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Brief FactsThis appeal arose 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 (UK Disability Regulations). The claimant was severely disabled and a permanent wheel-chair user. On booking return flights to Greece for himself and his wife he arranged with the defendant air carrier that he would be seated next to his wife so that she could attend to his personal needs during the flight. On the return flight no such seating arrangements were available and his wife encountered extreme difficulty in attending to him. He brought proceedings for breach of Council Regulation (EC) No 1107/2006 and the 2007 UK Disability Regulations, claiming damages for distress and injury to his feelings. The defendant denied liability on the ground that such a claim was excluded by the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) as incorporated into European Union law by the Montreal Regulation.

 

Issues

Whether the Claimant’s claim for distress and injury to feelings fell outside the substantive and/or temporal scope of the Montreal Convention, which depended entirely on its proper interpretation

Regulation 9(2) of UK Disability Regulations

“For the avoidance of doubt, any damages awarded in respect of any infringement of the EC Disability Regulation may include compensation for injury to feelings whether or not they include compensation under any other head”.

Article 7(1) of EC Disability Regulations

“When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to take the flight for which he or she holds a reservation, provided that the notification of the person’s particular needs for such assistance has been made to the air carrier or its agent or the tour operator concerned at least 48 hours before the published time of departure of the flight. This notification shall also cover a return flight, if the outward flight and the return flight have been contracted with the same air carrier”.

UK Carriage by Air Act, Article 3.1

“The liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.”

Article 29 of the Montreal Convention

“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

International Law-interpretation of international treaties- the Montreal Convention-interpretation of the Montreal Convention- whether the claim for distress and injury to feelings caused by a breach of the UK Disability Regulations fell outside the scope and/or temporal scope of the Montreal Convention-Article 29 of the Montreal Convention

International Law- international carriage by air- liability- liability of the carriers–limitation of liability- – liability for injuries suffered in the course of the international carriage of persons and baggage- disabled persons-whether the Respondent was liable for a claim for distress and injury to feelings of a disabled person – whether the claims for distress and injury to feelings were subject to Montreal Convention where Montreal Convention had exclusivity over domestic legislation -Article 17, 29 of the Montreal Convention

 

Held

Majority judgment by Lord Neuberger (President), Lord Reed, Lord Hughes and Lord Toulson

1. There was no dispute about the meaning of the EC Disability Regulation or its compatibility with the Montreal Convention, to which the European Union(EU) was a party and which was incorporated into the Montreal Regulation. The EC Disability Regulation imposed obligations on air carriers and others who operated in the air services market to provide equal access to such services for disabled persons and others with reduced mobility for any reason. It left enforcement to the Member States. It required Member States to lay down rules on penalties for infringement but it did not require such penalties to include financial compensation.
2. There was similarly no dispute about the meaning of the UK Disability Regulations or their compatibility with the Montreal Convention. The effect of regulation 9(2) of the UK Disability Regulation was to make it clear that the Regulations were capable of giving rise to an action for breach of statutory duty, for which damages were unrestricted by the Regulation, but it did not (and could not) remove any limitation resulting from the Montreal Convention.
3. The question at issue was whether the claim was outside the substantive scope and/or temporal scope of the Montreal Convention, and that depended entirely on the proper interpretation of the scope of that Convention. The governing principles were those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention it would indeed have involved a question of European law, but no such question arose and there was 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.
4. The Claimant’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 was 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 were capable of being traced back to earlier operative causes and it would distort the broad purpose of the Convention to hold that it did not apply to an accident or occurrence in the course of international carriage by air if its cause could be traced back to an antecedent fault.
5. A claim for damages for ill treatment in breach of equality laws as a general class, or, more specifically, a claim for damages for failure to provide properly for the needs of a disabled passenger, could not be regarded to fall as outside the substantive scope of the Convention. What mattered was not the quality of the cause of action but the time and place of the accident or mishap. The Convention was intended to deal comprehensively with the carrier’s liability for whatever may have physically happened to passengers between embarkation and disembarkation.
6. The underlying problem was that the Warsaw Convention long pre-dated equality laws which were common today. There was much to be said for the argument that it was time for the Montreal Convention to be amended to take account of the development of equality rights, whether in relation to race or in relation to access for the disabled, but any amendment would be a matter for the contracting parties. It seemed unfair that a person who suffered ill-treatment of the kind suffered by the Claimant should be denied any compensation.
7. The embarrassment and humiliation which the Claimant suffered were exactly what the EC and UK Disability Regulations were intended to prevent. However damages were not available as recompense for his ill-treatment.
8. A reference would not be made to the Court of Justice of European Union because questions of interpretation of the Montreal Convention on which the appeal turned were properly to be regarded as questions of European law merely because the Convention took effect via the Montreal Regulation.

 

Lady Hale, concurring judgment

1. The Claimant and his wife were treated disgracefully by the respondent and it was hardly less disgraceful that the law gave 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, was more surprising when the fundamental rights of individuals were involved. Some treaties made express exception for anything which conflicted with the fundamental rights protected within a member state, but the Montreal Convention did not.

10. Indeed, there was a respectable argument that race (but not sex) discrimination was not only contrary to customary international law, as well as to many international human rights instruments, but also contravened a peremptory norm of international law which was binding on all states (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 emerged, then any existing treaty which was in conflict with that norm became void and terminated, at least to that extent, by virtue of article 64 of the Vienna Convention.

11. The prohibition of torture was indeed a peremptory norm. There was a respectable case to be made that what happened to the Claimant on board the plane amounted to inhuman or degrading treatment within the meaning of article 3 of the European Convention on Human Rights. It seemed 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 had 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 had done so.

12. The extent to which international law imposed positive obligations upon States to protect individuals against violations of their fundamental rights by non-state actors was controversial.  Small comfort though it may be to them, both the Claimant and his wife, with the support not only of the Equality and Human Rights Commission but also of the responsible department of the United Kingdom government, did a service by exposing a grave injustice to which the international community should now be turning its attention.

The appeal was unanimously dismissed.

Relevance to the Kenyan situation

Kenya has not only ratified the Convention on the Rights of Persons with Disabilities but has constutionalized the rights of people with disabilities under article 54 of its Constitution. Article 54(1, c) provides that a person with any disability is entitled to reasonable access to all places, public transport and information. In the Carriage by Air Act No. 2 of 1993 section 2, it refers to the Warsaw Convention (now the Montreal Convention) as the Convention to have force of law in Kenya.

Section 3 of the Act provides that, “The provisions of the Convention shall, so far as they relate to the rights and liabilities of carriers, carriers servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Kenya in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage”.

Section 6 of the Act also provides that the limitations on liability in Article 22 of the Convention shall apply whatever the nature of the proceedings by which liability may be enforced. The Act has only annexed the Convention for the Unification of Certain Rules Relating to International Carriage by Air as Amended by the Hague Protocol 0f 1955 in its first schedule and Provisions as to Liability of Carrier in the Event of The Death of a Passenger in its second schedule.

Kenya by recognizing the application of the Warsaw Convention (now the Montreal Convention) implies that it applies this convention in matters of litigation. The call by the Judges in the present case to the Member States who have ratified the Montreal Convention to amend it to consider fundamental rights will have great impact in Kenya if such amendments will be made. This will be jurisprudential in Kenyan litigation. Kenya is also a contracting party to the Montreal Convention.