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Cite as: 2023 GWD 5-60, 2023 SC 171, [2023] ScotCS CSIH_8, [2023] CSIH 8, 2023 SLT 209

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2023] CSIH 8

PD159/19

Lord President

Lord Pentland

Lady Wise

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the reclaiming motion

in the cause

COLIN MATHER

Pursuer and First Respondent

against

(FIRST) EASYJET AIRLINE COMPANY LIMITED

First Defenders and Reclaimers

and

(SECOND) DRK HAMBURG MEDISERVICE gGmbH

Second Defenders and Second Respondents

______________

Pursuer and First Respondent: Di Rollo KC, Thornley; Digby Brown LLP

First Defenders and Reclaimers: McBrearty KC, Pugh KC; Clyde & Co (Scotland) LLP

Second Defenders and Second Respondents: Shand KC; DAC Beachcroft LLP

10 February 2023

Introduction

[1]

The pursuer requires to use a wheelchair. On 15 May 2017, he was injured when

disembarking an easyJet flight from Edinburgh to Hamburg. He was severely injured when

he fell from a wheelchair which was being pushed along an air bridge by an employee of

DRK, namely Daniel Heinz. The pursuer sues easyJet under the Montreal Convention. It is

not disputed that easyJet are liable under the Convention to compensate the pursuer for his

loss up to the equivalent of a specific number of Special Drawing Rights; worth about

£146,000 at the time of the accident. The pursuer claims damages from easyJet in excess of

that amount, again under the Convention, on the basis that Mr Heinz was an agent of

easyJet. If he was not an agent of easyJet, the pursuer has an alternative case against DRK

under German law, based upon DRK's vicarious liability for the actings of their employee.

[2]

EasyJet accept that Mr Heinz was at fault. Their defence is that he was not their

agent. EasyJet contend that they are not liable for the excess loss; the damage having been

caused not by them but solely by a third party. Alternatively, if they are liable because

Mr Heinz was their agent, they make a claim for a contribution from DRK under English

law, which failing German law. DRK table a wide-ranging defence, which includes several

permutations. At times they seemed to be maintaining that easyJet alone were responsible

for the actings of Mr Heinz. They were certainly arguing that they were not vicariously

liable for their employee's actings under the applicable German law. Mr Heinz had not been

at fault. In any event, the claim was time barred under both the Montreal Convention and

German law. The English law of limitation relative to contribution, in terms of which the

claim would not be time barred, was not applicable.

[3]

The Lord Ordinary determined ( [2022] CSOH 40 ) that Mr Heinz had been acting as

easyJet's agent. The accident had been caused by the negligence of Mr Heinz. EasyJet were

liable for the whole damages. The law applicable to easyJet's contribution claim was

German. It was not disputed that, under German law, the claim was time barred. The

issues in this reclaiming motion (appeal) are broadly whether the Lord Ordinary`s

conclusions are correct. In addition, it is said that the Lord Ordinary failed to address other

issues which had been put before him, including DRK's vicarious liability for Mr Heinz

under German law and the applicability of the English law of limitation to the contribution

claim.

The Convention, EU Regulations, German and English law

The Montreal Convention for the Unification of Certain Rules for International Carriage by

Air

[4]

The Montreal Convention of 1999 is incorporated into domestic law by the Carriage

by Air Act 1961, as amended by the Carriage by Air Acts (Implementation of the Montreal

Convention 1999) Order 2002/263. It provides:

"Chapter III (Liability of the Carrier and Extent of Compensation for Damage)

Article 17 ... Injury of Passengers Damage to Baggage

The carrier is liable for damage sustained in case of ... bodily injury of a

passenger upon condition only that the accident which caused the ... injury

took place on board the aircraft or in the course of any of the operations of

embarking or disembarking.

Article 21 Compensation in Case of ... Injury of Passengers

For damages ... not exceeding [113,100]

Special Drawing Rights for each

passenger, the carrier shall not be able to exclude or limit its liability.

The carrier shall not be liable for damages ... to the extent that they exceed for

each passenger [113,100] Special Drawing Rights if the carrier proves that

(a)

such damage was not due to the negligence or other wrongful act or

omission of the carrier or its servants or agents; or

(b)

such damage was solely due to the negligence or other wrongful act

or omission of a third party.

The original figure was increased by the Carriage by Air (Revision of Limits of Liability under the

Montreal Convention) Order 2009; that figure is now 128,821 in terms of a 2021 Order.

Article 26 Invalidity of Contractual Provisions

Any provision tending to relieve the carrier of liability or to fix a lower limit than

that which is laid down in this Convention shall be null and void ...

...

Article 29 Basis of Claims

In the carriage of passengers, ... any action for damages, ... can only be brought

subject to the conditions and such limits of liability as are set out in this Convention

... ".

[5]

Article 30 provides that if an action is brought against an "agent" of a carrier, then

the agent can avail himself of the limitations on liability to which the carrier is entitled.

Article 35 states that the right to damages "shall be extinguished" if an action is not brought

within a period of two years. Article 37 provides that nothing in the Convention prejudices

whether a person, who is liable for damages under the Convention, has a right of recourse

against another person.

EC Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced

mobility when travelling by air

[6]

The preamble to the PRM Regulation explains that its purpose is to ensure that

disabled persons and those with reduced mobility have comparable opportunities for air

travel as other citizens of the single market (recital (1)). Assistance to meet their needs ought

to be provided at the airport and on board, including any necessary staff and equipment

(rec (4)). Assistance should be from a designated point of arrival at the airport and to a

designated point of departure from the destination airport, including embarking and

disembarking the aircraft (rec (5)). Responsibility should be that of airports' "managing

bodies" (rec (6)), but they may contract with third parties, including carriers, to provide the

designated assistance (rec (7)). Financing is spread amongst all passengers, with a levy

being charged to each carrier using the airport (rec (8)).

[7]

The Articles of the Regulation detail what has to be done in relation to the

designation of the point at which persons can "announce their arrival... and request

assistance" (Art 5). Carriers have to inform passengers about how they can notify them of

their need for assistance and this information must be conveyed by the carriers to the

relevant airport (Art 6). As soon as possible after the departure of the flight, the carrier has

to inform the destination airport (if it is within the EU) of the nature of the assistance

required upon arrival (ibid). Article 7(6) states that, when a disabled or reduced mobility

passenger arrives at the airport:

"... the managing body of the airport shall be responsible for ensuring the provision

of the assistance specified in Annex I in such a way that the person is able to reach

his or her point of departure from the airport ...".

One of the forms of assistance contained in Annex I is the provision of a wheelchair. The

Articles go on to provide for the various requirements already described in the recitals. The

airport is responsible for ensuring that the assistance is provided without any additional

charge to the disabled or reduced mobility passenger (Art 8(1)). Instead, the cost of

assistance is levied by the airport against the carriers (Art 8(4)). The airport can provide the

assistance itself or it can sub-contract this to, amongst others, the carrier (Art 8(2)). Carriers

are required to provide certain facilities on board the aircraft, including the use of toilet

facilities (Art 10; Annex II).

Regulation (EC) 864/2007 ... on the law applicable to non-contractual obligations (Rome II)

[8]

Recital 17 of this Regulation states that the applicable law for non-contractual

obligations should be determined on the basis of where the damage occurs. In personal

injury cases this is where the injury is sustained. Article 4 therefore provides that:

"1.

... the law applicable to a non-contractual obligation arising out of a

tort/delict shall be the law of the country in which the damage occurs ...

...

Where it is clear ... that the tort/delict is manifestly more closely connected

with a country other than that indicated in paragraph ... 1 ... the law of that other

country shall apply. A manifestly closer connection with another country might be

based ... on a pre-existing relationship between the parties, such as a contract, that is

closely connected with the tort/delict in question."

Article 15 states that the applicable law governs the basis and extent of liability (15(a)), the

manner in which the obligation can be extinguished and the rules of prescription and

limitation (15(h)).

