Court allows airport authority appeal, dismissing passenger's negligence claim due to exclusive Montreal Convention remedy.

THE COURT OF APPEAL

Neutral Citation Number: [2016] IECA 384

[2014 No. 1142]

[2013 No. 541]

The President

Sheehan J.

Hogan J.

BETWEEN

TERESA BELL

PLAINTIFF/RESPONDENT

AND

DUBLIN AIRPORT AUTHORITY PLC.

DEFENDANT/APPELLANT

JUDGMENT of the President delivered on 15th December 2016

Introduction

1. This case concerns an accident that happened at Dublin Airport shortly after 2pm on 16th January 2009 when the plaintiff tripped

and fell on an air bridge between the aircraft and the terminal as she disembarked from a Rome to Dublin flight. The plaintiff pleaded

her claim in negligence against the Dublin Airport Authority (“DAA”) and did not pursue the carrier, Aer Lingus. The DAA denied

negligence, pleaded contributory negligence and put injuries and quantum in issue. The defendant also pleaded that the plaintiff was

not entitled to claim against the airport on the basis that she was restricted to suing the carrier, pursuant to the provisions of the

Montreal Convention governing international air travel. Instead of adopting that advantageous procedure, she erroneously proceeded

against the Airport Authority.

2. The bridge is telescopic, extending outwards from the airport terminal towards the aircraft door. The particular model of bridge in

use at the time was a common type made by a large American manufacturer. The nature of the construction, particularly the fact

that it was telescopic, meant that it was stepped as it extended towards the aircraft. The steps, or saddles, are approximately two

inches in height. There is also a small gap below the step. Each step is highlighted by luminous yellow paint extending the full width of

the passage and some six inches in length. The evidence of the plaintiff’s engineer and all the other witnesses is that the steps were

visible.

3. The plaintiff tripped on one of these steps. She testified that she did not see it. Her case was that the step was obscured from

view because of the other passengers ahead of her on the bridge going towards the airport terminal. The evidence of another

passenger called by the plaintiff put the number of persons in front of the plaintiff at less than ten.

4. The negligence alleged was that DAA did not have wall signs at head height to alert people to the fact that there were steps in

the flooring of the walkway. That was the evidence of the plaintiff’s engineer, Mr. Wynn, which the judge accepted. The judge said:

“I find that the Defendants should have placed signs at eye level to warn passengers of the difference of the floor height.

This action would have gone a long way towards eliminating the effect of the trip hazard at this location. Accordingly, I

find that the Defendant was negligent in its failure to put warning signs on the locus of the accident.”

5. Concerning the Montreal Convention, the trial judge accepted the argument made by the plaintiff’s counsel that EU Council

Regulation EC 2027/1997 at Article 4 permitted the plaintiff to bring her action because it provided that nothing in the Regulation shall

imply that the Community air carrier is the sole party liable to pay damages.

6. In my judgment, the defendant’s appeal must succeed on the issues of negligence and the Montreal Convention. There was no

adequate evidential basis for a finding of negligence as made by the trial judge; the evidence as accepted by the judge was

insufficient to justify such a conclusion. The fact that some measure can be envisaged in retrospect that would or might have

prevented the accident is not the test. Neither is it enough for the evidence to establish that a different arrangement is in place

elsewhere. The plaintiff must prove on the balance of probabilities that the defendant was in breach of its duty to take reasonable

care in the circumstances, which means that it failed to do something that it ought to have done if acting with reasonable care or

that it did something that it should not have done. The evidence did not establish failure by the Authority to take reasonable care in

the circumstances.

7. In regard to the Convention, I must also disagree with the conclusions of the High Court. There is high authority in decisions of the

House of Lords on the corresponding provisions of the Warsaw Convention to the effect that the system of international air carriage

regulation is complete, closed and exhaustive. These decisions are acknowledged by the Supreme Court. They mean that a plaintiff

claiming injury in circumstances covered by the Convention can only claim compensation in accordance with its provisions. The

Regulation that was invoked by the plaintiff in attempting to circumvent this restriction did not have the effect of overturning a key

provision of the international agreements.

8. The relevant evidence in the case may be summarised as follows. The plaintiff recalled getting off the plane onto the air bridge.

She had gone past the first saddle in the bridge without incident but she did not realise that there was a second saddle there and her

foot got caught in it and she fell as a result. Explaining why she did not see the saddle, she said:

“There was a lot of people in front of me and everybody was moving very slowly, really, but there was a lot of people in

front of me, a lot of people beside me and behind me. There was a lot of people in front of me, how many I don’t know.”

