IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
DR. R.S.D. TEI AND EVELYN JUMBO - (Plaintiffs / Appellant)
MESSRS CEIBA INTERCONTINENTAL - (Defendant / Respondent)
DATE: 29TH JUNE, 2017
SUIT NO: H1 / 85 / 2017
JUDGES: S. K. MARFUL-SAU (PRESIDING), B. F. ACKAH-YENSU (MS.) JA, M. M. AGYEMANG (MRS.) JA
LAWYERS: MR. EMMANUEL S. GOKA FOR PLAINTIFFS / APPELLANTS
In this appeal the plaintiffs/appellants (hereafter referred to as the plaintiffs) pray this court for the judgment of the High Court, Commercial Division, Accra delivered on the 3rdof December 2015, to be set aside and for judgment be entered for them.
These are the antecedents of this case: the first plaintiff/appellant was a fare-paying passenger on board the defendant/respondent’s aircraft on a flight from Accra, Ghana to Malabo, Equatorial Guinea. He was in the process of taking his seat on the aircraft when a fellow passenger opened an overhead bin, and falling luggage hit his eye. This resulted in injury to his left eye which bled in consequence. Cabin crew who were called to the scene and observed the first plaintiff’s bleeding eye, allegedly responded to the situation not by offering help to the injured passenger, but by simply handing cotton wool and gentian violet to the second plaintiff who was travelling with the first plaintiff. These, the second plaintiff who possessed no gloves or other protective gear, was expected to use, and did use to dab the blood oozing from the injured eye. At this time the aircraft was on the tarmac of the Kotoka International Airport, Accra. Throughout the flight, and even when the passengers disembarked at Malabo, the bleeding continued and the first plaintiff, who had severe headache throughout, was said to have received no help from the defendant/respondent (hereafter referred to as the defendant). It was the evidence of the first plaintiff that having been neglected by the defendant on board the flight and after disembarkation, he only received medical attention through the intervention of the President of Equatorial Guinea who bore the cost of the medical treatment. He testified that as part of the treatment, he underwent eye surgery in Equatorial Guinea, and that upon his return to Ghana, he continued to receive treatment at his own cost for the injured eye which unfortunately lost vision and became disfigured. By reason of the injury, he has also had to engage nursing help.
The first plaintiff is now one-eyed by reason of the incident which occurred when the plaintiffs were traveling to Equatorial Guinea for business. The first plaintiff, an international engineering consultant, and Executive Chairman of Rockshell International Limited, Delta Group and other companies, was expected to engage in a business discussion towards a contract with the government of Equatorial Guinea to install an energy plant in the country’s territorial waters. The second plaintiff, the Executive Secretary to the first plaintiff, as well as a lawyer: Mr. E.S. Goka, travelled with the first plaintiff to assist in the meeting.
It was the first plaintiff’s case that beyond the pain and suffering and the attendant cost of treatment and nursing arising from the physical injury, he also lost considerable earnings as he was unable to return to Equatorial Guinea as scheduled to sign the contract for which he held discussions with its President.
It was the case of the second plaintiff that by reason of the incident which resulted in injury to the first plaintiff’s eye, and the lack of care, help, or support from the airline crew, she was placed on the position of having to give first aid which involved the dabbing of blood from the injured eye of the first plaintiff without any protective covering, and that her fear of contracting blood-related medical conditions including HIV or Hepatitis A, B, or C, had resulted in anxiety and emotional trauma to her.
By reason of these matters, the plaintiffs commenced suit against the defendant claiming for the first plaintiff: damages for loss of earnings, pain and suffering (past and future); emotional distress, cost of drugs and transportation to receive medical care, punitive damages for the defendant’s uncaring and reprehensible conduct; and costs, and for the second plaintiff: damages for psychological or emotional trauma and anxiety, GHC 12,000 being the cost of drugs purchased, and general damages for future treatment and drugs.
The defendant failed, or neglected to enter appearance to the suit. Thus did the court grant the plaintiffs’ application which resulted in the entry of an interlocutory judgment for the plaintiffs in the following terms: judgment for the sum of GHC20,000 with costs of GHC2,000.
The suit was adjourned for the assessment of damages with due notice to the defendant. The defendant failed to participate in the entire trial process.
The court therefore took the evidence of the two plaintiffs and reserved judgment. On December 3, 2015 the court delivered itself of a judgment which negated and effectively set aside the default judgment, holding that the plaintiffs had no cause of action against the defendant.
It is against the said judgment of the court below that the instant appeal has been brought.
