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No Inconvenience Damages for Delay: Article 19
Published in the November 2009 issue of Transportation Notes - View Article
In the February edition of this newsletter we reported on the case of Lukács v. United Airlines, which affirms the proposition that, under the Montreal Convention, a passenger who has encountered a delay cannot claim damages for inconvenience which does nothing but cause annoyance or mental anguish. Mr. Lukács sought leave to appeal that decision and this has led to a useful decision of the Court of Appeal for Manitoba, released on November 18, which further affirms and emphasizes the point.
The original complaint was properly the subject of a Small Claims action but as Mr. Lukács relied heavily on case law in the French language and as there were no hearing officers of the Small Claims Court sufficiently conversant with the language to deal with the matter, the hearing was before a judge of the superior court, the Court of Queen’s Bench. All parties agreed to forego any right of appeal to the Court of Queen’s Bench and the only recourse which remained was an appeal to the Court of Appeal, for which leave was required.
The test applied on leave applications is a stringent one. Leave will be given only with respect to an issue of law alone and there must be a genuine doubt as to the correctness of the decision. The applicant is required to demonstrate a reasonable prospect of success and an issue of public importance.
Mr. Lukács had intended to attend an academic conference which he missed because of a flight delay. He claimed damages for “inconvenience and mental anguish” and for “missed academic, research and learning opportunities”. These were denied by the court below and it was common ground that the decision below raised at least one clear question of law alone: whether the judge erred in holding that general damages for inconvenience and mental anguish are not compensable under Article 19 of the Montreal Convention? Mr. Lukács sought to raise a second question, namely whether his claim for missed opportunities should be characterized as a claim for general damages.
As to the clear question of law, Mr. Lukács sought to establish its importance by reference to the fact that it had not before been considered by the Manitoba Court of Appeal. This argument failed as the relevant provision, and its predecessor in the Warsaw Convention, has been considered on many occasions by appellate courts from other jurisdictions. Justice Chartier, for the Manitoba court, found that the jurisprudence is clear: "general damages for inconvenience or mental anguish are not compensable under the Montreal Convention". He concluded that the proposed appeal had no reasonable chance of success and denied leave.
Turning to the second question, that of characterization of the damages, Justice Chartier first found that it was not a question of law alone and this would have been enough to dispose of the leave application. However, the learned justice went on to state that even if it did raise a question of law alone it was not a matter of substance with a prospect of success. This last determination is very welcome as it recognizes that the court should not allow a claimant to escape the effect of well settled law by semantics. The court adopted the words of the United States Court of Appeals for the Fifth Circuit in Lee v. American Airlines: these "so-called inconvenience damages are not easily quantifiable and do not result in real economic loss. These alleged damages are merely an attempted re-characterization of mental anguish damages".
The application for leave to appeal was dismissed, with costs.
Lukács v. United Airlines,
2009 MBCA 111