Jebson v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STEEL,LORD JUSTICE POTTER |
| Judgment Date | 21 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0621-5 |
| Docket Number | Case No: 1999/0553 QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2000 |
Before Lord Justice Morritt, Lord Justice Mance and Mr Justice Harrison
Court of Appeal
Carriage by air - Warsaw Convention - cargo owners can claim although not named
The principals of a consignor and consignee of cargo were included in the meaning of those terms in the Warsaw Convention which were not limited in scope to the named consignor and consignee. The convention permitted a claim to be made by a cargo owner even who did not enjoy strict contractual privity.
The Court of Appeal so observed when dismissing the appeal of Western Digital Corporation, Western Digital (Singapore) Ltd and Western Digital Netherlands, because the complaint was made out of time, against the dismissal by of Mr Justice Steel of their claim for damages for loss to their cargo which had been carried by British Airways plc and allowing the cross-appeal of British Airways.
Article 14 the Warsaw Convention, set out in Schedule I to the Carriage by Air Act 1961, provides:
"The consignor and consignee can respectively enforce all the rights given them by articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another…"
The second claimant agreed to supply computer equipment to the third claimant. Each was a subsidiary of the first claimant. The second claimant employed a freight forwarder who used the defendant to deliver to a cargo forwarding company in England but the cargo forwarding company found that part of the consignment was missing.
Mr Justice Steel found that the claimants had not been named as consignor and consignee and that their claim under the Warsaw Convention consequently failed.
Mr Michael Crane, QC and Mr Akhil Shah for the appellants; Mr Philip Shepherd for British Airways.
LORD JUSTICE MANCE said that the interests of international uniformity no longer pointed towards a restriction of the right of suit to any named consignor or consignee.
The new magnetic pole of international jurisprudence drew quite strongly towards the conclusion that there was no such general restriction in the convention and that, at least under systems which recognised the rights of unnamed or even undisclosed principals, there was nothing in the convention to prevent such principals of the named consignor or consignee intervening and suing or being sued in reliance on the relevant contract for carriage by air.
If the owner of a cargo had a claim against an actual carrier responsible for its loss or damage, the provisions of Chapter III of the convention were fully capable of regulating that claim.
Tasman Pulp and Paper Co Ltd v Brambles J. B. O'Loughlen ((1981) 2 NZLR 225) and Gatewhite Ltd v Iberia Airlines Aereas de Espana Soc ((1989) 1 Lloyd's Rep 160) favoured recognition of claims on such a basis, although they predated Sidhu v British Airways plc ((1997) AC 430) which casts doubt upon them.
Despite Sidhu, his Lordship concluded that the convention did not exclude claims against an actual carrier based on title to the relevant baggage or cargo.
Lord Justice Morritt and Mr Justice Harrison agreed.
Before Lord Philip
Court of Session
Outer House
Scots law - damages - personal injury - rate of return for use in calculating damages - 3 per cent figure still appropriate
The rate of return of 3 per cent fixed by the House of Lords in Wells v WellsELR ((1999) 1 AC 345) for use in calculating damages for personal injuries, should continue to be followed in the absence of any factor special to the particular case. There had not been a change in economic circumstances which would justify adopting a different rate.
Lord Philip, sitting in the Outer House of the Court of Session, so held, granting decree for payment of damages by Lanarkshire Health Board to Mrs June Robertson, or Macey-Lillie.
Mrs Anne Smith, QC and Miss Helen Dougall for the pursuer; Mr Roderick Macdonald, QC and Mr Rory Anderson for the defenders.
LORD PHILIP said that in relation to future loss of earnings, the pursuer had invited him, when using the Ogden tables to arrive at the appropriate multiplier, to depart from the rate of return fixed in Wells as the appropriate rate to be used until the Lord Chancellor and the Secretary of State for Scotland had prescribed a rate in terms of section 1 of the Damages Act 1996.
The pursuer had argued that the figure of 2 per cent should be used on the ground that the rate of return on index-linked Government stocks had fallen sufficiently far in the last year to justify that figure.
