SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
SA1059/07
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
MR M and MRS I O'CARROLL
Pursuers and Respondents
against
RYANAIR
Defenders and Appellants
|
Act: Mr
Maurice O'Carroll
Alt:
Mr C G Sanders, advocate, instructed by A C White, Ayr
Aberdeen: 11th September 2008
The
sheriff principal, having resumed consideration of the cause, answers both
questions of law in the stated case in the affirmative, refuses the appeal
accordingly and adheres to the decree granted by the sheriff on 31st March
2008; finds no expenses due to or by either of the parties in respect of the
appeal.
Note
[1] In this small
claim the pursuers and respondents are husband and wife. On 3rd August
2007
they were passengers on a flight operated by the defenders and appellants from Aberdeen to Dublin. Two pieces of baggage which should have
accompanied them on the flight were delayed, so that they were only able to
collect them at the airport in Dublin some 48 hours after they
had themselves arrived there. As a
consequence of this delay they raised the present action for damages against
the defenders. The total sum sued for
was £750 and was made up of two elements which were set out in two letters
dated 12th August and 4th September 2007 which the pursuers sent to the
defenders. Firstly, there were
out-of-pocket expenses incurred by the pursuers as a result of the delay
including the cost of an extra night's hotel accommodation in Dublin, the cost of travelling to
and from the airport to collect their baggage and the cost of purchasing
essential items such as toiletries. And
secondly, each of the pursuers sought a sum as compensation for the stress,
inconvenience, frustration and disruption to their holiday which they had experienced
as a result of the delay.
[2] The defenders lodged a written statement of defence in which
they intimated their intention to defend the proceedings upon two bases. The first was that this court had no
jurisdiction in light of the provisions of the Montreal Convention 1999 ("the Convention")
which, it is accepted, governed the contract between the parties in this
case. And in the second place it was
said that, esto this court did have
jurisdiction (which was denied), the sum sued for was not due in light of
articles 19 and 29 of the Convention.
Article 19 provides, inter alia:
"The carrier is liable for damage occasioned by delay in the carriage by air
of passengers, baggage or cargo ....."
Article 29 provides: "In the carriage of passengers, baggage and
cargo, any action for damages, however founded, whether under this Convention
or in contract or 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". After referring to these provisions (and also
article 22(2) of the Convention which it is agreed has no application in this
case) the defenders averred: "The defenders do not therefore have
liability for the various heads of claim detailed by the pursuers in their
letters of 12th August and 4th September 2007 which are "punitive,
exemplary or any other non-compensatory damages" in terms of article 29 of
the Montreal Convention 1999".
[3] At the first hearing Sheriff McLernan in accordance with rule
9.2(3) of the Small Claim Rules 2002 noted that there was no factual dispute at
all between the parties and that (1) the sole issue was whether this court had
jurisdiction, and (2) if jurisdiction was established, whether the defenders
were protected from a payment obligation under the Convention.
[4] On 31st March 2008 the case was called before
Sheriff Tierney for proof. The
first-named pursuer appeared on behalf of his wife and himself. The defenders were represented by a solicitor
who intimated at the outset that they were not insisting on their defence based
on jurisdiction (but were not conceding the point). In the event, and in light no doubt of
Sheriff McLernan's earlier note to the effect that the facts were not in
dispute, no evidence was led. Instead the sheriff heard argument on the
question whether the pursuers were entitled to damages. The upshot was that he found them so entitled
and granted decree for payment to them of the sum sued for, namely £750, with
expenses of £75. This award was made up
of €269 (or approximately £215) in respect of their out-of-pocket expenses with
the balance (namely £275 each) to compensate them for the stress,
inconvenience, frustration and disruption to their holiday caused by the delay
in the arrival of their baggage.
[5] The defenders lodged a note of appeal against the sheriff's
decision in which they stated that the points of law upon which the appeal was
to proceed were:
1. Was the sheriff entitled in the
circumstances to hold that the pursuers' claim for compensation for stress and
inconvenience was allowable?
2. Esto
such claim was allowable, was the sheriff entitled to find that the pursuers'
claim for stress and inconvenience was not excessive or punitive?
[6] In response to the note of appeal the sheriff prepared an
admirably comprehensive and lucid stated case.
It is unnecessary to set this out in full here, and I simply refer to it
for its terms. It concluded with two
questions of law as follows:
1. Was I entitled in the circumstances
to hold that the pursuers' claim for compensation for stress and inconvenience
was allowable in Scotland having regard to the terms
of articles 19 and 29 of the Montreal Convention?