German law

[9]

The German Civil Code, in so far as potentially relevant, provides as follows:

"Section 195

Standard Limitation Period

The standard limitation period is three years.

...

Section 199

Commencement of the standard limitation period and maximum limitation periods

(1)

The standard limitation period commences at the end of the year in which:

the claim arose and

the obligee obtains knowledge of the circumstances giving rise to the

claim and of the identity of the obligor ...

...

Section 823

Liability in damages

(1)

A person who, intentionally or negligently, unlawfully injures the ... body ...

of another person is liable to make compensation to the other party for the damage

arising from this.

...

Section 831

Liability for vicarious agents

(1)

A person who uses another person to perform a task is liable to make

compensation for the damage that the other unlawfully inflicts on a third party when

carrying out the task. Liability in damages does not apply if the principal exercises

reasonable care when selecting the person deployed and, to the extent that he is ... to

manage the business activity, in the ... management, or if the damage would have

occurred even if this care had been exercised."

English law

Carriage by Air Act 1961

[10]

Section 5 of the 1961 Act, so far as applicable to England and Wales, reads:

"Time for bringing proceedings

(1)

No action against a carrier's servant or agent which arises out of damage to

which any of the Carriage by Air Conventions applies [shall]... be brought

after more than two years, reckoned from the date of arrival at the

destination...

(2)

[Article 35 of the Montreal Convention] shall not be read as applying to any

proceedings for contribution between persons liable for any damage to which

any of the Carriage by Air Conventions relates ..."

Civil Liability (Contribution) Act 1978

[11]

Section 1 of the 1978 Act sets out the English law on "entitlement to contribution". It

provides that:

"(1)

... any person liable in respect of any damage suffered by another person

may recover contribution from any other person liable in respect of the same damage

(whether jointly with him or otherwise).

...

(3)

A person shall be liable to make contribution ... notwithstanding that he has

ceased to be liable ... unless he ceased to be liable by virtue of the expiry of a period

of limitation or prescription which extinguished the right on which the claim against

him in respect of the damage was based.

...

(5)

A judgment... in any part of the United Kingdom... shall be conclusive in the

proceedings for contribution as to any issue determined... in favour of the person

from whom the contribution is sought.

(6)

References ... to a person's liability in respect of any damage are references to

any such liability which ... could be established in an action brought against him in

England and Wales ...".

Section 2 sets the level of apportionment as "such as may be found... to be just and equitable

having regard to the extent of that person's responsibility for the damage...". The level of

contribution can amount to a complete indemnity (s 2(2)).

Limitation Act 1980

[12]

This Act governs the general time limit for claiming contribution as follows:

"10(1) Where under section 1 of the Civil Liability (Contribution) Act 1978 any

person becomes entitled to a right to recover contribution in respect of any damage

from any other person, no action to recover contribution by virtue of that right shall

be brought after the expiration of two years from the date on which that right

accrued."

Subsections (2), (3) and (4) provide that the date of accrual is when the person is held liable

in a civil judgment or in a settlement.

Facts

[13]

The pursuer had been rendered an incomplete paraplegic as a result of an accident in

2009. He required the use of a wheelchair. He was nevertheless an active self-employed

consultant whose business caused him to be a frequent air traveller. He booked a seat on an

easyJet flight from Edinburgh to Hamburg; scheduled to depart on 15 May 2017. He

notified easyJet that he required special assistance. The extremely detailed terms and

conditions relative to his booking included a section on "Pre-booked Assistance"

(condition 12.3). This stated that the passenger was to advise a member of easyJet's staff on

arrival at the airport and they would organise assistance (12.3.1). This is consistent with the

pursuer's boarding pass which noted that he had asked for special assistance and asked him

to contact a member of staff (presumably easyJet staff) at the bag drop area.

[14]

The terms and conditions continue:

"12.3.6 The provision of assistance through the airport, onto the aircraft and through

the arrivals process at the destination is the responsibility of the relevant Airport

Authority. Concerns about the level of service provided should be directed to the

Airport Authority as appropriate."

The conditions contained provisions whereby the law relating to the contract of carriage

would be that of England and Wales and the parties were subject to a non-exclusive

prorogation of the jurisdiction of the courts of England and Wales (condition 29).

[15]

The flight was delayed, as was the pursuer's disembarkation on arrival at Gate 7B in

Hamburg. His wheelchair was in the hold. He was given help in the form of two assistance

personnel, including Daniel Heinz. These were employees of DRK; a non-profit

organisation contracted by the airport, in terms of a "Master agreement", to provide

assistance for passengers covered by the PRM Regulation. This agreement provided (s 7)

that DRK were liable for all damage incurred during the performance of their services and

required to indemnify the airport against claims by third parties. DRK had to take out

public liability insurance to cover personal injury losses of up to 2.5 million.

[16]

The pursuer was helped first from his seat to the door of the aircraft. This was done

using an aisle chair, which is kept on board the aircraft. At the door, he was lifted into an

airport wheelchair and pushed by Mr Heinz up an air bridge towards Gate 7B at the

terminal. The air bridge had been refurbished and returned to service about two months (or

possibly a shorter period) previously. The pursuer thought he had been pushed "quite

briskly". At the point where the bridge joined the terminal, the wheelchair stopped abruptly

and the pursuer was ejected from it; landing on the floor just inside the terminal threshold.

The wheelchair had struck a raised edge at that point. As a consequence of this incident the

pursuer suffered serious injuries.

[17]

The pursuer sues easyJet for £1m under the Montreal Convention, first in relation to

their liability to pay up to 113,100 SDRs and, secondly, for the balance on the basis that

Mr Heinz, for whose actings DRK were responsible, was acting as easyJet's agent. EasyJet

maintain that DRK were not acting as their agents. In any event, they seek a contribution

from DRK on the basis of the law of the contract (English law), which failing that Mr Heinz

was at fault under section 823 of the German Civil Code. DRK are vicariously liable for his

actings under section 831, but English law then governs the relevant contribution. The

pursuer has an alternative claim against DRK under German law.

Selected Evidence

German law

[18]

Dr Petra Schaaff is a German lawyer based in Hamburg. On 2 November 2021, in

response to instructions from the pursuer's law agents, she reported on the concept of

vicarious liability in German law; referring specifically to section 831 of the German Civil

Code. Her report was adopted in her testimony. Where a person was injured unlawfully by

an employee, the employer could escape liability if he had fulfilled his duty of care in the

selection, supervision and training of the relevant person. The standard to be applied

depended on the risk involved. A person who was selected carefully might not remain so.

The employee would require continuous supervision and training. Reference was made to

Palandt: Bürgerliches Gesetzbuch (a commentary on the Code) (78th ed) section 831 para 13).

[19]

According to Dr Schaaff's understanding of the facts, the air bridge had been

refurbished and put back in service on 10 March 2017. The employee had his last training

session prior to that on 21/22 February. He had not worked on the new bridge prior to the

accident on 15 May 2017. He had said that he had no reason to expect a difference in level at

the connection between the bridge and the terminal, as this was not normal. This, according

to Dr Schaaff, showed that he had not been sufficiently trained and made familiar with the

new bridge's features and hazards. DRK could not rely on the exoneration provision in

section 831. The accident would not have happened if the employee had been duly

supervised.

[20]

In her testimony, Dr Schaaff referred to the need for the employer to supervise the

employee and for there to be checks and controls to make sure that he was still doing his

best and doing it safely. If DRK had been unaware of the hazard on the bridge, then they

should have been so aware. They had close contact with the airport and obtained regular

reports of things that had changed; including any structural modifications. It was not

necessary to prove negligence for section 831 to apply. All that was needed was that

damage had been caused unlawfully. There was almost invariably unlawfulness if an

accident had occurred. Either the employee or the employer had done something wrong.

[21]

Dr Schaaff referred to the standard limitation period of three years in section 195 of

the Code. That period, in terms of section 199(1), started at the end of the year in which the

accident occurred. It was agreed by joint minute that the action had been served timeously

on DRK by the pursuer on 30 June 2020.

