THE SUPREME COURT
[Appeal No. 476 JR/2012]
Clarke J.
MacMenamin J.
Laffoy J.
KEVIN CARROLL
APPLICANT/APPELLANT
AND
AIR ACCIDENT INVESTIGATION UNIT, THE IRISH AVIATION AUTHORITY, THE ATTORNEY GENERAL AND IRELAND
RESPONDENTS
AND
AN GARDA SIOCHANA
THE MINISTER, THE DEPARTMENT OF TRANSORT, TOURISM AND SPORT
THE HEALTH & SAFETY AUTHORITY
THE MINISTER OF THE DEPARTMENT OF JOBS, ENTERPRISE AND INNOVATION
THE DUBLIN CITY CORONER, DR. BRIAN FARRELL
Judgment of Mr. Justice John MacMenamin dated the 26th day of November, 2015
1. On the 24th October, 2012, Peart J., in the High Court, refused the appellant’s application for leave to bring judicial review proceedings. The appellant, who is a litigant in person, now appeals that order.
2. The appellant, Kevin Carroll (“Mr. Carroll”), was formerly an employee of S.R. Technics. He worked as an aircraft maintenance engineer. He was employed at Dublin Airport, where S.R. Technics carried on business. At the time of the incident, at the centre of this appeal, Mr. Carroll had been working with S.R. Technics for less than 5 months.
3. On the 19th March, 2008 a fatal accident befell the late David Ralph, who was a co-employee of the applicant/appellant. Mr. Carroll did not know Mr. Ralph; nor had he ever spoken to him. Mr. Carroll was concerned about what had caused the accident. This was to a degree understandable, as he worked in the same location as Mr. Ralph, and was or might have been, expected to use the same equipment. He contends in this appeal that the accident should have been investigated by the two respondents named in this appeal. Ultimately, four years later, he decided to bring judicial review proceedings.
4. In essence, Mr. Carroll contends that each, or both, of the respondents should have carried out an investigation of the accident. He does not now say that what occurred was an aviation event, which required to be investigated in itself, but rather that what had occurred on the day indicated a potential threat to passengers in the future; that, to put it colloquially, it was an accident “waiting to happen”, in that the procedure that caused the accident could have occurred when passengers were boarding the plane, and was, therefore, a threat to passengers. Consequently, he contends that what occurred could have been a serious incident, meriting investigation by the two named respondents.
5. The High Court report, furnished to this Court by Peart J., described the circumstances of the accident in more detail. The event occurred when the deceased, David Ralph, was in a basket at the end of a hoist which was placed adjacent to an empty City Jet high-wing aircraft at Dublin Airport. The aircraft was due for operation later in the morning. The late Mr. Ralph was engaged in a de-icing procedure prior to passengers boarding the aircraft. The aircraft was, therefore, non-operational at the time. It is not said any crew were on board. There were no passengers on board; nor were passengers or crew in the process of boarding, disembarking, or in the vicinity of the stationary aircraft. It is not said the engines were running. The accident was caused by a pin shearing. This pin held the basket in place at the top of the hoist. The fracture, or shearing, caused the basket to fall to the ground, as a result of which Mr. Ralph sustained his injuries. There are questions raised as to whether the pin was replaced, and whether the hoist was maintained in good condition. The Court has not been informed whether those issues were addressed in the Health & Safety Report, or whether there were any civil proceedings against the employer, where this issue was raised or dealt with. These questions are not, in themselves, relevant to this judicial review application for leave, where what is in issue is essentially mandamus, i.e. compliance with statutory duty.
6. In G v. DPP [1994] 1 I.R. 374, Finlay C.J., this Court, set out the tests which should be applied in considering whether leave for judicial review should be granted. He held at p. 377 to 378, that for leave to be granted:
“… An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in Order 84, Rule 21(1), or that the Court is satisfied that there is a good reason for extending the time limit.
