Author: Whitestone Chambers

On 4 May 2017, the Court of Justice of the European Union (“CJEU”) handed down judgment in the case of Marcela Pešková, Jirí Peška -v- Travel Service A.S. (C-315/15)[1] (“Pešková”). The case concerned the central question of whether a bird strike to an aircraft could amount to an “extraordinary circumstance” such that the air carrier was excused from paying compensation for delay under Regulation (EC) No.261/2004 (“the Regulation”). Perhaps to the surprise of many, the Court held that bird strikes did amount to extraordinary circumstances. This article evaluates the judgment’s impact, particularly with respect to cases involving flight delays or cancellations caused by lightning strikes and other meteorological events.

The facts of Pešková

Ms Marcela Pešková and Mr Jirí Pešká encountered a long delay to their flight from Burgas (Bulgaria) to Ostrava (Czech Republic) in August 2013 with the Czech airline Travel Service. The aircraft set to complete their trip had already flown from Prague to Burgas, Burgas to Brno (Czech Republic) and from Brno to Burgas before commencing their journey. During the flight from Prague to Burgas (the first sector), it exhibited a technical failure in a valve. The valve was repaired but this led to a delay of 1 hour and 45 minutes to the flight. When the aircraft then flew from Burgas to Brno (the second sector), it collided with a bird during landing necessitating mandatory safety checks at Brno. The aircraft’s condition was checked first by a local company and then by a Travel Service technician as the owner of the aircraft, Sunwing, refused to authorise the first check.

The aircraft passed both safety checks but this resulted in a total delay of 5 hours and 20 minutes to Ms Pešková’s and Mr Pešká’s flight to Ostrava. They then brought an action against Travel Service under the Regulation in the Prague 6 District Court for CZK 6,825 (approximately €250 each).

Does a bird strike constitute an “extraordinary circumstance”?

The Czech court referred several questions to the CJEU, including whether the collision of an aircraft with a bird is an “extraordinary circumstance” within the meaning of Article 5(3) of the Regulation.

The Third Chamber held that extraordinary circumstances within the meaning of the Regulation are events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier and are outside its actual control. At paragraph 24 of the judgment, the Court explained its reasoning thus:

‘24. In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. Accordingly, that collision must be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.’

The CJEU then went on to conclude at paragraphs 25 and 26:

‘25. In that regard, it is irrelevant whether the collision actually caused damage to the aircraft concerned. The objective of ensuring a high level of protection for air passengers pursued by Regulation No 261/2004, as specified in recital 1 thereof, means that air carriers must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flights over the objective of safety.

‘26. Having regard to the foregoing considerations, the answer to the first question is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, must be interpreted as meaning that a collision between an aircraft and a bird is classified under the concept of ‘extraordinary circumstances’ within the meaning of that provision.’

The CJEU’s definition of inherency – whether an event is ‘intrinsically linked to the operating system of the aircraft’ – appears to mark a departure from its previous rulings on the definition of extraordinary circumstances. In Siewert -v- Condor Flugdienst GmbH (C 394/14), for example, the CJEU appeared to suggest[1] that damage suffered by an aircraft causing a delay or cancellation had to be ‘caused by an act outside the category of normal airport services’.

In Pešková, the CJEU held that it was ‘irrelevant whether the collision actually caused damage to the aircraft concerned’[2], because it was necessary for a struck aircraft to go through mandatory safety checks after the collision to ensure it had not compromised its airworthiness.

The CJEU implicitly rejected Advocate General Bot’s opinion delivered some 10 months earlier[3]. In his opinion, the Advocate General had held that bird strikes could be classed as inherent in the normal exercise of air carriers’ activities owing to the strikes’ nature or origin (though interestingly such a collision was beyond the actual control of an air carrier)[4]. Explaining the rationale for this view at paragraphs 28-30, Advocate General Bot wrote:

‘28. The wildlife hazard involved in air transport is a well-known phenomenon and perfectly well understood by the relevant actors. From the stage of manufacturing an aircraft, the parts of it which are the most prone to impact with a bird — that is, in particular, the engine and the windscreen of the cockpit — are subjected to tests before the aircraft is able to obtain an airworthiness certificate allowing it to fly. Thus, in order to test the resistance of an aircraft to collision with birds, aircraft manufacturers frequently use ‘chicken cannons’ which fire bird corpses at the aircraft’s flight speed at altitudes where such birds are commonly encountered, that is to say during take-off and landing. Thus, the structure of the aircraft must be able to withstand impact with birds of different sizes, according to the model of the aircraft and the model of the engine.

