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O Regan v Ryanair DAC [2018] IEHC 852 (10 December 2018)
URL: http://www.bailii.org/ie/cases/IEHC/2018/2018IEHC852.html
Cite as:
[2018] IEHC 852
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Page 1 ⇓
THE HIGH COURT
[2018] IEHC 852
[2018 No. 2482 P]
BETWEEN
KEVIN O’REGAN
PLAINTIFF
AND
RYANAIR DAC
DEFENDANT
EX TEMPORE JUDGMENT of Mr. Justice Tony O’Connor delivered on the 10th day of
December, 2018
1. The plaintiff alleges that he was assaulted by the proposed third party on the flight from
Bari in Italy to Dublin Airport on 7th July, 2017 operated by the defendant. The defence
delivered in October 2018, pleads, inter alia, that the plaintiff’s claim does not come
within the provisions of Article 17 of the Montreal Convention 1999.
2. The plaintiff, in the alternative, pleads negligence and breach of duty on the part of the
defendant airline. The plaintiff submits that the proceedings are not required to be
authorised by the Personal Injury Assessment Board by virtue of s. 3A of the Personal
Injury Assessment Board Act 2003, as inserted by s. 56 of the Civil Law (Miscellaneous
Provisions) Act 2011.
3. The defendant denies that the incident was caused or contributed to by any act, default or
omission on its part. The defendant airline now seeks liberty to join the alleged assailant
as a third party. Order 16, rule 2 of the Rules of the Superior Courts provides that the
application seeking to join a third party shall be made on notice to the plaintiff and
“[u]nless the plaintiff wishes to add the third party as a defendant, his attendance at the
hearing of the motion shall not be necessary”.
4. The plaintiff through counsel not only does not wish to join the third party as a defendant
but objects to the application by the defendant on the grounds that the defendant and the
third party could not be concurrent wrongdoers. Effectively the plaintiff resists the
application for leave to issue a third party notice.
5. Counsel for the plaintiff glosses over the alternative plea in the personal injury summons
relating to negligence when submitting that liability under Article 17 of the Montreal
Convention cannot be “off loaded” onto the third party. Counsel cites the Court of Appeal
judgment in Bell v. Dublin Airport Authority Plc [2016] IECA 384 (unreported, Court of
Appeal, 15th December, 2016) of the then President of the Court of Appeal.
6. Mr. Walker, for the defendant, draws the Court’s attention to para. 47 of that judgment
which reads:-
“In my judgment, Ms. Bell was restricted to proceeding against Aer Lingus
irrespective of any claim that the carrier might have against the third party,
including the Dublin Airport Authority, if it considered that appropriate. That did
not mean that Ms. Bell was entitled to sue the Authority. This point would be
Page 2 ⇓
available to that party in the event that Aer Lingus issued third party proceedings
and the plaintiff applied to join the Authority as an additional defendant.”
7. The resistance of the plaintiff to the defendant’s application is ill-founded by virtue of:-
(i) Order 16, rule 2, Rules of the Superior Courts;
(ii) The unexplained overlooking of the alternative plea in the personal injury summons
issued on 21st March, 2018, which the plaintiff has not withdrawn;
(iii) the defence delivered in October 2018; and
(iv) the implication arising from Bell v. Dublin Airport Authority plc and particularly
para. 47 thereof.
8. I, therefore, give liberty to the defendant to issue a third party notice in the form
exhibited as PL1 in the affidavit sworn by Peter Lennon on 3rd October, 2018. I direct
that the third party issue be heard as the trial judge may direct when the plaintiff’s claim
comes to trial. I also make an order giving liberty to the third party to file a defence to
the third party notice within 28 days from the entry of an appearance on the part of the
third party.
Result: Airline given liberty to issue third party notice directed to alleged assailant of plaintiff on aircraft despite objection from plaintiff who claims pursuant to Montreal Convention 1999 in addition to alleged negligence of airline