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On
28-07-2009, the plaintiff, Mrs.
Betty Kyei Asante, issued a writ
in this court against the Kenya
Airways and KLM Royal Dutch
Airlines (the 1st and 2nd
Defendants respectively)
claiming the following reliefs:
1. Specific performance of the
contract of carriage dated
21-01-2009 between the plaintiff
and the defendants. 2. General
damages for breach of contract.
The case of the plaintiff is
that, on 21-01-2009, she
purchased an economy class
return air ticker from the 2nd
defendant acting for and on
behalf of the 1st defendant in
Kumasi to enable her travel on
the 1st defendant's airline to
Mumbai, India, to purchase goods
for her business in Ghana. The
plaintiff boarded the 1st
defendant flight KQ509 from
Accra to Nairobi on route to
Mumbai. While airborne, she was
returning to her seat from the
washroom when suddenly the
aircraft was handled in a manner
that violently threw her to the
floor without any or any
reasonable notice. She passed
out, instantly, only to regain
consciousness at the rear end of
the aircraft with the cabin crew
surrounding her and blood oozing
freely from her forehead. It is,
further, the case of the
plaintiff that, when the
aircraft landed in Nairobi, the
1st defendant's officials took
her to the Kenya Airways Clinic
where she was given first aid
and her wounds dressed. The
clinic, instead of giving her
the necessary drugs, wrote a
prescription for her to go and
look for and buy, even though
they were aware that she was a
stranger in Nairobi and her
condition would make it
extremely difficult and painful
for her to comb through the
streets of Nairobi searching for
the prescribed drugs. The
plaintiff complains that the 1st
defendant left her on her own
and she had to spend two days in
Nairobi at her own expense
before proceeding to Mumbai. At
Mumbai, she was in so much pain
and discomfiture that she was
compelled to spend most of her
time in the hotel without being
able to do the business she had
gone there to do. She had to
return to the 1st defendant's
clinic in Nairobi on 29-01-2009
for further treatment as a
result of the unbearable pain
she was going through, before
she returned to Accra. Upon her
return to Accra, the plaintiff
says she reported to the 1st
defendant's officers who asked
her to find money to go to
hospital and submit her bills
later for settlement. So, on
30-01-2009, she reported to the
Accident and Emergency Unit of
the Komfo Anokye Teaching
Hospital, in Kumasi, with severe
headache, dizziness and a deep
cut on the forehead where she
has been receiving treatment
ever since. The doctors,
subsequently, issued her with a
Medical Report indicating she
may need a CT scan if the
headache continued to be
persistent and she would be off
work for six months. Since then,
she has been at home without
working. The plaintiff, further,
says that, on 26-02-2009, she
caused her solicitors to write
to the 1st defendant demanding
payment of reasonable and prompt
compensation by way of amicable
settlement to cover her
expenses, pain and suffering,
etc. The 1st defendant, on
17-03-2009, wrote to the
plaintiff to withhold any
precipitate action and promised
to react within 21 days to
plaintiff's request. Meanwhile,
the 1st defendant requested for
a copy of her medical report,
ticket, etc, which were all sent
to them under cover of her
solicitor's letter dated
20-04-2009. Ever since, the
defendants have unlawfully
refused to compensate her for
the injuries and resultant
damages suffered. The
defendants, rather, caused their
United Kingdom solicitors to
engage Messrs Lynes Quashie-Idun
& Co. of Accra to contact her
solicitors on the issue. The
defendants' solicitors,
similarly, requested for and she
sent to them copies of the
ticket and medical report
already made available to the
1st defendant. Yet, the
defendants have refused to pay
her legitimate compensation. It
is, therefore, the plaintiff's
case that by the terms of her
contract, as a passenger, the
defendants are liable to
compensate her for personal
injuries and loss she suffered
and the defendants are permitted
by the said contract to make
advance payment to her in order
to meet her immediate economic
needs. But all efforts to get
the defendants to honour their
liabilities to her have been
futile and the defendants have
put her under severe personal,
financial and economic pressure
and hardship which is a gross
abuse of her human rights. The
defendants admit that the
plaintiff purchased an economy
class return air ticket from
them and travelled on the 1st
defendant flight KQ509 from
Accra to Nairobi on route to
Mumbai, India on 21-01-2009. The
defendants state that the
carriage of the plaintiff was
governed by the Wassaw
Convention as amended at the
Hague, 1955 and by Protocol No.
