UK261 – Lipton v BA City Flyer

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  • SimonS1
    Participant

    An important precedent case to be heard in Supreme Court on 6th February on whether crew sickness is an ‘extraordinary circumstance’ which avoids the airline paying compensation.

    The current judgement is at Appeal Court level where the judge ruled in the claimant’s favour stating that crew sickness was inherent in the operation of the airline and thus not extraordinary.

    https://www.supremecourt.uk/cases/uksc-2021-0098.html


    cybertravller
    Participant

    BA City Flyer have some nerve even intimating that crew illness is an extraordinary circumstance. BA have pilots and cabin crew on standby for just such an event and since the pilot was off-duty and at home there would have been enough time to find a replacement.

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    FDOS
    Participant

    @cybertravller

    Maybe that applies at homebase, but how about at outstations?

    I think this appeal could go either way (I can see both arguments).

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    SimonS1
    Participant

    Most recent legal guidance on ‘away from base’ cases was Davies v British Airways (albeit County Court).

    The judge ruled that whilst it may not be cost effective to keep standby crew at outstations this was in effect a business case decision and if the airline chose not to do so it should be prepared to compensate clients.

    https://www.bottonline.co.uk/blog/judge-rules-crew-sickness-does-not-excuse-airlines-from-paying-flight-delay-compensation

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    FDOS
    Participant

    @SimonS1

    The Davies v BA argument is one side, the other side is what can be reasonably expected from a commercial organisation.

    A lawyer I know, who has experience in this sector, says it is unclear who the Supreme Court will side with.

    As I am hardly ‘the airlines’ friend’, I am hoping the decision goes in the Lipton’s favour.

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    ASK1945
    Participant

    FDOS – I also believe it will go either way.

    SimonS1 – decisions at County Court level do not create legal precedent, so have no real relevence for other claims situations.

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    Rferguson2
    Participant

    I struggle to see this as a blanket rule.

    I guess we should reasonably assume that at an airlines base or hub it has standby coverage to protect against crew illness.

    I recently had an experience where my LHR – SIN flight on Qantas was cancelled due to one of the pilots going sick in London. As much as I would love 600 euros I obviously accepted that there was absolutely nothing an airline could do within its power to avoid a cancellation.

    When courts start ruling in favour of passengers in such situations it just ends up biting us all in the ar*e with the airlines in some form or another passing the costs back to the customer.

    And I find it interesting that airlines are liable away from their home base and yet I have so far in the past six months been caught out twice by my LHR flights being cancelled due to ‘ATC restrictions due to staff sickess’ coincidently both early on Sundays. Now frankly, if airlines are expected as a ‘business decision’ to have standby coverage at outstations why can’t ATC (who in the UK case are also ‘businesses’) not be liable in the same regard?

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    SimonS1
    Participant

    @ASK1945 – yes I appreciate it isn’t precedent, however it could be highlighted in a court case or at CEDR as relevant material.


    @RFerguson2
    – to the contrary, it is within the airline’s power to do something by having standby crew at selected outstations (London in your case). Of course we know it would be uneconomic/inefficient to do so, but it’s still within the airline’s control and therefore not a basis for avoiding compensation. It’s just a question of maths.

    Of course one might argue that if the airlines were forced to compensate automatically (rather than forcing people to ‘claim’ what they are due) the maths may be different. 400 people on a delayed 380 paid €600 a go = €240,000 so it might suddenly be cost effective to keep standby crew members downroute at some locations after all…..

    The difference with ATC being that NATS staffing is not within the airline’s control. Although the government is I believe investigating the failure of NATS to maintain acceptable cover.

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    AndrewinHK
    Participant

    To subject an airline to liability due to staff illness is not reasonable in my opinion. The airline has no control over the health of an individual, or even the ability to truly verify if a staff member is ill at all, as it’s a trust-based system, with a doctor’s note taped on top of it, and anyone can get a doctor’s note, so it is open to abuse. The airline reasonably has staff on standby, but as other posters noted, what if you are at an outport, to regularly have staff stationed at outports on standby would be an unreasonable ask. The airline already has the responsibility to provide food, and accommodation and get you to your final destination, to add compensation on top of that is a step too far.


