Case of the Week: Yvonne Okyere-Whalley v KLM Royal Dutch Airlines

_{High Court | Suit No. GJ 240/2015 | Judgment delivered on 20 July 2017 | Ackah-Boafo J.}

Introduction:

Can a passenger on an international flight sue an airline under Ghana’s Constitution or in tort for alleged racial discrimination and injury to feelings occurring during the flight?

This case examined the legal regime governing international carriage by air, the exclusivity of the Warsaw/Montreal Convention framework for claims for damages against international air carriers, and the evidential burden on a passenger alleging racial discrimination.

Facts:

The Plaintiff, Yvonne Okyere-Whalley, travelled with her husband on KLM Flight KL 589 from Amsterdam to Accra on 15^th  February 2015. She alleged that during the flight she was subjected to racial discrimination by a member of the Defendant’s cabin crew and that the crew member subsequently instigated a white passenger to racially abuse her.

During the meal service, the Plaintiff’s husband requested red wine and was handed a bottle together with a plastic cup. When the Plaintiff also requested red wine, the cabin crew member placed a cup on her tray, opened the bottle and poured the wine into the cup. According to the Plaintiff, she repeatedly asked the crew member to stop pouring, but the crew member ignored her requests, poured the entire contents into the cup and walked away. The Plaintiff said that the manner in which she was treated made her feel belittled.

The Plaintiff complained to another crew member, a Purser. According to her, the Purser explained that KLM operated a policy of “reduced service” on flights to and from Ghana and Nigeria because passengers on those flights tended to take wine off the aircraft, and that the manner in which drinks were served could be left to the discretion of cabin crew. The Plaintiff further alleged that the same cabin crew member subsequently incited another passenger to racially abuse her, causing her anxiety and fear for her safety.

KLM denied the allegations. It maintained that it treated passengers equally irrespective of race, colour, creed or place of origin and denied the existence of any “reduced service” policy for Ghanaian and Nigerian passengers. According to KLM, the same selection of drinks was offered on its Ghana and Nigeria routes as on other routes, and cabin crew could either offer a small bottle of wine with a plastic cup or pour the wine into the cup as an added service.

The Plaintiff commenced an action seeking, among other reliefs, a declaration that the alleged discriminatory policy infringed her fundamental human rights under the 1992 Constitution, general damages for discrimination and injury to feelings, and costs.

Issues for Determination:

The issues set down for determination included:

1. Whether KLM had a policy of offering “reduced service” on its Ghana and Nigeria routes and, if so, whether that policy amounted to discrimination based on race and colour.
2. Whether the conduct of KLM’s employee in serving the Plaintiff amounted to an infringement of her right to be free from discrimination.
3. Whether KLM’s employee incited another passenger to verbally abuse the Plaintiff, thereby causing her embarrassment and injured feelings.
4. Whether the conduct of KLM’s employees put the Plaintiff in fear or apprehension for her safety.
5. Whether the Plaintiff was entitled to the reliefs claimed.

The Court additionally considered a fundamental preliminary question: what law governed the relationship between the Plaintiff, as a passenger, and KLM, as an international air carrier?

The Court’s Holding:

The High Court found that:

i. The parties’ relationship was governed by the international conventions regulating international carriage by air.

The Court held that the relationship between the Plaintiff as a passenger and KLM as an international carrier was regulated by the international conventions governing carriage by air, including the Warsaw Convention framework and the Montreal Convention. The Court noted that the Warsaw Convention had been domesticated in Ghana and had previously been recognised as applicable to international carriage in Farmex Ltd v Royal Dutch Airlines (KLM) and Another.

Accordingly, insofar as the allegations arose during international air travel, the Court held that the parties’ relationship was governed by the international carriage conventions and not the 1992 Constitution or another domestic statute.

ii. The Convention provided the exclusive regime for the Plaintiff’s claim for damages.

The Court relied particularly on Article 29 of the Montreal Convention, under which an action for damages arising from the carriage of passengers, baggage or cargo, however founded -whether in contract, tort or otherwise- can only be brought subject to the conditions and limits prescribed by the Convention.

