Stott v Thomas Cook Tour Operators Limited

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:

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:

The general purpose of the EC Disability Regulation is apparent from the following paragraphs of the preamble:

Article 1 provides:

Article 7 provides:

Article 10 provides:

The assistance specified in Annex II includes:

This was the obligation which the respondent breached.

Article 12 provides:

Although article 12 is not applicable in the present case, since Mr Stott’s wheelchair was not damaged, it has a broader relevance inasmuch as the reference to compensation in accordance with rules of international law clearly embraces the Montreal Convention.

Articles 14 to 16 provide for three methods of enforcement. Article 14 provides for each Member State to designate an enforcement body or bodies. In the UK the designated body is the Civil Aviation Authority. Article 15 provides for the establishment of complaints procedures. Article 16 provides:

The full title of the Montreal Convention is the Convention for the Unification of Certain Rules for International Carriage by Air. It was agreed at Montreal on 28 May 1999. The EU is a signatory.

The predecessor of the Montreal Convention was signed at Warsaw on 12 October 1929 (“the Warsaw Convention”). It was amended in 1955 at the Hague, but the amended Convention continued to be known by its original name. The Montreal Convention replaced the Warsaw Convention but followed its general structure. Its purpose according to the preamble was “to modernize and consolidate the Warsaw Convention and related instruments”.

There is no material difference in their scope of application, as defined in each case in article 1. Each begins by stating that the Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward”.

Chapter III of the Warsaw Convention was headed “Liability of the carrier”. The heading of the same chapter in the Montreal Convention has the additional words “and extent of compensation for damage”. In chapter III of the Warsaw Convention, article 17 dealt with liability for death or injury to passengers as a result of an accident sustained on board the aircraft or in the course of embarkation or disembarkation, and article 18 dealt with liability for damage to or loss of any registered luggage or goods. In chapter III of the Montreal Convention liability for death or bodily injury is dealt with in article 17.1 in materially identical terms to article 17 of the Warsaw Convention. Loss of or damage to a passenger’s baggage is dealt with in article 17.2 to 17.4, and loss of or damage to cargo are dealt with in article 18, but the differences are matters of detail.

There are also broadly parallel provisions for liability for damage occasioned by delay in the carriage of passengers, baggage or cargo.

Two features of the Conventions are of critical relevance. First, there are limits to the type of injury or damage which is compensable and the amount of compensation recoverable. Bodily injury (or lésion corporelle) has been held not to include mental injury, such as post-traumatic stress disorder or depression (Morris v KLM Royal Dutch Airlines [2002] UKHL 7; [2002] 2 AC 628). The same would apply to injury to feelings. Secondly, there is an exclusivity provision.

The exclusivity provision in the Warsaw Convention was contained in article 24:

The effect of this provision was considered by the House of Lords in Sidhu v British Airways plc [1997] AC 430, to which I will refer in more detail.

In the Montreal Convention the exclusivity provision is contained in article 29:

Article 29 is the rock on which Mr Stott’s claim for damages foundered.

The Montreal Convention has effect in the UK by different routes depending on whether the carrier is a Community air carrier. Generally the Montreal Convention has force in the UK by virtue of section 1 of the Carriage by Air Act 1961 as amended, but not in relation to Community air carriers to the extent that the Montreal Regulation has force in the UK: section 1(2) of the 1961 Act. The Montreal Regulation has direct effect in the UK by virtue of section 2 of the European Communities Act 1972. The Montreal Regulation followed the conclusion of the Montreal Convention. Its purpose, as stated in an explanatory memorandum issued by the Commission, was to ensure full alignment between the Montreal Convention and community law. To that end, article 3.1 states:

In Sidhu the House of Lords considered the question whether a passenger who sustained damage in the course of international carriage by air due to the fault of the carrier, but had no claim against the carrier under article 17 of the Warsaw Convention, was left without a remedy. It concluded that this was so. Lord Hope gave the only speech. He analysed the history, structure and text of the Convention, and he reviewed the domestic and international case law. He explained that the Convention was a package. It gave to passengers significant rights, easily enforceable, but it imposed limitations. He held that the whole purpose of article 17, read in its context, was to prescribe the circumstances – that is to say, the only circumstances – in which a carrier would be liable to the passenger for claims arising out of his international carriage by air. To permit exceptions, whereby the passenger could sue outside the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier.

This interpretation has been accepted and applied in many other jurisdictions.

In the USA the leading authority is the decision of the Supreme Court in El Al Israel Airlines Ltd v Tseng 525 US 155 (1999). The plaintiff was subjected to an intrusive security search at John F Kennedy International Airport in New York before she boarded a flight to Tel Aviv. She sued the airline under New York tort law for damages for psychosomatic injury. The Supreme Court had previously held in Eastern Airlines Inc v Floyd 499 US 530 (1991) that mental or psychic injuries unaccompanied by physical injuries were not compensable under article 17, but the plaintiff argued that her claim in respect of the treatment which she suffered before embarkation was not within the reach of the preemptive effect of the Convention. The Court of Appeals for the Second Circuit accepted that argument. In its judgment it expressed the fear that if the Convention had the preclusive effect for which the airline contended, it would follow, for example, that a passenger injured by a malfunctioning escalator in the airline’s terminal would have no remedy against the airline even if it had recklessly disregarded its duty to maintain the escalator in proper repair. The Supreme Court reversed the decision of the Court of Appeals in an opinion delivered by Justice Ginsburg (Justice Stevens dissenting).

