➥ CASE SUMMARY OF:
BRITISH AIRWAYS v. MR. P. O. ATOYEBI (2014) – SC
by PipAr Chima
Supreme Court – SC.332/2010
➥ JUDGEMENT DELIVERED ON:
Friday, the 13th day of June, 2014
➥ AREA(S) OF LAW
Negligence in aviation;
➥ NOTABLE DICTA
⦿ RATIONALE FOR DAMAGES AWARD
The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. The rationale behind the compensatory theory for the award of damages is found in the maxim restitutio in integrum. In other words, to restore the injured party to the position he or she was in prior to the injury. – Kekere-Ekun JSC.
⦿ GENERAL VS SPECIAL DAMAGES
It is the law that general damages such as the law will presume to be the natural or probable consequence of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and may be averred generally. On the, other hand, special damage is such loss as the law will not presume to be the consequence of the defendant’s act but which depends in part, on the special circumstances of the case. Special damages must be specifically pleaded and strictly proved. – Kekere-Ekun JSC.
⦿ WHEN APPELLATE COURT WILL INTERFERE IN DAMAGES AWARDED
An award of damages is within the discretionary powers of the court. An appellate court would not usually interfere with a previous award unless satisfied (a) that the trial court acted under a mistake of law; or (b) where the trial court acted in disregard of some principle of law; or (c) where it acted under a misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. – Kekere-Ekun JSC.
Mr. P. O. Atoyebi
➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.
⦿ FOR THE APPELLANT
S.A. Akorede Lawal Esq.,
Otunba Yomi Oshikoya.
⦿ FOR THE RESPONDENT
Femi Atoyebi, SAN.
➥ CASE HISTORY
The respondent, a Senior Advocate of Nigeria, was a first class passenger on the appellant’s flight from London Heathrow Airport on Sunday 7th May 2000, arriving in Lagos in the early hours of Monday 8th May 2000. At the boarding gate in London, on 7th May 2000, the respondent was informed by a staff member of the appellant that one of the pieces of hand baggage he intended to take onto the flight was too bulky and in excess of the weight allowed for hand luggage. He relinquished the bag to the appellant’s staff to be checked into the aircraft’s hold. It was duly tagged and the respondent was given the appropriate baggage tag.
Upon his arrival in Lagos in the morning of 8th May, his bag did not arrive with the flight. He returned to the airport twice a day between 8th and 10th May but his bag did not arrive, even though he had been informed that the bag had been traced at the airport in London and would be sent to Lagos without delay. Notwithstanding the fact that he gave written authority to his personal assistant in London to collect the bag, the appellant refused to release the bag to him and insisted that it would be brought to Lagos. It failed to do so. Having declined to state the contents of the bag because it contained valuables and cash, when it failed to arrive, he was advised to travel back to London to collect it personally.
On 10th May, 2000 the respondent travelled back to London with a business class ticket to collect his bag. He was met on arrival by a member of staff of the Appellant who took him to a large room containing many unshipped bags belonging to Nigerians. He found his bag intact. As a result of the actions of the appellant, the respondent wrote a letter to it dated 11/5/2000, seeking compensation for the manner in which he was treated and the resultant losses incurred by him. The appellant eventually responded by a letter dated 25/8/2000 wherein it offered the respondent the sum of E508.48.
Being utterly dissatisfied with the offer, he instituted an action against the appellant before the Federal High Court Lagos (the trial court) by a writ of summons filed on 6/5/2002.
This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 22/6/2010 affirming the judgment of the Federal High Court, Lagos delivered on 2/4/2008.
➥ ISSUE(S) & RESOLUTION
[APPEAL: SUCCEEDS, IN PART]
I. Whether, having regard to the circumstances of this case, the appellant was entitled to limit its liability to the amount provided for in Article 22 (2) thereof?
RULING: IN RESPONDENT’S FAVOUR.
I.A. The two lower courts, relying on these facts rightly concluded in my view, that having regard to the circumstances of the case, the appellant was not entitled to avail itself of the provisions of the CAO to limit or exclude its liability towards the respondent. I agree with the findings of the two lower courts that the acts of the appellant in this case were reckless and deliberate. It not only failed to deliver the respondent’s checked baggage upon his arrival in Lagos, after several fruitless trips by him to the airport in Lagos over a period of three days on the appellant’s promise that the baggage would arrive, it deliberately refused to deliver the said baggage to his duly authorised agents in London when it was located at their office at Heathrow Airport, and continued to withhold it until the respondent had to travel back to the U.K. to retrieve it at great personal expense. It was clear from the evidence led at the trial that the appellant had no intention of delivering the respondent’s baggage to him in Lagos, having abandoned it at its Lost Baggage store in London. It was on this basis that both courts considered the respondent’s claim for damages.
II. Whether the Respondent is entitled to general and special damages?
RULING: SUCCEEDS, IN PART.
II.A. While it is the law that general damages need not be proved but are presumed to be the natural consequence of the act complained of, I am however unable to agree with the view that in the circumstances of this case the respondent was entitled to an award of E100,000,00 general damages in addition to the award of special damages. It is conceded that the learned Senior Counsel is a respected citizen of this country and a Senior Advocate of Nigeria. With due respect to the Learned Silk, I am of the humble view that he has been fully compensated under subparagraphs (a) – (f) for the wilful misconduct of the appellant. The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head.
I.B. The award of an additional E100,000.00 for stress and inconvenience in travelling, is, in my respectful view, not only manifestly too high but clearly amounts to double compensation. In the circumstances I hold that sufficient reasons have been shown to warrant interference with the concurrent findings of the two lower courts in respect of this head of claim in order to prevent an injustice.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Articles 17, 18, 19 Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (the CAO).
➥ REFERENCED (CASE)
⦿ MEANING OF WILLFUL MISCONDUCT
Horabin V. British Airways Corpn. (1952) 2 ALL ER 1016 @ 1020 B – D, the term ‘wilful misconduct’ was explained thus: “In order to establish wilful misconduct, the plaintiff must satisfy you that the person who did the act knew at the time that he was doing something wrong, and yet did it, notwithstanding, or alternatively, that he did it quite recklessly, not caring whether he was doing the right thing or the wrong thing, quite regardless of the effects of what he was doing on the safety of the aircraft and of the passengers for which and for whom he was responsible… The element of wilfulness is essential in the present case if the plaintiff is to recover more than the E3,000 odd to which he is admittedly entitled.”
⦿ WHAT IS WILLFUL MISCONDUCT IN AVIATION
Harka Air Services (Nig) Ltd v. Emeka Keazor Esq. (2011) 13 NWLR (Pt.1264) 320 at 364 per Rhodes-Vivour JSC stated it to be: “Wilful misconduct is a deliberate wrong act by a pilot, airline staff, or its agent which gives rise to a claim for damages by passengers. When a staff of an airline act with reckless indifference, such unacceptable behavior especially by a professional person amounts to wilful misconduct.”
➥ REFERENCED (OTHERS)