The question as to the extent of the Montreal Convention's exclusivity has once again been considered before the English courts following conjoined appeals in the matters of Hook v British Airways Plc and Stott v Thomas Cook Tour Operators Ltd.
The background to Mr Hook's claim is set out in my previous article, which followed the rejection of his initial appeal to the High Court and which can be found here. Mr Stott's claim arose from similar circumstances in that he was a disabled passenger and he was not given the seating he was promised.
At first instance, Mr Stott was more successful than Mr Hook, in that the trial judge granted a declaration that his rights as a disabled passenger had been breached but, despite that, his claim for damages was dismissed on the grounds that the only damages available following incidents on board aircraft were exclusively those prescribed within the Convention itself. This did not therefore include injury to his feelings.
Both Mr Stott and Mr Hook were supported in their appeals by the Equality and Human Rights Commission. The Court of Appeal was asked to consider the same issue as had previously come before the High Court, namely the apparent conflict between the UK Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations (the 'UK Regulations') and the Montreal Convention. Article 9 of the UK Regulations provides for the remedy of damages to be available in the event of a breach of EC Regulation 1107/06, which concerns the rights of disabled passengers, including where that breach has caused injury to feelings. On the other hand, it is trite law that, whilst Article 17 of the Convention provides passengers with a cause of action for bodily injury, the definition of bodily injury does not include psychiatric damage and therefore does not include injury to feelings. Further, Article 29 of the Convention limits claims for damages arising from carriage by air to those set out within the Convention itself.
The Court of Appeal decided to uphold the status quo and Mr Hook and Mr Stott's appeals were rejected. It was considered that the Montreal Convention and its predecessors had a long and established pedigree and that it was 'incumbent upon the court to construe EU and domestic legislation so as to avoid a conflict with the Montreal Convention'. In setting out their views so clearly, the question arises as to whether the UK Regulations, and indeed their European counterparts, really have very much purpose. The Court of Appeal went some way in pre-empting such queries by commenting that both the EU and domestic legislatures were free to develop laws governing the rights of disabled passengers 'provided that they did not trespass into the domain of the Convention'.