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The curse of the lightning strike – the impact of Evans v Monarch Airlines

01-February-2016
01-February-2016 14:58
in Aviation and Travel
by Christopher Loxton

On 14 January 2016, judgment was handed down by Her Honour Judge Melissa Clarke, sitting at the County Court at Luton, in an appeal from a decision of a district judge to award compensation to two passengers under Regulation (EC) No.261/2004 (‘the Regulation’) in respect of their delayed flight with the airline. 

Under article 5(3) of the Regulation, an air carrier is not obliged to pay fixed compensation for flight cancellations, or delays of over three hours, if it can prove the cause were ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’.

Monarch’s defence was that the delay to the flight concerned was caused by an unexpected flight safety shortcoming, namely damage arising from a lightning strike, and that this amounted to an extraordinary circumstance with the meaning of article 5(3).

It is not clear what evidence was produced before the district judge to show that the weather experienced by the aircraft, and the consequential damage it caused to the aircraft, constituted extraordinary circumstances. What is clear is that the district judge effectively took judicial notice that an aircraft flying through the air and getting struck by lightning are part of the ordinary course of an airline’s normal activity.[1] Put another way, that lightning striking aircraft is not ‘out of the ordinary’.

Whilst the district judge was wrong to take such judicial notice, he was correct in paragraph 8 of his judgment[2] to conclude that what the CJEU said in Wallentin-Hermann v Alitalia-Linee Aeree Italiane SpA (C-549/07) (“Wallentin”), that frequency [of the circumstance] is ‘not in itself a factor from which the presence or absence of extraordinary circumstances could be concluded[3]’, meant frequency was therefore something ‘indicative, but not determinative, and something to be weighed in the balance’.

The district judge was not referred to Siewart v Condor Flugdienst GmbH (C-394/14) (‘Siewart’), though the circuit judge was referred to the CJEU’s judgment and relied on it heavily in coming to the decision she did.

At paragraph 22, the circuit judge held that a lightning strike causing damage to an aircraft was synonymous with the following scenario set out in paragraph 19 of Siewart:

‘…that such mobile stairs or gangways are indispensable to air passenger transport, enabling passengers to enter or leave the aircraft, and, accordingly, air carriers are regularly faced with situations arising from their use. Therefore, a collision between an aircraft and any such set of mobile boarding stairs must be regarded as an event inherent in the normal exercise of the activity of the air carrier.’

This comparison is false.  Lightning, storms or other adverse weather conditions, are not ‘indispensable to air passenger transport’.  Nor are they ‘acts’ that fall into the category of  ‘normal airport services’.

The circuit judge was again wrong to conclude in the next paragraph that the following paragraph of Jet2.com Limited v Huzar [2014] EWCA Civ 791 (“Huzar”) (para.48) was ‘no longer an accurate statement of the law’:

‘…events which are beyond the control of the carrier because caused by the extraneous acts of third parties, such as acts of terrorism, strikes or air traffic control problems, or because they result from freak weather conditions, cannot be characterised as inherent in the normal activities of the carrier.’

Nothing in the CJEU’s ruling in Siewart undermines Elias LJ’s confirmation of what types of third party acts might constitute extraordinary circumstances.  Instead, the CJEU clarified that any third party act that could be said to fall within the definition of ‘normal airport services’ (the first time such concept has been created by the European Court) was an activity that was within the normal exercise of the activity of the air carrier concerned and within its actual control. 

There is also a good argument to say that the circuit judge had no authority to hold that paragraph 48 of Huzar was no longer good law given the binding doctrine of precedent (even if strictly speaking it was an obiter comment of Elias LJ’s).[4]

In any event, it is clear in Siewart that the CJEU was not intending to depart from Wallentin but simply extending the scope of an air carrier’s activities.

In paragraph 28 of her judgment, HHJ Clarke then correctly stated that ‘the relevant issue in each case is whether the problem or damage by its nature or origin is inherent in the normal exercise of the activity of the carrier’, save to clarify it is not whether ‘damage’ to an aircraft is ‘inherent’ but whether the events that caused the damage or problem are inherent in the normal exercise of the carrier’s activity.

