In Palaiokrassus & Tsakou v Black and Green Trading Limited (Unreported) 7 April 2020, QBD, Master Thornett dismissed an application to set aside default judgment brought under CPR r. 13.9 and r. 3.9. The case concerned claims for personal injuries suffered in an air crash which occurred during a package holiday in Ethiopia. In dismissing the application, Master Thornett set out reasons that will be of interest to aviation and travel practitioners.
This blog is by Max Archer, who appeared for the Claimants on instruction by Stewarts Law.
Background
The Claimants brought a claim for damages for personal injuries arising out of an air accident that took place in Ethiopia on 20th October 2016.
The crash took place on a flight provided to the Claimants as part of a package holiday sold by the Defendant, a luxury tour operator. The flight was performed by the Defendant’s supplier, a local air carrier. The flight was a private charter flight in a Rockwell/Gulfstream Twin Commander AC690 Jetprop 840 departing from Addis Ababa International Airport and landing at South Omo Murule Airport.
Following touchdown at South Omo Murule Airport, the aircraft advanced progressively to the left, leaving the runway and rolling into collision with a tree. On collision the aircraft was immediately engulfed in a fuel-fed fire. Although the Claimants escaped from the aircraft, they sustained severe personal injuries.
The Ethiopian Accident Investigation Authority (EAIA) investigated the accident pursuant to their investigative duties under Annex 13 of the Chicago Convention 1944 (to which Ethiopia is a signatory). A report was published that concluded that the crash was caused, inter alia, by the pilot’s failure to apply the correct landing procedure to avoid landing irregularities and his failure to take corrective measures once the aircraft began to advance to the left. The report cited both operational and systemic issues with the flight and made appropriate safety recommendations.
The Claimants brought a claim in contract under the Package Travel Regulations 1992. Under regulation 15, the Defendant was liable for the acts and omissions of its suppliers: in this case, the local carrier.
By the terms of their contract, the Defendant had stated that the services under the contract would be “made, performed or provided with reasonable skill and care”. It was also a term that the “the laws and regulations of the country in which your claim or complaint occurred will be used at the basis for deciding whether the services in question had been properly provided”.
The Claimants relied on the findings of the EAIA’s report as to the cause of the accident.
The Claimant’s case was: (i) that the operational errors were such that the flight was not performed with reasonable care and skill and this was not a question that fell to be determined by the local standard since a consumer would not expect the manner in which an aircraft was to be operated to vary; and (ii) breaches of various articles of Ethiopian aviation law were alleged: these articles were pleaded as being ‘the local standard’ against which the question of whether the flight had been performed with reasonable care and skill should be assessed. It was not the case that Ethiopian law applied; the Defendant had by contract stated that compliance with local law was the touchstone for whether the contract had been performed with reasonable care and skill.
The Defendant failed to file an acknowledgement of service. Default judgment was entered which they sought to set aside under CPR 13.9 and CPR 3.9.
The Decision
Master Thornett dismissed the application to set aside. He held that the Defendant had failed to persuade him that relief from sanctions should be given under CPR r. 3.9, the failure was a serious breach for which no reasonable explanation had been given. The Master further held that the Defendant had not demonstrated that their defence carried a reasonable prospect of success as per CPR r. 13.9.
The Defendant argued that judgment should be set aside because expert evidence was required to determine the claim on two counts. First, it was said that expert evidence as to the local standard was required. Second, it was said that an expert in aviation matters would need to review the circumstances of the accident and opine as to the application of aviation principles and issues having regard to the local applicable safety standards.
The Master rejected these arguments as follows:
‘I entirely accept the Claimant’s submissions that it surely cannot be a defence having any realistic prospect of success to argue that there might be a different local standard in Ethiopia how to fly and land an aircraft ; as distinct from, say, standards of maintenance or cleansing. The Defendant fails to satisfy me that anything could be argued to the effect that the manner in which an aircraft is operated can vary from locale to locale : with or without the assistance of expert evidence in this regard.
The Claimant makes a valid and dispositive point that aviation safety is governed by a set of international rules and, as pleaded in the Particulars of Claim, Ethiopia is a signatory to those rules. A consumer can reasonably expect conformity with the rules. If this were an accident involving a car, one would not expect the defendant to argue that a report as to how cars are to be operated in Ethiopia to be necessary. An aircraft flown and landed safely ought not involve running off the runway and hitting a tree. The Defendant fails to persuade me that any aspect of local rules, standards or practice might suggest otherwise.’
Comment
The reasons given for dismissing the application on the merits provide a welcome discussion of the liability of tour operators for air crashes. It surely must be right that expert evidence is not required to determine the ‘local standard’ in circumstances where (i) pilot error has been clearly determined as the cause and (ii) a particular jurisdiction is a signatory to supra-national conventions regulating air travel. Wilson v Best Travel and its antecedent authorities are often treated as if they are statute, setting evidential rules in travel cases that constitute tripwires for litigants attempting to demonstrate a breach of contract. In fact, the Wilson line of authorities is better thought of as an expression of basic rules of contract law: namely, what can the parties reasonably expect. The Claimant’s reasonable expectation as to standards of cleanliness and maintenance has rightly held to be a moveable feast from locale to locale. This is not so in relation to air travel; the consumer surely does not expect the standards of air travel to vary. There is something inherently unattractive in the argument that standards of piloting and the operation of an aircraft vary from locale to locale. In reality, aviation is tightly regulated in almost every jurisdiction. The idea that something more is required to prove the standard is clearly flawed.
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