4 of Montreal, 1975. The
defendants deny that the
aircraft was handled in a manner
that violently threw the
plaintiff on the floor when she
was returning from the washroom.
It is the defendants' case that
there was no accident or sudden
movement of the aircraft or any
unusual or unexpected event
which threw the plaintiff on the
floor. Rather, the plaintiff
fell and later informed the
flight attendants that she had
experienced dizziness. The
defendants, further, state that
the plaintiff is hypertensive
and that, prior to the incident,
she had on 20-08-2008, attended
a clinic in Nairobi where her
blood pressure reading was
158/106 and contend that
plaintiff's frequent business
trips and her hypertensive
status contributed to her fall
and consequent injury. She was
attended to by a doctor who was
a passenger on board the
aircraft and the latter bandaged
the plaintiff's head and the
bleeding stopped and her
condition became stable. The
defendants, again, deny that the
1st defendant's clinic wrote a
prescription for her to go and
look for and buy in Nairobi. The
defendants deny they, also, left
the plaintiff on her own and she
spent two days in Nairobi at her
own expense before proceeding to
Mumbai. The defendants deny that
the plaintiff suffered
considerably and state that they
had incurred no liability or
obligation to the plaintiff with
regard to the injuries she
allegedly suffered. Furthermore,
the defendants deny that the
plaintiff reported to the 1st
defendant's officers, in Accra,
upon her return and the latter
asked her to find money to go to
hospital and submit her bills
later for settlement. The 1st
defendant admits receiving a
letter from the plaintiff's
solicitor, dated 26-02-2009, and
responding to same, by a letter
dated 17-03-2009, but maintains
that all the responses were
without admission of liability
and "without prejudice". It is,
therefore, the case of the
defendants that they are not
liable to the plaintiff at all
for, from the voyage report on
the flight, there was no
"accident" for the purposes of
article 17 of the Warsaw
Convention (as amended) that
would engage liability on the
part of the defendants for the
plaintiff experienced dizziness
and fell on her own. The
defendants contend that the
plaintiff's claim does not
constitute a human rights abuse
and the claim for specific
performance is misconceived and
that of breach of contract is
untenable. In reply, the
plaintiff contends that her
contract of carriage is not only
governed by the Warsaw
Convention as amended by the
Montreal Protocol of 1975 but
also by Article 6.2 of the E. C.
Regulation No. 889/2002 as
confirmed by the plaintiff's
ticket. With respect to the
voyage report, the plaintiff
denies that the report did not
record the accident and says, if
indeed the voyage report on the
flight did not record the
accident, then the defendants
did so deliberately and
fraudulently with a view to
evading their liability to the
plaintiff. At the application
for directions, the following
issues were set down for trial.
1. Whether or not the plaintiff
was injured on flight KQ509 from
Accra to Nairobi on 21-01-2009.
2. Whether or not the 1st
defendant's officials took
plaintiff to the Kenya Airways
Clinic in Nairobi. 3. Whether or
not the 1st defendant's clinic
prescribed drugs for the
plaintiff to buy. 4. Whether or
not on plaintiff's return to
Accra the 1st defendant's
officers asked her to find money
to go to hospital and present
her bills later for settlement.
5. Whether or not plaintiff is
entitled to her claims. 6.
Whether or not the carriage of
the plaintiff by the defendants
was governed by the Warsaw
Convention as amended at the
Hague, 1955, and by Protocol No.
4 of the Montreal Convention,
1975. 7. Whether the injuries
allegedly suffered by the
plaintiff on board the 1st
defendant flight KQ509 were
caused by an accident, sudden
movement of the aircraft or any
unusual or unexpected event
affecting the aircraft or was
caused by the plaintiff
experiencing dizziness and
falling on her own while walking
on board the aircraft. 8.
Whether or not the defendants
incurred any liability or
obligation to the plaintiff for
the injuries she allegedly
suffered from the fall. 9. Any
other issues arising from the
pleadings. I think the starting
point for the resolution of this
matter is the determination of
the law governing the contract
of carriage between the parties.
