Disability and rights of persons with reduced mobility (under EU law) only applicable when on ‘terra firma’?

Today’s case in the Supreme Court (Hook v British Airways; and Stott v Thomas Cook) – listed for one day, is on appeal from the Court of Appeal and involves a joint appeal brought by two disabled persons in respect of claims to injury to feelings and failure to meet seating needs (including those for persons of reduced mobility) pursuant to contractual claims arising at the time of booking of air flights (in the course of international carriage by air). The following facts are taken from the judgment of the Court of Appeal at paragraph 6. The facts in relation to Mr Hook can be found at paragraph 8 of the same judgment attached.

The facts in the appeal of Mr Stott

The Appellant (Mr Stott) is 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. He and his wife made a booking with the Respondent to fly from East Midlands Airport to Zante departing on 22 September and returning on 29 September. After making the booking the Appellant spoke to the Respondent 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.

At the check-in for the return flight they 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, but at the gate they were told that other passengers had already boarded and the seat allocated could not be changed. The Appellant 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 trial, the judge granted a declaration that the Respondent had breached the Appellant’s rights under the EC Disability Regulation, but dismissed the claim for damages by reference to the limits imposed by the Montreal Convention, to which the European Union recognised and was a party. The Court of Appeal dismissed the Appellant’s appeal in relation to damages; see below the final paragraph of Lord Justice Maurice Kay below.

The Montreal Convention of 1999 (‘MC’) provides a uniform code in relation to the carrier’s liability under the contract of carriage by air. The provisions have been interpreted and found to be the exclusive code in regard to this specific liability: passengers being effective barred from seeking reliance on applicable law in their member states. Article 29 states that

‘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 delving into the case law and the exclusive regime, it appears to be the general position that injury to feelings is not included within the exclusive regime of the Convention, albeit such categories of loss and injury are recognised and compensated under EC law.

EC provisions that do recognise the heads of loss in this appeal

The breaches under EC law brought by the Claimants include the Disability Regulation EC 1107/2006, incorporated into UK law by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895), notably as regards appropriate seating arrangements. In their defence, British Airways and Thomas Cook seek to rely upon the exclusivity of the Montreal Convention as a comprehensive code, as incorporated into EU law by Regulation (EC) 889/2002.

Giving judgment in the Court of Appeal Maurice Kay LJ found in favour of the airlines on the basis of the exclusive application of Article 29 of the Convention, displacing any other EC applicable law stating at paragraph 54:
‘…I am satisfied that the case for Mr Hook and Mr Stott is unsustainable. The real injuries to their feelings (for which they deserve and have my sympathy) were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed.’

In today’s hearing the Supreme Court, constituted of Baroness Hale and Lords Neuberger, Reed, Hughes and Toulson, will have to consider whether the Montreal Convention can operate to exclude a claim for damages arising from a breach of EU law. This raises several important issues:

– to what extent can the well-established line of exclusivity cases (such as Sidhu) be relied upon in the case of ‘novel’ heads of claim?

– on what basis, if any, can claims under the EU’s Disability Regulation be distinguished from claims under the Passenger Rights Regulation, which have been held to fall outside the scope of the Montreal Convention?

– should the exclusivity of the Montreal Convention be determined by reference to a ‘timeline’ of events (as the Court of Appeal’s judgment seems to suggest), or by the type of damage sustained by passengers (the approach favoured by the CJEU)?

The Secretary of State and the Equality and Human Rights Commission are intervening in today’s case (i.e. will be represented and entitled to make submissions in the appeal).
It is perfectly possible that this case will go further on a reference to the European Court of Justice in light of the core issue of effectiveness of EC law and on the facts, the fact that persons who are intended to benefit from EU laws are left without an effective remedy.

The decision of the Court of Appeal can be found at:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/66.html&query=stott&method=boolean
A very informative blog on this case (which was used to set out most of the above points) can be found on the Supreme Court blog site at:

http://ukscblog.com/case-preview-hook-v-british-airways-stott-v-thomas-cook

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