She was unable to remember how many people were in front of her. She said that if she said four people she would be wrong and if

she said 20 people she would be wrong. A fellow passenger, a Mr. Preskaytis, testified that he was behind Ms. Bell on the air bridge

and that there were less than 10 people in front of him. Counsel asked him to confirm that that meant less than 10 for the whole

corridor in front of him and he did so.

9. The plaintiff’s expert was Mr. James Wynn, a consulting engineer practising in Ardee, County Louth. He inspected the air bridge on

5th November 2009. He referred to the telescopic nature of the air bridge which moves out from the Terminal into contact with the

aeroplane. The sections slide out one under the other. He said there were several places in which warning signs could be put. In

regard to the steps in the air bridge, he said “they are painted yellow alright, presumably because somebody considers them to be a

hazard”. As to whether the highlighting in yellow was sufficient on its own, he said:

“They’re so obvious in both my photos and Mr. Watson’s photos. When there’s a crowd of people coming off, you are not,

you know, you are not just looking downwards, you’re looking forwards and you wouldn’t see them in any way in advance

if there were a few people in front of you. In fact, the whole thing, all the nice pictures on the left-hand side as you go

out certainly draw your eye to Venice, more than looking downwards into the yellow strip.”

This was a reference to an advertising photograph on the side of the air bridge.

10. Mr. Wynn said that he had noticed on travelling through Gatwick Airport some time after his inspection, and also in the new

Terminal 2 in Dublin Airport that the transitions from Terminal to aircraft were differently arranged because there was “a totally

smooth transition between one section of the air bridge and another and there were no yellow strips like this one here”. He agreed

that these were not in any sense inspections and he did not obtain any details or take photographs or even ascertain the

manufacturer of the equipment. They were casual observations that he made in the course of his own personal travel.

11. In cross-examination, Mr. Wynn agreed that the step was quite obvious because of the fluorescent yellow paint with which it was

highlighted. The problem, as he identified it, was that if a crowd of people was coming off a plane they might somehow block vision of

the step. Counsel put it to Mr. Wynn that the plaintiff’s witness had said that there were less than ten people on the gangway as he

looked forward and Mr. Wynn replied:

“Indeed. As I said earlier, I think your eyes would be drawn, as mine would be, drawn to Venice on the left-hand side and

it’s the whole way along. It’s quite spectacular.”

12. Mr. Wynn did not claim any particular expertise in regard to air bridges, nor did he engage in any relevant research with which to

brief himself on the technicalities of different modes of getting passengers by way of covered way from aircraft to terminal. As to the

comparisons that he had made between Terminal 2 in Dublin and Gatwick, which he said was 2009, he commented that it was one

manufacturer’s way of doing things as compared possibly with some other manufacturers.

13. Counsel suggested to Mr. Wynn that if Ms. Bell had not seen the luminous yellow strips, it was unlikely that she would have noted

a sign to her right where Mr. Wynn suggested it could have been placed. He said “Yes, perhaps”. Counsel asked:

“Q. Your criticism seems to say that if there was a sign somewhere where that red box is, that that might have prevented

this accident.

A. It would have been a help in avoiding an accident.”

14. The DAA’s expert witness was Mr. James Watson, consulting engineer. He gave evidence of the measurements of the protrusion

above the floor level on which the plaintiff tripped. The overall width, viewed from above, is six inches. It extends above the carpet

flooring by two inches. The front edge is inclined at approximately 45 degrees which goes back some three inches and beyond that

there is a horizontal section. The air bridge is about 100 feet long when extended to reach an aircraft. In a point referred to by Mr.

Wynn, Mr. Watson explained that the air bridge has to have capacity to move up and down to a certain extent to accommodate itself

to its function. It extends outwards from the Terminal to the aircraft, but its relationship with the plane is not fixed and static. As

passengers disembark form the plane and the weight borne by the plane thus lessens, the position of the door in relation to the air

bridge will shift upwards and the mechanism has to allow for such movement. The witness took an average weight of 80kg per

passenger and that meant with 100 passengers the plane load would have been reduced by some 8 tonnes when they had all

disembarked. The trial judge commented during Mr. Watson’s direct examination that he thought that where the accident took place it

was like a door saddle and the witness agreed that that was exactly what it was.

