Carmelo Labbadia v Alitalia (Societa Aerea Italiana S.p.A)
| Jurisdiction | England & Wales |
| Judge | Margaret Obi |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2103 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17X00399 |
| Date | 31 July 2019 |
[2019] EWHC 2103 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Margaret Obi
(sitting as a Deputy High Court Judge)
Case No: HQ17X00399
Lionel Stride (instructed by Irwin Mitchell) for the Claimant
Jack Harding (instructed by Eversheds Sutherland) for the Defendant
Hearing date: 20 June 2019
Approved Judgment
Introduction
On 5 February 2015, at 7.35 am the Claimant boarded flight AZ229 from London Heathrow airport to Milan Linate airport. The aircraft landed at 10.21am in poor weather conditions. As the Claimant disembarked from the rear of the aircraft, he fell headfirst from the aircraft stairs to the ground and sustained significant injuries to his right dominant shoulder and right pelvis. He required hospitalisation and operative treatment to his shoulder and conservative treatment to his pelvis. After a period in hospital the Claimant was transferred to a rehabilitation unit for several weeks. The Claimant is 77 years old. At the time of the incident he was 72.
The central issue in this case is: ‘Was this an accident?’ As the incident relates to the international carriage of a passenger by air, liability is governed exclusively by Article 17(1) of the Montreal Convention 1999 (the Montreal Convention). The Montreal Convention is the successor provision to the Warsaw Convention 1929. The provisions, although not identical, materially have the same effect and the authorities under the earlier instrument are equally applicable to the Montreal Convention. ‘Accident’ within the meaning of Article 17(1) of the Montreal Convention is an autonomous concept. In the interests of uniformity and certainty domestic law principles and domestic rules of interpretation do not apply. Therefore, there was no dispute between the parties that the concepts of equity, fault, reasonable care or negligence on the part of the carrier have no role to play. As stated by Lord Scott in re Deep Vein Thrombosis Group Litigation [2006] 1 AC (the DVT case) the balance to be struck between passengers and airlines ‘… ought not to be distorted by a judicial approach to interpretation in a particular case designed to reflect the merits of the case.’ He cited with approval the dissenting opinion of Scalia J in Hussain v Olympic Airways [2004] 124 S Ct 1221 that:
‘A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an ‘accident’. Whatever that term means, it certainly does not equate to ‘outrageous conduct that causes grievous injury’. It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue…. Unless there has been an accident there is no liability, whether the claim is trivial … or cries out for redress.’
Although there have been numerous judicial interpretations of ‘accident’ in various signatory countries, according to the research conducted by Counsel, there is no legal authority on all fours with the issues raised by this case. It was common ground between the parties that if the Claimant could not succeed under the Montreal Convention his claim must fail.
Issues
As liability and quantum are in dispute the broad factual and legal issues to be determined, as set out in the Claimant's skeleton argument, are as follows:
a. The mechanism of injury (namely whether the Claimant slipped on snow and/or ice on the disembarkation steps as he exited the aircraft);
b. Whether this fall amounted to an ‘ accident’ within the definition of the Montreal Convention;
c. The extent of the Claimant's injuries and whether he will require hip surgery;
d. Quantum.
Witness Evidence
The Claimant
The Claimant gave oral evidence. He affirmed his witness statements dated 13 May 2017 and 5 January 2019. He stated that at the time of the incident he was a consultant engineer and was travelling to Milan for business reasons. He stated that he was a frequent flyer, having travelled between the UK and Italy every five weeks or so for the last 15 years. The Claimant stated that as the aircraft approached Milan airport the pilot announced that the weather conditions on the ground were cold and freezing. He stated that, having landed, the aircraft taxied for approximately 5–10 minutes. The Claimant was in seat 22C, which was an aisle seat. During cross examination he accepted that the aircraft landed in daylight but denied that he had looked out of the window. He stated that once the aircraft came to a standstill there was a further announcement that passengers could disembark via either the front or rear exits but no further announcement about the weather conditions and no warning that passengers should proceed with caution.
