NORMA JUNE DISLEY v MARC LEVINE (t/a AIRTRAK LEVINE PARAGLIDING) [2001] EWCA Civ 1087

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (Mr Justice Hunt)

[2001] EWCA Civ 1087

Case No Case No: B3/2000/3637/QBENF

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Wednesday 11th July 2001

Between

NORMA JUNE DISLEYClaimant/ Respondent

MARC LEVINE (t/a AIRTRAK LEVINE PARAGLIDING)Defendant/ Appellant

Before

Lord Justice Henry

Lord Justice Buxton

Mr Justice Bodey

R Lawson Esq (instructed by Messrs DLA for the Appellant)

D Knifton Esq (instructed by Messrs Brown Tuner Compton Carr for the Respondent)

Date 11 July 2001

LORD JUSTICE HENRY:

The

[1]claimant was severely injured in a paraglider accident when she was under instruction from the defendant for her elementary pilot certificate on a paraglider. She now sues for damages for negligence and breach of contract. By order dated 13th July 2000, a preliminary trial of the following issues was ordered: a) whether the claim fell within the scope of Schedule 1 of the Carriage by Air Acts (Applications of Provisions) Order, 1967 ("the 1967 Order"), and if so b) whether the claim is statute-barred under the 1967 Order; c) whether, if the answer to a) was Yes, the defendant nevertheless owed the claimant an additional or distinct duty of care by virtue of their relationship as instructor and trainee.

[2]The said issues were tried before Mr Justice Hunt, who found for the claimant respondent on all three issues. He answered Questions a) and b) "No", and Question c) "Yes". The defendant now appeals questions a) and c) to this Court with leave of the trial judge. He concedes that the claim is not statute-barred under the 1967 Order.

[3]The claimant, Ms Disley is an adventurous and courageous young woman. She was introduced to the sport of paragliding at a "fun-day" (for which she paid £70), organised by the defendant, trading as Airtrak Levine Paragliding, in which capacity he offers paragliding instruction to members of the public for reward. He is licensed as a Senior Instructor and Dual Pilot - that is to say a pilot for a dual or tandem paraglider - and we understand the school to be a registered British Hang-gliding and Paragliding Association school. Ms Disley then subscribed to a course of instruction, paying £177 for a course to qualify her for her elementary pilot's certificate. That is the contract on which she sues. There is no evidence of the defendant making any use of paragliders other than for recreation or instruction.

[4]A paraglider consists of a canopy which is inflated by the wind to form an aerodynamic wing from which the pilot is suspended by a harness equipped with control lines. The inflated wing enables the aircraft to be flown forwards and downwards: to gain height it has to make use of thermal currents. It has rudimentary means of directional control. A paraglider usually carries one person, but a dual (tandem) paraglider (such as we had here) has been designed to enable it to carry and be controlled by two persons. Control extensions may be fitted to enable the second person to control the operation of the paraglider, indeed depending on the length of the control lines, the second person might be able to control the paraglider without a control extension being fitted. Suspended as they are from the wing in the harness, the occupant or occupants of the paraglider must act as its undercarriage - running to launch at take-off, and hoping to land on his or their feet at landing. You cannot be just a passive passenger in a tandem paraglider. You must actively assist in take-off and landing.

[5]On Wednesday 29th October 1997, the claimant attended a session of instruction by the defendant at a site on Edenfield Hill in Lancashire as part of the elementary pilot course. This was the claimant's first visit to that site. Owing to the fact that the wind conditions were stronger than those which she had previously encountered, the claimant expressed a reluctance to fly solo that day. So the defendant offered to take the claimant on a dual flight on an Airea "Fat Willy" tandem paraglider for the purpose of furthering her instruction in the sport of paragliding. This was her fourth day of instruction. She had flown in a solo paraglider, but never in a tandem paraglider before. It seems the latter have the problem that a paraglider sustaining two peoples' weight must still be controlled by one person's muscle.

[6]While it is not unusual for an instructor accompanied by a student on a tandem flight to allow the student to operate the controls of the paraglider, here the defendant during the course of the flight remained in sole control of the paraglider. The claimant was seated in a cross braced training harness in front of and below the defendant. Control extensions were not fitted. There is no evidence one way or the other as to whether the control lines were within Ms Disley's reach. There is no suggestion that she played any part in controlling the paraglider during the flight.

[7]When landing the paraglider at the end of the lesson, the defendant demonstrated a manoeuvre called "Big Ears", in which the outer sides of the canopy are collapsed in order to facilitate a rapid vertical descent. For the purposes of the preliminary issues, the agreed facts state:

"As the defendant attempted to land the glider, again using the 'Big Ears' technique, the left wing collapsed, resulting in the glider accelerating backwards, losing shape and collapsing. In consequence the claimant and the defendant fell to the ground, and the claimant suffered serious injuries, with consequent tetraplegia."

The claimant then commenced this action to recover damages for the personal injuries she sustained.

