Huzar v Jet2.com Limited [2014] EWCA Civ 791
Court of Appeal of England and Wales
Facts
From paragraph [3]:
“The claim arises out of the delay to flight number LS 0810 from Malaga to Manchester on which the claimant was booked travel on 26th October 2011. The flight was scheduled to depart from Malaga at 18.25 (local time) and to arrive in Manchester at 20.25 (local time). The aircraft, a Boeing 737-33A, experienced an unexpected technical problem during its inbound flight to Malaga when the left engine fuel advisory light became illuminated indicating a possible defect in the fuel shut-off valve.
When the plane landed the defendant arranged for a spare valve to be fitted but the problem remained. Despite further investigations it was not possible to identify the cause of the problem before the airport closed for the evening. The following day further investigations revealed a wiring defect in the fuel valve circuit such that the wiring needed replacement. As a result it was necessary to send a specialist engineer and spare wiring from the defendant’s hangar at Leeds Bradford airport.
Having reviewed the options the defendant decided to bring in another aircraft from Glasgow to take passengers from Malaga to Manchester. The flight eventually departed at 21.09 (local time) on 27th October 2011 and arrived in Manchester at 23.28 (local time), some 27 hours late. It is conceded that the claimant and his family were provided with appropriate transport, accommodation and refreshments free of charge during the delay. The claim before the District Judge was for compensation pursuant to Article 7(1)(b) of the Regulations.
For the purposes of the appeal the appellant accepted the implicit findings of the learned District Judge namely that this technical fault was unexpected and could not have been predicted by a regular system of inspection or maintenance and, further, that the wire which failed or was defective was within its expected lifespan. Thus the fault was neither discovered nor discoverable by a reasonable regime of maintenance or on reasonable inspection and therefore was unforeseen and unforeseeable.”
Issue(s)
See paragraphs [1] and [2] as follows:
[1] Mr Ronald Huzar suffered no little inconvenience when his flight from Malaga to Manchester was delayed. He sought compensation pursuant to an EU regulation, Regulation (EC) No. 261/2004 (“the Regulation”). It was not disputed that prima facie he was entitled to such compensation from the airline carrier, Jet2.Com, but there is an exception where the operating air carrier can prove that the delay is caused by “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. The appellant carrier alleged that the delay in this case was the result of a wiring defect in the fuel valve circuit which could not have been prevented by prior maintenance or prior visual inspection. It was unexpected, unforeseen and unforeseeable and as such amounted to an “extraordinary circumstance”.
[2] District Judge Dignan, sitting in the Stockport County Court, accepted the carrier’s characterisation of the nature of the fault and held that in the circumstances the exception applied and there was no right to compensation. On appeal, there was no challenge to the factual finding that the fault was unforeseen and unforeseeable. Nonetheless, His Honour Judge Platts, sitting in the Manchester County Court, held that the exception did not apply and he awarded compensation. The carrier appeals against that decision. The appeal raises a point of some importance to the airline passenger industry.
Discussion
See the reasons of Lord Justice Elias at [31] to [36].
[31] The Court in Luxembourg has defined the concept of “extraordinary circumstances” by reference to the two limbs; first, that the nature or origin of the event or events which cause the technical problem must not be inherent in the normal exercise of the activity of the carrier (limb 1); and second, that it should be beyond its actual control (limb 2). There is no clear explanation as to how the two limbs interrelate. To compound the uncertainty, the Court uses slightly different language when seeking to encapsulate the concept, not only in different cases but even in the same case, as the contrasting language in paragraph 23 and the first ruling of Wallentin-Hermann demonstrate.
[32] As I have said, the appellant submits that there is a single test whose meaning is dictated by the second limb of control. Since the technical problem was beyond the control of the carrier, it was therefore not inherent in its normal activity.
