Travel delay - compensation

dawsons76

We travelled as a family on holiday and were delayed by 20hrs coming home.  Travelled with TUI.  Our claim has been rejected due to the airline stating the delay was due to one of the flight crew being unwell.
Our flight was diverted with an overnight stay provided by the airline.

Their justification for the non payment is 'The European Commission has recently published draft guidelines to determine extraordinary circumstances'.  Point 16 - Medical Grounds 'Passenger or crew member becomes seriously Ill or dies on board at short notice before the flight'.
'An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the delay is caused by extraordinary circumstances'

Wondered if any others out there have received responses like this from airlines and whether there is an alternative route I can follow please.

Gratefully of any responses

Westin

Must have been quite serious for them to divert the aircraft. 

I hope that the crew member is okay.

Personally, I wouldn’t wish to benefit from someone’s misfortune.

la531983

Yup, nothing is due. Would you have started this thread if it was a passenger? 

Hope the crew member is/was OK. 

eskbanker

Personally I think it's valid to be sympathetic with the individual while concurrently seeking recompense from their employer, so wouldn't see these as being incompatible.

The subject of what is and isn't extraordinary circumstances is always a tricky one, but TUI's argument doesn't hold much water IMHO.  In particular, their claim about:

'The European Commission has recently published draft guidelines to determine extraordinary circumstances'.  Point 16 - Medical Grounds 'Passenger or crew member becomes seriously Ill or dies on board at short notice before the flight'

ignores the history behind that wording and what's happened since.

That wording is many years old, and was listed in a pre-2014 CAA document about extraordinary circumstances, but the CAA long since recognised the complexity of this area and ceased publishing it, so copies can only now be found at third party sites such as https://www.atlasandboots.com/wp-content/uploads/2014/09/flight-compensation-extraordinary-circumstances.pdf

Obviously the UK is no longer bound by actual EC decisions, even though the core legislation remains the same, and 'draft guidelines' issued by the EC have even less relevance here.

The usually quoted case law on crew sickness is that of Lipton v BA City Flyer, although that isn't an identical scenario, when the crew member involved declared sickness before take-off.  However, the principle in the judgment was that crew sickness must be considered to be inherent in airline operations, and therefore not extraordinary circumstances:

https://www.judiciary.uk/wp-content/uploads/2022/07/Lipton-v-BA-City-Flyer-judgment.pdf

The airline has appealed this judgment to the UK Supreme Court, but it hasn't yet been heard, so the outcome is as yet unknown.  Jet2 have been relying on this appeal when denying claims relating to crew sickness:

Crew sickness
The question of whether compensation should be paid in the event of crew sickness is currently being considered by the Supreme Court (the highest appeal court in the country) in the case of Lipton v BA City Flyer. We are not currently processing claims related to crew sickness until after the ruling. We would be happy to look again at claims after the court has clarified the law.

which is at least a defensible position, but TUI's waffle about draft EU guidelines is just nonsense....

bagand96

eskbanker said:

The usually quoted case law on crew sickness is that of Lipton v BA City Flyer, although that isn't an identical scenario, when the crew member involved declared sickness before take-off.  However, the principle in the judgment was that crew sickness must be considered to be inherent in airline operations, and therefore not extraordinary circumstances:

https://www.judiciary.uk/wp-content/uploads/2022/07/Lipton-v-BA-City-Flyer-judgment.pdf

As ever you make good and educated points on this subject.  I do wonder though how much an airline can be held responsible for.  As you say the Lipton/Cityflyer judgement related to crew sickness before departure.

On the OP's flight the crew had presented as fit and the flight had taken off.  At some point a crew member became unwell.  This is a very rare event but sometimes it will happen.  I wonder what reasonable steps the airline could have taken at this point?  Spare crew sat on every flight ready to replace a crew member?

eskbanker

bagand96 said:

eskbanker said:

The usually quoted case law on crew sickness is that of Lipton v BA City Flyer, although that isn't an identical scenario, when the crew member involved declared sickness before take-off.  However, the principle in the judgment was that crew sickness must be considered to be inherent in airline operations, and therefore not extraordinary circumstances:

https://www.judiciary.uk/wp-content/uploads/2022/07/Lipton-v-BA-City-Flyer-judgment.pdf

As ever you make good and educated points on this subject.  I do wonder though how much an airline can be held responsible for.  As you say the Lipton/Cityflyer judgement related to crew sickness before departure.

On the OP's flight the crew had presented as fit and the flight had taken off.  At some point a crew member became unwell.  This is a very rare event but sometimes it will happen.  I wonder what reasonable steps the airline could have taken at this point?  Spare crew sat on every flight ready to replace a crew member?

Yes, it probably wouldn't be too difficult for TUI to justify not taking uneconomic measures like that, but it would be better if they simply said that rather than trying to hide behind irrelevant copypasta (which incidentally also referred to sickness before the flight)!

dawsons76

eskbanker said:

Personally I think it's valid to be sympathetic with the individual while concurrently seeking recompense from their employer, so wouldn't see these as being incompatible.

The subject of what is and isn't extraordinary circumstances is always a tricky one, but TUI's argument doesn't hold much water IMHO.  In particular, their claim about:

'The European Commission has recently published draft guidelines to determine extraordinary circumstances'.  Point 16 - Medical Grounds 'Passenger or crew member becomes seriously Ill or dies on board at short notice before the flight'

ignores the history behind that wording and what's happened since.

That wording is many years old, and was listed in a pre-2014 CAA document about extraordinary circumstances, but the CAA long since recognised the complexity of this area and ceased publishing it, so copies can only now be found at third party sites such as 

Obviously the UK is no longer bound by actual EC decisions, even though the core legislation remains the same, and 'draft guidelines' issued by the EC have even less relevance here.

The usually quoted case law on crew sickness is that of Lipton v BA City Flyer, although that isn't an identical scenario, when the crew member involved declared sickness before take-off.  However, the principle in the judgment was that crew sickness must be considered to be inherent in airline operations, and therefore not extraordinary circumstances:


The airline has appealed this judgment to the UK Supreme Court, but it hasn't yet been heard, so the outcome is as yet unknown.  

Crew sickness
The question of whether compensation should be paid in the event of crew sickness is currently being considered by the Supreme Court (the highest appeal court in the country) in the case of Lipton v BA City Flyer. We are not currently processing claims related to crew sickness until after the ruling. We would be happy to look again at claims after the court has clarified the law.

which is at least a defensible position, but TUI's waffle about draft EU guidelines is just nonsense....

Thanks 'eskbanker' for your comprehensive response to my query around flight delay and potential compensation from TUI.  Do you think there is anything I can do at this stage to take this further?

eskbanker

dawsons76 said:
Do you think there is anything I can do at this stage to take this further?

To be honest I think it's likely that they're ultimately right that the delay was "caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken", if a crew member was sufficiently unwell for them to have to divert the aircraft - my earlier post was really just picking holes in TUI's citing of irrelevant EC draft guidelines, but it's one thing to expect airlines to have resilience in their resourcing to allow substitution of unavailable crew prior to departure, and another to do so when in the air.

There's nothing to stop you from challenging TUI's rejection on the basis that their rationale is flawed, but the end decision probably wouldn't change - likewise if you escalated your claim to Aviation ADR, which you're perfectly entitled to do, it seems something of a long shot that they'd come down on your side.

dawsons76

Thanks eskbanker for taking the time to reply.  Thanks for your view of my situation, this is very helpful