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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> O'Carroll v. Ryanair [2008] ScotSC 23 (11 September 2008) URL: http://www.bailii.org/scot/cases/ScotSC/2008/23.html Cite as: 2008 GWD 31-467, 2009 SCLR 125, [2008] ScotSC 23, 2008 Rep LR 149 |
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SHERIFFDOM OF GRAMPIAN HIGHLAND AND
SA1059/07
JUDGEMENTof SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG 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,
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
[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
[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
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
[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
[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
[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
[12] In Wood -v- Ryanair
the claimant entered into a contract of carriage by air with the defendant to
travel from
[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
As
to the claim for loss of enjoyment, the defendant had no reason to know that
the claimant had come to
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-
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.