Flight delay and cancellation compensation, Tui/Thomson ONLY

eskbanker

FingersLily said:

There are a number of reasons why I think my claim is valid & I want to pursue this via the small claims court but I have no experience of this. Does anyone with greater knowledge think it’s worth it?

All the stuff about extra time with Aviation ADR and number of crew on a positioning flight is irrelevant, so your case needs to stand or fall on the merits of whether or not there were extraordinary circumstances and if so, whether TUI took reasonable steps to mitigate them - what was the rationale that Aviation ADR gave for rejecting the claim?

FingersLily

Thanks eskbanker. I understand what you’re saying. Aviation ADR said that lightning is an extraordinary circumstance but surely lightning strikes happen all the time?

I provided examples of cases that said things like this are not extraordinary but they dismissed my evidence.

I don’t think TUI did take reasonable steps. Firstly they didn’t even notice the damage. Had they done proper checks, it would’ve been sorted much quicker. Secondly they had no engineers on site, thirdly the engineers said the plane could still fly but they got a replacement plane, fourthly they could’ve sourced a crew much earlier. One stewardess said she was watching her daughter in a dance competition when she suddenly got a call to come in!

eskbanker

FingersLily said:

Aviation ADR said that lightning is an extraordinary circumstance but surely lightning strikes happen all the time?

I provided examples of cases that said things like this are not extraordinary but they dismissed my evidence.

Which examples did you cite and which did the airline use?

I looked into this myself after having a flight cancelled due to a lightning strike, and located Monarch Airlines v Evans and Lee 2016 where the judgment was that “damage caused to an aircraft by a lightning strike is inherent in the normal exercise of the activity of the carrier, and so not exceptional circumstances”, but the airline (correctly, unfortunately) highlighted that it was only a junior country court that doesn't set legal precedent as "it is a local judgment and non-binding".

The airline's counter-argument was based on a much more senior EU court judgment about bird strikes not being 'inherent' and applying the same principle to lightning strikes:

In respect of extraordinary circumstances, the Airline relies on the judgment of the Court of Justice of the European Union (the “CJEU”) in Pešková and Peška v Travel Service A.S (Case C-315/15) in which it was held that:

In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. Accordingly, that collision must be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.

The Airline avers that a lightning strike is an analogous event to a bird strike and therefore submits that the disruption to the Flight was caused by extraordinary circumstances. 

FingersLily said:

I don’t think TUI did take reasonable steps. Firstly they didn’t even notice the damage. Had they done proper checks, it would’ve been sorted much quicker. Secondly they had no engineers on site, thirdly the engineers said the plane could still fly but they got a replacement plane, fourthly they could’ve sourced a crew much earlier. One stewardess said she was watching her daughter in a dance competition when she suddenly got a call to come in!

As above, whether or not a lightning strike constitutes extraordinary circumstances is debatable, but to avoid liability for compensation, the airline has to show that the cancellation (or delay) "could not have been avoided even if all reasonable measures had been taken", so that's a separate test - what was the airline's response to these four points, and how did Aviation ADR address them?

FingersLily

Yes, I cited the exact same case & TUI used the exact same counter argument.

With regards to my other 4 points, Aviation ADR didn’t comment on them at all. They just concluded that, as lightning is considered extraordinary, the claim is denied! My feeling is they rushed it somewhat as I chased the response. Others on my flight who appealed later than me received responses much sooner. They seem to have missed me!

Do you think I have sufficient arguments to give the small claims court a go?

eskbanker

If you're unhappy with Aviation ADR's failure to address material points then its scheme rules suggest that you have the option not to accept their determination and to escalate to the chief executive, so in your shoes I think I'd go down that route rather than taking your chances in court:

https://www.aviationadr.eu/wp-content/uploads/2021/03/Appendix-3-Scheme-Rules.pdf

Personally I wouldn't see your arguments (as represented on here in summarised form) as being compelling enough to make it a slam-dunk court victory - it does seem plausible that a fault is initially deemed non-critical but more onerous pre-flight checks (with engines running, etc) result in a different outcome, and in terms of availability of engineers and spare aircraft and crew, much will depend on where this all happened, i.e. if the flight wasn't from one of their main operating bases then there's usually more latitude applied.  How did the airline respond to your points, both initially to you and then when submitting their defence to the Aviation ADR case?

FingersLily

The airline didn’t comment on my points at all initially. In their defence to the ADR case they said ‘The damage to the Aircraft was only noticed upon arrival into LGW…’. This was untrue as we boarded the plane before they noticed.