There then follows a misconstrued, and rather bizarre, reading of paragraph 19 of Siewart in dismissing counsel for the airline’s submission that acts outside the category of ‘normal airport services’ would fall within the definition of extraordinary circumstance’, and instead concluded (at paragraph 30):

In my judgment, in this passage [paragraph 19] the court is attempting to illustrate circumstances whereby the collision by an airport operative mobile stairs into an aircraft (as in the facts of this case) would be outside the normal provision of airport services and accordingly not inherent in the normal exercise of the activity of the carrier, namely where those stairs were deliberately collided for reasons of sabotage or terrorism.’

One only has to look at what the CJEU was being asked to decide upon to disregard the circuit judge’s interpretation.  At paragraph 14, the CJEU sets out the last two questions asked of it:

By its third and fourth questions, which it is appropriate to consider first, the referring court seeks, in essence, to ascertain whether Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an event such as the collision of an airport’s set of mobile boarding stairs with an aircraft must be categorised as ‘extraordinary circumstances’ exempting the air carrier from its obligation to pay passengers compensation in the event of a long delay to a flight operated by the aircraft in question.’

The ‘event’, or the circumstances surrounding the event, is therefore the collision of a set of mobile boarding stairs with an aircraft, not the cause of that event, for example, a careless driver, or deliberate collision by sabotage or terrorism.  This can be seen from paragraph 48 of the Huzar judgment (see paragraph 9 above) and from the following paragraph of Wallentin (paragraph 44(1)):

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of fights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of “extraordinary circumstances” within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.’

The CJEU has made clear on numerous occasions that extraordinary circumstances will exist if they stem from events which, by their nature or origin, are not inherent in the normal exercise of the air carrier’s activities and beyond its actual control on account it their nature and origin.[5]

HHJ Clarke was again wrong in paragraph 35(1) of her judgment to utilise paragraph 37 of the CJEU’s judgment of Corina van der Lans v Koninklijke Luchtvaart Maatschappij NV (C-257/14) (‘van der Lans’) to equate lightning strikes to technical problems.  The full sentence in paragraph 37 relied upon by the circuit judge states as follows:

Since the functioning of aircraft inevitably gives rise to technical problems, air carriers are confronted as a matter of course in the exercise of their activity with such problems.’

Without considering specific evidence on the issue, the judge erred in holding as a matter of course that the operating of aircrafts inevitably gives rise to them being struck by lightning thereby causing damage.

In my view paragraph 41 of van der Lans was referring to meteorological conditions being contributors to components of an aircraft malfunctioning prematurely.  In the case itself, the delay to Ms van der Lans’s flight had been caused by one of the aircraft engines not starting due to the lack of fuel feed.  It was accepted by the Court that this problem constituted ‘the premature malfunction of certain components of the aircraft’.  This premature malfunctioning / breakdown was what was held to be ‘intrinsically linked to the very complex operating system of the aircraft, which is operated by the air carrier in conditions, particularly meteorological conditions, which are often difficult or even extreme, it being understood moreover that no component of an aircraft lasts forever’.

In misconstruing the CJEU’s judgment, the circuit judge concluded at paragraph 35(1):

Those meteorological conditions may cause technical problems (which, for the reasons already explained, I interpret to include physical damage), which paragraph 42 of van der Lans makes clear are nonetheless inherent in the normal exercise of their activity and not “extraordinary circumstances”.

The CJEU in paragraph 42 of van der Lans was not saying meteorological conditions that cause technical problems are inherent in the normal exercise of their activity and not extraordinary circumstances, instead it held that premature malfunctioning / breakdown of aircraft components are inherent in the normal exercise of an air carrier’s activity (unless caused by hidden manufacturing defects).  If the circuit judge’s interpretation were correct it would preclude any weather events causing damage to an aircraft from falling within two of the examples given in Recital 14 of the Regulation as being capable of amounting to extraordinary circumstances, namely: ‘meteorological conditions incompatible with the operation of the flight concerned’, and ‘unexpected flight safety shortcomings’.  This was neither the intention of the drafters of the Regulation, including Recital 14, nor the CJEU in Siewart.

