Joshua Ong v Malaysian Airline System Bhd
(18 March 2008)
In a parent's worst nightmare, a 13-year old 'unaccompanied minor' travelled from Kuala Lumpur to Hong Kong on one of the respondent's aircrafts and suffered serious head injury when he fainted and fell as he walked up the immigration counter. The Hong Kong Court of Appeal had to decide, among other things, whether he was 'in the course of…embarking and disembarking' within the meaning of Article 17 of the Amended Warsaw Convention.
The plaintiff (a minor suing by his 'next friend' and mother) put his case on breach of contract (for carriage) and tort. The defendant took out an application for declarations that the Hong Kong courts have no jurisdiction and that the plaintiff's action should be time barred under Art. 29 of the Convention. The declarations were made and the plaintiff appealed.
The Court of Appeal dismissed the appeal of the plaintiff/appellant (Wright J dissenting) on the ground that the accident occurred outside the limits of liability laid down in Art. 17 of the Convention.
The Vice President is of the view that Hong Kong courts do not have jurisdiction (as the court at the 'place of destination' under Art. 28 of the Convention) as the plaintiff was holding a return ticket back to Kuala Lumpur.
The Vice President also would not interfere with the finding of the judge below namely that the action (issued on 23 August 2006) was time barred (more than 2 years) and that the carriage stopped (within the meaning of Art. 29 of the Convention) when the plaintiff decided not to use the return ticket (he flew to Australia instead).
^