Crotty v SAS AB & Anor [2021] IEHC 394
High Court of Ireland
Facts
1. This plaintiff suffered an unfortunate accident when disembarking a flight from Stockholm at Ostersund Airport in northern Sweden in November 2017. She claims to have slipped and fallen on ice as a result of which she sustained a serious injury to her right arm. She has sued two defendants in respect of this accident. The first defendant, SAS AB, is an airline carrier and operated the flight between Stockholm and Ostersund on which the plaintiff was a passenger. The second defendant, and the moving party in the application before the court, is the airport authority which manages and operates Ostersund Airport.
2. Although the factual basis of the plaintiff’s claim is ostensibly straightforward, it has given rise to complex jurisdictional and procedural issues. This judgment concerns the second defendant’s application to strike out the plaintiff’s proceedings against it on the basis that it has not been properly served and that the Irish Courts do not have jurisdiction to determine the claim.
The second defendant was Swedavia AB, which appears to be the operator of the airport in question.
Issue(s)
11. Although the flight on which the plaintiff was travelling was an internal flight, it was part of a contract for international carriage from Dublin to Ostersund between herself and the first defendant. Consequently, the first defendant as an air carrier will be strictly liable to the plaintiff up to certain financial limits and liable without limitation if shown to be negligent in respect of any injury sustained by her whilst in the process of disembarking the aircraft. In effect, all the plaintiff has to show is that she was injured in the course of disembarking from the plane (as she has pleaded) in order to succeed, subject to certain limitations, against the first defendant. Further, under Article 33(2) of the Convention, the plaintiff is entitled, at her election, to bring these proceedings before the Irish Courts being the courts of the place of her principal and permanent residence in circumstances where the first defendant operates passenger services to and from Ireland. Consequently, and unsurprisingly the first defendant has not taken issue with the jurisdiction of the Irish Courts in respect of the plaintiff’s claim.
12. However, the first defendant’s liability is dependent on the plaintiff establishing that the accident occurred in the course of disembarking the plane. The Convention does not define what is meant by disembarking and there is a grey area between a passenger being wholly within a plane and being wholly within an airport and thus both legally and factually a potential overlap exists between the liability of the carrier and the liability of the airport. At the same time, the second defendant, as an airport and not a carrier, does not come within the scope of the Montreal Convention nor Regulation (EC) 2027/97 and is not strictly liable to the plaintiff for any injury sustained by her merely because she was present on an airport property. Instead, the liability of the second defendant will most likely depend on the rules regarding occupier’s liability or its equivalent under Swedish law. The Montreal Convention does not purport to confer jurisdiction on any courts in respect of injuries sustained in airports. This is logical. The purpose of the Montreal Convention was to ensure that people who sustain injury or loss in the course of international travel in circumstances where no one state might have readily identifiable jurisdiction and it might not be possible to ascertain the governing law, should be entitled to appropriate damages. The imposition of strict liability whilst allowing a plaintiff a choice of jurisdiction obviates the need for the courts in any jurisdiction to attempt to identify or apply the law of another jurisdiction.
Discussion
30. Based on these conclusions, it is apparent that the Irish Courts did not have jurisdiction over the plaintiff’s claim against the second defendant on the grounds set out in the endorsement on the personal injury summons. The court must proceed to examine whether the Irish Courts have jurisdiction, as now claimed, under Article 8 of the Recast Regulation and, if so, whether this jurisdiction existed or was required to exist at the time the plaintiff served the summons.
[…]
The plaintiff’s claim under Article 8(1) can also be disposed of shortly. The basis for this claim, as deposed to by the plaintiff’s solicitor, is that the plaintiff has lawfully issued proceedings against the first defendant in this jurisdiction and, consequently, the claim against the second defendant which is “ closely connected” to the claim against the first defendant ought to be heard here. However, as the second defendant rightly points out Article 8(1) only applies in proceedings against a number of defendants which are brought “in the courts for the place where any one of them is domiciled”. As both defendants are Swedish companies, neither of which is domiciled in Ireland, Article 8(1) has simply no application. Consequently, it is unnecessary to consider the extent to which the proceedings against the second named defendant are “ closely connected” to those against the first. There is, of course, an obvious connection between the two claims as both are brought by the plaintiff arising out of the same set of facts. On the other hand, the claim against the first defendant is based on strict liability under the Montreal Convention whereas the claim against the second defendant appears to be one in the nature of occupier’s liability and will be governed by Swedish law. Although not determinative, the CJEU regards the difference in the law to be applied to claims against two different defendants as a factor to be taken into account when deciding if those claims are closely connected for the purpose of affording jurisdiction. For the reasons already stated, the balance between these competing factors is not one that has to be drawn in the circumstances of this case.
32. Whilst the plaintiff appeared to accept that she could not show either defendant to be domiciled in Ireland, nonetheless she argued that Article 8(1) should be applied because its purpose is to avoid irreconcilable judgments. If the second defendant is correct, she would then have to issue separate proceedings against the second defendant in Sweden, giving rise to the potential for conflicting judgments in two different jurisdictions. It is an objective of the Recast Regulation, reflected in Recital 21, to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. However, this is not an absolute requirement and, indeed, Article 30 expressly envisages that related actions may be pending before the courts of different Member States. Article 30(1) gives any court, other than the one first seised, a discretion to stay its proceedings in those circumstances. Article 30(2) allows a court, at the invitation of any of the parties, to decline jurisdiction if the court first seised has jurisdiction over the actions and its law permits consolidation. It is significant that these powers are discretionary. Thus, Article 30 expressly recognises the possibility that notwithstanding the provisions of the Recast Regulation, related proceedings may co-exist in two or more jurisdictions and that while a court may stay its proceedings or decline jurisdiction in favour of the court first seised, there is no mandatory requirement that it do so. I do not think that the general objective of avoiding irreconcilable judgments allows the court to give Article 8(1) the broad interpretation suggested by the plaintiff.
