Hennessey v Aer Lingus Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 13 March 2012
• Neutral Citation: [2012] IEHC 124
• Court: High Court
• Date: 13 March 2012

[2012] IEHC 124

THE HIGH COURT

[NO. 33 CA/2009]

Hennessey v Aer Lingus Ltd

BETWEEN

LIAM HENNESSEY

APPELLANT

V.

AER LINGUS LIMITED

RESPONDENT

OCCUPIERS LIABILITY ACT 1995

EQUAL STATUS ACT 2000

CMSN OF THE EUROPEAN COMMUNITIES v COUNCIL OF THE EUROPEAN COMMUNITIES 1971 ECR 263 1971 CMLR 335

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

AIR NAVIGATION & TRANSPORT ACT 1936 S17(1)

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 17

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 18

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 22

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 24

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 18(1)

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 22(2)

AHP MANUFACTURING BV (T/A WYETH MEDICA IRL) v DHL WORLDWIDE NETWORK NV & ORS 2001 4 IR 531 2001/1/125

SIDHU & ORS v BRITISH AIRWAYS PLC 1997 AC 430 1997 2 WLR 26 1997 1 AER 193

EL AL ISRAEL AIRLINES LTD v TSENG 1999 525 US 155

S SMITH & CO LTD v AER TURAS TEORANTA UNREP SUPREME 3.2.1997 1997/6/2287

NOLAN v AER LINGUS GROUP PLC UNREP LINNANE 9.11.2009 2010/40/9999

MCAULEY v AER LINGUS LTD & ORS UNREP HEDIGAN 24.3.2011 2011/32/8727 2011 IEHC 89

COURTS OF JUSTICE ACT 1936 S38

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (WARSAW CONVENTION) ART 1

HOOK v BRITISH AIRWAYS PLC 2012 1 LLOYDS 386 2012 EWCA CIV 66

EEC REG 1107/2006

AVIATION

Warsaw Convention

Plaintiff alleging personal injuries - Jurisdiction - Liability - Whether plaintiff confined to bringing claim pursuant to Warsaw Convention - Sidhu v British Airways plc [1997] AC 430 followed - AHP Manufacturing BV v DHL Worldwide Network NV [2001] 4 IR 531 considered - Air Navigation and Transport Act 1936 (No 40), s 17 - Warsaw Convention, articles 1, 17, 18 22 & 24 - Appeal dismissed (2009/33CA - Hedigan J - 13/3/2012) [2012] IEHC 124

Hennessey v Aer Lingus Ltd

1 JUDGMENT of Mr. Justice Hedigan delivered on the 13th day of March 2012.

2 1. The plaintiff/appellant (the plaintiff) resides at 17 Patrician Villas, Stillorgan, in the County of Dublin. The defendant/respondent (the defendant) is a limited liability company carrying on the business of an airline and with a registered address at Dublin Airport in the County of Dublin.

3 2. This case concerns an appeal from a ruling made on the 12 ^th February, 2009 at Dublin Circuit Court. On that date a preliminary hearing was held in relation to the plaintiffs claim for personal injuries and loss under the Air Navigation and Transport Acts incorporating the Warsaw Convention, the Occupiers Liability Act, 1995 and the Equal Status Act, 2000. The preliminary issue before the Court was whether the plaintiff was confined to bringing his claim for personal injuries and loss under the Warsaw Convention exclusively or whether he was entitled to include provisions of Domestic Law in his claim. Judge Linnane determined that the Warsaw Convention provided an exclusive cause of action and the sole remedy for the plaintiff in respect of his claim and precluded any claim based on domestic law. In the within proceedings the plaintiff seeks to appeal against this determination of the preliminary issue.

Background Facts

4 2 3.1 The facts which give rise to the plaintiff's claim are as follows; on the 15 ^th February, 2002 the plaintiff, who is confined to a wheelchair, took a flight with the defendant airline from Düsseldorf to Dublin. The plaintiff's motorised wheelchair was damaged in the cargo hold of the defendant's plane. By letter dated the 2 ^nd September, 2002, the defendant apologised to the plaintiff for the damage to his wheelchair and offered to compensate him for this damage in accordance with the terms of the Warsaw Convention. The plaintiff rejected the defendants offer and initiated proceedings seeking compensation for damage to his wheelchair. The plaintiff also claimed that he suffered personal injury because after the incident he was left without the use of his wheelchair, with the result that his health deteriorated and he become depressed. The plaintiff's claim was brought in contract, negligence and breach of statutory duty pursuant to the Air Navigation and Transport Acts 1936-1998, the Occupiers Liability Act, 1995, and the Equal Status Act, 2000.