2. Esto
such claim was allowable, was I entitled to decline to hear argument that the
pursuers' claim for stress and inconvenience was excessive?
[7] At the hearing of the appeal on 15th
August 2008 the first-named pursuer again represented his wife and
himself (with, if I may say so, commendable skill), and the defenders were
represented by counsel.
[8] Opening the appeal counsel began by addressing the first
question of law in the stated case which he submitted should be answered in the
negative. He accepted that in Scotland
there was an abundance of authority for the proposition that at common law, and
in cases both of breach of contract and (as I understood him) delict, a pursuer
could recover damages for stress and inconvenience brought about by the action
of another party. But he submitted that
in the present case the pursuers' rights at common law were constrained by the
terms of article 29 of the Convention with the result that they were entitled
to recover only the out-of-pocket expenses that they had incurred as a result
in the delay in the arrival in Dublin of their baggage. Their claim for damages in respect of the
stress and inconvenience which they had experienced as a result of this delay
was, said counsel, excluded by the last sentence of article 29 since these
damages fell to be categorised as exemplary or non-compensatory. In support of these submissions counsel
referred to four county court decisions in England, namely Brunton -v- Cosmosair (Keighley County Court, 25th November 2002), Wood -v- Ryanair (Redditch County
Court, 18th October 2007), Lucas -v- Avro
plc (Sheffield County Court, 15th March 1994) and Parker -v- TUI UK Travel (Central London County Court, 30th
October 2006).
[9] In response the first-named pursuer referred to Abnett -v- British Airways plc 1997 SC (HL) 26, Mack -v- Glasgow City Council 2006 SC 543, Jarvis -v- Swans Tours Ltd
1973 1 QB 233, Jackson -v- Horizon
Holidays 1975 1 WLR 1468, Reid -v-
Ski Independence 1999 SLT (Sh Ct) 62 and Shawcross and Beaumont: Air Law,
Part VII at paragraphs [219] and [603]. In short he submitted that the sheriff
had been correct to allow his and his wife's claims for damages to compensate
them for the stress and inconvenience which they had experienced as a result of
the delay in the arrival of their baggage.
[10] In my opinion the submission for the pursuers is to be
preferred. I did not understand counsel
for the defenders to argue that the word "damage" where it appears in
article 19 of the Convention was not of itself apt to include, where
appropriate, damages for stress and inconvenience occasioned by delay in the
carriage by air of passengers, baggage and cargo. Rather his point was, as indicated, that such
damages were excluded by the terms of the final sentence of article 29. This begs the question whether the damages
which the sheriff awarded to the pursuers in respect of stress, inconvenience,
frustration and disruption to their holiday were "punitive, exemplary or
non-compensatory". In my opinion it
is perfectly clear that they were none of these. They were certainly not punitive or exemplary
in as much as they were not intended by the sheriff either to punish the
defenders or to make an example of them.
Nor were they non-compensatory.
On the contrary, they were plainly compensatory since they were awarded
to the pursuers by the sheriff to compensate them for the stress,
inconvenience, frustration and disruption to their holiday occasioned to them
by the delay in the arrival of their baggage in Dublin. There was no dispute that, aside from the
terms of the Convention, the pursuers were entitled to recover such damages
under the law of Scotland, and it follows in my
opinion that the first question of law in the stated case should be answered in
the affirmative.
[11] I should add here that I did not find anything in any of the four
county court decisions to which counsel referred me to dissuade me from this
conclusion. The reports of the decisions
in these four cases which were produced at the hearing of the appeal are not
exactly helpful and consist in each case only of what is described as the
"Case Note on Judgment" of the district judge who made the
decision. In Brunton -v- Cosmosair the claimant booked a holiday for himself and
his family to Mallorca. They arrived
in the resort as scheduled but two out of their four items of baggage had not
been loaded onto the aircraft and were still in the United Kingdom. These bags contained clothing and personal
effects and were not delivered to the claimant for over 24 hours. He brought an action against the defendant
claiming general damages for loss of amenity of holiday, distress and
discomfort as a result of the delay to the luggage. According to the report the district judge,
giving judgment for the defendant, held that "damage" under the
Warsaw Convention 1929 did not cover distress, discomfort and the loss of
enjoyment of holiday, only actual damage or pecuniary loss. No indication is given of the district
judge's reasoning, and I would merely observe that the claim in the present
case has been brought under the Montreal Convention 1999 rather than the Warsaw
Convention 1929. Counsel for the
defenders conceded that the later Convention was more orientated towards
consumers than the earlier Convention had been and that, in interpreting the
later Convention, care should be exercised in relying upon the jurisprudence
under the Warsaw Convention. The report
in Brunton ends with a comment: "The Montreal
Convention 1999 now supersedes by the Warsaw Convention and article 29
enshrines this principle" (sic). It
is not said who was the author of this comment (whatever it means), or upon
what basis he or she felt able to make it.
