court though of course its application to any given set of facts is a matter which is open to judicial interpretation. The test must be applied objectively as Lord Hobhouse said in Morris at paragraph 148. It should be 'flexibly applied after assessment of all the circumstances surrounding a passenger's injuries'. (Saks 405). Flexibly in this context means looking at all the circumstances broadly and carefully without using an over narrow or prescriptive approach.
  94. The Supreme Court in Saks acknowledged that interpreting article 17 broadly enough to encompass torts committed by terrorist or fellow passengers was correct such as in Day v Trans World Airlines Inc 429 US 890 (1976) and Husserl which was approved in that case. The reasoning behind the decisions in Day and Husserl was not specifically adopted by the Supreme Court though it accepted, as had been said in Day, that it was the court's responsibility to give the specific words of a treaty a meaning consistent with the shared expectations of the contracting parties.
  95. The Supreme Court made a careful analysis of the text of article 17, the negotiating history of the Warsaw Convention, the subsequent conduct of the parties thereto, and the weight of precedent in foreign and American courts. They specifically considered the English case of Fenton v J Thorley & Co [1903] AC 443 in which Lord Lindley had described an accident as 'any unintended and unexpected occurrence which produces hurt or loss.' In the same case, though uncited in Saks, Lord MacNaghten concluded that the expression accident in its popular and ordinary sense of the word denoted 'an unlooked for mishap or an untoward event which is not expected or designed.'
  96. The structure of the Warsaw Convention was considered in Saks. The Supreme Court reviewed article 20 and 21 and stated: -
  97. "The 'accident' requirement of article 17 is distinct from the defences in article 20(1), both because it is located in a separate article and because it involves an enquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury. While these enquiries may on occasion be similar, we decline to employ that similarity to repeal a treaty provision that the Montreal agreement on its face left unaltered." (407)

  98. The Supreme Court were contrasting the event causing the injury under article 17 with the care taken by an airline to avert injury under article 20. Whilst the enquiries might on occasion be similar the Supreme Court specifically declined to find that they were the same. This reaffirms the view that article 17 does not involve the proof of fault, though co-incidentally it may be present, and the requirements under article 17 and article 20 remain separate and distinct.
  99. There have been numerous decisions which have considered and applied Saks or a similar test to determine 'accidents'. Thus for example, terrorist attacks have been held to be accidents in Day v Trans World Airlines Inc 528 F.2(d) 31 (1975) and Husserl v Swiss Air Transport Co Ltd 351 F. Supp 702 (1972) affirm 485F.2(d) 1240 (1973). Sexual assault by a fellow passenger and the spilling of scalding water have also been found to be accidents (Wallace v Korean Air 214F. 3(d) 293 (2000) and Fishman v Delta Airlines Inc 132 F.3(d) 138 (1998)). Refusing to move a passenger suffering from asthma to a non-smoking section of the plane has been held to be an accident (Hussain v Olympic Airways 116 F. Supp. 2(d) 1121 (2000), as has a refusal to divert an aeroplane in the event of a passenger's heart attack and request that the plane be diverted. (Fulop v Malev Hungarian Airlines 175 F.Supp.2(d) 651 (SDNY) (2001).
  100. On the other hand the following injuries were held not to have been caused by accident: an allergic reaction to the spraying of insecticide in an aircraft in accordance with government regulations (Capacchione v Qantas Airways Ltd 23 AVI 17,346 (1996); an ear injury caused by normal depressurisation of the aircraft (Saks, Warshaw v Trans World Airlines Inc 442 F.Supp. 400 (1977); DeMarines v KLM Royal Dutch Airlines 580 F.Supp 2(d) 1193 (1978); refusing to allow a passenger to lie down on a flight in order to use a self help remedy for a hernia (Abramson v Japan Airlines Co Ltd 739 F. 2(d) 130 (1984); swollen legs from sitting in a seat (Toteja v British Airways [1999] US Dist Lexis 17374); a back injury from sitting in a seat for a prolonged period of time (Margrave v British Airways 643 F. Supp. 510 (1986).)
  101. No party has found any example of a case in which a pure omission has been found to be an accident. Nor has a culpable act or omission per se been considered save very recently at first instance. In Saks itself there was no allegation of fault against the carrier. In Chaudhari the Claimants submit that negligence was not in issue in view of the judge of first instance's findings that the accident was purely an internal matter to the passenger which was nothing to do with the airline and hence could not be an accident within the meaning of the Convention. This is correct but it is clear from the report that the Court of Appeal was aware of the fact that negligence had been alleged against the carrier for failing to provide him with a bulkhead seat when it knew that he suffered from a disability and required additional facilities. It is therefore, the Defendants submit, implicit that the Court of Appeal made its decision in the full knowledge that negligence was a factor in the case. Whilst the Defendants' submission is correct, it is clear from the judgment that the allegation of negligence against the carrier did not form an express part of the decision of the court, which I understand did not hear argument but dealt with the matter on the basis of written skeletons.
  102. The recent cases which have considered the question of culpability are both DVT cases. In Van Luin v KLM Royal Dutch Airlines unreported 18 October 2002 District Court of New South Wales, the plaintiff alleged that she suffered DVT whilst travelling as a passenger on an aircraft which was operated in a normal manner. By way of amendment she alleged that there was failure on the part of the crew to advise her of the need to move regularly around the cabin and that she should drink extra fluid. This failure was alleged to amount to an accident within article 17. The judge rejected that submission. He said:
  103. "It is, I think, plain, that the acts or omissions of the crew of an aircraft may constitute an unexpected or unusual event or happening which is external to the passenger and which causes bodily injury to such passenger thereby amounting to an accident within the meaning of article 17.

    However it seems to me, applying Air France v Saks that the failure of the crews of the relevant aircraft to advise the plaintiff of the need to regularly move around the cabin and the failure of such crews to advise the plaintiffs to drink extra fluid do not constitute either individually or collectively an unexpected or unusual event or happening external to the plaintiff and therefore such failures either individually or collectively do not constitute an accident within the meaning of article 17." (paragraphs 49 and 50)

  104. The judge added that even if such failures did amount to an accident the DVT was caused not by that but by the plaintiffs own internal reaction to the usual, normal and expected operation of the aircraft and hence were still not an accident within the meaning of that term under article 17.
  105. In MacDonald v Korean and China Travel (Canada) Inc unreported 18th September 2002 Ontario Superior Court of Justice, the plaintiff alleged failures to warn of the risk of DVT on long flights and failure to take measures to reduce the risk. These failures were alleged to be an unusual and unexpected operation of the aircraft, and a marked departure from the duty of a carrier and thereby amounted to an accident. The court found that the negligence was not in itself an accident as the DVT sustained by the plaintiff was not linked to an unusual and unexpected event external to him. He therefore struck out the plaintiffs claim.
  106. In Reinder Volander v Deutsche Lufthansa file number 2-21054/01 29 October 2001 Frankfurt am Main Regional Court a claim for DVT on a flight from Germany to South Africa was dismissed but culpability was only considered in the context of a claim outside the Warsaw Convention. The court based its decision that there was no accident within the meaning of the Convention upon Abramson v Japan Airlines Co Ltd 739 F. 2(d) 130 (1984) but did not explain the basis of that reliance. Abramson approved the decision in DeMarines v KLM Royal Dutch Airlines 580 F.2(d) 1193 (1978) in stating that 'an accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things....to constitute an accident or occurrence, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening.' Both cases were approved in Saks (405) but the specific requirement of a 'physical circumstance' was not repeated in Saks.
  107. The Claimants rely upon the case of Tseng in support of the proposition that a routine operating procedure causing injury could constitute an accident. Miss Tseng was subjected to a security search which lasted some fifteen minutes and resulted in her feeling very upset and emotionally traumatised. The Court of Appeals had found that the search was part of a routine operating procedure and that Miss Tseng had encountered ordinary events and procedures of air transportation. No accident had occurred as there was no unexpected or unusual event. The Supreme Court in footnote 9 questioned whether the Court of Appeals had 'flexibly applied' the definition of accident set forth in Saks. As the matter was not in issue however that is as far as the Supreme Court went on the issue. The Supreme Court plainly considered it possible that this particular search which was prolonged and intrusive might have amounted to an unexpected or unusual event, but the precise basis of their possible view on the matter is not further set out and cannot safely be relied upon.
  108. The Claimants place strong reliance upon the case of Fulop and its reasoning and upon the case of Hussain. In both cases the carrier departed from their own operations and procedures. In both the conduct of the crew was described as aberrant. In each case the court found that such conduct by the crew was unusual and unexpected in that it failed to comply with established rules and procedures (Fulop para 672) or violated the industry's standard of care and was in contravention of the carrier's accepted policy. (Hussain para 1133).
  109. In Fulop District Judge Marrero said: -
  110. "Turning to the qualitative aspects, something unusual or unexpected may be so regarded because it manifests a departure from a recognised norm that reflects an acceptable mode of conduct." (671)

  111. The court in Fulop did not deal directly with fault but said that the finding of accident need not rest on any notion of any negligence or fault. The Claimants submit that by inference the Judge was accepting that culpability may be relevant.
  112. Mr Thanki for Qantas submits on their facts that the cases of Fulop and Hussain, although wrongly decided, could be said to come within the Saks definition on the grounds that the conduct of the crew in each case might be described as an unexpected or unusual event. He contrasted these cases with those where there was no discernible happening or event during the flight at all which caused injury. The Claimants' cases fall within that category as did Saks, Margrave, Warshaw. Judge Marrero in Fulop recognised this distinction when he said: -
  113. "The flights in Saks and the comparable cases cited may be characterised as normal and uneventful in one respect. In all of those cases, the aircraft continued from the point of departure to disembarkation without any call upon the pilot or crew to exercise judgment or to apply any procedure or element of operational control within the carrier's unique domain. In other words, the flight entailed nothing more than the ordinary functioning of aircraft and crew that was anticipated to guide the plane uneventfully from its port of origin to its scheduled destination." (670).