[22]

Marcel Hohagen is a partner in the German law firm BLD (Bach Langheid Dallmayr)

and is based in Cologne. He was engaged by DRK's law agents. He provided a report

dated 2 November 2021 to which he referred during his testimony. In discussing the

Montreal Convention from a German point of view, he referred to the German text, which

uses "Leute" (people) instead of the German for "agents". Looking at Article 17 of the

Convention, Mr Hohagen referred to what he described as a common understanding in the

legal literature, at least in Germany, of the "gate-to-gate" principle whereby the carrier is

responsible for what happens in between the departure and arrival gates, in cluding the path

over a bridge up to an arrivals' gate. Mr Hohagen's report refers, at footnote 3, to an article

by Alexander, in VersR 2018, 939 (942). This comments on the German Federal Court of

Justice case of X ZR 30/15 on 21 November 2017 which found the carrier liable for a slip on a

damp spot on an air bridge. Until he reaches the arrivals' gate, the passenger:

"has no way out, is restricted in his/her movement and needs guidance at least by the

air carrier to get out. He/she is in [the] custody of the air carrier. In turn, where the

air carrier uses services by third parties to provide his/her customer with its own

transportation services, those third parties are consequently to be qualified as `Leute'

in terms of Art. 30 MC, as otherwise the sharing of the air carrier's work with

subcontractors could reduce responsibility and liability, which is contrary to the

intention of the MC to form a unified regime of liability for the air carrier in favour of

the passenger".

EasyJet's duty to provide the pursuer with assistance was demonstrated by the terms of

DRK's agreement with the airport. This provided that the carrier had to send a message

requesting the assistance in advance. DRK acted for the airport in agreeing a service

contract with the carrier and the airport was entitled to charge the carrier for DRK's services.

In order to fulfil their duties, the carrier subcontracted with the airport and the airport

subcontracted with DRK.

[23]

Mr Hohagen described how vicarious liability operated in German law. It was

covered by section 831 of the Civil Code. The principal was not liable if he exercised

reasonable care when selecting the agent provided that he monitored and trained the agent

diligently. In relation to the fault of DRK's employee under section 823, the German courts

would probably determine the case on the basis of whether Mr Heinz should have noticed

the ridge which caused the wheelchair to stop. The German Federal Court had ruled that

operators of hospitals and care homes had specific duties of care when transporting people

with reduced mobility. Such activities had to be carried out "with such care that a fall of

those persons is excluded". A fall indicated a breach of duty. A hospital would have the

burden of proof of demonstrating that the fall was not as a result of careless conduct by the

nurse. The German courts would probably require the nurse to be aware of any hazards on

the path to be taken by the wheelchair. Here the ridge had been marked by a yellow strip.

A German court would assess for itself whether the ridge was visible, having regard to

whether the employee had previously used the path to reach the aircraft. If the employee

was at fault, it was a matter of fact whether DRK had adequately monitored and trained

him.

[24]

In his testimony, Mr Hohagen explained that the first question was whether DRK's

employee had acted unlawfully. If he had, the next question was whether DRK had a

defence of having properly selected, trained and managed their employee in terms of

section 831. They would also have a defence if the accident would have happened in any

event. For vicarious liability to arise under 831, it was not necessary for the employee to

have acted intentionally or negligently (cf s 823). It was enough that the act was unlawful in

that it injured the other person in breach of the duty to keep the person safe. The German

Federal Court had set very high standards for those pushing a wheelchair.

[25]

In a second report Mr Hohagen explained the German law on contribution between

wrongdoers. As it is agreed that any such claim is time barred, it is not necessary to set out

the terms of this report or the relative testimony.

English law

[26]

Katherine Howells is a barrister in London. In advice given to easyJet's law agents

dated 17 December 2021, she stated that apportionment of liability in English law was

governed by section 1(1) of the Civil Liability (Contribution) Act 1978. The amount of

apportionment was such as the court found "just and equitable" (s 2(1)) and could amount

to a complete indemnity (s 2(2)). Section 10 of the Limitation Act 1980 provided that a claim

for contribution must be brought within two years from the date when the right accrued.

The right accrued when judgment was passed or an arbitration award was made against a

person or when a person agreed to make payment in compensation for damage (ss 10(2)

(4)). Section 5(2) of the Carriage by Air Act 1961 had the effect that the limitation provisions

of Article 35 of the Montreal Convention did not apply to any proceedings for contribution

between persons liable for damage to which the Convention related. The operative

provisions were those in the 1980 Act which permitted a claim for contribution within two

years of the judgment, arbitration award or settlement.

[27]

Michael Nkrumah is a barrister in London. In his advice to DRK's law agents of

5 January 2021 (sic 2022), he agreed with Ms Howells that contribution was dealt with by

section 1(1) of the 1978 Act and that the right did not accrue until judgment or settlement.

He fixed upon section 1(6) which restricted the definition of liability to that which "could be

established in an action brought ... in England and Wales". A foreign, including a Scottish,

judgment did not create a liability. It was unlikely that the courts in England and Wales

would have jurisdiction in an action against DRK. DRK's liability to the pursuer could not

be established in the courts of England and Wales when the pursuer had sought decree in

another forum. From this it followed that section 1 did not apply to provide a right of

contribution.

[28]

Mr Nkrumah also focused on section 1(3) of the 1978 Act, whereby liability would

exist notwithstanding that the person had ceased to be liable, unless that cessation occurred

as a result of the application of limitation or prescription in a manner which extinguished

the right underlying the claim. If the Montreal Convention applied, Article 35 operated to

extinguish the pursuer's claim against DRK after two years. The 1980 Act applied to the

claim for contribution unless it had already been extinguished, which it had been.

[29]

In supplementary advice dated 20 January 2022, Ms Howells commented that if

Mr Nkrumah was right about a foreign judgment not creating a liability, a claim for

contribution could never be made under English law in any foreign proceedings. The

judgment would not be foreign in the jurisdiction in which the claim was being heard. A

judgment in the present action would be conclusive, in so far as favouring DRK, in any

contribution proceedings (1978 Act, s 1(5)). That would be a strange provision if no

contribution proceedings could be raised under English law because the case progressed in

Scotland. The same applied, given the availability of mechanisms for cross-border

enforcement. Reference was made to Roberts v SSAFA [2021] QB 859. There was no need for

the liability to be established in England and Wales or for there to be any proceedings at all.

The requirement in subsection 1(6) was a reference to the type of claim; ie one of a character

that could be made out in England and Wales. This was such a case. The pursuer could

have raised proceedings against easyJet in England and then convened DRK.

[30]

The pursuer's claim against easyJet was under the Montreal Convention, but that

against DRK was under German law. Article 35 of the Convention provided an "extinctive"

time bar but only in relation to the liability of the carrier for damage pursuant to Article 17.

A claim for contribution, which was made against the carrier outwith the Article 35 time

limit, would fail. Here the claim was not made against the carrier but by the carrier.

Limitation was governed by section 5(1) of the 1961 Act. This barred rather than

extinguished the claim, leaving an action for contribution open in terms of the 1978 Act.

Testimony on the facts

[31]

Mr Heinz was not called upon to testify.

[32]

Celine McGuigan, who was easyJet's Ground Ops Customer Operations Manager

and formerly their Accessibility Manager, did testify. She described the responsibilities of

the airport and the airline in terms of the PRM Regulation. She regarded easyJet's

responsibility, apart from pre-notification to the airport of the need for assistance, as

"primarily" on board the aircraft. Apart from the aisle chair, which easyJet provided on the

aircraft, all the specialist equipment would be supplied by the airport or their contractors.

Ms McGuigan spoke to the levying of the PRM charge; separate from the landing charge.

[33]

Frank Kohlstädt was the head of DRK at Hamburg airport. He spoke to DRK

providing a small loading chair for use on board the aircraft (cf Ms McGuigan) and the

transfer to the passenger's own or another wheelchair at the aircraft's door. Mr Heinz had

previously trained as a paramedic. He had further training by DRK on wheelchair handling

and airport operations. Every year there was four hours of training on wheelchairs. There

was constant, but not regular, monitoring of employees.