[12] In Wood -v- Ryanair
the claimant entered into a contract of carriage by air with the defendant to
travel from East Midlands Airport to Girona in Spain on 8th May 2007. One item of
the claimant's baggage was delayed and not restored to him until the evening of
12th May 2007. He issued proceedings for £1,003.44 made up
of "£599 for holiday, £29.44 insurance, £84 taxi fares, £50 car park fees,
£171 passports and £70 clothes we had to buy". It appears from the report that the defendant
accepted liability for damage occasioned by the delay in the carriage of this
item of baggage, such liability being limited in accordance with its General Conditions
of Carriage for Passengers and Baggage and under the terms of the Montreal
Convention 1999. On an ex gratia basis the defendant sent the
claimant a cheque for £70 in respect of the amount claimed for the
"clothes we had to buy" but submitted that the other heads of damage
claimed did not arise as a matter of English law in cases governed by the
Convention as they were not damage occasioned by the delay in restoring checked
baggage to a passenger which could be compensated by reimbursement of the local
purchase of necessaries. Reference was
made to article 29 of the Convention to the effect that "non-compensatory
damages shall not be recoverable".
The report concludes that judgment "was given in favour of the claimant
for the equivalent of €80 (£55) (at the time) in respect of the taxi fares
incurred to and from (Girona) Airport to collect his baggage at the local
airport. Noting that a cheque for £70
"for clothes we had to buy" had already been issued in favour of the
claimant, no other heads of damage were allowed. No order was made as to costs". Once
again no indication is given in the report of the reasoning of the district
judge in reaching this decision, and accordingly I derive no assistance from
it.
[13] In Lucas -v- Avro plc
the claimant purchased chartered flight seats from Avro. Because of a mistake on the tickets, the
return flight in fact took place almost 24 hours later than the claimant had
expected. Avro admitted a breach of
contract, and their liability to pay the claimant £165 in respect of hotel,
taxi and telephone expenses, and loss of earnings. However, the claimant also claimed damages
for mental distress and suffering.
According to the report, it was held that a contract which supplied
flight seats only was not a contract to provide peace of mind or freedom from
stress and that therefore damages for mental distress were not recoverable.
Once again no indication is given of the reasoning of the district judge except
that it is said that Haynes -v- James
Charles Dodd (A Firm) 1990 CLY 1524 was followed. I was not referred to
this last case, and in any event the citation given for it suggests that the
report of it is unlikely to be illuminating.
The report of Lucas ends with
the comment: "Warsaw Convention applied (superseded by Montreal Convention
1999) (Article 29 applicable). EU Reg.
261/2004 not in issue". It is not said who was the author of this comment
and I cannot see that it assists in the least towards a resolution of the issue
in this case.
[14] Finally in Parker -v- TUI UK
Ltd the claimant in July 2005 booked a return flight from London to Sydney. The flight itself was provided by the
defendant, trading as ThomsonFly. The
claimant alleged that she had been informed, when she spoke to a representative
of the defendant on the telephone, that she had booked a scheduled flight with
Qantas. When she discovered that the
flight was a charter flight she asked to be upgraded to a premium economy seat
and duly paid an additional £325. The
outbound flight departed from London on 26th December 2005. On 18th January 2006, the date of the return flight, the claimant arrived
at Sydney Airport to be told that her flight
had been delayed by at least 24 hours.
In accordance with its obligations under article 9 of EC Regulation 261/2004 (the
"Denied Boarding Regulations"), the defendant offered all passengers
overnight accommodation (including free transport to and from the airport),
free meals and free telephone calls. The
claimant refused the offer and stated that she would prefer to stay at a
friend's house in Sydney. The flight was in fact delayed by 49
hours. After approximately 24 hours, and
having tried to contact the defendant without success, she decided to pay for
an alternative flight home to London with Qantas. She subsequently raised proceedings against
the defendant which included various heads of claim including £500 as damages
for "loss of enjoyment". The particulars
of claim pleaded reliance upon the Denied Boarding Regulations and section 13
of the Supply of Goods and Services Act 1984.