Advocate General Bot concluded thus[6]:

‘33. It is therefore clear that a collision between a bird and an aircraft is in no way an event which is ‘out of the ordinary’, in fact, it is quite the opposite. The frequency of such collisions and the fact that they are taken into consideration in the design of the aircraft, in the management of airports and at the different phases of a flight sufficiently demonstrate, in my view, that such an event is very much inherent in the normal exercise of the activity of an air carrier. Any other conclusion would lead to the legal classification as ‘extraordinary’ of an event which is perfectly ordinary.

The risk is certain, known, allowed for and present from the time the aircraft takes off or lands, that is to say it is inseparable from aeronautical activity itself. It seems clear, moreover, that nobody seriously disputes that characteristic.’

The CJEU chose not to tackle Advocate General Bot’s conclusions, however, its judgment implicitly rejected all of them: bird strikes were extraordinary as they were ‘not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control’[7].

So far as bird strikes are concerned, the effect of Pešková is that carriers will no longer be obliged to pay passengers compensation for delays or cancellations caused by such events if they can prove that all measures were taken to prevent the strike in question occurring.

What reasonable measures must carriers take?

The CJEU said the following in respect to what reasonable measures would be required[8]:

28. Since not all extraordinary circumstances confer exemption, the onus is on the air carrier seeking to rely on them to establish that they could not, on any view, have been avoided by measures appropriate to the situation, that is to say, by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned (see judgment of 12 May 2011, Eglītis and Ratnieks, C 294/10, EU:C:2011:303, paragraph 25 and the case-law cited).

That air carrier must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able, unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time, to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight or its delay equal to or in excess of three hours in arrival (see, to that effect, judgments of 19 November 2009, turgeon and Others, C 402/07 and C 432/07, EU:C:2009:716, paragraph 61, and of 12 May 2011, Eglītis and Ratnieks, C 294/10, EU:C:2011:303, paragraph 25).’

The Court went on to hold that ‘in order to assess whether an air carrier has actually taken the necessary preventative measures in order to reduce and even prevent the risks of any collisions with birds enabling it to be released from its obligation of compensating passengers under Article 7 of that regulation, only those measures which can actually be its responsibility must be taken into account, excluding those which are the responsibility of other parties, such as, inter alia, airport managers or the competent air traffic controllers’[9]

Accordingly, it will be for national courts to assess whether an air carrier – particularly at ‘the technical and administrative levels’ – was ‘actually in a position to take, directly or indirectly, preventative measures likely to reduce and even prevent the risks of possible collisions with birds’[10].

If an air carrier is not able to reasonably take such preventative measures then it will not be required to compensate passengers under Article 7 of the Regulation[11]. If such preventative measures ‘could actually be taken by the air carrier concerned’, it is for the national court ‘to ensure that the measures concerned did not require it to make intolerable sacrifices in the light of the capacities of its undertaking’.

The CJEU therefore took a pragmatic view of the reasonable measures test, holding that a carrier is not responsible for the failure of other entities, such as airports and air traffic controllers, to take their own measures to prevent bird strikes. However, it is unclear what preventative measures were being contemplated by the Court. As discussed by both the CJEU and the Advocate General, most preventative measures are employed by airports: sonic- or light-based bird deterrents such as pyrotechnic shots, laser torches or imitations of distress calls, the involvement of ornithologists, and/or the elimination of spaces where birds typically gather or fly. Accordingly, carriers would not be responsible for the failure of such measures. Again, this appears to mark a departure from previous CJEU judgments where the Court has referred to Article 13 – the right of carriers to seek redress from third parties in respect of compensation paid to passengers – when faced with carriers disgruntled at having to pay compensation for delays/cancellations outside their control. One can see this element of the judgment being utilised in respect of adverse weather conditions where preventative measures, de-icing for example, are not the responsibility of carriers.

To the extent to which an aircraft is fitted with a technical device(s) designed to prevent bird strikes, the failure of such a device might lead to a finding that all reasonable measures had not been taken unless the carrier could prove the device would not have prevented the particular collision concerned (because the device was not designed to prevent the kind of collision that occurred). Conversely, if an aircraft was not fitted with any preventative devices, a carrier should expect to explain in contested claims why it would amount to an “intolerable sacrifice” for such devices to be fitted to the aircraft, and its fleet more generally.