[34]

Mr Kohlstädt had been told of the pursuer's accident in the evening, when he had

been at home. Mr Heinz had told him what had happened; that the wheelchair had "caught

on a rim and the passenger slid out of the wheelchair". This had occurred at a new bridge at

Gate 7B. Hamburg airport had eight bridges. The new bridge had been in use since

10 March 2017 (the witness later said he did not know this). Mr Kohlstädt had not used, or

been to, that bridge before. He did not think Mr Heinz had used it previously either. The

next day he took photographs which showed the "ridge" and a yellow line. He had not seen

such a ridge before in the airport. He had been told by Mr Heinz that the yellow tape had

been put down after the accident and the ridge later eliminated. Previously, he had

assumed that the surface at the join between the terminal and the bridge would be

"smooth". No other bridge had a ridge. Mr Heinz had had refresher training in February

2017. He was a reliable employee.

The Lord Ordinary's decision

[35]

The Lord Ordinary determined that an autonomous approach had to be adopted in

relation to the interpretation of the Montreal Convention. That approach had been

described in King v Bristow Helicopters 2002 SC (HL) 59 (at paras 76 to 82). The Lord

Ordinary had been referred to a series of cases in the United States and one from England,

from which he determined that the test of whether a person was an agent of the carrier had

initially been whether the task was one which the carrier was legally required to perform,

but this had developed into whether the task had been "in furtherance of the contract of

carriage".

[36]

The Lord Ordinary observed that there had been no suggestion that DRK had been

under any contractual obligation to provide services to easyJet. Rather, they were

contracted by the airport and were, in Scots law terms, independent contractors. The Lord

Ordinary noted that, when a passenger required assistance, the practice was for easyJet to

notify the airport in advance and for the airport to arrange the personnel to attend and to

provide assistance on disembarking. Where the PRM Regulation applied, these services

were paid for through a levy on each passenger, which was separate from the landing

charge. This levy would form part of the ticket price. In these circumstances, the Lord

Ordinary concluded that DRK were the agents of easyJet within the meaning of Article 17 of

the Montreal Convention. The services were provided to easyJet in furtherance of the

contract of carriage. These services were those which easyJet would have been required by

law to provide, had DRK not done so.

[37]

The Lord Ordinary held that the accident was due to the "negligence" of DRK's

employee, Mr Heinz. Mr Heinz had not given evidence, but Mr Kohlstädt had reported that

Mr Heinz had said that the wheelchair had caught on a ridge, as a result of which the

pursuer had slipped out. Mr Heinz had been under a duty to keep a look out for dangers

and not to push the wheelchair too quickly. Had he been keeping a proper lookout, he

should have seen the ridge and manoeuvred the wheelchair safely over it. On that basis,

easyJet were liable for unlimited damages under the Montreal Convention as they had not

proved that the injury was not due to their own negligence, or other wrongful act or

omission, or that of its agents. On the contrary, the pursuer had proved that the accident

had been caused by the negligence of Mr Heinz. The rights of a passenger under the

Convention were not affected by the PRM Regulation.

[38]

On easyJet's claim for a contribution from DRK, the Lord Ordinary noted that

Article 37 of the Montreal Convention provided that the Convention was without prejudice

to whether a person had a right of recourse against another person. He first needed to

determine what law applied. DRK had not been party to the contractual choice of law

clause. Applying Article 4(1) of Rome II, the Lord Ordinary held that German law applied

to the contribution claim as the country in which the damage had occurred. It was not

disputed that the claim for contribution had to have been brought, in terms of section 199 of

the German Civil Code, by 31 December 2020. It followed that the claim for contribution

was time barred since it had only been introduced by amendment in November 2021. The

Lord Ordinary did not express a view on whether, under German law, DRK were

vicariously liable for Mr Heinz's actions nor on what the position under English law might

have been in relation to any time bar of the contribution claim.

[39]

The Lord Ordinary declared that easyJet were liable to make reparation to the

pursuer without limit of liability. The case would progress to a proof on quantum. EasyJet's

claim for contribution from DRK was governed by German law and was barred by the

expiration of the limitation period. The Lord Ordinary assoilzied DRK from the conclusions

of the summons and the claim for contribution.

Submissions

EasyJet

[40]

EasyJet submitted that domestic law was suspended by the terms of the Montreal

Convention (Abnett v British Airways 1997 SC (HL) 26; El Al Israel Airlines v Tseng 525 US 155

(1999)). The Convention governed liability according to clear, easily-determined bright

lines. The central contention was that the Lord Ordinary erred in holding that DRK were

their agents. The test for whether a party was the agent of the carrier was whether the task

which the person was carrying out: (i) was being done in furtherance of the contract of

carriage; and (ii) was something which was capable of being carried out by the carrier.

There was no dispute that the services which DRK were providing were connected to the

contract. However, the Lord Ordinary had failed to apply the second part of the test. It was

not easyJet's responsibility to assist the pursuer with disembarking. They could not carry

out the task of disembarkation. The PRM Regulation placed responsibility for assisting the

pursuer with embarking and disembarking on the airport. That was reflected in the

contractual arrangements between easyJet and the pursuer. The PRM Regulation had no

bearing on the meaning of agent under the Convention. Its provisions were not being used

to interpret the Convention. However, as a matter of fact, responsibility for assisting the

pursuer lay with the airport in terms of the Regulation. That was part of the factual

background to which the Convention had to be applied. Applying the definition of agent in

Articles 17 and 21 to that background, DRK were not easyJet's agent. They were a third

party. The same interpretation of agent must apply where an accident occurs outwith the

EU, but the result may not be the same, as different arrangements were made in different

countries.

[41]

The relationship between easyJet and DRK was not one of principal and agent.

EasyJet had no authority or control over DRK. The Lord Ordinary failed to apply the views

expressed in the courts of other jurisdictions, especially those in the United States. In

contrast to the facts in the US cases, upon which the pursuer had founded (Johnson v Allied

Eastern States Maintenance 488 A 2d 1341 (1985); Julius Young Jewelry Manufacturing Co v Delta

Air Lines 67 AD 2d 148 (1979); Waxman v CIS Mexicana De Aviacion 13 F Supp 2d 508 (1998)

and Baker v Lansdell Protective Agency 590 F Supp 165 (1984)), there was no contract between

easyJet and DRK. The Convention sought to limit the liability of persons who performed

services in furtherance of the contract of carriage (Johnson v Allied Eastern States Maintenance;

Croucher v Worldwide Flight Services 111 F Supp 2d 501 (2000); Carroll v United Airlines 325 NJ

Super 353 (1999); Waters v Port Authority 158 F Supp 2d 415 (2001)). It was not surprising

then that the courts in the US had granted the protection of the Montreal Convention in

circumstances where there was a contract between the carrier and the service provider.

EasyJet had no involvement in DRK's selection; that was done by the airport. They were the

airport's agent. DRK could not be agents of both the airport and the carrier. The implication

of the Lord Ordinary's opinion was that the airport itself was an agent of the carrier, which

could not be correct (Shawcross & Beaumont: Air Law at 507).

[42]

The Lord Ordinary failed to take the purpose of the Montreal Convention into

account. This was to provide clarity and certainty on the limits of liability, so that carriers

could arrange their affairs and obtain appropriate insurance. The Convention was a

compromise between passengers and carriers; with the introduction of liability without fault

for the benefit of passengers being balanced against a limitation of that liability for the

benefit of carriers. In some cases the application of that balance could leave a pursuer

without a remedy (El Al Israel Airlines v Tseng). That would not be the situation here, as

easyJet accepted that they were liable to the pursuer up to the value of 113,100 SDRs.

