McKay v Scottish Airways Ltd
| Jurisdiction | Scotland |
| Judgment Date | 17 February 1948 |
| Date | 17 February 1948 |
| Docket Number | No. 26. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackintosh.
CarrierLimitation of carrier's liabilityCarriage by airPassenger in aeroplane killed in aeroplane crashConditions on ticket excluding carrier's liabilityWhether conditions limited to liability for accidents during journeyWhether applicable when journey frustrated by wreck.
ReparationNegligenceTitle to sueAction for damages by mother for son's death when passenger in aeroplaneSon's right to damages excluded by conditions upon his ticket.
A passenger in an aeroplane was killed when the aeroplane crashed into a hillside when waiting for a signal to land at the end of its journey. His ticket contained this condition:"passengersare accepted for carriage, only upon condition that the companyshall be under no liability in respect or arising out of the carriage, and that passengers renounce for themselves, their representatives and dependants, all claims for compensation for injury (fatal or otherwise), loss, damage or delay, however caused, sustained on board the aircraft or in the course of any of the operations of flight"
Held (1) that the condition operated as a renunciation by the deceased of any claim he might have for damages; and (2) that the relatives of a person accidentally killed cannot recover solatium or damages for loss of support unless the deceased, had he survived, could have recovered damages for personal injury, and accordingly that, where, as here, a deceased has ab ante discharged or renounced his claim, his relatives cannot recover.
Lord, Constable's opinion in M'Namara v. Laird Line and Clan Airways. Line Steamers, Limited, 26th June 1924, (reportedinfra), approved.
Mrs Isabella M'Kay brought an action of damages against Scottish Airways, Limited, for solatium and loss of support in respect of the death of her son. The action was defended.
The pleadings set forth that the deceased was at the time of his death a fare-paying passenger in an aeroplane belonging to the defenders and piloted by one of their servants. The aeroplane was engaged in making a flight from Islay to, Renfrew. It had arrived in the vicinity of Renfrew Aerodrome and had already begun to comply with the landing procedure in operation there when it received a signal to wait. It was while the aeroplane was so "waiting" that, in cruising around, it crashed into a hillside to the north of the aerodrome. The engines of the aeroplane were under power when it struck the hillside, which was shrouded in mist at the time, and all the occupants were thrown from it by the force of the impact and were killed.
The conditions printed on the ticket issued to the deceased for the journey were admitted to be part of the deceased's contract with the defenders. The conditions provided, inter alia, that "the company, its servantsshall be under no liability in respect or arising out of the carriage, and that passengers renounce for themselves, their representatives and dependants, all claims for compensation for injury (fatal or otherwise), loss, damage or delay, however caused, sustained on board the aircraft or in course of any of the operations of flight, embarking or disembarking, caused directly or indirectly to passengersand whether caused or occasioned by the act, neglect or default of the carriers, their servants or agents, or otherwise howsoever."
The pursuer pleaded:"(1) The pursuer having sustained loss, injury and damage through the fault of the defenders and their servants, the pursuer is entitled to reparation from the defenders as concluded for."
The defenders pleaded:"(1) The pursuer's averments being irrelevant and insufficient to support the conclusion of the summonsthe action should be dismissed." "(4)Separatim, the deceased, in terms of the said conditions of his contract of carriage with the defenders, having renounced all claims for compensation for injury (fatal or otherwise) during the said flight, whether caused or occasioned by the said neglect or default of the defenders, their servants or agents, decree of absolvitor should be pronounced."
On 19th December 1947 the Lord Ordinary (Mackintosh), after a Procedure Roll debate, dismissed the action as irrelevant.
At advising on 17th.February 1948,
LORD PRESIDENT (Cooper).We have the advantage in this case of an opinion by the Lord Ordinary which deals with the question so adequately that it is superfluous to do more than add a few comments on the argument as presented to us.
An attempt was made to argue that the conditions on the ticket issued to the deceased passenger, when construed contra proferentes,would not have sufficed to exclude an action of damages at his instance if he had survived the crash. It is enough to say that I cannot so read them. Indeed, the remarkable feature of these conditions is their amazing width, and the effort which has evidently been made to create a leonine bargain under which the aeroplane passenger takes all the risks and the company accept no obligations, not even to parry the passenger or his baggage nor even to admit him to the aeroplane. It was not argued that the conditions were contrary to public policy, nor that they were so extreme as to deprive the contract, of all meaning and effect as a contract of carriage and, I reserve my opinion upon these questions and the effect, if any, of recent legislation bearing upon civil aviation in this country. On the single issue, of the meaning, of the conditions the pursuer fails.
Upon the assumption that the conditions, would have excluded a claim by the deceased, it remains to consider whether by necessary consequence they also exclude a claim by his relatives. The efforts of counsel were mainly directed to discovering a basis in principle for the established incidents of the right of certain relatives to recover solatium or patrimonial loss for the death of a person killed by the fault of a third party. This quest is a forlorn hope. Though dimly foreshadowed
by Stair,9 the right only clearly emerged in the beginning of the nineteenth century, and was then developed in a series of decisions which "trench somewhat closely upon the province of the Legislature" (Lord Watson in Darling v. Gray & Sons10), and which contain "a good many loose expressions, from which large inferences might be drawn" (Lord Ivory in Greenhorn v. AddieUNK11). It was possible for Lord President Inglis to describe the right in 1870, as "a peculiarity in our system" (Eisten v. North British Railway Co.UNK12) for Lord Watson, in 1891, to say that it had no other ratio to support it except inveterate custom (Clarke v. Carfin Coal Co.13...To continue reading
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