15. Mr. Watson discounted as being of any significance the issue of whether there was a gap under the saddle. He explained that

there had to be some tolerance in the machinery, but he accepted that the saddle represented a trip hazard. Since it is also not in

dispute that Ms. Bell actually tripped at this point, no issue arises as to the nature or cause of the slight gap that might have existed

beneath the step itself or saddle because it is of no materiality to the case. He said that the saddles, as highlighted in yellow, were

obvious, a fact that he said was accepted by Mr. Wynn and the other witnesses. It seems to me that is correct. He said that even if

people in front were partially obscuring the lines, they would become visible once the persons had passed over them. He emphasised

that the length of the bridge is 100 feet which has relevance to the number of people that were described as being present on it in

front of Ms. Bell. Mr. Watson said that the fact that 5.8 million passengers had used this air bridge without giving rise to a claim would

suggest that it is a safe system. Mr. Watson said that this equipment is used all over the world – which he ascertained by doing

research on the Internet. He described it as an industry standard, but was specific about what he meant by that; it was not a

standard established by the industry, but it was used as standard throughout the industry.

16. Mr. Watson gave his view that the hazard in this case, which was an acknowledged tripping hazard, was adequately identified by

putting a yellow strip six inches wide. It was clearly apparent from the moment that a person steps from the aircraft that there are

yellow strips across the walkway. Such strips are traditionally a method of identifying a hazard. His evidence was that this was a

satisfactory arrangement.

The Appellant’s Submissions

17. The appellant submitted that the trial judge erred in holding, on the evidence adduced before the court that the plaintiff’s

accident had been caused by the negligence of the defendant.

18. It was submitted that the trial judge, in making a finding of negligence against the defendant, imposed the incorrect standard of

care with regard to the legal duty resting on the defendant concerning the safety of passengers disembarking from the aircraft onto

an air bridge. They cite an accepted definition of negligence from the case of Blyth v. Birmingham Waterworks Co. (1856 11 Ex Ch.

781 at 784, 156 ER 1047 at 1049) which was applied in Duffy v. Rooney and Dunnes Stores (Dundalk) Ltd. [1997] IEHC 102.

“Negligence is the omission to do something which a reasonable person, guided upon those considerations which ordinarily

regulate the conduct of human affairs, would do or doing something which a prudent and reasonable person would not

do.”

19. It was submitted that there was no evidence adduced on behalf of the plaintiff to show that the defendant, in the regulation of

the passengers disembarking from the aircraft onto the air bridge, had done or had failed to do something which a prudent and

reasonable person would do or would not have done. The entirety of the evidence was that the air bridge being used by the

defendant was widely used within the industry, having been supplied to more than 200 airports and operating in approximately 40

different countries. In addition, with regard to the particular air bridge in which the plaintiff’s accident occurred, and which had been

used by in excess of 5.8 million passengers since 2000, no accident, with the exception of the plaintiff’s accident, had occurred where

there was a complaint that the accident had been caused by the upright saddles, which are highlighted by luminous yellow strips,

and/or that the upright saddles constituted a hazard and trap to passengers using the air bridge. The basis for the trial judge’s finding

of negligence was solely the finding that the defendant had failed to put up a warning sign alerting passengers of the presence of the

upright saddles which were clearly visible because of their luminous strips.

20. The appellant relied on the statement of law in Kirby v. Burke [1944] I.R. 207 at 214 to submit that there was no basis for a

finding of negligence in the particular circumstances of the case:

“. . . the foundation of liability at common law for tort is blameworthiness as determined by the existing average

standards of the community; a man fails at his peril to conform to those standards. Therefore, while loss from accident

generally lies where it falls, a defendant cannot plead accident if, treated as a man of ordinary intelligence and foresight,

he ought to have foreseen the danger which caused injury to his plaintiff.”

21. It was submitted that, having regard to the fact that the air bridge in question is standard within the industry, was in common

usage at the time of the plaintiff’s accident and has remained so and in circumstances where, with the exception of the plaintiff’s

claim, in excess of 5.8 million passengers have used the air bridge in question without having suffered any accident involving the

upright saddles, there is no basis for a finding of liability against the appellant.

