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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 SDRs, 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.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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