Stott v Thomas Cook Tour Operators Limited

The Montreal Convention provides an exclusive code governing an air carrier’s liability for damages arising from events during international carriage. A passenger cannot evade its conditions and limits by framing a claim under domestic equality legislation or another cause of action.

The Convention’s scope depends on the time and place of the relevant occurrence, rather than the legal character of the claim or nature of the harm. A claim for injury to feelings caused during embarkation or flight is therefore precluded where the Convention does not itself permit compensation. An antecedent fault before embarkation does not remove a claim based on later ill-treatment from the Convention’s temporal scope.

A disabled passenger required his wife’s assistance during air travel. Although the carrier had promised to seat them together, it failed to do so on the return flight and subjected him to humiliating treatment during embarkation and on board.

The Manchester County Court declared that the carrier had breached its duty under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007. The recorder would have awarded £2,500 for injury to feelings but held that article 29 of the Montreal Convention precluded damages. The Court of Appeal dismissed the passenger’s appeal in [2012] EWCA Civ 66.

The issue before the Supreme Court was whether damages for discomfort and injury to feelings were available despite the Montreal Convention, or whether a reference to the Court of Justice of the European Union was required.

1. Appeal dismissed unanimously. Lord Toulson delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Reed and Lord Hughes agreed. Article 29 of the Montreal Convention precluded the claimed damages for humiliation and injury to feelings.

2. The Convention is a comprehensive and exclusive code governing an air carrier’s liability for events within international carriage. Following Sidhu v British Airways plc [1997] AC 430, a passenger cannot pursue an alternative claim in contract, tort, breach of statutory duty or otherwise merely because the Convention itself supplies no compensatory remedy.

3. The temporal scope of the Convention was determined by the pleaded and found basis of the claim. The damages claimed concerned humiliation and distress suffered during embarkation and flight. Those events fell squarely within the Convention. Although the carrier’s failures began before embarkation, an antecedent cause did not remove the later occurrence from the Convention’s scope. Such an approach would encourage artificial pleading and undermine the Convention’s purpose.

4. The substantive scope of the Convention depended on the time and place of the occurrence, not the qualitative character of the cause of action or harm. Equality and disability-discrimination claims were not inherently outside the Convention. The court adopted the reasoning in King v American Airlines Inc that the Convention comprehensively governs what physically happens to passengers between embarkation and disembarkation.

5. Regulation 9 of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 permitted civil proceedings and contemplated compensation for injury to feelings. It could not, however, remove a limitation imposed by the Montreal Convention. The European cases concerning standardised compensation under Regulation 261/2004 were different because that scheme supplemented the Convention without altering its limits on individual damages claims.

6. No reference was made to the Court of Justice. The appeal concerned the interpretation of an international convention, not the interpretation or compatibility of EU legislation, and the answer was in any event clear.

Lady Hale agreed with the disposition and Lord Toulson’s reasons. She observed that another case might require consideration of whether peremptory norms of international law impose limits on article 29, particularly where a State carrier violates fundamental rights. That issue had not been argued and did not arise because the respondent was not a State airline.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court of Appeal’s conclusion that the Montreal Convention precluded damages was upheld.
2. Court of Appeal: In [2012] EWCA Civ 66, the court dismissed the passenger’s appeal and upheld the recorder’s refusal to award damages.
3. Manchester County Court: The recorder declared that the carrier had breached the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007. He assessed injury-to-feelings compensation at £2,500 but held that the Montreal Convention deprived him of power to award it.