How the term 'extraordinary circumstances' relates to claims for compensation
Extraordinary circumstances is a term used in the European law which describes your rights when a flight is delayed or cancelled. When the cause of the cancellation or delay was extraordinary circumstances it means the airline does not have to pay lump-sum compensation though it still has to offer you other assistance.
Despite the word extraordinary, it does not necessarily mean it is a rare event, it just has to be outside of the airline’s control.
The CAA has worked with other regulators across Europe to agree what situations count as ‘extraordinary circumstances’ when a flight is disrupted. This work has been published on the European Commission’s website (publication date - July 22nd 2013). The list sets out what type of circumstances may mean that you are not entitled to compensation when your flight is disrupted. It also includes some circumstances where you would be likely to be entitled to compensation.
The list of extraordinary circumstances where airlines may not have to pay lump-sum compensation includes:
· bad weather that impacts on the safe operation of the flight
· bad weather that closes the airport of departure or arrival, or where the number of flights are limited by bad weather
· air traffic control restrictions
· where a passenger or crew member becomes seriously ill or dies on-board or during the flight
· where a bird hits the plane
· where a hidden manufacturing defect is discovered
· where the plane is damaged by a third party on the ground
· damage to the plane caused by a foreign object which happens during the previous flight
· any technical problems which cause a turnaround or diversion
· premature failure of technical parts with a defined lifespan
· failure of technical parts where it is impossible to predict the failure in advance
· technical problems discovered shortly before the flight where maintenance has been carried out properly
· smoke, fire or fumes on board (not caused by a failure to maintain the aircraft properly)
· employment strikes, for example air traffic control strikes
· air traffic restrictions at the airport of arrival or departure, or where there are restrictions on blocks of airspace that the plane was due to fly through
· closure of the airport for security reasons
· hijacking of the aircraft
· bomb discoveries or bomb threats
When more than one of the circumstances may apply, the CAA would look at all relevant circumstances and would consider the actions that the airline took to avoid the disruption.
The test for whether compensation is due has two parts. The second part is whether the airline has taken reasonable measures to avoid the disruption to the flight concerned. This means that if an airline has failed to plan appropriately for situations listed above, it may still have to pay compensation.
What counts as reasonable measures is subjective but includes a consideration of:
· the airline’s business model
· the time of year
· the time of day
· whether the flight is long-haul or short-haul
· whether the airline is operating out of their home airport
· the number and types of planes an airline owns
· whether an airline is an alliance member
· any other factors which effect the operations of the airline on that day
The CAA has a complaints handling service for when passengers cannot resolve their complaint directly with the airline.
When we are considering a complaint about a delayed or cancelled flight and the airline has claimed extraordinary circumstances, we look at the information provided by the airline and may seek further information to be considered by our legal and technical experts. For technical problems this could include technical logs. Then we decide whether, in our view, compensation is payable, or whether the circumstances which led to the delay or cancellation were outside of the airline’s control.
Can the CAA share information on your case provided to us by airlines?
Where information has been provided to us by airlines as part of our investigations into whether compensation is payable for a delayed or cancelled flight, we will generally not be able to provide copies of that information to you if it is obtained by us as part of our statutory functions.
Our decision is not legally binding, but it is one we have made carefully in the light of the information available to us. We have found that we consider the delay or cancellation to be outside of the airline’s control in the majority of cases reviewed. In these cases, in our view, compensation is not payable to the passengers concerned. If we decide that the airline could have prevented the cancellation or delay we will tell the airline why and ask it to pay the compensation we consider is due.
We are not able to re-open a case and reconsider our opinion once given to passengers. There is no appeal process within the CAA for us to do this because we have already considered all the evidence available to us. In addition, please bear in mind that we have new cases coming in every day and consequently many other passengers awaiting a decision on their case.
When we decide that compensation is not payable, we are unable to take the case any further on that aspect, but passengers remain free to take their case to court. We also have a code of practice for our service which includes an escalation process.