22. The appellant submitted that if the trial judge did not err in failing to dismiss the plaintiff’s case, he should, nonetheless, have

made a finding of contributory negligence against the plaintiff. The appellant relies in this regard on Byrne v. McDonald (7th February

1957) where Kingsmill Moore J., speaking on behalf of the Supreme Court and in dealing with the issue of contributory negligence,

stated as follows:

“The act or omission must be judged in light of the knowledge, actual or imputed, which the plaintiff has, for if there is, or

should be, no knowledge that the act or omission involves danger then the plaintiff cannot be convicted of failing to take

reasonable care. To every adult is imputed the knowledge of risks which the normal reasonable person may be assumed to

have. . . ”

23. In light of the clear evidence given by the plaintiff that she was an experienced air traveller and had knowledge of the existence

of the upright saddles over which she had stepped 1001 times, and in circumstances where the plaintiff accepted in evidence that a

person moving forward and looking in front of her would have seen the luminous yellow strips which were clearly visible, it was

submitted that the plaintiff was the author of her accident and/or guilty of significant contributory negligence.

24. The appellant submitted that, having regard to the provisions of the Air Navigation and Transport International Convention Act

2004, which transposed into Irish law the Montreal Convention, and having regard to the decision in Smyth and Company Ltd. v. Aer

Turas Teoranta (Unreported, Supreme Court, 3rd February 1997), the trial judge erred in law in failing to hold that the plaintiff was

not entitled to bring the proceedings against the defendant in respect of the accident, the cause of action in respect of which lay

solely against the carrier.

The Respondent’s Submissions

25. The respondent submitted that the role of the court on appeal is limited by the principles declared by the Supreme Court in Hay v.

O’Grady [1992] I.R. 210. The trial judge in this case did have adequate regard to the primary facts, having listened to all the facts

and expert evidence adduced on behalf of the appellant and respondent. In McCracken v. McManus (Unreported, Supreme Court, 21st

November 2001), Murray J. stated:

“It is not necessary for a trial Judge, in his findings and judgment after such a hearing, to expressly resolve every conflict

of fact which arises in the evidence of the witnesses heard at the trial. If primary findings of fact and inferences drawn

from them are set out with sufficient completeness, it may be possible to infer or imply fairly readily the findings of the

trial Judge on other such matters.”

26. An appellate court should not interfere with findings where there was credible evidence to support them. The trial judge was

entitled to have regard to the engineering evidence of both the appellant and the respondent, but in particular, the respondent’s

engineer. In resolving any conflict between the evidence of the appellant and respondent, the trial judge was entitled to determine

that it would have been reasonable for the defendant to place a warning sign at an appropriate location to indicate the presence of

the steps in question. An appeal court should not interfere with the findings of fact, even where it might deem other findings to be

more appropriate. Finlay C.J. in Pernod Ricard & Comrie plc v. FFI Fyffes plc (Unreported, Supreme Court, 11th November 1998) said:

“Findings by a trial judge of primary or basic facts which depend upon the assessment by him of the credibility and the

quality of witness will only be interfered with by this Court on appeal when such findings of primary fact cannot in all

reason be held to be supported by the evidence.”

27. The plaintiff cited specific parts of the evidence that supported the claim, as she submitted. Mr. Preskaytis said that when there

were people walking, you could not properly see out. The plaintiff’s engineer, Mr. Wynn, said that they should have been warning

signs at the accident locus. The steps were painted yellow because somebody considered them a hazard. People getting off an

aeroplane were almost likely to be looking forward, not downwards. It would be difficult for a person to see the yellow strip if other

people were walking ahead and carrying luggage. When he had travelled to Gatwick Airport, the air bridge was a smooth transition.

There were several places where warning signs could be put. The person coming behind would not see the yellow strip until they

actually came on it and until the others had passed over it.

28. The plaintiff argued that the trial judge was entitled to conclude that signs at eye level would have gone a long way towards

eliminating the effect of the trip hazard. The judge was entitled to make the findings he did. Evidence of the millions of passengers

who had uneventfully traversed the air bridge was irrelevant. The evidence that there was only the claim of the plaintiff did not

exclude the possibility of other persons having tripped but not having made claims. The defendant’s engineer accepted that the step

might have been eliminated at Gatwick.

Discussion

29. The trial judge expressed his conclusions on the issues of negligence and the application of the Convention in summary form and

we do not therefore have the benefit of his consideration of the evidence and his analysis of the issues. There were questions of fact

to be resolved and also issues of law.