Liability was limited not only in the case of incidents occurring after disembarkation, but

also when they were caused by a third party. The airline was entitled to the benefit of this

limitation. The Lord Ordinary required to explain how imposing liability on easyJet was

consistent with the need for certainty. If easyJet were responsible for all aspects of travel,

even those in which they were not involved, that would be contrary to the Convention's

purpose. EasyJet's insurers would require to ascertain the extent of DRK's and the airport's

losses record in order to assess their potential liability. The scheme as a whole required to

be considered, including the fact that DRK had their own insurers who might have to

compensate the pursuer beyond the 113,100 SDRs ceiling. This case was a good example of

how the scheme was intended to work. The pursuer had suffered a bad accident and easyJet

had admitted that they were liable for the amount up to the ceiling. Beyond that, the

pursuer had a good case in German law against DRK. It was not necessarily the case that an

injured passenger would always have to raise separate actions; it would be a rare case in

which the losses sustained were above the ceiling.

[43]

If easyJet's contention that DRK were not their agents was wrong, and they were

liable to the pursuer, the question of a contribution from DRK arose. DRK were relying upon

the contract of carriage between easyJet and the pursuer to invoke the protection of the

Montreal Convention. That contract said that the applicable law was English. Since the

Convention did not provide an answer to the choice of law question, the matter became one

of private international law (Zicherman v Korean Air Lines 516 US 217 (1996)) which the

Convention "passed through". Rome II applied (Silverman v Ryanair [2021] EWHC 2955 (QB)

at paras 64 to 67). The existence of a choice of law clause, which was connected with

the airline's domicile, satisfied the test for an exception in terms of Article 4(3). The fact that

the accident occurred in Germany was irrelevant. The delict was "manifestly more

connected with the law of the contract". Although DRK were not a party to the contract, it

was that contract which had allowed them to argue that they were agents of easyJet. DRK

could not rely upon the contract to gain a benefit but then avoid any consequences of a term

of that contract which they did not like. It was accepted that, if German law applied to the

issue of contribution, easyJet's claim for that from DRK was out of time, but the Lord

Ordinary had erred in holding that German law applied.

[44]

If English law applied, since the Lord Ordinary had failed to address it, this court

had to do so. There had been competing views from two barristers. That from Katherine

Howells was correct. The time limit for a contribution claim was two years from the date

when the right to a contribution arose; that is when there was a judgment or settlement in

civil proceedings.

Pursuer

[45]

The pursuer responded that the Lord Ordinary had applied the correct test for

agency within the Montreal Convention; whether the service was in furtherance of the

contract of carriage, which the carrier would have been required to perform himself. There

was no basis for the contention that there was an additional aspect; that the service must

have been capable of being carried out by the carrier. Even if easyJet had to be capable, they

had not discharged the onus of demonstrating that they were not. There had been no

evidence of the arrangements which easyJet made with the airport.

[46]

The carrier was prima facie liable for injury in the course of disembarkation unless

Article 21(2) applied. The Montreal Convention was intended to be exhaustive in relation to

the contract of carriage. It was not intended to require passengers to pursue different

defenders. The arrangements which the carrier made with others were not determinative of

liability. The pursuer had contracted with easyJet to be transported safely to the arrivals

gate at Hamburg Airport. Anything done in the course of helping him to disembark was

covered by that contract. Anyone assisting in the operation of disembarkation did so as an

agent of the carrier. In support of this contention, the pursuer sought to rely on the analysis

of the US cases which he had cited to the Lord Ordinary. These were as referred to by

easyJet (at para [41]), but included also: Vumbaca v Terminal One Group Association 859 F

Supp 2d 343 (EDNY 2012); Kabbani v International Total Services 805 F Supp 1033 (1992);

Atlantic Merchandising Group v Distribution by Air 778 A 2d 607 (2001); and McCaskey v

Continental Airlines 159 F Supp 2d 562 (2001).

[47]

The PRM Regulation provided a framework for the practical arrangements within

the EU. Its provisions did not prevent a carrier from assisting in any disembarkation. For

example, easyJet would normally have provided the pursuer with his own wheelchair on

disembarkation. They had equipment for his use on board the aircraft, such as an aisle seat.

The pursuer made the request for special assistance to easyJet at the time of booking and

that assistance was arranged through them as a particular aspect of carriage.

Condition 12.3.6 of the terms and conditions could not mean that easyJet had no

responsibility to the pursuer on disembarkation. If that condition was in conflict with

Article 17(1), it was null. Vumbaca v Terminal One Group Association made it plain that an

airport was capable of being an agent depending upon the services which it was providing.

The airport was easyJet's agent; so was the airport's contractor, DRK.

[48]

The pursuer cross-appealed on the basis that the Lord Ordinary had not determined

his alternative case against DRK. The Lord Ordinary had assoilzied DRK without resolving

the issues raised. If easyJet's reclaiming motion were successful, this court would have to

determine that case. The evidence from the experts on section 831 of the German Civil Code

was that the employer was liable for any damage unlawfully inflicted by his employee

unless he demonstrated that he had carefully selected, trained and supervised the employee.

It was not necessary to prove that the damage was inflicted n egligently in order to meet the

test of unlawfulness. The Lord Ordinary found that Mr Heinz had been negligent. A very

high degree of care was required in training and supervising an employee who was

entrusted with transferring a reduced mobility passenger in a wheelchair from aircraft to

terminal. The employers would have to demonstrate that they had supervised the employee

continuously. There had been no evidence of what training DRK had provided to Mr Heinz.

There was no evidence that he had been given training to deal with the particular problem

which he had encountered. There had been evidence that an employee could assume that

surfaces throughout the airport were level, but there had been no evidence that

Mr Kohlstädt had taken any steps to find out about the refurbished air bridge or to instruct

Mr Heinz about it. This was despite Mr Kohlstädt accepting that the hazard had been

visible.

DRK

[49]

DRK accepted that they (DRK) were easyJet's agents. The Lord Ordinary had

applied the correct test for agency under the Montreal Convention. There was no support in

the US cases for the proposition that the task must also have been capable of being carried

out by the carrier. Even if there were, there was evidence that special assistance was

provided by carriers, or their contractors, in countries where the PRM Regulation did not

apply (see eg Moss v Delta Air Lines, unreported, 7 December 2005, ND Georgia (1:04-CV-

3124-JOF); and Johnson v Allied Eastern States Maintenance). The Convention was not

modified by the PRM Regulation. If easyJet were responsible to all able bodied passengers

when disembarking, it would not make sense for them to owe a lesser duty to passengers of

reduced mobility. The purpose of the Convention was to achieve uniformity between

jurisdictions, and the Lord Ordinary had taken that into account. The economic and other

arrangements in place at individual airports could not be considered. There was no

requirement for a carrier to have control of the agent (Waxman v CIS Mexicana de Aviacion;

and the German Federal Court decision in I Zr 135/98/2000). There was no evidence on

whether easyJet had influence or control over DRK or the airport. An airport could be an

agent of a carrier (Vumbaca v Terminal One Group Association).

[50]

As DRK were easyJet's agents, the Montreal Convention was engaged and easyJet's

claim for contribution had to be considered. The Lord Ordinary was correct to hold that

German law applied. That fact was not disputed. That being so, it applied to all issues

arising from the delict. A different domestic law could not be applied in the context of

contribution (Dickinson: The Rome II Regulation The Law Applicable to Non-Contractual

Obligations at para 4.8.9; Anton: Private International Law (3rd ed) at para 14.120; Cheshire,

North & Fawcett: Private International Law (15

ed) at 858; ICDL GCC Foundation v European

Computer Driving Licence Foundation [2011] IEHC 343 at para 9.7). In any event, Article 4(3)

did not apply because the claim was not "manifestly more closely connected" to English

law. The accident occurred in Germany and DRK were a German company.