  114. Qantas also submit that if the Claimants' analysis of the law is correct well established cases would have to be differently decided. Thus in Saks the argument would no doubt be maintained that the carrier was culpable for failing to warn passengers that they might lose their hearing and provide them with 'hot caps' to prevent hearing loss. In Chaudhari it might be argued that the failure to provide a bulkhead seat was culpable and that that failure amounted to an accident. In Capacchione it might be contended that the failure to warn passengers of the possible allergic reactions to insecticide or provide facemasks or oxygen cylinders constituted a culpability which would be an accident on their definition. Indeed Mr Thanki submitted that the Claimants' approach would place an intolerable burden on carriers of having to identify and warn against every conceivable risk, even though it might materialise only in a very small number of cases, and take any preventative measure including the giving of warnings and ultimately in some circumstances having to decline to fly.
  115. I shall consider the case of Fulop further under the next heading but, it is to be noted at this stage that the facts in Fulop are to be distinguished from those set out in the agreed matrix. In Fulop there was a distinct event in that the crew had to attend an ill passenger but having done so declined, in spite of his request, to divert the plane contrary to their own operating procedures. In Hussain the crew were faced with a request from a severely asthmatic man, who in fact turned out to be dying, to move away from a smoking area, but they declined to agree to the request contrary to their own procedures and those accepted in the industry. By contrast, the agreed matrix of fact discloses no event or happening.
  116. Purposive construction and the travaux preparatoires

  117. The purpose behind the Warsaw Convention can be expressed in two different but complimentary ways on the Claimants' submissions. Firstly as applying a fault-based theory of liability, alternatively as apportioning risk between the carrier and the passenger.
  118. (i) Fault based theory of liability

  119. When the legal committee at the Warsaw conference in 1929 reported on the rules of the draft Convention it said: -
  120. "These rules arose out of the fault theory and the liability of the carrier as regards passengers and goods, and the obligation of the carrier to assume the burden of proof. Presumption of fault on the shoulders of the carrier was, however, limited by the very nature of the carriage involved, carriage whose risks are known by the passenger and the consignor." (Extract from the report in the name of the International Technical Committee of Aeronautical Legal Experts by Mr Henry De Vos, reporter. - Second International Conference on private aeronautical law, Warsaw 1929 translated by Robert C Horner and Didier Legrez page 252. See also the reporter's own remarks to the Warsaw Conference - Horner and Legrez page 20.)

  121. The Claimants submit that article 17 is therefore fault based, the quid pro quo for the carriers being that their liability would be limited. Article 17 is therefore intended to impose liability upon the carriers where injury or death is caused by its culpable act or omissions.
  122. The Defendants cited a number of authorities on this issue which they submit indicated that fault was only relevant as a requirement under the Convention once the conditions of article 17 had been proved. In Horabin v British Overseas Airways Corporation [1952] 2 Lloyds Reports 450, 457 the direction to the jury on the meaning of accident under article 17 in a civil claim for damages was that the liability of the carrier under article 17 was: -
  123. "..quite irrespective of whether or not the injuries resulted from any negligence or any form of misconduct on the part of the carriers or their servants for whose act they are responsible."

  124. In Goldman v Thai Airways International Ltd [1983] 1 WLR 1186, 1200 Lord Justice O'Connor said that liability under article 17 was 'without proof of fault'. In Swiss Bank Corporation & others v Brinks Mat Ltd & others [1986] QB 853, 857 Mr Justice Bingham, as he then was, described the plaintiffs as not being required to prove negligence or breach of duty under article 18 in the ordinary sense as they were entitled to rely on the presumption of liability for which the Convention provided. In Holmes v Bangladesh Biman Corporation [1989] AC 1112, 1129, Lord Bridge described the Convention as imposing liability on the carrier 'without proof of fault' in respect of death or injury. In Fellowes (or Herd) & anr v Clyde Helicopters Ltd [1997] AC 534, 555 it was said: -
  125. "..one of the advantages of excluding the rules of the common law is that the United Kingdom rules are designed to impose liability on the carrier without proof of fault in respect of the death of or injury to passengers and to nullify contractual provisions the effect of which will be to relieve the carrier of liability or to restrict his liability in amount. These are significant advantages, as it may be very difficult to prove where fault lies when an aircraft has been destroyed in an air crash and all those on board the aircraft have lost their lives, and in view of the opportunities which would otherwise be available to those who provide carriage by air to exclude or restrict their liability."

  126. Lastly in Morris Lord Steyn at paragraph 13 described the Convention as imposing 'a form of strict liability on carriers in respect of accidents causing death, wounding or bodily injury to passengers in return for the limitations of liability expressed in the Warsaw Convention. Chapter III of the Warsaw Convention reflects the bargain struck at Warsaw.' In paragraph 15 he described the code as enabling passengers to recover damages even though, in the absence of the Convention and the Act, they might have no cause of action which would entitle them to succeed and Lord Hope in Morris at paragraph 65 and 66 describes the imposition of liability as being without proof of fault and sets out the advantages both to the passenger in having such a system and to the carrier in having its liability defined and limited. I have already set out those passages in Saks which refer to the structure of the Convention and the fact that article 17 requires an inquiry into the nature of the event which caused the accident and article 20 requires an inquiry into the care taken by the airline to avert the injury.
  127. I am satisfied on the basis of the authorities which I have set out and which were cited to me that the structure of the Convention is such that fault only comes into play when the carrier seeks to rely on the defences under, for example, article 20. One of the purposes of the Convention is to relieve the passenger of the burden of proving fault. That is the reason why the requirements in article 17 are separate and distinct from article 20 even though the inquiry may co-incidentally in some cases be similar. There may well be fault when an accident has occurred but not necessarily so, and even if fault is proved it will not be sufficient to establish liability if there has been no 'accident' under article 17. There would be little point in structuring Chapter III as it has been drafted if fault on occasions had to be proved in order to establish liability under article 17. This would defeat the purpose of having a presumption of fault under article 17 and the burden of proving care on the part of the carrier under article 20 in order to escape that presumed liability.
  128. The Claimants submit that the travaux préparatoires demonstrate that it was the intention of the delegates to impose a common scheme of liability for passengers and baggage. When the comments of the drafting committee are examined in relation to the change between the original draft of article 17 set out in its predecessor article 21, it can be seen that the intention was not to alter the threshold significantly but to impose liability in the same circumstances but with a different starting point. The original draft in article 21 placed no restriction on liability; all that had to be proved was the death, wounding or bodily injury during carriage. It is apparent from the travaux, the Claimants submit, that no significant change was intended from the first draft with the consequence that the word 'accident' in the new article to be numbered 17 was effectively the same as the word 'occurrence' in the redraft which was to become article 18.
  129. This can be demonstrated, Mr Cakebread submits, by what the President of the Drafting Committee said when he introduced the changes. He described them as perhaps the most important articles of the Convention and observed that: -
  130. "Given that there are entirely different liability cases: death or wounding, disappearance of goods, delay, we have deemed that it would be better to begin by setting out the causes of liability for persons, then for goods and baggage, and finally liability in the case of delay... the totality of the questions to consider is divided up in three articles. You will find therefore that which appeared in article 20 and 21 divided in three articles.

    I add right away that we are still in the same situation; it is not a question of new articles but of a new numbering of the articles."

  131. Article 17 was put to the vote and adopted without further argument. This statement by the President of the Drafting Committee and the silence by the delegates support, the Claimants contend, the contention that 'accident' and 'occurrence' mean essentially the same thing and impose liability in the same circumstances.
  132. This is a difficult argument for the Claimants to maintain. The matter was specifically considered in Saks when the Supreme Court analysed the travaux préparatoires in detail before concluding that accident and occurrence meant different things. (403) They concluded: -
  133. "We recognise that any standard requiring courts to distinguish causes that are 'accidents' from causes that are 'occurrences' requires drawing a line, and we realise that 'reasonable people may differ widely as to the place where the line should fall'.. .we draw this line today only because the language of articles 17 and 18 requires it, and not because of any desire to plunge into the 'Serbonian bog' that accompanies attempts to distinguish between causes that are accidents and injuries that are accidents.. .any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger. Until article 17 of the Warsaw Convention is changed by the signatories, it cannot be stretched to impose carrier liability for injuries that are not caused by accidents." (406)

  134. It is clear from the judgment of the Supreme Court that the very passage in the travaux now relied upon by the Claimants was considered by the Supreme Court, even if no express reference is made to that part of the passage in which the President of the Drafting Committee says that the delegates were 'still in the same situation, it wasn't a question of new articles but of a new numbering of the articles.' For my part I am quite satisfied that Saks considered and dealt with the travaux préparatoires fully and properly and that 'accident' means something different to 'occurrence' for the reasons the Supreme Court gives. To deny this is not only to deny the conclusion in Saks but the numerous cases which have followed it for many years.
  135. The silence of the delegates upon which the Claimants rely was expressly dealt with in the Saks judgment. In any event the silence here was not one which amounted to agreement as envisaged by Lord Steyn in paragraph 17 of Morris but one of mere silence as envisaged by Lord Hope in paragraph 96 in Morris. Silence could simply suggest that the words were to be given the meaning that they would ordinarily bear.
  136. Furthermore the passages in the travaux préparatoires cannot in any sense be said to establish clearly and indisputably the interpretation sought on behalf of the Claimants.
  137. I conclude that article 17 does not provide a fault-based theory of liability which imposes liability upon the carrier where injury or death is caused by its culpable act or omissions. Article 17 imposes a form of strict liability under which the passenger is relieved of the burden of proving fault. Whilst fault may co-incidentally be established in the course of demonstrating an accident it is not relevant in itself to that proof. Fault only becomes into play when an accident has been established under article 17 and the carrier seeks to escape from or otherwise limit his liability. Accident and occurrence have separate and distinct meanings.
  138. (ii) Apportionment of risk theory of liability.

