Is airline crew sickness an extraordinary circumstance?

Next week, on 6 February 2024, the UK Supreme Court is set to hear the air carrier's appeal of the Court of Appeal's judgment in Lipton & another v BA Cityflyer Ltd. The Court of Appeal's judgment can be found here.

The UK Supreme Court will consider the appeal concerning the meaning of “extraordinary circumstances” within the meaning of EC Regulation 261/2004 (currently part of retained EU law), which provides for air carriers to pay compensation to passengers of cancelled  (and delayed) flights.

The key consideration is whether a pilot unexpectedly falling ill while off-duty constituted an, "extraordinary circumstance which could not have been avoided even if all reasonable measures had been taken".

The Respondents' case

On 30 January 2018, Mr and Mrs Lipton were booked on a flight from Milan to London City Airport, operated by BA Cityflyer Ltd. The flight was scheduled to depart from Milan at 17.05 local time. The captain reported that he was not feeling well at 16.05 local time The flight was cancelled due to there being no replacement captain available to operate the flight within a reasonable time. The Liptons were re-booked onto another flight and eventually arrived at London City 2 hours and 36 minutes after their scheduled arrival time. They sought compensation under EC Regulation 261/2004 (“the Regulation”).

The Appellant's case

The captain reported illness when he was off duty and not at his place of work. The Appellant argues that this is an external event outside of the airline's control and therefore an exceptional circumstance within Article 5 of the Regulation. The carrier discharged its burden of proof. The District Judge at first instance and the Circuit judge who heard the first appeal determined that it was an extraordinary circumstance.

The Court of Appeal decision

The Court of Appeal determined that the pilot being taken ill whilst off duty was not an extraordinary circumstance and set out six reasons for this finding. The previous decisions were overturned and judgment was entered for the Claimants (the passengers). Fundamentally, “the non-attendance of the captain due to illness was an inherent part of the respondent’s activity and operations as an air carrier”.

Lord Justice Green also provided a helpful explanation of how the Regulation is now part of domestic law, post-Brexit.

We now await the hearing of the carrier's appeal to the UK Supreme Court, and the decision thereafter, which will have an impact upon numerous claims for delayed and cancelled flights in the future.