Another type of preventative measure that might have been contemplated by the CJEU would be what flight crews themselves do (or do not do). As stated by Advocate General Bot in his opinion[12]:

‘32. Pilots themselves have an important role in the management of wildlife hazards, whether before, during or after the flight. Before the flight, pilots acquaint themselves, in particular, with any available information on whether or not birds are present at or near the airport of departure and the airport of destination by means of messages published by Government air traffic control agencies. If there is a risk, pilots may request an intervention in order to deter the birds. While taxiing, pilots must also carefully observe the runway to detect whether any birds are present and, if so, report that this is the case. Finally, a report must be submitted in the case of any bird strike.’

In Boeing’s ‘Strategies for Prevention of Bird-Strike Events’ article[13], it is suggested that ‘if large birds or flocks of birds are reported or observed near the runway, the flight crew should consider:

• Delaying the takeoff or landing when fuel permits. Advise the tower and wait for airport action before continuing.
• Take off or land on another runway that is free of bird activity, if available.’

Whether Boeing’s advice is realistic or a counsel of perfection, one should expect passengers to argue that carriers must prove that the flight crew on an aircraft hit by a bird strike took all reasonable measures to prevent the strike occurring, particularly if the strike occurs during take-off, landing or taxiing. Given that flight incident reports are completed by flight crews when strikes occur, it is likely courts will expect to see disclosure of such reports[14] to ensure all reasonable measures were in fact taken.

It is important to also remember that carriers must show what reasonable measures were taken, or why certain measures were technically and/or economically unviable for the carrier to take, to avoid the delay of three hours or more / cancellation caused by the bird strike. For example, in circumstances where a claimant’s flight is not the flight during which the bird strike occurs, it is always necessary to explain why another aircraft could not provide the claimant’s flight instead of the struck aircraft.

In Pešková, the CJEU ruled that the checks carried out on the aircraft by the local, authorised technician at Brno Airport amounted to the carrier taking all reasonable measures to prevent the delay of the claimants’ flight. It held that the second check to the aircraft was unnecessary, which meant it could not be counted as part of the time resulting from the extraordinary circumstance.

The CJEU made the important point that, when a flight delay is caused not only by a collision with a bird, but also by other circumstances which are not extraordinary, such as a technical failure, the duration of the delay caused by the extraordinary circumstance will be deducted from the total length of the delay in the arrival of the flight. This means that whether a carrier is required to pay its passengers compensation will depend upon whether the portion of the delay for which the carrier is responsible is itself three hours or more. In the claimants’ case, the delay caused by the technical fault was 1 hour and 45 minutes, whilst the bird strike had led to a delay of 3 hours and 35 minutes.

The ruling in Pešková is a welcome one for an airline industry which has seen an ever-diminishing pool of events that constitute extraordinary circumstances. The CJEU was keen to stress that whilst consumer protection was paramount, ‘carriers must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flights over the objective of safety’ (para.25). Whether the ruling will imbue courts in England & Wales with a renewed focus on this inherent trade-off remains to be seen. The extent to which the ruling might affect cases concerning lightning strikes and other meteorological events is discussed below.

.Can Pešková apply to lightning strike cases?

In two separate judgments of the County Court last year, two Circuit Judges held that lightning strikes could not constitute extraordinary circumstances within the meaning of Article 5(3) of the Regulation: HHJ Melissa Clarke in Monarch Airlines v Evans and Lee (County Court at Luton, 14/01/16), and HHJ Harris QC in Tsang v Ryanair (County Court at Oxford, 4/11/16, unreported). I have written previously about the flaws in the Monarch Airlines v Evans and Lee judgment[15], however prior to the CJEU’s judgment in Pešková I considered the Tsang v Ryanair judgment to be difficult to escape without clear evidence to address and contradict the following conclusions found in paragraph 32 of the judgment:

• Lightning is a well-known risk to flight in a metal aircraft, which are not infrequently struck and for this reason are invariably designed in order to survive such events. The risk is inherent in normal airline activity.
• It is the business of airlines to operate in a medium where electrical storms may be, and are, encountered.
• Lightning strikes are an entirely foreseeable hazard of flight and are not “freak” occurrences such as the eruption of an Icelandic volcano.