  139. The Warsaw Convention, the Claimants contend, was intended to have the effect of reapportioning the risks of air travel between the carrier and the passenger as the carrier was in most cases better able and equipped to address or insure against risks associated with air travel than the passenger.
  140. The Claimants rely in particular upon the cases of Day v Tranc World Airlines Inc and Husserl v Swiss Air Transport Co Ltd Inc . In Day it was said by the court that:-
  141. "Moreover, a relatively broad construction of article 17, affording protection to the plaintiffs under the Warsaw liability umbrella, is in harmony with modern theories of accident cost allocation. The airlines are in a better position to distribute among all passengers what would otherwise be a crushing burden upon those few unfortunate enough to become accident victims…equally important this interpretation fosters the goal of accident prevention." (34)

  142. There is however no support in the Supreme Court or the House of Lords or indeed most of the first instance reports, for the proposition that risk was apportioned or reapportioned between the carrier and the passenger in this manner. It is not referred to in the Supreme Court decision of Saks and the fact that the decision in Day was approved in Saks means in my judgment no more than the fact that the definition in Saks when flexibly applied could result in a hijacking or terrorist action being described as unexpected or unusual. Their reference to the responsibility to give specific words of a treaty a meaning consistent with the shared expectations of contracting parties is a reference to Maximov v United States 299 F. 2(d) 565, 568. (2d Cir. 1962), aff'd 373 US 49, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963). It does not support or adopt the modern theory of accident cost allocation. Nor do any of the English authorities. As indicated earlier in this judgment paragraph 26 of the judgment of Lord Phillips in Morris in the Court of Appeal is not describing risk allocation but indicating that once an accident has been established a passenger should be entitled to be compensated for the consequences of that accident where the carrier is not able to discharge the burden imposed by article 20. The accident must first be proved. Had Lord Phillips intended the meaning ascribed to him by Mr Cakebread he would not in paragraph 24 of the same judgment have approved the definition in Saks and applied it in the case.
  143. The balance between the carrier on the one hand and the passenger on the other was to provide uniformity and certainty. The passenger had the benefit of a presumption of liability against the carrier together with the fact that the carrier could not by contract restrict or nullify that liability, and the carrier had the advantage of his liability being defined and limits placed upon it. (Lord Hope paragraph 66, and Lord Hobhouse paragraph 146). This is quite different to a modern theory of accident cost allocation. In the course of submissions Mr Cakebread suggested that the 1929 Warsaw Convention had been drafted 'in the age of the bi-plane.' But as Lord Hobhouse says at paragraph 149 of Morris, the Convention is not a historical document frozen in time. It does provide an enduring uniform code governing contractual and tortous relationships not just for a finite time but for the future. The words in the Convention 'have a meaning which does not change but the application of those words to the decision of any question depends on the facts and circumstances of the case in which that question arises. It is the facts and circumstances of the cases that change, not the meaning of the contractual words.' In paragraph 150 of Morris Lord Hobhouse considered the division of risk between the passenger and carrier:
  144. "..the code involves a division of risk. It strikes a balance. It is wrong to construe it as a code designed to advantage one interest or the other, the carrier or the customer. Like any code of this character, it contains familiar types of provision assisting one interest balanced against others assisting the other interest. For the passenger, a simple criterion of causation by an accident is adopted but counterbalanced by strong provisions enabling the carrier to limit his liability. These are not like exemption clauses to be construed against one or other parties."

  145. These passages do not support the modern risk allocation theory. In so far as the case of Fulop at paragraph 672 espouses the allocation of risk theory as a basis for its decision, it is not supported by the current decisions of the Supreme Court in the United States of America or by the Court of Appeal or House of Lords in the United Kingdom.
  146. I reject the Claimants' contention that the Warsaw Convention was intended to apportion or reapportion risks of air travel based upon the carrier's ability to address or insure against risks associated with air travel better than the passenger. That was not the balance of risk which was struck as can be seen from the authorities and in particular Morris in the House of Lords. The modern risk allocation theory focuses on accident prevention (see Day) and hence looks at the distribution of risks in relation to the happening of events rather than looking at the distribution of risks as they were in fact agreed in the Warsaw Convention. Such a focus is more relevant to the assessment of whether a duty of care is owed under domestic law than it is to the distribution of risk set out in the structure of the Warsaw Convention.
  147. As Professor Malcolm Clarke said in his book on Contracts of Carriage by Air (2002): -
  148. "Reference to potential supervision and control comes from tort thinking and has no basis in article 17. Under article 17, if the damage is accidental, in the ordinary sense of 'unexpected and unusual' and was caused by an event on board etc, prima facie, the carrier is liable - subject to the carrier's defences, notably article 20: the carrier is exonerated if he has taken all necessary measures to avoid the damage or' it was impossible to do so. The issue of carrier fault and associated control impacts not when the prima facie case is made out under article 17 but when the carrier defends. Importantly it is for the carrier to disprove actual or potential fault not for the claimant to prove it."

  149. In fact as the Defendants submit the carriers bear the risk of accidents and consequentially have an incentive to prevent accidents from happening. This is however quite different to stating that whenever events are more in their control than the passengers there must be deemed to be an accident.
  150. Subsequent practice

  151. I have not found any of the matters relied upon as subsequent practice decisive in my considerations. I note that the Montreal Convention of 1999 which is not yet in force retains the requirement of an accident under article 17 and uses the condition of an 'event' in the articles respect of both baggage and cargo. I also note that the Guatemala City Protocols sought to change the word 'accident' with 'event' in relation to the carrier's liability to passenger but that Protocol was never ratified by a sufficient number of states to bring it into force. I am not satisfied that the debates leading up to the Hague conference in 1955 lead to any clear and indisputable conclusions. The delegates at Guatemala City also showed different understandings of how 'accident' should be applied. Indeed disparate views were apparent at the Montreal Convention 1999.
  152. Nor can clear reliance be placed upon the fact that European regulations such as 2027/97 are now in force. New regulations do not necessarily throw any light upon the correct interpretation of what went before.
  153. The Saks definition

  154. I am bound by the decisions in Morris in the Court of Appeal, Morris in the House of Lords, Sidhu in the House of Lords and Chaudhari in the Court of Appeal to follow and apply the definition of accident in Saks. This definition gives the word 'accident' a 'natural and sensible meaning in the context of article 17'. (Lord Phillips in Morris in the Court of Appeal approved by Lord Hope in Morris in the House of Lords.) As Lord Hobhouse said in Morris (paragraph 150) the Warsaw Convention adopts for the passenger 'a simple criterion of causation by an accident and this is counterbalanced by strong provisions enabling the carrier to limit his liability.'
  155. The application of any such test will inevitably create anomalies as the line to be drawn in deciding whether a particular factual matrix amounts to an accident can be fine and difficult to determine. This has resulted in attempts being made to ascertain the rule of law which underlies the concept of accident in article 17 (for example Fulop and Day). But such attempts, introducing as they do modern concepts of risk allocation which were neither thought of nor intended when the Convention was drafted, or fault based theories which run counter to the structure and purpose of the Convention and the introduction of the simple criterion of causation by accident, do not assist in avoiding the problems of applying any given test, but merely substitute new ones for those which were inherent in the first system. They in effect substitute not an explanation for article 17 as drafted but a new system, more in tune with modern approaches to the concepts of duty of care in negligence than to the explanation of the word 'accident'. The attempt may be admirable but it is not relevant. If the balance struck between passenger and carrier no longer reflects modem views as to what the balance between passenger and carrier should now be, the remedy is for a new definition to be agreed at an international conference, not for domestic courts to rewrite the definition or re-interpret it so as to mean something that it does not convey. Such a course will only lead to the very thing which the Convention sought to avoid, namely the application throughout the world of numerous and diverse tests of liability differently based and differently explained instead of a uniform and certain system applicable everywhere.
  156. The real question which arises in determining this legal issue is whether the facts disclosed by the agreed matrix fall within the definition of accident in Saks. Such a definition must be flexibly applied and in a chain of causes the passenger is only required to prove that something in the chain was an unusual or unexpected event external to the passenger. Here, the agreed matrix of fact reveals no event or happening which occurred on the flight. The carriers are assumed on the agreed matrix to have failed to deal with a known risk of DVT by, in essence, providing cramped seating and failing to give warnings of the risks of DVT. I treat those failures as being essentially omissions rather than acts but does this make any difference where the flight can only be described as normal and unremarkable with no event or happening occurring?
  157. This situation is to be contrasted with the intervention of the crew and 'aberrant conduct' in failing to follow either international or their own operating procedures such as in Fulop and Hussain. If however nothing happened during an ordinary and unremarkable flight that involved the actions of anyone except for the passenger himself or herself and his or her atypical reaction to a normal and unremarkable flight, there has been no unexpected or unusual event or happening.
  158. The only basis upon which liability could arise in such circumstances would be for a court to hold that a culpable act or omission is always an unusual or unexpected event or happening, so that where ever negligence is established, or known risks are ignored, an 'accident' must have occurred. But that ignores the fact that the culpable act or omission cannot necessarily be described as an unusual or unexpected event or happening in itself.
  159. Nor on the factual matrix is there any event which is external to the passenger save for the happening of illness itself which does not qualify under article 17 as under that provision 'it is the cause of the injury that must satisfy that definition rather than the occurrence of the injury alone'. (Lord Hope paragraph 71 Morris)
  160. I conclude that the agreed factual matrix does not disclose an 'accident' under article 17. To find that a defendant is not liable where on assumed facts he has ignored known risks, is unattractive. It offends against the common law principle of finding a remedy where there is wrong. But this is not the application of the common law. It is the application of an international convention in which a balance was struck between the interests of the carriers and the passenger with the conditions for liability being established and defences proved on the basis of uniformity and certainty to the intended benefit of passengers and carriers worldwide.
  161. II EXCLUSIVITY OF THE WARSAW CONVENTION

  162. The question which arises is whether the Warsaw Convention permits claims to be brought outside its terms for example, at common law, or whether the Convention provides the exclusive cause of action and sole remedy in respect of claims arising out of international carriage by air.
  163. This very issue was considered in relation to the Warsaw-Hague Convention, before its amendment by Warsaw-Hague MP4, by the House of Lords in Sidhu. The House of Lords concluded that the code under the Convention was intended to be uniform, and to be exclusive of any resort to the rules of domestic law. The House therefore concluded that if the Convention did not provide a remedy no remedy was available.
  164. Article 24 of Warsaw-Hague MP4 states: -
  165. "(1) In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

    (2) In the carriage of cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits of liability set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. Such limits of liability constitute maximum limits and may not be exceeded whatever the circumstances which give rise to the liability."