[8]The Particulars of Claim identify the causes of action relied on by Ms Disley as being: a) common law negligence; and b) breach of an implied term that the defendant would carry out his course of paragliding instruction provided to the claimant with reasonable care and skill.

[9]One major plank of the defendant's defence is that both causes of action relied on by the claimant are excluded by the provisions of the 1967 Order, and that their liability is confined to liability under that Order. The preliminary issues were designed to decide this question.

[10]The scheme of the 1967 Order is this. Article 4 of the Order proper is headed:

"Non-International Carriage and Carriage of Mail and Postal Packets" "

Schedule 1 to this Order shall have effect in respect of carriage to which this Order applies being either- a) carriage which is not international carriage as defined in Schedule 2 to this Order, or, the carriage of mail or postal packages." The power to make the 1967 Order is to be found in section 10(1) of the Carriage by Air Act, 1961:

"10 Application to carriage by air not governed by the Convention Her Majesty may by Order in Council apply the First Schedule of this Act ... to carriage by air, not being carriage by air to which the Convention applies, of such descriptions as may be specified in that Order."

[11]Schedule 1 is based on the Warsaw Convention as amended by the Hague Protocol, subject to the exceptions, adaptations and modifications described in Part 1 and applies to domestic flights. Article 1 provides:

"This Schedule applies to all 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."

[12]Chapter III deals with the liability of the carrier and, so far as is relevant, article 17 provides:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

[13]That article provides a cause of action which imposes strict liability upon an air carrier for such damage. However, article 20 of Chapter III provides a defence which the defendant has pleaded:

"In the case of passengers ... the carrier shall not be liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures."

In any event, article 22(1) limits that damage to 100,000 Special Drawing Rights, a figure of approximately £90,000, unless article 25 applies.

[14]Article 24 provides:

"(1) In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Schedule, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights."

[15]Article 25 provides:

"In the carriage of passengers and baggage, the limits of liability specified in article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents done with intent to cause damage, or recklessly and with knowledge that damage would probably result."

The claimant does not seek to avoid the limit on damages by this article, but accepts that if her claim is governed by the 1967 Order, then the limit on damages applies.

[16]Article 30(1) and 30(2) provide:

"(1) In the case of carriage to be performed by various successive carriers, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision. (2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey."

This is not a case of successive carriers. This article is relied on to show that for the 1967 Order to apply, there must be a "contract for carriage" between the "passenger" and the original contracting carrier.

[17]In summary, the defendant seeks to bring himself within the rules governing international and domestic carriage of passengers, their baggage and cargo by commercial air transport. Such carriage by air is largely governed by international conventions, given effect to in the United Kingdom by legislation. The original convention in this field was the Warsaw Convention, 1929, incorporated into our domestic law by the Carriage by Air Act, 1932. As

Lord Justice Greene said in Grein -v- Imperial Airways Limited [1937] 1 KB 50 at p 74:

"In approaching the construction of such a document as this Convention it is, I think, important at the outset to have in mind the general objects so far they appear from the language used and the subject matter with which it deals. The object of the Convention is stated to be 'The unification of certain rules relating to international carriage by air.' By '... unification of certain rules ...' is clearly meant 'the adoption of certain uniform rules' that is to say rules which will be applied by the courts of the High Contracting Parties in all matters where contracts of international carriage by air come into question. The rules laid down are in effect an international code declaring the rights and liabilities of parties to contracts of international carriage by air; and when by the appropriate machinery they are given the force of law in the territory of a High Contracting Party they govern (so far as regards the courts of that party) the contractual relations of the parties to the contract of carriage of which, to use language appropriate to the legal system in the United Kingdom, they become statutory terms."

[18]He then went on to deal with the desirability for such uniformity to avoid endless legal complication as to what was the proper law of the contract, and as to the conflict of laws. He made the point that the Convention was then limited to "international carriage" because in domestic flights difficulties as to the law applicable were unlikely to arise. The proper law of the contract would usually be domestic law, as it certainly would have been in this contract. Because the Convention was limited to international carriage, it clearly did not apply to non-power driven aircraft. By their very nature, their use would be a domestic matter

[19]The Warsaw Convention was amended by the Hague Protocol in 1955. One result of these amendments was approximately to double the limits on recoverable damages that had previously been agreed. But not all original signatories to the Warsaw Convention approved the Hague Protocol. This meant first that there were differences between the Warsaw and the Hague regimes, and second that, consequent upon the fact that not all nations subscribed to the same regime, there were gaps in the uniformity aimed for. Carriage by Air by Trevor Philipson QC and others, summarises the situation and the remedy given to it by the 1967 Order at paragraph 1.54:

"Non International Carriage Flights to the UK from countries which have ratified neither the unamended nor the amended Convention are not subject to either Convention. Nor are flights which take place within the UK. Neither the unamended nor amended Conventions apply to the carriage by air of mail and postal packages. It was therefore thought expedient to bring a measure of harmony by subjecting such flights to some of the rules applying to international carriage between contracting parties to the amended and unamended Conventions. Such flights are catered for under domestic legislation by the Carriage by Air Acts (Application of Provisions) Order 1967, Sch 1. The Order essentially applies many of the rules of the amended Convention to such flights. There is a presumption that the Order is not intended to be extra-territorial in its effect. Thus parliament did not intend the Order to regulate carriage by air in which the place of departure, destination and any agreed stopping place were within the territory of a foreign state. Flight or claims not governed by any of the statutory frameworks continue to be subject to the common law."