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”
7. There is no doubt that Mr. Carroll has raised a concern about the accident. But, is this concern sufficient, in legal terms, to establish he has sufficient legal interest to give him standing to bring the application? He was not involved in the event. He does not, apparently, know the Ralph family, nor have any connection with them. He does not have any official position which would give him legal standing to bring judicial review proceedings (Cahill v. Sutton [1980] I.R. 269). With the exception of one factor, identified later, he is effectively, in law, a “stranger” to the case.
8. The kernel of this application for leave concerns, in law, whether this was an accident involving an operational aircraft with passengers or crew on board.
9. Mr. Carroll sought leave to obtain an order of mandamus, directing the first named respondent, that is, the Air Accident Investigation Unit, to investigate the occurrence, pursuant to S.I. 460 of 2009. This statutory instrument was, in fact, a successor to S.I. 205 of 1997, and it is S.I. 205 of 1997 which was operative on the 19th March, 2008, being the date of the fatality. This latter is, therefore, the operative statutory instrument.
10. Regulation 10(1) of S.I. 205 of 1997, the Air Navigation (Notification & Investigation of Accident and Incidents) Regulations, 1997. provides that:
“Every accident or serious incident to which these Regulations apply shall be the subject of an investigation.” (Emphasis added)
11. In Regulation 3, “accident” is defined as follows:
“any occurrence associated with the operation of an aircraft which takes place from the time any person boards the aircraft with the intention of flight until such time as all persons have disembarked, in which -
(a) a person is fatally or seriously injured as a result of -
(i) being in or on the aircraft,
(ii) direct contact with any part of the aircraft, including a part which has become detached from the aircraft, or
(iii) direct exposure to jet blast,
except when the injuries are from natural causes, self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew” (emphasis added)
12. In the same provision (Regulation 3) “serious incident” is defined as “an incident involving circumstances indicating that an accident nearly occurred”, the term “incident” is, in turn, defined as “an occurrence, other than an accident, associated with the operation of an aircraft which affects or is likely to threaten the safety of the aircraft or its operation.”
13. As this appeal relates to an application for leave to seek judicial review and is, thus, as already noted, based on a test of arguability, I am prepared to accept that there may be a case on the facts that there was a possibility, or likelihood, that an accident similar to that which unfortunately befell Mr. Ralph could have occurred at a time when passengers had boarded a plane. Even if, however, it might be possible to suggest that there was some type of latent threat to a boarded plane arising in that way it is important to note that a “serious incident” is not defined by reference to a threat but rather by reference to an accident which “nearly occurred”. The non-exhaustive examples of serious incidents given in the first schedule to the regulations are specified as operating as a “guide” to the definition of “serious incident”. The type of events described involve near misses or the like. They all involve an event where an accident (i.e. an occurrence on a boarded aircraft as a result of which a fatality or serious injury occurs), is just averted. Those examples are entirely consistent with the definition of a serious incident as involving an accident which “nearly” happened. The fact (even if it were to transpire to be the case) that there was a latent problem with the de-icer which might, possibly, have created a relevant occurrence in relation to a boarded aircraft, falls a long way short of an occurrence which led to an accident “nearly” occurring.
The Basis for this Decision
14. For reasons which will now be explained, and irrespective of legal standing and promptness issues, I would nonetheless dismiss this appeal on its merits
15. The applicant/appellant says that the second named respondent, the Irish Aviation Authority, erred in law in allowing the Health & Safety Authority to have sole jurisdiction over the investigation. He asserts that the only reason that the aircraft was being de-iced was an intrinsic element of this particular intended flight. But, does this arguably give rise to an arguable case? This application does not concern a “near miss”, or at worst a possible air incident. The plane was not “operational”. The pre-spray tactile inspection of the upper surface of this high winged aircraft, during the pre-flight inspection, did not equate to, and could not be characterised as, the aircraft being “boarded” with the intention of “flight”, nor did it relate to a near miss.
16. This was not, therefore, an “air accident”, which came within the remit of either respondent. Nor was it, to use the relevant terminology, an incident or occurrence associated with the operation of the aircraft which affected, or was likely to threaten, the safety of the aircraft, or its passengers or crew. We are not dealing with a near miss. The very remote possibility of such an incident becoming a threat to passengers is, to my mind, too distant to bring the application within the grounds of arguability. This was, therefore, an industrial or work accident which came within the remit of the Health & Safety Authority, and not the Air Accident Investigation Unit, or the Irish Aviation Authority. The use for a number of years of the de-icing rig in the vicinity of an operational aircraft cannot be regarded as being a serious “air incident”, or “near miss”, within the meaning of the first schedule of the Regulations.