30. Ms. Bell said that she did not see the step on which she tripped because there were other people in front of her. There were not

a large number of people; the evidence was that there were less than ten people in front of the plaintiff along the length of the air

bridge, some 100 feet. They could possibly have been clustered together, but one could not hold that that was the situation without

clear evidence. Ms. Bell had stepped over the previous obstruction. She would have had to be extremely close to the people in front

of her in order for the floor to be obscured. That is not consistent with the evidence as to the number of people. Even if the air

bridge had been crowded with people, it is not easy to understand just how the plaintiff could have been prevented from seeing the

luminous yellow strip indicating the saddle.

31. The plaintiff’s engineer said that if there had been signs on the wall at eye level, that would have gone a long way to eliminating

the effect of the hazard created by the step or saddle. That is a far cry from establishing causation. Mr. Wynn, made some other

criticisms besides his principal point about signs. He complained about maintenance of the air bridge, without, as it seems to me, any

basis in evidence for doing so. He cited the advertising material on the side wall as being a distraction, but it is not clear that he was

offering that as evidence of negligence. His reference to his personal experience as a traveller at Gatwick Airport and at Terminal 2 in

Dublin, where he said there were different floor arrangements, was not satisfactory expert evidence. He was unable to provide

technical engineering analysis to assist the court. He did not justify any criticism by reference to Irish or international standards. He

merely described different arrangements that he said he had noticed in the course of his travels. There was nothing to demonstrate

to the court how the Airport Authority was in breach of its duty to take reasonable care. The mere fact that other airports did things

differently was not evidence of negligence on the part of the defendant.

32. It is not sufficient for the plaintiff to prove that some particular measure might have or would have prevented the accident

happening. One can always look back after an accident and think of some action or precaution that might have prevented it. But that

is not the test of negligence. The relevant test in this case is: did DAA take reasonable care to ensure that the access to the

terminal from the aircraft was safe?

33. The evidence given by Mr. Watson, the defendant’s engineer, was that this was a standard piece of airport equipment. It was

supplied by the leading manufacturer of such apparatus; it is in use all over the world. There may be other more modern or different

air bridges which do not have steps in them – Mr. Watson accepted that that may be the situation at Gatwick Airport or in the more

modern T2 at Dublin Airport. That does not make the existing one where this accident happened defective or deficient. The plaintiff’s

claim is the only claim that has ever been made of a person falling on it.

34. No evidence was given that it was the practice in other airports, or in any other relevant circumstances, to have warning signs at

eye level about steps at floor level. The mere fact that Mr. Wynn was of the opinion that it would be desirable, or better, or even

that it was necessary to have such warning signs, in addition to the markings on the floor itself, seems to me to be slight evidence

and I do not think it actually represents cogent or acceptable proof of any deficiency on the part of the Authority in this case.

35. I do not think this case can succeed because there is simply no evidence of any negligence on the part of the DAA. It is not

possible to accept that a small number of people disembarking from an aircraft – the trial judge found that the number was between

four and ten people who were in front of the plaintiff – could have obscured the prominent yellow markings on the floor of the

walkway. It seems to me that this is a normal situation that people encounter every day of their lives when walking outdoors or

indoors, often without actually having the step highlighted as it was in this case. It is also worth remembering that the plaintiff did

not trip on the first step that she encountered, but on the second one.

36. The airport used a standard piece of equipment and there is no evidence that it departed in any way, specifically in regard to

signage about the steps, from what exists elsewhere in all the places where the thousands of other models are in use. The fact that

the defendant followed a generally accepted standard is relevant, although not decisive or conclusive evidence, that it was not

negligent. It is open to a party to establish inherent defects in the normal or usual practice, but that case was not made.

37. In my view, the trial judge fell into the error of thinking that because there was evidence of a measure that might have made a

difference, the failure to do it was negligent. There was an absence in this trial of any sufficient basis for the conclusion reached by

the trial judge that the Authority was negligent. He was also quite mistaken in thinking that if the plaintiff succeeded in proving

negligence, she could avoid a substantial finding of contributory negligence against her, having regard to the circumstances of the

accident, but that does not arise for more detailed discussion.

38. In my judgment, the plaintiff failed to establish negligence on the part of the defendant.

The Montreal Convention

39. The issue that arises in relation to the Convention is whether the High Court was correct to rule that the plaintiff was not

restricted to suing Aer Lingus as the carrier with which she had travelled. The judge held, in upholding a submission made by counsel

for the plaintiff, that Council Regulation (EC) 2027/97 authorised proceedings against a party other than the carrier.

40. The applicable provisions of the Montreal Convention for the present case are in Articles 1, 17, and 29 as follows:

"Article 1.1- This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for

reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

Article 17.1 - The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition

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.