[20]The history and scope of the 1967 Order was considered in Holmes -v- Bangladesh Biman Corporation

[1989] AC 1112

by Lord Bridge at 1124 to 1126 and 1129 to 1131 (where he characterised the three Convention based Orders as the Warsaw rules, the Hague rules and now the United Kingdom rules, the last being the product of the 1967 Order).

[21]The way that the 1967 Order was drafted meant that it would inevitably be widely construed. This is because in its attempts to plug the gaps in the system concerning international flight, it provided in article 1 that the Schedule be applied:

"... to all carriage of persons, baggage and cargo performed by aircraft for reward"

. Such flights were "non-international" in the sense that they were either domestic flights or international flights that did not come within the Warsaw/Hague Convention definition.

[22]The width of those words was not fully explored until the case of Holmes referred to above. There Mr Holmes was killed when the defendant's aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under Bangladeshi law the plaintiff's damages would have been limited to £913. But Mr Holmes's widow sued in the United Kingdom, relying on the 1967 Order and its application to "... all carriage of persons ... performed by aircraft for reward." She argued these words included foreign domestic flights. If she was right, under the regime of that Order, the plaintiff would receive damages of £83,763. On the airline's appeal to the House of Lords, which was successful, it was held that those wide words were limited first by the enabling power imposed by section 10(1) of the Carriage by Air Act, 1961, and second by the presumption that Parliament was not to be taken, by the use of general words, to legislate in the affairs of Bangladesh. So the appeal was allowed. Lord Griffiths said, at page 1137F:

"I can see no reason why our Parliament should wish to legislate to provide for domestic air law in Bangladesh any more than it would wish to legislate on road traffic or railway safety in Bangladesh and I do not believe that it intended it to do so."

Accordingly, the power was construed subject to the presumption that Parliament was not to be taken by the use of general words, to legislate in the affairs of foreign nationals. But that particular problem does not arise in this case. The relevance of that authority in this case is simply to show that there are limits on the wide words of Schedule 1. And the limits are to be found in Schedule 1, construed in its civil aviation context.

[23]To summarise, section 10(1) is to be construed as authorising both legislation limited to carriage by air wholly within the United Kingdom and it could also cover non-Convention carriage involving a place of departure or destination or agreed stopping place in a foreign state and a place of departure or destination in the United Kingdom. And on our facts we need not look at international carriage. So we are here concerned with a domestic flight, and the application to such a flight of Schedule 1 to the 1967 Order, or what Lord Bridge described as "UK rules". But as Holmes (above) shows us, section 10(1) did not authorise the inclusion within the scope of the 1967 Order of a contract of carriage either performed wholly within the territory of a single foreign state who had not subscribed to the Convention or between two foreign states who had not. Despite the wide wording of the legislation there were limits.

[24]The case below turned on the judge's answer to three questions. I will follow the same pattern. The three questions are:

"4.1 Whether a tandem paraglider is an 'aircraft' within the meaning of the 1967 Order. 4.2 Whether the Defendant's carriage of the Claimant on the flight giving rise to this action was carriage 'for reward' within the meaning of the 1967 Order and, if not, whether the Defendant was an 'air transport undertaking'. 4.3 Whether the Claimant was a 'passenger' within the meaning of the 1967 Order when being carried in a tandem paraglider on the flight giving rise to the action."

For the defendant to succeed in showing that the claim fell to be decided under the regime of the 1967 Order, all three questions had to be answered "Yes". The judge answered each of them "No".

[25]We then proceed to consider the first discrete question considered by the judge: namely whether a tandem paraglider is an aircraft within the meaning of the 1967 Order. The word "aircraft" is not defined in the 1967 Order; nor in the consolidated Air Navigation (No 2) Order, 1995 ("the ANO"); nor in any of the Conventions to which we have been referred; nor in the Civil Aviation Act, 1982. Nor, so far as we are aware, is there any specific reference to paragliders in any of those documents.

[26]The defendant's submission, before the judge and before us, was as follows: a) a tandem paraglider takes two people, but only needs one to control it (though it can have dual controls and usually will when used for instruction); b) the 1967 Order does not define aircraft, and there is no English authority for its meaning in this context; c) the historical context of the Warsaw Convention in 1929 should be used for its construction - as it can fly in much the same way as a glider can, it must be an aircraft; d) the purpose of the 1967 Order was to regulate the carriage of all passengers for reward by air, and that applies whether passengers are carried for the purposes of "pure commercial transport" or for recreational flying; and finally e) the defendant relies on the detail of the regulatory system governing both commercial and recreational flying in the UK, namely the ANO. This is relied on by the defendant to show that it would be odd if domestic law proceeded on a more expansive definition of aircraft than that permitted by the Warsaw Convention or the 1967 Order, and therefore supports an "all-embracing" interpretation of "aircraft".

