Three lawyers from the Occupier’s and Public Liability department at Express Solicitors have recently had articles published in the Association of Personal Injury Lawyers’ (APIL’s) PI Focus magazine.
Assistant Solicitor, Kathryn Price, wrote an article guiding practitioners through the convention governing air travel claims. In his article Trainee Solicitor, Ryan Postlethwaite, discussed what the Patel v Fortis case means for portal claims. Trainee Solicitor, Helen Murdoch, explained how to bring a personal injury claim under the Equality Act 2010.
Each article can be read below.
Liability under the Montreal Convention 1999 – Kathryn Price – Published in June 2015 edition of PI Focus
When dealing with claims arising from travel by air, it is necessary to consider whether such claim falls within the scope of the Montreal Convention 1999 and if so, whether liability can be established. The Montreal Convention is an international Convention regarding private international air law, which supersedes the previous Warsaw Convention 1929.
The scope of the Montreal Convention is set out within Article 1(1) which states “This Convention applies to all international carriage of persons, baggage cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking”.
Article 1(2) then goes on to define international carriage as “for the purposes of this Convention, the expression “international carriage” means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.”
Departure and destination
When presented with a claim involving travel by air, first consideration will need to be given to the place of departure and destination and also any agreed breaks in carriage, to find out if the Convention has been ratified by the country of departure and destination, as the Convention may not apply based on these provisions, and so practitioners will not need to be concerned with the onerous task of establishing liability as detailed below. The Montreal Convention has been ratified by the UK and also most of the common holiday destinations, but the most notable exceptions are Thailand and Russia. If for example a Claimant is travelling between 2 contracting state parties and has an agreed stop-over in a non-contracting state party, then this will still fall within the definition of international carriage for the purposes of the Convention.
Although the Montreal Convention is only applicable to international carriage, EC Regulation 889/2002 governs domestic flights within the EU within single member states.
Convention categories:
There are 3 categories of liability under the Convention; Death or injury, damage or loss of baggage, and delay to passengers or baggage.
For Claimant PI practitioners the main focus will be on liability under Article 17 for death or injury of passengers.
Liability:
Under Article 17(1) “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
Liability is therefore strict under the Convention.
The main key elements to consider to establish liability under Article 17(1) are:
Death or bodily injury:
Death or physical injury is recoverable but from the wording of the Convention it appears it does not intend to include purely psychiatric injury.
In Morris v KLM Royal Dutch Airlines [2002] 2 ALL ER 656 the Claimant was sexually assaulted by another passenger sitting next to her and claimed she suffered clinical depression but no physical injuries. The claim was dismissed on the basis she had sustained a psychological injury, which fell outside Article 17.
Jack v Trans World Airlines Inc 1994 indicates that a Claimant may recover damages for psychological injury if they can prove the psychological injuries were caused by the physical injury.
In Weaver v Delta Airlines Inc 1999 the Claimant was successful in a claim for PTSD suffered as a result of an emergency landing, as the medical evidence stated there was a “bodily injury to the brain”.
Passengers:
There is a distinction under the Convention between persons and passengers. Although Article 1(1) refers to the Convention applying to persons, liability under Article 17(1) is in relation to passengers. A passenger will therefore not include flight crew.
Accident:
The term accident is not defined within the Convention. In Air France v Saks 1995 470 US 392 it was held an accident arises “only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries”. In this case the Claimant became deaf in one ear due to change in cabin air pressure on descent. This was not an accident.
In Barclay v British Airways [2010] QB 187 the Claimant slipped on a standard fitting which was a narrow plastic strip running under the seats and covering the seat fix tracking as she was in the process of finding her way to the seat. The Court held the injury was constituted by contact or interaction between the passenger and the aircraft in its normal state and no accident had taken place.
In Chaudhari v British Airways PLC 1997 the Claimant suffered paralysis to the left hand side of his body when he fell attempting to leave the standard seat, without additional access with which he had been provided. It was held this was not an accident as the event was wholly internal, and was his own personal particular or peculiar reaction to the normal operation of the aircraft.
