Richard Colbey 

Are grounded passengers owed more by airlines?

Last week's British Airways strike raises questions of compensation for stranded travellers who miss more than flights.
  
  


The chaotic scenes at Heathrow this week as British Airways cancelled dozens of flights because of a strike has left thousands of people angry, frustrated and demanding compensation.

But while the airline has offered limited compensation, there are legal arguments suggesting that its liability may be much greater.

BA's woes will probably give "low cost" airlines a few wry smiles. Airlines have been subject to increasing criticism recently for the cavalier way in which they treat passengers they have let down.

While Ryanair and Easyjet attract their fair share of criticism, BA - self-proclaimed as a "full service" airline - initially showed itself no more willing to do the right thing when in breach of its contractual obligations.

Last weekend the only gesture BA made towards compensating passengers who could not fly was to pay for hotel accommodation for those stranded after checking in.

Later BA decided it would allow expenses of £100 per night for all passengers with confirmed bookings whose flights were delayed. BA will also refund the money of passengers unable to fly, or absorb the extra costs of transferring to other airlines. That however is unlikely to be the limit of BA's liability should the claims reach court.

Those who lost out because they had paid for hotel accommodation or car hire abroad that they were unable to take up should recover those costs from the airline. Some compensation will be payable simply for the wasted time spent hanging around the airport. Anyone who lost earnings because their flights back to Heathrow were cancelled will also have a claim.

A spokeswoman for BA said: "We suggest people write in and we will look at each claim on an individual basis. At the moment, though, our priority is getting everybody away from the airport."

Those who had to abandon their flights altogether will want to be compensated not only for their financial losses but for the disappointment of the missed trip. The most extreme example of this may be a woman who missed her daughter's wedding. Most passengers will at least feel a sense of grievance at losing part of a well-earned holiday, a few might, for instance, have missed seeing a dying relative.

The airline may argue that they are responsible only for getting people to a destination, not for ensuring their enjoyment once they are there. The point has not been tested in the courts, though there are many judgements for disappointment against tour operators.

Where the flight was part of a package booked through BA's sister company British Airways Holidays those judgements and the Package Travel Regulations passed in 1992 will make it even harder for the BA group to escape liability.

The fact that it was a strike that caused the hold ups will probably not make any difference to any claims that are made. After a company called Pioneer Shipping chartered a ship in 1981 the House of Lords said, in considering the resulting dispute, that there might be circumstances where a strike could "frustrate" contracts. This could partially excuse what BA did.

However, here it was the airline's own cack-handed attempts to change staff conditions that caused the strike. Only if the strike had been beyond their control could they normally rely on it. That and the fact that it was a four month strike in the Pioneer Shipping case means the doctrine would probably be of little help to BA.

The BA spokeswoman also said:"We do encourage passengers to take out insurance to cover themselves against delays, and many will be compensated out of such policies."

But that is a fundamental legal error. It has been long established, mainly in industrial injury insurance cases, that where a person takes out insurance against a mishap, that does not exonerate the wrong-doer from paying compensation.

London solicitor and consumer and aviation specialist Ian Guyster, already featured in Jobs & Money when acting for passengers whose flights were cancelled after Ryanair closed many routes on taking over Buzz, and Thai Air, which would not honour cheap internet offers, intends to tackle BA over this.

He said: "It remains to be seen whether BA will take a responsible attitude towards compensating passengers here. If it behaves in the same way as those airlines, I will consider launching a class action or a test claim on behalf of those who were affected."

· Richard Colbey is a barrister

 

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