Specifically, is the governing
law the Warsaw Convention as
amended at the Hague by Protocol
No. 4 of Montreal, 1975 or
Regulation (EC) No 889/2002 of
the European Parliament and of
the Council of 13 May 2002
amending Council Regulation (EC)
No. 2027/97 on air carriage
liability in the event of
accidents. It is submitted for
the defendants that the
plaintiff's claim is,
exclusively, governed by the
Warsaw Convention as amended at
the Hague in 1955 and by
Protocol No. 4 of Montreal,
1975. By this regime, (article
17) for the plaintiff to
succeed, it is necessary that
she shows that there was an
"accident", that is, an unusual
and unexpected event like
turbulence. It is argued for the
plaintiff, on the contrary, that
the law governing the contract
of carriage in the particular
circumstances of this case as
contained in the ticket the
plaintiff bought from the 2nd
defendant is Regulation (EC) No.
889/2002, particularly articles
6.2 and 10. Before deciding the
applicable law, it is important
to state the relevant facts of
this case found by the evidence.
On 21-01-2009, the 2nd defendant
issued a ticket to the plaintiff
to travel on the 1st defendant's
aircraft from Accra to Nairobi,
Kenya, on route to Mumbai,
India. While on board the
flight, the plaintiff went to
the washroom and while returning
she fell down and was injured.
The plaintiff contends that she
fell down as a result of the
negligent manner the officers of
the 1st defendant were flying
the aircraft. The defendants, on
the contrary, contend that the
plaintiff fell down as a result
of her health situation before
she boarded the flight not
because of the manner the
aircraft was handled. As shall
be shown, neither contention is
of any significance. The
contract between the plaintiff
and the defendants is in writing
(Exhibit A). Clauses 5 and 6 of
the conditions of contract
contained in Exhibit A are very
significant and they provide as
follows: "5. An air carrier
issuing a ticket for carriage
over the lines of another air
carrier does so only as its
Agent. 6. Any exclusion, or
limitation of liability of
carrier shall apply to and be
for the benefit of agents,
subcontractors, servants and
representatives of carrier and
any person whose aircraft is
used by carrier for carriage and
its agents, servants and
representation." It is, further,
provided in the General
conditions of Carriage of the
2nd defendant, that is, the
Annex to Regulation (EC) No.
889/2002 as follows: "If the air
carrier actually performing the
flight is not the same as the
contracting air carrier, the
passenger has the right to
address a complaint or to make a
claim for damages against
either. If the name or code of
an air carrier is indicated on
the ticket, that air carrier is
the contracting air carrier."
From the above provisions, it is
obvious that if there is any
liability on the part of the
defendants, it would be joint
and several. There are
provisions in Exhibit A to show
that the contract in issue is
governed by both the Warsaw
Convention as amended at the
Hague, 1955, and by Protocol No.
4 of the Montreal Convention,
1975, as well as Regulation (EC)
No. 889/2002. For instance
clause 2 of the conditions of
contract contained in Exhibit A
provides that carriage is
subject to the rules and
limitations relating to
liability established by either
the amended Warsaw Convention or
the Montreal Convention unless
such carriage is not
international carriage as
defined by any of the
aforementioned conventions.
Similarly, it is provided in
article 6.2. of Regulation (EC)
No. 889/2002 which is
incorporated in Exhibit A that
there are no financial limits
for death or bodily injury of a
passenger and KLM (the 2nd
defendant) may make an advance
payment, in proportion to the
suffered loss, in order to meet
the immediate economic needs of
the person entitled to claim
compensation. It is, further,
provided by Regulation (EC) No.
889/2002 that the basis for the
rules in this regulation is the
Montreal Convention of 28 May,
1999, which is implemented in
the community by Regulation (EC)
No. 2027/97 and national
legislation of the member
states. Thus, the applicable law
governing the contract of
carriage in issue is the Warsaw
Convention, the Montreal
Convention and Regulation (EC)
No. 889/2002. The next important
issue is whether the defendants
have incurred any liability by
the plaintiff's injury on board
1st defendant flight from Accra
to Nairobi, Kenya. The relevant
legal provision, in respect of
this case, is contained in
Regulation (EC) No. 889/2002
where it is stated as follows:
"10. The following Annex shall
be added: ANNEX Air carrier
liability for passengers and
their baggage This information
notice summarises the liability
rules applied by Community air
carriers as required by
Community legislation and the
Montreal Convention.