[51]

If English law was applicable to contribution, easyJet could still not claim a

contribution because of section 1(6) of the 1978 Act. The evidence of the barrister, Michael

Nkrumah, ought to be preferred. For a contribution claim under the 1978 Act, the liability of

DRK had to be capable of being established in an action in England and Wales. It could not

be so established now. An action having been raised in Scotland, any action brought in

England and Wales would fail as the matter would be res judicata. A foreign judgment did

not give a right of contribution (Clerk & Lindsell: Torts (23rd ed

)

para 4.14; Roberts v SSAFA

at paras 54-55; Dugdale: The Civil Liability (Contribution) Act 1978 (1979) 42 MLR 182 fn 4; cf

Comex Houlder Diving v Colne Fishing Co 1987 SC (HL) 85 at 122-123). In any event,

Articles 29, 30 and 35 of the Montreal Convention made it clear that no claim against DRK

by the pursuer was available after two years from the date of his arrival in Hamburg. The

implication of that was that any claim for contribution by easyJet against them under

English law must fail, as a result of the operation of subsection 1(3) of the 1978 Act. To the

extent that section 5(2) of the 1961 Act could be read as providing easyJet with two

additional years from the date of any judgment, that ran contrary to Article 35 of the

Convention. If that were so, the section breached Articles 26 and 27 of the Vienna

Convention on the Law of Treaties (1980), which required the United Kingdom to perform

its obligations under every international treaty in good faith and prohibited it from using the

provisions of its internal law to justify its failure to perform those obligations.

[52]

Even if a claim for contribution under the 1978 Act was permissible, the court could

not assess DRK and easyJet's relative blameworthiness and the causative potency of their

respective roles in the accident. EasyJet had failed to exonerate themselves under Article 21.

They had failed to lead evidence that the injury had not been caused by their fault and

negligence or that of their servants or agents, or that it had been solely due to an act of a

third party. These were matters for easyJet to negate; not for others to raise. They had led

no evidence about what they knew of the condition of the bridge. They were under an

obligation in terms of Article 19 of the PRM Regulation to train their personnel, including

any sub-contractors, but they had failed to do so.

[53]

If DRK were not easyJet's agents, the pursuer's alternative case against DRK could

not succeed. The Lord Ordinary had not found that DRK were liable to easyJet under

German law; it being for the domestic court to decide what negligence or wrongful act or

omission meant. Mr Hohagen had testified that section 823 of the German Civil Code did

not impose vicarious liability, but related to the unlawful conduct of the person who was

said to be in breach of section 831. It had not been proved that Mr Heinz had "unlawfully"

inflicted damage on the pursuer. The essence of vicarious liability in German law was that

the principal had done something wrong in selecting or managing (including training) his

employees. Mr Kohlstädt had spoken to the qualifications and training of Mr Heinz. The

accident would have occurred in any event. The Lord Ordinary did not find that

sections 823 or 831 had been breached. If he had, then he was in error.

Decision

General

[54]

The Montreal Convention of 1999 governs the liability of airlines for losses occurring

to passengers on board aircraft and during embarkation and disembarkation. The airline is

liable for any damage, unless self-inflicted, up to 113,100 Special Drawing Rights; about

£146,000 at the material time. It is also liable for damage above that value unless it proves

either that the damage was not caused by the airline's fault or negligence or that it was

caused solely by that of a third party.

[55]

The Montreal Convention followed its predecessor, signed at Warsaw in 1929 and

amended at The Hague by a Protocol of 1955. It is intended to unify certain of the rules

applicable to carriage by air, but it does not provide a comprehensive code (Abnett v British

Airways 1997 SC (HL) 26, Lord Hope at 36). It sets out the extent to which airlines can limit

their liability contractually and represents a balance or compromise in the interests of

certainty and uniformity (ibid at 45; El Al Israel Airlines v Tseng 525 US 155 (1999), Ginsburg J,

delivering the opinion of the majority of the US Supreme Court, at 169-170). Such certainty

and uniformity is an important element in enabling insurers to gauge the risk which they

undertake when providing cover (Reed v Wiser 555 F 2d 1079 (1977), Mansfield CJ (Circuit

Judge), delivering the judgment of the US Court of Appeals, Second Circuit, at para [4]).

The Articles of the Convention, like any international treaty, have to be given a purposive

construction (King v Bristow Helicopters 2002 SC (HL) 59, Lord Hope at para 76) but, as

distinct from the Warsaw Convention, the English text alone governs in the United

Kingdom. The words must be given an autonomous meaning (ibid Lord Steyn at para 16).

The jurisprudence of other contracting states should be considered, with a view to

promoting consistency, but appropriate care should be taken when doing so (Abnett v British

Airways, Lord Hope at 43). Any construction of Article 17 of the Montreal Convention must

provide a bright, clear line which can be applied by passengers, airlines and their insurers.

Where the Convention does not apply, domestic remedies will remain available.

[56]

The wording of Article 17 of the Montreal Convention is similar to the corresponding

Article in the Warsaw Convention, but under the latter the airline's liability was limited to a

prescribed sum (of francs) unless the airline or their agents were guilty of "wilful

misconduct" (Art 25). Liability could be avoided altogether if the airline proved that they

and their agents had taken "all necessary measures" to avoid the damage (Art 20). The

Hague Protocol changed the test applicable to damages which exceeded the prescribed sum

to acts or omissions by the airline which were committed intentionally or recklessly. The

terms, of what was to become Article 30 of the Montreal Convention, were included (Article

XIV adding Article 25A into the Warsaw text) to make it clear that the airline's servants or

agents were entitled to the protection of the limits on liability which the airline enjoyed.

The pursuer's claim against easyJet

[57]

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 (see Lord McEwan: Agency in Stair

Memorial Encyclopaedia Vol 1 para 601; cf Macgregor: Agency and Mandate in the Stair Re-

issue at para 1.1). Given the need for international uniformity, the domestic concept ought

to be of peripheral relevance. In looking to see what autonomous meaning should be

applied to the use of "agent" in the Convention, regard must be had to the significant cases

on the subject, particularly those in the United States.

[58]

The most recent of the cases cited by the parties on this subject is Vumbaca v Terminal

One Group Association 859 F Supp 2d 343 (EDNY 2012). This is a first instance decision of the

Eastern District Court of New York in which the senior district judge (Weinstein) helpfully

set out the US jurisprudence in the context of passengers being trapped on board a snow -

bound aircraft said to have been caused by the airport operator (TOGA). Like several of the

US cases, Vumbaca is potentially distinguishable from the pursuer's case because TOGA had

a contract with the airline (Alitalia). Nevertheless, Judge Weinstein's dictum can be used to

summarise the US authorities, analysed by hierarchy. This has the advantage of it being a

US interpretation by a US judge rather than a Scottish court.

[59]

Judge Weinstein stated (at 363):

"B.

Terminal is an Agent of Air Carriers

The Convention does not define `agent.' The Supreme Court has provided no

guidance.

The Court of Appeals for the Second Circuit has held that the airline employees are

agents covered by the Convention. Reed [v Wiser] 555 F.2d [(1977) 1079] at 1089-93.

In so holding, the Reed panel concluded that the Convention's `basic principle'

required that air carriers be `protected from having to pay out more than a fixed and

definite sum for passenger injuries sustained in international air disasters `...

The court did not rule on whether other entities might also be considered agents, or

establish a test by which it could be determined when an entity is an agent covered

by the Convention.

Lower courts have held that an entity is an agent of an air carrier if it `performs[s]

services in furtherance of the contract of carriage, and services ... within the scope of

the Convention that the airline is otherwise required by law to perform.' In re Air

Disaster at Lockerbie, Scotland on Dec. 21, 1988, 776 F Supp [710 (EDNY 1991)] at 714.

They have found that the Convention's limits on liability apply to subcontractors

which provide airport security [ibid]); clean planes, Waxman [v CIS Mexicana De

Aviacion] 13 F Supp 2d [508 (SDNY 1998)] at 515; or facilitate passenger's boarding of

the aircraft, Chutter v KLM Royal Dutch Airlines, 132 F Supp 611, 613 (SDNY 1955)

(holding, in a pre-Reed case, that the service company which provided the plane's

entrance ramp was covered by the Warsaw Convention because its services were a

part of the `contract of transportation'); see also Johnson v Allied Eastern States

Maintenance Corp. 488 A 2d 1341, 1345 (D.C. 1985) (finding that a skycap company

was covered by the Warsaw Convention because putting a passenger on a plane was

a service performed in furtherance of the contract of carriage).