Should a lightning strike to an aircraft necessitate a mandatory safety check before its next flight, it is considered that such a strike is analogous, if not identical, to a bird strike. Given the CJEU’s conclusion that a bird strike is not inherent in the normal exercise of an air carrier’s activity as it is ‘not intrinsically linked to the operating system of the aircraft’, it is difficult to see how the same conclusion cannot be applied in respect of lightning strikes. Whilst aircraft are designed to withstand lightning strikes, the same is true of bird strikes as explained by Advocate General Bot in his opinion. I therefore consider that the judgment in Pešková is capable of being used by carriers to argue that lightning strikes are, prima facie, extraordinary circumstances.

As with bird strikes, I can foresee passengers seeking to argue that carriers must prove that the flight crew on the aircraft struck by lightning took all reasonable measures to prevent the strike occurring. Such measures would particularly concern weather forecasting and appropriate route planning.

The Pešková judgment should also assist causation arguments that extraordinary circumstances do not have to occur to the flight the claimant passenger(s) is on or due to be. This author has already had several successes in using the judgment to dispel the contention that reference in Recital 14 of the Regulation to ‘meteorological conditions incompatible with the operation of the flight concerned’ means the flight the claimant passenger(s) is on or due to be. In Pešková the CJEU held that a bird strike that had occurred on a flight three sectors before the claimants’ flight was an extraordinary circumstance. It is important to remember that it is vital to explain in witness evidence why only the aircraft affected was the one that could be utilised to provide the flight claimant passengers were due to be carried on.

Even with the benefit of the Pešková judgment, it is advisable for carriers to provide evidence in contested claims of (a) the frequency of lightning strikes (particularly those necessitating emergency landings or checks to aircraft leading to delays of over 3 hours or cancellations), and (b) meteorological information for the route, date and time for the particular flight concerned. As with bird strikes, given that flight incident reports are completed by flight crews when lightning strikes occur, it is likely courts will expect to see disclosure of such reports[16] to ensure all reasonable measures were in fact taken.

Lawrence Power © 2017

cl@4kbw.net

[1] Available here: http://publications.europa.eu/en/publication-detail/-/publication/7181b23b-30ad-11e7-9412-01aa75ed71a1/language-en/format-HTML/source-search

[2] At paragraph 19 of its judgment.

[3] Paragraph 25.

[4] Available here: http://publications.europa.eu/en/publication-detail/-/publication/10488b70-54cc-11e6-89bd-01aa75ed71a1/language-en/format-HTML/source-search

[6] At paragraphs 33 and 34.

[7] Paragraph 24.

[8] At paragraphs 28 to 29.

[9] Paragraph 43.

[10] Paragraph 44.

[11] Paragraph 45.

[12] At paragraph 32.

[13] http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/

[14] Exhibited to, and discussed in, a witness statement.

[15] http://www.4kbw.net/news/01022016145852-the-curse-of-the-lightning-strike—the-impact-of-evans-v-monarch-airlines-/

16] Exhibited to, and discussed in, a witness statement.

4KBW Electric flights

The electric car, once only the domain of eccentric Sci-Fi movies, has now well and truly found its way into everyday consumer life. So, what’s next for the world of fuel innovation? Will we really be able to power commercial flights using just electric fuel, as we now can cars?

A start-up company formed just last year believes we will. The goal of Wright Electric is to make every short-haul commercial flight electric-powered in the next twenty years. Perhaps even more ambitious is their hope to offer a commercial flight between London and Paris in the next ten years.

The company’s proposed low-emission electric plane would actually cost less to run than those currently operating on jet fuels, resulting in a lower cost of travel for both airlines and consumers. The planes would have modular battery packs that could be charged independently of the plane, allowing for a quick swap-over on the tarmac whenever a plane needs ‘refuelling’. This would use the same cargo container that is already in a regular plane. The company is currently seeking investors to help them build a 150-seat passenger aircraft capable of flying 300 miles, which would compete with the smaller members of the Airbus A320 and Boeing 737 families. That means that, by 2030, your trip across the continent could be entirely electric-fueled.

The only problem is that the battery technology that the company is relying on doesn’t actually exist – yet. Wright Electric is relying on battery innovation to continue at its present rate for the next ten years in order for the company to keep a plane in the sky on electricity alone for an entire flight. Batteries need to shrink in both weight and volume, to about 25 tons per battery, in order to make their plans take off. If this doesn’t happen, then Wright Electric would be forced to switch to a hybrid of regular aviation fuel and electricity to power their planes.

