Lawless v Aer Lingus Group Plc

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Irvine
Judgment Date29 July 2016
Neutral Citation[2016] IECA 235
Docket NumberRecord No. 2015/323
Date29 July 2016

[2016] IECA 235

THE COURT OF APPEAL

Irvine J.

Record No. 2015/323

Irvine J.

Hogan J.

Keane J.

Lorraine Lawless
Plaintiff/Appellant
- and -
Aer Lingus Group plc
Defendant/Respondent

Discovery - Personal injuries - Negligence - Appellant seeking voluntary discovery from the respondent of ten categories of documents - Whether documents sought were necessary or relevant to the issues between the parties

Facts: The appellant, Ms Lawless, on 11th February 2011, while in the course of her employment with the respondent, Aer Lingus, as a cabin crew member, was seated in and using a "jump seat", provided by the respondent for the use of cabin crew particularly during take-off and landing, when the aircraft made a heavy landing at Dublin Airport as a consequence of which the appellant sustained severe personal injuries, loss, damage and expense. Full particulars of negligence and breach of duty were outlined in the endorsement of claim, all of which referred to allegations against the respondent relating to the nature of the seat with which she was provided for the purposes of her work. In light of the fact that the pleadings had not alleged any pilot error, the appellant, by letter of 14th February 2014, sought voluntary discovery from Aer Lingus of ten categories of documents several of which related to the training, supervision and licences of the pilots on board flight EI 433. By letter of 17th September 2014 the respondent's solicitors indicated their willingness to make discovery in respect of certain categories of documents. However, they refused the discovery of categories 1, 2, 3 and 4. Further, they were only willing to comply with category 8 insofar as it might be confined to the moment of touchdown. By letter dated 21st May 2014 the appellant for the first time delivered particulars of negligence which related to the piloting of the plane on the day she sustained her injuries. On 10th June 2015, the High Court (Kennedy J) concluded that the documents sought at categories 1 to 4 were not necessary or relevant to the issues between the parties. As to whether the documents referred to in category 8 were necessary and relevant, beyond those which related to the touchdown itself, she concluded they were not in circumstances where the appellant's claim was based upon proof that she sustained an injury through a heavy landing which she maintained was negligent in all of the circumstances. The appellant appealed to the Court of Appeal against the order of the High Court.

Held by Irvine J that, having referred to Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company?(1882) 11 QBD 55, she was fully satisfied with the approach and the conclusions reached by the High Court judge. She had no doubt but that Kennedy J was correct when she concluded that the documents sought in categories 1 to 4 inclusive were neither necessary nor relevant to the issues to be determined by the court on the hearing of the action. Irvine J reached a similar conclusion in relation to the documentation pertaining to the thirty seconds immediately prior to and the fifteen seconds post the landing of flight EI433 on the day in question and which were covered in category 8.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

Judgment of Ms. Justice Irvine delivered on the 29th day of July 2016
1

This is the plaintiff's appeal against the order of the High Court (Kennedy J.) dated 10th June 2015. The order under appeal relates to the plaintiff's motion dated 11th June 2015 seeking discovery as against the defendant in what is commonly described as a personal injuries action.

Factual background
2

The plaintiff is an Aer Lingus cabin crew member who claims that she was injured on 11th February 2011 when the aircraft on which she was working at the time made a heavy landing at Dublin Airport. The particulars of the wrong alleged in the personal injuries summons plead as follows:-

'On or about 11th February 2011 the plaintiff, while in the course of her employment with the defendant as an air hostess, was seated in and using a 'jump seat' provided for the defendants for the use of cabin crew particularly during take off and landing when the said aircraft made a heavy landing as a consequence of which the plaintiff sustained severe personal injuries, loss, damage and expense.'

3

Full particulars of negligence and breach of duty were outlined in the endorsement of claim. All of these refer to allegations against the plaintiff's employer relating to the nature of the seat with which she was provided for the purposes of her work. No plea was made to the effect that there was anything irregular about the manner in which the plane was landed neither was there anything pleaded from which such a complaint could be inferred.