According to the report, the district judge accepted that the level of
service provided to the claimant had been abysmal, and that the whole
experience had been very upsetting and disappointing for her. After referring to some of the other heads of
claim, the report continues:
As
to the claim for loss of enjoyment, the defendant had no reason to know that
the claimant had come to Australia on holiday. She could have come on business or for a number
of other reasons. This was a contract of
carriage only, not a contract for a holiday. Lucas -v- Acro (sic) 1994 CLY 1444 was
authority for the proposition that general damages for loss of enjoyment are
not recoverable for a breach of a contract for carriage only.
Contracts
for carriage by air were governed by the Montreal Convention 1999. In the well-known case of Sidhu -v- British Airways 1997 1 AC 430, the House of Lords held
that where the Convention applies, no alternative remedy was available at
common law or otherwise. Therefore even
if the claimant was claiming for some other breach of contract (other than her
claim for loss of enjoyment) she could not succeed.
Furthermore,
the defendant referred to other cases - Patel
-v- India Air 1999 CLY 4904, Nanuwa
-v- Lufthansa 1999 CLY 4885 and
Brunton -v- Cosmosair 2002 CLY 232 - which lay down guidance for the
proposition that even if the claim had been made under the Montreal Convention
1999, damages for loss of enjoyment would not be recoverable.
Counsel for the defenders
suggested that this was an important decision, but I am afraid that I am at a
loss to understand how it can be said to assist the defenders in the present
case. Apart from anything else, the pursuers
in this case did not seek damages for loss of enjoyment and the district
judge's comments about the applicability of the Convention are plainly obiter.
[15] The sheriff dealt with the issue raised in the second question of
law at paragraph (17) of the stated case where he wrote:
As
the sheriff presiding at the first hearing had not noted as a defence any
question relating to quantum of damages, and as that was not raised as an issue
in the written note of defence I declined to hear argument on this point,
beyond determining that the level of claim was not so great that it could not
properly be called compensation at all.
I did however consider that the level of damages claim by the pursuer
was compensatory and could not be characterised as punitive or exemplary.
Counsel for the
defenders submitted that this question of law should also be answered in the
negative. He submitted that the sheriff
had erred in not hearing argument on the quantum of the pursuers' claim for
damages for inconvenience and stress, that his approach to this aspect of the
case had been unduly harsh and that no reasonable sheriff would have declined
to allow parties to address him on the matter.
[16] In my opinion the sheriff was quite
correct to refuse to hear any argument on the quantum of the pursuers'
claim. As already indicated, the only
point taken by the defenders in their written note of defence in relation to
the merits of the pursuers' claim was that the defenders had no liability for
the various heads of claim detailed by the pursuers in their letters of 12th
August and 4th September 2007 which were "punitive, exemplary or any other
non-compensatory damages" in terms of article 29 of the Convention. There was no suggestion that, on the
assumption that the defenders were liable in principle to the pursuers, the
damages sought by them were in any event excessive. Nor was this identified by Sheriff McLernan
at the first hearing as an issue of either fact or law in dispute. In these circumstances the pursuers were in my
opinion entitled to assume that when it came to the proof the only issue, apart
from the issue of jurisdiction, would be whether the obligation of the
defenders to pay damages to them was excluded by the terms of article 29 of the
Convention and that the quantification of their claim, if allowed in principle,
would not be an issue. It follows that
the second question of law should also be answered in the affirmative.
[17] For the sake of completeness I should add
that counsel for the defenders also addressed me on the quantification of the
pursuers' claim on the assumption that the sheriff had been wrong to decline to
hear argument on the point. He referred
in particular to the issue of proportionality, suggesting that the damages
awarded by the sheriff to the pursuers had been out of proportion to the amount
of the airfares which they had paid to the defenders. For present purposes I do not need to express
any opinion on this point beyond saying that, like the sheriff, I am not in the
least persuaded that the damages awarded to the pursuers in respect of the
inconvenience and stress occasioned to them by the delay in the arrival of
their baggage were so high that they could not properly be described as
compensatory at all and must have fallen into one or other of the categories of
punitive, exemplary or non-compensatory damages referred to in article 29 of
the Convention.
[20] In addition to the authorities already
cited I was also referred to an article entitled: "The Montreal
Convention: The scram jet of aviation law" by Gary A Gardner and Brian C
McSharry which appears to have been copied from the website of Messrs Wilson
Elser Moskowitz Edelman & Dicker LLP.
[21] The first-named pursuer proposed that no
expenses should be found to or by either of the parties whatever the outcome of
the appeal and I have found accordingly, the pursuers having been successful in
the appeal.
