Helen Forde v Emirates

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 22 April 2021
• Neutral Citation: [2021] IEHC 298
• Docket Number: [RECORD NO: 2018 8309 P]
• Court: High Court
• Date: 22 April 2021

Between

Helen Forde

Plaintiff

and

Emirates

Defendant

[2021] IEHC 298

[RECORD NO: 2018 8309 P]

THE HIGH COURT

Personal injuries – Trial of a preliminary issue – Modular trial – Defendant seeking either a trial of a preliminary issue or a modular trial – Whether a modular trial was needed in the interests of justice

Facts: Proceedings were issued by way of a personal injuries summons dated the 20th September 2018, in which the plaintiff, Ms Forde, made a claim against the defendant, Emirates Airlines, in respect of injuries, loss and damage which she alleged arose in circumstances where she was fare-paying passenger on an Emirates flight on or about the 25 February 2017. The defendant issued a motion on the 10th February 2020 seeking one of two alternative reliefs which were urged on the High Court, and as to those, para. 1 sought an order pursuant to O. 25, r. 1 and/or O. 34, r 2 RSC setting down for trial as a preliminary issue of law the following: whether the alleged acts described in the personal injuries summons, namely a trip and fall due to the presence of a set of wired head/ear phones in the aisle of the aircraft constitute an accident within the meaning of Article 17 of the Montreal Convention of 1999 as incorporated into Irish law by the Air Navigation and Transport (International Conventions) Act 2004. In the alternative, the defendant as applicant in the motion sought an order pursuant to O. 36, r. 9 (1) RSC setting down for modular trial the following mixed question of fact and law, that is: (i) the factual circumstances of the plaintiff’s alleged trip and fall in or about 25th February 2017 on board Flight EK 164; (ii) whether the said factual circumstances as may be found constitute an accident within the meaning of Article 17 of the Montreal Convention as incorporated by the 2004 Act.

Held by Heslin J that the facts which emerged from an analysis of the pleaded case meant that given its particular nature, and the clear issue arising in respect of the Convention, an issue which certainly does not arise in a common or routine personal injuries claim resulting from a fall, a modular trial was undoubtedly needed in the interests of justice and in ease of both sides. Heslin J held that even if the Court was entirely wrong to follow the ratio of McAuley v Aer Lingus & Ors. [2011] IEHC 89, whether or not the incident constituted an accident under the Convention was still a very significant issue in the case and justified a modular approach in respect of that issue.

Heslin J granted relief in terms of para. 2 of the motion.

Relief granted.

EX-TEMPORAE RULING of Mr. Justice Mark Heslin delivered on the 22nd day of April, 2021

1 At the outset I want to thank both counsel and their instructing solicitors for the assistance which they have provided to the court. I was furnished and was grateful to receive in advance and took the opportunity to read very carefully a book of pleadings as well as two sets of detailed written legal submissions and a book of relevant authorities. Counsel supplemented their written submissions today with oral submissions made with great clarity and skill and they have been of enormous assistance to the court, and I have considered these very carefully in the context of the ruling I now give.

2 In the present case, the defendant issued a motion on the 10th February 2020 seeking either of two alternative reliefs, that is a trial of a preliminary issue or a modular trial, and I will refer in due course to the specific wording in the motion. The motion was initially returnable for the 9th March of 2020 but, no doubt due in large measure to the COVID-19 pandemic, it came before the court for hearing today. I have very carefully considered the contents of affidavits sworn by Mr. Gerard Carroll solicitor on the 10th February and on the 7th May 2020, on behalf of the defendant, who is the applicant, in today's motion and the contents of the affidavit sworn by Mr. Ian Murphy, solicitor for the plaintiff, on 10th March 2020 in circumstances where the plaintiff/respondent opposes entirely the reliefs sought.

3 The underlying proceedings were issued by way of a personal injuries summons which is dated the 20th September 2018, in which the plaintiff, who is a retired air hostess and who is currently 77 years of age, made a claim against Emirates Airlines in respect of injuries, loss and damage which she alleges arose in circumstances where she was fare-paying passenger on an Emirates flight on or about the 25 February 2017. The Indorsement of Claim to the Personal Injuries Summons makes inter alia the following pleas in relation to what is alleged to have occurred. At para. 3 of the Indorsement of Claim it is stated inter alia that:-

“she was caused to suffer personal injury, loss and damage when she was caused to suffer and sustain a trip and fall due to the presence of a set of wired head/ear phones in the aisle of the aircraft.”