Compensation in the case of
death or injuries. There are no
financial limits to the
liability for passenger injury
or death. For damages up to
100,000 SDRs (approximate amount
in local currency) the air
carrier cannot contest claims
for compensation. Above that
amount, the air carrier can
defend itself against a claim by
proving that it was not
negligent or otherwise at fault.
Advance payments If a passenger
is billed or injured, the air
carrier must make an advance
payment, to cover immediate
economic needs, within 15 days
from the identification of the
person entitled to compensation.
In the event of death, this
advance payment shall not be
less than 16,000 SDRs
(approximate amount in local
currency)..." The above
provision of Regulation (EC) No.
889/2002 clearly shows that, in
case of injury like the instant
case, there is strict liability
of the carrier up to 100,000
SDRs. If an injured passenger
claim for compensation for
injuries which does not exceed
100,000 SDRs, the carrier is
liable, simpliciter. If,
however, the claim for
compensation exceeds 100,000
SDR5, the carrier could avoid
liability by proving that it was
not negligent or otherwise at
fault. From Regulation (EC) No.
889/2002, SDR means a special
drawing right as defined by the
International Monetary Fund (IMF).
As at 16-02-2011, 1 SDR was
equivalent to 1.55 United States
Dollars. Thus, 100,000 SDR would
be US $155,000.00. The
plaintiff, in her writ, did not
state the amount of compensation
that she is claiming from the
defendants. In her evidence as
well, she did not mention the
amount of compensation which she
wants. She simply claims general
damages for breach of contract.
In her evidence, she did not
lead any evidence to show how
much she spent in her treatment.
She, only, led evidence that she
sustained injuries on her
forehead and attended various
hospitals. The medical report
from Komfo Anokye Teaching
Hospital, dated 10-02-2009,
stated, among others, that
"treatment is not yet over and
she may need a CT Scan if
headache continue to be
persistent. She may be off for
work for about six months." No
evidence was led by the
plaintiff as to her income which
she would have lost for the six
months. No evidence has been led
to show that she did the CT Scan
and the cost. It, thus, means
the damages plaintiff claims is
generally left at large for the
court by its discretion to
award. Counsel for the
plaintiff, in his submission,
asked for compensation of
500,000 SDR (that is
US$555,000.00). To justify this
sum, counsel simply stated thus:
"In the circumstances of this
case and considering the cruel
and shabby manner the defendants
have treated the plaintiff in
violation of her human rights it
is submitted that damages of at
least 500,000 SDR would be a
fair compensation to the
plaintiff." Counsel for
plaintiff did not show, by
evidence on record, the
circumstances he is referring
to. Neither did he show how
cruel and shabby the plaintiff
was treated. On the contrary,
when the plaintiff got injured
on board the aircraft, she was
given some treatment, therein.
She was given a further
treatment at a hospital in
Nairobi after which plaintiff
proceeded to Mumbai, India. If
the plaintiff was that badly
wounded, she would have returned
to Accra instead of continuing
to Mumbai. Furthermore and more
importantly, the medical report
on her did not show any serious
injury and suffering for she was
treated and discharged the same
day and she went for review only
twice where her condition was
adjudged to be stable and the
laceration on the forehead was
healing nicely. By the
endorsement on the writ of
summons, the plaintiff claims
specific performance of the
contract of carriage, dated
21-01-2009, between her and the
defendants, as well as, general
damages for breach of contract.
I think these claims are
misconceived for the defendants
carried the plaintiff to Mumbai,
India and brought her back. So,
where lies these claims?
However, the plaintiff would be
entitled to compensation for the
injuries she sustained in
accordance with Regulation (EC)
No. 889/2002 which amount from
the circumstances of this case
as I stated hereinbefore, I
award the plaintiff 100,000 SDR
(US$155,000.00) payable at the
Ghana cedi equivalent. The
plaintiff is ordered to pay the
requisite filing fees on the
said award before she enforces
same. COUNSEL: 1. Mr. Nsiah
Akueteh (Paul Dekyie with him)
for Plaintiff. 2. Mr. A. K. Dabi
for Defendants.
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