Hook v British Airways Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Sullivan,Dame Janet Smith |
| Judgment Date | 07 February 2012 |
| Neutral Citation | [2012] EWCA Civ 66 |
| Docket Number | Case No: B2/2011/0269; B2/2011/0597 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2012 |
[2012] EWCA Civ 66
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) MANCHESTER COUNTY COURT
MR RECORDER PETER ATHERTON
REF: 9MA05711 AND (2) THE HIGH COURT QUEEN'S
BENCH DIVISION, SUPPERSTONE J
REF: QB/2010/0283
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Sullivan
and
Dame Janet Smith
Case No: B2/2011/0269; B2/2011/0597
Mr Robin Allen QC and Ms Catherine Casserley (instructed by Equality and Human Rights Commission) for the Appellants
Mr John Kimbell (instructed by Customer Legal Department, Thomas Cook Tour Operations Limited) for the Respondent (1)
Mr John Kimbell (instructed by DLA Piper UK LLP) for the Respondent (2)
Ms Kassie Smith for the Intervener
Hearing dates: 10, 11 November 2011
Mr Tony Hook and Mr Christopher Stott are disabled persons. In unrelated cases each has brought proceedings against an airline complaining of injury to feelings as a result of failure to meet seating needs pursuant to promises made at the time of booking. In Mr Hook's case the airline is British Airways Plc (BA); in Mr Stott's case it is Thomas Cook Tour Operators Limited (Thomas Cook). The central issue in the cases is the relationship between, on the one hand, Regulation (EC) No 1107/2006 (the EC Disability Regulation) and the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 S1 2007/1895 (the UK Disability Regulations) and, on the other hand, Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (the first EC Regulation) as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (the amending EC Montreal Regulation). For convenience, I shall refer to the amended version as the Montreal Regulation.
The Montreal Regulation has a long pedigree going back to the Warsaw Convention of 1929. The Montreal Convention for the Unification of Certain Rules for International Carriage by Air was made on 28 May 1999. It replaced the Warsaw Convention. The European Union is a signatory to it and has ratified the Montreal Convention. BA and Thomas Cook seek to rely on provisions in the Montreal Convention to resist the actions of Mr Hook and Mr Stott. The relevant provisions of the Montreal Convention are Articles 17 and 29, which provide as follows:
" Article 17—Death and Injury to Passengers and Damage to Baggage
1. 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—Basis of Claims
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable."
The Montreal Regulation incorporates the Montreal Convention into EU law. Article 3(1) provides:
"The liability of a Community air carrier in respect of passengers and their baggage shall be governed by all the provisions of the Montreal Convention relevant to such liability."
The EC Disability Regulation and the UK Disability Regulations have a later and different origin. Their immediate prompt was the Proposal for the Regulation of the European Parliament and of the Council concerning the rights of persons with reduced mobility when travelling by air. Com (2005) 47 Final, Brussels, 16 February 2005, which stated in paragraph 1:
"… comparable opportunities for air travel should be open to people suffering the disadvantage of reduced mobility, whether caused by disability, age or some other factor. Passengers with reduced mobility should be confident that their needs will be met throughout the European Community …"
The EC Disability Regulation contains the following provisions:
" 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 "assistance specified in Annex II" includes:
"The making of all reasonable efforts to arrange seating to meet the needs of individuals with disability or reduced mobility on request and subject to safety requirements and availability …
Where a disabled person or person with reduced mobility is assisted by an accompanying person, the air carrier will make all reasonable efforts to give such a person a seat next to the disabled person or person with reduced mobility.
Article 16 – Penalties
The Member States shall lay down rules or penalties applicable to infringements of this Regulation and shall take all the measures necessary to ensure that those rules are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify it without delay of any subsequent amendment affecting them."
This latter provision gave rise to the UK Disability Regulations, which included:
" Regulation 9: Compensation claims by disabled persons etc
(1)A claim by a disabled person or a person with reduced mobility for an infringement of any of his rights under the EC Regulation may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.
(2)For the avoidance of doubt, any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings whether or not they include compensation under any other head."
Thus, 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.
Before turning to the legal analysis, it is necessary to refer to the factual background. In Mr Stott's case it is based on the findings of the judge at the trial in Manchester County Court. In Mr Hook's case no trial has taken place because his claim was struck out by the judge in the Central London County Court and his appeal to the High Court was dismissed by Supperstone J. Accordingly, his case falls to be considered on the assumption that his pleaded case is factually correct.
The Stott case
Mr Stott is severely disabled and a permanent wheelchair user. When he travels by air he relies on his wife to assist with his personal needs because he cannot move around the aircraft cabin. On 12 September 2008 a booking was made with Thomas Cook for Mr and Mrs Stott to fly from East Midlands Airport to Zante, departing on 22 September and returning on 29 September. After making the booking Mr Stott spoke to Thomas Cook by telephone to say that he had booked and paid to sit next to his wife on both flights. On 19 September he telephoned again and was assured that he and his wife would be seated together. No problem arose on the outward flight. At the check-in for the return flight, Mr and Mrs Stott were informed that they would not be sitting together. When they protested, a supervisor told them that the problem would be solved at the departure gate. However, at the gate they were told that other passengers had already boarded and the seat allocation could not be changed. When Mr Stott had boarded, his wheelchair overturned and he fell to the cabin floor. No-one present seemed to know what to do. Mr Stott felt very embarrassed, humiliated and angry. Mrs Stott was also very distressed. Mr Stott was then seated in an aisle seat in front of his wife. It was very difficult for her to assist with his catheterisation and other personal needs during the flight. No assistance was forthcoming from the cabin crew.
At the trial, 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 but would have made no award of aggravated damages.
The Hook case
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...
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