  166. The words 'however founded' in article 24(1) were considered in Sidhu which held that they supported the interpretation that the wording of article 17 extended to all claims made by the passenger against the carrier arising out of international carriage by air other than claims in respect of baggage which had to be dealt with under article 18 and delay under article 19.
  167. The Claimants cannot challenge this decision but submit that the addition of the words 'whether under this Convention or in contract or in tort or otherwise' in article 24(2) make it clear that the Convention as now amended cannot be construed as being exclusive. It envisages claims under the Convention, 'or in contract or in tort or otherwise' and hence must therefore allow such claims outside the Convention. This interpretation, it is submitted on behalf of the Claimants, is in accordance with travaux préparatoires and furthermore, consistent with the significant erosion of international comity since the distinction between Community carriers and non-community carriers has been starkly defined by the 1999 Order.
  168. The Claimants accept that the words 'however founded' mean the same in article 24(1) and article 24(2) and submit that the additional words 'whether under this Convention or in contract or in tort or otherwise' are a clarification of the words 'however founded'. The consequence of this submission by the Claimants is the words 'however founded' in article 24(1) have always borne a meaning which permits claims outside the Convention so that Sidhu was in this sense wrongly decided. In any event, the Claimants submit, the purposive construction applied by Lord Hope in Sidhu was consistent with their contention that Warsaw-Hague MP4 provides a non-exclusive remedy, as the Claimants accept that even a claim brought outside the Convention would still be subject to the same limitation of liability set within the Convention.
  169. The Defendants contend that the Warsaw regime provides a complete liability regime and that the logic of a desire for a uniform interpretation applies equally to Warsaw-Hague MP4 as well as to other versions of the Convention. The travaux préparatoires are uncertain and as regulation 2027/97 and the 1999 Order do not apply to all carriers, only Community air carriers, there cannot be one interpretation for one group in respect of the whole scheme and another interpretation for the rest. The decisions in Sidhu, Morris and El Al provide an insuperable task for the Claimants.
  170. The natural meaning of the words

  171. The additional words in article 24(2) are wide enough to suggest that they permit a claim outside the Convention but their position in the paragraph suggests that they were added in order to clarify or explain 'however founded'. That expression has already been determined by the decision in Sidhu which Morris and El Al approve.
  172. A claimant's advisor might seek through for example ignorance, to bring a claim in contract or in tort rather than under the Convention. Article 24 can be said to state that however the claimant's advisor chooses to found or frame the claim, whether under the Convention or in contract or in tort, it can only be brought 'subject to the conditions and limits set out in this Convention'. An accident is one of the conditions which has to be satisfied before a passenger can establish liability under article 17 (Morris House of Lords para. 70). Article 17 means the same in each of the different versions of the Convention and must therefore be proved under Warsaw-Hague MP4 however the claim is founded. The additional words 'whether under this Convention or in contract or in tort or otherwise' do not point clearly to a remedy outside the Convention. It is necessary to look at the scheme of the Convention and the travaux préparatoires.
  173. The structure of the Convention

  174. On the authority of Sidhu the Convention is intended to be uniform and exclusive of any resort to the rules of domestic law. Uniformity and certainty are required by the Convention. As Lord Hope in Sidhu: -
  175. "The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention. It would lead to the setting alongside the Convention an entirely different set of rules which would distort the operation of the whole scheme." (454)

  176. The carriers would be faced with unlimited liability under diverse legal systems with for example, diverse limitation periods, but could not contract out of such liability by virtue of the Convention. Qantas pointed out that in such circumstances passengers with mental injury, but unable to claim under the Convention because they had not sustained bodily injury, would be able to claim outside the Convention in contract or tort without any limit at all. This is clearly contrary to the scheme and its interpretation in Sidhu and Morris.
  177. For my part I consider that the reasoning of Lord Hope in Sidhu as to the structure and purpose of the Convention applies equally to MP4.
  178. The travaux préparatoires

  179. The Claimants submit that the delegates at the Montreal Conference of 1975 accepted that there were intended to be actions outside the Convention. Thus Israel, Italy, The Netherlands, the United Kingdom and France all expressed themselves in terms consistent with this. I am not satisfied that this is a correct reading of the minutes of the meeting. As the Defendants submit, the meeting was concerned with the 'unbreakability' of limits in relation to cargo claims where there had been intent or recklessness under article 25. The language used by some of the delegates is consistent with the desire to make or keep the Convention exclusive. The Italian delegate speaks of it being possible to bring an action in fault outside the Convention (contrary to Sidhu) but said that it was 'intended to close this gap'. The Netherlands delegate considered that the words 'however founded' had always intended to include actions in tort and it was necessary to prevent 'getting round the Convention'. The United Kingdom delegate said 'therefore, if it were left open to the claimant to escape the provisions of the Convention by basing his action on tort or delict, then one might as well have no Convention at all as far the common law countries were concerned, which might also be true for some other countries.'
  180. I am not satisfied that there is any passage in the travaux préparatoires which clearly and conclusively supports the Claimants' contention that the delegates intended the amended article 24(2) to provide a remedy outside the Convention.
  181. Subsequent practice

  182. No reliance can be placed upon sections 4 and 11 of the Carriage by Air Act 1961 where the words 'whatever the nature of the proceedings' are used (section 4) and 'including liability to such persons as are entitled, apart from this Act, to sue the carrier' (section 11 relating to Fatal Accident Act claims in Scotland). Lord Hope in Sidhu said that the wording of this statute could not assist one way or the other as what the court is concerned with is the meaning to be given to the Convention based upon its wording and structure. This is the approach to construction which should therefore be followed.
  183. The distinction between Community carriers and non-community carriers has altered the uniformity with which the Warsaw Convention can be applied to different carriers in different jurisdictions. Thus in respect of claims for personal injury, wounding or death the 1999 Order deprives a Community carrier of the defence available under article 20 for claims below 100,000 Special Drawing Rights, prevents the defence of contributory negligence under article 21 in all circumstances and renders inapplicable the limits of liability under article 22(1). As a consequence the liability of a Community carrier may be different depending upon where it is sued and whether the country in which it is sued applies the distinction between Community air carriers and non-community air carriers or not.
  184. The Claimants are right to say that the speech of Lord Hope in Sidhu placed emphasis upon the importance of uniformity and the application of the Convention rules generally to all cases in which a claim was made against the carrier. (446) Nevertheless the Convention is still applied across national and legal boundaries and the need for uniformity in my judgment remains. Article 17 remains the same in all versions of the Convention and the requirement of an 'accident' is still present in the Montreal 1999 draft which is not yet in force.
  185. It is perhaps inevitable that there will be some difference of interpretation in different jurisdictions even of a uniform code. Thus it is noted in Sidhu that there are conflicting decisions in the United States as to exclusivity at first instance, and a French decision at first instance (Ismail. A. Mohammed v British Airways plc unreported 8 November 1995) in which the court found that a claim outside the Convention could be brought under French Law. The need to strive for unanimity and certainty however remains and as a survey of the leading authorities demonstrates, has, to substantial extent been achieved. Many air carriers are not Community air carriers. Thus for example, air carriers from China, America, The Far East, Australia or Russia are not affected by EC regulation 2027/97 or the 1999 Order. The existence of different regulations governing Community carriers on some aspects of the Warsaw Convention does not justify abandoning the need for unanimity and certainty for all carriers in the world.
  186. The English and foreign authorities as to exclusivity

  187. The authorities are in my judgment decisive on this issue as far as this Court is concerned. Sidhu did not apply to Warsaw-Hague MP4 but to the earlier version of the Warsaw Convention. Nevertheless its reasoning is, as I have set out above, applicable equally to Warsaw-Hague MP4. There is no significant difference between article 24 under Warsaw-Hague and article 24 under Warsaw-Hague MP4. The structure of the Convention upon which the decision in Sidhu is based remains the same. Furthermore Sidhu has been applied by the House of Lords since Warsaw-Hague MP4 came into being. In Morris in the House of Lords Sidhu was expressly adopted and Lord Steyn described the Warsaw Convention as 'an exclusive code of limited liability of carriers to passengers.' (para.l5). In Fellowes (Herd) the Convention was held to be exclusive in relation to the non-international rules. (534, 552, 555).
  188. Sidhu has also been approved by the Supreme Court in El Al Israel Airlines v Tseng (1999) 525 US 155 which expresses the view that article 24 as set out in Warsaw Convention 1929 clarifies but does not alter the Convention's rule of exclusivity. (175). The Supreme Court in the case of Tseng was concerned with article 24 in the Warsaw Convention 1929 but by the time the matter came before the court Montreal Protocol Number 4 had been ratified by the Senate in September 1998. Both parties agreed that under the amended article the treaty precluded passengers from bringing actions under local law when they could not establish air carrier liability under the treaty. The defendant carrier urged, and the Supreme Court agreed that the revised article 24 merely clarified and did not alter the rule of exclusivity. It is clear from both the text and footnote 15 that the Supreme Court gave consideration to the full text of article 24 as amended by Warsaw-Hague MP4.
  189. It is therefore established in the United States that under the Warsaw Convention 1929 and Warsaw-Hague MP4 recovery for a personal injury suffered on board an aircraft or in the course of any of the operations of embarking or disembarking, if not allowed under the Convention, is not available at all. If a different rule applied to Community carriers the benefits of uniformity and certainty which the Convention provide would gradually be lost. As the Supreme Court said in El Al: -
  190. "Recourse to local law, we are persuaded, would undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster." (161)

  191. At page 169 the Supreme Court said: -
  192. "Given the Convention's comprehensive scheme of liability rules and its textual emphasis on uniformity, we would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, non-uniform liability rules of the individual signatory nations."

