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Forums Other Flight changes and cancellations help BA refused compensation – crew sickness

  • sara 32 posts

    Hi. I’m helping a friend with a flight delay claim, and I’d appreciate the wisdom of the group here:

    1) BA have refused to pay compensation through the form on their website because they say the cause was a member of crew reporting sick, which they say is out of their control and therefore exempt from compensation. I’m aware that there is case law that says this is not exceptional circumstance and therefore not exempt. Should my friend reply and make this point and give BA a second chance (while threatening CEDR/MCOL), or just go straight to CEDR?

    2) She is a citizen and resident of Spain, not UK. I understand that it’s still “UK261” that she’d be claiming under here, not EC261. That said, is it still CEDR/MCOL that she’d use, or would she go through Spanish channels for dispute resolution? For court? (Flight was BA ticketed/marketed/operated, from America to Spain via London).

    NorthernLass 8,221 posts

    This is an interesting one, because while crew sickness has previously been held to be within BA’s control, I think there is an ongoing case where BA is fighting a similar claim under the newish UK261.
    Possibly denying such claims until the outcome of this case?

    As far as I know CEDR operates beyond the U.K., but I imagine @JDB might be along soon to clarify the position!

    JDB 4,626 posts

    @sara – this is slightly complicated but eminently resolvable for your friend. Firstly, this is an EC261 claim (not UK261) as you need to consider the whole journey, not the fact the flights were via London. This means that MCOL is tricky unless your friend is very au fait with the UK legal system but CEDR is an option because BA subscribes to that service. Attempting to resolve the issue in Spain is very messy.

    There is, as @NorthernLass references above a case re crew sickness awaiting judgment from the UK Supreme Court but it’s not relevant here as whatever the decision it will only apply to UK261. The bottom line is that ECJ decisions apply and per the judgment in TAP Portugal v flightright GmbH (C156/22) even the death of a crew member at an outstation was deemed to be within the normal operations of an airline and could not constitute ‘extraordinary circumstances’.

    If I were your friend, I wouldn’t go straight to CEDR as it will involve delay and introduces an element of risk as BA is quite adept at bamboozling them with convoluted arguments. I would respond to BA’s refusal saying thank you for the response, but there appears to have been an erroneous consideration of the case. This was a journey from the United States to Spain covered by EC261 and as BA knows, the ECJ has determined that crew sickness does not and cannot ever constitute ‘extraordinary circumstances’ so the compensation I have claimed is payable as the arrival at my final destination was x minutes after the scheduled arrival time. The most recent ECJ decision TAP Portugal v flightright GmbH (C156/22) which builds on previous crew sickness related judgments determines that even the death of a crew member does not constitute circumstances outside the airline’s control. CEDR and any County Court judge will be very familiar with these decisions, so I would ask you to reconsider your position and pay the compensation of €xxx within the next 14 days rather than creating additional cost and wasting time litigating such a clear cut case.

    sara 32 posts

    Thank you. That is very helpful advice.

    Firstly, this is an EC261 claim (not UK261) as you need to consider the whole journey, not the fact the flights were via London.

    Can you help me to understand how you came to this conclusion? I do agree the London part isn’t relevant, but my understanding is that EC261 only applies to flights on EU airlines (which BA isn’t any more) or departing EU airports (which the USA isn’t). Specifically, from the legislation, Article 3(1):

    (a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies
    (b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.

    Whereas UK261 did get amended to provide for this situation. Article 3(1)(b):

    passengers departing from an airport located in a country other than the United Kingdom to an airport situated in (ii) the territory of a Member State to which the Treaty applies if the operating air carrier of the flight concerned is a UK air carrier

    sara 32 posts

    Thank you. That’s very helpful advice.

    Firstly, this is an EC261 claim (not UK261) as you need to consider the whole journey, not the fact the flights were via London.