‘On board’ the aircraft:
In relation to “on board the aircraft”, although aircraft is not defined within the Convention, in the majority of cases there will be no issues with satisfying this as aeroplanes, helicopters and airships are aircraft for the purposes of the Convention, and the case law has dealt with less common/less conventional modes of air travel. A balloon was held to be an aircraft in Laroche v Spirit of Adventure [2009] EWCA Civ 12, but paragliders were not in Disley v Levine [2001] EWCA Civ 1087. Generally there will be little difficulty with “on board”.
The case law surrounding this element of Article 17(1) surrounds the issue of “embarkation” and “disembarkation” and they are often fact sensitive.
In Phillips v Air New Zealand [2002] EWHC 800 (Comm) it was held that in order to establish embarkation it must be shown that the accident to the passenger is related to a specific flight, it happened while the passenger was actually entering or about to enter the aircraft, or if it happened in the terminal building or on the airport premises that the location of the accident is a place where the injured party was obliged to be in the process of embarkation. This would suggest that in instances where a passenger is shopping or dining in a restaurant in the departure area, it may not fall within the process of embarkation, and the Courts will consider what the Claimant was actually doing at the time of the accident and if this was related to the process of embarkation, such as walking to the departure gate once a flight has been called, or shopping within the departure lounge 2 hours before a flight.
In Gezzi v British Airways PLC 991 F.2d 603, 605 (9th Cir 1993) the Claimant was required to walk down a staircase onto the tarmac to board the plane, and in doing so slipped on water present on the steps. It was held that the presence of the water was an “accident” as the water was unusual or unexpected and external to the Claimant, and the use of the stairs related directly to the process of embarkation.
The issue of disembarkation was considered in the Ugaz v American Airlines Inc., 576 F. Supp. 2d 1354 (S.D Fla 2008). The Claimant was walking up an inoperable escalator shortly after her flight arrived at Miami airport when she fell and injured her ankle. It was held the Claimant was in the process of disembarkation as she was climbing the escalator “under the direction of the airline who maintained the gate area and directed passengers to customs and immigration” and the Claimant was not “a free agent roaming at will throughout the terminal”. However, the claim under the Montreal Convention failed on the basis it was not held to be an accident.
Exclusivity:
Article 29 sets out an exclusive cause of action under the Convention and provides “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable”.
This means that where the Convention applies there is no other remedy. If for example a claim under Article 17(1) fails on the basis it is not an accident, a Claimant would not have a cause of action in negligence against the carrier.
Limitation:
Under Article 35(1) “The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped”.
This 2 year limitation period is strict, and still applies in claims for minors. There is also no s.33 Limitation Act 1980 relief.
Defences:
Article 21 sets out the provisions for the limitation and exclusion of liability for claims under Article 17(1) and states:
- For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
- The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
This means that the carrier cannot exclude or limit liability below 100,000 Special Drawing Rights, but to the extent they exceed 100,000 Special Drawing Rights, the carrier may not be liable if it can satisfy Article 21(2)(a) or (b).
Article 20 sets out the circumstances whereby the carrier may be exonerated and provides “if the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 2.”
This means that the carrier can be exonerated totally or partially from liability if they can prove the accident was the Claimant’s fault. The burden of proof is on the Defendant.
Self-contained Law
When dealing with claims under the Montreal Convention and when considering liability for accidents arising from travel by air, practitioners have to detach themselves from the established principles of common law negligence and statutory duty and focus on the self-contained provisions of the Montreal Convention and associated case law, to avoid the potential pitfalls that can arise.
Acknowledging claims on the MOJ Portal: a look at Patel v Fortis Insurance Ltd – Ryan Postlethwaite – Published in the July 2015 edition of PI Focus
Since the dawn of the Employers’ Liability/Public Liability MOJ Portal an oft cited case by Defendant insurers has been that of Patel v Fortis Insurance Ltd. This first instance decision from Leicester County Court has been used as apparent authority that Claimant’s pursuing matters under the EL/PL MOJ Portal cannot remove the claim from the Portal if the Defendant of their insurer fails to acknowledge the claim on time. This article looks at the provisions of the Pre-Action Protocol for Low Value Person Injury (Employers’ Liability/Public Liability) Claims (“the Protocol”) regarding acknowledgement, the facts and decision of Patel v Fortis Insurance Ltd and concludes with a commentary from this author.
