Laroche v Spirit of Adventure (UK) Ltd

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Lord Justice Jacob,Lord Justice Mummery
Judgment Date21 January 2009
Neutral Citation[2009] EWCA Civ 12
CourtCourt of Appeal (Civil Division)
Date21 January 2009
Docket NumberCase No: B3/2008/1255

[2009] EWCA Civ 12

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 Eady

Before: Lord Justice Mummery

Lord Justice Dyson and

Lord Justice Jacob

Case No: B3/2008/1255

Between
Laroche
Appellant
and
Spirit of Adventure (Uk) Limited
Respondent

Charles Davey (instructed by Messrs Graham Dawson & Co) for the Appellant

Robert Lawson (instructed by Messrs Bruce, Lance & Co) for the Respondent

Hearing dates: Wednesday 17 December 2008

Lord Justice Dyson

Lord Justice Dyson:

Introduction

1

Hot air balloons have been used for purposes of transport by air since the 18 th century. On 19 September 1783, Pilatre de Rozier, a scientist, made the first recorded launch of a hot air balloon called “Aerostat Reveillon”. It contained a sheep, a duck and a rooster. The balloon stayed in the air for 15 minutes before it crashed to the ground.

2

More than 200 years later, on 20 August 2003 the claimant was being carried in a hot air balloon on a flight organised by the defendant when it crashed to the ground causing him to suffer injuries. He issued these proceedings on 8 August 2006 seeking damages for breach of statutory duty, breach of contract and negligence. The defendant asserts that the claim is subject to Schedule 1 (“Schedule 1”) to the Carriage by Air Acts (Application of Provisions) Order 1967, SI 1967/480 (“the 1967 Order”) (as amended) and that, in consequence, any right to damages arising from the accident was extinguished two years after the date of the accident.

3

On 22 May 2007, Judge Hammerton sitting at Dartford County Court ordered that there should be a hearing to determine “the issues as to whether Schedule 1 applied and, if so, whether its provisions as to time are determinative of the case or whether there are other matters that allow the case to proceed in terms of limitation and/or prescription”.

4

By a judgment given on 17 April 2008, Eady J held so far as is material that (i) the claim is governed by Schedule 1, (ii) Schedule 1 provides the exclusive cause of action and sole remedy available to the claimant in respect of the injuries he sustained in the accident and (iii) the claimant did not bring these proceedings within the two year period prescribed by article 29 of Schedule 1. He therefore dismissed the claim.

5

It is the claimant's case that the judge was wrong to decide that Schedule 1 applied. In particular, it is submitted that the judge was wrong to hold that (i) the hot air balloon was an “aircraft” within the meaning of article 1 of Schedule 1, (ii) there was a “carriage” of the claimant within the meaning of the same article and (iii) the claimant was a “passenger” within the meaning of article 17. He appeals against these conclusions with the permission of Smith LJ. He also seeks permission to appeal against the judge's refusal to hold that the effect of the voluntary liquidation of the defendant on 29 June 2004 was to suspend the claim and the running of the two year period.

The facts

6

The facts can be shortly stated. The defendant ran a business arranging “adventure experiences”. These included hot air balloon flights. In December 2001, the claimant was given a voucher for a hot air balloon flight organised by the defendant. He used the voucher for a flight on 20 August 2003. At about 17.30 hours on that day, the claimant and other customers assembled at Great Fowle Farm, Laddingford, Kent which was to be the starting point for the flight. For obvious reasons, the defendant's representatives were unable to say where the balloon would land at the end of the flight. The arrangement was that a driver would follow the balloon in a Land Rover fitted with a trailer with a view to collecting the balloon from wherever it landed and returning the customers to the starting point.

7

The defendant's representatives arrived at about 18.15 hours. There were four compartments in the wicker basket which was attached to the balloon. The central part of the basket was occupied by the pilot together with four large gas bottles. It was common ground that the speed and direction of a hot air balloon is entirely dictated by the wind. The pilot advised the customers that the flight would last no more than an hour. The claimant and the other three customers entered the basket, each occupying a compartment, and the balloon took off.

8

After about 35 minutes, the pilot decided to make a sudden landing because the wind had picked up. The basket crashed into the ground with considerable force. The balloon then took off again and travelled a short distance before crashing again. The claimant was injured.

9

Following the accident, the claimant entered into correspondence through his solicitors with the defendant's insurers' loss adjusters. As I have said, on 29 June 2004, the defendant went into voluntary liquidation. On 27 October 2004, the loss adjusters told the claimant's solicitors that they were not disputing liability. In October 2005, however, the insurers changed their position and denied liability. The company was dissolved on 8 March 2006. Thereafter, the claimant took steps to restore the defendant to the register for the purposes of enabling these proceedings to be issued and served.

The statutory framework

10

The Carriage by Air Act 1961 (as amended) provides that the Convention concerning international carriage by air known as “the Warsaw Convention as amended at The Hague, 1955” as further amended by Protocol 1955 of Montreal 1975 (“the Convention”) has the force of law in England and Wales in respect of all “international carriage of persons, baggage and cargo performed by aircraft for reward” within the meaning of article 1 of the Convention.

11

Article 3 of the 1967 Order provides that the 1967 Order applies to all carriage by air not being carriage to which the Convention applies. Article 4 provides that Schedule 1 shall have effect in respect of carriage which is not “international carriage” as defined in Schedule 2 to the 1967 Order. Schedule 1 therefore has effect in respect of carriage within the United Kingdom: see, for example, Fellowes v Clyde Helicopters Ltd [1997] AC 534, 538D-540A.

12

Schedule 1 itself replicates the Convention subject to certain exceptions, adaptations and modifications (none of which is relevant for present purposes). So far as material, Schedule 1 provides:

“Article 1

The 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.

Article 17

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.

Article 24

(1) In the [carriage of passengers and baggage], any action for damages, however founded, can only be brought subject to the conditions and limits of liability set out in this Schedule without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

Article 29

(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which it stopped.

(2) The method of calculation the period of limitation shall be determined by the law of the court seised of the case.”

Relevant principles of construction

13

It is common ground that the judge stated the principles of construction correctly and that, although Schedule 1 governs carriage by air which is not international carriage within the meaning of the Convention, it should nevertheless be construed in a similar way to the corresponding provisions of the Convention: see Fellowes at p 552A-E.

14

The judge summarised the principles in these terms:

“24. It follows that it is necessary to apply the following principles when construing [Schedule 1]:

i) The starting point is to consider the natural meaning of the language of the article itself.

ii) It is necessary to consider the Convention as a whole and give it a purposive interpretation.

iii) The language of an international convention should be interpreted “unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation”.

iv) It is legitimate to have regard to the travaux préparatoires or legislative history in order to resolve ambiguities or obscurities in the enacting words, but only where the material is publicly available and clearly points to a definite legislative intention.

v) It is legitimate to have regard to any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.

vi) Assistance can be sought from the relevant jurisprudence of this country and of other jurisdictions, and respect should be paid to relevant decisions of courts of other signatories to the Convention, particularly those of high standing.

25. In support of these canons of construction my attention was drawn to Fothergill v. Monarch Airlines Limited [1981] AC 251; Sidhu v. British Airways Plc [1997] AC 430; Morris v. KLM Royal Dutch Airlines [2002] 2 AC 628; and Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495.”

The issues

15

The issues in respect of which the defendant...

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