33. I note the second defendant argues that there is no potential for irreconcilable judgments since the plaintiff’s claim against the first defendant will be determined on the basis of strict liability under the Montreal Convention and the claim against the second defendant will be determined by reference to occupier’s liability (governed by the law of Sweden). This is correct as regards the governing law, but I do not think that it eliminates the possibility of irreconcilable judgments entirely. In this case the potential is mainly factual as strict liability under the Montreal Convention applies only to the extent that the plaintiff is held to have been disembarking the aircraft when the accident occurred. As noted earlier, there is a grey area between a passenger being wholly on the aircraft and a passenger being wholly within the airport. There is some possibility that different courts seised of related proceedings arising out of these facts would reach different conclusions as to when, as a matter of fact, the process of disembarkation was complete and by extension whether the plaintiff was in the process of disembarking when the accident occurred. In passing, I might observe that this possibility would also arise as between different courts in a single jurisdiction and not merely because the courts which might be seised of the plaintiff’s claims against the first and the second defendant are in different jurisdictions. As it happens, it is simply not possible to comment on this matter further because of the manner in which the plaintiff has pleaded the case and the fact that she has not replied to the particulars raised by either defendant seeking to ascertain exactly where the accident occurred. Again, this is not a matter I need to consider in circumstances where I do not have to address whether the claim against both defendants is in fact “ closely connected” since the other conditions for the application of Article 8(1) are not met.
34. Article 8(2) presents a more complex problem. Under that provision, the second defendant can be sued as a third party before the Irish Courts, being the courts seised of the “ original proceedings”. There is an exception to this if the court were to take the view that these proceedings had been issued in Ireland solely with the objective of removing the second defendant from the jurisdiction of the Swedish Courts which would otherwise be competent. I am satisfied that these proceedings were not instituted solely for that purpose. There are many perfectly legitimate and practical reasons why someone injured on an aircraft would wish to prosecute any resulting claim before their national courts and, of course, the plaintiff was entitled under Article 33(2) of the Montreal Convention to sue the first named defendant in this jurisdiction.
35. Indeed, the second defendant does not suggest that the plaintiff’s proceedings were brought in Ireland with any such ulterior motive. Instead, the second defendant argues that it is simply not open to the plaintiff to rely on Article 8(2). That provision is one which gives a defendant in existing proceedings the right to have connected third party proceedings determined by the courts which have jurisdiction over the original proceedings. This is in ease of a defendant, which generally will have little or no say over the jurisdiction in which it is sued and enables that defendant to have all issues in connected proceedings resolved before the courts of a single jurisdiction. It does not permit a plaintiff to sue a defendant over whom the Irish Courts have no jurisdiction in the hope or expectation that a co-defendant, properly before the Irish Courts, will bring third party proceedings thereby legitimising the presence of the defendant who is not otherwise properly sued here. I think this argument is fundamentally correct.
36. Bearing in mind that the special rules exhaustively list the exceptions to the general principle that a defendant should be sued where it is domiciled (Article 4(1)) and the need to give a restrictive interpretation to such derogations, I do not accept the plaintiff’s argument that the potential from the outset for third party proceedings between defendants whom the plaintiff wishes to sue jointly is sufficient to bring the proceedings within the scope of Article 8(2). If the plaintiff’s argument were correct, then the distinction between Article 8(1) and Article 8(2) would be significantly elided and the requirement in Article 8(1) that at least one of the co-defendants be domiciled in the jurisdiction would be rendered superfluous. The plaintiff could sue all defendants in the courts of any Member State in which any one of them might be properly sued. Such an interpretation goes well beyond the cases envisaged by the Recast Regulation itself.
Accordingly, the Court found that it did not have jurisdiction over the plaintiff’s claim against the airport, Swedavia AB. See further [45] to [46]:
45. I recognise that the logical result of this analysis is in many respects unsatisfactory. Leaving aside whether the first defendant should be classified as a “ wrongdoer” when subject to strict liability, the first defendant has a statutory right under s. 21 of the Civil Liability Act, 1961 to seek a contribution from the second named defendant as an alleged concurrent wrongdoer in respect of the damage sustained by the plaintiff. The first defendant also has an entitlement under Article 8(2) of the Recast Regulation to bring third party proceedings against the second defendant before the Irish courts which are seised of the original dispute between the plaintiff and the first defendant. However, as the second defendant is not currently properly before the Irish courts, the first defendant cannot rely on steps taken by it on the false assumption that the second defendant was lawfully an existing co-defendant to the plaintiff’s proceedings. It remains open to the first defendant to take appropriate steps against the second defendant and to bring the second defendant properly before the Irish courts should it wish to do so and subject, of course, to any procedural or temporal rules that might apply.
46. In the context of this application, I will grant the second defendant both orders sought in its notice of motion, namely an order setting aside the service upon it of the personal injury summons and an order striking out the proceedings as against the second defendant for want of jurisdiction.
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