27 May 2022
The case of Mather v Easyjet Airline Company Limited & Another[1], is an interesting case in which the Outer House of the Court of Session recently had to grapple with issues relating to German law, the Montreal Convention 1999 and pre-litigation admissions of liability.
For more information pre-litigation admissions of liability please see here.
Accident Circumstances
The pursuer had flown from Edinburgh to Hamburg, Germany, on a flight operated by Easyjet in May 2017. He was a paraplegic and was helped into an airport wheelchair upon arriving in Hamburg by staff working for DRK, who are a German Red Cross Mediservice, a non-profit organisation based at Hamburg Airport. DRK were contracted by Hamburg airport to provide such services.
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The pursuer was being pushed at a “brisk” pace in his wheelchair by Mr Heinz, an employee of the second defender, DRK, over the air bridge to the terminal building. At the entrance to the terminal building the wheelchair hit a raised edge, causing the pursuer to fall out and land on his legs on a marble floor inside the threshold of the airport building. The pursuer’s legs were fractured as a result.
The Montreal Convention 1999
The pursuer sued Easyjet under The Montreal Convention 1999. The claim was based on the terms of the contract of carriage by air as governed by the 1999 Convention. This Convention was incorporated into Scots Law by the Carriage by Air Act 1961 as amended by the Carriage by Air Acts (implementation of the Montreal Convention 1999) Order 2002/262.
Pre Litigation Admission of Liability
The pursuer also relied upon an admission of liability made in writing by Easyjet before proceedings were raised. Easyjet’s pre-litigation admission was made in line with the Compulsory Pre-Action Protocol (CPAP). A requirement of the CPAP is that any liability admission must state that it is intended to be binding on the party making the admission. Easyjet, therefore, admitted liability in these terms to ensure compliance with CPAP. Such an admission creates a unilateral binding obligation on the party making the admission and therefore has contractual force.
However, as can often be the case with pre-litigation admissions of liability of this nature, the precise scope and exact implications of the admission of liability remained a matter of contention. Easyjet accepted that the correspondence was in the language of unilateral obligation, but only to admit liability in terms of the convention, not to pay damages at any particular level and not to forego any other line of defence provided by the convention.
The relevant background to understanding the importance of this argument for Easyjet is that the Convention imposes strict liability on a carrier in the case of death of, or bodily injury to, a passenger in return for a limitation of liability. The carrier cannot exclude or limit its liability for damages not exceeding 100,000 special drawing rights, but it may exclude its liability for damages which exceed that amount if it proves that such damage was not due to its negligence or that of its servants or agents, or that it was solely due to the negligence of a third party (articles 17 and 21). Easyjet maintained that its liability was limited because the accident was caused by DRK, which was not its servant or agent, but a third party. Easyjet argued that the accident had been solely caused by the DRK employee Heinz’s negligent operation of the wheelchair.
DRK’s Arguments
DRK argued that under convention and under German law, Easyjet was responsible for the pursuer’s safety until he was inside the terminal building, and thus was responsible for the acts of Heinz whilst on the air bridge. Further, under the Convention, any claim against DRK as agents of Easyjet had been extinguished by limitation.
Decision
Lord Uist held that the pre-litigation admission of liability was of no assistance to the pursuer in terms of establishing the extent of Easyjet’s liability given it was silent on that issue. The burden of establishing “unlimited liability”, therefore, remained on the pursuer.
There was no dispute that the accident took place in the course of disembarking within the meaning of article 17 (1) of the Convention (injury in the course of any of the operations of embarking or disembarking). The real issue was whether DRK were acting as agents of Easyjet at the material time.
Lord Uist held that it was irrelevant that there was no contractual relationship between Easyjet and DRK; the services were provided to Easyjet by DRK in furtherance of the contract of carriage by assisting the pursuer disembark the flight. These were services Easyjet would themselves have been obliged by law to provide, had DRK not provided them. The pursuer had established therefore that there was an agency relationship between the defenders.
Had the second defender’s member of staff, Heinz, kept a proper look out and pushed the wheelchair at an appropriate speed, he could have manoeuvred the wheelchair safely over the ridge and avoided the accident. The pursuer had proved, therefore, that the accident was caused by the negligence an agent of Easyjet who were found liable to make reparation to the pursuer without limitation of liability. Its case for a contribution from DKR failed due to it being time-barred under German law. DRK were therefore assoizlied.
Comments
This case provides a useful reminder of the operation of strict liability under the Montreal Convention 1999 and how the principles of agency are applied in this context. It is important to note that DRK did not have any contractual agreement in place with Easyjet for assisting disabled passengers disembark from their flights. DRK was contracted to Hamburg Airport to provide such services. DRK was an independent contractor to the airport. EasyJet did not have any influence over the choice of the airport’s contractors or their staff. Nevertheless, the agency relationship for the purposes of the Convention was established, given the services provided by DRK were in furtherance of the contract of carriage, and liability therefore attached to Easyjet.
Being fully compliant with the various applicable time limits can pose a challenge in multi-jurisdictional litigation. On the face of it, there was a strong argument for a contribution from DRK available to Easyjet for the negligence of its employee Heinz (Art 37 the Convention ensures such rights of recourse are still available to liable parties). However, the court held that, given DRK was not a party to the contract of carriage between the pursuer and Easyjet, and therefore not subject to the choice of law (English law) under that contract, the applicable law on this issue was German law by virtue of the provisions Rome II. Under Section 199 of the German Civil Code, Easyjet had three years from the end of the year in which the claim arose. Easyjet were, unfortunately, time barred by the time they made their contribution claim against DRK.
The issues regarding the scope of pre-litigation binding admissions of liability are unlikely to disappear given the variety of different claims and circumstances they will be made by defenders and their representatives. The CPAP requires any admission of liability to be made explicitly binding to avoid the defender being able to later withdraw such an admission after proceedings have been raised, as was the case in Van Klaveren v Servisair UK Limited [2009] CSIH 37.
At BTO, we have observed pursuers attempt to attribute a wider scope to the liability admission than was originally intended in order to try and prevent contribution arguments from being advanced. Defenders can be pressured into making these admissions to try and ensure they do not fall foul of CPAP. However, the implications of doing so need to be closely considered, as this case demonstrates.
For more information on the issues arising from this case please contact:
Angus Gillies, Associate agi@bto.co.uk / 0141221 8012