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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 [1997] AC 430).

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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:

1. that the accident to the passenger is related to a specific flight; and

2. that it happened while the latter was actually entering or about to enter the aircraft; or

3. if it happened in the terminal building or otherwise 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.

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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