„(…) MR JUSTICE KEARNS
1. These proceedings arise out of an accident which occurred in Austria on
June 7, 1999 when the plaintiff's husband Alan D. died while on a white
river rafting trip. The tragedy occurred during the course of a "lakes and
mountains" holiday which the plaintiff had purchased in May 1999 from
the first named defendants who are travel agents based and registered in
Ireland.
2. On arrival to their hotel in Austria, the plaintiff and Alan D. were
given a welcome pack containing a brochure entitled "C. H. Welcome to
Austria Zell Am See". The brochure indicated that a white water rafting
trip could be purchased by customers who would be looked after by
experienced rafters and further introduced Jake A. and Karin G. as the
Irish defendants' representatives at the resort. The following morning,
the plaintiff and Alan D. attended a welcome meeting where Jake A. and
Karin G., wearing C. H. uniforms, encouraged holiday makers to sign up
for various trips and activities, including river rafting. The deceased opted
to take such a trip, which was to be provided by the second to fourth
named defendants ("the Austrian defendants"). Some days later, Alan D.
attended at the river rafting centre run by the Austrian defendants. In the
course of the trip, Alan D. and several other holiday makers were drowned
when the raft in which they were travelling under the guidance of a rafting
guide provided by the Austrian defendants, failed to complete a landing
manoeuvre prior to a weir which it had been intended to by-pass on land
and were in fact swept over the weir. Both the guide, Gottfried E. and
Trevor H., the operator, have been convicted of manslaughter in Austria
arising out of the incident.
3. The present application is one brought on behalf of the Austrian
defendants contesting the jurisdiction of the High Court to hear and
determine the plaintiff's claim against them. At the outset of the hearing
before this court, the Irish defendants, being the travel agents through
whose office or agency the holiday was booked, were also joined as a
notice party to the application.
4. The plenary summons was issued on the March 9, 2001. An
appearance was entered on behalf of the Irish defendants on May 3,
2001. A statement of claim was delivered on the January 31, 2002.
5. It is appropriate to summarise the claims pleaded against both
defendants.
The following claims in contract are made against the Irish defendants:
(a) That the Irish defendants' representative or agent would provide help
and advice to Alan D.,
(b) That the Irish defendants would act with reasonable skill and care in
and about the services provided for, arranged for or offered to Alan D.
by the defendants, their servants or agents (who included Jake A., Karin
G. and the Austrian defendants) as part of or in connection with the said
holiday, the river rafting being such a service,
(c) that the Irish defendants would ensure that the services provided
would be supplied by persons of reasonable competence and skill.
6. A further claim in tort against the Irish defendants was advanced to
the effect that the Irish defendants owed a duty of care to Alan D. to
ensure that their servants or agents would act with reasonable skill and
care in and about the services provided, including the said river rafting
service. It is further pleaded that the Irish defendants are liable for the
improper performance of their obligations under and by virtue of s.20
of the Package Holidays and Travel Trade Act, 1995. From the affidavit
evidence it further appears that the Irish defendants took a commission
on the purchase of the river rafting trip.
7. Claims in tort and contract are made against the Austrian defendants.
It is alleged that the Austrian defendants entered into a contract to bring
Alan D. on a river rafting trip and that it was an implied term thereof that
the Austrian defendants would act with reasonable skill and care in its
conduct. It is alleged that this duty was breached when, inter alia, the
Austrian defendants failed to warn Alan D. of the dangers associated with
the trip, chose to disembark at a point which was known to be unsafe by
reason of the occurrence there of two previous fatal accidents and failed
to take any adequate steps to see that the guide on the river trip and
other staff involved were of reasonable competence and experience.
Similar allegations are relied upon in alleging negligence against the
Austrian defendants.
8. It is further alleged against both the Irish and Austrian defendants
that Jake A. and Karin G., acting as servants or agents of either the Irish
or Austrian defendants or both, made negligent misrepresentations as
to the safety of the river trip to Alan D.; alternatively, the servants or
agents of the Irish and Austrian defendants are alleged to have made
negligent misrepresentations as to the safety of the trip in the "welcome"
document.
Summary of the Arguments
9. On behalf of the Austrian defendants, Mr. Ian Finlay S.C. submitted
that Art.6(1) of the Brussels Convention 1968, upon which the plaintiff
relies to establish the jurisdiction of the Irish Courts, must be read in
conjunction with the interpretation given to it by the European Court of
Justice in Kalfelis v Bankhaus Schroder
10. Article 6(1) of the Convention states:
"A person domiciled in a Contracting State may also be sued where he is
one of a number of defendants, in the Courts for the place where any one
of them is domiciled."
