Campbell v Thomas Cook Tour Operations Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice McCombe |
| Judgment Date | 30 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1668 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 2014 |
| Docket Number | B2/2013/3132 |
[2014] EWCA Civ 1668
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT SHEFFIELD
(HIS HONOUR JUDGE ROBINSON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Vos
Lord Justice McCombe
Lord Justice Longmore
B2/2013/3132
Ms C Casserley (instructed by Sheffield Law Centre) appeared on behalf of the Appellant
Mr T Collins (instructed by Thomas Cook Legal Department) appeared on behalf of the Respondent
Introduction
The central question in this case is whether the provisions of paragraph 33(2) of Schedule 3 (paragraph 33(2)) to the Equality Act 2010 (the 2010 Act) are sufficient to exclude the application of the duties contained in section 29 of the 2010 Act to the provision of airport services at an airport outside the European Union (EU).
Paragraph 33(2) provides in essence that the anti-discrimination provisions in section 29 of the 2010 Act do not apply to anything governed by regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (the Regulation).
The judge held in his judgment dated 23 May 2013 that the discrimination concerned in this case relating to airport services at non-EU airports was outside the provisions of the Regulation and therefore not "governed by" the Regulation. Accordingly, section 29 of the 2010 Act applied to the alleged discrimination and the Defendant, Thomas Cook Tour Operations Limited (Thomas Cook), was liable for it.
Thomas Cook argues that the judge was wrong because the Regulation provides a high level of disability protection for air travellers across EU Member States. Just because the particular circumstances of this case were not covered by the specific provisions of the Regulation, since they related to a non-EU airport, did not mean that the circumstances generally were not "governed by the Regulation." If this were not the case, it is said that the efficacy of EU law would be lost.
Thomas Cooke appeals with the permission of the judge. Coulson J ordered on 21 July 2013 that the appeal should be heard by the Court of Appeal rather than the High Court by way of a leapfrog appeal under CPR Part 52.14(1) on the basis that it raises an important point of principle which is not governed by any binding authority.
The facts are not in dispute. The Claimant, Mrs Janice Campbell (Mrs Campbell), is disabled by arthritis and has difficulty walking and standing. She booked a package holiday in Tunisia with Thomas Cook which was unfortunately interrupted by civil disturbances in that country necessitating her repatriation.
Mrs Campbell was transported to Monastir Airport to catch a flight back to the UK on 15 January 2011, but was not provided with any seating or wheelchair facilities whilst she waited for 4 hours, only to find that no flight was available and she had to return to her hotel. The standing and waiting caused her to suffer from a migraine which led to vomiting and extreme discomfort the following day when she was taken back to the airport finally to catch a flight to Manchester (though she had flown from and wished to return to the East Midlands Airport).
The judge found that Thomas Cook had failed to make reasonable adjustments for Mrs Campbell by providing auxiliary aids and services at Monastir Airport such as seating and assistance with check-in contrary to its duties under sections 25, 21 and 29(7) of the 2010 Act. Thomas Cook was thereby guilty of disability discrimination and liable to pay Mrs Campbell damages which he assessed at £7,500. None of that is under appeal.
What is under appeal, however, is the proper construction of paragraph 33(2) which provides as follows:
"Section 29 [of the 2010 Act] does not apply to anything governed by [the Regulation]."
It is hard to imagine a simpler provision, yet the meaning of the words "anything" and "governed by" have given rise to real controversy.
The relevant provisions of the Regulation
It is important to understand the objectives, purposes and scope of the Regulation. To do so I will need to set out its recitals and provisions at somewhat greater length than would normally be necessary.
The following recitals are particularly relevant to the proper construction of the Regulation:
"(3) This Regulation should not affect other rights of passengers established by Community legislation and notably Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours and Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights. Where the same event would give rise to the same right of reimbursement or rebooking under either of those legislative acts as well as under this Regulation, the person so entitled should be allowed to exercise that right once only, at his or her discretion.
