Sato v Amemiya No. DCCIV-04-476
[2004] SADC 70
•25 May 2004
SATO v AMEMIYA
(DCCIV-04-476)REASONS FOR DECISION
21 MAY 2004
Judge Clayton
Civil
The plaintiff purchased an “around the world” airline ticket from a travel agency conducted by the defendant. The ticket which was issued by Malaysian Airlines covered departure from Adelaide on 18th December 2001, a number of stops and then a return to Adelaide on 4th March 2002.
The baggage allowance shown on the ticket was 20 kgs. The plaintiff claimed that she should have been entitled to a baggage allowance of 64 kgs. She claims to have suffered loss by reason of her inability to take the full allowance.
The plaintiff also claimed that the airline’s schedule was changed with the consequence that she was required to spend an extra two days in Los Angeles and incurred additional expense. She alleged that both her mother (who lives in Japan) and she “suffered depression and psychological pain” because she did not arrive in time to attend the first anniversary of her father’s death (i-shuki) which was the main purpose of her trip.
She also claimed interest, damages for stress, time wasted on correspondence and an English corrections service. She complained of panic and anxiety that she experienced in Los Angeles, being there by herself with a degree of disappointment and anger which she said could have been avoided.
The claim was heard before Mr G.F. Hiskey SM on 8th March. The parties appeared in person and each gave sworn evidence. His Honour heard the evidence of the defendant first and then heard the evidence of the plaintiff.
The defendant, Mr Amemiya, acknowledged the sale of the ticket and that the plaintiff may have told him that she wanted to attend the first anniversary of her father’s death in Los Angeles. He denied that he ever told the plaintiff that she was entitled to take 34 kgs of luggage. Her entitlement was 20 kgs.
Mr Amemiya said he had had no control over whether or not Malaysian Airlines cancelled the flight. He said it was the duty of the airline to contact the passenger at the contact number which is provided. He did know that Malaysian Airlines had cancelled the flight, but only after the plaintiff had sent a facsimile message. The plaintiff found out that her flight from Los Angeles to Tokyo had been cancelled when she arrived at her hotel in Los Angeles. She arrived in Los Angeles on 17th January and left on 19th January. She had to spend two extra nights in Los Angeles.
Ms Sato was allowed 20 kgs of luggage. Her luggage in fact weighed 30 kgs and she was charged 10 kgs excess. She paid 42,700 Japanese yen for the excess luggage. That sum converts to $621.38 Australian.
The learned magistrate delivered extempore reasons. He found that the defendant should have spoken to the travel agent who issued the ticket (Metro Travel) and explained to them there was a TransPacific leg involved and that the ticket should have showed an entitlement to carry two pieces of luggage each weighing 32 kgs. For those reasons His Honour found that the plaintiff was entitled to be recompensed by the travel agent for her payment for excess luggage of $621.38.
With respect to the delay in Los Angeles His Honour was not satisfied that the plaintiff was entitled to any compensation. He found that the travel agency had no control over the scheduling of the flights by Malaysian Airlines. He noted that the complaint was that the travel agency was informed of the change of flight, but failed to advise their client. His Honour found that even if the travel agency had advised their client there was no evidence that they could have done anything to substitute a different flight. He found that there was no evidence that the travel agency could have got the plaintiff on to either another Malaysian Airline flight or transferred her ticket to some other airline. He found that the defendant ought to have contacted the plaintiff as a matter of courtesy when the agency became aware of the change of flight, but His Honour was not satisfied that any loss arose as a result of the failure of the defendant to notify her of that flight change. He found that if the travel agency had advised the plaintiff earlier, it would have made no difference. Accordingly that part of the plaintiff’s claim was not allowed.
Judgment was entered for the plaintiff for $621.38.
On the review the plaintiff pursued those components of her claim which had not been allowed by the magistrate.
Paragraph 1 of the Particulars of Claim was allowed by the magistrate and the plaintiff was given a judgment of $621.38 in respect of that amount. The judgment sum has been paid by the defendant and the defendant did not contest that part of the magistrate’s decision.
So far as the balance of the plaintiff’s claim in respect of the 64 kg allowance is concerned, there is no evidence that the plaintiff has suffered any loss other than the excess baggage for which she has been compensated. Nor is there any evidence that the defendant represented to the plaintiff that she was entitled to a greater baggage than that shown on the ticket. The plaintiff produced a brochure called “Round the World Journey” which indicated that passengers were entitled to two pieces of luggage weighing up to 32 kg each; however there was nothing to connect the defendant with the representations in the brochure. Another document described as “Passenger Information” which was to the same effect was also produced by the plaintiff. Again there was no obvious nexus between the document and the defendant.
The plaintiff’s claim for excess baggage was verified by an excess baggage ticket and receipt which established that she had paid 42,700 yen. As I have mentioned, the magistrate allowed $621.38 in respect of the excess baggage paid by the plaintiff. Other than that there is no evidence of any other payment by the plaintiff or loss having been suffered by the plaintiff in respect of the baggage allowance. More importantly, I have not seen any evidence that the defendant had represented that the plaintiff was entitled to more than 20 kg baggage allowance.
The plaintiff claims that she had suffered loss because she only took 30 kg of luggage overseas, rather than the full 64 kg allowance. However, she has not established what additional luggage she would have taken overseas if she did have an entitlement to 64 kg. If she believed that she was entitled to two pieces of 32 kgs each, why did she only take 30 kg with her. Why didn’t she speak with the travel agent or the airline after the ticket was issued which showed that her allowance was only 20 kg. There is no evidence of any reliance by the plaintiff upon a statement that she was entitled to two pieces of 32 kgs each.
So far as the delay in Los Angeles is concerned, there is no basis upon which the defendant can be held responsible for change of flight by the airline. The plaintiff has not established that the agent had any duty to contact her. There is no evidence to establish that the plaintiff would have been able to book a flight with another airline if she had been advised of the change of time earlier. There is no evidence that she attempted to book a flight with another airline. There is no medical evidence which supports the claim for stress, panic and anxiety. The plaintiff’s own evidence does not make out that claim. There is no legal basis for the claim.
As I have mentioned the defendant does not challenge the judgment of $621.38 which he has paid.
I have taken into account those matters set out in the respondent’s submissions. I note that the judgment sum has already been paid by the respondent which the respondent submits “is a reasonable outcome in the circumstances”. I think there is merit in the respondent’s submission that the applicant has not taken responsibility for not reconfirming her flight with Malaysian Airlines earlier. However, as I have mentioned the fundamental consideration is that this defendant is not liable for decisions made by the airline.
There is nothing arising out of the review of the minor civil decision which causes me to vary the decision of the magistrate. In my opinion the learned magistrate was correct in dismissing the remainder of the claims.
For the reasons which I have mentioned I affirm the judgment of Mr GF Hiskey SM made on 8 March 2004.
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