Peter Neenan and Rebecca Smith of Stewarts’ Aviation team represent two passengers injured when a private chartered flight operated by Aquarius Aviation crashed in southern Ethiopia in 2016. In this article, Peter and Rebecca look at why the decision in this case has broader implications for those involved in international aviation claims.
On 20 October 2016, Dimitris Palaiokrassas and his wife, Eftychia Tsakou (the claimants) were travelling on a Gulfstream Twin Challenger 690C Aircraft in a domestic private charted flight operated by Aquarius Aviation from Addis Ababa to an airstrip in South Omo, Ethiopia.
Following touchdown, the aircraft advanced to the left, left the runway and collided with a tree. On impact, the aircraft was engulfed in flames. Fortunately, there were no fatalities, but the claimants sustained long-lasting injuries.
Accident investigation report
In the claim brought by the claimants, reliance was placed on the findings of a report issued by the Ethiopian Accident Investigation Authority (EAIA). The EAIA had investigated the accident pursuant to their duties under Article 26 of the Chicago Convention 1944 (to which Ethiopia is a signatory). While these investigations are undertaken, and the reports are produced for the purposes of safety and not blame, as a result of Stewarts’ Court of Appeal win in the case of Rogers v Hoyle, such reports can be used in the litigation surrounding liability for aviation accidents.
The report makes a number of causal findings including that the pilot failed to apply the correct landing procedures and arrest the advancement to the left, which it ascribes to inadequate piloting skill and nerves. The report concludes that the probable cause of the accident was the pilot’s inadequate recovery procedure from the accident landing, and identifies several contributing factors including that Aquarius Aviation assigned the pilot without considering the actual level of the pilot’s skill.
High Court proceedings were brought against Black and Trading Limited (trading as Journeys by Design) pursuant to the Package Travel Regulations 1992. The package had been sold by the defendant, a luxury tour operator, and the flight performed by their supplier, Aquarius Aviation, a local air carrier.
The case recently came before the court on the defendant’s application to set aside the Default Judgment obtained by the claimants following the defendant’s failure to file an Acknowledgement of Service in time. The defendant initially explained its failure on an administrative diary error, and latterly attempted to blame the coronavirus for the error.
The Denton test
The defendant failed in its application to set aside the judgement following the court’s application of the Denton test. The Denton test is whether (a) the failure that gave rise to the judgment was serious or significant, (b) whether there was a good reason for the default or failure and (c) whether, in all the circumstances of the case, the default judgment ought to be set aside.
On the application of the Denton test, the court considered that the breach was a serious one and called for an adequate explanation. It was not persuaded that the explanation provided for the failure to lodge the Acknowledgment of Service, namely that this had been due to “an administrative diary error” was an attractive one without at least a further coherent explanation as to the cause of the precise error being fully set out. Ultimately, the court concluded that there was no reasonable explanation and that in all the circumstances of the case, there was no good reason for the default judgment to be set aside.
No reasonable prospect of success
The defendant also failed in its application to set aside the judgement under CPR 13.3(1)(a) as it was unable to demonstrate that the defence had any reasonable prospect of success.
The defendant had argued that judgment should be set aside because expert evidence was required to determine local applicable safety standards and the application of those standards to aviation principles.
The court accepted the claimants’ argument that aviation is governed by a set of international rules and that a consumer can expect reasonable conformity with those rules. Master Thornett went on to say:
“I entirely accept the claimant’s submissions that it surely cannot be defence having any realistic prospect of success to argue that there might be a different local standard in Ethiopia how to fly and land an aircraft; as distinct from, say, standards of maintenance or cleansing. The defendant fails to satisfy me that anything could be argued to the effect that the manner in which an aircraft is operated can vary from locale to locale: with or without the assistance of expert evidence in this regard.”
The decision is a welcome one for those involved in international aviation claims. It confirms that expert evidence is not a requirement to determine “local standards” where, as was the case here, there had been an official investigation and a clear causal finding against the operator and crew.
The decision serves as yet another reminder to lawyers that breaches of the CPR are not to be taken lightly and that there needs to be a full explanation before the court as to how the breach occurred in order to avoid sanctions being imposed.
Further details of that hearing and an analysis of the reasons can be found here: a blog written by Max Archer, who was counsel on the case.
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