The protocol
Under Paragraph 6.9 of the Protocol, Defendant’s must acknowledge receipt of a Claims Notification Form the day after receipt. Pursuant to Paragraph 5.4 of the Protocol, the day the Defendant receives the Claims Notification Form is the first business day after the information was sent.
Under Paragraph 6.10, the Defendant must send the Claims Notification Form to their insurer at the same time that they acknowledge receipt themselves. The insurer must then acknowledge the claim the day after they receive it.
What is particularly interesting is that there is no sanction detailed in the Protocol if the Defendant or their insurer fails to acknowledge receipt of the Claims Notification Form in the timeframe stipulated by the protocol. In other areas of the Protocol, sanctions are provided for when a breach is discussed. For example, Paragraph 6.16 states that if stage 1 fixed costs are not paid on time, the Claimant is entitled to remove the case from the Protocol. However, no such wording exists with respect to Paragraph’s 6.9 and 6.10.
This unfortunate position has led to a constant battle between Claimants, Defendants and insurers in relation to the consequences of either the Defendant or their insurer failing to acknowledge receipt of the Claims Notification Form on time.
Although not explicitly mentioned in the Protocol, Claimants have been removing cases from the Protocol if Defendants or insurers have failed to acknowledge receipt of the Claims Notification Form. This has caused tension between the parties as Defendants and insurers argue that there is no right to remove the case from the Protocol. But if there’s no sanction, why is it in there?
Patel v Fortis Insurance Ltd sort to resolve this issue in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and the next part of the article looks at this case in more detail.
Patel v Fortis Insurance Ltd
Mr Patel was involved in a road traffic accident that occurred on 24th September 2010. He instructed Your Lawyers Solicitors to act on his behalf in his claim for personal injury. Your Lawyers sent a Claims Notification Form direct to the insurer on the RTA MOJ Portal dated 12th October 2010. After receiving no response, they wrote to the insurer on 14th October 2010 advising that they had remove the case from the portal as the insurer had failed to acknowledge receipt of the Claims Notification Form on time. The Defendant had actually sent the response pack on the Claims Notification Form on 14th October 2014 prior to receiving the letter from the Claimant. This meant that they were one day late in acknowledging receipt of the Claim Notification Form.
Eventually Part 7 proceedings had to be issued in the case, which Mr Patel ultimately won. Costs issues were dealt with by Mr Recorder Morgan at Leicester County Court.
At the costs hearing, the Defendant argued that there was no provision within the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents that entitled the Claimant to remove the case from the protocol. They further contended that the removal from the protocol was not automatic contingent on the Defendant failing to acknowledge on time.
The Claimant argued that the use of the word “must” in paragraph 6.10 shows that it was clearly the intention of the drafters that the Claims Notification Form should be acknowledged on time. Further, if there was no sanction the provision would be meaningless.
Ultimately, Mr Recorder Morgan decided that there clearly was an obligation for the defendant to comply with the request, but that given there was no sanction, there was no automatic right for a Claimant to remove the case from the MOJ portal.
Mr Recorder Morgan said that when a sanction is provided for in the protocol, its use is automatic and parties have every right to take steps to enforce the sanction. Where a sanction is not automatic or not explicitly mentioned within the protocol, what a party decides to do will be assessed by the test of reasonableness under CPR 45.24 when costs are considered.
Mr Recorder Morgan decided in Patel v Fortis Insurance Ltd that the Claimant’s decision to withdraw the case from protocol after the Defendant was late by only one day in acknowledging the Claims Notification Form could not be considered reasonable and so only awarded fixed costs to the Claimant.
Discussion
Defendants argue that this case gives them victory on the issue, however this author would submit that this isn’t necessarily correct for a number of reasons.