They stated ‘it was found that there was significant damage to the left engine & it was determined that the Aircraft would require heavy maintenance with significant downtime to complete repairs’. They provided Attachment 3 as evidence of this. However, Attachment 3 says ‘For the reported damage, TUI proposes to cover the areas in speed tape and continue to operate the aircraft in service until the next heavy maintenance check on 17 Nov 2022’ (this was 05 Nov 2022).

With regards to sourcing a replacement plane, they just said ‘As a result of this (the damage), TUI began to look for a replacement Aircraft…’. No mention of what time they began.

They said they located TOM905P from MAN & it was quickly turned around with crew and departed MAN at 13.48’.

Their own evidence clearly states there were only 2 people on board - no crew!

If they acted so urgently, why did they not notice the damage for over 6 hours after the plane landed? Why did it take so long to source a replacement? Why did we not leave for another 2 hours 20 mins after the replacement arrived?

eskbanker

FingersLily said:

The airline didn’t comment on my points at all initially. In their defence to the ADR case they said ‘The damage to the Aircraft was only noticed upon arrival into LGW…’. This was untrue as we boarded the plane before they noticed. I take your point that it wouldn't seem logical to board a plane known to be defective, but it seems plausible to me that it would have been noticed but not initially considered critical.

They stated ‘it was found that there was significant damage to the left engine & it was determined that the Aircraft would require heavy maintenance with significant downtime to complete repairs’. They provided Attachment 3 as evidence of this. However, Attachment 3 says ‘For the reported damage, TUI proposes to cover the areas in speed tape and continue to operate the aircraft in service until the next heavy maintenance check on 17 Nov 2022’ (this was 05 Nov 2022). That does seem inconsistent on the face of it.

With regards to sourcing a replacement plane, they just said ‘As a result of this (the damage), TUI began to look for a replacement Aircraft…’. No mention of what time they began. Are you suspecting that they dragged their heels?

They said they located TOM905P from MAN & it was quickly turned around with crew and departed MAN at 13.48’.

Their own evidence clearly states there were only 2 people on board - no crew! 'Crew' can mean flight crew specifically rather than cabin crew.

If they acted so urgently, why did they not notice the damage for over 6 hours after the plane landed? How do you know they didn't - is there a clear timeline shown?

Why did it take so long to source a replacement? If you're suggesting that they noticed the damage 6 hours after landing and the replacement plane was in the air at 13:48, how long did it take to source it?

Why did we not leave for another 2 hours 20 mins after the replacement arrived? Refuelling, rounding up standby cabin (or flight) crew, ATC slot restrictions, weather, ....?

I've just added some devil's advocate comments above, but impossible to comment meaningfully on small extracts really - I'd still suggest escalating within Aviation ADR as the next step rather than proceeding to court, as there do seem to be some inconsistencies and questionable actions, but nothing that leaps out and demonstrates conclusively that their response was objectively unreasonable....

FingersLily

Thanks for your help, I really appreciate it.

I have escalated with Aviation ADR but they take so long to respond!

I still believe they completely messed this up. Another passenger was in the cockpit with her son & she said the crew had absolutely no idea about the lightning damage. Apparently a passenger received a text message & asked a hostess if there was a problem. The hostess passed it on to the pilot who contacted someone. That means they didn’t communicate the damage to the pilot for over 6 hours!

 I don’t think Aviation ADR will do anything anyway - once they’ve made a decision I believe that’s final so I’ll still have to try the Small Claims Court.

FingersLily

One further question - if I do go down the route of Small Claims Court, can I claim for 2 flights in the same action or do I have to do 2 separate claims?

The issue is that my outgoing flight was delayed by over 8 hours as discussed above.

My return flight was delayed over 3.5 hours.

Aviation ADR rejected my claims for both but I strongly feel I have plenty of arguments to win both. The vast majority of my evidence was totally ignored.

Thank you

eskbanker

FingersLily said:

One further question - if I do go down the route of Small Claims Court, can I claim for 2 flights in the same action or do I have to do 2 separate claims?

The issue is that my outgoing flight was delayed by over 8 hours as discussed above.

My return flight was delayed over 3.5 hours.

Aviation ADR rejected my claims for both but I strongly feel I have plenty of arguments to win both. The vast majority of my evidence was totally ignored.

Thank you

To the best of my knowledge you can raise a small claims actions for the total you contend they owe you, rather than having to split into multiple cases.  What's the summary of the second case, in terms of what happened and what the key arguments on both sides were?

Personally I'd still be cautious about doing so if you were unable to persuade either the airline or Aviation ADR of the strength of your arguments (which are inevitably of varying relevance), and if you're casting doubt on the competence of the latter then escalating to their chief executive would seem a lower risk route than proceeding straight to court.