11 Kalfelis required that, as an additional requirement to found
jurisdiction, the claims must be so closely connected that it is expedient
to hear and determine them together to avoid the risk of irreconcilable
judgments resulting from separate proceedings. This requirement was
later incorporated into Art.6 of Council Regulation 44/2001.
12. Looking at the facts of this case, Mr. Finlay submitted that the factors
connected with the particular event, namely the death of Alan D., are all
located in Austria:
The place of the accident is in Austria.
The Austrian defendants, not the Irish defendants, were the operators of
the raft.
Alan D. booked the rafting tour with the Austrian representatives of the
Irish defendants once he was in Austria.
The legal rules applicable to white water rafting on the Salzach River are
Austrian.
13 Mr. Finlay submitted that the case made by or on behalf of the plaintiff
against the Irish defendants is essentially one in Irish contract law and
the 1995 Act. While the plaintiff had also pleaded negligence as against
the first defendant, careful analysis of the pleadings and claims advanced
therein revealed that the negligence pleas are "make-weights".
14. That being so, he submitted that there was no real risk of
irreconcilable judgments resulting from separate proceedings in different
jurisdictions. Mr. Finlay further relied on the case of Reunion Europeenne
SA v Spliethoff's Bevrachtings Kantoor BV as authority for the proposition
that where there are two claims in one action for compensation, directed
against different defendants and based in one instance on contractual
liability and in the other on liability in tort or delict, they cannot be
regarded as connected. In reality, he said, the claim against the first
defendants in this case, was in contract only, and in negligence only
insofar as the Austrian defendants are concerned.
15. The submissions in reply made on behalf of the plaintiff, Mr. Shane
Murphy S.C. and the Irish defendants, by Mr. David Barniville B.L., were
identical and may thus by summarised together.
16. They submit that on the basis of the claims pleaded in the statement
of claim a clear connection and substantial overlap can be identified as
between the claims made against the Irish defendants and the Austrian
defendants. Further, there was no suggestion in the instant case that
the Irish defendants had been introduced in some artificial way to the
proceedings so as to oust the jurisdiction of the Austrian Court.
17. On the contrary, the statement of claim and evidence adduced on
behalf of the plaintiff in the affidavits filed establish, it was submitted, a
prima facie case in contract and in tort against the Irish defendants and a
prima facie case that the alleged breach of contract and alleged tortious
conduct on the part of the Irish defendants caused the alleged loss and
damage sustained by the plaintiff. This claim, though prima facie, was
plausible, even though the Irish defendants denied in full any liability in
respect of the accident and the alleged loss and damage sustained by the
plaintiff.
18. The Austrian defendants had argued that no contract existed between
those defendants and the deceased. However, having regard to the
affidavits exchanged between the parties, it was clear that this was an
issue which was in dispute and which could not be resolved on affidavit
evidence. All that was necessary at this stage was to establish a "good
arguable case", a test applied by the Supreme Court where disputed facts
exist in a challenge to jurisdiction under Order 11 of the Rules of the
Superior Courts. Even if the plaintiff had not established a "good arguable
case" that a contract existed with the Austrian defendants, that was not
of itself sufficient to deprive the plaintiff of reliance on Art.6(1). In making
this submission, the Austrian defendants had relied upon the decision of
the Court of the ECJ in the Reunion case. However, that case was clearly
distinguishable because the essential finding of the Court in that case on
Art.6(1) was that the defendant whose domicile was relied on to ground
jurisdiction under the Article was not in fact domiciled in a Contracting
State.
19 The plaintiff's claim for jurisdiction before this Court is based on
the provisions of the Convention on Jurisdiction and Enforcement of
Judgments in Civil and Commercial Matters signed at Brussels on
September 27, 1968 as enacted by s.3 of the Jurisdiction of Courts and
Enforcement of Judgments (European Communities) Act, 1988.
20. The primary provision in relation to jurisdiction in the Convention is
set out in Article 2 thereof which provides:
"Subject to the provisions of this Convention, persons domiciled in a
Contracting State shall, whatever their nationality, be sued in the courts
of that State." Article 6 provides an exception to the foregoing general
principle as follows:
"A person domiciled in a Contracting State may also be sued:
1. Where he is one of a number of defendants, in the courts for the place
where any one of them is domiciled;"
21. Article 6.1 of the Brussels Convention has been the subject matter
of interpretation by the European Court of Justice in Kalfelis v Bankhaus
Schro der, Munchmeyer, Hengst and Co.
22. It was there held that:
"The rule laid down in Art.6(1) therefore applies where the actions
brought against the various defendants are related when the proceedings
are instituted, that is to say where it is expedient to hear and determine
them together in order to avoid the risk of irreconcilable judgments
resulting from separate proceedings. It is for the national court to verify in
each individual case whether that condition is satisfied."
