Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15

Mr Stott, a paralysed wheelchair user, suffered humiliating treatment on a Thomas Cook flight when not seated with his wife. The Supreme Court held that article 29 of the Montreal Convention precluded damages for injury to feelings under the UK Disability Regulations.

Facts

Mr Christopher Stott, paralysed from the shoulders down and reliant on his wife for personal care including catheter management, booked a Thomas Cook package holiday to Zante in September 2008. He specifically requested and was assured that he and his wife would be seated together on both flights. Although the outward flight proceeded reasonably, the return flight from Zante was disastrous. Despite repeated protestations at check-in and the departure gate, the couple were not seated together. On boarding via ambulift, Mr Stott’s wheelchair overturned and he fell onto the cabin floor. Airline staff appeared unable to cope. He was seated in the front row while his wife was seated behind him, forcing her to kneel or crouch in the aisle during a three hour twenty minute flight to attend to his personal needs. Cabin crew made no attempt to assist by asking other passengers to move.

Issues

The central issue was whether a court may award damages for a claimant’s discomfort and injury to feelings caused by a breach of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (implementing EC Regulation 1107/2006), or whether any such award is precluded by the exclusivity provision in article 29 of the Montreal Convention (given effect in the EU by the Montreal Regulation). Two sub-issues arose: (i) whether the claim fell within the substantive scope of the Convention; and (ii) whether it fell within its temporal scope.

Arguments

Appellant

Mr Robin Allen QC, for Mr Stott, submitted that the Montreal Convention was not concerned with access to air travel for disabled persons, and rights conferred to secure equal access fell outside the areas with which the Convention dealt. He argued the claim was outside both the substantive and temporal scope of the Convention, relying on the recorder’s finding that the airline’s failures began prior to embarkation. He invited the court to refer questions to the CJEU concerning the interaction between the EC Disability Regulation and the Montreal Convention, drawing analogies with Regulation 261/2004 case law (IATA, Nelson v Deutsche Lufthansa).

Secretary of State (Intervener)

Mr Daniel Beard QC supported the appellant on the temporal argument, submitting that liability arose before embarkation so the claim was not preempted.

Respondent

Mr John Kimbell for Thomas Cook submitted that the pleaded injury to feelings related to events during embarkation and the flight, squarely within the Convention’s temporal scope. Relying on Sidhu v British Airways plc [1997] AC 430 and international authority including El Al Israel Airlines v Tseng and King v American Airlines, he submitted that the legal basis of the claim under domestic law was irrelevant; what mattered was that it was a claim for damages referable to treatment during international carriage by air.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Toulson (with whom Lord Neuberger, Lady Hale, Lord Reed and Lord Hughes agreed) delivered the leading judgment.

The court held that the case turned on the proper interpretation of the Montreal Convention, governed by the Vienna Convention on the Law of Treaties, and did not truly raise a question of European law merely because the Convention takes effect via the Montreal Regulation. The Regulation’s acknowledged purpose was to ensure full alignment between the Convention as an international instrument and Community law.

On the temporal question, the pleaded particulars of injury to feelings related exclusively to events on the aircraft during embarkation and flight. The gravamen of the claim fell squarely within the temporal scope of the Convention. Lord Toulson observed that it was no answer that operative causes began prior to embarkation; to hold otherwise would encourage “deft pleading” to circumvent the Convention’s purpose, since most accidents on an aircraft can be traced back to antecedent causes.

On the substantive question, the court adopted the reasoning of Sotomayor CJ in King v American Airlines: what matters is not the qualitative nature of the cause of action but the time and place of the accident or mishap. The Convention deals comprehensively with a carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation. The European case law on Regulation 261/2004 (Nelson, IATA) did not assist because that concerned standardised remedial measures; individual damages claims remain subject to Convention limits.

The court acknowledged the unfairness of denying compensation to Mr Stott but held that any amendment to accommodate equality rights was a matter for the contracting parties. Enforcement of the Disability Regulations could proceed through other means, including action by the Civil Aviation Authority and potential criminal proceedings.

The court refused to make a reference to the CJEU, holding that the interpretation of the Montreal Convention was not properly a question of European law and, in any event, the answer was plain.

Lady Hale’s concurring observations

Lady Hale expressed strong misgivings about the breadth of article 29, particularly where fundamental rights are engaged. She raised, without deciding, whether a State airline could rely on article 29 to escape liability for violations of peremptory norms such as the prohibition of race discrimination or inhuman and degrading treatment, referencing the Vienna Convention articles 53 and 64. As Thomas Cook was not a State airline, the point was not ventilated, but she suggested it may require consideration in a future case.

Implications

The decision confirms, at the highest level of UK authority, the exclusivity principle established in Sidhu v British Airways plc: article 29 of the Montreal Convention (and its predecessor article 24 of the Warsaw Convention) preempts any claim for damages arising from events occurring during international carriage by air between embarkation and disembarkation, regardless of the qualitative nature of the underlying cause of action.

The judgment aligns UK law with a broad international consensus (the USA, Australia, Canada, Ireland, New Zealand, Hong Kong, Germany) that the Convention’s exclusivity turns on when and where the salient event occurred, not on the legal theory pleaded. It follows that domestic statutory schemes providing damages for discrimination or breach of disability rights cannot circumvent the Convention where the alleged wrong occurs during the temporal scope of international carriage.

Practically, regulation 9(2) of the UK Disability Regulations, which purports to confirm that damages may include compensation for injury to feelings, cannot displace the Convention’s limitation. Disabled passengers whose treatment on international flights breaches the EC Disability Regulation are therefore effectively confined to declaratory relief and reliance on enforcement action by the Civil Aviation Authority, including possible criminal prosecution of carriers.

The decision highlights an unresolved tension between an air law treaty predating modern equality legislation and contemporary human rights norms. Lady Hale’s observations flag that the position of State airlines vis-à-vis peremptory norms of international law remains open. Both judgments suggest that redress lies not in judicial reinterpretation but in amendment of the Convention by the contracting parties.

Verdict: Appeal dismissed. The Supreme Court unanimously held that Mr Stott’s claim for damages for injury to feelings under the UK Disability Regulations was precluded by article 29 of the Montreal Convention, as the ill-treatment fell within both the substantive and temporal scope of the Convention. No reference was made to the CJEU.

Source: Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15