Convention limits have also been found to apply to air carriers' ground handling

agents. Am. Home Assur. Co. v Kuehne & Nagel... 544 F Supp 2d 261, 263-266 (SDNY

2008) (holding that the Montreal Convention's two year statute of limitations barred

recovery from ground handling company, since that company was an agent of the air

carrier under Article 30). By contrast, the Convention does not apply to companies

performing terminal maintenance services, as these services are not `flight related'

and could affect individuals not covered by the Convention. Alleyn v Port Authority

of New York, 58 F Supp 2d 15, 24 (EDNY 1999)."

Judge Weinstein held that TOGA were acting as agents for Alitalia because the services

provided to them were "a necessary part of the air carrier's relationship with its passengers

[as] demonstrated by the fact that ...TOGA... were contractually indemnified by Alitalia for

their services".

[60]

The Lord Ordinary also used Vumbaca to summarise the US jurisprudence. He did so

having described the circumstances in Johnson v Allied Eastern States Maintenance 488 A 2d 1341 (1985).

These bore a striking resemblance to the pursuer's case, other than that the

skycap who was pushing the plaintiff's wheelchair was going down rather than up the

bridge when it hit a metal strip. The judgment of the District of Columbia Court of Appeals

(Associate Judge Terry at 1345) was that:

"the purposes underlying the Convention would best be served by a construction

which brings under its aegis not only the carrier's employees, as in Reed, but also

those agents who perform services in furtherance of the contract of carriage".

The court's reasoning was that the limitation provisions would thereby apply, regardless of

the person whom the pursuer elected to sue. Reference was made, inter alios, to Julius Young

Jewelry Manufacturing Co v Delta Air Lines 67 AD 2d 148, 414 NYS 2d 528 (1979).

[61]

The Lord Ordinary considered a number of other decisions, including Carroll v

United Airlines 325 NJ Super 353 (1999). This involved another wheelchair bound passenger

suffering injury on being disembarked by the employee of a company which was held to be

an agent because it was acting "in furtherance of carriage" (at 615). The phrase "in

furtherance of the contract of carriage" was used by the Superior Court of New Jersey in

Atlantic Merchandising Group v Distribution by Air 778 A 2d 607 (2001) (at 389-390) and by the

US District Court for the Southern District of Texas in McCaskey v Continental Airlines

159 F Supp 2d 562 (2001) as a test to determine whether a person is an agent of the airline. It

provides a neat, clear, and easily understood principle. If the person sued does or omits to

do something which is in furtherance of the contract of carriage, such as assisting the

disembarkation of passengers, then he is deemed, for the purposes of the Convention, to be

an agent of the airline, whether or not he is an agent in accordance with domestic law. This

court endorses that test essentially for the reasons given by the Lord Ordinary. The

reasoning in Phillips v Air New Zealand [2002] EWHC 800 (Comm) (Morison J at para 18) is

equally sound.

[62]

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, as described by Mr Hohagen, 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. Although there may be minor variations from airport to airport,

the contract of carriage for all passengers commences, at the latest, when the passenger is

checked through the gate at the airport of departure. It is at that point that the passenger for

a particular flight, operated by a particular airline, is isolated from other airport users. The

contract continues until the opposite occurs at the destination and the passenger is released

into parts of the airport used by, amongst others, the passengers of other airlines. In

between those points, as Mr Hohagen said in his November 2021 report, the passenger has

"no way out, is restricted in his/her movement and needs guidance at least by the air carrier

to get out. He/she is in [the] custody of the air carrier" (see generally Havel & Sanchez:

Principles and Practice of International Aviation Law at para 7.9.10). 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.

[63]

This approach promotes the objectives of certainty and consistency which lie at the

heart of the Montreal Convention. The court rejects the submission that this will cause

difficulty for insurers in assessing risk. On the contrary, the extent of the airline's liabilities

will be clearly delimited. When setting premiums for airline's insurance, underwriters will

(as they always do) have to apply judgement to appraise risk; they will do so on the basis

that the airline's responsibility towards its passenger under the contract of carriage by air

extends from gate-to-gate.

[64]

The PRM Regulation (EC 1107/2006) "concerning the rights of ... persons with

reduced mobility when travelling by air" cannot and does not diminish the airline's

responsibilities under the Montreal Convention. This is a public law measure which does

not seek to affect private law rights. The Regulation's purpose is to strengthen the

protection afforded to disabled and reduced mobility passengers; not to alter or diminish the

Convention rights. Even if that were its purpose, it could not do so. The EU has ratified the

Montreal Convention (Regulation (EC) No 889/2002 of 13 May 2002 amending Council

Regulation (EC) No 2027/97 on air carrier liability in the event of accidents). The EU's

international obligations take primacy over the provisions of EU legislation. The imposition

of a dual responsibility for the provision of assistance to PRMs simply adds another layer of

responsibility on the airport, which it may, or may not, choose to delegate to a third party

contractor including the relevant airline. The fact that at Hamburg, and at many other

airports, the airport has made an arrangement with a contractor to provide the pre and post

flight PRM Regulation assistance has no material bearing on the issue. It may be that easyJet

thought, optimistically, that the Regulation removed or diminished their responsibilities for

PRM passengers under the Montreal Convention. If they did, then they were in error.

Similarly, easyJet's terms and conditions do not, and cannot, override or circumvent the

responsibilities placed on them by the Convention. In so far as condition 12.3.6 states that

the airport is responsible for the provision of assistance through the "arrivals process", it is

correct as a matter of public law. If the condition is intended to remove easyJet's

responsibility under the Montreal Convention for passengers disembarking the aircraft and

making their way to the arrivals gate, it is null and void (Convention, Article 26).

[65]

For these reasons the court adheres to the Lord Ordinary's finding that easyJet are

liable to make reparation to the pursuer without limit of liability.

The pursuer's alternative case against DRK

[66]

The pursuer has an alternative case against DRK under German law, in the event

that Mr Heinz was not easyJet's agent, based solely upon DRK's vicarious liability for his

actings. EasyJet accept that Mr Heinz was at fault; DRK do not. DRK table a wide ranging

defence, which includes multiple alternative permutations; not all of which are easy to

follow. The first of these appears to be that, under the Convention, it was easyJet who were

responsible not only for the safe disembarkation of the pursuer, but also for the actings of

Mr Heinz as easyJet's agent. The second is that Mr Heinz was not at fault and did nothing

unlawful. The third is that, even if he was at fault and acted unlawfully, DRK are not

vicariously liable for his actings.

[67]

Whether or not easyJet were responsible under the Convention for disembarking the

pursuer has no bearing on whether DRK are also liable to the pursuer under German law.

The categories of liability are different, even if the damage is the same. The pursuer's case

against DRK is framed in the alternative as a matter of practicality because, if easyJet are

found liable on the basis of DRK and/or Mr Heinz being their agent, there will be no need

for the pursuer to demonstrate DRK's liability under German law. Rather, easyJet would be

left to bring themselves within the exoneration provisions of Article 17(2). That claim is one

which the Lord Ordinary should have determined by deciding what the German law was in

relation to vicarious liability for the actings of an employee and then applying that law to

the facts which he found proved. Had this court not adhered to the Lord Ordinary's

declarator that easyJet were liable without limit under the Convention, it would have

required to determine the alternative case. It would therefore have been helpful to have had

the Lord Ordinary's views on that case rather than deciding it as if this court were sitting at

first instance (Hogan v Highland Regional Council 1995 SC 1, LJC (Ross), delivering the

opinion of the court, at 2).