Despite this, the project seems to have enough promise in it that major carrier EasyJet has gotten involved. The budget airline has entered into discussions with Wright Electric to share their commercial know-how with the start-up and increase their chances of success. Although Wright Electric hasn’t yet produced a plane of its own, they’re also working alongside American inventor Chip Yates, who has created his own small electric aircraft, the Long-ESA.

But even if Wright Electric is unable to complete the feat, they’re certainly not short of competitors. Aviation giant Airbus is also developing its own electric models. The first of these, a two-seater plane, the E-Fan, has been under development since 2014. In 2015, Airbus completed its first successful electric flight across the English Channel in this model, piloted by Didier Esteyne, who called the flight “confirmation that we can proceed with the development of these aircraft”. And, despite starting small, the company have also announced plans to create their own short-haul electric aeroplane seating 70 to 90 passengers in the future.

This means that it shouldn’t be too long before Airbus is producing larger, commercial-sized jets, powered by electricity alone.

What is needed to push these innovations further is competition, which seems to be well and truly present – so perhaps the reality of Sci-Fi electric planes isn’t too far off the horizon now.

A collision between an aircraft and a bird may now be defined as an ‘extraordinary circumstance’, according to the Court of Justice for the European Union (“the Court”) in a judgment delivered on 4 May 2017.

The ruling means that any collision with birds may exempt an air carrier from the need to pay compensation under Regulation (EC) No.261/2004 (“the Regulation”) to passengers in respect of flight cancellations or delays of over three hours.

The case concerned Ms Marcela Pešková and Mr Jirí Pešká, who encountered a long delay to their flight from Burgas (Bulgaria) to Ostrava (Czech Republic) in August 2013 with the Czech airline Travel Service. The aircraft set to complete their trip had already flown from Prague to Burgas, Burgas to Brno and from Brno to Burgas before commencing their journey. During the flight from Prague to Burgas (the first sector), it exhibited a technical failure in a valve. The valve was repaired but this led to a delay of 1 hour and 45 minutes. When the aircraft then flew from Burgas to Brno (the second sector), it collided with a bird during landing necessitating mandatory safety checks at Brno. Its condition was checked first by a local company and then by a Travel Service technician as the owner of the aircraft, Sunwing, refused to authorise the first check.

The aircraft passed both safety checks but this resulted in a total delay of 5 hours and 20 minutes to Ms Pešková’s and Mr Pešká’s flight to Ostrava. They then brought an action against Travel Service under the Regulaiton in the Prague 6 District Court for CZK 6,825 (approximately €250 each) in compensation.

The Czech court referred several questions to the Court, including whether the collision of an aircraft with a bird is an “extraordinary circumstance” within the meaning of Article 5(3) of the Regulation.

The Third Chamber held that extraordinary circumstances within the meaning of the Regulation are events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier and are outside its actual control. At paragraph 24 of the judgment, the Court explained its reasoning thus:

‘In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. Accordingly, that collision must be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.’

The Court’s definition on inherency – whether an event is ‘intrinsically linked to the operating system of the aircraft’ – appears to mark a departure from its previous rulings on the definition of extraordinary circumstances. So far as bird strikes are concerned, it means aircraft carriers will no longer be obliged to pay passengers compensation for delays or cancellations caused by such events if they can prove that all measures were taken to prevent the collision occurring.

In this case, the Court ruled that the checks carried out on the aircraft by the local, authorised technician at Brno airport amounted to Travel Service taking all reasonable measures to prevent the delay of the flight. It held that the second check to the aircraft was unnecessary, which meant that it was not counted as part of the time resulting from the extraordinary circumstance.

The Court took a practical view of the reasonable measures that an air carrier can take to prevent bird collisions and also noted that a carrier is not responsible for the failure of other entities, such as airports and air traffic controllers, to take their own measures to prevent such a collision.

The Court made the important point that, when a flight delay is caused not only by a collision with a bird, but also by other circumstances which are not extraordinary, such as a technical failure, the duration of the delay caused by the extraordinary circumstance will be deducted from the total length of the delay in the arrival of the flight. This means that whether the aircraft carrier is required to pay its passengers compensation will depend upon whether the portion of the delay for which the carrier is responsible is itself three hours or more. In the claimants’ case, the delay caused by the technical fault was 1 hour and 45 minutes, whilst the bird strike had lead to a delay of 3 hours and 35 minutes.

