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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hennessey -v- Aer Lingus Ltd [2012] IEHC 124 (13 March 2012)
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Cite as: [2012] IEHC 124
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Judgment Title: Hennessey -v- Aer Lingus Ltd Neutral Citation: [2012] IEHC 124 High Court Record Number: 2009 33CA Date of Delivery: 13/03/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2012] IEHC 124 THE HIGH COURT [2009 NO. 33 CA] BETWEEN LIAM HENNESSEY APPELLANT v.
AER LINGUS LIMITED RESPONDENT JUDGMENT of Mr. Justice Hedigan delivered on the 13th day of March 2012. 1. The plaintiff/appellant (the plaintiff) resides at 17 Patrician Villas, Stillorgan, in the County of Dublin. The defendant/respondent (the defendant) is a limited liability company carrying on the business of an airline and with a registered address at Dublin Airport in the County of Dublin. 2. This case concerns an appeal from a ruling made on the 12th February, 2009 at Dublin Circuit Court. On that date a preliminary hearing was held in relation to the plaintiffs claim for personal injuries and loss under the Air Navigation and Transport Acts incorporating the Warsaw Convention, the Occupiers Liability Act, 1995 and the Equal Status Act, 2000. The preliminary issue before the Court was whether the plaintiff was confined to bringing his claim for personal injuries and loss under the Warsaw Convention exclusively or whether he was entitled to include provisions of Domestic Law in his claim. Judge Linnane determined that the Warsaw Convention provided an exclusive cause of action and the sole remedy for the plaintiff in respect of his claim and precluded any claim based on domestic law. In the within proceedings the plaintiff seeks to appeal against this determination of the preliminary issue. Background Facts 3.2 In its defence which was delivered on the 13th July, 2004, the defendant argued that the plaintiff’s claim could only be maintained insofar as permitted by the Warsaw Convention. The defendant pleaded that the Warsaw Convention provided the exclusive cause of action which arises in respect of international carriage by air. As the plaintiff failed to serve notice of trial, the defendant brought an application on the 26th February, 2008, to dismiss the proceedings on grounds of delay. 3.3 The County Registrar declined to dismiss the proceedings and instead directed that a preliminary issue be tried which related to the issue of the exclusivity of the Warsaw Convention. In the Circuit Court, Judge Linnane rejected the plaintiff's argument that he was entitled to rely on domestic law. The Court stated at page 3:-
Plaintiffs Submissions
4.2 The plaintiff submits that the defendant has failed in commitments which it entered into in relation to persons with reduced mobility. These commitments are outlined in a letter of the 25th August, 2004 from one Fran Smyth of the Department of Transport to the plaintiff. Mr Smith wrote as follows:-
The Voluntary Passenger Service Commitments are a European initiative aimed at promoting a set of common customer standards among Europe's airports and airlines. The Commitments were adopted during the European Civil Aviation Conference/EU dialogue with the European air transport industry in Lisbon on 10th May, 2001, and came into operation on the 14th February, 2002. Acceptance of the Commitments is voluntary... Aer Lingus is a signatory. A special protocol entitled 'Meeting the Needs of People with Reduced Mobility' requires signatory airlines and airports to undertake certain commitments in relation to People with Reduced Mobility' ... Among the commitments to People with Reduced Mobility is the requirement that... ...a signatory airline take all reasonable steps to avoid loss or damage to mobility equipment. If loss or damage does occur, the airline is committed to make appropriate arrangements to meet the individual's immediate mobility needs.... 4.3 The plaintiff maintains that in order to secure medical treatment which is not available in Ireland he is required to travel abroad and he has no option but to travel by air. The plaintiff argues that his right as a European citizen to free movement within Europe has been interfered with by the defendants as on three occasions when he travelled with the defendant his motorised wheelchair has been damaged. The plaintiff submits that in addition to the defendant negligently damaging his wheelchair the defendant has also infringed his Human Rights by effectively depriving him of the opportunity to travel abroad for treatment. The defendant is acting in breach of inter alia Article 2 of the European Convention which protects the right to life and Article 5 of the Convention which protects the right to liberty and security. Finally the plaintiff submits the defendant by its actions has also breached its statutory duties to the plaintiff under the Occupiers liability Act, 1995 and the Equal Status Act, 2000. Defendants Submissions
Article 24 provides that:-
(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 of action and what are their respective rights." 5.2 The proper approach to the interpretation of the Warsaw Convention was considered by the Supreme Court in AHP Manufacturing v. DHL Worldwide Network [2001] 4 IR 531. Fennelly J. stated as follows at 541:-
5.3 In Sidhu and Others v. British Airways PLC [1997] AC 430, a decision of the House of Lords, passengers on a flight from Kuwait were detained against their will on board an aircraft and subsequently made claims for damages under the common law. The House of Lords held that the passengers had no rights under the common law and the convention was their exclusive remedy. In El Al Israel Airlines Ltd. v Tsui Yuan Tseng (1999) 525 US 155, The United States Supreme Court reached the same conclusion in a case where a passenger sought to bring a state-law personal injury claim. The Court observed that to construe the Convention so as to allow passengers to pursue claims under local law when the Convention did not permit recovery could produce several anomalies. The Court noted that such a reading would scarcely advance the predictability that adherence to the Convention has achieved worldwide. 5.4 The issue of the exclusivity of the Warsaw Convention has been considered in a number of Irish Cases. In Smyth v Aer Turas Teoranta (Supreme Court, 3 February, 1997) the Supreme Court (per Blayney J) having considered an argument based on negligence in a case of carriage of goods went on to refer (obiter) to Sidhu and suggested that the effect of that decision might be that the Convention was an "exclusive and exhaustive code", although the issue was left for another day as it had not been argued. When the Circuit Court was considering the preliminary issue in this case it found that the Warsaw Convention provided an exclusive cause of action and sole remedy for the plaintiff. In so doing the Court relied on the decisions in AHP Manufacturing, Sidhu and El Al. The same approach was taken by the Circuit Court in Nolan v. Aer Lingus Group PLC (Circuit Court, 9th November, 2009) where Judge Linnane concluded at page 7:-