    Can you help me to understand how you came to this conclusion? I do agree the London part isn’t relevant, but my understanding is that EC261 only applies to flights on EU airlines (which BA isn’t any more) or departing EU airports (which the USA isn’t). Specifically, from the legislation, Article 3(1):

    (a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies
    (b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.

    Whereas UK261 did get amended to provide for this situation. Article 3(1)(b):

    passengers departing from an airport located in a country other than the United Kingdom to an airport situated in (ii) the territory of a Member State to which the Treaty applies if the operating air carrier of the flight concerned is a UK air carrier

    executiveclubber 304 posts

    So this falls under B, if arriving in Spain. I think that’s right?

    sara 32 posts

    So this falls under B, if arriving in Spain. I think that’s right?

    I believe it falls under 3(1)(b) of UK261, but not 3(1)(b) of EC261 which only covers flights operated by “Community carriers” i.e. EU airlines, which BA isn’t any more. But I’m curious to hear from JDB as I might have misunderstood.

    Matt 352 posts

    I think JDB is probably wrong about UK vs EC as above. I also think BA are vanishingly unlikely to change their response once they’ve given it.

    CEDR takes a while, so once it’s been 8 weeks since you started contacting BA put a claim in to get it in the system. If BA do change their mind then you can always withdraw it, and you might get lucky and they just pay out – they have been doing to get though the CEDR backlog at times.

    You may as well respond to BA along the lines JDB has written, although edit for brevity – the less time the agent has to spend reading it the more likely they are to read it.

    JDB 4,626 posts

    So this falls under B, if arriving in Spain. I think that’s right?

    I believe it falls under 3(1)(b) of UK261, but not 3(1)(b) of EC261 which only covers flights operated by “Community carriers” i.e. EU airlines, which BA isn’t any more. But I’m curious to hear from JDB as I might have misunderstood.

    EC261 is retained law post Brexit, with the amendment that you partially cite. I believe EC261 applies but I might be wrong, however it doesn’t affect your friend’s case save for MCOL purposes. If you wish, you could adjust the text to EC/UK261 to cover all bases. Before embarking on anything, you haven’t confirmed the total delay which I take it is over 3/4 hours arriving in Spain (ie not just a delay into London) and there are no other circumstances BA could cite, something they are wont to do if the initial defence fails.

    sara 32 posts

    I’m sure there are many circumstances they could recite! But no, none of them legitimate. Delay was about 7 hours, plus a couple more on the tarmac. So about 9 hours late into London and also into Spain

    NorthernLass 8,221 posts

    Please let us know how your friend gets on, @Sara, it will be an interesting data point going forward.

    Richie 1,033 posts

    I’d just wait until the UK Supreme Court’s outcome in Lipton v BACF is published.

    JDB 4,626 posts

    I’d just wait until the UK Supreme Court’s outcome in Lipton v BACF is published.

    Why would one wait for that? The position cannot get stronger than it is today and in any event we are talking about the application of EU law.

    If the judgment changes anything it will lead to the unfortunate situation whereby a pax (UK or EU based citizen/resident) applying for compensation would be better treated in an EU court than a UK one.

    zio 266 posts

    Correct! If anything it is BA trying to wait.

    JDB 4,626 posts

    Correct! If anything it is BA trying to wait.

    The case actually doesn’t help BA either way since the pax is based in Spain, they can just claim there where any Supreme Court judgment is of no effect and the ECJ decision gives a fairly sure win. I would be seriously disappointed anyway if BA didn’t respond positively within a few days.

    Richie 1,033 posts

    … I would be seriously disappointed anyway if BA didn’t respond positively within a few days.

    My guess is BA may respond with some obfuscatious drivel based around disagreement with operational inherent risks and disappointment is on its way.

    Lady London 2,139 posts

    love obfuscatious @Richie, but I’m with @JDB on this.

    It landed in Spain so EU legislation can be called on.
    BA are just trying it on.