23. In Gannon v British and Irish Steampacket Company Limited and
Others, the Supreme Court dealt with the approach which a national court
should adopt in dealing with an application of this nature. At pp.374-5
Finlay C.J. identified the enquiry that the Court should conduct in stating
the following:
"Having regard to the importance of the principle laid down that the
provision of this Convention vesting jurisdiction in the courts of the
State of the defendant's domicile must not be called in question by any
interpretation of the derogation or exception contained in Art.6(1), it
seems to me that the court in considering a claim for jurisdiction made to
it under Art.6(1) must closely enquire not only as to the making of a claim
against a defendant domiciled in this jurisdiction but must also enquire as
to the plausibility of such a claim in a prima facie fashion."
24. In such a case the Court must conduct an enquiry
"... as to whether on any facts deposed to concerning the circumstances
out of which the claims arise, there are any grounds for saying that a
breach by B and I of any obligation they had concerning the 'selection,
choice and instruction of the driver and the coach' could have contributed
to the events which are alleged to have caused the plaintiff injury and
damage."
25 It is not sufficient, therefore, merely to assert the possibility of a
breach of an implied obligation but the plaintiff must satisfy the Court on
facts deposed to concerning the circumstances out of which the claims
arise that there are in fact grounds for alleging a breach by the Irish
domiciled company which could have contributed to the plaintiff's injuries.
26 In a case which bears many similarities to the present application,
O'Sullivan J. in Magee v JWT Limited Associete Holding Imberte upheld
the claim to jurisdiction on the part of the plaintiff.
27 In that case, the plaintiff had claimed damages for personal injuries
suffered by her as a result of a fall on the allegedly slippy floor of a
bathroom attached to her bedroom in a hotel in Lourdes operated by the
second named defendant where she was staying on a holiday booked on
her behalf by the first named defendant as travel agents on her behalf.
The first named defendant was a company domiciled in Ireland, whereas
the second named defendant was a company domiciled in France.
28 The learned judge carried out an analysis of the plaintiff's claim
against the Irish defendant, applying the principles enunciated by the
Supreme Court in Gannon v British and Irish Steampacket Company,
stating as follows:
"In the present case the plaintiff's precise case appears to be that she
slipped on a floor which was made slippy because the shower splashed
onto it which would not have happened if there had been a shower curtain
(which by inference there was not). Furthermore, the floor was not an
anti-slip floor as it should have been. The first defendant as travel agent,
being aware in particular, that the group contained invalids and elderly
persons (the plaintiff gave her age as 55 years on the application form)
was under a specific duty to ensure that the hotel booked was safe and
suitable for such a group and in particular to ensure that any bathroom
floors would have a non-slip surface and that showers would be equipped
with shower curtains.
The affidavit filed on behalf of the plaintiff on this aspect of the application
was sworn by her solicitor Kieran McLochlainn. Although he does not
actually state that there was no shower curtain and no anti-slip floor, he
does refer to the pleadings where these deficiencies are alleged and does
say that the plaintiff's case is that, inter alia, the wet floor caused her to
fall and suffered the personal injury detailed in the Statement of Claim.
It is clear from this affidavit that the plaintiff's evidence will be that there
was no anti-slip floor and no shower curtain in the hotel bathroom and
that this caused or contributed to her fall."
29. Having considered the case of McKenna v Best Travel Limited wherein
the Supreme Court identified the obligations of a travel agent as being
to take all reasonable steps to ensure the safety and well-being of their
customers, O'Sullivan J. asked himself the following question:--
"Applying these decisions of the Supreme Court to the present case
I ask the question are there any plausible prima facie grounds of any
description for suggesting that the hotel was of such a kind or was in
such a condition that it would be unsafe for the plaintiffs? In my opinion,
such prima facie grounds do exist and therefore having regard to the test
indicated (particularly at p.375) by the Supreme Court in Gannon v B.
and I Steampacket Company Limited I hold that the plaintiff is entitled to
maintain these proceedings against the first defendant in this jurisdiction
and that being the case under Art.6(1) of the Convention is also entitled
to join the second defendant as a co-defendant in these proceedings."
30. I cannot see that any different principle applies in the instant case.
At the outset, it may be noted that there is no suggestion or claim made
by or on behalf of the Austrian defendants that the joinder in these
proceedings of the Irish defendants was done for the purpose of ousting
the jurisdiction of the Austrian court. Mr. Finlay as Counsel on behalf of
the Austrian defendants expressly resiled from any such proposition. I am
satisfied from reading the grounding affidavit of Gerard Maguire, solicitor
for the plaintiff, that a plausible prima facie case does lie against the first
named defendant in these proceedings. At para.6 of his affidavit, the
deponent states:--
"Liability is alleged against the first named defendant and the second
named defendant on a substantial number of grounds in contract and
tort, and pursuant to the Package Holidays and Travel Trade Act, 1995.
