IN THE WORCESTER COUNTY COURT

No. 2QZ440280 The Shire Hall Foregate Street Worcester. WR1 1EQ Tuesday, 4th June, 2013

Before: DISTRICT JUDGE SAVAGE BETWEEN: (1) KIM BRITTAIN (2) SUE BRITTAIN - and MONARCH AIRLINES LIMITED _________ Transcribed by BEVERLEY F. NUNNERY & CO Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: 020 7831 5627 Fax: 020 7831 7737 _________ THE CLAIMANTS appeared in person. MR. VIRK (instructed by Direct Access) appeared on behalf of the Defendant. __________ Defendant Claimants

JUDGMENT
(As approved by the Judge)

DISTRICT JUDGE SAVAGE: 1. This is a case involving a relatively small amount of money. It is an important issue. It is a claim for compensation under the EC Regulation in relation to cancelled flights. It is a claim for 400 - 200 each for two people. The circumstances are that Mr. and Mrs. Brittain were due to come back from Majorca with the Defendant, Monarch Airlines Ltd. 2. The aircraft, which was due to bring them back to England suffered a technical problem on the latter stages of its journey into Palma in terms of an oil leak. It was investigated on the ground by a local engineer, it appears an engineer who made a very cursory investigation. There is a record of events which is with the papers. That shows various time lines in terms of when the aircraft was first looked at and what happened subsequently. The aircraft was declared serviceable in due course. The fault in the Amended Defence is described as a "yellow system hydraulic leak in no. 2 engine, pylon area". After the initial investigation on the ground what is called a "smart team" was despatched from the UK on the next available flight. They were despatched with a pipe repair kit. It is said that they were not able to repair the defect. The evidence from the defendant is that the pipe repair kit involves a temporary repair which renders the aircraft serviceable to fly for a limited period pending a full repair or a pipe replacement. But, because of the location of the pipe, or pipes, concerned it was not possible due to restriction of space to use the repair kit. So, subsequently, parts were flown from Hamburg, leading to the replacement of pipes. 3. It seems, on the defendant's evidence, that the engineer who initially looked at the aircraft had come to a conclusion as to where the problem lay. However, the smart team found that it was in fact pipes in a slightly different area. The evidence about these sort of issues comes from Neil McArthur, of the defendant, who works in the Technical Services Department. He says that such a fault was not foreseeable or preventable and that pipes are required to be checked every twenty-four months although they are checked approximately twelve to fourteen months to align with ... maintenance. As I understand it, there is no evidence as to the actual maintenance regime for this aircraft covering that area and those pipes. Mr. McArthur says at para. 6 that the smart team, when they arrived, had traced the leak to a particular pipe and further investigation also found wear on an adjacent pipe. Both these pipes are situated around Ribs 7 and 8 and not, as originally indicated, at Rib 5. What the defendant does not say is what caused the pipe failure. There is always a reason for a failure of a part. It may be fair wear and tear. It may be mis-alignment or mis-adjustment. It may be metal fatigue or other metal failure. It may be a knock-on effect of some other problem. But, I gain no assistance from any of those considerations because, as I say, the defendant does
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not actually provide evidence as to what was the cause of the failure of the two pipes, particularly the one which was said to have been worn. One can only assume from that that it must have worn in a way that normally should have been picked up because the whole point of inspections is to identify when parts are wearing. The whole point of it is that you do not wait for something to wear out and fail. 4. So, there is a problem, to start with, for the defendant in that the cause of the failure is not identified at all. I say that because of what the Regulations say about it. The defendant accepts that unless they can show that the cancellation of the flight which Mr. and Mrs. Brittain were supposed to be on was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken in accordance with Article 5(3) of the 2004 Regulations (which we are dealing with), then compensation is payable. Once it is established that the circumstances, subject to Article 5(3), are such as to lead to compensation, it is then - and the case law is clear on this - for the carrier, the defendant to show that the problem was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. 5. Questions arise, where you have technical, mechanical, or similar type of breakdowns, whether that can come within the definition of extraordinary circumstance allied to the following words in the Article which could not have been avoided: "even if all reasonable measures had been taken". 6. Mr. Virk for the defendant says, first of all, that you cannot expect that it would be economically viable for the airline to have in all stations of the world to which they fly a stock of parts, such as the pipe, or pipes, in question. Again, they rely upon the evidence of Mr. McArthur to the effect that although such pipe failures do occur, they are not frequent. Indeed, ... The preamble to the Articles, in para. 14, is of further assistance in relation to the obligations, saying this, "As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating carrier". There is nothing there to indicate that the sort of technical failure here should be regarded as an extraordinary circumstance.

