Law, Disability & Social Change

By Laverne Jacobs (Associate Professor, Windsor Law)
and Chandima Karunanayaka (JD/MSW Candidate ’16)

Mr. Stott was a passenger with a mobility limitation. He was a permanent wheelchair user and paralyzed from the shoulders down. In 2008, he and his wife booked a return flight through Thomas Cook Tour Operators.  Due to his physical condition, Mr. Stott requested at the time of booking that his wife be seated next to him as she assisted with his personal care during flights. The airline reassured him that this request would be honoured. The outbound flight passed without incident. However, the request was not complied with on the return flight. At check-in, when Mr. Stott was told that his wife would not be seated next to him, the crew informed him that the matter would be resolved at the gate. But, at the gate, Mr. Stott was told that passengers had already boarded the aircraft and no other arrangements could be made. The airline made no attempt to ask nearby passengers to relocate to accommodate Mr. Stott. This arrangement brought great difficulty during the flight. To make matters worse, Mr. Stott’s wheelchair overturned on boarding and he fell to the floor of the airplane cabin. As the trial judge recorded in his judgment, those present did not know how to deal with the situation and “Mr Stott felt extremely embarrassed, humiliated and angry and his wife, who had recently suffered serious ill-health herself, was also very distressed at the chaotic scenes.” The Stotts sought damages for discomfort and injury to feelings suffered during the flight. At first instance, the trial judge indicated that he would have awarded £2500 as compensation, had it not been for the Montréal Convention on international air carriage which governed the incident and precluded the awarding of damages for injury to feelings. (The Montréal Convention covers “bodily injury” but this term has been interpreted in past jurisprudence to exclude injury to feelings.) The Court of Appeal agreed. On further appeal, the UK Supreme Court asserted that a claim for damages in breach of equality laws should not be regarded outside of the substantive scope of the Convention. Drawing on US jurisprudence, the UK Supreme Court held that what triggers the application of the Convention  is not the nature of the cause of the action but the time and place of the incident. The Convention is designed to deal comprehensively with carriers’ liability for occurrences to passengers between embarking and disembarking. (Stott, paragraph 61). Claiming that his rights to equality or human rights had been violated was therefore unfortunately not a way to obtain further compensation beyond what was available under the Montréal Convention. If injury to feelings could not be compensated under the Montréal Convention, authority for which is conferred to the jurisdiction of the Civil Aviation Authority, the only other option is to bring a civil suit in court. This is what Mr. Stott had attempted and he was supported by the Equality & Human Rights Commission and by the Secretary of State for Transport as an intervener. However, the UK Supreme Court held that trying to bring a claim outside of the limitations  of the Montréal Convention and its designated decision-making bodies was tantamount to trying to go outside of the system of shared expectations for liability to which carriers had agreed at the time of its formation. Ultimately, this means that Mr. Stott was left with a court decision suggesting that he was entitled to compensation for his humiliation but no way to claim this recompense. And the UK Supreme Court speaks quite passionately about the problem – which Lady Hale terms a “grave injustice” – imploring lawmakers to resolve it. (Stott, paragraph 63).

A note on the UK Disability RegulationsIn the UK, the UK Disability Regulations have been designed to put into effect the EC Disability Regulation (Regulation (EC) No 1107/2006 of the European Parliament and the Council) which concerns the rights of disabled persons and persons with reduced mobility traveling by air. Although the EC Disability Regulation allows for Member States to pay compensation as a penalty for infringing the right to have “opportunities for air travel comparable to those of other citizens”, not every Member State has introduced compensation for matters beyond bodily injury. As Thomas Cook’s operating license is issued by a member country of the European Union which is a signatory to the Montreal Convention, Thomas Cook is bound by the Montreal Convention. The Convention is enforced by each member country through its disability regulations. The appellant brought a claim for the violation of the Civil Aviation Regulations (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility), also known as the UK Disability Regulations, for damages for the discomfort and injury to feelings he suffered during the flight. Thomas Cook argued that the Montreal Convention instead applied, as the incident took place inside the aircraft thus precluding him from compensation for emotional injuries. Pursuant to Article 29 of the Convention, only bodily injuries would be compensated. The Supreme Court agreed with Thomas Cook Operators, and considered the claim to be outside the substantive and temporal scope of the Montreal Convention.

Commentary on Stott v Thomas Cook: Vindicating disability rights violations in the face of exclusive jurisdiction This case presents a particularly complicated question of jurisdiction and illustrates a significant challenge that can arise when transportation authorities address disability rights matters. In Canada, a similar issue arises. Under the Canada Transportation Act, the Canadian Transportation Agency has exclusive jurisdiction over complaints about federal air travel related to mobility and disability. The Agency may to inquire into the matter and may provide remedies in the nature of imposing changes to the policies of airlines. Although compensation for damages to property have been awarded, the types of damages that would be provided for breaches of human rights on disability grounds under the Canadian Human Right Act are not available under the Canada Transportation Act. This is so even though the Canadian Transportation Agency and the Canadian Human Right Commission are required to work together to coordinate policies and practices. What is the solution? In Stott, the Supreme Court called for an amendment to the Montréal Convention so that it considers human rights violations, and for the Civil Aviation Authority to use other modes of regulatory enforcement at its disposal. Finally, the reaction of the staff of the airline in the Stott case suggests a larger systemic problem. Based on the facts as they were presented, it would appear that the staff viewed the accommodations Stott requested as to be a privilege or a favour rather than a right he held. Policy reform is important to challenge discrimination but this case demonstrates that it goes far beyond that. The path towards equality demands addressing the discriminatory attitudes held in society.

See: Stott v Thomas Cook Tour Operators Limited [2014] UKSC 15