Scottish Case: O’Carroll v Ryanair

I mentioned this case before but I can now provide more information fromthe judgement
O’Carroll v Ryanair, Sheriff Court, 2008Ryanair appealed against a decision of the Sheriff Court to award damagesagainst it for “stress, inconvenience, frustration and disruption” totheir holiday as a result of delayed baggage. The appeal was to theSheriff Principal of Grampian, Highland and Islands at Aberdeen. Thepursuer represented himself and his wife in the Small Claims procedure inthe Sheriff Court but also in the appeal before the Sheriff Principal andwas commended by the latter in how he conducted his case.Ryanair argued in the appeal that the court did not have jurisdiction and thatthe basis of the award for damages were not permissible under Articles 19and 29 of the Montreal Convention. However, once the appeal started, Ryanairdecided not to contest (nor concede) the jurisdictional issue but insteadto focus on the issue of damages. Its counsel conceded that thereis anabundance of Scottish case law authority for the proposition that damagesmay be awardedfor stress and inconvenience as a result of breach ofcontract or in delict (Scots Law version of tort). However, counsel arguedthat this was ruled out by Article 29, which prohibited awards that were”punitive, exemplary or non-compensatory”.
Ryanair cited 4 English county court decisions in favour of their argument. Itshould be pointed out that English and Welsh cases are not binding on theScottish courts, no matter what level they come from (county court, HighCourt, Appeal Courtor Supreme Court). However, such cases may beaccepted as containing persuasive reasoning where they cover an area oflaw which is the same (e.g. Tax Law) or similar (e.g.some aspects ofCommercial Law) or the application of an international convention to whichthe UK is a signatory. In the past, Scots and English courtshad a sharedinterpretation of the Warsaw Convention but more recently have diverged onthe Montreal Convention. The Scots courts have accepted mental stress as ahead of damages under Montreal whereas the English courts do not.
The first case cited was Brunton v Cosmosair (Keighley County Court, 25November 2002). B had booked a holiday for himself and his family inMallorca. On arrival, he discovered that 2 out of 4 caseswere still inthe UK. These contained clothing and other personal items. In addition toreplacement costs, he claimed compensation for loss amenity of theholiday, discomfort and loss of enjoyment. The district judge rejected thelatter on grounds that this was not recoverable under the WarsawConvention.
The Sheriff Principal stated that there was nothing in the report that setout the district court judge’s reasoning and that he was not persuaded bythe decision. Furthermore,the case was based on Warsaw and not Montrealand, as counsel for Ryanair had conceded, the latter “was more orientatedtowards consumers than the earlier Convention” and that therefore thereshould be caution when considering the jurisprudence arising from thecases brought under it.The second case cited by Ryanair was Wood v Ryanair (Redditch County Court, 18October 2007). This involved a flight from East Midlands Airport toGerona. 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) forinsurance, £84 (€100/$130) for taxi, £70 (€84/$108) for replacementclothes, £51 (€61/$79) for car parking costs and £171 (€205/$264)for the cost of passports. Ryanair conceded its responsibility for the delayeddelivery of the luggage and sent an “ex gratia” payment for £70(€84/$108). It rejected the other claims as being outside the provisionsof Montreal. The district judge agreed but awarded £55 (€65/$85) forthe cost of the taxi to and from the airport to collect the delayedluggage.
The Sheriff Principal rejected the decision in Wood, pointing to the lackof 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 onthe tickets issued. The return flight was in fact 24 hours later thanindicated. 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 ongrounds thata flight-only contract did not include an obligation toprovide peace of mind or freedom from distress. Thus, Lucas’ claim formental 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 CountyCourt, 30 October 2006). P had booked a flight from Heathrow to Sydneywith TUI, trading as Thomsonfly. P claimed that she had been informed bythem that she was booked on a scheduled flight with Qantas. On laterdiscovering that she was in fact booked on a chartered flight she paid tobe upgraded to premium economy at a cost of £325 (€388/$502).
On arrival at Sydney airport, she was told that her return flight wasdelayed by 24 hours due to mechanical failure. In accordance with the EURegulation of 2004, she was offered overnight accommodation, freetransport 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 by49 hours. After the initial 24 hour period expired, and havingunsuccessfully tried to contact the defendant, she booked an alternativeflight home to Gatwick with Qantas. TUI refunded the cost of the delayedflight to Heathrow in accordance with the Regulations.
P claimed the cost of the upgrade, taxis to and from her friend’s housein Sydney, the taxi from Gatwick to Heathrow and £500 (€598/$773) forloss of enjoyment. She also claimed that she had not been provided withthe notice of her rights under the Denied Boarding Regulations.
The court held that the Regulations did not permit a free standing PrivateLaw cause of action. Instead, it provided a Public Law remedy to enforcethe rights set out in the Regulations. P could report breaches of theRegulations to the CAA. TUI had reimbursed her for the cost of the flightnot made and had met its obligations in respect of accommodation, meals, telephone calls etc. The contract was a contract of carriage, not acontract for a holiday. It was not therefore a contract for enjoyment andtherefore the claim for loss of enjoyment failed. The contract wasgoverned by the Carriage by Air Acts, implementing the MontrealConvention, and thus no alternative common law remedy was available.
The Sheriff Principal distinguished this case from O’Carroll v Ryanair inthat in the latter there was no claim for loss of enjoyment and that therelevant part cited by Ryanair’s counsel was merely obiter.The Sheriff Principal rejected Ryanair’s appeal. The award of damages forstress and inconvenience was available under Scots Law and was notexcluded by Article 29 of the Montreal Convention as it did not amount topunitive, exemplary or non-compensatory damages. He also rejected a claimby Ryanair based on the proportionality of the damages to the cost of theflight.
John J DownesInternational LegalConsultant

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