[27]I will deal with the point as to the regulatory system first. The ANO covers both commercial and recreational flying. Both fall within the ambit of the Civil Aviation Authority. Therefore it is quite unsurprising that the ANO lists all categories of both commercial and recreational aircraft, including some "small aircraft" without pilots at all. For instance, Part 1 of Schedule 1 of the ANO contains a Table of General Classification of Aircraft. The category "Heavier than air non-power driven aircraft - Glider ..." would cover the paraglider. There is no significant difference as to how and why gliders and paragliders fly. Both need wind and thermal currents. The main differences are that gliders are much more sophisticated in their handling; you are seated in a pod rather than suspended under a canopy and in a glider you could be a wholly inert passenger, which you cannot be if taking off or landing in a tandem paraglider. But gliders are listed in the ANO not because the Civil Aviation Authority anticipated public transport paragliders, but because they are responsible for recreational flying (the day-to-day administration of which they would leave - in the instant case - to the British Hang-gliding and Paragliding Association).

[28]Further, the treatment of "gliders" in the ANO makes it quite clear that they are treated as recreational aircraft requiring little regulation, rather than commercial aircraft used for public transport, which require stringent regulation. Mr Lawson informs us that the defendant is exempted from having an air operator's certificate and UK certificates of airworthiness (European and German certificates being accepted). This is confirmed by the ANO.

[29]First by article 3(2)(a), gliders may fly unregistered, and shall be deemed to be registered for any flight which begins and ends in the United Kingdom without passing over any other country, and is not used for the purpose of public transport or aerial work other than that which consists of the giving of instruction in flying. There we see a pattern that is repeated.

[30]Second, under article 8, no UK aircraft shall fly unless it has and complies with a current UK certificate of airworthiness. But again, gliders are exempt. Article 8(2) exempts gliders from needing a certificate of airworthiness if not being used for public transport or aerial work other than instruction or flying tests, or operation by a flying club where tutor and pupil are both members.

[31]Third, no air operator's certificate is required for Airtrak Levine Paragliding because they are not flying "... on any flight for the purpose of public transport" (article 6). So they do not needs an air operator's certificate because tandem flights would always be for instruction or recreation, and not for public transport.

[32]The reason that paragliders would never be licensed to fly for public transport is (one would think) too obvious to be stated and stems from their nature. They are heavier than air, they are not power driven, and they are totally unsuitable for public transport of any kind. They are private recreational aircraft, exempted from the basic regulatory controls imposed on commercial aircraft.

[33]The principal domestic regulatory body is the British Hang-gliding and Paragliding Association ("BHPA"). We know from the evidence that they issue a Technical Manual, dealing inter alia with training and "Dual Pilot Operational Requirements". This requires:

"Tuition and Valuable Consideration: to carry another person for 'valuable consideration' the dual pilot must be a duly qualified instructor who is providing training within a registered BHPA school. Dual pilots who are not licensed instructors are not permitted to accept valuable consideration."

The document refers to dual pilots as "both pilots" or pilot and student, rather than pilot and passenger.

[34]The Agreed Statement of Facts recites:

"It is a legal requirement under the [ANO] in force at the time that there must be no commercial gain from a tandem flight unless the second person is on a proper course of instruction or the pilot holds a commercial pilot's licence."

The defendant did not hold a commercial pilot's licence, so the legality of the flight was achieved by the fact that Ms Disley was being carried as part of her course of instruction. We are additionally told that Mr Levine is an experienced paraglider pilot, rated for hill and tow, with both a Senior Instructor and tandem licence held.

[35]It emerges from Mr Cruikshank's report that the paraglider used [Airea "Fat Willy" tandem] was certified airworthy by two authorities:

"...DHV Level 1/2 and CEN(AFNOR) certified Bi-place."

We know that CEN is the European paraglider certification authority, which has no powers in Germany, and DHV is the German certification authority. We are told that all gliders used in the UK are certified by independent authorities, but we know that our regulatory regime does not require Airtrak Levine Paragliding to have any CAA issued Certificate of Airworthiness.

[36]As one would expect, the certificate of airworthiness requires aircraft to be judged by their capability for the task they hold themselves out to perform. Looking at the categories of aircraft, there is no aerial work which can be performed by a tandem heavier than air paraglider other than instruction in flying and recreation. In particular, there is no Warsaw/Hague public transport/contract of carriage interest here. There would not seem to be any good reason to include flying clubs using primitive non-power driven heavier than air aircraft within the domestic UK rules, based as they are on commercial Convention flight.

