Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15
Supreme Court of the United Kingdom
Facts
At [7]:
I take the following summary of the facts from the judgment of the trial judge, Recorder Atherton, delivered on 19 January 2011 in the Manchester County Court:
“4. On 12 September 2008 Mr Stott booked with the defendant to fly from East Midlands Airport to Zante, departing 22 September and returning 29 September 2008. Soon after making the booking on the internet he telephoned the defendant’s helpline to advise that he had booked and paid to be seated next to his wife on both flights. He called the helpline again on 19 September and was assured that he and his wife would be seated together.
5. The outward flight went reasonably according to plan but sadly the return journey did not. Mr and Mrs Stott encountered many difficulties at the airport in Zante. At check-in they were told they would not be seated together. In response to their protestations the supervisor eventually told them that their problem would be sorted out at the departure gate. When they arrived at the departure gate their expectations were unfulfilled. They were told that other passengers had already boarded and the seat allocations could not be changed.
6. When boarding the aircraft from an ambulift, matters got much worse. As he entered the aircraft, Mr Stott’s wheelchair overturned and he fell to the cabin floor. Those present appeared not to know how to deal with the situation. Mr Stott felt extremely embarrassed, humiliated and angry and his wife, who had recently suffered serious ill-health herself, was also very distressed at the chaotic scenes.
7. Eventually Mr Stott was assisted into his aisle seat in the front row and his wife was seated behind him. This arrangement caused them considerable difficulties in that it was difficult for Mrs Stott to assist her husband with his catheterisation, catheter bags, food and movement during the three hour twenty minute flight.
8. The defendant’s cabin crew apparently made no attempt to ease their difficulties. They made no requests of other passengers to enable Mr and Mrs Stott to sit together. From time to time during the flight she had to kneel or crouch in the aisle to attend to her husband’s personal needs and inevitably she obstructed the cabin crew and other passengers as they made their way up and down the aisle. It was, therefore, a very unhappy experience for them.”
Issue(s)
At [1] to [3]:
[1] This appeal arises from a sorry case of a serious failure by an air tour operator to see that proper provision was made for the needs of a disabled passenger, contrary to the requirements of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (“the UK Disability Regulations”).
[2] The UK Disability Regulations implement Regulation (EC) No 1107/2006 of the European Parliament and the Council concerning the rights of disabled persons and persons with reduced mobility when travelling by air (“the EC Disability Regulation”).
[3] The issue is whether a court may award damages for a claimant’s discomfort and injury to feelings caused by a breach of the UK Disability Regulations. The conclusion of the courts below was that any such award is precluded by the Montreal Convention, as adopted in the EU by the Montreal Regulation (or, to use its full title, “Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, as amended by Parliament and Council Regulation (EC) No 889/2002”).
Discussion
At [8]:
[8] Mr Stott brought a claim under the UK Disability Regulations for a declaration that the respondent’s treatment of him was in breach of its duty under the EC Disability Regulation, in that it had failed to make all reasonable efforts to give his wife a seat next to him, together with damages including aggravated damages. The recorder made such a declaration, and there has been no appeal against it. He found that Mr Stott had suffered injury to his feelings, for which he said that he would have awarded £2,500 as compensation (taking into account the duration of the flight), if it had been open to him to do so. However, he concluded that he had no power to make such an award, by reason of the Montreal Convention.
At [56] to [66]:
[56] It is convenient to begin by clearing the ground. There is no dispute about the meaning of the EC Disability Regulation or its compatibility with the Montreal Convention, to which the EU is a party and which is incorporated into the Montreal Regulation. The EC Disability Regulation imposes obligations on air carriers and others who operate in the air services market to provide equal access to such services for disabled persons and others with reduced mobility for any reason. It leaves enforcement to the Member States. It requires Member States to lay down rules on penalties for infringement but it does not require such penalties to include financial compensation.
[57] There is similarly no dispute about the meaning of the UK Disability Regulations or their compatibility with the Montreal Convention. If the airline is right in its contention that Mr Stott’s claim for damages is precluded by article 29 of the Montreal Convention, it follows that the wording of regulation 9(2) is misleading, because it states (supposedly for the avoidance of doubt) that any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings. It has rightly not been argued that regulation 9(2) should be read as purporting to create a power to award such damages, if it would be inconsistent with article 29, for that would be ultra vires. The effect of regulation 9 is to make it clear that the Regulations are capable of giving rise to an action for breach of statutory duty, for which damages are unrestricted by the Regulation, but it does not (and could not) remove any limitation resulting from the Montreal Convention.