Support for the view that the drafters of the Regulation did not have such intentions can be found in the explanatory memorandum to its ‘Proposal for a Regulation?of the European Parliament and of the Council establishing common rules?on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights COM(2001) 784 final’,?where the European Commission noted at paragraph 20:

Cancellation by an operator . . . represents a refusal to supply the service for which it has contracted, except in exceptional circumstances beyond its responsibility, such as political instability, severe weather conditions, inadequate security and unexpected safety failures.’ [emphasis added.]

The circuit judge’s findings in paragraph 35(2) were likely to have depended upon the evidence produced by the parties at first instance, however, again she fell into error in reaching the following blanket conclusion:

I find in the sphere of aviation, a lightning strike is not out of the ordinary.  The fact that aircraft manufacturers design their aircraft to minimise the risks arising from them and provide air carriers with inspection and repair protocols to deal with lightning strikes gives support to this finding, and to the finding that such strikes are inherent in the normal exercise of a carrier’s activity.’

The fact that risks are minimised, and protocols put in place to deal with damage caused by lightning, is not surprising in an industry that has strict health and safety standards and is not indicative of the inherency of lightning falling within the normal exercise of a carrier’s activity.  

As part of the air carrier’s normal exercise of its activity it will attempt to minimise risks and have protocols in place to deal with meteorological conditions aside from lightning, and security threats and a range of unexpected flight safety shortcomings, strikes and air traffic control decisions. The fact that such measures are in place, or are ready to be enacted, does not mean that the occurrence of the circumstances are not in of themselves extraordinary.

I consider the circuit judge to have also erred in completely disregarding the Civil Aviation Authority’s ‘List of Extraordinary Circumstances’ in paragraph 35(4) of her judgment. Recital 22 of the Regulation provides that Member States should designate an appropriate body to ensure and supervise general compliance by air carriers with the Regulation. The National Enforcement Bodies designated in accordance with the Regulation met on 12 April 2013 and provided a non-exhaustive and non-binding list of extraordinary circumstances for the application of the Regulation. As the circuit judge observed, whilst the list has been at odds with that of the courts at times, the CAA has been reactive to judgments of the courts and has frequently amended the List accordingly.  It does not follow logically that the list should be given no weight simply because a number of circumstances on the list have found to not be extraordinary. 

Unfortunately this case was most likely lost at first instance on the strength of the evidence put before the district judge as to the number of aircraft that are grounded leading to necessary repairs and consequential cancellations or delays of over three hours.  It is yet another cautionary tale that should reinforce in all airlines’ minds the need to obtain detailed evidence, particularly statistics, on delays and cancellations and their causes.   In specific cases of lightning strikes and consequential damage to aircrafts, an airline would ideally need to produce detailed evidence as to:

  • The operating procedure for flying through storms: is this commonly done or do aircraft try to avoid cumulonimbus clouds and fly round?
  • How common is it therefore for aircraft to fly through such weather conditions?
  • When they do fly through such weather, how often are aircraft struck by lightning?
  • When an aircraft is struck by lightning how common is it for damage to be caused to the aircraft?
  • If damage is caused to aircraft, how common is it for such damage to necessitate repairs leading to cancellations or delays of three hours or more?

Whilst the decision in Evans v Monarch Airlines is not a welcome one for airlines, it is capable of being undermined for the reasons set out below and on the strength of the evidence produced.  Although the decision is certainly appealable, it will be interesting to see whether the airline pursues this avenue to the Court of Appeal à la Huzar.

 

[1]See para.14 of HHJ Clarke ‘s judgment where she quotes from the district judge’s ruling.

[2] Quoted in para.19 of HHJ Clarke’s judgment.

[3]Paragraph 37 of Wallentin.

[4]See paras.87-95 of Howard de Walden Estates Ltd v Aggio [2007] EWCA Civ 499; para.55 of Dar Al Arkan Real Estate Development Co v Al-Refai [2013] EWHC 4112 QB, the reasoning upheld by the Court of Appeal in Dar Al Arkan Real Estate Development Co v Al-Refai [2014] EWCA Civ 715 at para.23.

[5]See para.23 of Wallentin for example.

 

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