Outer House judge finds airline liable for injuries of man thrown from wheelchair during disembarkation

Lord Uist

About this case:

• Citation:
  [2022] CSOH 40
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Uist

Colin Mather, the pursuer, had flown from Edinburgh to Hamburg, Germany, on a flight operated by easyJet Airline Co Ltd in May 2017 and was thrown from a wheelchair unexpectedly before reaching the terminal. The defender sought a contribution in the event of liability being found by DRK Hamburg Mediservice GmbH, whose employee had been pushing the wheelchair.

The case was heard by Lord Uist. Di Rollo QC appeared for the pursuer, McBrearty QC and Pugh, advocate, for the first defender, and Shand QC for the second defender.

Montreal Convention

The pursuer, who was born on 7 June 1965, was rendered an incomplete T3 paraplegic after an accident in 2009. By May 2017 the nature of his work as a consultant frequently took him abroad, including regular flights from Edinburgh to Hamburg. On 15 May 2017, he boarded such a flight in Edinburgh with assistance, after which his wheelchair was stowed in the hold.

When the pursuer arrived in Hamburg, assistance personnel helped him into an airport wheelchair, as his own one was still in the hold, and pushed him onto the air bridge leading towards the terminal building in a manner the pursuer described as “brisk”. At the entrance to the building the wheelchair hit the raised edge at the point where the air bridge met the terminal, causing the pursuer to land on his legs on the marble floor just inside the threshold of the airport building.

As a result of his fall, the pursuer suffered fractures to both legs below knee level. His case was that the first defender was liable for his injuries under the Montreal Convention 1999, as incorporated into Scots law by the Carriage by Air Act 1961, as amended. He asserted that easyJet had admitted liability in a solicitor’s email dated 17 July 2018 which stated: “I have instructions to admit liability in line with the protocol. It is intended to be binding.”

Counsel for the first defender maintained that it was not bound by its pre-litigation admission to accept liability for anything more than provided for by the Convention, and that in any event the accident had been solely caused by the man pushing the wheelchair, Mr Heinz, who was an employee of the second defender. DRK had not been acting as agent of the first defender, as submitted by the pursuer, but on behalf of the operators of Hamburg Airport.

In its response, the second defender submitted that under Article 17 of the Convention, easyJet was responsible for the pursuer’s safety until he was inside the terminal building, and thus was responsible for the acts of Mr Heinz whilst on the air bridge. Further, under the Convention any claim against DRK as agents of easyJet had been extinguished by limitation.

Furtherance of the contract

In his decision, Lord Uist said of the first defender’s email of July 2018: “The issue between Mr Mather and easyJet is not about the principle of liability, which cannot be questioned in view of the terms of the Convention, but about the extent of its liability and whether it should be unlimited. The email says nothing about the extent of liability and therefore is of no assistance to Mr Mather in his claim for unlimited liability. The burden of establishing unlimited liability remains upon him.”

Applying the Convention to the facts of the case, he said: “There is no dispute that the event which caused the injury to Mr Mather was an accident which took place in the course of disembarking within the meaning of Article 17(1). The critical issue, so far as the extent of easyJet’s liability is concerned, is whether DRK was acting as the agent of easyJet or as a third party.”

On this point, he continued: “It matters not that there was no direct contractual connection between easyJet and DRK or that DRK was the independent contractor to Hamburg Airport. What matters is that the services provided to easyJet were in furtherance of the contract of carriage by assisting Mr Mather to disembark the flight. They were also, in terms of the earlier test, services which easyJet would themselves have been required by law to provide had DRK not provided them as they were part of the process of disembarkation.”

Lord Uist concluded on liability: “Had [Mr Heinz] been keeping a proper lookout he could and should have seen the ridge ahead of him and manoeuvred the wheelchair safely over it. It follows that, in terms of Article 21(2)(a) of the Convention easyJet is liable for unlimited damages as it has not proved that the injury to Mr Mather was not due to its own negligence or other wrongful act or omission or that of its servants or agents. Indeed, Mr Mather has proved that the accident was due to the negligence of its agent, DRK.”

Addressing the first defender’s case for a contribution, he added: “The law applicable to the question of contribution in this case is German law. No contribution or apportionment claim was made by easyJet against DRK until intimation of a Minute of Amendment on 24 November 2021. [The second defender] gave unchallenged evidence that easyJet’s claim for contribution from DRK had to be brought by 31 December 2020 as the standard limitation period under section 199 of the German Civil Code was three years from the end of the year in which the claim arose.”

Lord Uist therefore concluded that the first defender was liable to make reparations to the pursuer without limit of liability, and assoilzied the second defender.