[58] The European case law does not assist Mr Stott. The question in the cases about Regulation (EC) 261/2004 was whether the scheme of standardised remedial measures was compatible with the Montreal Convention. The court recognised that any claim for damages on an individual basis would be subject to the limits of the Convention (IATA para 42). Mr Stott’s claim is for damages on an individual basis.
[59] To summarise, this case is not about the interpretation or application of a European regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation. The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention. The governing principles are those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such question arises and there is no basis for supposing that the Montreal Convention should be given a different “European” meaning from its meaning as an international convention. On the contrary, it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law.
[60] The temporal question can be answered by reference to the facts pleaded and found. The claim was for damages for the humiliation and distress which Mr Stott suffered in the course of embarkation and flight, as pleaded in his particulars of claim and set out in paras 6 to 8 of the recorder’s judgment. The particulars of injury to Mr Stott’s feelings and the particulars of aggravated damages related exclusively to events on the aircraft. In the course of argument it was suggested that Mr Stott had a complete cause of action before boarding the aircraft based on his poor treatment prior to that stage. If so, it would of course follow that such a pre-existing claim would not be barred by the Montreal Convention, but that was not the claim advanced. Mr Stott’s subjection to humiliating and disgraceful maltreatment which formed the gravamen of his claim was squarely within the temporal scope of the Montreal Convention. It is no answer to the application of the Convention that the operative causes began prior to embarkation. To hold otherwise would encourage deft pleading in order to circumvent the purpose of the Convention. Many if not most accidents or mishaps on an aircraft are capable of being traced back to earlier operative causes and it would distort the broad purpose of the Convention explained by Lord Hope in Sidhu to hold that it does not apply to an accident or occurrence in the course of international carriage by air if its cause can be traced back to an antecedent fault.
[61] Should a claim for damages for ill treatment in breach of equality laws as a general class, or, more specifically, should a claim for damages for failure to provide properly for the needs of a disabled passenger, be regarded as outside the substantive scope of the Convention? As to the general question, my answer is no for the reasons given by Sotomayor CJ in King v American Airlines. I agree with her analysis that what matters is not the quality of the cause of action but the time and place of the accident or mishap. The Convention is intended to deal comprehensively with the carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation. The answer to that general question also covers the more specific question.
[62] Mr Allen submitted that the consequences were unfair, because if Mr Stott and his wife had not been misled at the check-in desk into believing that their seating problem would be sorted out at the departure gate, they would never have proceeded and they would have been able to recover damages for their loss. The complaint is just, but that is not a sufficient reason to reinterpret the Convention.
[63] The underlying problem is that the Warsaw Convention long pre-dated equality laws which are common today. There is much to be said for the argument that it is time for the Montreal Convention to be amended to take account of the development of equality rights, whether in relation to race (as in King v American Airlines) or in relation to access for the disabled, but any amendment would be a matter for the contracting parties. It seems unfair that a person who suffers ill-treatment of the kind suffered by Mr Stott should be denied any compensation.
[64] Under the law as it stands, a declaration that the carrier was in breach of the UK Regulations is likely to be small comfort to a passenger who has had Mr Stott’s experience, but I draw attention, as did Sotomayor CJ at the end of her opinion in King v American Airlines, to the fact that there are other possible means of enforcement. It is for the Civil Aviation Authority to decide what other methods of enforcement should be used, including possible criminal proceedings.
Conclusion
[65] The embarrassment and humiliation which Mr Stott suffered were exactly what the EC and UK Disability Regulations were intended to prevent. I share the regret of the lower courts that damages are not available as recompense for his ill-treatment and echo their sympathy for him, but I agree with the reasoning of their judgments and would dismiss this appeal.
[66] I would not make a reference to the CJEU for two reasons. As I have explained, I do not consider that the questions of interpretation of the Montreal Convention on which the appeal turns are properly to be regarded as questions of European law merely because the Convention takes effect via the Montreal Regulation. Secondly and in any event, I consider the answer to be plain.
Useful for
Convention should not be given a different "European" meaning
No remedy when none available under the Convention
