Tuesday, February 14th, 2023

Colin Mather v Easyjet Airline Company Ltd & DRK Hamburg Mediservice gGmbH [2023] CSIH 8

On 15 May 2017, after an easyJet flight from Edinburgh to Hamburg, the pursuer was being assisted from a plane by an employee of DRK, who had been appointed by Hamburg Airport to assist passengers with reduced mobility. The wheelchair in which he was being transported hit a lip between the airbridge and the airport and, as a result, Mr Mather suffered further serious injury. He sued both easyJet and DRK. As the case concerned international air carriage, the Montreal Convention governed, but there was also a need to consider the laws of Germany and England and Wales.  

The main issue raised by the appeal was whether DRK was an agent of easyJet or, alternatively, whether it was an independent third party? If DRK was a third party, easyJet would be entitled to rely on a monetary limitation provision under the Montreal Convention. If, however, DRK was easyJet’s agent, the limitation provision would not apply. Key to easyJet’s argument was that the responsibility for assisting passengers with reduced mobility rested with the relevant airport authority, rather than with the air carrier. It was Hamburg Airport that had appointed DRK, with easyJet having no input into the selection.

The First Division rejected easyJet’s argument and held that DRK was, at the material time and for the purposes of the Montreal Convention, acting as its agent. That was because they were acting “in furtherance of the contract of carriage.” That, the court held, resulted in a “neat, clear, and easily understood principle.” This finding meant that easyJet was not entitled to limit its liability and would be liable for the whole of the pursuer’s claim.

An ancillary issue, which arose only if the limitation provision applied, was whether DRK were liable to the pursuer under German Law? The Court held that, had they not been acting as easyJet’s agent, DRK would have been liable to Mr Mather on the basis that their employee had wholly caused the accident.

Further ancillary issues arose regarding contribution as between easyJet and DRK, with the Court rejecting an argument that easyJet could seek a contribution from DRK under the law of England and Wales, a claim under German law having time-barred.

Practitioners will note the centrality of the Montreal Convention to accidents of this nature. Equally however, the case shows that care needs to be taken to consider, in a given case, whether the Convention provides the complete answer or whether recourse also might be required under local law. That will depend on various factors, including the value of the case and the stage of carriage at which the accident occurred. It may also depend on the relationship between the primary wrongdoer and the air carrier, specifically whether the wrongdoer was furthering the contract of carriage.

Gavin Thornley was Junior Counsel for the Pursuer and First Respondent, Richard Pugh KC was Junior Counsel for the First Defenders and Reclaimers and Lesley Shand KC was representing the Second Defenders and Second Respondents. A copy of the Opinion can be found here

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