Please stow your rights in the overhead compartment

9 February 2012 by Rosalind English

Stott v Thomas Cook Operators and British Airways Plc [2012] EWCA Civ 66 – read judgment

If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight.  Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.

The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.

Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.

This case demonstrates that, in spite of an array of fierce consumerist legislation, air passengers have no cause of action for damages if their feelings are injured in the course of boarding.

The claimants

Mr Stott was not allowed to sit next to his wife, who was responsible, amongst other things, for catheterising him. As he boarded the plane, his wheelchair overturned and he fell to the cabin floor. the judge granted a declaration that Thomas Cook had breached Mr Stott’s rights under the EC Disability Regulation but dismissed the claim for damages by reference to the Montreal Convention. Thomas Cook does not challenge the declaration, but Mr Stott appeals against the rejection of the claim for damages. But for the Montreal Convention, the judge would have awarded damages in the sum of £2,500 for injury to feelings.

Mr Hook suffers from mobility and learning disabilities. On 26 July 2008, accompanied by members of his family, he flew with BA from Gatwick to Paphos, returning on 10 August. On both flights seating arrangements which had been promised by BA in advance did not materialise. As a result his needs as a disabled person were not met. This created difficulties for him and his family. They all found the flights very distressing and they have resolved not to fly again. In response to Mr Hook’s claim for damages and a declaration pursuant to the EC Disability Regulation and the UK Disability Regulations, BA was able to strike out the damages claim by reference to the Montreal Convention.

European Rights versus International Aviation

The problem is, as ever with European legislation, is that it does not speak with one voice. In 2006, a regulation was introduced to deal with claims by disabled passengers, which required immediate implementation into domestic law, duly enacted by the UK in the  Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007. As the judge puts it

…the battle lines are drawn. BA and Thomas Cook seek to rely on the Montreal Convention and its reception into EU law by the Montreal Regulation. Mr Hook and Mr Stott seek to rely on the EC Disability Regulation and Regulation 9 of the UK Disability Regulations. The Montreal regime is part of a longstanding internationally agreed structure which includes restrictions and limitations on liability. The EC Disability Regulation and the UK Disability Regulations are part of a European innovation in the field of anti-discrimination legislation.

In this appeal the claimants, supported by the intervening secretary of state, contended that the Regulation and the Regulations were complementary to the Montreal Convention and that as they concerned the prevention of disability discrimination, which the Montreal Convention was not concerned with, they were entitled to claim damages for injuries to feelings that arose through a breach of their rights as disabled air passengers. Their appeals were dismissed.

The Court’s reasoning

It was clear from the authorities (Abnett v British Airways Plc [1997] A.C. 430 and Barclay v British Airways Plc [2008] EWCA Civ 1419) that  the Montreal Convention had exclusivity in domestic law. At its highest, the appellants’ case was that protection against discrimination on grounds of disability was a fundamental right recognised by EU law and which had to be effectively enforced. However, the Regulation did not say that a compensatory remedy was mandatory. The emphasis under it and the Regulations was on penalties.  In the United Kingdom reg.3 and reg.4 of the Regulations provided a criminal sanction for breach of the obligations imposed by the Regulation with the Civil Aviation Authority as the designated enforcement body.  Such combinations of criminal sanctions and administrative complaints machinery did not conflict with the Montreal Convention which was solely concerned with civil liability and damages. It could not be said that only by permitting a civil claim for damages for injury to feelings was it possible to ensure that the rights created by the Regulation and its enforcement were effective, proportionate and dissuasive. It was incumbent on the court to construe EU and domestic legislation so as to avoid a conflict with the Montreal Convention. That militated strongly against a conclusion that, in order to be effective, proportionate and dissuasive the remedial structure had to embrace something which would bring it into conflict with the Montreal Convention. It was impossible to conclude that the Regulation and the Regulations represented a new departure in protective legislation which now occupied legal space left vacant by the Montreal Convention. Once one was within the timeline and space governed by the Convention, it was the governing instrument in international, European and domestic law. It was open to the EU and domestic legislatures to develop the law in relation to such things as the improvement of access for disabled passengers and assistance to passengers affected by delays or cancellations, provided that they did not trespass into the domain of the Convention; which they had. In identifying that domain, it was not appropriate to apply a novel approach to the construction of the Convention by reference to a perceived second strand or sea change in the European instruments. Accordingly the real injuries to the appellants’ feelings were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies; their claims for compensation for injury to feelings could not succeed.

So, International Aviation – 1, Passengers – Nil. The position is aptly summed up in a US passenger compensation case, in which the Judge Sotomayar referred to a submission on behalf of the plaintiffs that a decision against them would “open the doors to blatant discrimination aboard … flights, invoking images of airline passengers segregated according to race and without legal recourse”. In rejecting the submission, she referred to the case of Turturro, 128 F. Supp 2d at 181, and cited this passage:

The [Montreal] Convention massively curtails damages awards for victims of horrible acts of terrorism; the fact that the Convention also abridges recovery for … discrimination should not surprise anyone.

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