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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

REPORTABLE

Case No. 03/7154

In the matter between

NEIL VINCENT POTGIETER Plaintiff/Respondent

And

BRITISH AIRWAYS PLC Defendant/Excipient

JUDGMENT: 25 JANUARY 2005

DAVIS J

Introduction.

This is an exception to a claim brought by the plaintiff in the amount of R1 642 666,00 alternatively R500 000,00 plus interest and costs from defendant. The claim arises from events which occurred on board an aircraft during a flight operated by defendant from Cape Town International Airport to Heathrow Airport, London on 2 September 2000.

Plaintiff, his partner and his mother flew by air from Cape Town to London on flight BA 058 on 2 September 2000. According to the particulars of claim the following events gave rise to the present dispute:

‘4.4 Upon being woken up by the cabin staff the following morning, two hours prior to landing at Heathrow Airport, London, the Plaintiff and his partner kissed each other good morning and hugged each other in a normal way and in a manner which anyone would have accepted had such a kiss and embrace been between two heterosexual people.

4.5 Immediately thereafter one of the British Airways flight attendants on board the flight…. approached the Plaintiff and his partner and requested them ‘not to kiss each other as doing so was offensive to the other passengers on the flight’.

4.6 Plaintiff ignored her, she in turn repeated the request.

4.7 A little later a senior flight attendant or purser ….. also told the Plaintiff not to kiss his partner.

4.8 Plaintiff was shocked by this approached (sic) and experienced extreme humiliation by the conduct of the flight attendants as aforesaid.

4.9 Plaintiff was traumatized by the event and as a result the provocation, became infuriated, hurt and anger.

4.10 Plaintiff lost his temper. He became involved in verbal arguments with the relevant flight attendants referred to above and with other cabin crew. The volatile situation escalated. Plaintiff was eventually arrested upon arrival at Heathrow Airport.’

Plaintiff avers that he was humiliated and degraded by the conduct of the flight attendants and that his dignity was severely impaired. The act upon which plaintiff seeks to base his contractual and delictual claim is the request by the flight attendant that he stop kissing his partner. He does not allege any physical harm to his person.

The Exception.

The exception takes the following form: The carriage by air of the plaintiff from Cape Town International Airport to Heathrow Airport, London, constituted international carriage within the meaning of Article 1 (2) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (‘Warsaw Convention’) as ratified by section 2 of the Carriage by Air Act 17 of 1946 to which the Warsaw Convention is attached as a Schedule. This Schedule was amended by Proclamation R 294 of 1967. According to the excipient, the Warsaw Convention provides the exclusive cause of action and sole remedy for a passenger who claims for loss, injury and damages sustained in the course or arising out of his international carriage. Plaintiff’s main cause of action relies on the defendant’s breach of contract and an alternative cause of action based on the acto iniuriarum. According to the excipient, neither cause of action relies, or was based upon the Warsaw Convention, alternatively it is not discernable from either claim whether the Warsaw Convention was relied upon.

Expressed differently, the exception is based upon the proposition that the Warsaw Convention provides the exclusive cause of action for a passenger who claims for loss, injury and damages sustained in the cause or arising out of international carriage. As the plaintiff’s main and alternative causes of action are not based upon the Warsaw Convention they cannot be sustained in law. In terms of Article 17 of the Warsaw Convention, defendant is liable for damages sustained in the event of the death, wounding or bodily injury sustained by a passenger if the accident which caused the damage took place on board an aircraft. Plaintiff however does not allege death, wounding or other bodily injury suffered by him as a result of an accident and accordingly the defendant cannot be liable in terms of Article 17 of the Warsaw Convention.

The Convention as an exclusive cause of action.

As Mr Nel, who appeared on behalf of plaintiff, correctly noted, the only substantive question to be answered on exception was whether the Warsaw Convention provided an exclusive cause of action and sole remedy to a passenger such as plaintiff. The key articles of the Warsaw Convention relevant to this dispute are Article 17 and 24.