  193. The Supreme Court noted that many international air carriers at the time of the drafting of the Warsaw Convention in 1929 were endeavouring to require passengers, as a condition of air travel, to relieve or reduce the carrier's liability in the case of injury. As part of the compromise between the interests of air carriers and their customers worldwide article 23 denied the carriers the contractual prerogative to exclude or limit their liability for personal injury. If the Convention were to be construed as permitting recovery under local law anomalies would be produced: -
  194. "Carriers might be exposed to unlimited liability under diverse legal regimes, but would be prevented, under the treaty, from contracting out of such liability. Passengers injured physically in an emergency landing might be subject to the liability caps of the Convention, while those merely traumatised in the same mishap would be free to sue outside of the Convention for potentially unlimited damages." (171)

  195. The Supreme Court feared that a remedy at local law would encourage 'artful pleading' by claimants seeking to opt out of the Convention's liability scheme when local law promised recovery in excess of that prescribed by the treaty. 'Such a reading would scarcely advance the predictability that adherence to the treaty has achieved world wide.'
  196. The cases of Morris and Sidhu are binding upon me. It is, as Lord Hope said in Sidhu, at first sight unattractive for a claimant to be left without a remedy. It is contrary to the common law approach that where there is a wrong there must be a remedy. But the limits of liability and the conditions under which claims to establish it have to be made are set out in the Convention. As Lord Hope says the balance was struck in the interests of certainty and uniformity. (453). When Lord Steyn said that it was not necessarily right to approach the meaning of 'bodily injury' in article 17 through the spectacles of 'full corrective justice' (Morris paragraph 15) his language was apt to cover the whole of article 17 not just the reference to bodily injury.
  197. I find the reasoning in Sidhu and El Al to be convincing and unaffected by the Claimants' submissions. I conclude that Warsaw-Hague and Warsaw-Hague MP4 provide exclusive and sole remedies to a passenger who suffers injury on board an aircraft or in the course of any of the operations of embarking or disembarking.
  198. I turn now to the impact of the Human Rights Act 1998 upon the Warsaw Convention.
  199. III THE APPLICATION OF THE HUMAN RIGHTS ACT 1998 AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLES 6(1) AND 8.

  200. The questions which arise are firstly whether the Warsaw Convention as enacted by the Carriage by Air Act 1961 is primary legislation to which section 3(1) of the Human Rights Act 1998 applies, secondly whether the ECHR applies to the interpretation of international conventions, thirdly whether article 6(1) and 8 are engaged, and if so whether they are breached, fourthly whether article 17 as I have interpreted it, is incompatible with section 3 HRA or article 6(1) and 8 of ECHR, or legitimate, proportionate and within the margin of appreciation.
  201. The Submissions

    The Claimants submissions

  202. The Claimants submit that the Warsaw Convention is primary legislation because it is enacted by a schedule to the Carriage by Air Act 1961 and has the force of law. J H Raynor Ltd v Department of Trade [1992] AC 418, 500, The Hollandia [1982] QB 872, 885E and R v Secretary of State ex-parte IATA [2000] 1 Lloyds Rep 242, 244. Mr Cakebread submits that these authorities also demonstrate that the ECHR does apply to an international treaty so incorporated into United Kingdom law since the HRA became law. Sidhu he submits, was decided before the Act came into force and is not relevant to primary legislation under section 3(1).
  203. Article 6(1) and 8 are both engaged the Claimants submit, article 6(1) because article 17 operates as a procedural bar to the Claimants access to a fair trial and article 8 in that the Claimants physical integrity is not protected unless they have the right to protect that integrity by way of access to the courts to claim damages. Pinder v United Kingdom [1985] 7 EHRR 464 demonstrates the width of article 6(1) and Matthews v Ministry of Defence [2002] 1 WLR 2621 upon which the Defendants and Qantas rely is to be distinguished.
  204. There has been a denial of access to the courts as the Claimants have been prevented from having the case determined on its merits, Mr Cakebread submits. Hence there is a breach of both article 6(1) and 8. The Claimants contend there is an exclusionary rule in this case which excludes them from enjoying specific ECHR convention rights.
  205. Section 3(1) of the HRA requires that 'so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.' The Defendants' interpretation of article 17 is incompatible but it is linguistically possible to construe article 17 so that the word 'accident' includes culpable acts or omissions, which will then render it compatible under section 3(1). Alternatively if it is not possible to construe article 17 as compatible with article 6(1) and 8, then section 3 requires article 17 of the Warsaw Convention to be construed as non-exclusive so to give effect to article 6(1) and 8 rights.
  206. The Defendants submissions

  207. The Defendants submit that the Warsaw Convention is an international treaty obligation and not primary or subordinate legislation. The ECHR has no relevance to the construction of the Warsaw Convention as it does not affect international conventions. (Sidhu 443) No question of compatibility arises and the section 3 obligation does not therefore apply. Qantas make no submissions as to whether the Warsaw Convention is primary legislation but rely upon the pre HRA dicta in Sidhu.
  208. Article 6(1) is concerned with procedural rights and does not give any substantive right to compensation Mr Lawson, on behalf of the Defendants, submits. Article 17 does not provide a procedural bar to the Claimants' claims as properly interpreted, but a substantive bar. Article 6(1) is therefore not engaged. As to article 8 it is not applicable in a case of personal injury sustained during the course of international air travel as this is not concerned with a claimant's private or family life. In any event, Mr Thanki submitted, article 8 is parasitic on the article 6(1) argument as the Claimants rely upon it in order to provide access to a court.
  209. The Defendants and Qantas submit that there is no denial of a fair public hearing by an independent and impartial tribunal as this hearing and any appellate process provides that.
  210. The Defendants' interpretation of article 17 is compatible with articles 6(1) and 8 of the ECHR. The Defendants' interpretation is legitimate, proportionate and within the margin of appreciation.
  211. No HRA point was taken by the parties or raised by the court in Morris in the House of Lords. Had it been relevant it would have been raised and dealt with.
  212. (i) Primary legislations

  213. Section 3(1) of the HRA provides: -
  214. "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights."

    The section applies to primary and subordinate legislation whenever enacted. Primary legislation is defined in section 22 as meaning any public general Act, certain orders in council and 'includes an order or other instrument made under primary legislation...to the extent to which it operates to bring one or more provisions of that legislation into force..'. Subordinate legislation means any order in council other than an order in council which constitutes primary legislation.

  215. The general principles of interpretation of an international treaty incorporated into our law are well established. As Lord Scarman said in Fothergill 'international currency of the Convention must be respected, as also its international purpose. The Convention should be construed on broad principles of general acceptation.' The fact that a treaty so incorporated into our law retains its international character for the purposes of interpretation does not determine whether or not it amounts to primary legislation under the Human Rights Act.
  216. The Warsaw-Hague and Warsaw-Hague MP4 Conventions are incorporated into English law by the Carriage by Air Act 1961. It is an indirect enactment of the Convention which is set out in full in a schedule to the Act and given the 'force of law'. It has been held that where a convention is so incorporated the effect is to imbue it with the character of a statutory enactment. (The Hollandia [1982] QB 872, 885). Mr Lawson on behalf of the Defendants argues that a treaty still remains a treaty even though it has the coercive force of law and the fact that it does not become subject to domestic rules and interpretation, but retains its own international rules as autonomous concepts, means that it remains a distinct entity and does not itself become primary legislation. It is only the enabling legislation, that is the 1961 Act and the 1967 Order which constitute primary or subordinate legislation.
  217. I am not satisfied that Mr Lawson's argument is correct. Even where, as here, there is an indirect enactment of a treaty, the presence of that treaty in a schedule of the Act makes it part of that Act and hence itself primary legislation. It matters not that primary legislation is not defined in the Human Rights Act so as to specifically include international treaties. Nor is pre Human Rights Act authority relevant to whether or not the legislation is primary.
  218. I note also that primary legislation includes an order or other instrument made under primary legislation to the extent to which it operates to bring one or more provisions of that legislation into force. This reinforces my view that an international treaty incorporated into our law in a schedule to a public general Act is itself primary legislation.
  219. (ii) The relevance of the ECHR to the interpretation of international conventions

  220. The Defendants submit that even if the Warsaw Convention is primary legislation the ECHR still has no bearing on the interpretation of international conventions because no question of compatibility arises. This submission is based upon Sidhu (443) and is supported by Qantas. In relation to the ECHR Lord Hope in Sidhu said: -
  221. "(vi) European Convention of Human Rights

    Mr Clive Nicholls for the plaintiffs submitted that it would be inconsistent with the obligations of the United Kingdom under various articles of the European Convention of Human Rights if a construction were to be placed on article 17 of the Warsaw Convention which excluded the claim which they were seeking to make in this case. Your Lordships had no hesitation in rejecting that argument. The provisions of the European Convention have no bearing on the interpretation of international conventions such as the Warsaw Convention on carriage by air - and there are many other examples - which are concerned with commerce between countries and which seek, by a process of compromise, to achieve uniformity across international frontiers in the application of trade law.

