Airline passenger whose flight was delayed by more than six hours awarded compensation by sheriff

A sheriff ruled that the pursuer was entitled to compensation because the defender had not taken “all reasonable measures” to avoid the delay.

Sheriff Derek Livingston heard that the pursuer Sandra Dunbar brought a claim against the defender EasyJet in respect of a flight from Glasgow to Malaga on which she was due to travel on 28 July 2014, which was delayed by over six hours, invoking the EC Regulation 261/2004 entitling passengers to compensation for any delay exceeding three hours unless there are both extraordinary circumstances and the delay could not have been avoided even if all reasonable measures had been taken.

Paisley Sheriff Court was told that the departure of the aircraft in question, from Gatwick Airport at 7.55am that day to Bologna, was delayed until about 1.42pm arriving at 4.22pm.

The original causes of the delays had been decisions by air traffic management to delay the departure to Bologna - along with numerous other departures - due to adverse weather conditions.

That same aircraft’s return to Gatwick Airport was then delayed in that instead of departing at 10.30am it left for Gatwick Airport at 5.05pm arriving at 7.07pm.

The aircraft which had been due to depart on the next leg of its journey, which was from Gatwick to Glasgow at 1.20pm, did not in fact do so until 8.27pm thus arriving at 9.50pm rather than its scheduled arrival time of 2.25pm.

Eventually the pursuer’s flight on that aircraft departed at 10.26pm arriving in Malaga the following morning at 1.12am compared with scheduled departure and arrival times of 3.55pm and 7.10pm respectively.

A witness statement from Stuart Trounson, an operations officer from EasyJet, stated that there were “no reasonable measures” which the defender could have taken to avoid the air traffic control management decision to apply departure slot delays to the Gatwick to Bologna flight.

The witness further stated that EasyJet had four spare aircraft in the network on the day and there was also the possibility of calling upon a spare aircraft of a linked company in Switzerland, but all of these spare aircraft were already in use operating other delayed flights.

However, the court was also told that the Civil Aviation Authority (CAA) had investigated the matter and found that since EasyJet knew long before the departure time to Malaga about the disruption they could have taken measures to “minimise the delay”.

The pursuer referred to the fact that there were thunderstorms in the early morning of 28 July 2014 but that her flight was not due to depart until 16:55 and it finally departed at about 23:30.

She also referred to the view taken by the CAA, which was based upon factors relating to the airline’s operations such as the contingency arrangements it had in place to deal with disruption, the makeup of its fleet, where the incident happened and the time of year and any other factors which have an impact on the ability of the airline to mitigate the disruption.

In making his decision, the sheriff observed that there was “no doubt that the underlying delay was caused by extraordinary circumstances” in that the aircraft in question could not leave Gatwick because of an air traffic control decision that was predicated upon a number of factors.

However, he added, “that there has to come a point where extraordinary circumstances cease to exist or at very least the longer between the circumstances causing the original delay coming to an end and the continuation of delays the weaker the extraordinary circumstances exception must be”.

The sheriff also noted that a number of the available spare aircraft were prevented from being brought into use due to what was described as “an unexpected flight safety shortcoming”, and the defender’s evidence that “all these spare aircraft were already in use operating other delayed flights”.

He continued: “In short, as I understand it, without these ‘unexpected flight safety shortcomings’ these aircraft would have been available to replace the aeroplane which was due to carry the pursuer. I have been given no information as to what constituted these ‘unexpected flight safety shortcomings’ and of course the witness was not available to ask about these.

“It is unhelpful to simply repeat a term in a regulation in this way without the slightest explanation and in the absence of clearer specification on this point I do not accept Mr Trounson’s evidence on this as reliable or having the necessary weight to discharge the onus of proof on the defender.”

In a written judgment, Sheriff Livingston said: “Accordingly whilst I am satisfied that the cause of the pursuer’s flight leaving six hours late was due to extraordinary circumstances I am not satisfied that everything reasonably possible was done bearing in mind the fact that the delay was known about for many hours.

“It must have been clear from at least 9am that the later flights involving the aircraft travelling from Gatwick to Bologna would be delayed in view of its tight schedule and the extent of the delay expanded throughout the morning and early afternoon.

“By the time the aircraft finally left Gatwick for Bologna the extent of the delay was very clear and the fact of a lengthy delay had been clear as the morning progressed. Despite this it was around 15 hours from the start of the delays before the pursuer’s flight finally took off.

“I am not satisfied about the situation involving the back-up aircraft not being available due to ‘unexpected flight safety shortcomings’ in three instances nor am I satisfied that other measures could not have been taken as the day went on to at least minimise the pursuer’s delay such as using other aircraft which were not required as the day went on. In the circumstances I am granting decree for €400 being the sum sued for by the pursuer.”