Applying the principle that an international treaty must be interpreted not as if it were a domestic instrument, but so as to accord with the court’s understanding of the shared expectations of the contracting parties, Justice Ginsburg referred to the French text of article 24 of the Warsaw Convention (the earlier equivalent of article 29 of the Montreal Convention):

Tseng argued that “les cas prevus a l’article 17” meant those cases in which a passenger could actually maintain a case for relief under article 17. El Al argued, with the support of the US government as amicus curiae, that the expression referred generically to all personal injury cases stemming from occurrences on board an aircraft or in embarking or disembarking. So read, article 24 would preclude a passenger from asserting any air transit personal injury claims under local law, including claims that failed to satisfy article 17’s liability conditions (perhaps because the injury did not result from an “accident” or because the “accident” did not result in physical injury or manifestation of injury).

The court judged that the government’s interpretation of article 24 was more faithful to the Convention’s text, purpose and overall structure. Its reasoning process accorded with that of the House of Lords in Sidhu, to which Justice Ginsburg referred, at pp 175-176:

The court put to rest the Court of Appeals’ fear that such a conclusion would mean that a passenger who had an accident in the terminal building through the negligence of the person responsible for its maintenance might be left without a remedy. Justice Ginsburg observed that the Convention’s preemptive effect on local law extended no further than the Convention’s own substantive scope, and that a carrier would be indisputably subject to liability under local law for injuries arising outside that scope, for example, for passenger injuries occurring before the operation of embarking.

In King v American Airlines Inc 284 F 3d 352 (2002) the Court of Appeals for the Second Circuit considered the question whether discrimination claims could properly be regarded as generically outside the Convention’s substantive scope, so that a claim for compensation under local law would not be affected by the Convention. The assumed facts were that the plaintiffs were bumped from an overbooked flight because of their race. Upholding an order for the dismissal of the claim, the court held that discrimination claims under local law which arose in the course of embarking on an aircraft were preempted by the Convention.

The argument advanced unsuccessfully by the plaintiffs was that discrimination claims fell outside the scope of the Convention because of their qualitative nature. Sotomayor CJ (now Justice Sotomayor of the US Supreme Court), delivering the opinion of the court, emphasised that the preemptive scope of the Convention depends not on the qualitative nature of the act or omission giving rise to the claim but on when and where the salient event took place:

The judge noted that in a number of cases US District Courts had addressed the issue whether discrimination claims were preempted by the Convention and had all reached a similar view. She concluded her judgment with some broader observations which have a resonance in the present case:

Sidhu and Tseng have been followed by the Federal Court of Australia in South Pacific Air Motive Pty Ltd v Magnus 157 ALR 443 (1998), the Court of Appeal of Hong Kong in Ong v Malaysian Airline System Berhad [2008] HKCA 88, the Federal Court of Appeal of Canada in Air Canada v Thibodeau [2012] FCA 246 and the High Court of Ireland in Hennessey v Aer Lingus Ltd [2012] IEHC 124. Sidhu was similarly followed by the Court of Appeal of New Zealand in Emery Air Freight Corpn v Nerine Nurseries Ltd [1997] 3 NZLR 723. The same principle has been recognised by the Supreme Court of Germany (Bundesgerichtshof), 15 March 2011, Urteil Az X ZR 99/10.

Mr Robin Allen QC submitted that since the Montreal Convention has effect within the EU via the Montreal Regulation, it is a question of European law whether the courts below were right to hold that Mr Stott’s claim for damages for breach of the UK Disability Regulations was incompatible with the Convention.

He submitted that Mr Stott’s claim is unaffected by the Montreal Regulation because its subject matter was outside both the substantive scope and the temporal scope of the Regulation.

The argument on the first point was summarised succinctly in the appellant’s written case as follows:

The argument on the second point was based on the recorder’s finding that the airline’s failure to make all reasonable efforts to seat Mr Stott next to his wife began prior to embarkation.

In support of his argument Mr Allen relied on a number of European authorities. He accepted that none of them was conclusive in relation to the present case, but he submitted that the court ought to refer the following questions to the Court of Justice of the European Union (“CJEU”):

Mr Allen submitted that these questions are important and unresolved. The answers to them are not so obvious as to leave no scope for any reasonable doubt. Article 267 therefore requires a reference from this court, as the UK’s final court of appeal, to the CJEU.

Mr Daniel Beard QC, on behalf of the Secretary of State, concentrated on the temporal argument. He submitted that on the recorder’s findings of fact, liability for breach of the UK Disability Regulations arose prior to embarkation, and therefore it was plain that Mr Stott’s claim was not preempted by the Montreal Convention. In his submission, there was no need for a reference to the CJEU and the appeal should be allowed.

