Carriage by air - Carriage of passengers - International carriage

Stott v Thomas Cook Tour Operators Ltd; Hook (by his litigation friend Gillian Hook) v British Airways plc: Court of Appeal, Civil Division (Lords Justice Maurice Kay, Sullivan and Dame Janet Smith): 7 February 2012

The claimants in separate and unrelated cases, H and S, were disabled persons. They brought proceedings against two defendant airlines, TC and BA, complaining of injury to feelings as a result of failure to meet seating needs pursuant to promises made at the time of booking. The central issue in the cases was the relationship between, on the one hand, Regulation (EC) 1107/2006 (concerning the rights of disabled persons with reduced mobility when travelling by air) (the EC disability regulation) and the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007, SI 2007/1895 (the UK disability regulations) and, on the other hand, Council Regulation (EC) 2027/97 (on air carrier liability in the event of accidents) (the first EC regulation) as amended by Regulation (EC) No 889/2002 (the Montreal regulation).

The relevant provisions of the Montreal Convention of 28 May 1999 were articles 17 and 29, which provided as follows: 'Article 17 - ... The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.' Article 29 stated: 'In the carriage of passengers... any action for damages, ... can only be brought subject to the conditions and such limits of liability as are set out in this Convention... In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.'

The Montreal regulation incorporated the Montreal Convention into European Union law. The EC disability regulation contained article 10 in relation to assistance to air carriers and article 16 in relation to penalties. The UK disability regulations contained regulation 9 in relation to compensation claims for disabled persons (see [3] of the judgment). In S's proceedings against TC, the judge granted a declaration that TC had breached S's rights under the EC disability regulation but dismissed the claim for damages by reference to the Montreal Convention.

But for the Montreal Convention, the judge would have awarded damages in the sum of £2,500 for injury to feelings but would have made no award of aggravated damages. S appealed against the rejection of the claim for damages. H's claim for damages and a declaration pursuant to the EC disability regulation and the UK disability regulations, were struck out on an application by BA. H's appeal was dismissed and he appealed again.

The principal submission for BA and TC was that H and S's cases transgressed the principle of exclusivity established by article 29 of the Montreal Convention and illustrated by Sidhu v British Airways ([1997] 1 All ER 193) (namely where there was a uniform international code dealing with the liability of the international carrier, which could be applied by all the contracting parties without reference to the rules of their own domestic law, that code provided the exclusive cause of action and sole remedy for a passenger who claimed for loss, injury and damage sustained in the course of, or arising out of, international carriage by air notwithstanding that that might leave claimants without a remedy).

S and H submitted, inter alia, that the EC disability regulation was made to give effect to fundamental rights, such as to make provision for actions for damages including damages for injury to feelings, and to give access to air travel for disabled persons which they would not otherwise have and that each member state had to provide disabled persons with an effective, proportionate and dissuasive remedy for breach of the EC disability regulation.

The Montreal Convention and the Montreal regulation were irrelevant to the claimant's claims because they were simply not concerned with the subject-matter of the EC disability regulation. The principle of exclusivity did not have the effect for which it had been cited, and the reach and effect of the Montreal regulation had been overextended. Alternatively, the Montreal regulation could not overrule the requirements of the EC disability regulations being later in time and made to give effect to fundamental rights. The appeals would be dismissed.

It was abundantly clear from domestic authorities that, 'in those cases with which it deals', the Montreal Convention had exclusivity in domestic law. Authorities from other jurisdictions showed a consistent approach, unequivocally applying the exclusivity principle and doing so in an expansive way (see [44], [36] of the judgment). The case for H and S was unsustainable. The real injuries to their feelings had been sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed (see [54] of the judgment).

Sidhu v British Airways plc [1997] 1 All ER 193 applied; Applications of the International Air Transport Association (IATA), Re [1992] 5 CMLR 496 considered; Chaudhari v British Airways plc (1997) Times, 7 May considered; Axel Walz v Clickair SA: C-63/09 [2010] All ER (D) 53 (May) considered.

Decision of Supperstone J [2011] All ER (D) 273 (Feb) affirmed.

Robin Allen QC and Catherine Casserley (instructed by Equality and Human Rights Commission) for the claimants; John Kimbell (instructed by Customer Legal Department, Thomas Cook Tour Operations Ltd) for TC; John Kimbell (instructed by DLA Piper UK LLP) for BA; Kassie Smith for the intervener