    If BA was able to deny irrops due to crew sickness is their responsibility, this would be a poor day for British justice. It would open the door to future abuse of those passengers who can only call on UK law.

    I think the judge hearing BA’s appeal would have to distinguish this case very carefully if he lets BA win on appeal and I’d be very interested to see what arguments BA’s legal team could provide that could provide what exact distinction.

    The OP should send the polite “Are you serious?!” letter @JDB suggested to BA Legal,I’d suggest at their Stockley Park address, give them 14 days and go to CEDR at 21-max 28 days.

    TGLoyalty 642 posts

    Isn’t what matters is the actual vs expected arrival times in Spain, unless there was significant stopover in the U.K.?

    When you made the claim did you reference the flight to Spain or to London has that confused the website AI?

    Rui N. 855 posts

    Yes, what matters is arrival time at the final destination.

    JDB 4,626 posts

    Yes, what matters is arrival time at the final destination.

    Yes, and the OP has already advised their friend arrived around nine hours late at the final destination, so that aspect is not in question.

    sara 32 posts

    They emailed back (quickly, to be fair). The relevant part:

    As your flight was delayed due to a member of the crew reported sick and wasn’t well enough to operate the flight, it means you’re not eligible for compensation.

    Article 5.3 of the EU Regulation 261/2004 and The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 states a carrier is not obliged to pay compensation if it can prove the delay or cancellation is caused by extraordinary circumstances, that couldn’t have been avoided even if all reasonable measures had been taken. In Recital 14 and 15 of EU Regulation 261/2004, extraordinary circumstances include weather, strike and the impact of an air traffic management decision which gives rise to a long delay. This means you’re not entitled to compensation under the EU Regulation for your delayed flight.

    executiveclubber 304 posts

    I wouldn’t be disheartened just yet. Someone junior probably was assigned the case or they just didn’t consider the detail properly. If I were you, I’d simply copy across the key details from your last reply (assuming it was good), forward it on (with your case ref and flight numbers clearly at the top) to seanl.doyle@ba.com and try one more time, making it clear you’ll then take it to CEDR…

    Richie 1,033 posts

    They emailed back (quickly, to be fair). The relevant part:

    As your flight was delayed due to a member of the crew reported sick and wasn’t well enough to operate the flight, it means you’re not eligible for compensation.

    Article 5.3 of the EU Regulation 261/2004 and The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 states a carrier is not obliged to pay compensation if it can prove the delay or cancellation is caused by extraordinary circumstances, that couldn’t have been avoided even if all reasonable measures had been taken. In Recital 14 and 15 of EU Regulation 261/2004, extraordinary circumstances include weather, strike and the impact of an air traffic management decision which gives rise to a long delay. This means you’re not entitled to compensation under the EU Regulation for your delayed flight.

    Looks a bit like obfuscatious drivel to me.

    yonasl 976 posts

    Funny that none of the reasons they give is “crew member being sick”.

    Lady London 2,139 posts

    I am just amazed at the lengths British Airways will go to, to avoid paying money owed to their passengers when there’s no doubt the current reason they are giving has been squashed in court thoroughly previously as valid reason.

    If they wanted to introduce doubt then they need to choose another excuse.

    I’d not email Sean Doyle – best to send to Legal Department at Stockley Park for a direct answer.

    Actually since you’ve got someone very.junior and they are replying promptly, then before giving BA their final final chance by writing to Legal, I’d be very tempted to reply to this person asking them to confirm that this is the only reason for BA’s refusing to pay.

    Good chance the person writes back. Yes and you will them have given BA 3 opportunities to state any other reasoning they might come up with later – so harder for them to do that credibly. So before Legal, just now semd quick short reply as though you’re about to give up, and you are just asking fot one final confirmation that crew sickness is the only reason they’re not paying your claim. Then take it to Legal who should recognise immediately that using this reason Ba have undermined their refusl to pay as this reason is tosh except in extremely rare circimstances not pertaining here.

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