In the recent case of Tony Hook v British Airways plc (2011) EWHC 379 (QB), the High Court was asked to consider whether UK and EU aviation legislation created a private law cause of action sounding in damages in relation to alleged disability discrimination by an airline.
The appellant, Mr Hook, who suffered from mobility and learning difficulties, appealed against a decision striking out his claim for damages for injury to his feelings arising from the alleged failure of BA to make reasonable efforts to meet his seating needs during two flights. Hook had brought his claim pursuant to Regulation 9 of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007, SI 2007/2895 (the UK Regulations). The UK Regulations gave effect to EC Regulation 1107/2006 (the EC Regulation).
At first instance, HHJ Knight QC held that BA’s liability for damages claims brought by passengers was governed by the Montreal Convention on International Carriage by Air 1999 (the Convention) and that Hook’s claim for damages did not fall within any of the types of claim for which there was a potential liability under the Convention.
Hook argued that the judge had erred in his decision because he misconstrued or disregarded the UK Regulations and the EC Regulation. Hook contended that Regulation 9 of the UK Regulations created an exception to the regime laid down in the Convention, so as to provide him with a remedy by way of damages.
Dismissing the appeal, Mr Justice Supperstone held as follows:
1. There were no exceptions to the exclusivity of the Convention; EC regulation
2027/98, as amended by regulation 889/2002, expressly provided that the liability
of Community air carriers in respect of passengers was to be governed by the
Convention. There was no liability for injury to feelings under the Convention.
2. There was no breach of the principle of equivalence: neither the EC Regulation nor
Regulation 9 of the UK Regulations create a private law cause of action sounding in
damages.
3. Hook could invoke the administrative enforcement regime, operated by the Civil
Aviation Authority.
4. In addition, Hook could seek a declaration and also injunctive relief, as these are
private law remedies which fall outside the remit of Article 29 of the Convention.
This judgment reinforces the principle that mental suffering in the absence of accompanying physical injury is not recoverable under the Montreal Convention. It also reinforces the exclusivity of the Montreal Convention for liability arising from the international carriage of passengers.
