Scope creep for airlines on flight delay law

Just when airlines thought that the scope of what constituted 'extraordinary circumstances' had been clarified by a string of court cases over the years, a recent county court judgment in Birmingham has potentially reopened the debate.

This case may expand the ambit of 'extraordinary circumstances' to include delay caused by passengers, even if the behaviour of the passenger leading to the delay was accidental. Theoretically, this opens up airlines to a whole new class of claims where previously they might have been able to avoid paying compensation.In the Birmingham case,
Mrs Edwards and her family brought proceedings against
an airline pursuant to Regulation 261/2004 for compensation for the nine-hour delay they experienced following the actions of a passenger, who accidently broke the emergency door handle on a flight some 24 hours earlier. A replacement part had to be flown in to repair the plane and there was a further delay when the crew attempting to repair the emergency door accidently deployed the emergency slide. The claim was disputed by the airline on the grounds that the factual matrix giving rise to the claim amounted to an 'extraordinary circumstance' so that it was not liable to pay.

'Extraordinary circumstances' is not defined within Regulation 261/2004, although recent case law has provided useful guidance on its scope, in particular Jet2.com Ltd v Ronald Huzar [2014] EWCA Civ 791.
The Court of Appeal in Huzar had to consider whether a technical fault that was not detectable
by a system of maintenance or inspection should be classified as an 'extraordinary circumstance' so that compensation for a delayed flight was not payable.

The court held that it was
not, and focused on the
concept, which required the circumstances to be out of the ordinary. The court appears to have taken the view that technical problems on planes arise as a matter of course in the ordinary operation of the airline's activity; to that extent they are inherent in the normal operation of the carrier.

Following the Huzar line of reasoning, it is perhaps possible to see why in Edwards's case, notwithstanding that the incident was accidental and the airline had no control over the actions of the passenger, the airline was held liable. The case is another example of the move towards strict liability in the flight compensation arena, so that any delay which impacts on operational efficiency is the sole responsibility of the airline, regardless of whether the airline is the cause of it. While there is no suggestion
in the Birmingham case of any culpability on the part of the passenger who broke the door,
it is, for airlines, a worrying example of how widely the ambit of the regulation may
be applied so that the airline becomes liable to pay compensation. This judgment, although non-binding, has the potential to apply by analogy to deliberate acts where, for example, a delay is caused by a drunken passenger in an incident of air rage.

According to data released under a Freedom of Information request, 271 alcohol-fuelled air rage incidents were reported to the Civil Aviation Authority between April 2014 and March 2015, representing a 40 per cent increase on previous figures.
The Tokyo Convention 1963 and the Air Navigation Order 2009 provide that a 'commander'
(the member of the flight crew designated as such by the operator, or the person who is
for the time being the pilot in command of the aircraft) has the ultimate authority on how to address such a situation. Airlines already have powers to exercise 'control' over passengers,
in the sense that they can
refuse boarding to a drunken passenger and can refuse to serve a passenger alcohol on the plane if the commander gives
an instruction to that effect to secure the safety of passengers or crew. Would an airline be liable to pay compensation for flight delay in those circumstances?

Applying some of the logic
of the Birmingham decision, arguably the airline could be considered to be more culpable in such a situation given that it could take some steps in relation to the behaviour of the drunken passenger. We may see a move towards stricter boarding control so that inebriated passengers are refused boarding; this may be by a subjective assessment of their behaviour or perhaps even based on an objective measure, such as a breathalyser. A restriction on alcohol may also carry through onto the plane, with intoxicated passengers being refused further alcohol or bans on duty-free alcohol in the cabin. We may see a move towards CCTV so that any incidents could be captured and the steps taken by the airline to deal with the situation documented, although the
use of CCTV does come with attendant human rights arguments.

It remains to be seen how much further the scope of Regulation 261/2004 will be stretched; airlines will hope
it is not much further.

Rob Williams is a partner and director of the solving disputes business line at Weightmans @Weightmans www.weightmans.com