Disley v Levine (t/a Airtrak Levine Paragliding)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY,LORD JUSTICE BUXTON,MR JUSTICE BODEY |
| Judgment Date | 11 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1087 |
| Docket Number | Case No: B3/2000/3637/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 2001 |
[2001] EWCA Civ 1087
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (Mr Justice Hunt)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henry
Lord Justice Buxton and
Mr Justice Bodey
Case No: B3/2000/3637/QBENF
R Lawson Esq (instructed by Messrs DLA for the Appellant)
D Knifton Esq (instructed by Messrs Brown Tuner Compton Carr for the Respondent)
The claimant was severely injured in a paraglider accident when she was under instruction from the defendant for her elementary pilot certificate on a paraglider. She now sues for damages for negligence and breach of contract. By order dated 13th July 2000, a preliminary trial of the following issues was ordered:
a) whether the claim fell within the scope of Schedule 1 of the Carriage by Air Acts (Applications of Provisions) Order, 1967 ("the 1967 Order"), and if so
b) whether the claim is statute-barred under the 1967 Order;
c) whether, if the answer to a) was Yes, the defendant nevertheless owed the claimant an additional or distinct duty of care by virtue of their relationship as instructor and trainee.
The said issues were tried before Mr Justice Hunt, who found for the claimant respondent on all three issues. He answered Questions a) and b) "No", and Question c) "Yes". The defendant now appeals questions a) and c) to this Court with leave of the trial judge. He concedes that the claim is not statute-barred under the 1967 Order.
The claimant, Ms Disley is an adventurous and courageous young woman. She was introduced to the sport of paragliding at a "fun-day" (for which she paid £70), organised by the defendant, trading as Airtrak Levine Paragliding, in which capacity he offers paragliding instruction to members of the public for reward. He is licensed as a Senior Instructor and Dual Pilot that is to say a pilot for a dual or tandem paraglider and we understand the school to be a registered British Hang-gliding and Paragliding Association school. Ms Disley then subscribed to a course of instruction, paying £177 for a course to qualify her for her elementary pilot's certificate. That is the contract on which she sues. There is no evidence of the defendant making any use of paragliders other than for recreation or instruction.
A paraglider consists of a canopy which is inflated by the wind to form an aerodynamic wing from which the pilot is suspended by a harness equipped with control lines. The inflated wing enables the aircraft to be flown forwards and downwards: to gain height it has to make use of thermal currents. It has rudimentary means of directional control. A paraglider usually carries one person, but a dual (tandem) paraglider (such as we had here) has been designed to enable it to carry and be controlled by two persons. Control extensions may be fitted to enable the second person to control the operation of the paraglider, indeed depending on the length of the control lines, the second person might be able to control the paraglider without a control extension being fitted. Suspended as they are from the wing in the harness, the occupant or occupants of the paraglider must act as its undercarriage running to launch at take-off, and hoping to land on his or their feet at landing. You cannot be just a passive passenger in a tandem paraglider. You must actively assist in take-off and landing.
On Wednesday 29th October 1997, the claimant attended a session of instruction by the defendant at a site on Edenfield Hill in Lancashire as part of the elementary pilot course. This was the claimant's first visit to that site. Owing to the fact that the wind conditions were stronger than those which she had previously encountered, the claimant expressed a reluctance to fly solo that day. So the defendant offered to take the claimant on a dual flight on an Airea "Fat Willy" tandem paraglider for the purpose of furthering her instruction in the sport of paragliding. This was her fourth day of instruction. She had flown in a solo paraglider, but never in a tandem paraglider before. It seems the latter have the problem that a paraglider sustaining two peoples' weight must still be controlled by one person's muscle.
While it is not unusual for an instructor accompanied by a student on a tandem flight to allow the student to operate the controls of the paraglider, here the defendant during the course of the flight remained in sole control of the paraglider. The claimant was seated in a cross braced training harness in front of and below the defendant. Control extensions were not fitted. There is no evidence one way or the other as to whether the control lines were within Ms Disley's reach. There is no suggestion that she played any part in controlling the paraglider during the flight.
When landing the paraglider at the end of the lesson, the defendant demonstrated a manoeuvre called "Big Ears", in which the outer sides of the canopy are collapsed in order to facilitate a rapid vertical descent. For the purposes of the preliminary issues, the agreed facts state:
"As the defendant attempted to land the glider, again using the 'Big Ears' technique, the left wing collapsed, resulting in the glider accelerating backwards, losing shape and collapsing. In consequence the claimant and the defendant fell to the ground, and the claimant suffered serious injuries, with consequent tetraplegia."
The claimant then commenced this action to recover damages for the personal injuries she sustained.
The Particulars of Claim identify the causes of action relied on by Ms Disley as being:
a) common law negligence; and
b) breach of an implied term that the defendant would carry out his course of paragliding instruction provided to the claimant with reasonable care and skill.
One major plank of the defendant's defence is that both causes of action relied on by the claimant are excluded by the provisions of the 1967 Order, and that their liability is confined to liability under that Order. The preliminary issues were designed to decide this question.
The scheme of the 1967 Order is this. Article 4 of the Order proper is headed: "Non-International Carriage and Carriage of Mail and Postal Packets"
"Schedule 1 to this Order shall have effect in respect of carriage to which this Order applies being either-
a) carriage which is not international carriage as defined in Schedule 2 to this Order, or, the carriage of mail or postal packages."
The power to make the 1967 Order is to be found in section 10(1) of the Carriage by Air Act, 1961:
"10 Application to carriage by air not governed by the Convention
Her Majesty may by Order in Council apply the First Schedule of this Act to carriage by air, not being carriage by air to which the Convention applies, of such descriptions as may be specified in that Order."
Schedule 1 is based on the Warsaw Convention as amended by the Hague Protocol, subject to the exceptions, adaptations and modifications described in Part 1 and applies to domestic flights. Article 1 provides:
"This Schedule applies to all carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking."
Chapter III deals with the liability of the carrier and, so far as is relevant, article 17 provides:
"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
That article provides a cause of action which imposes strict liability upon an air carrier for such damage. However, article 20 of Chapter III provides a defence which the defendant has pleaded:
"In the case of passengers the carrier shall not be liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures."
In any event, article 22(1) limits that damage to 100,000 Special Drawing Rights, a figure of approximately £90,000, unless article 25 applies.
Article 24 provides:
"(1) In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Schedule, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights."
Article 25 provides:
"In the carriage of passengers and baggage, the limits of liability specified in article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents done with intent to cause damage, or recklessly and with knowledge that damage would probably result."
The claimant does not seek to avoid the limit on damages by this article, but accepts that if her claim is governed by the 1967 Order, then the limit on damages applies.
Article 30(1) and 30(2) provide:
"(1) In the case of carriage to be performed by various successive carriers, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision.
(2) In the case of carriage of this nature, the passenger or his...
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