The first key issue is that this case was not conducted in relation to the Pre-Action Protocol for Low Value Person Injury (Employers’ Liability/Public Liability) Claims and dealt solely with the RTA protocol. It is not certain that the case would be applied to the EL/PL protocol. However, this author would submit that given the almost identical wording on this point by both protocols, it is likely the case would be applied in relation to the EL/PL protocol as well.
It is also worth mentioning that this decision was merely a first instance decision. Despite all of the disputes caused by this, the decision hasn’t been tested in the higher courts. Given the clear wording of the provision in the protocol in relation to a Defendant or insurer acknowledging receipt of a Claims Notification Form, it certainly isn’t obvious that a higher court would follow the reasoning in Patel. It may be that if a brave Claimant with perhaps an even braver after-the-event insurer as back up, they may win on this point in the higher courts. Until this point is tested, we just don’t which way it would go.
The issue of reasonableness is also an important point. Perhaps it was correct in Patel that the Claimant, by removing the case from the RTA protocol when the acknowledgement was just one day later, was in fact unreasonable conduct. However, this author would suggest that if there was a larger delay in acknowledgement, such as 7, 14 or even 28 days, a Claimant would have an extremely strong argument that removing a case from the protocol was in fact reasonable. The key thing to remember is not to jump the gun. Claimant firms could have a policy on removing cases from the Protocol, but only after giving Defendants and insurers ample opportunity to provide acknowledgement – Certainly more time than the Protocol suggests.
On a final note about reasonable conduct, it is worth noting that in Patel, the Claimant’s gave no warning that they would remove the case from the RTA protocol if the insurer failed to acknowledge the Claims Notification Form on time. Had a warning been provided in a cover letter, advising clearly that the Claimant intended to remove the case from the protocol if the defendant failed to acknowledge the Claims Notification Form on time, then that may have been considered reasonable conduct by Mr Recorder Morgan.
Conclusion
Whilst Patel v Fortis Insurance Ltd may seem like a big win to Defendants and their insurers, an in depth review of the case will find that it might not be the case. The facts of Patel v Fortis Insurance Ltd do show conduct on behalf of the Claimant that could be considered unreasonable, but there is nothing to suggest that a high court would decide the case in a similar manner.
Even if a higher court were to decide the case in the same way, there are still options for Claimants to remove cases from the Protocol for no acknowledgement should they be able to show reasonable conduct. As this author has discussed above, the Claimant could show that they gave the Defendant more time than is required by the Protocol to acknowledge receipt of the Claims Notification Form or provide adequate warnings of their intentions prior to removing the case from the Protocol. These examples may provide ammunition for Claimants to distinguish their cases sufficiently from Patel to get a different outcome.
How to Bring a Personal Injury Claim under the Equality Act 2010 – Helen Murdoch – Published in the June 2015 edition of PI Focus
What is the Equality Act 2010 and why is it relevant to a personal injury claim?
The Equality Act 2010 consolidated the previous discrimination legislation into one act which is now the starting point for any potential discrimination claim. Although it might seem an unusual pleading for a personal injury the claim, the Equality Act is always worth consideration whereby your client has one of the protected characteristics under the Act.
For the purposes of this article I will focus on the protected characteristic of disability and the types of disability discrimination which may be relevant in a personal injury claim.
Definition of disability
In order to assess whether there is a potential claim under the Equality Act 2010 the first starting point will be whether your client is disabled for the purposes of the act.
Section 6 (1) Equality Act 2010 sets out the definition of a disability as follows:
A person (P) has a disability if:
(a)P has a physical or mental impairment, and
(b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
Schedule 1 of the act provides further guidance and definition which advises that for an impairment to be considered long term it must have lasted for at least 12 months or be likely to last for 12 months or be likely to last for the rest of their life.
This schedule is also helpful as it deals with the effect of medical treatment on an impairment along with discussing deemed disabilities and progressive medical conditions and should always be referred to when considering the question of disability.
If upon a review of this you believe that your client is disabled for the purposes of the act then the next question will be to assess whether the treatment was discriminatory and if so under which head of discrimination under the Act does the treatment fall.
Heads of discrimination
Chapter 2 of the Equality Act deals with prohibited conduct and the different forms of discrimination. For the purposes of this article I will focus on the duty to make reasonable adjustments for disabled persons under section 20 and the failure to comply with that duty under section 21.
