In 2018 the claimants were passengers with the defendant air carrier. Their flight from Milan to London City airport was cancelled because the captain did not attend for work because of illness. The claimants were re-booked onto another flight and eventually arrived in London 2 hours and 36 minutes after their scheduled arrival time. They brought an action against the defendant claiming compensation for cancellation of their flight provided for by article 5(1) of Parliament and Council Regulation (EC) No 261/2004, read in conjunction with article 7(1)(a). The carrier maintained that, because the captain became ill while he was off-duty, his non-attendance was an extraordinary circumstance within the meaning of article 5(3) which could not have been avoided even if all reasonable measures had been taken. The judge dismissed an appeal against dismissal of the claim. The claimants appealed on the basis that the captain’s non-attendance did not amount to an extraordinary circumstance, and that it could not matter whether the captain became ill when he was on or off duty.
On the appeal—
Held, appeal allowed. (1) The test for “extraordinary circumstances” under article 5(3) of the Regulation comprised two limbs: inherency and control, of which the crucial question was that of inherency. Authorities on the scope and operation of article 5(3) came under three general headings: mechanical defects in the aircraft; external or one-off events; and staff absence. There were very few cases concerned with the application of article 5(3) to situations where staff absence had caused the cancellation of or significant delay to a flight. There was no authority at all dealing with staff illness. It was accepted that the defendant had the burden of proving that the captain’s non-attendance due to illness was an “extraordinary circumstance”. The defendant submitted that the court’s investigation should not stop with the discovery that the pilot did not attend because he was ill, but should extend to investigating when, why and how he became ill; and that in the present case the critical factor—which meant that the captain’s illness was not an inherent part of their activity as an air carrier- was that he became ill when he was off duty. The defendant had not made out a case of extraordinary circumstances for the following reasons: (i) the ordinary meaning of the words of the Regulation, (ii) consistency with the authorities on staff absence. Staff absence was not one of the factors identified in Recital 14 as indicative of “exceptional circumstances”, (iii) consistency with the authorities in respect of technical defects in the aircraft. Defects were held to be an inherent part of an air carrier’s activity and not an extraordinary circumstance, (iv) consistency with the authorities in respect of external or one-off events, (v) the obvious conclusion to the inherency analysis. The pilot of an aircraft was critical to the air carrier’s activity and operations. His attendance for work was an inherent part of the carrier’s operating system. If he failed to attend work due to illness, that non-attendance was “inherent in the normal exercise of the activity of the air carrier concerned”. It simply could not matter to that analysis if the captain fell ill an hour before he clocked on for work, rather than half an hour afterwards. It was unrealistic to say that the captain was only an inherent part of the airline’s operation when he had clocked on for work, and that in the minutes leading up to that point, he was somehow irrelevant to the air carrier’s activity. On the facts the defendant had not made out a case of extraordinary circumstances, (vi) a final reason for concluding that precisely when, why or how the staff member in question fell ill was irrelevant to the proper operation of article 5 arose from the nature of the Regulation itself. The Regulation was concerned to provide a standardised, if modest, level of compensation to those who suffered the inconvenience of cancelled or delayed flights. The exception at article 5(3) had to be considered in that light. Most of the claims were assigned to the Small Claims Track, and the vast bulk of them should be capable of being determined on the papers. In those circumstances, it was contrary to the scheme of the Regulation to allow the carrier to embark on a complex analysis of precisely when, why or how a staff member became ill so as to explain their absence and the subsequent cancellation of the flight. In any event there were obvious difficulties in identifying precisely when, why or how someone first fell ill. Furthermore, those issues were rendered all the more complex by the likely absence of any medical records. Accordingly, the sort of investigation into causation which the defendant urged in the present case was inconsistent with the authorities and inappropriate for a claim for compensation under the Regulation. The non-attendance of the captain due to illness was an inherent part of the defendant’s activity and operations as an air carrier, and could in no way be categorised as extraordinary ( paras 27, 29–50, 51, 84, 85).
(2) Applicable principles and approach to be adopted to construing Regulation after withdrawal from EU ( post, paras 52–84)
Michael Rawlinson QC and Max Archer (instructed by Hayward Baker Solicitors, Fareham) for the claimants.
Akhil Shah QC and Nicolas Damnjanovic (instructed by Norton Rose Fulbright LLP) for the defendant.