Airlines can no longer refuse passenger claims for delays caused by crew sickness, reports Ian Taylor
A Supreme Court ruling in July established that air passengers who suffer delays or cancellations due to crew sickness are entitled to compensation.
The judgment in the case of Lipton vs BA Cityflyer that crew sickness does not constitute an ‘extraordinary circumstance’ was welcomed by the Civil Aviation Authority (CAA) which said airlines could “no longer refuse compensation claims by arguing pilot illness counts as an extraordinary circumstance”.
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The CAA warned it would monitor “closely” how airlines comply, with the Supreme Court acknowledging the decision could “affect tens of thousands of claims annually”.
The Court found Mr and Mrs Lipton were entitled to £220 compensation after their BA Cityflyer flight from Milan to London in January 2018 was cancelled when the pilot reported sick an hour before departure.
The Liptons were booked on another flight which arrived two hours 36 minutes after their original scheduled arrival time.
Their claim for compensation was rejected at County Court and High Court hearings. But they won a Court of Appeal ruling in March 2021, leading BA Cityflyer – a British Airways subsidiary – to appeal to the Supreme Court. It heard the case in February.
Airlines have a defence against compensation claims if they can show a delay or cancellation was due to “extraordinary circumstances which could not have been avoided”, which lawyers for BA Cityflyer sought to do.
But the Supreme Court considered the Liptons suffered an “all too familiar tale of frustration and annoyance” and dismissed the appeal.
In doing so, the Court noted the case involved not only whether crew sickness constitutes an ‘extraordinary circumstance’ but also the application of EU air passenger rights legislation in the UK post-Brexit.
In their ruling, the Supreme Court Lord Justices argued: “The delay to the Liptons’ flight took place before Brexit, when the EU text of Regulation 261 applied. . . [and] at the time of the hearing in the Court of Appeal, there were very few cases where staff absence caused the cancellation of or delay to a flight and no [court] authority at all dealing with staff illness.”
However, they noted a European Court of Justice (CJEU) ruling in the case of TAP Portugal v Flightright in 2023 where a flight was cancelled when the entire crew declared themselves unfit to fly following the death of a co-pilot.
The CJEU held that this did not constitute ‘extraordinary circumstances’ as unexpected staff absence “was intrinsically linked to crew planning”.
Lawyers for BA CityFlyer challenged the reference to this case, pointing out CJEU judgments are no longer binding on British courts since Brexit.
But the Supreme Court decided: “The reasoning and result in TAP Portugal is well in line with . . . the pattern of cases which had emerged prior to Brexit. The illness of the captain is a matter which the airline would be expected to cope with in the ordinary course of managing its business.
“’Extraordinary circumstances’ means something out of the ordinary. Staff illness, and the need to accommodate such illness, is a commonplace for any business.”
The Lord Justices added: “We would have reached the same conclusion without the assistance derived from TAP Portugal.
“The non-attendance of the captain due to illness was an inherent part of Cityflyer’s activity and operations and could in no way be categorised as extraordinary.”
BA said it was “disappointed with the decision”, but the finding cannot be challenged. A Supreme Cout ruling is not open to appeal.