Nugent & Anor v Michael Goss Aviation Ltd & Ors

Article 25 of the Warsaw Convention requires proof of both recklessness and actual knowledge, at the time of the relevant act or omission, that the type of damage caused would probably result. Imputed knowledge, or knowledge which would have been apparent had the carrier addressed its mind to the matter, is insufficient. The provision is deliberately narrow, particularly in cases of pilot error, although it may apply to exceptionally reckless conduct and to cargo, baggage, cabin-crew, ground-staff or maintenance cases. A pleading which alleges only that the pilot ought to have appreciated the probable consequences, without facts capable of supporting the necessary inference, may properly be struck out.

The claimants, as executors of a passenger killed in a helicopter crash, claimed damages under the Fatal Accidents Act 1976. The carrier and the pilot’s estate accepted liability under Article 17 of the Warsaw Convention but relied on the Article 22 limitation.

The Master struck out the pleaded Article 25 case. Burton J refused a re-amendment and entered judgment limited to approximately £80,000, holding that Article 25 required actual appreciation at the time of the conduct that death or serious injury would probably result. The claimants appealed, arguing that background knowledge or knowledge which would have been apparent if the pilot had considered the matter was sufficient, and that the pleading should proceed to trial.

1. Appeal dismissed. The Court unanimously held that the claimants’ pleaded case was unsustainable and that striking out was appropriate under both the former RSC regime and the CPR.
2. Lord Justice Auld, whose reasoning was adopted by Dyson J, held that the words in Article 25 require actual knowledge in the sense of appreciation or awareness, existing at the time of the relevant conduct, that it would probably cause the type of damage which occurred. Nothing less suffices. Knowledge which the pilot ought to have had, or which would have emerged had he addressed his mind to the matter, is imputed knowledge and does not satisfy the Article.
3. Goldman v Thai Airways [1983] 1 WLR 1186 and Gurtner v Beaton [1993] 2 Ll. 369 were binding and supported that construction. The phrase “if the risk materialises” could not be added to Article 25. Recklessness and knowledge of probable damage are distinct requirements, although the obviousness of the risk may assist the tribunal in drawing inferences about both states of mind.
4. The amendment made at the 1955/6 Hague Conference demonstrated an intention to reject imputed knowledge and to confine the exception to the damages limit narrowly. In pilot-error cases, the necessary combination of recklessness and actual knowledge would be rare and generally require an extreme case in which the pilot appreciated that serious injury or death was probably going to result.
5. The pleaded allegations of poor preparation, inadequate training, unfamiliarity with equipment and tiredness did not identify facts capable of supporting the required inference. The claim was also inadequately particularised and lacked a credible case on causation. Pill LJ would have interpreted “knowledge” more broadly to include a pilot’s fund of training and experience, but agreed that the appeal failed even on that approach.

Order: appeal dismissed with costs; interim payment of £35,000 towards the respondents’ costs; leave to appeal to the House of Lords refused.

• Court of Appeal (Civil Division): Nugent & Anor v Michael Goss Aviation Ltd & Ors [2000] EWCA Civ 130. Appeal from Burton J’s order dismissing the proposed Article 25 case and limiting judgment to approximately £80,000. Appeal dismissed with costs.
• Queen’s Bench Division: Burton J, 2 March 1999. Upholding the Master’s strike-out order, refusing leave to re-amend and entering judgment against the first and second defendants limited to the Article 22 amount.
• Master Ungley: Struck out the paragraphs pleading the Article 25 case.