Later, under the heading of “Particulars of Personal Injury Occasioned by the Wrong of the Defendant” the following is stated:-

“The plaintiff's leg became entangled in the wire of the head-/ear phones and she tripped and fell hitting her head/face on an armrest and landing heavily on the cabin floor on her right hand side”.

4 In a Notice for Particulars which is dated the 7th November 2018, the plaintiff was called upon to provide full and detailed particulars of the provenance of the earphones and particulars as to whether or not the earphones were loose or plugged into an earphone jack at the time. The following replies to particulars were given by the plaintiff on the 12th December 2018, these appear at para. 2, (i) and (ii) of the replies, and there it is said at (i):-

“The plaintiff does not know where the earphones originated from. The plaintiff was only aware that the earphones were left in her path upon exiting the plane”.

At (ii) it is stated:-

“The plaintiff states that the earphones were plugged into an earphone jack at the time on the aisle seat, however she cannot be sure about this”.

5 In circumstances where the claim relates to injuries allegedly sustained in the course of a flight operated by the defendant from Dublin to Dubai, what is known as the “Warsaw” and subsequently and currently the “Montreal Convention” of 1999, as given effect to by the Air Navigation and Transport (International Conventions) Act 1936 – 2004, is of particular relevance. The Montreal Convention provides, in the manner I will discuss, what appears to be an exclusive system of remedies for passengers bringing claims against carriers in respect of international flights. This has been made clear including in particular in the 24 March 2011 High Court decision by Hedigan J. in McAuley v. Aer Lingus & Ors. [2011] IEHC 89, a case referred to at para. 6 of Mr. Carroll's first affidavit. At para. 27 of p. 396, the following is stated:-

“The Irish Courts have followed the Sidhu decision in finding that the Convention contains an exclusive and exhaustive code governing actions against carriers arising out of international carriage. In ( Smyth and Company Limited v Aer Turas Teoranta Unreported, Supreme Court, 3 February, 1997) Blaney J held at 28:-

‘“There is one further matter to which I should refer. Mr. Deeney said he was relying on a claim in negligence outside the Warsaw Convention. The respondent did not contest his right to make such a claim and therefore it did not become an issue in the appeal. It would appear, however, that where a claim is in respect of international carriage by air, a party with such a claim may be confined to such remedy as is given by the Convention. This would appear to be what was decided by the House of Lords in two cases reported in the London Times on the 13th December 1996, Sidhu and Others v. British Airways Plc 1997 AC 430 and Abnett (known as Sykes) v. British Airways Plc. The Court decided that Article 17 of the Warsaw Convention provided that the only remedy open to a passenger claiming to have suffered personal injuries arising from an international flight was under the Convention and that the Convention contained an exclusive and exhaustive code governing such actions and excluded actions brought under common law”’.

6 It is also appropriate and useful to quote from the headnote in McAuley, 3 IR 383, which states as follows:-

“Held by the High Court (Hedigan J.) in striking out the plaintiff's claim:-

(1) That the Montreal Convention contained an exclusive and exhaustive governing actions against carriers arising out of international air carriage and as Article 17.1 of the Convention provided that the liability of an air carrier was limited to cases of death and bodily injury, it was clear that the plaintiff could not succeed in a case for defamation, Sidhu v. British Airways and Smyth and Company Limited v Aer Turas Teoranta followed”.

7 In light of what this Court has held in McAuley, I am satisfied that for the purposes of this application the Montreal Convention provides a standalone self-contained and exclusive remedy for passengers making civil claims arising from international air carriage. It is also appropriate to say that it is a Convention which has plainly been adopted in many jurisdictions and unsurprisingly therefore cases to which this Court's attention has been directed, being cases which have considered the provisions of the Convention, including the Barclay decision to which I will refer presently, stress the importance of common construction of the Convention provisions in all the jurisdictions in which it has been adopted.

8 The Montreal Convention and the legislation which incorporates it in to Irish law are specifically pleaded at para. 5 of the Indorsement of Claim in the Personal Injury Summons, in which pleas are also made of “negligence” and “nuisance”, these being of course common law principles. The Personal...