Article 17 provides: ‘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.’

Article 24 provides:

‘In the cases 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.

1. In the cases 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.

Comparative interpretation of the Warsaw Convention.

The nature and scope of these two articles was carefully considered by the House of Lords in Sidhu and Others v British Airways PLC [1996] UKHL 5; [1997] 1 All ER 193 (HL). The judgments in this case were keenly debated by both counsel and accordingly, require careful analysis. The Sidhu case arose out of events that occurred when a British Airways flight, en route from Heathrow to Kuala Lumpur on 1 August 1999, landed in Kuwait for refueling on 2 August 1999 about five hours after Iraqi forces had begun to invade Kuwait. Plaintiffs and all the other passengers and crew were taken prisoner by the Iraqi armed forces. Plaintiffs were subsequently released and returned to the United Kingdom where they claimed damages from British Airways for the consequences of their captivity. Plaintiffs’ claims were made in terms of common law and not in terms of the Convention.

The issue for decision in Sidhu was whether the Warsaw Convention provided the exclusive cause of action and remedy in respect of claims for loss, injury and damage sustained in the course of, or arising out of international carriage by air. Lord Hope analysed the relationship between Article 17 and 24 thus:

‘The structure of these two provisions seems to me, therefore, to be this. On the one hand, the carrier surrenders his freedom to exclude or to limit his liability. On the other hand, the passenger or other party to the contract is restricted in the claims which he can bring in an action for damages by the conditions and limits set out in the convention. The idea that an action for damages may be brought by a passenger against the carrier outside the Convention in the cases covered by art. 17, which is the issue in the present case, seems to be entirely contrary to the system which these two articles were designed to create.’ (at 206j).

Lord Hope then addressed the question whether the opening words of Article 24(2) namely ‘the cases covered by Article 17’ implies that Article 17 was intended to cover only those cases for which the carrier is liable and damages under that specific article. In his view:

‘The phrase ‘the cases covered by Article 17’ extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under art 18 and claims for delay which must be dealt with under art 19. The words ‘however founded’ which appear in art 24(1), and are applied to passengers claim by art 24(2), support this approach. The intention seems to be to provide a secure regime, within which the restriction on the carriers the freedom of contract is to operate. Benefits are given to the passengers in return, but only in clearly defined circumstances to which the limits of liability set by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases in which the Convention did not create any liability on the part of the carrier. Thus, the purpose is to ensure that, in all questions relating to carriers liability, it is the provisions of the convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available in a particular country where he chooses to raise his action. (at 207 c-e. My emphasis).

This approach was followed by the House of Lords in the case of Morris v KLM Royal Dutch Airlines [2002] UKHL 7; [2002] 2 All ER 565 (HL). See particularly paras 14 and 15 and paras 65 and 66. At para 66 Lord Hope described the purpose of the convention thus:

‘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.’

The United States Supreme Court has also had occasion to deal with these provisions of the Convention. In Eastern Airlines Inc v Floyd 499 US 530 the court concluded that an air carrier could not be held liable under Article 17 when an accident had not caused the passenger’s death or to suffer physical injury or any physical manifestation of injury. In a subsequent decision, El Al Israel Airlines Limited v Tsui Yuan Tseng 525 US 155 the court was requested to again consider the decision reached in the Floyd’s case, namely that the Convention provided for compensation only when a passenger suffered ‘death, physical injury or physical manifestation of injury’. In the El Al case, the passenger claimed that she had sustained psychosomatic injuries as a result of an extremely intrusive body search. She accepted that there had been no bodily injury as that term was employed in the Convention. Her claim was that, on the basis of Floyd, the Convention allowed no recovery, but it did not preclude her from pursuing a separate action for damages under ‘local law’.