    It must also be observed that, while some parties to the Warsaw Convention are parties to the European Convention of Human Rights, some, notably the United States of America - are not. We cannot assume that the principles expressed in the European Convention are common to all those countries who are parties to the Warsaw Convention. Thus we would risk introducing an element of distortion into the debate, in conflict with the broad aim of uniformity of interpretation between states, if we were to rely on the European Convention as an aid to the construction of the Warsaw Convention in the present case. In T v Secretary of State for the Home Department [19961 AC 742, 779A, Lord Lloyd of Berwick said that in a case concerning an international convention it was obviously desirable that decisions in different jurisdictions should, so far as possible, be kept in line with each other. As the editors of Dicey & Morris, The Conflict of Laws, 12th ed (1993), vol 1, p 9, observe:

    "The purpose of an international convention is to harmonise the laws of all contracting states on the particular topic dealt with by the Convention. It is therefore very important that the interpretation of the Convention should be the same, so far as possible, in all the contracting states"."

  222. The Claimants submit that as Lord Hope's speech was pre Human Rights Act and in conflict with the requirement under section 3, the court must now read and give effect to primary legislation in a way which is compatible with the ECHR rights. The House of Lords decision in Sidhu on the applicability of the ECHR can no longer be applied to those cases in which an international treaty is primary legislation under section 3 of the Human Rights Act.
  223. In Francis Bennion, Statutory Interpretation 4th Edition it is said that: -
  224. "Treating the desirability of honouring Convention rights as one of the recognised interpretative criteria is not new in British law. The result of section 3(1) of the 1998 Act is simply to give this particular interpretative criterion added weight."

    The wording of section 3(1) however makes it obligatory for the court to read and give effect to primary legislation in a way which is compatible with the ECHR and unless all international treaties are to be regarded as outside the definition of primary legislation it is not possible to regard the interpretation of an international treaty which is primary legislation as being the same as after the Human Rights Act came into force, as it was before.

  225. I do not accept Mr Lawson's submissions that the ECHR still has no bearing on the interpretation of international conventions. If the international convention in question is enacted in such a way that it is primary legislation under section 3(1) of the 1998 Act its compatibility with the ECHR is relevant and must be considered. The views expressed by Lord Hope on the relevance of ECHR to international conventions are relevant on the issue of compatibility which I deal with later in this judgment.
  226. (iii) Are articles 6(1) and 8 engaged and if so breached?

    (a) Engagement

  227. Article 6(1) provides that: -
  228. "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."

    The right of access to a court has been held to be inherent in article 6(1). In Golder v United Kingdom [1975] 1 EHRR 524 the Strasbourg Court said: -

    "The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally recognised 'fundamental principles of law'; the same is true of the principle of international law which forbids the denial of justice. Article 6 para.1 must be read in the light of these principles."

  229. The right of access to a court is recognised in the English courts as a constitutional right. Raymond v Honey [1983] 1 AC 1. It is however, clearly established that article 6(1) does not provide a substantive remedy. It is concerned with procedural fairness and does not control the content of a states' substantive domestic law. Procedural rules such as those dealing with the admissibility of evidence, burden of proof, manner of proof and limitation of actions are examples of procedural rules which are subject to the requirements of article 6. Rules which determine the rights and liabilities that arise under civil law are however not procedural rules but rules of substantive law. Article 6 has no impact on such rules at all as whether a civil right exists is a matter of the substantive law of the contracting states, (Matthews v Ministry of Defence [2002] 1 WLR 2621, 2632 para. 34, 35, 36, Human Rights Law and Practice [1999] paragraphs 4.6 1 and 4.6 5, Powell and Rayner v United Kingdom [1990] 12 EHRR 355 paragraph 36 and Fayed v United Kingdom [1994] 18 EHRR 393 at paragraph 65).
  230. The Claimants seek to rely upon Pinder v United Kingdom [1985] 7 EHRR 464 as supporting a wider view of article 6(1), and also seek to distinguish Matthews on the grounds that article 8 is not parasitic on article 6(1) whereas article 14 which was referred to in Matthews is parasitic. Whilst it is correct that the Commission in Pinder noted that removal of the jurisdiction of the courts altogether or limiting it beyond a certain point could amount to the exercise of arbitrary power and be an abuse of article 6(1), it reaffirmed that the Convention could not create by way of interpretation of article 6 a substantive right which had no legal basis whatsoever in the state concerned.
  231. I see no proper basis upon which Matthews can be distinguished from the present case in so far as it deals with article 6(1) and I agree with the comments in Matthews on the case of Pinder.
  232. It is, sometimes difficult to distinguish between procedural and substantive rules or limitations. (Fayed para 67 and Matthews para. 37) On the facts of this case however there can be no doubt that article 17 limits a passenger's right to sue by way of substantive rule rather than procedural bar. On my interpretation of article 17 the Claimants cannot on the agreed matrix of fact establish an essential condition of liability, namely that an accident within the meaning of article 17 has occurred. Whether the conditions necessary to establish the existence of a civil right are satisfied is a matter of substantive law.
  233. It follows therefore that article 6(1) is not engaged. The right of access to a court is limited by the substantive provision of article 17 rather than by any procedural bar.
  234. Article 8 is the right to respect for private and family life. It provides that: -
  235. "(1) everyone has the right to respect for his private and family life, his home and his correspondence.

    (2) there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the protection of disorder or crime, the protection of health or morals, or for the protection of the rights and freedoms of others."

  236. In Stubbings & others v UK [1996] 23 EHRR 213 it was said that the concept of 'private life' covered the physical and moral integrity of the person. (See also X & Y v The Netherlands [1985] 8 EHRR 235 paragraph 23) In Stubbings at paragraph 62 the court said:-
  237. "It is to be recalled that although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does merely compel the state to abstain from such interference: there may, in addition to this primary negative undertaking, be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves." (See also X & Y paragraph 3).

  238. The applicants in Stubbings had been sexually abused when children. It was only when they became adults that they realised the psychological damage that this had caused by which time their claims were time barred. The court held that the applicants were entitled to state protection in the form of effective deterrents from such grave types of interference and that such protection was afforded by the domestic criminal law. The court continued: -
  239. "In principle, civil remedies are also available provided they are sought within the statutory time limit. .. article 8 does not necessarily require that states fulfil their positive obligation to secure respect for private life by the provision of unlimited civil remedies in circumstances where criminal law sanctions are in operation." (paragraph 66).

  240. The court therefore concluded that in view of the protection afforded by the domestic criminal law against the sexual abuse of children and the margin of appreciation allowed to states in these matters there had been no violation of article 8 of the ECHR.
  241. The Claimants contend that their physical integrity was effected by the Defendants' culpable acts or omissions and in these circumstances they also are entitled to state protection by the giving of an effective remedy in the courts to claim damages. The Defendants however submit that article 8(1) does not guarantee a right to an individual to a civil remedy against a third party alleged to have caused injury or death during the course of a social or commercial interaction outside the home. They rely upon the cases of Costello Roberts v United Kingdom [1993] 19 EHRR 112 where the administering of corporal punishment on a seven year old boy by the headmaster of a preparatory school was held not to have been a violation of article 8 and Botta v Italy [1986] 26 EHRR 241 where a failure to provide disabled access to private beaches was held not to be a violation of article 8.
  242. These cases concern matters more minor than serious physical injury in some instances leading to death and can be distinguished on their facts. It is, however, difficult to see how the failure to provide a civil remedy in respect of injury arising out of an international flight, can properly be described as an interference by a public authority with the exercise of an individual's private or family life under article 8(2).
  243. If the state is called upon to offer the protection of a civil remedy in such circumstances it could be required to do so in respect of injuries sustained anywhere in the world, when, for example, a passenger was embarking or disembarking at a foreign airport.
  244. I do not consider article 8 apt to cover such a situation, nor am I persuaded that in such circumstances article 8 requires a state to provide a civil remedy. I therefore conclude that article 8 is not engaged.
  245. (b) Breach

  246. The question of breach does not strictly arise in view of my finding that neither article 6(1) nor article 8 is engaged, but I should nevertheless add that were I to be wrong in those findings it seems to me clear that there has in any event been no breach of either of those articles.
  247. In Lithgow v United Kingdom [1986] 8 EHRR 329, para. 194 it was said that the right of access secured by article 6(1) is not absolute but may be subject to limitations. The court must be satisfied that the 'limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired'.
  248. The Claimants submit that this is what has occurred here as they have been deprived of a hearing on the merits of their claim. I am not satisfied however that this is so. The hearing before this Court has been upon the basis of an agreed matrix of fact. The matter has been frilly argued by all parties and full consideration given to the interpretation of article 17 and whether, as the Claimants contend, a culpable act or omission by a carrier can amount in itself to an accident within the meaning of that term in article 17, as well as to the exclusivity of the Warsaw Convention and the impact of the HRA upon it.
  249. It has 'been held that provided the applicable domestic legal principles have been fully and properly considered, it matters not that the hearing of them was a preliminary hearing without a hearing on the facts. Z & others v United Kingdom [2002] 34 EHRR 97.
  250. The question is whether the Claimants have had a 'fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'. I am satisfied that this is so and in reaching that conclusion do not disregard the fact that it is inevitable in a case such as this that the same issues will be heard by an appellate court.
  251. As Mr Thanki on behalf of Qantas submitted, if the Claimants were right in their submissions any party who had lost an action would be able to make a claim under article 6(1) for lack of access. In Mowan v Wandsworth LBC [2001] 33 HLR 56, paragraph 24, Sir Christopher Staughton said in dealing with a similar argument 'a more glorious doctrine for claimants would be difficult to imagine.'
  252. Mr Thanki adds that if the Claimants' argument was correct and 'mental injury' was substituted for 'DVT' the Claimant's approach would overrule the House of Lords in Morris.
  253. (iv) Incompatibility and proportionality

