The Dekagram: 30th October 2023

Articles, News

30/10/2023

Another week, another call for evidence. This time it’s the Justice Committee, seeking evidence to inform its inquiry on the work of the County Court, whether the delay in hearing cases is having a detrimental effect on the administration of justice and on litigants themselves, and what can be done to improve matters. There’s been much talk about increasing the use of technology recently, but with court buildings literally falling apart and cases being bumped due to lack of judicial time, we would have thought that Step One might be the proper resourcing of the civil justice system after years of neglect. If our readers wish to contribute to the enquiry, we have until 14th December to do so using this link: Call for Evidence – Committees – UK Parliament

FW v. LATAM Airlines Group SA (Case C-238/22): the Denied Boarding Regulations

On Thursday the Court of Justice of the European Union handed down its decision in FW v. LATAM Airlines Group SA (Case C-238/22), the latest decision of the Court on Regulation (EC) No 261/2004 (“the Denied Boarding Regulation”).

The passenger had booked a return flight from Frankfurt to Madrid.  When she went to check in on the website for the outbound flight, she discovered that the airline had unilaterally, and without informing her in advance, moved her flight to the previous day.  So she had missed it.  To make things worse, they told her that she would not be permitted to board the return flight either, because she had not taken the outbound flight.

The German court awarded her the cost of the more expensive replacement flights she had had to buy; and €250 compensation under Article 7 of the Denied Boarding Regulation, for the outbound flight.  But it refused her claim for €250 compensation for the return flight.  This was the issue before the CJEU.

The basis of the German court’s decision was that the website debacle had occurred 16 days before the return flight.  The airline had accordingly informed the passenger that they would not carry her on the return flight, more than 2 weeks before that flight.  Article 5(1)(c)(i) denies compensation to passengers whose flights are cancelled with more than 2 weeks’ notice.  The German court applied this “2 weeks’ notice” defence by analogy, to the situation where the flight is not cancelled but the passenger is denied boarding.

The CJEU rejects this approach.  The “2 weeks’ notice” defence is an exception to provisions granting rights to passengers.  It must therefore be interpreted strictly.  It only applies where the flight is cancelled.

In this judgment, the CJEU expands the notion of “denied boarding” in the Denied Boarding Regulation, to include “pre-emptively denied boarding” – that is, where the airline informs the passenger in advance that it is going to deny her boarding.  Read strictly, the Denied Boarding Regulation requires the passenger to present themselves for boarding at the airport, before any entitlement to compensation for denied boarding can arise (see Article 2(j), Article 3(2), and Article 4(3)).  But the CJEU, in this judgment, holds that that was not the intention of the EU legislature.  The passenger need not present themselves at an airport for a flight they have previously been told they will not be allowed to board.  The same would be an unnecessary formality.

So, if an airline ‘bumps’ a passenger more than 2 weeks prior to a flight, it will have to pay that passenger compensation under Article 7.  If enough passengers are involved, it might work out cheaper to cancel the flight.

About the Author

Ben Rodgers was called in 2007 and is a cross border practitioner with a particular specialism in accidents at sea, but he also undertakes general personal injury, insurance and commercial work.

The Ruby Princess: Covid and Cruising

The Federal Court of Australia last week reached a judgment of some global interest in a test case concerning the early days of the Covid-19 pandemic. The case related to the fateful sailing of the Ruby Princess cruise ship, which infamously departed for a round-trip voyage from Sydney on 8th March 2020, later becoming an epidemiological study-point for scientists seeking to understand the workings of the virus in a closed ecosystem. 

Of the 2,671 passengers on board the Ruby Princess for this cruise, more than 660 tested positive for Covid-19, and 28 deaths were linked to the cluster.

Mrs Susan Karpik was such a passenger, who herself was alleged to have contracted Covid-19 on the cruise (the court accepted that she had), and whose husband Henry became critically ill with the virus. She was psychologically affected by her and her husband’s experiences and suffered a recognised adjustment disorder. Mrs Karpik brought a claim against the operators of the cruise, Carnival Plc, for damages. She alleged inter alia breaches of Australian consumer law, negligence and misleading and deceptive conduct in trade or commerce.

As to the first, the judge found that the guarantee to which the company should be held was that the cruise services would be reasonably fit for the purpose of having a safe, relaxing and pleasurable cruise holiday substantially in accordance with the advertised and booked itinerary, and that the services would be of such a nature and quality that they might reasonably be expected to achieve that desired result. The Covid outbreak meant that purpose and that result failed. Indeed the result was probably unachievable at that time and in those circumstances.

As to the third, the judge agreed that the company had, through their conduct, misrepresented that it would be reasonably safe for passengers to embark on the cruise, and that they would do all things reasonably within their ability to enable the passengers to have a safe, relaxing and pleasurable cruise.

The first and third allegations are perhaps of less interest to the audience in this jurisdiction, resting as they do on substantive Australian statutory consumer law (albeit there are clear reads across to the Consumer Rights Act 2015, the Package Travel and Linked Travel Arrangements Regulations 2018 and the Consumer Protection from Unfair Trading Regulations 2008).

Of more interest for readers of this periodical, as to the common law allegations of negligence the Judge found that Carnival owed Mrs Karpik a duty of care which extended to protecting her from the risk of contracting Covid-19 as well as protecting her from the psychiatric harm arising from a close family member (her husband) contracting Covid-19 on the cruise.

The Judge made findings of fact that before the embarkation of passengers, Carnival knew or could be imputed with knowledge that there was a heightened risk of coronavirus on the vessel, and its potentially lethal consequences. They also ought to have known that their screening procedures were unlikely to eliminate all infectious individuals. This was because as early as February 2020, they had experience of coronavirus outbreaks on other vessels owned and operated by them, and knew that asymptomatic and pre-symptomatic people could be infectious.

The Judge then evaluated reasonableness. He determined that the reasonable operator, with the above knowledge, would have cancelled the cruise. Indeed that is what Carnival had offered to do from the very next day (9th March) and imposed from 13th March. They had also indicated that they would cancel if one of nine PCR tests from the previous cruise had returned a positive result.

With such a finding, there was no strict need for the Judge to evaluate the reasonableness of more granular details of the cruise, but he nonetheless found other breaches in respect of passenger safety – failures in warning, screening, social distancing measures, and isolation practices.

Owing to a vagary of Australian law, the Judge determined that Mrs Karpik’s personal injury (the adjustment disorder and a minor Covid infection) did not cross the necessary threshold to merit compensation for non-pecuniary damages; however, he awarded her damages for her pecuniary losses associated with her medical expenses (she had already been refunded the value of the cruise).

Mrs Karpik’s claim was the lead claim in a representative action including other passengers, executors and close family members. With these essential findings made, these will all proceed to their own adjudications.

While the judgment is thorough and engages clearly with the issues, this author cannot help but wonder whether there has been a creep of recall bias. Readers will remember from own experiences how much uncertainty there was in the early days of the pandemic; how ‘the science’ was appropriated by partisan camps; how orthodoxies were born and crumbled in consecutive weeks (or even days). The problem faced in adjudicating cases of this type is obvious: how can the judicial (human) brain forget what it now knows and evaluate human behaviour in its own timefrom a position of naivety? And was there, in fact, in such a moment of mayhem anything which could be held as the objective paragon of reasonableness?

The claims will proceed in this ‘first of its kind’ case. But it remains to be seen whether other common law jurisdictions will follow the same course.

About the Author

Thomas Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

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Ben Rodgers

Call 2007

Thomas Yarrow

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