[68]

The reports and testimony of Dr Schaaff and Mr Hohagen make it clear that the

applicable provision is section 831, rather than 823, of the German Civil Code. First, there

must be an unlawful infliction of damage by a person. This does not need to be an

intentional act or a negligent one. The pursuer had a right not to be injured when being

transported in the wheelchair by Mr Heinz. The fact that he was demonstrates an unlawful

act on Mr Heinz's part. This means, in terms of section 831, that DRK are prima facie liable.

Even if proof of negligence had been required (see section 823), that element would have

been made out. Allowing a person to fall from a wheelchair in the manner described is

prima facie negligent; res ipsa loquitur. Even if the yellow strip had not been in place at the

time of the accident (and the pleadings of both the pursuer and DRK say that it was), the

photographs of the locus, and the fact that Mr Heinz must have traversed the ridge with the

wheelchair on the way to the aircraft, demonstrate that Mr Heinz was either aware or ought

to have been aware of the hazard and taken steps to avoid the consequences of hitting the

ridge at a sufficiently excessive speed to cause the ejection of the pursuer. The Lord

Ordinary was correct to hold that this constituted negligence on the part of Mr Heinz.

[69]

The next question is whether, again following the terms of section 831, DRK had

exercised reasonable care when selecting Mr Heinz and thereafter in managing his activities

in the course of his employment. Included in the equation of reasonable care, again

following the evidence of Dr Schaaff and Mr Hohagen, is a requirement that the employee

be properly trained and supervised. Applying that to the testimony of Mr Kohlstädt, it is

apparent that reasonable care was not taken to train Mr Heinz in the hazards on the

refurbished bridge at Gate 7B. Such training would have been bound to involve DRK telling

Mr Heinz of the existence of the ridge hazard and of how to negotiate it. Since his

supervisor, Mr Kohlstädt, had not even looked at the bridge, he had been unaware of the

hazard and Mr Heinz could not have been warned of its existence. Mr Heinz's last training

session had been before the bridge's refurbishment had occurred. Since DRK had thereby

not exercised the reasonable care required by section 831, they are unable to escape being

responsible for Mr Heinz's unlawful act. 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, and essentially

accepting Dr Schaaff's and Mr Hohagen's evidence on this (supra), 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.

Contribution

[70]

The first question is which law governs easyJet's claim for contribution from DRK

since that will determine which limitation regime applies. Regulation (EC 864/20070) "... on

the law applicable to non-contractual obligations" (Rome II) is relevant, as contribution in

this case depends upon such an obligation. Article 4(1) provides that the law should be that

of the country in which the damage occurs. On the face of this, German law would apply

unless Article 4(3) were engaged because the delict was "manifestly more closely connected

with", in this case, England. It is important to bear in mind that Article 4(3) does not refer to

the delict having a closer connection with a particular law (eg English) but with a country.

[71]

The delict involving the pursuer had no connection with England, other than easyJet

having their registered office at Luton airport. It occurred in Germany after a flight from

Scotland. EasyJet attempt to link it with the choice of law clause in their contract of carriage

with the pursuer. DRK were not a party to that contract. The fact that they are agents of

easyJet in terms of the Montreal Convention does not mean that they are their agents for

other purposes, including the existence of a right to a contribution. The clause cannot

compel a third party German company, operating in Germany, into a situation whereby any

delictual act which they might commit at Hamburg airport becomes subject to English law.

[72]

It is not disputed that German law applies to whether, in relation to the pursuer,

DRK's actings or those of Mr Heinz were delictual. That being so, it would conflict with

Article 15 of the Montreal Convention were a different law to be applied to the issue of

contribution or limitation. Dépeçage (the splitting of the applicable law) is not available for

the reasons given in ICDL GCC Foundation v European Computer Driving Licence Foundation

[2011] IEHC 343 (Clarke J at para 9.7, citing Dickinson: The Rome II Regulation The Law

Applicable to Non-contractual Obligations at para 4.79; see on appeal [2012] IESC 55). It is not

disputed that, if German law applies, which it does, then the claim for contribution is time

barred under sections 195 and 199 of the German Civil Code. These provide that the claim

has to be made within three years from the end of the year in which the claim arose. That

would be by the end of 2020. Easyjet only made their claim in November 2021. It is

therefore time barred.

[73]

The court therefore adheres to the Lord Ordinary's declarator that the claim for

contribution is governed by German law and is time barred. That results in the claim for

contribution being dismissed but it ought not to have resulted in absolvitor from the

conclusions (or rather the first conclusion) of the summons. The pursuer's alternative case

against DRK was not time barred, even if it may go nowhere given the establishment of

easyJet's liability for the actings of their agent.

English law

[74]

The court may have decided that, in accordance with easyJet's submissions, the

applicable law was that of England and Wales. That being so, for the reasons given above

under reference to Hogan v Highland Regional Council, the Lord Ordinary ought to have

determined, as a matter of fact, what that law was and how it might have been applied to

the established facts. This court must now do so.

[75]

The court prefers the evidence of Ms Howells to that of Mr Nkruma. Her testimony

and reports are more compelling in their interpretation of the statutory provisions. In

particular, it is clear that, in enacting section 5 of the Carriage by Air Act 1961, Parliament

was not attempting to circumvent the terms of the international Conventions which were

being given effect by the Act (the Warsaw Convention and the Hague protocol) and its

subsequent amendment (Carriage by Air Acts (Implementation of the Montreal Convention

1999) Order 2002).

[76]

In its original form, section 5(2) stated that Article 29 of the Warsaw Convention (the

two year limit on claims for damages) was not to be read as applying to any proceedings for

contribution. The amendments introduced by the 2002 Order (para 2) included Article 35 of

the Montreal Convention within section 5(2)'s ambit. The important feature is that

Articles 29 and 35 respectively are intended to apply to claims made by passengers, or the

consignors of baggage and cargo, against airlines. As Article 37 of the Montreal Convention

makes clear, the Convention does not prejudice whether an airline has a right of recourse

against someone else. It is that which the 1961 Act seeks to make clear. The time limits in

the Convention do not apply to easyJet's claim for a contribution. That claim is not one

which arises out of damage to which the Convention applies. The terms of section 5(1),

which limit valid claims against an airline's servant or agent to those raised within two years

of the aircraft's arrival, do not apply.

[77]

This leaves the general English law on contribution to be applied. It is agreed by

both Ms Howells and Mr Nkrumah that section 1(1) of the Civil Liability (Contribution) Act

1978 governs contribution generally, but Mr Nkrumah advises that it is not applicable in the

circumstances here where: (a) the time bar under Article 35 of the Convention had already

extinguished the claim in terms of section 1(3); and (b) there could be no liability established

in England and Wales as required by section 1(6). Both arguments are, for the reasons given

by Ms Howells, in error. Article 35 does not apply to a claim which is not made by a

passenger, or a consignor of baggage and cargo, against an airline. Section 1(6) is to the

effect that to make a valid claim for contribution it must be one which, as a generality,

would be entertained by the courts in England and Wales. There is no difficulty with t his.

The absence of jurisdiction is irrelevant as is the application of a plea of res judicata flowing

from a Scottish decree. EasyJet's claim for contribution is an easily recognisable one

whereby easyJet say that DRK were vicariously liable for the fault of their employee under

English law or, failing that, under German law. DRK ought therefore, in terms of sections 1

and 2 of the 1978 Act, to make a just and equitable contribution to easyJet. There is no

practical issue on the level of contribution. If the vicarious liability is made out (which it is),

DRK ought, in effect, to indemnify easyJet for the damages found due to the pursuer. The

whole fault was that of Mr Heinz (and possibly DRK). Such a contribution is what would

have occurred had English law applied; but it did not.

[78]

The court will, other than in relation to absolving DRK, adhere to the Lord

Ordinary's interlocutor of 18 May 2022. It will allow the pursuer's cross appeal, find and

declare that under German law DRK would (but for time bar) have been liable to contribute

to easyJet the full amount of the pursuer's damages. The second defenders' cross appeal is

refused. It will dismiss the action in so far as it is directed against DRK.