  254. I have found that article 6(1) and 8 are not engaged, and even if they had been, there has been no breach. I have however considered the question of compatibility both upon the premise that my conclusions in respect of articles 6(1) and 8 may be wrong and in any event in relation to section 3(1) of the Human Rights Act 1998 as applied to primary legislation, as I have found the Warsaw Convention to be.
  255. I conclude that my interpretation of the Warsaw Convention and in particular articles 17 and 24 is not incompatible with articles 6(1) and 8 of the ECHR. The Warsaw Convention was, and remains, an international agreement between contracting states reached by a process of compromise between the interests of passengers and carriers, to achieve 'uniformity across international frontiers in the application of trade law.' (Sidhu 443). The agreement provides significant benefit to passengers worldwide by establishing a form of strict liability which renders unnecessary the burden of investigating and proving issues of fault by the passenger, and prevents the carrier from contracting out of his liabilities.
  256. These distinct advantages apply across legal, and national, boundaries to passengers from all contracting states. In return for these advantages the carriers were able to have limits set to their liability and clarity in the conditions which the passengers had to satisfy in order to establish that liability. As was said in Sidhu by Lord Hope (453) 'a balance was struck, in the interests of certainty and uniformity.'
  257. It was in my judgment legitimate and proportionate for a state to negotiate that balance. It strikes a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. (See Sporrong & Lonroth v Sweden [1982] 5 EHRR 35 at paragraph 69).
  258. If the Claimants were to succeed in their submission the balance negotiated and renegotiated at successive air law conferences by the many contracting states would be altered. The uniformity striven for would be lost as those states which are not signatories to the ECHR such as the United States of America, China, Russia and numerous others would be subject to different rules. It is probable that there would be many actions based on the diverse rules of tort or contract in many different states. If, as Mr Thanki submits, the non-exclusivity of the Convention were to be permitted, the whole purpose of the Convention would be undermined and the system would merge into the common laws of the various different local jurisdictions.
  259. The balance struck by the contracting states between passengers and carriers to avoid these problems was appropriate and necessary and remains so now. It is in my judgment not disproportionate that the system imposes conditions of liability which leaves some Claimants without a remedy because they are unable to prove that an accident has taken place (for example Saks) or that they have sustained a bodily injury (for example Morris).
  260. I conclude therefore that my interpretation of the Warsaw Convention and in particular articles 17 and 24 is compatible with articles 6(1) and 8.
  261. I come to the same conclusion when applying section 3(1) to the Warsaw Convention which I have found to be primary legislation. My interpretation of the Warsaw Convention is compatible with convention rights and does not therefore require the Convention to be construed as non-exclusive in order to give effect to ECHR rights.
  262. I reach these conclusions having weighed in the balance the fact that the Claimants may be denied compensation in respect of serious or even fatal injuries. The uniformity and certainty provided by the Warsaw Convention however provides benefit to millions of individuals not just carriers. The Warsaw Convention represents a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights even though it may cause hardship in some individual cases.
  263. It should be noted that no Human Rights issue was raised in the case of Morris nor was the effect of the HRA considered by either the Court of Appeal or the House of Lords. This is not simply a matter of what the parties chose to argue as section 6 of the Human Rights Act 1998 makes it unlawful for a public authority, including a court, to act in a way which was incompatible with a Convention right. (Cachia & others v Faluyi [2001] 1 WLR 1966.) It would appear that neither the appellate courts nor the parties thought that the Human Rights Act 1998 was relevant to the construction of the term 'bodily injury' in article 17 of the Warsaw Convention.
  264. IV THE ALTERNATIVE CLAIM UNDER EC REGULATION 2027/1997

  265. The claims of four Claimants on the group register are prima facie time barred by article 29 of the Warsaw Convention which stipulates the time limit of two years for the bringing of the claim from the date of arrival at the destination.
  266. Dr Cala represents these four Claimants and submits that article 29 is not applicable in their cases as they have an alternative claim against the carriers they sue under EC Regulation 2027/97. This, he submits, provides a separate cause of action to the Warsaw Convention and is not subject to the time limit of two years but the ordinary time limits under the Limitation Act 1980 as amended. This would result in the claims being within the appropriate time limits.
  267. The basis upon which Dr Cala makes this submission is that Regulation 2027/97 has modified the liability regime of air carriers from a fault based system of liability under the Warsaw Convention to a system of strict liability where the carriers cannot avail themselves of any defence under article 20 of the Warsaw Convention.
  268. Regulation 2027/97 was implemented in the United Kingdom by the Air Carriers Liability Order 1998 (SI 1998 No. 1571) and came into force in the United Kingdom on 17 October 1998. It was passed unanimously.
  269. The Regulation removes, as far as Community air carriers are concerned, the financial limits under article 22(1) of the Convention, the defence of contributory negligence under article 21 and the defence enabling a carrier to escape liability if he can establish that he has taken all necessary measures under article 20, save in respect of claims in excess of 100,000 Special Drawing Rights. This is set out in article 3 of Regulation 2027/97 which was brought into effect here by way of negative amendment to section 1(1) of the Carriage by Air Act 1961 declaring by virtue of new section 1A that articles 21 and 22(1) and article 20 up to 100,000 SDR 'do not have the force of law in the United Kingdom.'
  270. Article 5 of Regulation 2027 requires the Community air carrier to make advance payments to a person entitled to compensation to meet immediate economic needs on a basis proportional to the hardship suffered. Such advance payment does not constitute recognition of liability, may be offset against any subsequent sum paid on the basis of a Community air carriers liability, and is non-returnable save in limited circumstances.
  271. A Community air carrier is defined as an air carrier with a valid operating licence granted by an EC Member State in accordance with the provisions of EC Regulations. A non Community air carrier operating to, from or within the Community who wishes not to be bound by the provisions of article 3 and article 5 of Regulation 2027 has to inform passengers of his intentions not to be so bound before they purchase their tickets, if they do so in an EC member state.
  272. Dr Cala submits that an examination of the wording of the preamble to the Regulation, in particular Recital (7), its purpose, and its articles 3, 5 and 6 demonstrate that this Regulation was intended to be and should be construed as a free standing Regulation providing an alternative cause of action to the Warsaw Convention. This, Dr Cala submits is confirmed when subsequent EC Regulations are considered. Thus EC Regulation number 889/2002 enacted on 30 May 2002 but not yet in force and EC Regulation number 1592/2002 both demonstrate the legislative intentions of 2027/97. The Proposal for a Council Regulation C.320 28/10/1996 0030 also demonstrated the intention to make the Regulation binding.
  273. The fact that article 22(1) of Warsaw-Hague MP4 permits the carrier and the passenger to agree a higher limit of liability is relevant. Dr Cala submits that if the carrier's liability can be increased by agreement the carrier's liability can also be imposed by domestic law.
  274. The Defendants submit that Regulation 2027/97 does not provide an alternative basis for claim. In the alternative they submit on the authority of R v Secretary of State for the Environment, Transport and the Regions ex-parte IATA [2000] 1 Lloyds Rep 243, that the Regulation is suspended. The Regulation does no more than prevent Community air carriers from relying upon the financial limits of liability in article 22(1) of the Warsaw Convention or to rely upon the defence contained in article 21 or the defence in article 20 up to the ECU equivalent of 100,000 SDR in respect of claims for death, wounding or personal injury. The Defendants rely upon the wording of the Regulation itself and the manner in which it was given effect in English law. There was no intention to replace the Warsaw Convention or amend it or give an alternative basis of claim. The Regulation was not produced by delegates at the Warsaw Convention but by the unilateral act of a limited number of states, namely those which are EC member states. Articles 1, 17, 24 and 29 of the Warsaw Convention remain, upon any basis, unaffected by the Regulation. The requirement of 'accident' is not removed but still extant and the Regulation only applied to Community air carriers. Non-community air carriers only have an obligation to inform their passengers at the time of purchase of the ticket if they do not wish to comply with articles 3 and 5 of the Regulation.
  275. EC Regulation 2027/1997

    The preamble

  276. The relevant recitals are as follows: -
  277. "(1) Whereas, in the framework of the common transport policy, it is necessary to improve the level of protection of passengers involved in air accidents;

    (2) Whereas the rules on liability in the event of accidents are governed by the Convention….signed at Warsaw signed on 12 October 1929,…as amended at The Hague.. and.. Guadalajara, which ever may be applicable each being hereinafter referred to as applicable, as the Warsaw Convention; whereas the Warsaw Convention is applied worldwide for the benefit of both passengers and air carriers;

    (3) Whereas the limit set on liability by the Warsaw Convention is too low by today's economic and social standards and often leads to lengthy legal actions which damage the image of air transport;

    (4) Whereas as a result member states have variously increased the liability limit, thereby leading to different terms and conditions of carriage in the internal aviation market;

    (5) Whereas a full review and revision of the Warsaw Convention is long overdue and would represent, in the long term, a more uniform and applicable response, at an international level, to the issue of air carrier liability in the event of accidents;

    (6) Whereas efforts to increase the limits of liability imposed in the Warsaw Convention should continue through negotiation at multi-lateral level;

    (7) Whereas it is appropriate to remove all monetary limits of liability within the meaning of article 22(1) of the Warsaw Convention or any other legal or contractual limit, in accordance with present trends at international levels;

    (8) Whereas, in order to avoid situations where victims of accidents are not compensated, Community air carriers should not, with respect of any claim arising out of death, wounding or other bodily injury of a passenger under article 17 of the Warsaw Convention, avail themselves of any defence under article 20(1) of the Warsaw Convention up to a certain limit;

    (13) Whereas.. in order to reduce the risk of distorting competition third country carriers should adequately inform passengers of their conditions of carriage;

    (15) Whereas the International Civil Aviation Organisation is at present engaged in a review of the Warsaw Convention; whereas, pending the outcome such review actions on an interim basis by the Community will enhance the protection of passengers; whereas the Council should review this Regulation as soon as possible after the review."

