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No protection from discrimination for disabled air passengers, court rules

14 February 2012

International air travel law on carrier responsibility takes exclusive precedence over English and European rules against disability discrimination, the Court of Appeal has ruled, prompting fears that disabled passengers will not be protected when travelling by air.

In two unrelated cases, Tony Hook and Christopher Stott, both disabled, claimed against British Airways and Thomas Cook respectively that they had been unlawfully discriminated against while on flights back from Cyprus.

Rejecting the claimants’ compensation for injury to feelings, the court said their situations were covered exclusively by the Montreal Convention, which didn’t contain any provision on liability for breaches of anti-discrimination laws.

The claims, Maurice Kay LJ said in Stott v Thomas Cook and Hook v British Airways [2012] EWCA Civ 66, were “unsustainable”.

“The real injuries to their feelings (for which they deserve and have my sympathy) were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies,” said the vice president of the civil division of the Court of Appeal.

Commenting on the exclusive scope of the convention, the senior judge said that “once one is within its timeline and space governed by the convention, it is the governing instrument in international, European and domestic law”.

It was open to the EU and domestic law makers to improve disabled passengers’ rights in respect of delays or cancellations, provided that they did not “trespass into the domain of the convention”.

But the convention should not be construed to reflect what the judge referred to as a “second strand or sea change” extending passenger rights beyond those in the convention.

According to the Equality and Human Rights Commission, which backed the claimants, the Montreal Convention was “irrelevant” to the claims of disabled travellers because it covered injury, death and loss of baggage, not discrimination and should therefore not affect disabled passengers’ rights.

“This ruling means that, after boarding the plane, disabled passengers are not covered by UK law and the European regulation on air travel. Nor can disabled people seek compensation from the airline if they are discriminated against during a flight,” a spokesperson for the commission said.

John Wadham, the commission’s legal director, said the decision rendered the regulation of air travel for disabled passengers “toothless”.

“It offers no protection for disabled travellers who are discriminated against while flying,” he said. “It also means that disabled passengers cannot get compensation even after an airline has been found to be discriminatory by the courts.”

Christopher Stott, who is severely disabled and a permanent wheelchair user, had a seat booked next to his wife, who is his carer, on both outgoing and return flights between East Midlands Airport and Zante.

On the flight back, despite confirming the arrangement, Thomas Cook allocated him a different seat which they said they could not change. Mr Stott also fell off his wheelchair while boarding, with nobody coming to help him.

The trial judge found he had been discriminated against but that he could not claim compensation under the Montreal Convention.

Tony Hook suffers from mobility and learning disabilities and made similar arrangements for return flights from Gatwick to Paphos on British Airways.

Promises by the airline “failed to materialise” but the trial judge struck out the case by reference to the convention.

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