Reliance had been placed on the evidence of a consulting actuary, Mr Findlay Marshall, and on a brief article by Sir Michael Ogden, QC, which had appeared in the publication Quantum on April 21, 1999.
The speeches in Wells indicated that it was their Lordships1 intention that 3 per cent should be used as a firm guideline to provide an element of certainty which would assist settlement in future cases and avoid the need for actuarial evidence. His Lordship referred to the speeches of Lord Steyn (at p 388D) and of Lord Hope of Craighead (at p 393B).
There had not been a sufficiently marked change in economic circumstances to justify departure from the 3 per cent figure. The kind of fall in the rate of return that was relied upon by Mr Marshall was within the order of fluctuation that had been envisaged by their Lordships in Wells, and would not justify a departure from the figure arrived at by them.
Rates might go up as well as down. Nor was there any feature peculiar to the pursuer's case which would require a rate different from that appropriate to the general run of cases to be used.
[2000] EWCA Civ J0621-5
Lord Justice Kennedy
Lord Justice Potter and
Mr Justice Steel
Case No: 1999/0553 QBENF
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 JOWITT)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Bill Braithwaite QC and James Rowley Esq (instructed by Leigh Day & Co, Manchester for the claimant)
Robert Jay QC (instructed by the Treasury Solicitor for the respondent)
INTRODUCTION
This is an appeal from the judgment of Mr Justice Jowitt on 6 th May 1999 in which he dismissed the claim of the claimant, formerly a Guardsman in the Grenadier Guards, against the defendants in respect of an accident when the claimant fell from the defendants' service lorry on to the carriageway of an approach road leading on to the M275, as the lorry travelled en route from Portsmouth to the Longmoor Military Camp. The claimant suffered severe injuries which ended his military career.
THE FACTS
The claimant had been one of a group of some twenty soldiers who had travelled in the lorry from Longmoor Camp to Portsmouth for a night out. Although the men were off duty, the trip had been organised by their Company Commander with a specific view to their relaxation during a period of arduous training for duties in Northern Ireland. It was not in dispute that the night out would or might involve the party in a good deal of drinking. The lorry was supplied, together with a driver, Guardsman Wyatt, who in that role was the only one of the expedition who was on duty. The vehicle was in use for "recreational purposes" under the Joint Service Road Transport Regulations. As its driver, Wyatt was subject to a regulation which provided:
"Only the authorised driver of the vehicle is allowed to drive. He is on duty for the duration of the recreational journey and retains his responsibility for ensuring that all normal regulations for the operation of Service transport are observed …. . He is not to take part in any sport or recreational activity which may result in injury or excess fatigue."
The senior person who went on the trip was Lance-Sergeant Mayoh, who, under the Regulations, was the "Senior Passenger" and as such was
"Designated vehicle supervising officer and seated in the vehicle with the driver. He is in charge of all passengers and is to ensure that the vehicle is not overloaded … [and] … he is to ensure that the vehicle is driven in a safe and proper manner."
Apart from Lance-Sergeant Mayoh, the only other non-commissioned officers on the trip were Lance-Corporals Fear and Jones. However, because it was an off-duty party they were permitted, and indeed encouraged, to fraternise with the men on the trip. Mayoh was in a similar position. None had been appointed as formally in charge before the expedition departed, although Sergeant Mayoh assumed and accepted the role of Senior Passenger on the trip. Further, all of the NCOs and men were subject to the Queen's Regulations (Army) 1975 'PART 6 – DISCIPLINE' which, by general provision under Regulation 5.2A1 provides:
"… All Officers, Warrant Officers and NCOs are to maintain discipline over officers and soldiers of lower rank than themselves."
The vehicle provided was a DAF four-ton truck with the familiar outline of an army lorry. It was a rigid vehicle with a cab separate from the body, i.e. the 'back' of the lorry in which the men were transported. As to the back of the lorry, the roof was solid for half its length, but the rear half was of canvas stretched over a frame. There were also canvas sides which could be rolled up so as to render the sides open if necessary, but which were on this occasion secured down. At the rear of the lorry, there was a substantial hinged tailgate approximately...
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