Inner House refuses appeal against decision that airline was liable for full £1 million claim for injuries suffered by disabled passenger

Inner House refuses appeal against decision that airline was liable for full £1 million claim for injuries suffered by disabled passenger

The Inner House of the Court of Session has refused an appeal by an airline against a finding that it was responsible for excess damages arising from the injury of a paraplegic passenger who fell from a wheelchair while being pushed along an air bridge.

EasyJet Airline Co Ltd argued that they were not liable to pay excess damages to original pursuer and respondent Colin Mather, who sought £1 million in damages. DRK Hamburg Mediservice GmbH, who employed the man who was pushing the wheelchair, maintained that easyJet was liable for the full amount and they were not vicariously liable for the actions of their employee.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Pentland and Lady Wise. McBrearty KC and Pugh KC appeared for the reclaimers, Di Rollo KC and Thornley, advocate, appeared for Mr Mather, and Shand KC appeared for DRK.

Correct test

On 15 May 2017, Mr Mather was disembarking a flight from Edinburgh to Hamburg when he fell from a wheelchair while being pushed by an employee of DRK, Daniel Heinz. It was not disputed that under the Montreal Convention easyJet was liable to compensate the respondent up to the sum of £146,000, but he sought damages in excess of that amount, again under the Convention, on the basis that Mr Heinz was acting as an agent of easyJet at the time of the accident.

It was contended by the reclaimers that Mr Heinz was not their agent and thus they were not liable for the excess loss. Alternatively, if he was their agent, they sought a contribution from DRK under English law, or failing that German law. The Lord Ordinary held that Mr Heinz was easyJet’s agent, and as the accident was caused by his negligence. Additionally, easyJet were time-barred from making a claim against DRK, the applicable law being German law.

It was submitted for the reclaimers that the test for whether a party was an agent of the carrier included that the task they carried out was something capable of being done by the carrier. The Lord Ordinary had failed to apply the second part of the test, as it was not easyJet’s responsibility to assist the respondent with disembarking. EasyJet had no authority or control over DRK, and it would be contrary to the purpose of the Convention if they were responsible for all aspects of travel, even those in which they were not involved.

For Mr Mather it was submitted that the Lord Ordinary had applied the correct test. He had contracted with the reclaimer to be transported safely to the arrivals gate at Hamburg Airport, and anything done in the course of helping him to disembark was covered by that contract. A cross-appeal was made on the basis that his alternative case against DRK had not been determined and this would require to be resolved if the reclaiming motion were successful.

Gate-to-gate principle

Lord Carloway, delivering the opinion of the court, observed generally: “The Montreal Convention does not define ‘agent’. Quantum valeat, it does not have a precise legal meaning in Scots law either, although agency might generally be described as arising when a person (the agent) has the power (whether express or implied) to create a legal relationship between the principal and a third party. Given the need for international uniformity, the domestic concept ought to be of peripheral relevance.”

He continued: “The question becomes whether what Mr Heinz was doing was in furtherance of the contract of carriage. There is little difficulty here because it is conceded that the transportation of the pursuer to at least the arrivals gate was part of the operation of disembarkation in terms of Article 17 of the Montreal Convention. It is part of the contract of carriage. The gate-to-gate principle is a sound one. It too neatly and clearly defines the limits of the contract of carriage for the benefit of airlines, passengers, and insurers.”

Noting that a passenger was still in the custody of the air carrier until their release into parts of the airport used by other users, Lord Carloway added: “The airline is responsible for the actings of all those assisting passengers along this route. These assistants are the airline’s agents for the purposes of the Convention. Thus the agent may be the airport or the airport’s contractors depending upon the circumstances. This approach promotes the objectives of certainty and consistency which lie at the heart of the Montreal Convention.”

Addressing the pursuer’s cross-appeal, he concluded: “DRK’s proposition that the accident would have happened anyway, had Mr Heinz been advised of the ridge hazard, is reasonably described as fanciful. There is no basis, especially in the absence of testimony from Mr Heinz, for a conclusion that, had he been properly instructed, he would have ignored that instruction and culpably approached the ridge at speed. In these circumstances, the pursuer’s alternative case against DRK under German law is a sound one and an express finding to that effect ought to have been made by the Lord Ordinary.”

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