Airlines may be held liable for damages in spite of limitation clauses

HAKEEM D. OGUNIRAN v. VIRGIN NIGERIA LIMITE D

FEDERAL HIGH COURT (LAGOS DIVISION) (ABANG, J.)

The Plaintiff purchased a Virgin Nigeria Business Class return ticket to Johannesburg, South Africa. On 14th October 2007, he boarded Virgin Nigeria flight number VK202 at Oliver Tambo International Airport, Johannesburg, South Africa at 8:30a.m. for his return journey to Lagos. The Plaintiff and other passengers were delayed on board the aircraft for about three (3) hours without explanation before the flight was eventually cancelled.

The following morning, the passengers were conveyed by bus from the Hotel to the airport and checked in. They were however held at the boarding gate for two (2) hours without being informed of the cause of the delay. A security officer (not a staff of the Defendant) informed them that the flight had been cancelled. Later that day the Defendant endorsed the Plaintiff’s ticket to a South Africa Airways flight bound for Ghana without consulting him. The Plaintiff was downgraded to Economy Class on this flight.

When they arrived in Accra, Ghana at about 11:00p.m., the Plaintiff and other passengers were received by the Defendant’s staff but abandoned at a road side hotel. At his personal expense, the Plaintiff returned to Lagos.

The Plaintiff sued the Defendant claiming damages under the Convention for the Unification of Certain Rules Relating to International Carriage by Air Montreal (1 999) as well as special and general damages.

The Defendant stated that the ticket issued to the Plaintiff contains the terms of the contract of carriage by air and incorporates the defendant’s conditions of carriage. The Defendant further stated that it acted in accordance with its conditions of carriage and is entitled to the benefit of the limitation clause therein.

The Defendant did not file a written address, and the Plaintiff in his address formulated two issues for determination. One of which was:

“Whether by virtue of the facts and evidence before the court, the plaintiff has established and proved entitlement to all the reliefs sought particularly the special and general damages on the preponderance of evidence.”

In answering this question in the affirmative, the court stated as follows:

“Now the question is, can the plaintiff be denied compensation for the incidental expenses incurred not through his fault just because the liability of the defendant is limited to what is stated in the statute? My lords I think no. In this case, the journey that supposed to be for 6 hours lasted 3 days before the plaintiff to got (sic) to his destination.

The agreed destination was for the defendant to carry the plaintiff by air from South Africa to Lagos Nigeria but for no fault of the plaintiff, the defendant endorsed the plaintiff’s ticket to Ghana via South Africa Airways. The plaintiff bought the defendant’s business class ticket but he was subjected to an economy class seat.

Apart from changing the plaintiff’s route from Nigeria to Ghana without plaintiff’s consent, he was made to suffer inhuman and degrading treatment. While in Ghana he was made to enter a danfo bus instead of being chauffeur driven. The plaintiff also stated that he was forced to stay in a low rated hotel without food and made to pay his fare from Ghana to Nigeria through Aero Contractors airline. The defendant has not challenged nor contradicts the facts stated above. That is, there is no evidence based on facts pleaded by the defendant challenging the evidence provided by the plaintiff.

…Under cross examination, the defence witness admitted that the plaintiff is a special passenger and must accordingly be treated as such. That when the flight was cancelled, the plaintiff was supposed to be chauffeured driven to the hotel. That this did not take place rather they were taken in a bus to the airport on 15/10/2007 with the view that the plaintiff would leave South Africa for Lagos. The plaintiff had terrible and humiliating experience.

The defence witness under cross examination also admitted that during the period that the flight was cancelled and during the period of delay that the defendant did not provide the plaintiff light refreshments which the law makes provisions for. That the plaintiff being a business class passenger ought to be lodged in a 4 Star hotel. The plaintiff was lodged in a Starless less(sic) hotel. That the 1st defence witness under cross examination further admitted that the defendant supposed to convey the plaintiff on 1 6/10/2007 from Accra to Nigeria but instead the defendant abandoned him to his fate in Accra Ghana. That the plaintiff had to make his private arrangements for his flight through aero contractor’s airline to Lagos. There is no legally admissible evidence based on the facts pleaded before me that the defendant and his agents took all measures that could reasonably be required to avoid the damage suffered by the plaintiff from 14th to 16th October 2007.

There is nothing before me provided by the defendant to show that it was just impossible for them to take such measures to avoid the damage caused the plaintiff on the days above mentioned.

Therefore in my view that the defendant is not only liable in damages under the Montreal Convention for the delay caused in the flight cancellation but also liable to pay damages to the plaintiff under the head of claims arising from the delay in the cancellation of the flight. I so hold.”

COUNSEL:

Olalekan Yusuff with him Lawal Alebiosu for the Plaintiff.

J. O. Oshikoya for the Defendant.

This summary is fully reported at (2013) 10 CLRN

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