Abnett v. British Airways plc, (1996) 206 N.R. 211 (HL)

• Case Date: December 12, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 206 N.R. 211 (HL)

Abnett v. British Airways (1996), 206 N.R. 211 (HL)

MLB headnote and full text

Abnett (known as Sykes) (appellant) v. British Airways plc (respondents) (Scotland)

Sidhu and others (A.P.) (appellants) v. British Airways plc

(respondents)

Indexed As: Abnett v. British Airways plc

House of Lords

London, England

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Steyn and Lord Hope of Craighead

December 12, 1996.

Summary:

The Warsaw Convention as amended at The Hague, 1955, as set out in Schedule 1 to the Carriage by Air Act 1961 (U.K.), provides the exclusive cause of action and sole remedy for a passenger who claims against the carrier for loss, injury and dam­age sustained in the course of, or arising out of, international carriage by air. Article 17 of the Convention states that the carrier is liable for damage sustained in the event of the death or injury of a passenger or any other bodily injury suffered by a passenger. In August of 1990, a British Airways (BA) flight made a scheduled refuelling stop in Kuwait in the early hours of the invasion by Iraq. The passengers were captured by the Iraqi Army and taken to Baghdad. Abnett, one of the passengers, was detained by the Iraqi forces for one month. Abnett sued BA in Scotland for damages caused by psycho­logical injury due to the stress resulting from her captivity and the pain of separation from her family. Abnett claimed that BA should have been aware of the hostile situ­ation between Iraq and Kuwait and the pos­sibility that war might break out. Abnett based the action on an implied condition of her contract with BA that they would take reasonable care of their passengers. Abnett made no claim under article 17 of the Con­vention because of the assumption that it did not cover psychological injuries.

The Outer House of the Court of Session, in a decision reported [1996] S.L.T. 529, dismissed the action on the ground, inter alia, that the Convention excluded recourse to any common law remedy. Abnett appealed.

The Extra Division of the Court of Session, in a decision reported [1996] S.L.T. 529, 538-547, dismissed the appeal. Abnett appealed.

The Sidhu family had been held by the Iraqi forces for three weeks. They sued BA in England on the ground of negligence claiming damages for psychological stress and anxiety and possible permanent psycho­logical damage. They made no claim under article 17 of the Convention.

The trial court dismissed the action. The Sidhu family appealed.

The Court of Appeal of England dismissed the appeal. The Sidhu family appealed. Abnett's and the Sidhu family's appeal were heard together. The issue on appeal was whether a passenger who had sustained damage due to the fault of the carrier, but who had no claim against the carrier under article 17 of the Convention, was left with­out a remedy.

In dismissing the appeals, the House of Lords stated that "where the Convention had not provided a remedy, no remedy is avail­able".

Aeronautics - Topic 5061

Airlines - Negligence - General - The Warsaw Convention provides the exclusive cause of action and sole remedy for a passenger who claims against the carrier for loss, injury and damage sustained in the course of, or arising out of, inter­national carriage by air - Article 17 of the Convention states that the carrier is liable for damage sustained in the event of the death or injury of a passenger or any other bodily injury suffered by a passenger - A number of passengers sued an airline for psychological injury which resulted from their captivity by the Iraqi army during the Gulf War - Because the passengers assumed that article 17 did not cover psychological injuries, they sued under the common law in contract and negligence - The House of Lords affirmed the decisions to dismiss the actions on the ground that their only cause of action was under the Convention.

Aeronautics - Topic 5142

Airlines - Carriage of passengers - Actions - Cause of action - [See Aero­nautics - Topic 5061 ].

Aeronautics - Topic 5144

Airlines - Carriage of passengers - Li­ability - Exclusions - [See Aeronautics - Topic 5061 ].

Statutes - Topic 1621

Interpretation - Extrinsic aids - Other statutes - General - An airline defendant claimed that the plaintiffs' sole cause of action was under the Warsaw Convention - The plaintiffs submitted that it would be inconsistent with the obligations of the United Kingdom under the various articles of the European Convention on Human Rights if a construction were to be placed on article 17 of the Warsaw Convention which excluded their claim - The House of Lords rejected the plaintiffs' submission stating that "[t]he provisions of the Euro­pean Convention have no bearing on the interpretation of international conventions such as the Warsaw Convention on car­riage by air ..." - See paragraph 29.

Statutes - Topic 1656

Interpretation - Extrinsic aids - Legisla­tive history - Travaux préparatoires of treaties and conventions - An airline pleaded the Warsaw Convention as a defence - The issue arose as to whether the courts could consider the negotiating history of the Convention, and in particu­lar the minutes of the International Con­ference on Private Aeronautical Law at Warsaw in 1929 - The House of Lords stated that "[i]t is sufficient to say that cautious use may be made of this material, the availability to the public of which is not in doubt. But it will only be helpful if, after proper analysis, it clearly points to a definite intention on the part of the dele­gates as to how the point at issue should be resolved" - See paragraph 26.