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7. The case of Friederike Wallentin-Hermann v. Alitalia, European case no. C549/07, deals with these sort of issues on a reference from the national court in the case, and the court considered the Regulations, first of all reminding us all that the Regulations are there to be strictly interpreted. This being a consumer case, of course it follows that in the event of any doubt, that doubt goes in favour of the consumer because all these Regulations are there to protect consumers. One of the questions which was referred to the court in that case was whether Article 5(3), which I have referred to, read in the light of Recital 14, which I have referred to, must be interpreted as meaning that: "A technical problem in an aircraft which leads to the cancellation of a flight is covered by the concept of extraordinary circumstances or weather. The concept covers situations of a different kind which are not due to technical problems". That case involved a turbine failure. The court in that case said, at para. 26, that, "It cannot be ruled that technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control". 8. One inference from that - and in fact it is expanded upon elsewhere - is that failures of parts happen regularly. They have to be fixed and to that extent they may be regarded as being problems inherent in the normal exercise of the activity and not something extraordinary. At para. 24 the court said, "In the light of the specific conditions in which carriage by air takes place, and the degree of technological sophistication, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. It is, moreover, in order to avoid such problems and to take precautions against the incidents compromising flight safety, that those aircraft are subject to regular checks which are particularly strict and which are part and parcel of the standard operating conditions of air transport undertakings. The resolution of a technical problem caused by failure to maintain aircraft must therefore be regarded as inherent in the normal exercise of an air carrier's activity". Now, it may be that is saying that it is referring to a failure to abide by maintenance regulations, or whatever, in a positive sense. On the other hand, of course, another way of interpreting "failure to maintain" simply means that if something does not work properly, it has not been maintained in good condition.

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9. In the Ruling it was made clear that compliance with maintenance schedules, and the fact that an air carrier has complied with the minimum rules on maintenance, cannot in itself suffice to establish that the carrier has taken all reasonable measures. So, when Mr. McArthur says there is no evidence specifically relating to this aircraft, if one is left to assume that the aircraft was maintained with inspections carried out at greater intervals than the aircraft manufacturers recommend, that does not let the defendant off the hook. 10.I go back to para. 26 of the judgment because it goes on to say, in relation to exceptional circumstances not inherent in the normal exercise of the activity: "It would be the case, for example, in a situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism". So, there the court is making the same sort of distinction between the normal operating, technical issues - maintenance issues, if you like - and the circumstances such as mentioned in the preamble to the Regulation - political instability, meteorological conditions, for example. 11.Mr. Virk asks me to take account of Preamble 15 which says, "Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision on a particular day gives rise to a long delay". This case is nothing to do with air traffic management decisions. In my judgment the interpretation of the Regulations and the guidance given by the European Court in the case to which I have referred does seem to me to lead to the conclusion that it would be unusual for a technical problem to fall with exceptional circumstance save for the sort of technical problem - an inherent manufacturing defect, for example - that the court specifically gives example of. Indeed, to go any further would, it seems to me, to go way outside the indicative examples given in the preamble at Recital 14. 12.I have no evidence as to the level of engineer back-up available at Palma. It seems to be the case that the engineer who first inspected was of limited qualification. I do not mean that in terms of being an engineer, but in terms of being able to identify the problem with this aircraft. I do find it surprising, bearing in mind the number of flights in and out of Palma that Monarch must operate during the course of a year that they rely, for initial investigation of such a serious problem, on such an engineer and that they then have to fly people out from England.

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13.There is also an issue which, as I have already mentioned, Mr. Virk has prayed in aid, as to whether it is reasonable to expect airlines to keep limitless stocks of parts. However, it seems to me that in the Regulations and in the judgment of the European Court there is nothing to suggest that the economic viability is a matter which should be taken into account. But, if it must, then there must be evidence to support it. There is no such evidence in this case. 14.Finally, Mr. Virk did submit that the defendant did all they reasonably could once the problem had been identified - or at least once the aircraft had landed. They got someone to look at it. Then they flew out a team. Then they sent off to somewhere else for spares to be flown in. So they have done all they reasonably could. That, in my judgment, is not on the point at all. This case, at any rate, is not about what they did afterwards, but the fact that (a) the pipes failed in the first place; and (b) why it is that they did not have a better system in order to deal with the problem. They might, with other evidence, have been able to perhaps persuade the court that the system was such that I could conclude that the failure of the pipes in this case was an extraordinary circumstance. I think it is probably unlikely. However, there is not that evidence, let alone evidence as to what actually was the cause of the pipe failure. 15.In those circumstances I am quite satisfied that the defendant has failed to prove that the cancellation was caused by extraordinary circumstances. The claimants are entitled to compensation. I know that this is the second listing of the final hearing. There were some directions given on the last occasion about further documents, and so on, but if it had not been one of those days when there were too many cases listed, it could have been dealt with on the last occasion probably despite the shortcomings in documentation. It is just a pity that everybody has had to come twice. __________

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