Disley v Levine

The Carriage by Air Acts (Application of Provisions) Order 1967 does not govern a tandem-paraglider training flight. Its provisions must be construed purposively, in the context of legislation directed to commercial air transport. A recreational, non-power-driven paraglider exempt from the principal regulatory requirements for commercial aircraft is outside that regime. A fee paid for a course of instruction is not reward for carriage merely because an instructional flight forms part of the course. A trainee pilot whose predominant relationship with the operator is instructional is not a passenger under the Order where the flight is undertaken for training rather than transportation.

The claimant suffered serious injuries during a tandem-paraglider flight conducted by the defendant as part of a paid elementary pilot-training course. She brought claims in negligence and for breach of the implied contractual term to provide instruction with reasonable care and skill.

At a preliminary trial, Hunt J held that the 1967 Order did not apply, that the claim was not statute-barred under it, and that the defendant owed an additional or distinct duty of care arising from the instructor-trainee relationship. The defendant appealed the findings concerning the scope of the Order and the existence of that distinct duty, while conceding limitation was not established. The central issues were whether the paraglider was an aircraft, whether the flight was carriage for reward, and whether the claimant was a passenger.

1. Appeal dismissed. The 1967 Order did not apply to the flight. The claimant therefore retained her common-law negligence claim and her contractual claim arising from the instruction agreement.
2. Henry LJ held that the relevant question was what categories of non-Convention carriage Parliament could reasonably have contemplated as the subject of United Kingdom legislation. The Order, read in its civil-aviation context, was directed to commercial air transport. The regulatory exemptions applicable to gliders and paragliders, including exemption from registration, air operator certification and certificates of airworthiness in the relevant circumstances, reinforced that conclusion.
3. Buxton LJ reached the same result by construing the Warsaw Convention and the Order purposively. The Convention concerned commercial air transport, and a paraglider could not sensibly have been regarded as a regular means of international air transport when the Convention was formulated. The concept of aircraft therefore did not extend to paragliders in this context.
4. The £177 payment was for the course of paragliding instruction. It was not payment for carriage. The flight occurred because the claimant was receiving instruction, and the fact that the course fee was a lump sum did not alter the character of the payment.
5. The claimant was not a passenger. She was taking part in a training flight as a pilot under instruction. The predominant contractual relationship was instructional, not one of carriage, and her participation in take-off and landing further demonstrated that she was part of the operating activity rather than a transported passenger. The court followed the relevant obiter analysis in Herd v Clyde Helicopters Ltd [1997] AC 534 and the reasoning in Société Mutuelle d'Assurance Aerien c. Veuve Gauvain [1967] 21 RFDA 436.
6. The defendant was ordered to pay the claimant's costs in the Court of Appeal and below, with a payment on account of £20,000 pending detailed assessment.

• Court of Appeal: Appeal from the preliminary findings of Hunt J was dismissed. The defendant conceded that the claim was not statute-barred under the 1967 Order.
• High Court, Queen's Bench Division: Hunt J answered the issues in the claimant's favour, holding that the 1967 Order did not apply and that the defendant owed an additional or distinct duty of care arising from the instructor-trainee relationship.