The ruling is a welcome one for an airline industry which has seen an ever diminishing pool of events that constitute extraordinary circumstances. The Court was keen to stress that whilst consumer protection was paramount,, ‘carriers must not be encouraged to refrain from taking the measures necessitated by such an incident by prioritising the maintaining and punctuality of their flights over the objective of safety’Whether the ruling will imbue courts in England & Wales with a renewed focus on this inherent trade-off remains to be seen.

We’ve all had the same problem: you walk too far away from your Wi-Fi router and, all of a sudden, your Wi-Fi stops working. We all know that it’s simply because the router’s signal isn’t strong enough to reach you that extra few feet away. There is sadly a limit on the strength of Wi-Fi connectivity. But, if Wi-Fi is so dependent upon your proximity to a router, doesn’t it seem strange that Wi-Fi can work in an aeroplane, 35,000 feet above the ground?

So, how does this technology work? Is the answer routers in the sky? Or an invisible cable dropped down to the ground to keep you connected, as you travel at 900 km/h through the air? Close.

More and more commercial airlines are offering their passengers on-board Wi-Fi, whether free of charge or for an extra add-on fee, and they’re all using one of two ways to do it.

Either, the plane will connect to satellites in geostationary orbit (over 35,000 km above the ground), which send and receive signals to Earth through receivers and transmitters, just as they do to produce television signals and weather forecasts. To do this, the plane must have an antenna on its roof, just like a car, which transmits information to and from your smartphone, and the information is simply passed between the ground and the plane via the satellite. The plane will then have an on-board router that will be used to convert this into Wi-Fi signal for the passengers.

Alternatively, the plane may use ground-based mobile broadband towers to send signals up to the aircraft’s antennas (this time on the base of the plane). The way this works is that, as the plane travels through the air, it will automatically connect to the signals of the nearest tower below its path. The only problem with this is when a plane passes over a large body of water or remote terrain, where there aren’t any broadband towers below, which results in a break in connectivity – just like wandering with your laptop into your garden.

But all of this clever technology doesn’t come cheap (or quickly). The US has the best developed infrastructure of towers and satellite connectivity, so your Wi-Fi on a commercial flight operated by a US company is likely to be cheaper and quicker than on a trip through Europe. The price comes primarily from the antennas which have to be fitted onto the aeroplanes to make the Wi-Fi work. These increase the aeroplane’s drag, which increases fuel costs, without forgetting the added engineering and maintenance costs involved. All of these costs are passed onto the consumer, with Wi-Fi usually being an ‘added’ (costly) extra on today’s flights. What’s more, you might have noticed that, even once you do get yourself connected to the Wi-Fi, it’s often painfully slow. That’s because a satellite connection can only currently offer a speed of up to around 12 Mbps (as opposed to the average U.K household Wi-Fi speed of 28.9 Mbps) and this can be even slower still if everyone on the plane is trying to connect.

But, that being said, technology is moving quickly. The speed and the price of aeroplane Wi-Fi is set to improve as more and more competitors enter the market and innovation truly takes off in this relatively new area of technology. Plus, even 12 Mbps cannot really be complained about at 35,000 feet, now, can it?

The inquest into the death of British Airways co-pilot Richard Westgate commenced on 6 April 2017 at the Salisbury Coroner’s Court.

WHAT IS AEROTOXIC SYNDROME

“Aereotoxic syndrome” is the term given to the illness caused by exposure to contaminated air in jet aircraft. The condition has not been recognised by medicine and claims of health effects were found to be unsubstantiated by the House of Lords Science and Technology Committee (The report can be found here.). Cabin air contamination is said to occur in the following way. For a comfortable environment and the appropriate cabin pressure to breathe at high altitude, warm compressed air is required. This is supplied direct from the jet engines, known as ‘bleed air’. This air is mixed with the air in the cabin. Jet engines have wet seals which keep oil and air apart. This is important as jet engines require synthetic oils for lubrication, which contain ingredients such as tricresyl phosphate, an organo-phosphate. The wet seals are not 100% effective and through wear their effectiveness can decline. In such an event the oil and air would mix with the air in the engine and as a result contaminated air would get into the cabin.

Mr Westgate died in 2012 in unexplained circumstances after seeking treatment for what he thought was “aerotoxic syndrome”. The post mortem examinations gave the causes of death as either pentobarbital toxicity or lymphocytic myocarditis. Prior to his death, Mr Westgate was said to have suffered from excruciating pain for which he sought specialist care in the Netherlands.