The plaintiffs filed three substantive grounds of appeal. We reproduce them as follows:
i) The judgment is against the weight of the evidence;
ii) The court misconstrued the relevant principles of law applicable to causing damage or injury to a passenger on board a carrier/aircraft;
iii) The court erred in law when it held that the defendant/respondent could not be held liable for claims made by the 2nd plaintiff/appellant.
We will begin our consideration of the matters raised in this appeal by having regard to the first and second grounds. The first complains that the judgment was against the weight of the evidence and the second complains that the learned trial judge’s construction of the relevant law on damage or injury to a passenger on board an aircraft. We will consider the two grounds together as they are inextricably linked and a finding on one has bearing on the other.
Is the ruling against the weight of the evidence?
Rule 8(1) of The Court of Appeal Rules CI 19, provides that an appeal is by way of rehearing, and there is a panoply of case law that has settled the law that where an appellant complains that a judgment (or ruling as the case may be) is against the weight of evidence, it invites the appellate court which is in much the same position as the trial court regarding the evidence led, to evaluate the same, and come to its own conclusions in support of, or against the trial court’s findings, see: Oppong Kofi and Ors v. Attibrukusu III  1 SCGLR 176.
We will therefore in our consideration of this ground have regard to the evidence led and determine whether or not the finding of the learned trial judge finds support from the evidence. We will also examine whether the learned trial judge was right when she concluded from her construction of the relevant law: the Montreal Convention of 1999, that the first plaintiff had no cause of action against the defendant.
Was the learned trial judge in error?
The applicable law governing air transport and which provides a regime for the carriage of passengers and goods by air is the Convention for the Unification of Certain Rules for International Carriage by Air, 1999, referred to less formally as the Montreal Convention.
Art 1 thereof makes it applicable to “all international carriage of persons, baggage or cargo performed by aircraft for reward” and also for carriage performed gratis by an air transport undertaking.
Articles 17 and 21 thereof limit the liability of such air carriers towards such passengers in the circumstance death or injury to passengers or damage to baggage. We reproduce the provisions as follows:
“17. Death and Injury of Passengers –Damage to Baggage
The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking”
“21. Compensation in case of Death or Injury of Passengers
1. For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger the carrier shall not be able to exclude or limit its liability
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:
a. Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
b. Such damage was solely due to the negligence or other wrongful act or omission of a third party”.
As aforesaid, the learned trial judge held the first plaintiff not entitled to recover damages after she held that he had no cause of action against the defendant. In her discussion of what amounts to a cause of action, the learned trial judge rightly cited the following cases that authoritatively define a cause of action as: “the entire set or combination of facts that give rise to an enforceable claim”, or “…a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”, see: Spokesman Publications Ltd v A-G  1 GLR 88 at 91; also per Diplock LJ in Letang v. Cooper  1 QB 232.
We hold however that she failed to apply same correctly in the instant matter.
To explain ourselves, were capitulate the events that led to the injury of the first plaintiff: he boarded the defendant’s aircraft. On the first plaintiff’s own showing, while he was in the process of getting into his seat, he was injured by luggage which fell out of an overhead bin when a fellow passenger opened the overhead bin. The falling luggage hit the first plaintiff’s eye, injuring it and causing it to bleed.
The plaintiff pleaded that the defendant’s servants who became aware of the injury right after it happened were negligent in failing to provide him with first aid. This alleged negligent conduct, also described in the first plaintiff’s claim as the “reprehensible” conduct of the defendant, continued even when the first plaintiff and his companions arrived at Malabo and the defendant failed to provide adequate medical treatment for him once they landed at Malabo. The plaintiff in pleading and in the evidence led at the court below, and in the instant appeal, has sought to place the blame regarding his injury on the defendant, and to make the defendant liable therefor. But the plaintiff described the cause of the injury as having been caused not by an employee of the defendant, but by a fellow passenger, and no evidence was led to show that in allegedly failing to attend to the plaintiff beyond handing the second plaintiff gentian violet and cotton wool, harm was caused to the plaintiff, or that the injury caused by the fellow passenger could have been mitigated but was not, or was made worse by the alleged negligent conduct. In the absence of such evidence, all that the plaintiff alleged was that he was injured by an act of a fellow passenger and that the defendant’s servants stood by after he was injured. The injury provisions contained in Article 17(1) of the Montreal Convention (supra) (the Convention) relate to bodily injury suffered by a passenger on board the defendant’s aircraft. As aforesaid, that brings the injury suffered by the first plaintiff on board the defendant’s aircraft (albeit at the hands of a stranger to the contract of carriage between the first plaintiff and the defendant), within Article 17(1) of the Convention. In our judgment, this is what founds liability against the defendant, and not any action or inaction on the defendant’s part following the injury.
