Stott v Thomas Cook Tour Operators Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lord Hughes,Lord Neuberger,Lady Hale,Lord Reed |
| Judgment Date | 05 March 2014 |
| Neutral Citation | [2014] UKSC 15 |
| Date | 05 March 2014 |
| Court | Supreme Court |
[2014] UKSC 15
Lord Neuberger, President
Lady Hale, Deputy President
Lord Reed
Lord Hughes
Lord Toulson
Appellant
Robin Allen QC
Martin Chamberlain QC
(Instructed by Equality & Human Rights Commission)
Respondent
John Kimbell
Tom Bird
(Instructed by JMC Legal Services Department)
Intervener (Secretary of State for Transport)
Daniel Beard QC
Kassie Smith QC
(Instructed by Treasury Solicitors)
Heard on 20 November 2013
Lord Toulson, (with whom Lord Neuberger, Lady Hale, Lord Reed and Lord Hughes agree)
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").
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").
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").
The appeal has been brought with the backing of the Equality and Human Rights Commission and it has the additional support of the Secretary of State for Transport as an intervener.
Mr Christopher Stott is paralysed from the shoulders down and is a permanent wheel chair user. He has double incontinence and uses a catheter. When travelling by air, he depends on his wife to manage his incontinence since he cannot move round the aircraft. He also relies on her to help him to eat and to change his sitting position.
Thomas Cook Tour Operators Ltd is a well known tour operator which provides overseas package holidays and flights to many destinations. It is an air carrier with an operating licence granted by a Member State of the EU and therefore subject to the obligations imposed on Community air carriers by the EC Disability Regulation.
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."
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.
The Court of Appeal upheld the recorder's decision in a judgment delivered by Maurice Kay LJ, with which Sullivan LJ and Dame Janet Smith agreed ( [2012] EWCA Civ 66). Both courts expressed their sympathy for Mr Stott but they considered that the law was clear.
The UK Disability Regulations were made by the Secretary of State for Transport under section 2(2) of the European Communities Act 1972. As the explanatory note states, they provide for the enforcement of the rights set out in the EC Disability Regulation.
The UK Disability Regulations are short.
Regulation 3 makes it an offence for an air carrier, an agent of an air carrier or a tour operator to contravene an obligation imposed by any of a number of articles of the EC Disability Regulation, and regulation 4 provides penalties for such offences. In the present case the respondent has not been prosecuted, but on the recorder's finding it was guilty of an offence carrying a potential fine not exceeding level 5 on the standard scale. The maximum level 5 fine on summary conviction is currently £5,000: Criminal Justice Act 1982, as amended, section 37. There will be no maximum limit when the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 85, comes into effect.
Regulation 9 is headed "Compensation claims by disabled persons etc." It provides:
"(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.
(3) Proceedings in England, Wales or Northern Ireland may be brought only in a county court.
(4) Proceedings in Scotland may be brought only in a sheriff court.
(5) The remedies available in such proceedings are those which are available in the High Court or (as the case may be) the Court of Session."
The general purpose of the EC Disability Regulation is apparent from the following paragraphs of the preamble:
"(1) The single market for air services should benefit citizens in general. Consequently, disabled persons and persons with reduced mobility, whether caused by disability, age or any other factor, should have opportunities for air travel comparable to those of other citizens. Disabled persons and persons with reduced mobility have the same right as all other citizens to free movement, freedom of choice and non-discrimination. This applies to air travel as to other areas of life.
…
(4) In order to give disabled persons and persons with reduced mobility opportunities for air travel comparable to those of other citizens, assistance to meet their particular needs should be provided at the airport as well as on board aircraft, by employing the necessary staff and equipment. In the interests of social inclusion, the persons concerned should receive this assistance without additional charge.
…
(15) Member States should supervise and ensure compliance with this Regulation and designate an appropriate body to carry out enforcement tasks. This supervision does not affect the rights of disabled persons and persons with reduced mobility to seek legal redress from courts under national law.
…
(18) Member States should lay down penalties applicable to infringements of this Regulation and ensure that those penalties are applied. The penalties, which could include ordering the payment of compensation to the person concerned, should be effective, proportionate and dissuasive."
Article 1 provides:
"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,...
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