5 3 3.2 In its defence which was delivered on the 13 ^th July, 2004, the defendant argued that the plaintiff's claim could only be maintained insofar as permitted by the Warsaw Convention. The defendant pleaded that the Warsaw Convention provided the exclusive cause of action which arises in respect of international carriage by air. As the plaintiff failed to serve notice of trial, the defendant brought an application on the 26 ^th February, 2008, to dismiss the proceedings on grounds of delay.

6 4 3.3 The County Registrar declined to dismiss the proceedings and instead directed that a preliminary issue be tried which related to the issue of the exclusivity of the Warsaw Convention. In the Circuit Court, Judge Linnane rejected the plaintiff's argument that he was entitled to rely on domestic law. The Court stated at page 3:-

"I do not accept the plaintiff's argument that a collateral contract came into being entitling him to bring claims under the Occupiers Liability Act or The Equal Status Act. These acts were not intended to amend the Warsaw Convention in this jurisdiction. If they had, Ireland would have been in contravention of its international obligations under the Convention."

7 Article 24 clearly precludes a passenger from making concurrent claims under both the Warsaw Convention and domestic law."

8 The plaintiff now seeks to appeal from this determination.

Plaintiffs Submissions

9 2 4.1 The plaintiff seeks to rely on the decision of the European Court of Justice in the Case 22/70 Commission v Council [1971] E.C.R 263 (the AETR case) where the ECJ held at paragraph 22 that:-

"to the extent to which (union) rules are promulgated for the attainment of the objectives of the Treaties, the Member States cannot, outside the framework of the (Union) institutions, assume obligations which might affect those rules or alter their scope."

10 The plaintiff submits that this judgment read along with the European Community and European Union Legislation with respect to Passengers with Reduced Mobility overrides the Warsaw Convention insofar as it conflicts with the European Union Legislation thus giving passengers with reduced mobility protection against Airlines who breach European Union Laws in this area.

11 3 4.2 The plaintiff submits that the defendant has failed in commitments which it entered into in relation to persons with reduced mobility. These commitments are outlined in a letter of the 25 ^th August, 2004 from one Fran Smyth of the Department of Transport to the plaintiff. Mr Smith wrote as follows:-

"I refer to your letter of 3 ^rd August, 2004 to the Department of Transport regarding the legal rights and entitlements of disabled passengers while travelling by air."

12 The regulatory system governing aviation interests stems from the European Union and the majority of Irish Legislation has been drafted to implement European wide legislation in order to enforce it in Ireland.

13 The Voluntary Passenger Service Commitments are a European initiative aimed at promoting a set of common customer standards among Europe's airports and airlines. The Commitments were adopted during the European Civil Aviation Conference/EU dialogue with the European air transport industry in Lisbon on 10 ^th May, 2001, and came into operation on the 14 ^th February, 2002. Acceptance of the Commitments is voluntary...Aer Lingus is a signatory.

14 A special protocol entitled 'Meeting the Needs of People with Reduced Mobility' requires signatory airlines and airports to undertake certain commitments in relation to People with Reduced Mobility'...

15 Among the commitments to People with Reduced Mobility is the requirement that...

16 ... a signatory airline take all reasonable steps to avoid loss or damage to mobility equipment. If loss or damage does occur, the airline is committed to make appropriate arrangements to meet the individual's immediate mobility needs....

17 The plaintiff points out that the commitments came into operation the day before his flight with the defendant. The plaintiff submits that due to the negligence of the defendant his motorized wheelchair was damaged with the result that his means of mobility was affected. The plaintiff further submits that the defendant failed to make appropriate arrangements to meet his immediate mobility needs in accordance with its commitments.

18 4 4.3 The plaintiff maintains that in order to secure medical treatment which is not available in Ireland he is required to travel abroad and he has no option but to travel by air. The plaintiff argues that his right as a European citizen to free movement within Europe has been interfered with by the defendants as on three occasions when he travelled with the defendant his motorised wheelchair has been damaged. The plaintiff submits that in addition to the defendant negligently damaging his wheelchair the defendant has also infringed his Human Rights by effectively depriving him of the opportunity to travel abroad for treatment. The defendant is acting in breach of inter alia Article 2 of the European...