Supreme Court rules carrier must compensate for delay due to pilot sickness

The Supreme Court has ruled that airline crew sickness does not constitute an ‘extraordinary circumstance’ and air passengers who suffer a flight delay or cancellation as a consequence are entitled to compensation.

The ruling today in the case of Lipton vs BA Cityflyer was hailed as a “landmark decision” and a “significant victory for thousands of passengers” by law firm Bott and Co which specialises in compensation claims for flight delays and cancellations.

Kenneth and Linda Lipton, who brought the claim against British Airways regional subsidiary BA Cityflyer, were booked on a flight from Milan to London in January 2018.

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Their flight was cancelled due to a pilot falling ill at short notice and they were placed on an alternative flight which arrived two hours and 36 minutes later than their original scheduled arrival time.

The Liptons claimed €250 (£220) compensation from BA Cityflyer for the delay under EU Regulation 261 on air passengers’ rights.

Their claim was rejected by a County Court and dismissed a second time on appeal, but they took their claim to the Court of Appeal which reversed the earlier rulings, deciding in their favour.

BA Cityflyer then appealed to the Supreme Court which dismissed the appeal, although it found fault with the legal basis on which the Court of Appeal arrived at its ruling.

Airlines have a defence under Regulation 261 if they can show that a delay or cancellation was the result of “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

However, the Supreme Court unanimously dismissed Cityflyer’s appeal, noting that the purpose of Regulation 261 is to ensure a high level of protection for consumers.

The Court held that the pilot’s failure to turn up for work due to illness was an inherent part of Cityflyer’s activity and could not be categorised as ‘extraordinary’ since staff illness is common in any business.

It acknowledged the decision “has the potential to affect tens of thousands of claims which are made annually”.

Bott and Co said it has more than 1,000 clients “many of whom have been waiting over five years for this outcome” and argued: “The decision paves the way for these passengers to receive the compensation they are entitled to under EU Regulation 261.”

Coby Benson, Bott and Co solicitor, said: “This is an important step forward in protecting air passengers’ rights.

“Airlines must now take their responsibilities seriously and ensure they are adequately staffed to avoid such disruptions and, if such disruptions occur, compensate passengers.”

Rocio Concha, director of policy and Advocacy at consumer association Which?, also described the Supreme Court decision as “highly significant for travellers, confirming as we head into the busy summer period that staff illness is not an acceptable reason to deny paying compensation for significant delays or cancellations”.

Concha argued: “Airlines have too often been able to pass off events travellers might consider ‘business as usual’ as extraordinary circumstances due to a lack of clarity in the rules, and in so doing avoid paying compensation to passengers.”

She called for the Civil Aviation Authority (CAA) to be given the stronger powers it was promised by the previous government, saying: “Even when consumers’ entitlement to compensation is clear, we too often hear of passengers struggling to get the money they are owed.

“It is imperative the government prioritises giving the CAA stronger powers, including direct fining powers, so it can properly hold airlines to account.”

A BA spokesperson said: “We are disappointed with this decision and respect the judgment of the court.”

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