Is Airline Crew Sickness Extraordinary?

And what does this mean for EU261 compensation rights?

Airline passengers are often confronted with delays or cancellations when flying, causing inconvenience and frustration. One of the reasons for these disruptions is due to extraordinary circumstances such as weather conditions or airport congestion. When a delay or cancellation occurs as a result of something deemed “extraordinary” and outwith the control of the airline, they do not have to pay EU261 compensation. However, their duty of care to provide accommodation and food still applies.

Back to extraordinary circumstances… What happens when the unexpected arises, like when flight crews fall sick? There have been several legal cases in recent years, considering whether or not crew sickness was “extraordinary” and the settled will of the courts was that it was not – this meant that airlines had to pay EU261 compensation when delays and cancellations were the result of crew illness.

However, there’s an ongoing case making it’s way through the English courts which could throw everything up in the air (no pun intended). This case is known as Lipton v BA City Flyer. The issue was whether crew sickness constituted an extraordinary circumstance.

The EU courts have so far taken a different view and this case will only affect delays and cancellations related to a UK flight.

Background to Lipton v BA City Flyer

In 2019, passengers Mr & Mrs Lipton brought a case against BA City Flyer after their flight was cancelled due to the sickness of the captain and first officer. BA City Flyer argued that crew sickness was not an extraordinary circumstance as it was a normal occurrence in the aviation industry. However, the court ruled in favour of BA City Flyer, stating that crew sickness was a foreseeable event but still an extraordinary circumstance within the meaning of EU Regulation 261/2004. This regulation stipulates that airlines are not required to pay compensation to passengers for cancellations or delays caused by extraordinary circumstances that are beyond the airline’s control.

The court’s ruling was based on the fact that while crew sickness was foreseeable, it was still outside of the airline’s control. Furthermore, the court noted that the airline had the responsibility to ensure adequate staffing levels to prevent cancellations due to unforeseeable crew sickness. The decision sets a precedent for future cases involving crew sickness and its classification as an extraordinary circumstance.

In light of the ruling, it’s worth noting that passengers are still entitled to certain rights if their flights are cancelled or delayed due to crew sickness. Airlines are obliged to provide passengers with meals, refreshments, and accommodation if necessary. In addition, passengers may be entitled to a full or partial refund or alternative flight arrangements.

It’s also important to note that while this ruling applies to flights departing from Europe or on EU-based airlines, airlines operating in other regions often have similar regulations in place. It’s always advisable to check with your airline for specific information on their policies regarding crew sickness and compensation.

In conclusion, the Lipton v BA City Flyer case clarified the classification of crew sickness as an extraordinary circumstance under EU regulation 261/2004. While it does not entitle passengers to compensation, it underscores the airline’s responsibility to ensure adequate staffing levels and offers protection in the form of meals, refreshments, accommodation, or alternative flight arrangements. As an airline traveller, it’s important to know your rights and the regulations pertaining to delays and cancellations so that you can navigate any unforeseen circumstances that may arise.

Court of Appeal

The Lipton’s then took the case to the Court of Appeal, which ruled in their favour in March 2021.

This meant that they were entitled to EU261 compensation for the cancellation of their flight and that crew sickness was not an extraordinary event.

Supreme Court

But it’s not over yet…. BA City Flyer has decided to escalate the case to the UK Supreme Court and the case is scheduled to be heard on 6th February 2024.

The Supreme Court’s decision on 6th February 2024 will be a pivotal moment for UK air passenger rights. Already, several UK based airlines, such as Jet2 & Easyjet, have placed claims which include an element of crew illness, on hold until the Supreme Court publishes it’s decision.

In Summary –

Understanding your rights as an airline traveller can go a long way in easing the frustration of delays or cancellations. In the case of Lipton v BA City Flyer, crew sickness was deemed an extraordinary circumstance, highlighting the need for airlines to be proactive in ensuring adequate staffing levels. While passengers may not be entitled to compensation for cancellations or delays due to crew sickness, they are still protected by regulations that guarantee meals, refreshments, accommodation, and alternative flight arrangements where necessary. By staying informed and aware of your rights, you can take the necessary steps to minimise inconvenience and make your travels easier and more enjoyable.

We will update this article again once the Supreme Court decision is known on 6th February 2024.


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