Purtill v Aer Lingus Ltd [2023] IEHC 649
High Court of Ireland
Facts
[1] The Plaintiff asserts that, during the course of her employment as a flight attendant with Aer Lingus, she suffered injuries as a result of what she describes as a “hard” or “abrupt” landing. More specifically, it is asserted that the aircraft upon which she had been working during a transatlantic flight on 28 June 2019 made an abrupt and/or hard landing at Boston Airport, as a result of which she sustained personal injuries.
Issue(s)
[2] One of the principal areas of dispute between the parties centres on whether it is appropriate to direct discovery of records of flight data monitoring and cockpit voice recordings. The resolution of this dispute requires consideration of Regulation (EU) No 996/2010 on the investigation and prevention of accidents and incidents in civil aviation.
Discussion
Justice Garrett Simons at [17] to [22]:
17. The Plaintiff has sought discovery of the cockpit voice recordings in respect of the flight during the course of which she is alleged to have been injured. Aer Lingus resists discovery, primarily, by reference to the EU Regulation.
18. Discovery of the cockpit voice recordings is refused for the following reasons. First, aside entirely from the EU Regulation, the Plaintiff has failed to demonstrate that discovery of this category is necessary in circumstances where other categories of documents are being made available which will allow the Plaintiff to pursue her allegation that there was negligence in the manner in which the aircraft was landed. More specifically, the Plaintiff is to be provided with records of flight data monitoring which will indicate parameters such as landing forces for a period of time five seconds before and five seconds after touchdown. It is unnecessary to supplement this data by also providing the Plaintiff with the cockpit voice recordings. The content of same is unlikely to add to the Plaintiff’s knowledge of the circumstances of the landing. Having regard to the confidential nature of cockpit voice recordings, an order for discovery is not justified. The content of the cockpit voice recordings is unlikely to have “some meaningful bearing on the proceedings” (to borrow the language of Ryan v. Dengrove DAC). The Plaintiff’s case will largely stand or fall on what is established by the records of the flight data monitoring.
19. Secondly, the disclosure of the cockpit voice recordings is not justified by reference to the proviso under Article 14(3) of the EU Regulation. The disclosure would be of no obvious benefit to the Plaintiff in circumstances where she is to be provided with records of the relevant flight data monitoring.
20. There is thus nothing to weigh in the balance against the adverse domestic and international impact that the directing of disclosure may have on future safety investigations. A perception that the Irish Courts are willing to direct the disclosure of cockpit voice recordings even in the absence of any compelling justification might well have a chilling effect. Pilots might be more circumspect in their communications, and, in the case of private aircraft, in particular, pilots might choose not to install or operate voice recording equipment.
21. Accordingly, discovery is refused in respect of category (c), and the wording of category (d) is modified by the inclusion of the following qualifying words: “This category excludes cockpit voice recordings”.
22. This decision to refuse discovery of the cockpit voice recordings is consistent with the approach taken in McCormack Pittion v. Aer Lingus Group plc (Unreported, High Court, Kearns P., 2 February 2015). Kearns P. held as follows:
“Article 14(3) of the Regulation permits of an exception where it is in the interest of justice that the data be disclosed but the key point here is that the Plaintiff says that she suffered injury on landing because the forces on landing were excessive and the Defendant denies this and says the forces on landing were not excessive.
Consequently, the issue in the case is what were the extent of the forces on landing. Given the sensitivities that would arise on disclosure of the material, the Court would have to be satisfied as to the necessity for which discovery of the documentation is sought. In this case, the Court is not satisfied that the discovery is necessary.
Useful for
Cockpit voice recordings not discoverable
