Hook v British Airways Plc

The Montreal Convention establishes an exclusive regime governing claims for damages arising from international carriage by air. A passenger cannot circumvent that regime by relying on a different domestic or European cause of action, including a discrimination claim, where the Convention provides no liability for the alleged loss.

Regulation 9 of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 must therefore be read consistently with the Convention. Neither the EC Regulation nor the UK Regulations creates a private law claim for damages for injury to feelings. Administrative enforcement, declarations and injunctions remain available.

The claimant, who had mobility and learning difficulties, appealed against a County Court decision striking out his damages claim against British Airways. He alleged that the airline had failed to make reasonable efforts to arrange seating meeting his needs, contrary to Article 10 and Annex II of Regulation (EC) No 1107/2006.

The claim was brought under Regulation 9 of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007. The central issue was whether that provision created an exception to the Montreal Convention’s exclusive liability regime, permitting damages for injury to feelings.

1. The appeal was dismissed. The Convention governed the respondent’s liability as a Community air carrier. Article 29 applied to any action for damages, however founded, arising out of international carriage by air.

2. Following Sidhu v British Airways [1997] AC 430, the Convention prescribed the only circumstances in which a carrier was liable in damages to a passenger for claims arising out of international carriage. Its exclusivity was not confined to common-law negligence claims and admitted no exception for claims based on fundamental or Union rights.

3. The EC Regulation did not override the Convention. It did not expressly authorise Member States to create a private law damages action against air carriers where the Convention excluded liability. The reference in Recital 18 to compensation as a possible penalty was compatible with compensation forming part of an administrative enforcement regime.

4. The reasoning in The Queen on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport [2006] ECR 1-403 concerned standardised and immediate assistance and care measures. It did not establish a private law damages claim under the EC Regulation and did not assist the claimant’s construction of Regulation 9.

5. The UK Regulations established an administrative enforcement regime operated by the Civil Aviation Authority. The claimant could invoke that regime and seek declaratory or injunctive relief. Those remedies fell outside Article 29, but the damages claim was precluded.

6. Reading Regulation 9 consistently with the Convention did not breach the principle of equivalence. Discrimination claims arising out of or during carriage by air were to be treated alike. The relevant legislation was sufficiently clear, so no reference to the Court of Justice was necessary.

• High Court (Queen’s Bench Division): appeal from the decision of HHJ Knight QC in the Central London County Court dated 5 May 2010. The appeal failed and the striking-out decision was upheld.