We are not persuaded by the argument of the first plaintiff that the said “fellow passenger” of the first plaintiff must be held to be the agent of the defendant, a circumstance that would bring the injury suffered at his hands into the category of “negligence or wrongful act” of the defendant, for which it may be held vicariously liable. To succeed in the proof of the alleged agency relationship, the first plaintiff ought to have established as its basis, authority, actual or apparent, vested in the said “fellow passenger” to affect the legal relations between the defendant and the first plaintiff through its authorized acts, see: Chitty On Contracts Vol. 2 28th Ed. 25 at 32-042.
No evidence of a relationship save that of carrier-passenger which necessarily arises out of a contract of carriage, has been led regarding the “fellow passenger” and the defendant. In the circumstance, the only finding that may be made, is that the fellow passenger was on board the aircraft by reason of his own contract of carriage with the defendant, and any act he committed was done in such capacity, as a stranger to the contract of carriage between the first plaintiff and the defendant, and not as agent of the defendant. He may thus be aptly described as a third party to the contract of carriage between the first plaintiff and the defendant.
Upon the ordinary interpretation of Article 17(1) of the Convention, that the first plaintiff suffered the injury while on board the aircraft would place him in the position to recover compensation for the injury. In accordance with Art 21(1) of the Convention, the said circumstance would entitle the first plaintiff to a minimum of 100,000 Special Drawing Rights (SDR) by way of compensation for the injury suffered.
However, under the provisions of Article 21(2) of the Convention (supra), the defendant herein is entitled to limit its liability to compensate the first plaintiff, to the minimum compensation of 100,000 Special Drawing Rights. This is because the first plaintiff himself lay the cause of the injury in a third party: a fellow passenger, and not the servants or agents of the defendant, and no doubt, the plaintiff, in laying the blame on the cause of the incident on a fellow passenger, relieved the defendant of the burden of establishing that the injury was caused by the negligence or wrongful act of the defendant, its servants or agents.
We hold therefore that the learned trial judge’s finding that the first plaintiff had no cause of action against the defendant does not find support from the evidence and in law - upon the application of the provisions of the Convention.
Nor indeed was the learned trial judge entitled to make such a finding after she had entered interlocutory judgment for the plaintiffs’ claim and was in the instant judgment, simply involved with the assessment of damages. The reversal by the learned trial judge of the entry of judgment (albeit interlocutory), was improper as it amounted to a setting aside of the court’s judgment which is the preserve of the trial court exercising its review jurisdiction, see: Order 42 of the High Court (Civil Procedure) Rules, 2004 CI 47, or the appellate court, on appeal.
This matter was raised improperly by the appellants in their written submissions but not being pursuant to a complaint raised in a ground of appeal, and not having been objected to by the defendant which having been served with the submissions, failed to respond thereto, we advert to it, but obiter only.
We also note that in the pleading of the first plaintiff and also in the written submissions before us, the plaintiffs have sought to make a claim under the Montreal Convention and also in negligence. In this enterprise, the first plaintiff has urged this court to award damages under various heads of damage. We decline to do so for in our view, the first plaintiff has no such entitlement, nor indeed does he have an option to choose the mode of compensation for any claim whether arising in contract or in tort, save as provided under the Convention, see: Article 29 of the Convention:
“In the carriage of passengers, baggage and 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 such limits of liability as are 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. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable”.
With regard to the third ground which relates to the second plaintiff, we find that same was abandoned as no arguments were proffered in that behalf. We will therefore not concern ourselves with a consideration of the said ground. We find that the plaintiff’s appeal has merit and succeeds. It is accordingly allowed.
We therefore in consequence enter judgment for the first plaintiff for the recovery of 100,000 Special Drawing Rights in the sum as computed in accordance with the provisions of the Convention.
Costs of GH¢ 50,000.00 in favour of Appellants.
MABEL M. AGYEMANG (MRS)
(JUSTICE OF THE APPEAL COURT)
MARFUL-SAU, J. A. I agree SAMUEL K. MARFUL-SAU
(JUSTICE OF THE APPEAL COURT)
ACKAH-YENSU, J. A. I also agree BARBARA F. ACKAH-YENSU (MS)
(JUSTICE OF THE APPEAL COURT)