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The Fat Tax

Daniel Barnett considers yesterday’s Court of Appeal ruling, suggesting that passengers cannot recover compensation for hurt feelings when on board airplanes.

By Daniel Barnett

9 Feb 2012, 11:00

Yesterday, I mentioned an important Court of Appeal case to a very respectable Daily Telegraph journalist.   His resulting article triggered many hundreds of online comments and generated considerable interest from other media outlets.  Yet the Court of Appeal judgment doesn’t, in any way, legitimise the practice of airlines charging more when obese passengers book a flight, as some articles have since suggested (and, indeed, wrongly attributed to me as the source).

So, what is the legal position on a ‘fat tax’ for obese airline passengers?  First, a little bit of nomenclature.  Taxes are levied by governments.  Airlines, in pursuit of profit, do not levy taxes; they charge fares.  Charging a higher fare is not the same as levying a tax.

The business case for imposing an additional levy for overweight passengers may not be as clear as it seems.  Yes, heavier passengers lead to a bit more fuel being consumed.  But not the amount that a second seat costs.  And airlines are unlikely to offer fuel rebates or fare reductions to the two year old children whom they insist take their own seats, but inevitably use less fuel.  Further, airlines assess costs (and thus fares) based upon average passenger and luggage weights over an entire aircraft – and they have lots of data to work this out with.  So the cost of the obese passenger is already factored into the fare.  Accordingly it may be difficult to justify additional charges from a legal perspective – which is doubtless why no airline has yet introduced such fees, despite threats to do so.

Before an airline leaves the ground, the position is governed by The Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (‘the Air Travel Regulations’), which require airlines to take steps to assist disabled passengers with access in airports and on board planes.  This includes taking reasonable steps to help with boarding, storing and retrieving baggage, and also includes an obligation to take steps to ensure a carer is seated next to the disabled passenger.

However, things change the moment the passenger steps onboard.  Once the obese passenger embarks, the Montreal Convention for the Unification of Certain Rules for International Carriage by Air applies.  Amongst other things, this limits airlines’ liability to passengers, including (and this is the important bit) a prohibition on compensation for injury to feelings.

Now, what happens when an airline messes up a passenger’s booking?  That is what yesterdays’ Court of Appeal case was about.  In that case, two disabled passengers – both in wheelchairs – booked adjacent seats for their carers but the airlines messed up the seat allocation.  Various unpleasant things occurred, including one of them falling out his wheelchair onto the cabin floor.  They sued for injury to feelings.  And that’s when the problem arose.

Under UK law, they would have won compensation.  The airline hadn’t met its obligation to seat carers next to disabled passengers under the Air Travel Regulations mentioned above.  But under the Montreal Convention, they couldn’t have compensation for injury to feelings once they embarked.  The two laws clashed – irreconcilably so.

The Court of Appeal said the Montreal Convention had to trump UK law – so the disabled passengers received no compensation.  The injury to feelings had happened once they were onboard, so the Montreal Convention prevented compensation for injury to feelings.  That must be right.  After all, imagine a Korean airline flying an American passenger between London and (say) Iran.  If that passenger is immodestly dressed, should Sharia law be applied in the air?  Or English law?  Or either New York or Korean laws, for that matter. International law has to take precedence.

How does that relate to obese passengers? 

Sometimes – by no means always, but sometimes – obese passengers will also qualify as disabled.  This may be because they have mobility, or other health-related problems.  Or it may be because their obesity is, itself, a side effect of medication being taken for a quite separate problem.  But airlines can never tell whether an obese passenger technically qualifies as disabled.  So to be safe, they need to assume all obese passengers might qualify for rights under the UK Air Travel Regulations.

But since the Montreal Convention trumps those Regulations, it means airlines cannot be sued for compensation if they hurt the feelings of overweight /disabled passengers once they are onboard.  This does not entitle them to charge more.  But it does mean the airline cannot be sued if, for example, a member of cabin crew fails to take steps to protect an obese passenger who is being harangued by an uncomfortable neighbor (think of those recent videos of racial harassment on the London underground).  And it does mean they cannot be sued for embarrassing an obese passenger by asking him to move seats, or something similar.  But that’s all. 

One uncomfortable consequence of this prohibition, as pointed out in an American case also involving the Montreal Convention, is that an airplane is technically free to segregate passengers on grounds of race because they cannot claim injury to feelings for what happens on board (and segregation will not involve financial loss).  But whilst that’s a valid theoretical objection, it’s not likely to happen.  We need to deal with real world problems.

I very much doubt airlines will be introducing fees for obese passengers any time soon – it would be commercial suicide for the first airline to do it, as entire families (and business passengers) would take their business elsewhere.  But it makes good headlines – and hence good publicity - which is why we see RyanAir periodically announcing that it is considering them.

Finally, let’s not forget the plight of the Claimants in the Court of Appeal.  They were treated shoddily by their airlines, who relied on technical provisions in international law to avoid liability.  Genuinely disabled passengers who are treated badly by airlines, not unlucky passengers who are seated next to an obese fellow traveller, are the real victims here.