Award damages for “stress, inconvenience, frustration and disruption” to their holiday as a result of delayed baggage

O’Carroll v Ryanair, Sheriff Court, 2008 R appealed against a decision of the Sheriff Court to award damages against it for “stress, inconvenience, frustration and disruption” to their holiday as a result of delayed baggage. The appeal was to the Sheriff Principal of Grampian, Highland and Islands at Aberdeen. The pursuer represented himself and his wife in the Small Claims procedure in the Sheriff Court but also in the appeal before the Sheriff Principal and was commended by the latter in how he conducted his case. R argued in the appeal that the court did not have jurisdiction and that the basis of the award for damages were not permissable under Articles 19 and 29 of the Montreal Convention. However, once the appeal started, R decided not to contest (nor conceed) the jurisdictional issue but instead to focus on the issue of damages. Its counsel conceeded that thereis an abundance of Scottish case law authority for the proposition that damages may be awardedfor stress and inconvenience as a result of breach of contract or in delict (Scots Law version of tort). However, counsel argued that this was ruled out by Article 29, which prohibited awards that were “punitive, exemplary or non-compensatory”. R cited 4 English county court decisions in favour of their argument. It should be pointed out that English and Welsh cases are not binding on the Scottish courts, no matter what level they come from (county court, High Court, Appeal Courtor Supreme Court). However, such cases may be accepted as containing persuasive reasoning where they cover an area of law which is the same (e.g. Tax Law) or similar (e.g.some aspects of Commercial Law) or the application of an international convention to which the UK is a signatory. In the past, Scots and English courtshad a shared interpretation of the Warsaw Convention but more recently have diverged on the Montreal Convention. The Scots courts have accepted mental stress as a head of damages under Montreal whereas the English courts do not. The first case cited was Brunton v Cosmosair (Keighley County Court, 25 November 2002). B had booked a holiday for himself and his family in Mallorca. On arrival, he discovered that 2 out of 4 caseswere still in the UK. These contained clothing and other personal items. In addition to replacement costs, he claimed compensation for loss amenity of the holiday, discomfort and loss of enjoyment. The district judge rejected the latter on grounds that this was not recoverable under the Warsaw Convention. The Sheriff Principal stated that there was nothing in the report that set out the district court judge’s reasoning and that he was not persuaded by the decision. Furthermore,the case was based on Warsaw and not Montreal and, as counsel for R had conceeded, the latter “was more orientated towards consumers than the earlier Convention” and that therefor there should be caution when considering the jurisprudence arising from the cases brought under it. The second case cited by R was Wood v Ryanair (Redditch County Court, 18 October 2007). This involved a flight from East Midlands Airport to Girona. One item of luggage was delayed for 4 days. W claimed £599 (€717/$926) for the cost of the holiday, £29.44 (€35.22/$45.51) for insurance, £84 (€100/$130) for taxi, £70 (€84/$108) for replacement clothes, £51 (€61/$79) for car parking costs and £171 (€205/$264) for the cost of passports. R conceeded its responsiblility for the delayed delivery of the luggage and sent an “ex gratia” payment for £70 (€84/$108). It rejected the other claims as being outside the provisions of Montreal. The district judge agreed but awarded £55 (€65/$85) for the cost of the taxi to and from the airport to collect the delayed luggage. The Sheriff Principal rejected the decision in Wood, pointing to the lack of reasoning in the report. The third case cited was Lucas v Avro (Sheffield County Court, 15 March, 1994). Lucas booked a flight-only holiday from Avro. A mistake was made on the tickets issued. The return flight was in fact 24 hours later than indicated. Avro accepted liability and agreed to pay £165 (€197/$255) for hotel, taxi and telephone expenses and for loss of earnings. However, the district judge rejected a claim for damages for mental distress on grounds that a flight-only contract did not include an obligation to provide peace of mind or freedom from distress. Thus, Lucas’ claim for mental distress was rejected. Again, the Sheriff Principal rejected this case as not being persuasive. There was no legal reasoning for the judge’s decision. The fourth case cited was Parker v TUI UK Travel (Central London County Court, 30 October 2006). P had booked a flight from Heathrow to Sydney with TUI, trading as Thomsonfly. P claimed that she had been informed by them that she was booked on a scheduled flight with Qantas. On later discovering that she was in fact booked on a chartered flight she paid to be upgraded to “premium economy” at a cost of £325 (€388/$502). On arrival at Sydney airport, she was told that her return flight was delayed by 24 hours due to mechanical failure. In accordance with the EU Regulation of 2004, she was offered overnight accommodation, free transport to and from the airport, free meals and free telephone calls. She refused these, preferring to stay at a friend’s house in Sydney. She was subsequently told that the return flight would in fact delayed by 49 hours. After the initial 24 hour period expired, and having unsuccessfully tried to contact the defendant, she booked an alternative flight home to Gatwick with Qantas. TUI refunded the cost of the delayed flight to Heathrow in accordance with the Regulations. P claimed the cost of the upgrade, taxis to and from her friend’s house in Sydney, the taxi from Gatwick to Heathrow and £500 (€598/$773) for loss of enjoyment. She also claimed that she had not been provided with the notice of her rights under the Denied Boarding Regulations. The court held that the Regulations did not permit a free standing Private Law cause of action. Instead, it provided a Public Law remedy to enforce the rights set out in the Regulations. P could report breaches of the Regulations to the CAA. TUI had reimbursed her for the cost of the flight not made and had met its obligations in respect of accommodation, meals, telephone calls etc. The contract was a contract of carriage, not a contract for a holiday. It was not therefore a contract for enjoyment and therefore the claim for loss of enjoyment failed. The contract was governed by the Carriage by Air Acts, implementing the Montreal Convention, and thus no alternative common law remedy was available. The Sheriff Principal distinguished this case from O’Carroll v Ryanair in that in the latter there was no claim for loss of enjoyment and that the relevant part cited by Ryanair’s counsel was merely obiter. The Sheriff Principal rejected Ryanair’s appeal. The award of damages for stress and inconvenience was available under Scots Law and was not excluded by Article 29 of the Montreal Convention as it did not amount to punitive, exemplary or non-compensatory damages. He also rejected a claim by R based on the proportionality of the damages to the cost of the flight.

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