[37]It is clear from the fact that Airtrak Levine Paragliding is not required to have an air operator's certificate, or any certificates of airworthiness that the tandem paragliders are not "aircraft" such as would require their operators to have either certificates of airworthiness or air operator's certificates, because they are gliders and exempt from the central provisions of the ANO and the regulatory system.

[38]In all these circumstances, in my judgment the correct statutory question determining whether the 1967 Order applies to this carriages is that set out in Holmes (above) at 1131D by Lord Bridge:

"The United Kingdom rules have the same common features as those to which I have drawn attention in the Warsaw and Hague rules. In authorising the application of such rules, based on or adapted from the Hague Rules, to non-Convention carriage by air, what categories of such carriage may Parliament have reasonably had in contemplation as the proper subject matter of United Kingdom legislation?"

[39]I would answer that question by saying that Parliament could not reasonably have had in contemplation applying the 1967 Order to a tandem paraglider training flight, for a pilot under instruction, by a paraglider school not required to have either certificates of airworthiness or an air operator's certificate.

[40]Clearly the ANO contemplates all the categories of aircraft mentioned as being "aircraft" for some purposes. But where Lord Bridge's question is posed, the ANO, instead of requiring Airtrak Levine Paragliding to register (article 3); to have an air operator's certificate (article 6); or UK certificates of airworthiness, instead exempts the defendant from the consequences of the main regulatory controls imposed on aircraft operators for public transport. Lord Bridge's question seems to me to be the right question. I do not believe that anything turns on the definition of aircraft. Accordingly, I do not believe that Parliament intended heavier than air non-power driven aircraft to come under the 1967 Order in circumstances where the ANO exempted them.

The judge found that the paraglider was not an aircraft, saying:

"I find that a paraglider or a tandem paraglider is not an 'aircraft' within the meaning of the 1967 Order. In such finding I am assisted by the object of the legislation, the terms of the Articles (particularly 1 and 7) and by the Dictionary definitions recited above. It is perhaps not necessary further to define 'aircraft' and it is easier to say what is not an aircraft than to define what is. I do find some assistance from the concept that, for the purposes of this Order dealing with the liability of air carriers, an aircraft is a flying machine within which someone is contained for transport purposes (eg aeroplane or helicopter) rather than one from which someone is hanging for sport or escape (eg paraglider or parachute)."

But I agree with the basic distinction he draws between air transport and recreation. And I agree with Buxton LJ, that on a purposive construction of the 1967 Order paragliders are not aircraft, being exempt from many of the regulatory requirements affecting air transport aircraft.

[42]I come to the second question "4.2 Whether the Defendant's carriage of the Claimant on the flight giving rise to this action was carriage 'for reward' within the meaning of the 1967 Order and, if not, whether the Defendant was an 'air transport undertaking'."

[43]The facts are clear and conclusive. The Particulars of Claim allege that:

"By an oral agreement made in or about September 1997 between the claimant and the defendant, the defendant agreed to provide the claimant with paragliding instruction, leading to the elementary pilot's certificate, upon payment of a fee of £177."

[44]The Amended Defence admits that paragraph of the Statement of Claim, and alleges in paragraph 2a:

"The defendant says this action is in respect of a personal injury sustained in the course of carriage by an aircraft, namely carriage of the claimant by the defendant on a tandem paraglider which was for reward, namely pursuant to the instruction fee which she had paid to the defendant as set out in paragraph 2 of the Particulars of Claim."

So the facts are agreed. The defendant's submission is that this is was a flight for reward, because it made no difference whether the reward was for carriage or for instruction. That pays no attention to the actual facts. It was no technicality that the flight was part of a course of instruction. But for that instruction there would have been no flight at all that day.

[45]The Agreed Statement of Fact makes clear that the offer to take the claimant on the dual flight made by the defendant was made for the purpose of furthering her instruction in the sport of paragliding. It was only because the claimant was under instruction that the payment and the flight was legal. The defendant was not entitled to obtain commercial gain from the flight from a member of the public, because he did not hold a commercial pilot's licence at the time. The payment was referable and only referable to the course of instruction. If the claimant had not been under instruction, no reward could lawfully have been obtained for the flight. The fact that the reward was a lump sum for the full course including the flight in question and not just for the flight in question is irrelevant.

[46]It is convenient to turn from that to the subsidiary question asked, "Is the defendant an 'air transport undertaking'?" even though it does not arise.

[47]The definition in article 118 is:

"'Air Transport Undertaking' means an undertaking whose business includes the business of undertaking flights for the purposes of public transport of passengers or cargo."

The business of Airtrak Levine was, as the Agreed Statement of Facts recites:

"The defendant has at all relevant times been the proprietor of Airtrak Levine Paragliding, a paragliding school, in which capacity he offers paragliding instruction to members of the public for reward."

[48]He was not offering transport to the public, because he could only accept reward for use of the second harness if that was utilised (as here it was) for the purposes of a proper course of instruction.

