ISSUE 54 EWJ web - Journal - Page 49
seeking damages in excess of this amount on the basis
that Mr Heinz was an agent of easyJet. There was an
alternative case against DRK under German law if Mr
Heinz was not found to be an agent of easyJet.
of the Montreal Convention, to be an agent of the airline,
whether or not he is an agent in accordance with domestic
law.”
In applying this test, the Inner House approved of the
“gate-to-gate” principle, i.e. that the carrier is responsible for what happens “in between the departure and arrival gates, including the path over a bridge up to an arrivals
gate”. They concluded that any party assisting the carrier during this time would be furthering the contract
of carriage, and therefore an agent for the purposes of
the Montreal Convention. An agent in these terms
could even include an airport or airport’s contractors.
The Inner House agreed with the Lord Ordinary that
Mr Heinz had been acting as an agent. easyJet’s
appeal was rejected accordingly.
The Lord Ordinary in the Outer House considered
that easyJet had instructed DRK to carry out the action of moving the pursuer and that this was “in furtherance of the contract of carriage”. This phrase was
borrowed from the US as the relevant test for establishing an agency relationship (Atlantic Merchandising
Group Ltd vs. Distribution by Air Inc 778 A 2d 607 (2001);
McCaskey vs. Continental Airlines Inc 159 F Supp 2d
562 (2001)). In such circumstances, he concluded that
DRK were agents of easyJet within the meaning of Article 17 and that the accident resulted from the negligence of Mr Heinz. On this basis, the pursuer was
entitled to unlimited damages. Perhaps unsurprisingly, this was appealed.
Practice Points – Carriers and the Gate-to-Gate
Principle
- The “gate-to-gate” principle strongly suggests that
the carrier is responsible for what happens in between
the departure and arrival gates.
In defining “agent”, recognising a lack of a suitable
definition in domestic case law and the absence of an
express definition in the Convention, Lord President
(Carloway) of the Inner House considered several US
authorities, including Reed. The Lord President endorsed the phrase “in furtherance of the contract of carriage” (Atlantic Merchandising Group Ltd vs. Distribution
by Air Inc; McCaskey vs. Continental Airlines Inc) as “a neat,
clear, and easily understood principle.” He noted that if “the
person sued does or omits to do something which is in furtherance of the contract of carriage, such as assisting the disembarkation of passengers, then he is deemed, for the purposes
- Following Reed and Mather, it is likely that any party
assisting the carrier with “the furtherance of carriage”
may be considered an agent of the carrier, including
an airport or its contractors, whether this would be
applicable in domestic law or not.
Mr Glyn Evans
Consultant in Trauma
and Orthopaedic Surgery
Ms Rahila Khan
Consultant Obstetrician
MB, BCh, FRCS (Edin), MFSEM, MCIArb
MBBS, MD, FRCOG
Mr Evans is a Consultant Trauma & Orthopaedic Surgeon and
Sports Physician with extensive medico-legal experience providing
personal injury reports for complainants or defendants in
musculoskeletal injury, and medical negligence reports concerning
Rahila Khan joined Pyper Medical Services in 2021
and is currently preparing 3 reports per month on
clinical negligence in Obstetrics for both claimants
and defendants.
total and partial knee replacements, arthroscopy and ACL.
Mr Evans has been performing knee replacements and arthroscopic
surgery since 1985 and has specialised in surgery of the knee since
Consultant Obstetrician and Gynaecologist at University
Hospitals Sussex since 2010.
2004. He has undertaken several thousand joint replacements. He
has a particular interest in sports injuries. He has experience of all
Lead in Maternal Medicine and Diabetic pregnancy
types of bone and joint injuries and has clients throughout the UK
and internationally.
Broad experience in all aspects of Obstetrics, including
high-risk pregnancies and intrapartum management.
Consultations available at:
HCA International, The Shard, St Thomas Street,
Extensive experience of O&G in 3 continents and diferent
perspectives on treatment.
London, SE1 9BS
Hampshire Health, 97 Havant Rd, Emsworth,
Hampshire, PO10 7LF
Fellowship Programme in Maternal Fetal Medicine at
University of Connecticut, USA, which included obstetric
ultrasound scanning.
And by Skype
Contact:
Tel: 0207 407 3069
Mobile: 07816 492 904
Contact Details:
Medico-legal secretary: Alayne Fawkes
Tel: 01903 741154
Email: pms@pypermedical.co.uk
Email: glyn.evans@A1reports.co.uk
Please copy all emails to carole.segger@LKCadmin.com
Web: www.A1reports.co.uk
Hareswith Cottage, West Chiltington Road, Storrington, West Sussex RH20 4BP
EXPERT WITNESS JOURNAL
47
APRIL 2024