(5) Assistance given at airports situated in the territory of a Member State to which the Treaty applies should, among other things, enable disabled persons… to proceed from a designated point of arrival at an airport to an aircraft… including embarking… The assistance should be organised so as to avoid interruption and delay, while ensuring high and equivalent standards throughout the Community and making best use of resources, whatever airport or air carrier is involved…
(17) Complaints concerning assistance given at an airport should be addressed to the body or bodies designated for the enforcement of this Regulation by the Member State where the airport is situated. Complaints concerning assistance given by an air carrier should be addressed to the body or bodies designated for the enforcement of this Regulation by the Member State which has issued the operating licence to the air carrier…
(19) Since the objectives of this Regulation, namely to ensure high and equivalent levels of protection and assistance throughout the Member States and to ensure that economic agents operate under harmonised conditions in a single market, cannot sufficiently be achieved by the Member States and can therefore, by reason of the scale or effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives."
The following provisions of the Regulation are relevant:
" Article 1
Purpose and scope
1. This Regulation establishes rules for the protection of and provision of assistance to disabled persons and persons with reduced mobility travelling by air, both to protect them against discrimination and to ensure that they receive assistance.
2. The provisions of this Regulation shall apply to disabled persons and persons with reduced mobility, using or intending to use commercial passenger air services on departure from, on transit through, or on arrival at an airport, when the airport is situated in the territory of a Member State to which the Treaty applies.
3. Articles 3, 4 and 10 shall also apply to passengers departing from an airport situated in a third country to an airport situated in the territory of a Member State to which the Treaty applies, if the operating carrier is a Community air carrier…
Article 3
Prevention of refusal of carriage
An air carrier or its agent or a tour operator shall not refuse, on the grounds of disability or of reduced mobility:
(a) to accept a reservation for a flight departing from or arriving at an airport to which this Regulation applies;
(b) to embark a disabled person or a person with reduced mobility at such an airport, provided that the person concerned has a valid ticket and reservation.
Article 4
Derogations, special conditions and information.
1. Notwithstanding the provisions of Article 3, an air carrier or its agent or a tour operator may refuse, on the grounds of disability [in certain specified circumstances relating to safety and airport size]…
In the event of refusal to accept a reservation on the grounds referred to under points (a) or (b) of the first subparagraph, the air carrier, its agent or the tour operator shall make reasonable efforts to propose an acceptable alternative to the person in question…
Article 7
Right to assistance at airports
1. When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I…
Article 10
Assistance by air carriers
An air carrier shall provide the assistance specified in Annex II without additional charge to a disabled person or person with reduced mobility departing from, arriving at or transiting through an airport to which this Regulation applies provided that the person in question fulfils the conditions set out in Article 7(1), (2) and (4)."
The judge's reasoning
His Honour Judge Graham Robinson sitting in the Sheffield County Court delivered an impressive and well-reasoned reserved judgment. It is sufficient for me to explain his decision by summarising the essential parts of it as follows.
(1) Mrs Campbell had a disability within section 6 of the 2010...
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Table of Cases
...Operations Limited [2014] Eq LR 655, [2014] 9 WLUK 624, Sheffield Cty Ct 10.237, 10.246 Campbell v Thomas Cook Tour Operations Limited [2014] EWCA Civ 1668, [2015] 1 WLR 2007, [2015] 1 Lloyd’s Rep 353, [2015] 2 CMLR 11 10.246 Cannon v My Travel Airways Limited, 8 July 2005 (unreported), Man......
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International Conventions and Regulations - Carriage of Passengers and Baggage
...33(2) was in fact the ‘simplest possible provision’ and ‘means what 246 See above. 247 Campbell v Thomas Cook [2014] EWCA Civ 168, [2015] 1 WLR 2007. it says, namely that section 29 does not apply to anything governed by the Regulation’. Accordingly, since the provision of airport and check......