Airline has expenses due to medical service company after personal injury claim reduced by a third

About this case:

• Citation:
  [2023] CSIH 20
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

It was not disputed that pursuer Colin Mather was entitled to his expenses from first defender easyJet Airline Co Ltd, and that easyJet would pay the pursuer’s expenses to second defender DRK Hamburg Mediservice GmbH, which was successful in the Outer House stage of the case. However, easyJet claimed that their liability to DRK should be modified as it had been unsuccessful in one aspect of its case at both first instance and appeal.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Pentland and Lady Wise. Di Rollo KC appeared for the pursuer, McBrearty KC for the first defenders, and Shand KC for the second defenders.

Good case against them

In May 2017, the pursuer suffered injury when he fell from a wheelchair while being pushed along an air bridge at Hamburg Airport by an employee of DRK. In April 2019 the pursuer raised the action against easyJet based on the Montreal Convention, which was defended by a claim that DRK was the responsible party. In April 2020 DRK was added as a second defender, which was ultimately accepted as being caused by the nature of easyJet’s defence.

The Lord Ordinary determined that easyJet were liable for all of the pursuer’s loss and damage under the Montreal Convention because the wheelchair operative had been acting as their agent and had been negligent. In relation to a contribution claim by easyJet against DRK, he agreed with DRK’s submission that German law was applicable to that claim and thus the claim was time-barred.

In the reclaiming motion by easyJet, the Inner House held that the Lord Ordinary had been correct in his application of the law of agency. It held that DRK were vicariously liable for the actings of the wheelchair operative and the pursuer would have had a good case against them if not for the time bar. In relation to expenses, easyJet was found liable to the pursuer for both the expenses of appeal and for the pursuer’s expenses at first instance, either directly or via a right of relief.

On appeal, easyJet submitted that their liability in expenses to DRK, however structured, should be modified by an appropriate percentage, perhaps 50%, because DRK had been unsuccessful in one aspect of the case both at first instance and on appeal. DRK’s position had been that, leaving aside time-bar, they would not be liable to pay damages to the pursuer in respect of their, or their employee’s, actions. Secondly, flowing from that, easyJet should not be liable for the expenses of the pursuer’s successful cross-appeal on DRK’s liability to pay damages but for that time-bar.

No sound reason

Delivering the opinion of the court, Lord Carloway observed: “There is no difficulty in finding the pursuer liable to DRK in their expenses in the Outer House. Although the matter is again discretionary, if, as here, a pursuer has had to convene a second, and ultimately successful, defender because of the position adopted by the principal defender, the court may grant the pursuer a right of relief in respect of his liability to the second defender. It is not disputed that this is an appropriate course here even if a direct alternative was proffered.”

He continued: “DRK successfully resisted the reclaiming motion and are entitled, as a generality, to an award of expenses in the Inner House proceedings against easyJet. EasyJet contended that their liability in expenses in both the Outer and Inner Houses ought to be modified because, the pursuer having convened DRK, DRK unsuccessfully resisted the case of fault against them. They did not need to go that far; they could just have depended upon the application of German law to that question and their consequent, and successful, plea of time-bar in respect of the apportionment claim against them by easyJet.”

Addressing the case for apportionment, Lord Carloway said: “Having regard to the procedural background and the timing of easyJet’s claim for apportionment and contribution, the court agrees with DRK that it was not unreasonable for them to advance a number of defences at first instance; even if some of these might ultimately have been perceived as weak. In the Outer House, DRK were entirely successful and there is no basis upon which their expenses (for which the pursuer is liable) should be modified.”

However, in relation to the appeal, he went on to say: “The pursuer raised the issue of fault on the part of DRK because the Lord Ordinary had not dealt with it. DRK staunchly resisted the cross appeal by deploying a wide range of fire. They maintained that the Lord Ordinary had erred in finding that their operative had been at fault and, even if he had been, DRK were not vicariously or otherwise liable to the pursuer. As distinct from the position in the Outer House, by the time of the reclaiming motion, these issues had become severable from the principal contention on the Montreal Convention.”

Lord Carloway concluded: “The Lord Ordinary had made it clear that the operative was at fault. EasyJet did not take issue with the cross appeal but DRK elected to do so on a range of substantive and detailed grounds. There is no sound reason why easyJet should bear DRK’s expenses (or indeed those of the pursuer) for that element of the reclaiming motion attributable to the cross-appeal. The court is conscious, however, that an attempt to separate out the cross-appeal in any award may make the Auditor’s task a difficult one.”

The court therefore reduced the award of expenses due to DRK by easyJet in respect of the reclaiming motion by one third.