The Plaintiff’s claim for damages for “injury to her feeling” was characterised by the Court as a claim founded in tort. The Court held that the claim fell within the exclusion established by the Montreal Convention and that the 1992 Constitution was therefore not applicable to it.

iii. The Plaintiff failed to prove racial discrimination on the evidence.

Although the Court held that the claim was excluded by the Convention, it nevertheless proceeded to consider the merits of the allegation of racial discrimination because of the nature of the dispute.

The Court expressly acknowledged the existence of racism and systemic racism and recognised that discrimination is frequently proved through circumstantial evidence and inference because direct evidence of a subjective intention to discriminate is seldom available.

However, the Court found no sufficient connection or nexus between the manner in which the Plaintiff was served and her race, colour or place of origin. The Plaintiff bore the burden of establishing discrimination on the balance of probabilities, and the Court held that she had failed to discharge that burden.

The Court therefore dismissed the Plaintiff’s discrimination claim as unproven.

iv. The alleged “reduced service” policy was also not proved.

The Plaintiff’s assertion that KLM maintained a “reduced service” policy on Ghana and Nigeria routes was expressly denied by KLM. The Court held that once the allegation had been denied, the Plaintiff bore the burden of establishing it by admissible and credible evidence.

Her evidence essentially remained that she had been told about the policy by the Purser. In the Court’s view, this was insufficient to discharge the evidential burden.

The Court reaffirmed the principle that where a party makes an assertion which is denied, that party must establish the assertion by admissible and credible evidence from which the alleged fact can properly and safely be inferred.

Accordingly, the Plaintiff’s action was dismissed, and costs of GH¢3,000 were awarded in favour of KLM.

Implication of the Decision:

The decision is significant for international air travel litigation in Ghana. It affirms that where a claim for damages arises from events occurring in the course of international carriage by air, a claimant cannot necessarily avoid the applicable international convention by framing the action under domestic constitutional law, contract or tort. The Court regarded the Convention regime as the governing framework for the carrier’s liability in such circumstances.

The case is also instructive on proof of discrimination. The Court recognised that racial discrimination may be subtle and that direct evidence of discriminatory intent will often be unavailable. It may therefore be established through circumstantial evidence and appropriate inferences. Nevertheless, the claimant must establish a sufficient evidential connection between the treatment complained of and the prohibited ground of discrimination.

Finally, the case reinforces the ordinary rule on the burden of proof: an allegation which is denied does not become established merely because it has been pleaded or asserted. The party relying upon it must lead credible evidence capable of proving it.

Significant Quote:

“[I]t is generally accepted that discrimination is often proven by circumstantial evidence and inference because there is seldom direct evidence of a subjective intention to discriminate.”

– Ackah-Boafo J.

Commentary and Insight:

This case is particularly interesting because the Court did not dismiss the allegation of racial discrimination simply because there was no express racist statement. On the contrary, the Court acknowledged that racism may operate through subtle, unconscious beliefs, biases and prejudices and that discrimination may consequently have to be established by inference from surrounding circumstances.

The difficulty for the Plaintiff was one of proof and legal framework. First, the Court considered her claim for damages arising during international carriage to be governed by the international air-carriage conventions rather than the constitutional basis upon which she had sought relief. Second, even after examining the discrimination allegation on its merits, the Court found that the evidence did not establish the necessary nexus between the treatment she received and her race, colour or origin.

The decision therefore draws an important distinction between unpleasant or disrespectful treatment and legally provable discrimination. A court may accept that a claimant genuinely felt humiliated or belittled without necessarily finding that the treatment occurred because of a protected characteristic. What converts differential or objectionable treatment into actionable racial discrimination is the evidential connection between the conduct complained of and race or another prohibited ground.

For practitioners, the case carries a further lesson: the legal characterisation of a claim cannot be divorced from the regime governing the underlying transaction. Where the dispute arises from international carriage by air, counsel must first determine the scope and effect of the applicable international convention before settling the cause of action and reliefs. As this case demonstrates, the choice of legal foundation may determine whether the claim is maintainable at all.