[49]If he had been offering flights for the purpose of public transport, and if the paraglider was an aircraft, he would have needed an air operator's certificate, and a certificate of airworthiness for each paraglider. He would not have obtained an air operator's certificate because no reasonable licensing authority would have found a paraglider fit to fly in the category public transport (article 9 of the ANO).

[50]We turn to the third question: whether the claimant was a "passenger" within the meaning of the 1967 Order when being carried by a tandem paraglider on the flight giving rise to this action. The reason for this question is that under article 17 the carrier is liable in the event of the death or wounding of a "passenger".

[51]The case of Herd -v- Clyde Helicopters Limited

[1997] AC 534

is instructive here: There the defendant respondents entered into a contract to provide helicopters for the local police, to assist them in surveillance. The respondents were, over a five month period, to provide all pilotage and maintenance services for the helicopters. Sergeant Herd and his fellow police officers went on the flights, and directed the surveillance operations from the air, giving the necessary instructions to the pilots, who were solely responsible for the flying of the helicopters. When flying in a snowstorm, the helicopter collided with a block of flats, killing Sergeant Herd, whose dependants brought proceedings for damages for common law negligence. In that case, as in this, the issue was whether the 1967 Order applied. In considering the question as to whether Sergeant Herd was a passenger, Lord Mackay in the leading speech said this: "In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatsoever in respect of the operation of the aircraft, which was solely under the control of the pilot, and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger." (542D-E) He was a passenger vis-à-vis the carrier in control of the aircraft, but had it been a police-operated aircraft, he would have been a crew member.

[52]It cannot be said that Ms Disley contributed nothing to the flight. True it is that, as set out in the Agreed Statement of Facts, during the flight Ms Disley watched the defendant demonstrate various flight manoeuvres, but she did not practise controlling the glider, or play any part in its operation during the flight. However, the flight could not have taken place without the contribution she made with her legs both on take-off and landing. But over and above that, she was not on the flight as a passenger, nor on the flight under a contract of carriage, but on the flight as a pilot under instruction, and so as one of the crew.

[53]In his speech Lord Mackay considered the French case of Société Mutuelle d'Assurance Aerien c. Veuve Gauvain [1967] 21 RFDA 436. There a flying instructor, at the end of a lesson, gave the trainee pilot a demonstration of low flying, in the course of which he hit a high tension wire, and both were killed. Lord Mackay said in Herd (above) at 546E-F:

"In Gauvain there was a contract of instruction between the parties as a result of which the trainee pilot was on board the aircraft at the time of the accident. This I think is sufficient to preclude application of the Warsaw Convention insofar as the operator of the aircraft had obligations to the trainee pilot over and above those of a carrier in any event."

[54]It is suggested that that passage is obiter. So, technically, it is, but it is considered obiter, and in my judgment we should follow it. Sergeant Herd's position was close to the line. But it seems to me clear that here the claimant took the flight because she was under instruction, and not because she wanted a flight around the hill. Indeed, as has been made clear (at paragraphs 36 and 37 of this judgment) it would have been unlawful to carry her unless she was in the second harness as a trainee pilot. Her principal objective was to learn to fly paragliders. There was no contract for carriage by air - the contract for instruction was inconsistent with it.

[55]Gauvain was followed in Canada in Johnson Estate -v- Pischke [1989] 1 S&B Av R VII 337. In that case in the Saskatchewan Queen's Bench Division there were two pilots on the flight of a light aircraft from Saskatchewan to Idaho. The trainee pilot had handed over the controls to the qualified pilot who was in command of the aircraft. It was held that D was not a passenger on the flight but was instead a student pilot and therefore did not come within the ambit of the Convention, which only gave a right of action to passengers. The court held that the trainee pilot, Dyer, did not fall within the ambit of the Convention, because he did not revert to the state of passenger when he handed over the controls:

"While the carriage of Dyer may come within Art 1(1) as having been 'performed by aircraft for reward' because he had paid for his flight training, still, he does not qualify as a 'passenger' under article 17 and only passengers or their estates are given a cause of action. Dyer was a student pilot on the flight not a passenger. Moreover when Pischke took over the controls, Dyer did not revert to the status of passenger as his lesson must be assumed as continuing. I think this interpretation is apparent from the plain meaning of the word passenger, and from the general scheme of the Convention which concerns itself with passengers, not pilots. I have drawn support for my conclusion from the decision of the French Court of Appeal case of Société Mutuelle d'Assurance Aerien c. Gauvain referred to in Georgette Miller's Liability in International Air Transport (1977) p8. While the Gauvain decision is not binding on me, it has persuasive value. There, the court ruled that a student pilot in the course of a training flight with his instructor did not come within the Convention. The court was of the view the flight was not the type of carriage which is governed by the Convention as the principal objective was quite different from that to which the Convention applied. The same could be said of Dyer's carriage, but I prefer to base my decision on the meaning of passenger and the scheme of the Convention. It is noteworthy that the argument that the student became a passenger when he relinquished control to the instructor did not prevail in Gauvain ."

