Arthern v Ryanair DAC [2023] EWHC 46 (KC)
High Court of Justice, King's Bench Division, England
Facts
[5] On 12 December 2017, the appellant sustained an injury during the course of a flight from Manchester to Hamburg. As to the circumstances which gave rise to the incident, the appellant’s evidence at trial was essentially unchallenged and was entirely accepted by the judge. She recorded his evidence as follows:
“…it was very cold on the morning of the flight… It was wet on the ground, perhaps from ice or from freezing fog, which was also present. The flight was delayed. [The appellant] was told at the airport that the reason for the delay was because the aeroplane had to be de-iced. Once that had been done, the passengers walked across the tarmac to get to the aeroplane. They did not board from a boarding bridge. A short time into the flight, he got up to use the toilet and he slipped near to the toilet door. He told me that he noticed after he fell that his clothes were wet, and that he had slipped on what in his witness statement was described as a large amount of fluid on the floor… He was not sure whether the liquid was just water alone – it seemed to him to be a mixture of de-icer and water, which made a kind of slushy substance that was similar to wallpaper paste. He said the effect upon him of stepping on it was as though he had stepped on black ice.”
[6] The respondent called no oral evidence but relied on a witness statement from Ms Megan Doyle (the respondent’s Inflight Safety, Security, Regulatory and Compliance Manager) who gave hearsay evidence derived from the written accident report completed by one of the cabin crew who had assisted the appellant when he fell. Ms Doyle indicated that, as the result of wet and snowy conditions, passengers had brought some moisture into the cabin on their shoes as they embarked. The aeroplane had steps for entering the plane at the front and the rear. Both entrances were near the toilets. The floor had quickly become wet as the passengers boarded.
[7] In a key passage of her witness statement, Ms Doyle explained:
“6. When conditions outside of the aircraft are wet, moisture can be walked into the cabin by passengers when they embark the aircraft. This is normally very limited and quickly dries…
7. It would not be usual for cabin crew members to mop or clean the floor in these circumstances or during the course of a flight (unless there is a spillage of some kind).”
The judge found that the appellant had slipped on liquid that was a mixture of de-icing fluid and water (or ice) which had been tracked into the cabin by passengers on the soles of their feet while they were entering the plane. The de-icing of the plane and the subsequent tracking of liquid into the cabin were both “specific events.”
Issue(s)
Was there an “accident” within the meaning of Article 17 of the Convention?
See also para [8], citing the judgment below:
The real issue here, then, is whether it is an unexpected or unusual event that on cold and icy days where the aeroplane has to be de-iced and the passengers are walking to the aircraft across the tarmac, they track water and ice and de-icing fluid into the cabin. Is that no part of the usual, normal and expected operation of the aircraft, or is it exactly what one would expect on such a day?
Discussion
See Mrs Justice Farbey:
[42] It would be tempting to regard the build-up of liquid as hazardous and then to infer that the hazard was an accident; but that is not the approach of any of the judicial formulations from which I have derived assistance. I have heeded the cautionary note sounded by Lord Scott at para 12 of the Deep Vein Thrombosis Group Litigation that judicial formulations of the characteristics of an article 17 accident should not be treated as a substitute for the language of the Convention. Nevertheless, the grain of the case law since Saks runs deep and focuses on injury caused by an event that is “unusual” or “unexpected”. It would in my judgment be unprincipled (and carry the risk of undue judicial subjectivity) if I were to adopt an approach that was not consistent with existing judicial exposition of the concept of an accident. That is particularly so when the domestic appellate cases are binding on me.
[43] Having considered the authorities, I have reached the view that the judge applied the correct legal principles to the facts that she found. Her factual findings are rooted in the evidence before her. She was alert to the issues in dispute and considered with care whether the appellant had suffered an “accident” within the meaning of article 17(1). She made her own assessment of whether the requirements of an “accident” were met with which this court will be slow to interfere on appeal.
[44] There may be gaps in Ms Doyle’s evidence to the extent that it does not deal with the normal operation of the aircraft when there has been de-icing. I do not know what, if anything, is in the respondent’s operating procedures about icy as opposed to rainy weather conditions. It is not, however, the function of this court to fill the gaps. It would be wrong for this court to become involved in whether it was the appellant’s failure to amend his Particulars of Claim or the respondent’s failure to bring Ms Doyle to court that is the source of the gaps. Those procedural matters fell to be dealt with during the course of the proceedings below. There is no appeal ground, and Ms Prager made no oral submissions, to the effect that the appeal should be allowed on grounds of procedural error or other unfairness.
[45] The judge stated expressly that she was “mindful of the fact that there was no direct evidence from the [respondent] on the particular point of de-icing fluid being tracked into the cabin” (see para 25 of the judgment, cited above). She was nevertheless entitled to use the orthodox forensic tools of direct factual findings on, and inference from, the evidence that was supplied to her.
[46] The judge considered both aspects of the evidence that Ms Prager emphasised before me, namely the large amount of fluid on the floor and the fact that it did not quickly dry. As to the amount of fluid, the judge relied on the number of passengers who boarded the plane. She was entitled to conclude that it would not be unusual or unexpected, from the viewpoint of a reasonable passenger, that a large amount of liquid was tracked into the cabin by the numerous passengers. There are no grounds to interfere with her reasoning.
[47] Ms Prager sought to persuade me that Ms Doyle’s evidence implied that liquid that did not dry quickly was unusual or unexpected. In my judgment, the judge was entitled to reach the view that such a conclusion was not inexorable – i.e., that no such implication arose – in cold weather when de-icing had taken place.
[48] Standing back, I am not persuaded that the grounds of appeal seek anything other than the substitution of my judgment of what is “unusual” or “unexpected” for that of the judge. There is no traction in that approach: it would in effect amount to a rehearing and not a review. Accordingly, despite Ms Prager’s attractive submissions, this appeal is dismissed.
Useful for
Accident requires unexpected or unusual event that is external to the passenger
