the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Airlines adopt the brace position in TUI/Nelson (1/2)

European airlines are bracing themselves this morning for the ECJ's judgment in the joined cases of TUI and Nelson (Cases C-581/10 and C-629/10) – expected at 9.30am. This will confirm whether or not airlines are liable to compensate passengers of delayed flights in the same way as if the flight had been cancelled. Recap EC Regulation No 261/2004 (the so-called ‘Denied Boarding Regulations’) specifies the care and assistance and/or financial compensation airlines are required to provide to passengers whose flights are delayed or cancelled. Articles 5, 6 and 7 are, by any standard, unambiguous provisions. Together, they make clear that a right to compensation exists where a flight is cancelled, with the amount determined by the length of the flight. No such right to compensation exists in the case of delayed flights. Or so we thought… It came as something of a surprise when in the 2009 case of Sturgeon (Case C-402/07), the ECJ held that passengers whose flights are delayed by three hours or more are in fact entitled to the same compensation as if their flight had been cancelled. They suffer similar inconvenience to those whose flights are cancelled 'at the very last moment', and the principle of equal treatment demands that both sets of passengers be treated equally. In both cases, passengers’ right to compensation is subject to the defence that the delay/cancellation was the result of ‘extraordinary circumstances’.   The analysis in Sturgeon was roundly criticised in light of the clear wording the Regulations (Poland was the only EU member state to back to judgment). A number of English airlines and the IATA launched judicial review proceedings in the High Court with the aim of challenging the validity of Sturgeon. Separately, in a flight delay case in Germany (Nelson v Lufthansa), the Amtsgericht Köln questioned whether Sturgeon was compatible with the Montreal Convention. Both cases were duly referred to the ECJ and heard together in March this year. In a robust and unrepentant Opinion delivered on 15 May, Advocate General Bot advised the ECJ to confirm its decision in Sturgeon without much fresh analysis. In terms of the thornier, technical arguments raised, the A-G concluded that:   The fixed compensation provisions are not in respect of individual damage assessed on an individual basis but rather a ‘standardised and immediate measure’ of compensation, and so do not conflict with the exclusive liability regime of the Montreal Convention (see IATA, Case C-344/04) Sturgeon does not offend the principle of legal certainty. The recitals to the Regulations make clear that passengers are intended to receive a high level of protection. The interpretation that delayed flights are subject to the same fixed compensation as cancelled flights is necessary to give effect to that intention. This last point is all the more extraordinary given that the A-G is proposing to construe the unambiguous wording of the substantive Regulations so as to comply with the plainly ambiguous wording of the non-substantive recitals.    It remains to be seen whether the ECJ will follow this Opinion or mount an embarrassing climb-down. I know which my money is on!

Holidays (and hotels) from Hell - The duty to warn

"To many people holidays are not voyages of discovery, but a ritual of reassurance" (Phillip andrew)   So it was with the Russell family, who took their 4 year old daughter  - the Claimant -  on her (and the family's) first ever holiday together to a Hotel in Spain. At the time that the Holiday was booked the Claimant's parents made it clear that they were not seasoned travellers and specifically requested accommodation whcih was suitable for young children. They were duly reassured and, with their minds at ease, off they went. The family were allocated to a room with a glass balcony door. Shortly after arrival, as her parents were unpacking, the claimant ran towards the door. She failed to realise that it was still shut and collided with it. The glass was only 5mm thin and was not reinforced with any kind of safety film or wiring. It shattered into large jagged pieces and caused serious injury. The Claimant pursued a claim against her tour operator pursuant to the Package (Travel etc) Regulations 1992. There were two primary arguments. The first was that the thickness and nature of the glass did not comply withi applicable local safety regulations or standards in Spain. The second was that, irrespective of local safety standards, there had been a breach of what is commonly known as "the Second Limb of Wilson v Best Travel". The claim came before the Birmingham County Court in Russell v Thomas Cook Tour Operations (2012). The claimant was successful in establishing liability under both heads of her argumenrt. The first issue involved the resolution of competing expert architectural/engineering evidence and is of limited application beyond the specific facts of the case. The second issue is worthy of further consideration, however. The second limb of Wilson v Best Travel (1993) 1 ALL ER 353 is encapsulated in the following passage from Phillip J's (as he then was) judgment: "The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question" There have been very few, if any, reported cases in which the Courts have applied this part of the judgment in Wilson, perhaps because it is not easy to envisage a situation where the relevant feature of the foreign hotel is so dangerous or worrisome that a holidaymaker would choose not to go there at all. In Wilson itself, the adult claimant also collided with a glass door which did not have any safety features, but the judge was not persuaded that this would have dissuaded him from travelling to Greece. In Russell the key difference was the claimant's very young age and the particular circumstances of the family.  The Court found that a reasonable holidaymaker in their position, having been specifically reassured that the room was suitable for a young family, should have been told that the glass was not safety glass and was very thin. It was foreseeable that young children would run around and bump into objects and it was not surprising that the family had sought reassurance in what was there first trip abroad. The judge accepted that had they been given an appropriate warning, they would not have chosen to stay in this particular hotel at all. The decision is a salutary one for both Claimants and Defendants. It serves as a reminder that, whilst compliance or non-compliance with local safety standards often provides the touchstone of liability, there remain a small number of cases which may nonetheless be decided by reference to broader considerations of universal or irreducible safety standards in the specific factual circumstances.