Mr John Kimbell, on behalf of the respondent, pointed out that the particulars of injury to feelings pleaded in Mr Stott’s particulars of claim related to his treatment during the process of embarkation and during the flight, which made him feel humiliated and for which he claimed damages. It was for such injury to his feelings, occasioned during the embarkation and flight, that the recorder assessed the appropriate monetary compensation, subject to the question whether it was permissible.

Mr Kimbell submitted that this was the gravamen of the claim, and that it fell within the temporal scope of the Montreal Convention. The claim for damages for such injury to feelings under the UK Disability Regulations was therefore preempted by article 29 of the Montreal Convention, as that article (or rather its predecessor) had been interpreted in Sidhu. He observed that the court was not being asked to reconsider the correctness of the decision in Sidhu, which has moreover received uniform international support. He submitted that the legal basis of Mr Stott’s claim for damages under domestic law was irrelevant (as properly recognised, for example, in King v American Airlines). All that mattered was that it was a claim for damages referable to the treatment of Mr Stott in the course of his international carriage by air. Accordingly, he submitted that on the established authorities the decision of the Court of Appeal upholding the recorder was plainly right, and there was no cause for a reference to the CJEU.

Mr Allen relied on a line of cases in which the CJEU has considered the compatibility of the Montreal Regulation with the provisions of another EU Regulation, No 261/2004, requiring compensation and assistance to passengers in the event of denial of boarding, cancellation or long delays of flights. Article 5 concerns cancellation. Article 6 concerns delay. Each requires the passengers to be offered various forms of assistance, such as hotel accommodation where necessary, and to be paid compensation in accordance with article 7. The compensation payable under article 7 is at a standard rate (which varies according to the length of the flight), regardless of the personal circumstances of the passengers and the amount of any actual loss suffered by them individually.

The most recent decision is that of the Grand Chamber in Nelson v Deutsche Lufthansa AG (Joined Cases C-581/10 and C-629/10), [2013] 1 CMLR 1191. Reiterating the court’s reasoning in earlier cases beginning with R (IATA and ELFAA) v Department of Transport (Case C-344/04)[2006] ECR I-403, the court held that the scheme established by Regulation 261/2004 for standardised redress was a form of protection supplementary to, and not incompatible with, the Montreal Convention because it did not affect the right of a passenger to bring a claim for compensation for individual damage suffered by him or the limitations imposed by the Convention on the right to redress on an individual basis.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Mr and Mrs Stott have both been treated disgracefully by Thomas Cook and it is hardly less disgraceful that, for the reasons given by Lord Toulson, the law gives them no redress against the airline. The apparently adamant exclusion, in article 29 of the Montreal Convention, of any liability for damages other than that specifically provided for in the Convention, while perhaps unsurprising in a trade treaty, is more surprising when the fundamental rights of individuals are involved. Some treaties make express exception for anything which conflicts with the fundamental rights protected within a member state, but the Montreal Convention does not. Whatever may be the case for private carriers, can it really be the case that a State airline is absolved from any liability in damages for violating the fundamental human rights of the passengers it carries?

The most obvious example is an airline which requires black or female passengers to sit at the back of the plane while white or male passengers sit at the front (and thus nearer to the exit). This would be unconstitutional in most civilised countries. Indeed, there is a respectable argument that race (but not sex) discrimination is not only contrary to customary international law, as well as to many international human rights instruments, but also contravenes a peremptory norm of international law which is binding on all states (see R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1, per Lord Steyn at para 46). If it were, then any treaty conflicting with that norm at the time of its conclusion would be void, at least to that extent, by virtue of article 53 of the Vienna Convention on the Law of Treaties; and if a new peremptory norm of international law emerges, then any existing treaty which is in conflict with that norm becomes void and terminates, at least to that extent, by virtue of article 64 of the Vienna Convention.

More important still, it might be thought, is the prohibition of torture. This is indeed a peremptory norm. There is a respectable case to be made that what happened to Mr Stott on board the plane amounted to inhuman or degrading treatment within the meaning of article 3 of the European Convention on Human Rights (see, for example, the case of Price v United Kingdom (2002) 34 EHRR 1285, concerning the conditions in which a severely disabled woman was held in police custody). It seems extraordinary that a State should be able to subject a passenger to such treatment with impunity. However, it may well be that the prohibition of cruel, inhuman and degrading treatment has not yet reached the status of a peremptory norm in general international law, even though torture in the narrower sense defined in the Torture Convention of 1984 has done so.

None of this was ventilated before us, no doubt for the good reason that Thomas Cook is not a State airline. The extent to which international law imposes positive obligations upon States to protect individuals against violations of their fundamental rights by non-state actors is controversial. There may or may not be something in the issues I have raised. But the question of whether there are indeed any limits to the apparently adamant exclusion in article 29 of the Montreal Convention may well require ventilation in another case or another place. At the very least, as Lord Toulson says, the unfairness of the present position ought to be addressed by the parties to the Convention. Small comfort though it may be to them, both Mr and Mrs Stott, with the support not only of the Equality and Human Rights Commission but also of the responsible department of the United Kingdom government, have done us all a service by exposing a grave injustice to which the international community should now be turning its attention.