4

In their replies to the defendant's notice for particulars dated 26th October 2012, the plaintiff's solicitors stated the following concerning the 'jump seat' the focus of the plaintiff's claim, namely:-

'[It] was sufficiently dangerous and unsafe that while sitting thereon our client suffered a significant jarring type injury on heavy landing. A proper and safe seat would have ensured that the plaintiff was not injured. The plaintiff is not a qualified engineering expert, however an expert engineer would facilitate the court by explaining the technical deficiencies of the seat which resulted in the plaintiff's injuries.'

5

In its defence delivered on 29th April 2013 Aer Lingus put the plaintiff on proof of the heavy landing for which she contends, as well as proof of each of the allegations of negligence and injuries asserted.

6

Somewhat unusually, in light of the fact the pleadings had not alleged any pilot error, the plaintiff, by letter of 14th February 2014, sought voluntary discovery from Aer Lingus of ten categories of documents several of which related to the training, supervision and licences of the pilots on board flight EI 433. By letter of 17th September 2014 the defendant's solicitors indicated their willingness to make discovery in respect of certain categories of documents. However, they refused the discovery of categories 1, 2, 3 and 4. Further, they were only willing to comply with category 8 insofar as it might be confined to the moment of touchdown.

7

In a somewhat unusual turn of events having regard to the earlier pleadings, by letter dated 21st May 2014 the plaintiff for the first time delivered particulars of negligence which related to the piloting of the plane on the day the plaintiff's sustained her injuries. The following eleven new particulars of negligence and breach of contract were advanced:-

(k) Exposed the plaintiff to a heavy and unsafe landing where the aircraft [flight no. EI433] in which the plaintiff was travelling was caused to hit the runway with considerable force;

(l) failed to properly train the pilot of / or to ensure that a sufficiently trained and / or qualified pilot was in charge of flight EI433 on the day in question in the conditions that prevailed;

(m) failed to apply adequate care and / or skill to ensure a smooth landing of flight EI433 in conditions that prevailed;

(n) failed to properly supervise the pilot in control of the landing;

(o) exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known;

(p) failed to control or manage the aircraft such as passengers and crew were safe therein;

(q) exposed the plaintiff to a danger of foreseeable risk of injury in and about the driving management and control of the airplane;

(r) or failed to take adequate care for the safety of the plaintiff;

(s) exposed the plaintiff to an unnecessary risk of injury;

(t) allowed a pilot without adequate qualifications and / or experience to be responsible for the landing;

(u) the doctrine of res ipsa loquitur is hereby raised and will be relied upon.

Discovery
8

By letter dated the 14th February 2014, the plaintiff sought discovery of 10 categories of documents and by letter dated 18th September 2014 the defendant solicitors, Messrs O'Rourke Reid agreed to make discovery in respect of five such categories of documents and agreed to make discovery in respect of a sixth category albeit in a manner which confined the discovery to a particular timeframe to which I will later refer. Accordingly, when the matter came before the High Court for hearing on 10 June 2015 the following categories of documents were in dispute namely:-

Category 1:

Any document in the power or possession of the defendant comprising and / or evidencing the licences held by the pilots on board flight EI433 from Milan Linate to Dublin on 11th February 2011.

Category 2:

Any documents(s) in the power or possession of the defendant recording or evidencing the total hours flown by the pilots on board flight EI433 on 11th February 2011 including details of hours flown on type and capacity.

Category 3:

Any document(s) recording or evidencing the date of the first and most recent line and periodic checks of the pilots on board flight EI433 on 11th February 2011.

Category 4:

All document(s) in the power or possession of the defendant recording, comprising and / or evidencing any restricted flying policy applicable to any of the pilots on board flight EI 433 on 11th February 2011.

Category 8:

All document(s) in the power or possession of the defendant comprising printouts of Systems Data for the period encompassing thirty seconds before touchdown and fifteen seconds after in the increments provided by the system recording tabular and / or graphic data of:-

(a) aircraft weight,

(b) radio altitude,

(c) barometric and radio rate of descent,

(d) heading, normal, horizontal and longitudinal accelerations,

(e) oleo compression status,

(f) wind direction and speed.

9

In relation to categories 1 to 4 above the reason advanced for...

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