Nangle v Ryanair Designated Activity Company
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 15 May 2023 |
| Neutral Citation | [2023] IECA 118 |
| Docket Number | Record Number: 2022 163 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 118
Noonan J.
Haughton J.
Allen J.
Record Number: 2022 163
High Court Record Number: 2018/9183P
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 15th day of May, 2023
. In these personal injury proceedings, the plaintiff, a member of the cabin crew on one of the defendant's aircraft, claims to have slipped and fallen during a flight, thereby suffering an injury to her right arm. The High Court (Owens J.) found in her favour and awarded damages in the total amount of €94,071 comprising general damages of €70,000 and agreed special damages of €24,071. The defendant appeals the findings on both liability and quantum, and the plaintiff cross-appeals on both issues also.
. The accident happened on the 11 th February, 2018 at around 9.30am, shortly after the aircraft on which the plaintiff was working departed Dublin for Warsaw. Earlier that morning, the same plane had flown to and from Birmingham, again with the plaintiff onboard as a member of the crew. The evidence established that it was a cold, breezy and dry day at Dublin Airport where in the early part of the morning, the temperature was around, or just above, freezing. At 04:35hrs, airport staff carried out a de-icing operation on the plane which took about 10 minutes to complete. The plane was then stationed at Stand 119R at Dublin Airport. Each numbered stand can accommodate two aircraft, one on the right and one on the left side. Another aircraft was parked on Stand 120L adjacent to the plaintiff's aircraft and that other plane was also de-iced at around 05:25hrs, again over about a 10-minute period.
. The plaintiff arrived for work in the normal way in time for the aircraft's departure to Birmingham at about 6am. The plane in question was a Boeing 737–800 Series and the initial flight to Birmingham was full. The plane returned from Birmingham and again, the flight was full. When the plane returned to Dublin, it parked on Stand 120L where the earlier de-icing operation had taken place on another plane. The flight to Warsaw again had a full complement of passengers. The plane has a capacity of about 180 passengers who embarked and disembarked from the plane across the tarmac to the terminal building from both the front and rear of the plane on each flight.
. The plaintiff was the senior steward in charge of the cabin and there were four cabin crew on each flight, two stationed at the front door and two at the rear door. The plaintiff and her colleague were located at the front of the plane and were required for take off to sit on two rear facing “jump seats” just inside the front door of the aircraft. The plaintiff was seated beside the door and her colleague beside the aisle. Shortly after take off, the captain gave the signal to “release” the cabin crew from their seated position to attend to their duties while the plane was still climbing.
. The plaintiff immediately got up to move towards the galley, past her colleague and the passengers in the front row. As she did so she moved from the mat located inside the door of the aircraft onto the vinyl floor surface beside the galley which at that point was about 9 inches wide. As she placed her right foot onto the vinyl surface, her evidence, which was not contradicted by any other witness – and indeed no other person on the flight gave evidence – was that her right foot slipped suddenly from under her and she fell to the ground, striking her right arm violently against the side of the galley and suffering a displaced spiral fracture of her right humerus in the process.
. The plaintiff claimed that the cause of her slip and fall was the presence of de-icing fluid on the vinyl surface onto which she stepped. She agreed that there was nothing to be seen on the floor after her accident.
. The evidence also established that in the two-month period prior to the plaintiff's accident, three other accidents occurred on aircraft operated by the defendant where cabin crew slipped and fell on de-icing fluid, suffering injury, on the 17 th December, 2017, the 28 th December, 2017 and the 9 th January, 2018. Each of these accidents occurred in the aft gallery at the rear of the aircraft as distinct from the plaintiff's accident. The evidence also established that on the day following the plaintiff's accident, the 12 th February, 2018, the defendant issued an advisory notice to all staff advising them to be vigilant for the presence of de-icing fluid tracked onto the plane by passengers and staff coming on board. A similar notice had been issued over the previous winter period which was seen by the plaintiff.