  278. The relevant articles of the Regulation are article 1 which refers to the regulation laying down the obligations of Community air carriers in relation to liability in the event of accidents to passengers, article 2 which defines amongst other things Community air carriers, article 3 which removes reliance on articles 20, 21 and 22(1) and deals with carrier's insurance, article 5 which deals with advance payment, article 6(3) which deals with the obligation of non-community air carriers not wishing to be bound by articles 3 and 5 having to give notice of that fact at the time of purchase of the ticket and article 8 which declares the regulation to be binding in all member states.
  279. The EC Parliament Opinion on the proposal for the Regulation

  280. Recital 8 before the European Parliament vote was: -
  281. "It is appropriate to remove all limits of liability in the event of death, wounding or any other bodily injury suffered by a passenger."

    Recital 8 after the European Parliament vote was: -

    "The waiving of the limitation of liability on recoverable compensatory damages under article 22 of the Warsaw Convention and similar limitations in national laws in the event of death, wounding or any other bodily injury suffered by a passenger is consistent with the relatively low risk factor involved in modern air transport and has been recognised in the IATA Intercarrier Agreement on Passenger Liability of 31 October 1995."

    Recital 11 after the European Parliament vote was: -

    "Persons entitled to compensation should have the benefit of legal clarity in the event of an accident...they should be fully informed beforehand of the applicable rules…it is necessary to avoid lengthy litigation or claims processes."

  282. The carrier was obliged by article 3 to insure up to the limit of his liability of ECU equivalent of 100,000 SDR. Dr Cala submits that this is relevant to the fact that strict liability was being imposed by the Regulations. That strict liability, Dr Cala submits, can be avoided under article 3(3) wholly or in part if the carrier can prove contributory negligence. This is not however consistent with section 1A(b) of the carriage by Air Act 1961 amended by the Air Carrier Liability Order 1998 which states that the defence of contributory negligence under article 21 does not have the force of law in the United Kingdom.
  283. The interpretation of the Regulation

  284. The purpose of the Regulation was, as Dr Cala submits, to give better protection to passengers. It is however clear from article 1 that the Regulation applies to Community air carriers. In so far as non-Community air carriers are concerned the Regulation simply 'sets down some requirements on information to be provided by air carriers established outside the Coimmunity which operate to, from or within the Community' ('article 1). That requirement is set out in article 6(3), which does not impose any sanction upon the non-Community air carrier for non-compliance. Dr Cala submitted that if either the Community air carrier or the non-Community air carrier failed to give the appropriate information at the point of sale under article 6 the contract would not be void but the carrier could not rely on exclusion terms such as time limits. The passenger could therefore rely on the common law time limit and would not be bound by the two-year limit in article 29 of the Warsaw Convention. He conceded that there was nothing in the Regulation to support this but said that if the obligation under the Regulation is mandatory and the carrier fails to comply, he should not be entitled to rely upon exclusionary clauses. There is however nothing in the Regulation to exclude or limit the operation of article 29 in the Warsaw Convention. Furthermore the information which has to be given at the point of sale relates to articles 3 and 5 of the Regulation and neither of those concern limitation of action. The argument that article 29 is, by some inferential process, excluded in such circumstances is without merit.
  285. I am satisfied on the basis of article 1, article 6 and a reading of the whole Regulation that it applies and is intended to apply to Community air carriers alone, save in the very limited sense that non-Community air carriers are required to provide information. The fact that it was not a product of discussion by delegates from all contracting states to the Warsaw Convention but passed as a unilateral act by EC member states alone, and applied almost entirely to EC member states alone suggests that it was not intended to replace the Warsaw Convention or amend it. The fact that the Regulation makes no reference to article 1, 24 or 29 of the Warsaw Convention tends to confirm this and it is clear from its Recital 8 that article 17 of the Warsaw Convention still applies. That fact is contrary to Dr Cala's submission that the Regulation seeks to replace a fault based system of liability with a new system of strict liability. That cannot be so when the extant basis of liability under the Warsaw Convention namely article 17, remains unaltered.
  286. The natural meaning of the wording of the Recital relied upon by Dr Cala in Recitals 5 and 7 give him no assistance. Recital 5 refers to a long overdue review, which has not been concluded at the time and Recital 7 relates to monetary limits under article 22(1). The reference in Recital 7 to 'or any other legal or contractual limit' demonstrates, Dr Cala submits, that the Regulation is not intended to be restricted to altering the monetary limits. If that was so it would not make the reference to other legal or contractual limits. As the Defendants submit, these words may be intended to cover domestic as well as international carriers, as the Warsaw Convention applies to the non-international rules as well as to international carriage. In any event the presence of the words 'any other legal or contractual limit' do not bear the interpretation Dr Cala seeks to place upon them. They are insufficiently clear. The submission that the phrase might refer to the limitation period of two years under article 29 of the Warsaw Convention, when there is no other reference to that in the Regulation, is unsustainable.
  287. A general reading of the Preamble however makes it clear that the Warsaw Convention continues unamended. Recital (2) specifically refers to liability in the event of 'accidents' being governed by the Warsaw Convention 1929 as amended, and that that Convention is applied worldwide for the benefit of both passengers and air carriers. Article (5) shows that a review of the Warsaw Convention was long overdue but had not then taken place and Recital 15 makes it clear that the Regulation seeks to enhance the protection of passengers pending that review.
  288. All these references are consistent with the fact that there was no intention to replace or amend the Warsaw Convention by this Regulation.
  289. Articles 1 and 3(1)(a) of the Regulation make it clear that the obligations relating to liability only apply to Community air carriers. The requirement to prove an 'accident' remains and is not redefined in the Regulation.
  290. The argument that this Regulation provides an alternative cause of action to the Warsaw Convention or that it in some manner excludes the operation of article 29 of the Warsaw Convention is contrary to the proper reading of the whole of the Regulation and, in my view, unsustainable.
  291. I have gained no assistance from either the Proposal for the Council Regulation 2027/97 or from Regulation 889/2002 or from Regulation 1592/2002. No clear inference can be drawn from the proposal and I do not find subsequent regulations, enacted but not yet in force helpful in determining what was intended in an earlier regulation. In particular, the fact that the new article 6 proposed in 889/2002 suggests that the deadlines for filing an action should be made known to the passengers does not assist me in the interpretation of Regulation 2027/97. Nor does paragraph 2.C.2 to Annexe 1 of Regulation 1592/2002 throw any light upon what was intended in Regulation 2027.
  292. It does however seem to me that the fact that the Regulation was given effect in English law by a negative amendment to section 1 of the Carriage by Air Act 1961 rather than by an amendment to the Warsaw Convention itself or by any new positive provision, supports the argument that there was no intention to amend the Warsaw Convention itself, or its operation or provide an alternative cause of action to it.
  293. I must therefore reject Dr Cala's submissions. In the circumstances there is no need for me to consider the Defendants alternative submission as to the correctness of the decision in R v Secretary of State ex-parte IATA. For my part I am satisfied that Regulation 2027/97 is valid but I make no finding as to whether Mr Justice Jowitt was correct in ex-parte IATA in saying that whilst valid it was suspended. As the Regulation is valid no reference to the European Court arises.
  294. Conclusions

  295. The agreed factual matrix does not disclose an accident under article 17 of the Warsaw Convention. The definition of accident which is to be applied is that set out by the U.S. Supreme Court in Saks, followed here in the Court of Appeal in Morris, in Chaudhari, and approved by the House of Lords in Morris.
  296. Article 17 does not provide a fault based theory of liability which imposes liability upon the carrier where death or injury is caused by its culpable act or omissions. Nor does a proper construction of the Warsaw Convention lead to the conclusion that it apportioned or reapportioned risks on the basis of a modern risk allocation theory. The balance of risk negotiated by the delegates between the interests of the passengers and the carriers achieves uniformity and certainty. The balance that was struck is set out in the cases of Sidhu and Morris in the House of Lords. The modern risk allocation theory is more suited to ascertaining whether a duty of care in tort exists under domestic law rather than in ascertaining the balance of risk agreed by the delegates at the Warsaw Convention of 1929. Article 17 has remained the same throughout all successive versions of the Convention.
  297. The tests to be applied is 'a simple criterion of causation by an accident'. That is to be defined as: -
  298. "an unexpected or unusual event or happening that is external to the passenger".

  299. The agreed factual matrix does not satisfy this definition. It reveals that no event or happening occurred on the flight which was not ordinary and unremarkable and involved no actions of anyone save for the passenger's reaction to that normal and unremarkable flight. There was no unexpected or unusual event or happening. A culpable act or omission by itself which does not amount to an unusual or unexpected event or happening does not come within the definition of accident.
  300. The Warsaw Convention provides an exclusive cause of action and sole remedy in respect of claims against a carrier arising out of international carriage by air. The cases of Sidhu, in the House of Lords, and El Al, in the Supreme Court, establish that this is so. The different wording of article 24 in Warsaw-Hague MP4 does not alter the exclusivity of the Convention.
  301. The Human Rights Act 1998 and the European Convention on Human Rights articles 6(1) and 8 do not provide the Claimants with a remedy outside the Convention. Whilst the Warsaw Convention is primary legislation under English law my interpretation of article 17 is not incompatible with European Convention rights. Furthermore article 6(1) and 8 are not engaged and in any event there would have been no breach of them had they been engaged.
  302. Regulation 2027/1997 does not amend the Warsaw Convention or provide an alternative cause of action to any Claimant. A proper construction of the Regulation, its Preamble and all other relevant material exclude such an interpretation.
  303. 20th December 2002


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