In her judgment, Justice Ginsburg said that if the Convention was construed

‘to allow passengers to pursue claims under local law in circumstances when the Convention does not permit such recovery, could produce several anomalies. Carriers might be exposed to unlimited liability under diverse legal regimes but would be prevented in terms of the Convention from contracting out of such liability. Passengers injured physically in an emergency landing, might be subject to the liability caps in terms of the Convention while those merely traumatized in the same accident would be free to sue outside the Convention potentially for unlimited damages.’ (at para 6).

The court concluded (Justice Stevens dissenting) that the Convention precluded a passenger from pursuing an action for personal injury and damages under local law when the claim did not satisfy the conditions for liability under the Convention.

Plaintiff’s case.

Mr Nel submitted that these decisions of the House of Lords and the United States Supreme Court notwithstanding, there was authority for the proposition that, while liability of the carrier in terms of the Convention was limited in respect of damages suffered as a result of death or wounding of a passenger or any other bodily injury suffered by the passenger, an action brought in terms of a ground of liability not covered by the Convention such as the negligent causing of psychological shock to a passenger by an employee of a carrier, could be brought on the basis of domestic law.

In this connection Mr Nel placed particular emphasis on the decision of the French courts in Mohamed v British Airways PLC, in particular the decision of the Court de Cassation: (Civil Chamber 1: Decision 97-10268). The facts of the Mohamed case were essentially similar to those of the Sidhu case, namely a claim by passengers on a BA flight from Madras to Kuala Lumpur which landed in Kuwait City on the evening of 1 August 1990 shortly before Iraqi troops invaded Kuwait. Passengers were given transport to the hotel whereupon they were taken prisoner by the Iraqi army, and detained for a period of between one to three months in different places in Kuwait and Iraq. They sought to recover damages from British Airways caused by their detention. In its decision, the Appeal Court in Paris said:

‘Considering that the Warsaw Convention does not exclude all liability of the air carrier for passengers, beside any hypothetical cases falling within the domain within its application; that to accept the proposition of the appellant company according to which its liability could be determined only by having regard to the provisions of the Warsaw Convention would amount to accepting the principle of the non-liability of the air carrier, in situations not provided for by the said Convention; that the decision of the first judges must therefore be approved in that it had considered that the dispute had to be resolved according to provisions of Article 1147 of the French civil code, being accepted that the air tickets had been purchased and paid for in France’ (typed manuscript at 8).

The Court of Cassation upheld the decision of the Court of Appeal and found thus: ‘[W]hereas the Warsaw Convention of 12 October 1929 for the unification of certain rules relating to international air transport only governs liability of the air carrier for damage sustained by passengers where such damage is incurred on board the aircraft or in the course of embarkation or disembarkation operations; that the court of appeal, which found that the damage suffered by the passengers was caused outside the aircraft and after their disembarkation, whilst they were not being regrouped to a hotel, deduced therefrom, correctly, that this convention was not applicable to the case’. (page 5 of typed translation of the judgment).

Mr Nel also sought to rely on the decision of Chernock v Corneloup (a decision of the Superior Court of Canada, in the Province of Quebec, District of Montreal: October 22 2002), particularly paragraph 40 of the judgment in which the court said ‘Air France has chosen not to raise the issue as to whether or not the Convention is exhaustive of the rights of passengers who assert claims arising during the course of international carriage by air’.

According to Mr Nel in choosing not to raise such a defence, Air France accepted that the Convention does not provide the exclusive cause of action and sole remedy to a passenger. He conceded that the judgment was not a reasoned judgment on the point, but, in his view, the Court itself also did not mero motu raise this aspect as one would have expected had it been contentious.

By contrast, the Ontario Court of Justice, in Naval-Torres in North West Airlines Inc. 159 DLR (4 th) 67 per Sharp J said at para 21 ‘Article 17 is the sole source of liability imposed upon a carrier by the Convention for bodily injury to passengers’.