Article 29 - 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."

41. The Convention has been incorporated into Irish law by s. 4 of the Air Navigation and Transport (International Conventions) Act

2004:

“4(1) - The applicable provisions of the Carriage by Air Conventions have force of law in the state in relation to any

carriage by air to which they apply, irrespective of the nationality of the aircraft performing that carriage.”

However, sub-section (2) enters a qualification in respect of Community air carriers:

“(2) Subsection (1) does not apply in relation to Community air carriers to the extent that the provisions of the Council

Regulation have the force of law in the State.”

Article 4 of the Regulation 2027/97 is as follows:

“In the event of death, wounding or any other bodily injury suffered by a passenger in the event of an accident, nothing

in this Regulation shall

(a) imply that a Community air carrier is the sole party liable to pay damages; or

(b) restrict any rights of a Community air carrier to seek contribution or indemnity from any other party

in accordance with applicable law.”

42. It is clear that the Convention applies to all international air travel. Article 17.1 makes the carrier liable for injury to a passenger

on board the aircraft or in the course of embarkation or disembarkation. There is no question in this case but that Ms. Bell was

disembarking from the aeroplane when she sustained her injuries. In those circumstances, she can only bring her claim subject to the

conditions of the Convention: Article 29. This interpretation is confirmed by the judgment of the House of Lords in Sidhu v. British

Airways [1997] AC 430, which was concerned with similar provisions in the Warsaw Convention. Lord Hope said:

“Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention

which apply and that the passenger does not have access to any other remedies, whether under the common law or

otherwise, which may be available within the particular country where he chooses to raise his action.”

43. Lord Hope was referring to the liability of the carrier, but the essential finding is of the restriction to proceeding under and in

accordance with the Convention. That case and another similar one were referred to by Blayney J. in the Supreme Court in S. Smyth

& Co. Ltd. v. Aer Turas Teo (Unreported, 3rdFebruary 1997) in the course of a judgment with which O’Flaherty J. and Keane J.

concurred. The judge referred to these cases as having decided:

“That the only remedy open to a passenger claiming to have suffered personal injuries arising from an international flight

was under the Convention and that the Convention contained an exclusive and exhaustive code governing such actions

and excluded actions brought under common law.”

These words are obiter because the Convention was not raised by the parties in that case, but in his judgment Blayney J. was

evidently conscious of the relevant legal analysis.

44. Council Regulation 2027/97 came into effect before the Montreal Convention was agreed and effected and was substantially

amended following this later international covenant on air transport. It would appear indeed that Article 4 was actually repealed by

Regulation (EC) number 889/2002 Article 6. This does not arise for discussion in the present case because it was not submitted that

Article 4 of 2027 did not apply at the time of Ms. Bell’s claim. Moreover, the reference to this Regulation in the 2004 Act does not

mention any subsequent amendment or repeal of any part.

45. The question accordingly arises as to whether Article 4 permits a form of action otherwise prohibited by the Conventions. In my

view, it does not and cannot be construed as doing so. In the first place, nothing explicit is stated in the Regulation as to

qualification of the Warsaw Convention. If it has the effect of making this important exceptional qualification, that has to be found to

have been done implicitly. There is nothing in the recitals to the Regulation to suggest that it is making significant changes to this

feature of the existing regime. The Regulation sets out a series of desiderata which the measure then proceeds to implement. It is

practically unrealistic to think that if a measure of this kind intended to make a significant change in the provision for claiming

compensation, it would not refer in the recitals to some justification for doing so. It is also clear that there would be an express

provision.

46. It also does not make sense, in my view, to think that this alteration in the underlying philosophy of the scheme would be justified

in circumstances in which the injured passenger is given favourable treatment in respect of liability on the part of the carrier. It does

make sense, however, that the carrier should be able to look to another party for contribution or indemnity. My reading of the

Regulation suggests that this is the real purpose of the Article in question.

47. In my judgment, Ms. Bell was restricted to proceeding against Aer Lingus irrespective of any claim that the carrier might have

against a third party, including the Dublin Airport Authority, if it considered that appropriate. That did not mean that Ms. Bell was

entitled to sue the Authority. This point would be available to that party in the event that Aer Lingus issued third party proceedings

and the plaintiff then applied to join the Authority as an additional defendant.

48. On this point, also, I find myself in disagreement with the High Court.

49. I would therefore allow the defendant’s appeal and dismiss the plaintiff’s claim.