Travel law update

pi_austin_newman Austin Newman

Now that the sun has finally emerged this week, the Higher Courts have been busy handing down judgements in 2 cases of relevance to travel claims.

STOTT v THOMAS COOK TOUR OPERATORS, Times Law Report 13/3/14.

Montreal Convention Unfair to Disabled Passengers.

The claimant was severely disabled and a permanent wheelchair user. On booking flights to Greece for himself and his wife, he arranged with the defendant air carrier that he would be seated next to his wife so that she could attend to his personal needs. On the return flight, no such seating arrangements were available. His wife encountered extreme difficulties in attendance. The claimant brought a claim against the defendant for compensation and aggravated damages in respect of distress and injury to feelings.

Decision of the Supreme Court.

Damages could not be awarded to a disabled passenger for distress and injury to feelings caused during air travel. Such an award was excluded by the terms of the Montreal Convention. The Convention is intended to deal comprehensively with the carrier’s liability for what might happen physically to passengers between embarking and disembarking. The present claim was based on events which occurred in-flight. What mattered was not the quality of the cause of action but the time and place of the mishap. Accordingly, the damages claim was precluded by the provisions of article 29 of the Convention.

WALL v MUTUELLE de POITIERS ASSURANCES, Times Law Report 10/3/14.

Choice of Expert Governed by English Law.

The claimant was severely injured in a collision whilst cycling on holiday in France. He brought proceedings in the English courts to recover damages for personal injury against the motor insurer of the other driver. Liability was admitted and judgement  entered for damages to be assessed. The claimant wished to rely on a number of expert reports to address his injuries and resulting needs. The defendant contended that a single expert should be instructed, in line with the general practice and procedure in the French courts.

Decision of the Court of Appeal.

The case involved consideration of EC Regulation 864/2007 (Rome II). The central question was whether the issue of expert evidence fell to be decided by (a) the law of the forum (England), on the basis it was a matter of  evidence and procedure, pursuant to article 1.3; or (b) the applicable law (France), on the basis it was a matter relating to the assessment of damage, pursuant to article 15. The court decided the Regulation could not have envisaged that the law of the place where the damage was suffered would govern the way in which opinion was to be given in the court determining the case. Accordingly, the issue of  which expert evidence the court should order is to be determined by English Law.

AUSTIN NEWMAN

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