English court decides aircraft diversion for passenger illness is not an "extraordinary circumstance" for the purposes of Regulation 261

Published

Jan 31 2020

Written By

Partner
UK

I am a partner and co-head of our International Dispute Resolution Group, as well as the London team. I specialise in complex disputes, often of a cross border nature, and have particular expertise in the aviation & defence sector, commercial life science, and in matters involving fraud.

Simon Phippard

Of Counsel
UK

I am Of Counsel in our Aviation & Aerospace practice in London. I bring more than 30 years' commercial and litigious experience to a diverse array of aerospace issues.

Countries

A return flight to the UK by a UK-registered airline was subject to a 23 hour delay after the crew diverted during the outbound sector because of illness to a five month old infant. The airline defended claims for compensation on the grounds that the diversion amounted to extraordinary circumstances.

Deputy District Judge Linwood found that a diversion for medical treatment following an in-air medical incident and the consequential delay of the arrival of the aircraft at its destination was not an extraordinary circumstance. The judge stated that:

passenger illness is inherent in the carrying of passengers,
the passenger illness was intrinsically linked to the operating system of the aircraft (in contrast to a birdstrike, for example),
that the source of the delay was passenger illness, and
passengers are an indispensable part of the operation of an air carrier.

He confirmed that EU jurisprudence makes clear that an extraordinary circumstance must endanger the aircraft, passengers and crew. This is not the case on a medical diversion and the decision to divert was not within s68 of the Air Navigation Order 2016 (which confirms the authority of the captain), albeit the judge was clear that the pilot should not in any way be criticised for a decision to divert for medical treatment.

It is not clear yet whether the decision will be appealed – it is likely to have significant consequences to airlines.

Partner Sophie Eyre commented: ""The decision is most concerning: airlines for whom passenger safety is paramount are now in effect to be punished financially for taking in-flight decisions for a passenger medical emergency."

See also our previous article: Might a screw on the runway be an extraordinary circumstance?