[56]By a parity of reasoning Ms Disley was under instruction when she was on the flight, and it would not be right to describe her as a passenger. The objective was instruction, not carriage.

[57]Accordingly, for all those reasons, in my judgment the 1967 Order does not apply to this flight, and Ms Disley has her right of action in negligence and breach of the contract of instruction.

[58]I would dismiss this appeal.

LORD JUSTICE BUXTON:

[59]I gratefully adopt the account of the case and of the legislative provisions, and in particular of the 1967 Order and of the Warsaw Convention [the Convention] that is set out by Henry LJ. Like him, I would dismiss this appeal. I venture to add some words of my own, not least because common-sense shouts out that it is bound to be inappropriate to apply to a recreational activity a convention designed to harmonise the rules regulating commercial air transport; and it is therefore important to demonstrate that common-sense is not being used as a way of avoiding analysis. I accordingly deal briefly with the elements in the provisions of the 1967 Order that bear on the facts of this case, all of which show clearly that the Order and the Convention do not apply here. I do so against the much fuller account of the regulatory regime that is given by my Lord, and which I with equal gratitude adopt. The scope of the 1967 Order

[60]I reach the same conclusion as does my Lord, but I come to that conclusion by a somewhat different route from his. I do not consider that, on the true construction of the Convention, paragliders fall within the category of "aircraft" there referred to; and accordingly the 1967 Order, which by paragraph 4(a) thereof extends the Convention to non-international carriage, could not in any event have extended to paragliders. I should briefly set out my reasons for taking that view of the Convention and of the 1967 Order.

[61]Mr Lawson urged that the terms of the Convention must be construed "purposively". I of course accept that submission, it having been the view of, for instance, Lord Diplock in Fothergill v Monarch Airlines

[1981] AC 251

at p279C. But that approach does no more than to require the court to try to understand the function that the words are intended to perform in the context of the Convention as a whole, rather than looking at words separately in the light of their abstract dictionary definitions. The appropriate context, as Mr Lawson reminded us, was the context in which the Warsaw Convention was drawn up. The words used were indeed broad and general, to encompass all cases to which the Convention was designed to apply. But one cannot overlook that the Convention was originally for application only to international transport, and when it was applied to domestic transport by the 1967 Order its essential terms and limits, and thus its meaning, were not otherwise altered. If one asks whether those drawing up that Convention in 1929 would have thought it to apply to paragliders, the question answers itself: not because paragliders did not then exist, but because such machines could not sensibly be used as a means, and certainly not as a regular means, of international air transport. On a purposive construction of

article 1 of the Convention

, paragliders are not aircraft.

[62]Although the facts and issues in the two cases are very different, I consider that the foregoing approach to the construction of the Convention, by reading its terms in the context of the industry that it was originally formulated to regulate, is consistent with the approach of this court in Morris v KLM

[2001] EWCA Civ 790

[77], a judgment delivered after the close of argument in this case.

[63]That in my view suffices to dispose of this appeal, but I go on to review the other issues of interpretation that were argued before the judge and before us. "Carriage….for reward"

[64]Miss Disley did provide a "reward" to Mr Levine, in the shape of the £177 fee, but, as paragraphs 1 and 5 of the Agreed Statement of Facts make clear, that fee was for the course of paragliding instruction. It was not a term of Miss Disley's contract, or even a necessary expectation arising from the contractual arrangements, that she would on any occasion during the course be accompanied in the paraglider by an instructor: the Statement of Agreed Facts merely says at paragraph 11 that such an arrangement, as in the event occurred in this case, is "not unusual". I therefore agree with my Lord that on the facts of the case it is quite impossible to say that the £177 fee, or any part of it, was paid for the carriage of Miss Disley.

[65]Nor was it argued, and on the evidence it could not have been, that the flight on which the disaster occurred was in some way outside the course of instruction, as an ad hoc arrangement to meet a case where the normal procedure, of solo flying, was thought ill-advised. But if that had been an available analysis, it would merely establish that this particular flight was a gift or concession, and thus not for reward at all. "Passenger"

[66]The concept of injury to a passenger is introduced in article 17. Mr Lawson was inclined to argue that in order to come within the Convention it was not necessary to satisfy that requirement, since that question was determined by the broader terms of article 1. That contention cannot be right, since article 17 sets the limits of the Convention liability of the operator, and thus by the same token sets the limits of his Convention protection. Article 1 is in this context a framework provision, setting the outer limits of the Convention as a whole. And, in any event, the argument would seem to be precluded by authority, since in Herd v Clyde Helicopters

[1997] AC 534

both Lord Mackay and Lord Hope thought that they had to deal, as a separate issue, with the status of the plaintiff as a passenger: see in particular Lord Hope at p 554G-555B.