5.5 The plaintiffs claim is also based on an alleged failure of the defendant to comply with its statutory duties under the Occupiers Liability Act 1995 and the Equal Status Act 2000. As a matter of principle, the defendant submits that, having regard to the decisions referred to above, the same principles apply to a claim based on an alleged breach of statutory duty as apply to a claim based at common law. The desirability of uniformity of rules governing claims arising from international air transportation applies equally to statute based claims as it does to those based on common law principles of liability. In addition, the Oireachtas, in enacting the two statutes, can hardly be taken to have implicitly intended to amend the Air Navigation and Transport Acts, which would have brought the State into contravention of its international law obligations under the Warsaw Convention. Given the absence of clear contrary intention, it is clear that neither statute relied on by the plaintiff can apply to a case governed by the Warsaw Convention. 5.6 The plaintiff has sought to rely on a letter written to him on the 25th August, 2004 by the Department of Transport. The letter refers to Voluntary Passenger Service Commitments and in particular to commitments to People with Reduced Mobility. The Defendant is a signatory to these Commitments. The commitments however are expressly characterised at page one to be "non-legally binding commitments". Thus the defendant submits that they do not provide the plaintiff with any cause of action. Decision of the Court 6.2 As provided for under section 38 of the Courts of Justice Act, 1936, this appeal from a decision of the Circuit Court to the High Court has proceeded by way of a full re-hearing of the decision. The decision of the Circuit Court was in relation to the preliminary matter of whether the Warsaw Convention provided an exclusive cause of action for the plaintiff. The Court is confined to considering this narrow issue and may presume for the purposes of this inquiry that the Plaintiff will be able to prove all the factual matters he alleges. The incident complained of in this case occurred on the 15th February, 2002. At that time the Warsaw Convention as amended, had the force of law in Ireland by virtue of Section 17(1) of the Air Navigation and Transport Act, 1936, which provides that:-
6.3 The plaintiff complains of damage to his wheelchair and also complains that this resulted in personal injury in that the loss of his mobility led to deterioration in his health. Personal injury and damage to property are covered by Article's 17 and 18 of the Warsaw Convention. Article 17 provides that:-
(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 of action and what are their respective rights." 6.4 The interpretation to be given to the Warsaw Convention was addressed by the Supreme Court in the case AHP Manufacturing v. DHL Worldwide Network [2001]4 IR 531. ln that case Fennelly J. held as follows at 541:-
6.5 In Sidhu and Others v. British Airways PLC [1997] AC 430, the House of Lords held that the passenger had no rights under the Common law and the Convention was their exclusive remedy. Lord Hope stated as follows:-
The reference in the opening words of Article 24(2) to the 'cases covered by Article 17 does, of course, invite the question whether Article 17 was intended to cover only those cases for which the carrier is liable in damages under that article. The answer to that question may indeed be said to lie at the heart of this case. In my opinion, the answer to it is to be found not by an exact analysis of the particular words used but by a consideration of the whole purpose of the article. In its context, the purpose seems to me to be to prescribe the circumstances, that is to say the only circumstances, in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air". 6.6 Notwithstanding that the above finding is dispositive of this case, I feel that it would be appropriate to address a letter produced, for the first time, by the plaintiff at the hearing of this appeal. This letter was sent to the plaintiff on the 25th August, 2004 by the Department of Transport. The letter refers to Voluntary Passenger Service Commitments and there is a section dealing with commitments to People with Reduced Mobility. The Defendant is a signatory to these Commitments. I am satisfied however that the commitments do not give rise to any legally enforceable right on behalf of the plaintiff. The first page of the Commitments expressly states that they are "non-legally binding commitments". Furthermore there is nothing in the document which suggests that it impacts on the exclusivity of the Warsaw Convention, which is the matter at issue in this appeal. Finally, I note that on the 7th February 2012, the date of the hearing in this case, the Court of Appeal of England and Wales affirmed the exclusive nature of the Warsaw and Montreal Conventions: see Hook v British Airways plc [2012] EWCA .. The English Court applied the Montreal Convention to exclude a claim for damages for an alleged failure by the airline to make reasonable efforts to meet the disabled plaintiff's seating needs. This claim arose from an alleged breach of the UK implementation of Regulation (EC) No. 1107/2006 concerning the rights of disabled persons and persons of reduced mobility when travelling by air. That regulation incidentally post-dates the incident which is the subject of these proceedings. At paragraph 28 of its judgment, the Court rejected the submission that claims for damages based on fundamental or constitutional rights are an exception to the exclusivity principle, and concluded (at paragraph 35) that:-
For all the above-mentioned reasons I must dismiss this appeal. The decision of the Circuit Court Judge on the preliminary issue was correct and is affirmed.
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