[33] Mr Shah QC, counsel for the respondent passenger, submits that the Court is intending to lay down two distinct conditions each of which must be satisfied before the circumstances can be described as “extraordinary”. He, for his part, submits that the dominant limb is the first and that the concept of control should take its meaning from that first limb. On this analysis the concept of control does not have the narrow meaning relied upon by the appellant, namely the power to influence events. It has a wider meaning, capturing the notion that the carrier can sensibly be said to be in control of its own operations, even when problems arise which it could not have anticipated. The contrast, which he submits is entirely consistent with recitals 14 and 15, is between problems which are internal and those which are extraneous to the carrier’s operations. Typically the latter are beyond the carrier’s control because they are caused by third parties or by wholly exceptional climate difficulties.
[34] It may be said that this analysis comes very close to establishing a single test and eliminating the second limb altogether. For reasons I explain below, I do not think that it does have that consequence.
[35] In my view, the difference between the two arguments can, without undue distortion, be encapsulated in this way. The appellant is in effect construing the test as follows: “events by their nature or origin are not inherent in the normal exercise of the activity of the air carrier because they are beyond its actual control.” The key concept, on this test, is actual control; if the event is beyond control it is necessarily not inherent in the normal exercise of the activity. By contrast, the respondent is saying; “events by their nature or origin are not inherent in the normal exercise of the activity of the air carrier and therefore are beyond its actual control.” The defining concept on this test is the notion of what is inherent in the normal exercise of the carrier’s activities; if it is not inherent, it is beyond control and vice versa.
[36] In my judgment, a proper understanding of the inter-relationship between the two limbs should focus on the concept of “extraordinary circumstances” itself, the language used in Article 5(3). This requires that the circumstances must be out of the ordinary, as the Court noted in Sturgeon. As the CJEU recognised in paragraph 24 of Wallentin-Hermann, difficult technical problems arise as a matter of course in the ordinary operation of the carrier’s activity. Some may be foreseeable and some not but all are, in my view, properly described as inherent in the normal exercise of the carrier’s activity. They have their nature and origin in that activity; they are part of the wear and tear. In my judgment, the appellant’s submissions fail to give proper effect to the language of the exception. It distorts the meaning of limb 1 in defining it by reference to limb 2, and thereby renders it superfluous. It makes an event extraordinary which in common sense terms is perfectly ordinary.
See further paragraphs [47] to [49]:
[47] In my judgment, therefore, for all these reasons the appeal fails even on the assumption that the concept of extraordinary circumstances should be defined by reference to a single composite test and not two distinct conditions. If the appellant is right about there being a single composite test, then in my judgment it is essentially as the respondent described it. The second limb will take its meaning from the first rather than vice versa. The event causing the technical problem will be within the control of the carrier if it is part of the normal everyday activity which is being carried on and will be beyond the carrier’s control if it is not.
[48] I am inclined to think that this is indeed the correct analysis. I recognise that it can be said to render the second limb redundant. But it does not in my view strip the limb of all significance. It helps identify the parameters of those acts which can properly be described as inherent in the carrier’s normal activities and those which cannot; and it also chimes with the examples of events identified in recitals 14 and 15 as being potentially capable of constituting extraordinary circumstances. It makes it clear that 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. It is not fanciful to suggest that there may otherwise be an argument that they can be so described; indeed, Mr Lawson advanced that very argument in the course of his submissions. So on this analysis the second limb is intended to help elucidate the scope of the first but is not intended to establish a distinct and independent condition.
[49] Ultimately, however, it is not necessary to determine whether there is a single composite test or whether it is a dual test. If the latter, for reasons I have given, in my view the first limb is not satisfied. So on this approach, even if the second limb has the narrow meaning of control urged upon us by the appellant, and it can properly be said that the technical problem here was beyond the carrier’s actual control, that will not relieve the carrier from the obligation to pay compensation.
Useful for
Treaty provisions considered
No treaty provisions considered.Legislation considered
EU Regulation 261/2004/Key subjects or concepts
Extraordinary Circumstances/ Local Law on Consumers/Appeals history
Permission to appeal to the UK Supreme Court was refused on 30 October 2014 as follows:
“Permission to appeal be refused in Jet2.com because the application does not raise a point of law of general public importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the Court’s existing jurisprudence already provides a sufficient answer.”
See further https://supremecourt.uk/uploads/permission_to_appeal_october_2014_4037d2399f.pdf
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