Nugent and Another v Michael Goss Aviation Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,. |
| Judgment Date | 14 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0414-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: 1999/0501 |
| Date | 14 April 2000 |
[2000] EWCA Civ J0414-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Royal Courts of Justice, Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Pill and
Mr. Justice Dyson
Case No: 1999/0501
Sir Sydney Kentridge, QC, Mr.William Wood, QC, and Mr.Andrew Lydiard (instructed by Messrs. Gouldens, London, EC4 OJJ. for the Appellants)
Mr. Philip Shepherd (instructed by Messrs. Beaumont and Son, London E18 for the Respondents)
This is the claimants' appeal against an order of Burton J of 2 nd March 1999 upholding an order of Master Ungley striking out certain paragraphs of their pleaded case against the first and second defendants. The appeal concerns the Warsaw Convention, as amended in 1955/6, governing the carriage of persons and goods by air. Articles 17 and 18 of it impose a regime of strict liability on carriers for respectively injury or death to passengers and damage or loss to baggage or cargo. Articles 23 and 24 respectively secure and confine claimants' remedy in damages to that regime. The Convention also exacts, in Article 22, as a corollary of the strict liability, a limit on the damages recoverable unless, as provided in Article 25, a claimant can prove
"… 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 …".
As is plain from those words, where a claimant relies on recklessness he must also prove knowledge of probable damage.
The main issue in the appeal is as to the meaning in Article 25, and in a corresponding provision for a carrier's servants or agents in Article 25A, of the words "with knowledge that damage would probably result". The original Convention resulted from two international conferences, one in Paris in 1925 and one in Warsaw in 1929, and was given effect in this country by the Carriage by Air Act 1932. It is now set out in Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967, made under section 10 of the Carriage by Air Act 1961, and includes, with some immaterial exceptions, carriage by air wholly within the United Kingdom. The provision was amended to its present form by the Hague Protocol as a result of the ICAO conference at the Hague in 1955/6.
The facts and proceedings
The claim is for damages under the Fatal Accidents Act 1976 arising out of the death on 22 nd October 1996 of Mr. Matthew Harding in the crash of a helicopter in which he was travelling from Bolton to London as a passenger. The helicopter was owned by the third defendant and piloted by Michael Goss, who was also killed in the crash and whose executor is the second defendant. The Convention governed the flight. The first and second defendants conceded liability to the claimants under Article 17 of it, which renders an air carrier liable, irrespective of fault, for the death of a passenger in an accident on board its aircraft or in the course of embarking on or disembarking from it, but relied on Article 22 which limits such liability to a sum equivalent to about £80,000. The claimants value the claim at about £59m. and seek to rely on Articles 25 and 25A of the Convention (to which I shall refer simply as "Article 25").
The Master struck out the paragraphs of the amended statement of claim in which the claimants pleaded the Article 25 case. On their appeal to Burton J. the matter was argued on the basis of a sought re-amendment of the claim. He held that it was unsustainable, refused leave to re-amend and gave judgment against the first and second defendants limited to £80,000. The claimants contend that the Judge, in so doing, wrongly construed the words "with knowledge that damage would probably result" and that, in any event, it was not a case for striking out and he should have allowed the sought re-amendment.
The claimants did not persist with an earlier allegation that the pilot, Michael Goss, had intended to cause damage, the first alternative in Article 25. Their sought re-amended claim (which I shall call their "pleaded case") against the first two defendants was under the second alternative, recklessness in a course of conduct coupled with knowledge of probable resultant damage. As to recklessness, they said that the pilot, had: 1) failed to keep his flying skills up to date; 2) failed to acquaint himself with navigational aids with which the helicopter was equipped; 3) failed to plan the flight properly; and 4) flown when he was tired. As to knowledge of probable damage, they said that the probability of damage was "within his knowledge" in that, even if it was not present in his mind at the material time, "if he had addressed his mind to the matter he would have appreciated, by reason of his knowledge and skill as an experienced pilot, that death or serious injury was probable". Alternatively, they said that he had actually known, in the sense of appreciated at the time of the conduct relied on, that it would probably result in damage, a claim that they now acknowledge would be difficult to prove.
Burton J. rejected the claimants' contention that actual knowledge could include background knowledge, holding that it means actual knowledge, in the sense of appreciation, at the time of the conduct in question that it would probably cause the type of damage which occurred – here of death or of serious injury. In so holding, he considered that he was bound by two decisions of this Court: Goldman v. Thai Airways [1983] 1 WLR 1186 and Gurtner v.
Beaton [1993] 2 Ll. 369 . He indicated that, in his view, such a construction does not necessarily require an allegation that a pilot has been suicidal, but could also include a case where he has taken a stupid and unnecessary risk
"knowing that it carrie[d] a probable risk of death, or perhaps where some act, the airborne equivalent of road rage, [has been] committed by an impatient or angry pilot."
As to the claimants' alternative contention of actual knowledge, in the sense of appreciation at the material time, of probable damage, he concluded that they had no prospect of proving it.
The authorities
Goldman concerned a claim by a passenger in respect of injury resulting from the pilot's failure, when the plane was entering an area of turbulence, to illuminate the seat belt instruction light, with the result that the claimant, whose seat belt was unfastened, was thrown from his seat and seriously injured when the plane encountered turbulence. The trial judge had found that the pilot had been reckless, applying the criminal test of recklessness laid down by the House of Lords in R v. Caldwell [1982] AC 341 and R. v. Lawrence [1982] AC 510, and that he had known of the probability of damage. He held, therefore, that the claimant had satisfied the Article 25 test and awarded him full damages. The Court of Appeal reversed that decision, holding that the test of recklessness was subjective and that it was doubtful whether, on that basis, the pilot had been reckless, and that, in any event, there was no evidence that he had known of the probability of damage resulting from his conduct. Eveleigh LJ, who gave the principal judgment and with whom O'Connor and Purchas LJJ agreed, characterised, at 1192F-G, the trial judge's finding as to the latter as one of knowledge "that damage of some kind would probably result if the risk (i.e. of encountering
… [turbulence]) which he was taking, materialised". In his view, that was not enough; the claimant had also to prove knowledge at the time of the relevant acts or omissions in the sense of actual, not attributed, knowledge that damage would probably result. This is how he put it, at 1194G-H and 1195H-1196A:
" If the pilot did not know that damage would probably result from his omission, I cannot see that we are entitled to attribute to him knowledge which another pilot might have possessed or which he himself should have possessed. I appreciate that, when introducing an English version to coincide with a French text, there is naturally
an inclination to follow the pattern of that text and where possible to avoid a free translation. Even so, I cannot believe that lawyers who intended to convey the meaning of the well-known phrase 'when he knew or ought to have known' would have adopted 'with knowledge'. …
An act may be reckless when it involves a risk, even though it cannot be said that the danger envisaged is a probable consequence. It is enough that it is a possible consequence, although of course there comes a point where the risk is so remote that it would not be considered reckless to take it. We look for an element of rashness which is perhaps more clearly indicated in the French text 'temerairement'. Article 25 however refers not to possibility, but to the probability of resulting damage. Thus something more than a possibility is required. The word 'probable' is a common enough word. I understand it to mean that something is likely to happen. I think that is what is meant in article 25. In other words, one anticipates damage from the act or omission." [my emphasis]
He found support for his interpretation in travaux preparatoires derived from the 1955/6 Hague Conference resulting in the present Article 25.
Purchas LJ said much the same in his concurring judgment. In the following passage, at 1202B-C, he...
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