. Evidence was given for both sides by expert witnesses. For the plaintiff, evidence was given by Mr. Pat Culleton who is a Chartered Physicist, Chartered Scientist and Chartered Engineer. For the defendant, evidence was given by Mr. Anthony Tennyson, a Chartered Engineer.
. The plaintiff's evidence was that she slipped on de-icing fluid which was present on the vinyl floor surface. She conceded however that there was nothing to be seen on the floor, and in particular, that there was no spillage of water or anything else. She was insistent that it had to be de-icing fluid because there was no water and the only other thing that can get carried on board is de-icing fluid on the feet of passengers who have walked across the tarmac subsequent to the carrying out of de-icing operations. It was put to her that because of the mechanism of the fall, it was more likely that she had tripped but she was adamant that she slipped. No contradictory evidence was called and as noted previously, no other person present on the aircraft gave evidence. In effect, the plaintiff's evidence was that there was no other possible cause of her fall than the presence of de-icing fluid.
. Mr. Culleton's evidence was that the de-icing fluid is composed of 75% water and 25% of a fluid called propylene glycol. He said that propylene glycol has a higher boiling point than water so it is less likely to evaporate than water. So when de-icing fluid is present on a surface, the water will evaporate, leaving behind a residue of propylene glycol. Mr. Culleton described this as leaving a thin greasy film on the surface. Mr. Culleton said that the documents discovered by the defendants included a risk assessment which did not address the risk of de-icing fluid being tracked onto an aircraft. He was asked in direct examination what steps should have been taken following the occurrence of the three falls prior to that of the plaintiff. He said that the employer should have identified the risk and addressed it, but did not.
. It was put to Mr. Culleton in cross-examination that the defendant's evidence would be that when the de-icing fluid dries out, it dries out to a powder. He responded that the manufacturer's information states that “the fluid dries out to a thin greasy film/fine white powder.” He said further that his understanding was that the de-icing fluid could linger on a surface for “several hours”. With regard to the presence of de-icing fluid on the floor of the aircraft, Mr. Culleton's view was that at the time of the plaintiff's fall, it was more likely that it was present as a result of the second boarding (the Warsaw flight) rather than the earlier flight, although it could have been from the latter.
. In the course of cross-examining Mr. Culleton, it was put to him that the defendant's evidence would be that after a plane has been de-iced and moves off-stand, a vehicle from the Dublin Airport Authority comes immediately to clean the area and this occurs on each occasion when de-icing of planes takes place. This line of questioning was immediately objected to by counsel for the plaintiff on the basis that such a proposition had never been pleaded, nor did it feature anywhere in Mr. Tennyson's report which had been disclosed to the plaintiff.
. Counsel submitted that this was the first time such a suggestion had been made and no documents had been discovered that disclosed the involvement of DAA in this alleged cleaning operation. Counsel submitted that had the plaintiff been on notice of this case, consideration might have been given to joining DAA as a co-defendant and/or seeking discovery from DAA of relevant documents. In reply, counsel for the defendants submitted that it was unnecessary to plead this because it had already been pleaded that all reasonable steps were taken by the defendant.
. The judge indicated that he did not accept that submission and counsel for the defendant then indicated that he would have to apply to amend his defence. Counsel for the plaintiff in reply objected to any proposed amendment of the defence inter alia, on the grounds that it would be unfair to the plaintiff to permit an adjournment, presumably on the basis that an application to amend would necessitate the trial being adjourned, a motion to amend being brought and heard and if granted, a subsequent consideration by the plaintiff as to the necessity for the joinder of further parties or the seeking of further discovery. Notwithstanding that submission, it would appear that counsel for the defendant did not in fact seek such an adjournment.
. The judge rose briefly to consider the matter and delivered his ruling, refusing to allow counsel to pursue the line of questioning indicated and directing that the trial should proceed. Following that ruling, counsel for the defendant reserved his position with regard to any appeal that might arise from the ruling.
. The defence called a witness from the DAA, Mr. Leonard, who was involved with ramp cleaning operations following the de-icing of aircraft and he offered the view that the...
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