Cases Noticed:

Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251 (H.L.), consd. [para. 25].

Grein v. Imperial Airways Ltd., [1937] 1 K.B. 50 (C.A.), dist. [para. 25].

Gatewhite v. Iberia Lineas Aereas de España S.A., [1990] 1 Q.B. 326, dist. [para. 27].

T. v. United Kingdom, [1996] 2 W.L.R. 766; 198 N.R. 174 (H.L.), refd to. [para. 30].

T. v. Secretary of State for the Home Department - see T. v. United Kingdom.

Tasman Pulp & Paper Co. v. Brambles J.B. O'Loghlen Ltd., [1981] 2 N.Z.L.R. 225, refd to. [para. 51].

Air France v. Saks (1985), 470 U.S. 392, refd to. [para. 54].

Eastern Airlines Inc. v. Floyd (1991), 499 U.S. 530, refd to. [para. 54].

Metz v. K.L.M. Royal Dutch Airlines (1979), 15 Avi. 17,843, refd to. [para. 55].

Abramson v. Japan Airlines Co. (1984), 739 F.2d 130, refd to. [para. 55].

Fischer v. Northwest Airlines (1985), 623 F. Supp. 1064, refd to. [para. 55].

Walker v. Eastern Airlines (1991), 23 Avi. 17,904, refd to. [para. 55].

Finkelstein v. Trans World Airlines Inc. (1978), 15 Avi. 17,379, refd to. [para. 55].

Boehringer-Mannheim Diagnostics Inc. v. Pan American Airways Inc. (1984), 737 F.2d 456, refd to. [para. 55].

Statutes Noticed:

Carriage by Air Act, 1961 (U.K.), sect. 1(1), sect. 1(2) [paras. 13, 24]; Schedule 1, Part I, c. I, art. 1(1), art. 1(2) [para. 15]; c. II, sect. 1, art. 3(1)(a), art. 3(1)(b) [para. 16]; art. 3(1)(c) [paras. 16, 35]; c. III, art. 17, art. 18 [para. 18]; art. 19 [para. 7]; art. 20, art. 21, art. 22 [para. 17]; art. 23, art. 24 [para. 18]; art. 25, art. 25A, art. 26, art. 27 [para. 17]; art. 28 [para. 7]; art. 29 [para. 8]; art. 30 [para. 17].

Warsaw Convention, as Amended at the Hague, 1955 - see Carriage by Air Act, 1961 (U.K.), Schedule 1.

Authors and Works Noticed:

De Vos, Henri, Report on the Preliminary Draft of the Warsaw Convention pre­pared by the International Technical Committee of Legal Aeronautical Experts (C.I.T.E.J.A.), generally [para. 45].

Dicey and Morris, The Conflict of Laws (12th Ed. 1993), p. 9 [para. 30].

Mankiewicz, Rene H., The Judicial Diver­sification of Uniform Private Law Con­ventions - The Warsaw Convention's Days in Court (1972), 21 I.C.L.Q. 718, p. 741 [para. 40].

Shawcross and Beaumont, Air Law, vol. 7, p. 188 [para. 52].

United Kingdom, Minutes of the Second International Conference on Private Aeronautical Law (Oct. 4-12, 1929 Warsaw), generally [para. 45].

Counsel:

C.N. McEachran, Q.C., and P. Mac­Donald, for the appellants (Abnett appeal);

D.R.A. Emslie, Q.C., and M. Gilmore, for the respondents (Abnett appeal);

Clive Nicholls, Q.C., and T. Kerr, for the appellants (Sidhu appeal);

Robert S. Webb, Q.C., and Phillip Shepherd, for the respondents (Sidhu appeal).

Agents:

Pattinson & Brewer, for the appellants (Abnett appeal);

Beaumont & Sons, for the respondents (Abnett appeal and Sidhu appeal);

Raja & Partners, for the appellants (Sidhu appeal).

These appeals were heard on October 14-16, 1996, at London, England, before Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Steyn and Lord Hope of Craighead of the House of Lords.

On December 12, 1996, judgment for the House of Lords was delivered and the fol­lowing speeches were given:

Lord Browne-Wilkinson - see para­graph 1;

Lord Jauncey of Tullichettle - see para­graph 2;

Lord Mustill - see paragraph 3;

Lord Steyn - see paragraph 4;

Lord Hope of Craighead - see para­graphs 5 to 64.