The Dekagram 27th February 2023

• Published date: 02 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Deka Chambers
• Author: Ms Sarah Prager and Conor Kennedy

Another week, another update on the Retained EU Law (Revocation and Reform) Bill, a piece of legislation which has the potential to disrupt the underpinnings of almost all of the law we in the travel and cross border world rely on as informing our worldview. We were reassured to see this week that a brace of peers, Baroness Randerson and Lord Fox, have tabled amendments to the Bill designed to ensure that the Package Travel and Linked Travel Arrangements Regulations 2018 and the Denied Boarding Regulations (Regulation (EU) No.261/2004) are saved from the REUL bonfire. These amendments are intended to highlight that in the absence of any definitive list of regulations the government intends to retain as part of EU-derived law, Parliament is voting on the destruction of swathes of laws, some of which provide important legal clarity to consumers and industry players alike. We feel better now that someone has noticed that the PTRs could be rescinded by accident by the end of 2023.

In the meantime, this week's Dekagram features another in our series of Scottish cases, this one on the Montreal Convention; and a further addition to the glut of cases considering the operation of Part 36.

Agency and the Montreal Convention

In May 2022 we wrote about our fascination with the Scottish courts and in particular the Outer House of the Court of Session's judgment in Mather v (1) Easyjet Airline Company Limited, (2) DRK Hamburg Mediservice [2022] CSOH 40. The matter subsequently ended up before the InnerHouse on an appeal ("reclaiming motion" in Scottish legal terminology) from Easyjet. Last week the Inner House upheld (almost entirely) the decision of the Outer House.

The Facts

The pursuer, who is paraplegic, had booked an Easyjet flight from Edinburgh to Hamburg, notifying the airline when he did so of his need for special assistance in embarking and disembarking the aircraft. The airline's standard terms provided that:

"The provision of assistance through the airport, onto the aircraft, off the aircraft and through the arrivals process at the destination is the responsibility of the relevant Airport Authority."

The flight duly arrived at Hamburg and Mr Mather was deplaned using an aisle wheelchair and then an airport wheelchair. One of the assistance personnel pushed the wheelchair 'quite briskly' between 10 and 20 metres up the ramp of the air bridge towards the terminal building, whereupon the wheelchair stopped very abruptly and Mr Mather fell from it, landing on his legs on the marble floor just inside the threshold of the airport building and sustaining compound fractures to both legs below knee level as a result. It was subsequently established that the accident was caused by the front wheels of the wheelchair hitting the raised edge at the point where the air bridge joined the airport building, formed by a narrow metal ramp at the join between the higher and lower floor levels.

Mr Mather sued Easyjet on the basis that the accident had occurred during the course of disembarkation within the meaning of the Montreal Convention. The airline contended that its liability was limited under the Convention because it had not been at fault for the accident; the assistance personnel were employed by DRK to carry out duties owed by the airport. In the alternative it sought a contribution or indemnity from DRK under the Civil Liability (Contribution) Act 1978. DRK averred that its personnel had been acting as agents for the airline in undertaking its duty to keep passengers safe whilst they disembarked, but that in any event that the accident had been caused by negligence on the part of the airport, for which it was not liable. It denied that the Act was applicable to the proceedings, since its contribution liability was governed by...