    TominScotland
    Participant

    I guess the challenge in discussion is in relation to what it is reasonable for an airline to do to cover for contingencies such as sickness. Surely, one rule cannot be expected to apply to all contexts. Long-haul with one flight a day (or maybe 5 per week) is very different to high density, short-haul routes. Even with long-haul, it might be reasonable for BA to have standby crew available in Singapore where they crew 3 flights a day, less so in Buenos Aires with just the one flight daily. With pilots, there is also the potential issue of certification to fly different aircraft – QR fly a combination of A350, A380 and B777-300 between Doha and London, for example.

    It is difficult to believe that, if this case goes against the airline, there will not be consequent impacts on the fares that we pay and our access to some thinner routes across airline networks (not just BA).

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    FDOS
    Participant

    Just a couple of thoughts.

    EC261 is intended to be simple to interpret and apply and its focus is on reducing inconvenience to the passenger. This a a pointer to a standard rule for all situations.

    All businesses are responsible for delivering what they promise in their contracts, airlines are no different (even allowing for the Montreal Convention and its limitations). If a business breaches contract through ill employees, unless that is a mass illness, it will be hard to cite Force Majeure, as the injured party will suggest there was a failure to plan reasonably.

    Although I do not have a strong view on how the Supreme Court will rule, I believe these two factors will be axiomatic to their considertations.

    In terms of knock on impact on ticket prices, I do not agree. This is a very rare occurence, has only happened once to me in thousands of flights (GF captain became ill in London, leading to a cancelled flight, for which GF were very good in offering compensation). As prices are heavily influenced by supply and demand, I don’t see any meaningful change.

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    SimonS1
    Participant

    Of course the legal case is to determine whether crew sickness is an inherent part of running a business (as the Court of Appeal held), or an extraordinary event which could not be avoided by all reasonable measures (as BA claim).

    It will be an interesting outcome.

    If the latter a cynic might suggest we prepare for a sudden uprise in crew sickness….

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    ggloria007
    Participant

    Imagine a Fifa match ..Full stadium and England team decides to delay or cancel the match due to goal keepers tummy ache… or imagine my business needs to deliver the pitch and I am poorly, would they cancel the pitch… no way… they will pay second in command to be there on time…


    ggloria007
    Participant

    We are carefully waiting for the outcome of liptons case.

    We have a claim against Jet2 (via Claim Delay company) for the delayed flight from corfu. When we got on plain the pilot explained that the plain was there all the time and that they had problem with overlooking system (I wish I recorded him) … Now Jet2 is saying the flight was delayed due to the staff sickness… hmmm yes we could see this coming

    My question is does this applies only to pilots or all crew…

    I mean they can still fly without some crew members who are basically selling stuff…

    And second question is:
    If the pilot is sick for the 1st flight in the morning, would the delay of the return flight and say connecting flights be classed as extraordinary circumstances….

    I don’t like how they treat passengers so I would like to see Lipons winning… also would demonstrate the winning of common sense vs established arrogant coorporations!

    Our Claim agency is very good and we already got £180×2 for the delayed flight ftom Budapest….


    FDOS
    Participant

    @ggloria007

    Can still fly without some crew members who are basically selling stuff…

    There is a minumum crew/passenger ratio that must be observed under law – IIRC, it is 1 CC member to 50 passengers. So if an aircraft with 189 seats (e.g. 737-800) has 4 cabin crew and one becomes sick, the ratio would go from 1:47.25, which is lawful, to 1:63, which is not and the aircraft could not be despatched until a replacement crew member arrived.

    As to ‘basically selling stuff’, recent events in Japan suggest the safety role of cabin crew is crucial to safety, even though their employer wishes to use them on revenue generating activities for muhc of the time. I saw an inflight medical emergeny on Ryanair and the young #1 crew member and another of his team reacted very well to assist the passenger., who required oxygen was met by paramedics on arrival.

    And second question is:
    If the pilot is sick for the 1st flight in the morning, would the delay of the return flight and say connecting flights be classed as extraordinary circumstances….

    The answer would depend on the details, however there is case law that might scope in compensation under the ‘all reasonable measures’ clause that follows the extraordinary circumstances clause – however each case would require assessment.

    Recently, KLM cancelled a flight on me at the last moment and claimed a weather delay (which seemed highly unlikely), however because the flight was from their hub and they only offered a re-routing 2 days later, it was an easy ‘failed to take all reasonable measures’ claim.

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