O'Regan v Ryanair DAC

JudgeMr. Justice Tony O'Connor
Judgment Date10 December 2018
Neutral Citation[2018] IEHC 711
Docket Number[2018 No. 2482 P]
CourtHigh Court
Date10 December 2018

[2018] IEHC 711


O'Connor Tony J.

[2018 No. 2482 P]


Third party notice – Assault – Personal injury – Defendant seeking liberty to issue third party notice – Whether the third party should be joined

Facts: The plaintiff, Mr O’Regan, alleged that he was assaulted by the proposed third party on the flight from Bari in Italy to Dublin Airport operated by the defendant, Ryanair DAC, on 7th July, 2017. The plaintiff urged the High Court to find that the proposed third party and the defendant could not be “concurrent wrongdoers” within the meaning of the Civil Liability Act 1961 because the Montreal Convention 1999 provided an exclusive cause of action for the plaintiff; thus, the third party should not be joined pursuant to s. 27 of the 1961 Act. The personal injuries summons pleaded that the proceedings did not require authorisation from the Personal Injury Assessment Board on account of s. 3A of the Personal Injury Assessment Board Act 2003 which exempts claims made under the Montreal Convention. The personal injuries summons pleaded “Further, or in the alternative the defendant” was negligent in failing inter alia to take “appropriate care”. A defence was delivered on 3rd October, 2018, which pleaded, inter alia, that the plaintiff’s claim did not come within the provisions of Article 17 of the Montreal Convention. The defendant also pleaded that the incident was not caused or contributed to by any act, default or omission on its part.

Held by O’Connor J that the resistance of the plaintiff to the defendant’s application was not well founded in view of: (i) O. 16, r. 2 of the Rules of the Superior Courts (RSC) which does not facilitate the plaintiff to make his argument now about whether a wrongdoer who caused an assault can be concurrent with a wrongdoer under the Montreal Convention; (ii) the overlooking of the alternative plea relying on negligence in the personal injury summons which the plaintiff had not withdrawn; (iii) the defence delivered on 3rd October, 2018, which put causation and negligence in issue while asserting that the claim did not come within the provisions of Article 17 of the Montreal Convention; and (iv) the implication arising from Bell v Dublin Airport Authority plc [2016] IECA 384 and particularly para. 47 which envisaged the joinder of a third party by a defendant airline even though a claimant may not be able to pursue the third party as an additional named defendant. The defendant satisfied the Court that it could claim entitlement to one or more of the remedies set out in O. 16(1) of the RSC from the proposed third party and that there was an issue connected with substantially the same subject matter of the plaintiff’s claim.

O’Connor J held that he would grant liberty to the defendant to issue a third party notice in the form exhibited as “PL1” to the affidavit sworn by Mr Lennon on 3rd October, 2018. O’Connor J directed that the issues between the parties be heard as the trial judge may so direct when the plaintiff’s claim comes to trial. O’Connor J also gave liberty to the third party to file a defence to the third party notice within 28 days from the entry of an appearance on the part of the third party. At the request of counsel for the defendant in view of anticipated difficulties with service O’Connor J extended the time for service of the third party notice pursuant to O. 16 r. 2(2) of the RSC to 35 days from the date of issue of the third party notice.

Judgment approved.


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