In Lagos Gal v Northern Mountain Helicopters Inc. (a decision of the Supreme Court of British Columbia (23-7-98)) the court held that the Convention provided an exclusive remedy to passengers pursuant to Article 17 thereof. See in particular paras 31 and 32 of this judgment. On appeal, the Court of Appeal for British Columbia appeared to accept the Sidhu approach (judgment delivered on 13 August 1999 at paras 2-5).

In summary, while there is the decision of the Court de Cassation (Mohamed) and decisions by the Federal Court in the United States (see for example Zicherman v Korean Airlines Co. [1996] USSC 6; 516 US 217 at 230-231 (1996) as well as other decisions cited in JP Martin 1999(3) Connecticut Law Review 297), the highest courts in the United Kingdom and United States together with significant Canadian jurisprudence have provided careful analyses as to the interpretation of the Warsaw Convention which justifies its exhaustive scope.

The Interpretation of Conventions.

In Pan American Airlines v S A Insurance Co. Ltd. 1965(3) SA 150 (A) at 167H Ogilvie Thompson JA (as he then was) said the following about the interpretation of the Warsaw Convention: ‘If attainable without doing violence to the language of the Convention, uniformity is, in an international matter of this kind, manifestly desirable.’

In the present case (arguably unlike Pan America Airways particularly at 164 B-C) the present dispute deals with an issue where there are a number of relevant cases decided by the House of Lords and United States Supreme Court in which comprehensive judgments are available which manifestly indicate that these courts have carefully considered the Convention as a whole and concluded that Article 17 is definitive of a dispute such as arises in the present case. In particular, the judgments in Sidhu, Morris, and El Al Airlines, find that in those matters with which the Convention deals, it was intended that the Convention is exclusive of any resort to the rules of domestic law.

To the extent that it was contended by plaintiff that he would be left without a remedy were to be found that the Convention provides an exclusive cause of action, Mr van der Nest submitted that exclusion clauses are a feature of modern contract law and have found support even within the context of our constitutional jurisprudence. See in particular Afrox Health Care Bpk v Strydom 2002(6) SA 21(SCA) at para 36 where Brand JA said ‘Wat wel by hierdie vraag van belang is, is of ‘bepaling soos klousule 2.2 redelikerwys te wagte is oftewel, of dit objektief gesproke onverwags was. Soos ek reeds vroer aangedui het is vrywarings klousule soos klousule 2.2 hedendaags in standard kontrakte eerder die reël as die uitsondering. Bygevolg is daar geen regplig op Buitendag om dit pertinent onder die respondent se aandag to bring het nie’.

This dictum regarding the validity of exclusion clauses lends support to the submission made by Mr Chaskalson, on behalf of defendant, that there was no constitutional impediment in the way of the interpretation of the Convention for which defendant had contended. It should be emphasized that no direct constitutional challenge to the Act or Convention read with the Act was raised on the papers or in argument by Mr Nel.

Mr Nel submitted that this Court could not rely on the judgments in Sidhu and El Al in particular because the purpose of interpretation followed by these courts ‘went too far’. By that phrase, I took Mr Nel to argue that the interpretation adopted by both the House of Lords and the United States Supreme Court were so wide as to be at war with the express and clear language of Article 17 of the Convention. But, as is evident from the decisions of these courts, the wording of Article 17 read together with Article 24 is not at all in conflict with the interpretation that Article 17 is exclusive of a carrier’s liability. To the extent that Mr Nel’s interpretation may well be plausible, it is not so compelling so as to trump the interpretation adopted by Sidhu and El Al. In my view, this latter interpretation gives clear effect to the purpose of the Convention and is manifestly congruent with the words which have been employed in the Convention. On the basis of the interpretative approach adopted in Pan American Airlines supra, this interpretation is the one to be adopted by our courts.

For these reasons, the exception is upheld, plaintiff is granted leave to amend his particulars of claim and plaintiff is ordered to pay the costs of the exception including costs of two counsel.

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DAVIS J

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