17. Mr. Carroll asserts that the granting of approval by the Irish Aviation Authority to an aircraft maintenance organisation, such as S.R. Technics, is predicated on there being a fiduciary duty owed by the accountable manager of an aircraft maintenance organisation to the Irish Aviation Authority. He contends that the validity of this relationship would be dependent on such accountable manager reporting aviation issues, such as aircraft passenger endangerment, to the Authority, in compliance with approval and procedures. Mr. Carroll asserts that there was a failure on the part of the Irish Aviation Authority to exercise oversight in regard to the granting of an approval certificate to S.R. Technics. This is too far fetched. There is no prima facie duty giving rise to judicial review. Having regard to G v. DPP [1994] 1 I.R. 374, the application is unstateable.
18. Some 4 years elapsed between the time of the accident and the application for leave to bring judicial review proceedings. Mr. Carroll says that full, or fuller, information about the occurrence only came to his attention at Mr. Ralph’s inquest in 2012. However, this delay, although a salient consideration, is not the basis of my finding. While my decision is on the merits, the elapse of time cannot be ruled out of the equation, having regard to the time limits in Order 84, Rules of the Superior Courts. Whether or not further information regarding the accident came to light at the Coroner’s inquest into Mr. Ralph’s death, does not seem to me relevant to the question of the duty, per se. If there was a statutory duty on the respondents, that duty (if there was one) arose in 2008, not in 2012.
19. It is not in dispute that the Health & Safety Authority conducted an investigation into the incident. The statutory remit of both respondents did not require that this accident fall for investigation by them. There was no mandatory duty on either in the circumstances outlined. I reiterate that the applicant was not in a position to inform the Court as to whether or not relatives of the late Mr. Ralph had themselves brought civil proceedings. There is no indication that family members of the late Mr. Ralph are associated, or aware of, this application for judicial review. We have not been informed as to the findings of the Health & Safety Report. I confine myself to holding that test (c) in G v. DPP [1994] 1 I.R. 374 at p.378 is not met. In fact, there are real question marks over each of the tests (a) to (e) at p.377 to 378.
20. In the course of his application, Mr. Carroll informed the Court that he now devotes much of his time to pursuing the interests of a number of former S.R. Technics employees in a claim which is being mounted for entitlements arising from their former employment. The Court was informed that Mr. Carroll had also initiated a further, connected, judicial review to this question before Ms. Justice Faherty in the High Court. The Court has been furnished with a copy of an order dated 12th January, 2015, made by the High Court (Faherty J.) in judicial proceedings (Record No. 2014 No. 480 JR), in which Mr. Carroll is applicant, and Air Accident Investigation Unit, Ireland and the Attorney General are respondents, and in which Mr. Carroll sought an order of mandamus that the Air Accident Investigation Unit “fulfil its statutory duty … and investigate under the classification ‘serious incident’ the ‘Unsafe Situation’ that existed in the Airspace of the Ukraine prior to the aircraft accident of 17th July, 2014 …”. The High Court ordered that the application stand refused. Mr. Carroll informed the Court that he had not appealed against that refusal.
21. For this last reason, I do not think that Mr. Carroll can be considered to be a vexatious litigant. Had he appealed that order, the position might well have been different. However, it is important that litigants who are seen to pursue litigation on a repeated, and needless, basis be aware of what is called an “Isaac Wunder” order, which can restrain the bringing of repeated and vexatious proceedings. I make no comment whatsoever on any claim, before any Rights Commissioner, or any other forum or Tribunal, brought by employees of S.R. Technics. That is a separate matter.
22. This application for leave to seek judicial review does not reach the appropriate threshold, as set out by Finlay C.J. I would affirm the order of the learned High Court judge, refusing leave, and dismiss the appeal.
