Phillips v. ANZ
Although the case was decided on the issue of time-bar, the decision gives useful guidance on the interpretation of "Operations of embarking" in Article 17 of the Warsaw Convention and on the issue whether passenger support services at airports may be delegatd by the air carrier to independent contractors.
Case Note based on an Article in the April 2002 Edition of the ‘Bulletin’, published by the Marine and Insurance teams at the international firm of lawyers, DLA.
DMC Category Rating: Developed
As Dr. Phillips, sitting in the wheelchair, was being transported upstairs on an escalator, the chair fell back a couple of steps and she claimed to have suffered a whiplash injury. For the purposes of deciding preliminary issues, ANZ accepted an injury had been suffered and that it had been caused by the negligence of the ATS employee.
Dr. Phillips issued legal proceedings in March 2000, just within the 3-year limitation period under the UK Limitation Act 1981. But, if the Warsaw Convention applied, she was outside the two-year limitation imposed by section 5 of the Carriage by Air Act and the Convention itself. Specifically, Article 29 of the Convention provides that the right to damages is extinguished if the claim is not brought within 2 years from the date when the aircraft arrived or should have arrived at its destination.
If the Convention applied, it would provide Dr. Phillips' only remedy against the carrier (Sidhu & Others v British Airways  AC 430).
The answer to the main question was a short one. The judge found that the Convention applied to Dr. Phillips’ claim and her delay in issuing proceeding was fatal to that claim. The Convention applies as soon as the passenger has presented a valid ticket for travel and the ticket has been accepted and a boarding pass issued; in other words when the passenger has successfully completed the check-in procedure. In Dr. Phillips' case, she had checked in and was being taken up to the departure gate when the accident occurred.
But the judge was also asked to look at two further issues, even though they had become academic in the light of his conclusion. The first of these was whether Dr. Phillips’ injury fell within the meaning of Article 17 of the Warsaw Convention. This states that the carrier is liable for death, wounding or any other bodily injury suffered by a passenger if the accident took place on board the aircraft "or in the course of any of the operations of embarking or disembarking". Was Dr. Phillips in the course of any of the operations of embarking when she suffered her injury?
US case law suggests the best way to approach the question is by reference to three criteria: (i) where, geographically, the accident occurred, (ii) what the passenger was doing at the relevant time and (iii) whether the passenger was under the carrier's control. In the Irish case Helen Galvin v AER Rianta & AER Charter (18 March 1993), the Court held that the issue would depend on the circumstances of each individual case but that, in the context of an embarkation case, it must be established:
In Dr. Phillips’ case, the judge found that the accident happened at a time when a specific flight had been called and Dr. Phillips was going upstairs to the departure gates. She was, therefore engaged in a process of embarkation.
There are several such processes, including checking in, the passage through security and passport control and the departure routine (going to the gate to be cleared for embarkation and proceeding to embark). These processes are not continual and, in the judge’s view, do not include the many minutes a passenger spends in the public or private lounges, or going duty-free shopping or eating or drinking in restaurants and cafes. Only during those processes required by the carrier is the passenger engaged in a process of embarkation.
The other issue was whether, had the Convention not applied, the airline would have been liable at common law for the negligence of the ATS employee. The judge found that ground services of the sort provided by ATS fell into a different class from non-delegable duties such as the operation of the aircraft and the maintenance and provision of competent flight crew. Like porterage services, the assistance provided by ATS was not of the essence of the contract of carriage, nor so hazardous that the principal would remain liable for the acts of an independent agent. ANZ were entitled to contract out their ground handling services to ATS and were entitled at common law to argue that they were not liable for the negligent acts of ATS as their independent contractors.
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