At the start of the inquest, coroner Dr Simon Fox QC stated that : “Exposure to organophosphate in the course of his employment as a commercial pilot is not a proper issue to be examined by this inquest”. He went on and explained that the inquest would consider whether Mr Westgate had died from an overdose, intended or not, of pentobarbital, an insomnia drug. It will further explore whether Mr Westgate had been suffering from an inflammation of the heart muscle, myocarditis.

This early decision seems to be at odds with previous coroner, Sheriff Stanhope Payne’s report, dated 16 February 2015, issued under Regulation 28 of The Coroners (Investigations) Regulations 2013. (The report can be found here.). The report set out that testing of samples taken both prior and after the death,

disclosed symptoms consistent with exposure to organophosphate compounds in aircraft cabin air, which can cause lymphocytic myocarditis. The report also highlighted the coroner’s concerns about potential exposure to organophosphate by occupants of aircraft cabins, that the resulting impairment to the health of pilots may lead to death and that there was no real-time monitoring to detect such compounds in cabin air.

The inquest attracted the attention of the airline industry with the Civil Aviation Authority being involved, and representatives of a number of other airlines watching from the public gallery. The inquest continues.

Judgement was handed down in Isle of Wight Council v Platt [2017] UKSC 28(available here). The Supreme Court provided guidance on what ‘failed to attend regularly’ meant in the context of the offence contrary to section 444(1) of the Education Act 1996.

THE FACTS

On 30 January 2015, Mr. Platt, the father of a child, (‘Mary’), sent a letter to the school attended by the child requesting Mary to be absent during term time. This was for the period between 12 April and 21 April 2015. On 9 February 2015, the head teacher refused the request. Coincidentally, Mary’s mother, who had been separated from Mr Platt, had also taken Mary on holiday in February 2015, which had not been authorised by the school either.

Mr Platt went ahead and took Mary to Disney World in Florida regardless. Accordingly, the council issued Mr. Platt with a fixed penalty notice under the Education Act 1996. As this fine had not been paid within the requisite 21-day deadline, the fine increased to £120. This went unpaid too. Mr Platt was charged with an offence contrary to section 444(1) of the Education Act 1996. On 12 October 2015, a trial took place where the Magistrates determined that Mr Platt had no case to answer. They reasoned that ‘we have to ask ourselves whether M was a regular attendee. Before holiday with Dad, her attendance was 95%. Afterwards, it was 90.3% …. The document supplied on refusal of leave stated that satisfactory attendance is 90-95%’.

The council appealed by way of case stated. The High Court held that the magistrates had not erred in taking into account the child’s attendance outside the absent dates in determining the percentage attendance of the child. (see our post on the High Court decision here.)

THE SUPREME COURT DECISION

Lady Hale explained that the High Court certified a different point of law, namely under section 1 of the Administration of Justice 1960 what information is relevant to the specific period complained off when assessing whether an offence had been committed under section 444(1) of the 1996 Act.

In considering what ‘regular’ meant, Lady Hale considered that the three possible meanings interpretations. These were:

1. At regular intervals.
2. Sufficiently frequently.
3. In accordance with the rules.

In accordance with the rules. In regard to ‘regular’ meaning attendance ‘at regular intervals’ was discarded as a possible interpretation, as this would have enabled a child’s attendance to be regular even if he was regularly late.

In regard to ‘sufficiently frequently’, the court considered that this interpretation accorded with what was meant when one talked of being a ‘regular’ at the pub or a ‘regular’ church. Attendance regularly could not be construed in this way. This was because the purpose of the Education Act 1996 was to increase the scope and character of compulsory state education. Lady Hale further reasoned that the 1994 Act sought to tighten not to relax parental liability. Most significantly, this interpretation would not have been sufficiently certain to found a criminal offence.

The court determined that ‘in accordance with the rules’ was the correct interpretation. This was because, while a minor or trivial breach of the rules could lead to criminal liability, this could be countenanced by a sensible prosecution policy. Further, as statutes imposing criminal liability should be drafted so that everyone knew where they stood this was the only interpretation that would achieve this.

The court, therefore, concluded that regularly in the context of offence meant ‘in accordance with the rules prescribed by the school’.

The decision will shift the attention on the attendance rules and policies of schools. This may result in an increase in judicial review claims.

Fact is that the now Mr. Platt will be reissued with a summons to appear at the Magistrates Court and the entire process begins. As regards Mary’s mother, she had decided to pay the fixed penalty fine at the time it was issued.