Aviation - market insights Q3/Q4 2024

Climate change related turbulence  

There has been an increase of severe turbulence over recent years. These have been brought into the spotlight following the death of one passenger and injuries sustained by several others on a flight from London Heathrow to Singapore on 27 May.  

Experts have advised that global heating is causing disruptions in different layers of the atmosphere, resulting in the risk of severe turbulence becoming more likely.  

To respond to fears around increasing passenger and crew injuries, airlines should review their safety procedures and training – for both crew and passengers.  

Drones consultations   

In July 2024 Kennedys responded to the Law Commission’s detailed consultation on automation in aviation.  

We agree that changes to the legislative and regulatory framework is fundamental to the safe deployment of autonomous aviation systems. Within our response, we highlighted that key areas to be included in the updated regulatory framework should include:  

• Mandatory use of flight data recorder systems or devices for all autonomous drone operations
• Provisions to allow the sharing of anonymised data collected from flight data recording systems with authorised, registered stakeholders.

We also took the opportunity to reiterate our position on the proposed review of the Consumer Protection Act 1987, stressing that we consider that there should be a review of the CPA to take account of the challenges of emerging technologies, but that we do not consider that such a review should be confined to aviation or automated vehicles.

Case developments

What are ‘extraordinary circumstances’ for cancelled flight compensation  

Lipton and another v BA Cityflyer Ltd  [10.07.24]

This case considered a claim for compensation for a cancelled flight. The sums involved were only Euro250, but the principal has the potential to affect many thousands of claims brought under EC Regulation 261/2004 (the Regulation). The flight was cancelled due to the pilot falling ill unexpectedly while off-duty. The Regulation entitles passengers to compensation for cancelled flights, unless the airline can show that the cancellation was due to ‘extraordinary circumstance which could not have been avoided even if all reasonable measures had been taken’.

The Supreme Court held that the pilot falling ill did not constitute an “extraordinary circumstance” for the purposes of the Regulation. However, the significance of the decision lies in the fact that rather than applying the Regulation as assimilated into UK law post-Brexit, the Supreme Court found that the law as it applied to the Liptons was when their cause of action had accrued, which was pre-Brexit. The Court held that the Regulation applied without the assimilation into UK law, thereby not allowing any divergence from the previous EU case law. While there remains scope for the UK courts to diverge from EU case law in cases which relate to flights post-Brexit, there remains an apparent reluctance for them to do so.