[67]Mr Lawson said that the test for whether a person was a passenger was whether he was on board the aircraft without contributing to the carriage of himself. He drew that from the speech of Lord Mackay in Herd , at p 542D, where he said:

"It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but….it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot, and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger."

That observation was however directed at the particular facts of Herd , where it had been argued that Sergeant Herd was not a passenger because he was empowered to give directions to the pilot as to where the helicopter should fly. In every other respect, however, Sergeant Herd was on the helicopter for the purpose of being conveyed from one place to another, albeit places that he determined while he was in the air rather than in advance when he was on the ground. He therefore fulfilled the normal understanding of the word "passenger". That is also the purposive meaning of the word when it is used in a convention directed at commercial air transport.

[68]There are two further difficulties about Mr Lawson's construction; one of practicality; and one stemming from other observations of Lord Mackay, which latter I deal with in the next section of this judgment.

[69]So far as practicality is concerned, Mr Lawson was constrained to agree that on his construction Miss Disley would not have been a "passenger" if at any stage she had operated the separate or extended controls available on a paraglider. The application of the convention to a particular operation cannot sensibly depend on accidental considerations of that nature. Even less can the convention sensibly attach to an operation in mid-flight just because the second person in the paraglider does something to the controls. There is no ground either in reason or in policy why such an erratic result should follow. Such an odd outcome is what might be produced by grim adherence to the literalistic meaning of legislative language, without regard to the purpose of the provisions. In this case, however, not only is there no legislative language to which such a meaning could attach, but also the outcome is excluded by the rule of purposive construction. The purpose of the flight

[70]That rule of purposive construction requires the concept of "passenger" to be looked at in the context of the convention as a whole. Pertinent observations were made in that connection by Lord Mackay in Herd , when addressing the French case of Gauvain . Lord Mackay said, [1997] AC at p546E "In Gauvain there was a contract of instruction between the parties as a result of which the trainee pilot was on board the aircraft at the time of the accident. This I think is sufficient to preclude application of the Warsaw Convention in so far as the operator of the aircraft had obligations to the trainee pilot over and above those of a carrier in any event….there was no arrangement of any kind between Sergeant Herd and the respondents except that of a person carried to the carrier."

[71]Lord Mackay, with the whole of whose speech the other Lords of Appeal expressed agreement, here clearly held that the convention did not apply to a relationship of "carriage" where there were other and predominant contractual arrangements between the carrier and the carried. The prime example of such a case was that of trainee and instructor. Mr Lawson said that this view, on its face fatal to his case, was obiter. I agree with my Lord that, strictly speaking, so it was; I also respectfully agree with my Lord that, albeit obiter, Lord Mackay's analysis not only carries high authority but also, with great deference, wholly respects the structure and purpose of the Convention.

[72]The point can be further demonstrated from Herd itself. The unusual feature of that case was that although the overall arrangements for the flight could not be said to be limited to a simple contract of carriage, the obligations of the carrier to the pursuer, Sergeant Herd, as opposed to the carrier's obligations to Sergeant Herd's employers, were solely those of a carrier. Those obligations were not, however, contractual : which led the appellant to argue in the House of Lords that the Convention did not apply because Sergeant Herd was on board the helicopter not in pursuance of a contract of carriage but in pursuance of his duties as a police officer. That argument was rejected by Lord Hope of Craighead on the ground that, as stated at [1997] AC at 553D, "There is nothing in the Convention to indicate that the purpose for which the passenger, baggage or cargo was on the aircraft has any bearing on the question whether the Convention applies."

[73]Mr Lawson sought to generalise that observation into a holding that the general nature of the relationship between carrier and carried was irrelevant, provided it could be said that the claimant was a "passenger" on an "aircraft". There are significant difficulties about that argument, quite apart from the fact that Lord Hope's statement does not read as if it were intended to operate at the level of generality claimed for it. First, it is inconsistent with the analysis of Lord Mackay already cited, with whose reasons Lord Hope said he agreed. Second, even taking Lord Hope's statement in its literal terms, it requires the claimant to have been a "passenger". When Lord Hope turned to that issue, and away from the question that he had been principally addressing of the implications of the presence or absence of a contract of carriage, he cited without criticism the use made of Gauvain by Halverson J in Johnson v Pischke 1 S&B Av R VII 337. He could not have done that had he thought, contrary to the view of Lord Mackay, that the Convention does extend to a contract of instruction.

[74]Quite apart from the considerations that I have already advanced, therefore, the treatment of Gauvain in Herd is fatal to this appeal. MR

JUSTICE BODEY:

[75]For the reasons set out in the judgments of Henry and Buxton LJJ, I too would dismiss this appeal.

ORDER

Appeal dismissed; parties agreed that the defendant should pay the claimant's costs here and below, to be the subject of a detailed assessment if not agreed, and that the defendant should make a payment on account of those costs in the sum of £20,000 pending the detailed assessment; attendance of parties today dispensed with by the court in the interest of saving costs. (Order does not form part of approved Judgment)