Duty to make adjustments for disabled persons
Section 20 Equality Act 2010 outlines the duty to make adjustments for disabled persons and the duty comprises three requirements as follows:
- The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
- The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
- The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
For the purposes of a personal injury claim the most relevant of these criteria is likely to be the second requirement whereby a Defendant has a physical feature which puts your client at a substantial disadvantage and this has led to their accident occurring. An example of this could be a client who lives in rented accommodation and has requested adjustments to their property which the Defendant has failed to provide and the client has subsequently suffered an injury because of this.
Failure to comply with the duty
Section 21 Equality Act confirms that a failure to comply with the first, second or third requirement in section 20 is a failure to comply with the duty to make reasonable adjustments and that this amounts to discrimination.
In order to consider what would be a “reasonable” adjustment consideration will have to be given to the applicable case law.
Limitation
Once you have established that your client has a potential claim under the Equality Act 2010 then you need to be aware of the limitation period to bring a claim. Section 118 (1) (a) confirms that proceedings must be brought within 6 months starting with the date of the act to which the claim relates.
This is obviously significantly shorter than the limitation periods we are used to a standard personal injury claims and is something to be wary of particularly if your client does not come to you for advice immediately after the accident as you may have to issue proceedings protectively in order to protect their position.
But what do you do if your client comes to you after the expiration of the 6 month limitation period. Section 118 (1), in particular subsection (b) may provide the answer:
(1)Proceedings on a claim within section 114 may not be brought after the end of—
(a)the period of 6 months starting with the date of the act to which the claim relates, or
(b)such other period as the county court or sheriff thinks just and equitable.
Section 114 deals with the County Court’s jurisdiction to hear a discrimination claim and subsection (b) would indicate that a claim for discrimination brought in the County Court can be brought after the expiration of the 6 month limitation period where the Court believes that it would be just and equitable to do so. This would appear to mirror the similar position which is taken in the Employment Tribunal for discrimination claims. This however should not be used a provision to fall back on as it is a very high hurdle to meet and in order to consider whether it would be “just and equitable” to allow the claim to be brought out of time consideration will have to be given to the applicable case law.
Proceedings
Once you have identified your clients discrimination claim then this will need to be carefully pleaded within the particulars of claim and you will need to ensure you address how your client meets the definition of disability. It is also important to properly plead the remedies available under the Equality Act 2010 as outlined below.
Medical evidence along with the clients own evidence will be crucial and it will be useful to have statements from family members or friends who can comment upon the impact that their medical condition has upon their day to day activities. It may also be worth considering a report from an Occupational Therapist to comment on your client’s disability and the types of adjustments that would have been reasonable.
Remedies
If the case is ultimately successful then Section 119 Equality Act 2010 sets out the remedies that the County Court can grant.
(1)This section applies if a county court or the sheriff finds that there has been a contravention of a provision referred to in section 114(1).
(2)The county court has power to grant any remedy which could be granted by the High Court—
(a)in proceedings in tort;
(b)on a claim for judicial review.
(3)The sheriff has power to make any order which could be made by the Court of Session—
(a)in proceedings for reparation;
(b)on a petition for judicial review.
(4)An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).
(5)Subsection (6) applies if the county court or sheriff—
(a)finds that a contravention of a provision referred to in section 114(1) is established by virtue of section 19, but
(b)is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the claimant or pursuer.
(6)The county court or sheriff must not make an award of damages unless it first considers whether to make any other disposal.
(7)The county court or sheriff must not grant a remedy other than an award of damages or the making of a declaration unless satisfied that no criminal matter would be prejudiced by doing so.
It should be noted that where a case is successful under the Equality Act 2010 and where the personal injury element is successful that the Court can award more than compensation for the injury and can also award compensation for injured feelings along with having the power to make a declaration.
Conclusion
Although likely to be a rare occurrence that you have a client who has been discriminated against to the extent that this has caused them to suffer an injury, it is always worth considering whether your client does have a claim under the Equality Ac t 2010 and being aware of the strict limitation periods in such cases.
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