It is alleged, inter alia, as against the first named defendant that it failed
to check the competence of the persons involved in guiding the trip and
warn the plaintiff and/or Alan D. of the dangers posed by the trip."
31. At para.10 of his supplementary affidavit sworn on the July 18, 2002,
the same deponent avers:
"Identical issues of fact arise from the plaintiff's claim against the Irish
defendants and the plaintiff's claim against the Austrian defendants. By
way of illustration, at para.21 of the Statement of Claim it is alleged that
the Irish defendant was in breach of contract and negligent in that it
failed:
(1) to check the safety of the white river rafting facilities,
(2) to check the competence of the persons involved in guiding the white
river rafting trip, and
(3) to warn the deceased of the dangers of white river rafting on the river
Salzach."
32 At para.11 of the same affidavit, it is alleged that the Austrian
defendants were in breach of contract and negligent in that they:
"(1) chose to disembark at a point where it was known to be unsafe by
reason of the occurrence there of two previous fatal accidents,
(2) failed to take any, or any adequate steps, to see that the guide on the
river trip was of reasonable competence and
(3) failed to warn the deceased of the dangers posed by the white river
rafting trip."
33. It is undeniable that the same set of facts fall for consideration
by any court in dealing with these claims. There seems to me to be a
considerable overlap of issues as between the claims against the Irish
defendants and the Austrian defendants. The court of trial will ultimately
have to determine whether Jake A. and Karin G. were acting on behalf
of the Irish defendants or the Austrian defendants, or both. Further, the
Irish defendant may have a liability under s.20 of the Package Holidays
and Travel Trade Act, 1995 for the proper performance of its obligations
under the contract, irrespective of whether such obligations were to be
performed by the Austrian defendants as supplier of the river rafting
service.
34. For the purposes of this application, the Court has little difficulty in
finding that the claims against the respective defendants are so closely
connected that it is expedient to hear and determine them together
to avoid the risk of irreconcilable judgments resulting from separate
proceedings in different jurisdictions.
35. It is against the background of those findings and conclusions that
the Court must also consider whether any different situation may be said
to exist as a result of the decision of the European Court of Justice in
Reunion Europe enne SA v. Spliethoff's Bevrachtings Kantoor BV.
36. Mr. Finlay relied upon this case as an authority for the proposition
that where there are two claims in one action for compensation, directed
against different defendants and based in one instance on contractual
liability and in the other on liability in tort or delict the claims cannot be
regarded as connected.
37. However, the ruling in Reunion refers to a completely different
situation. In Reunion the French plaintiff sued in France an Australian
defendant relying on contract, and two Dutch defendants relying on
tort, all the claims arising out of damage to goods being transported
from Australia to the Netherlands and then on to France. The Brussels
Convention has no application to defendants not domiciled in the EU and
so the French courts took jurisdiction over the Australian defendants using
their own national jurisdictional rules. The plaintiff argued, inter alia,
that, as the case against the parties was so linked as to be indivisible,
the claims against the Dutch defendants should be heard in France as
well. In dealing with this point, the Court noted that Art.6(1) was plainly
inapplicable as the "home" defendant was not domiciled in a Contracting
State:
"44. As is clear from the very wording of Art.6(1), it applies only if the
proceedings in question are brought before the courts for the place where
one of the defendants is domiciled.
45. That is not the case here".
38. The Court of Justice then discussed whether the requirement that
the primary defendant be domiciled in a Contracting State for the joinder
of connected claims might be departed from where the claims were not
merely connected, but indivisible. The court rejected that there was any
such possibility under any of the provisions of the Convention and gave
its ruling in respect of Art.6(1) in terms expressly based on the situation
where the primary defendant is not domiciled in a Member State.
At para.50 the Court stated:
"It follows that two claims in one action for compensation directed against
different defendants and based in one instance on contractual liability
and in the other on liability and tort or delict, cannot be regarded as
connected."
39. If this paragraph is to be treated as laying down a broad principle
in cases properly falling under Art.6(1), it is surprising that the Court
did not so state. In that case it was, in fact, dealing with a case under
Art.5 of the Convention. If Mr. Finlay is correct, the result would be to
completely reverse Kalfelis by moving the test from one of a risk of
conflicting findings to one of similarity of claims. There is no suggestion
that the Court in Reunion had any such radical intention. In any event, I
do not believe the instant case lends itself to any sort of characterisation
of the claim against the Irish defendant being one exclusively in contract
and that against the Austrian defendant being one exclusively in tort.
40. For these various reasons, I refuse the application. (…)“