The Claimant used the rear exit because that was the closest. He stated that the aircraft was not full and only two or three other passengers disembarked before him. The Claimant stated that as he approached the exit, he could see that it was snowing. As usual there was a shuttle bus a short distance from the aircraft steps to take the passengers to the airport terminal as there is no aircraft bridge at Milan airport. The passengers that had disembarked before him were already on the shuttle bus. He recalled noticing white flecks on his black coat. He stated that the rear aircraft stairs did not have a canopy, which in his experience was unusual. However, the front aircraft stairs did have a canopy. He stated that the rear stairs were metal and were covered in snow. He accepted that he did not see ice but suspected there was ice ‘… because of the way [his] foot went.’ The Claimant described holding his trolley case and a plastic bag in his right hand and moving to the left to reach for the handrail. He stated that as he took one more step lost his balance and he ‘went down.’ He stated that he did not have the chance to grab hold of the handrail.
Mr Wilson
Mr Wilson gave oral evidence on behalf of the Claimant. He affirmed his witness statement dated 13 May 2017. He was the passenger in seat 22B. He could not recall an announcement by the pilot. He did not see the Claimant's fall as he was two or three passengers behind him. He stated that as he exited the aircraft from the rear, he noticed that it was ‘ snowing slightly’ and ‘blowing’. He also noticed that the passengers exiting from the front exit had the benefit of a ‘ covered walkway’ but the rear exit steps were not covered. He saw a covering of snow and uneven ‘ darkish’ patches on the steps. He stated the dark patches could have been snow or compacted ice. He confirmed that he did not see ice.
Mr Wilson stated during his evidence in chief that when he stepped on to the platform he slipped and had to grab hold of the handrail. In his witness statement he stated that the surface was ‘… very slippery’ but did not state that he had actually slipped. When cross examined, he accepted that this was the first time that he had mentioned that he had slipped. The explanation he provided was that he had given general descriptions in his witness statement and at the time did not think that his ‘ slip’ was relevant. Mr Wilson stated that as he was descending the aircraft, he saw the Claimant ‘ lying in a heap at the bottom’ of the stairs. During re-examination he stated that he had travelled to Milan 8–10 times per year during winter and had not experienced snow.
Mr Toselli
Mr Toselli gave oral evidence on behalf of the Defendant with the assistance of an interpreter. He confirmed that the contents of his witness statement, dated 28 January 2019, were true to the best of his knowledge and belief. He stated that he has been the Head of Operations at Milan airport since May 2015. He was employed by the airport in February 2015, but in a different role. He confirmed that Airport Handling SpA started its operations at Milan airport in September 2014 and since then aircraft stairs have always been used for the disembarkation of passengers. He stated that it had not been possible to ascertain which stairs had been used for the disembarkation of passengers from flight AZ229 on 5 February 2015 as there were no regulatory requirements to record or retain such information. Mr Toselli's witness statement exhibited an extract from the operating manual in relation to the use of aircraft stairs in the event of adverse weather conditions. The relevant extracts from the operating manual are as follows:
4.6.9 Positioning of the airport stairs
… …
Prior to the positioning of the aircraft stairs, the operator must retract the aircraft stairs canopies, parades, handrails or other protections into a safe position and check that the aircraft stairs floor area does not present conditions that could be dangerous for passengers or operators, such as the accumulation of snow, ice and trash. If abnormalities are found, they must be removed before authorizing the disembarkation of the passengers.
… …
4.18.6 Snow and Ice alert
… …
Make sure that passenger stairs are free from contaminations of ice or snow that could make them slippery and dangerous for passengers and operators'
Mr Toselli stated in his witness statement that the operating procedures are consistently applied and ‘… deemed suitable to guarantee the safety of passengers using aircraft stairs, providing that in the case of bad weather stairs equipped with cover (canopy) are used where possible.’ He accepted that it was highly unusual for the aircraft stairs to have snow and/or ice on them whilst...
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