Delayed flight "not fit for the purpose of which it was sold"?

I'm just wondering, could a delayed flight be "not suitable for the purpose of which it was sold" under Australian consumer law and as such the traveller entitled to refund ? (I've just had to pay for another ticket on a different airline due to flight delay to ensure I didn't miss my connecting flight!)

It would depend on three factors. What was the reason for the dealy and were both original flights purchased together through the same airline? The third factor is any terms and conditions you agreed to by purchasing the ticket/s.

1) the reason for the delay is not my problem. 2) the flight was purchased to get me to a destination at a certain time NOT to connect with another flight. (this carrier doesn't fly to my final destination) 3) consumer protection laws specifically state that you cannot contract out someones legal rights under those laws. I know this as I'm subjected to those same laws in my business. Are airlines exempt from those same laws ? I think if airline contracts were scrutinized by fair trading they would be found unlawful in more ways than one !

interesting how the approach varies, referring to a delayed flight that's an unplanned event and generally not much it seems you can do about it, or not much offered anyway, I recently had a flight where the schedule was changed by the airline, they phoned me and asked was I willing to accept the new scheuled time, was it ok for me or did I want to change my booking at no cost, have my ticket refunded so I could purchase another ticket

The change in question, the flight was going to depart 5 minutes earlier than originally scheduled

Now I understand that the timing may be critical when dealing with connecting flights or similar but it did seem an extraordinary effort involved due to a 5 minute change, I would think that if you were cutting things so fine that 5 minutes was going to make such a difference that perhaps your planning wasn't that great

I put the question to Office of Fair Trading NSW, and a spokesperson responded (I have deleted some stuff that's completely irrelevant to your case):

The Australian Consumer Law is a national law which commenced on 1 January 2011. The law initiated consumer guarantees applying to services.

Services are covered if they cost up to $40,000, regardless of purpose or use, as long as they were purchased after 1 January 2011. Otherwise, they are covered by statutory implied conditions and warranties under the Trade Practices Act 1974 and state and territory legislation in force before 1 January 2011.

In general terms, businesses must meet consumer guarantees in providing their services. These include:

• services provided with due care and skill
• services fit for any specified purpose
• services provided within a reasonable time (when no time is set)

Remedies for major failures with services

When there is a major failure with a service, a consumer can choose to: cancel the service contract with the supplier and get a refund, or keep the contract and get compensation for the difference in the service delivered and what they paid for example:

A consumer has signed a building contract that sets out the specifications for her new house.

When the house is completed, the consumer notices a few windows are not in the right place. Because the builder has not met the standard required by the contract, the consumer is entitled to compensation.

With regard to the specific airline scenario, consideration would need to be given to the terms and conditions of the contract and whether they were considered fair under ACL. (More info Unfair Contract Terms)

If the customer is unable to resolve the dispute with the Airline, they may lodge a complaint with NSW Fair Trading online at www.fairtrading.nsw.gov.au or at any Fair Trading Centre. If the matter remains unresolved, they may apply to the Consumer Trader & Tenancy Tribunal for a determination of the matter.

"statutory implied conditions and warranties" is what I am questioning.

If I had one of my customers sign a prepaid contract with a clause stating that under many different circumstances I may not be able to deliver my part of the bargain...and by the way if I don't deliver for any reason, you will not be getting your money back...would that contract not be overridden by the "statutory implied conditions and warranties" ?

Here's an example: Let's say I have a customer sign and pay for a contract for services to install a home automation system while a house is being built and for various reasons like, my car is broken down, my staff are on strike, the system wasn't delivered to me on time, etc etc, I am unable to install that system before the house is complete. I then advise that customer that it clearly states in the contract that under no circumstances am I required to give them a refund, even though I have not delivered my part of the contract on time. In this case Australian Consumer Law would override the contract and the customer would be legally entitled to a refund.

So here's the airline clause: "8. The Guest acknowledges that the Carrier may need to cancel or delay and reschedule flights or services due to industrial action, landing restrictions, airport loading restrictions, unsuitable weather conditions, technical problems, operational reasons, or any event beyond the Carrier's reasonable control, and scheduled flight times or destinations are not guaranteed. To the extent permitted by applicable laws, the Carrier will in no circumstances be liable for any Losses which a Guest may incur as a result of any such delayed or rescheduled flight or service"

So my question is, what is the difference in these 2 situations ? Obviously the airlines rely on the fact that the majority of people will not take their cases to the relevant fair trading authorities.

Just further to that last comment...I'm not suggesting that the airline compensate for any of the flow on costs associated with their delay. All I am suggesting is that the airlines should be required to give the customer an option of a refund if the flight is delayed by over a specified amount of time. Say maybe 1 hour or even 2 hours !

PS. My flight which initially prompted this question was delayed by 3.5 hours.

Agreed, Vaniggy, it seems to me that airlines should definitely offer the option of a refund if their flight departure is substantially delayed. It is, after all, a 'defective product' in my opinion. They do say in their contract "To the extent permitted by applicable laws", so they are obviously aware that it's an ambit claim they're making.

Are you considering taking the case to Fair Trading? I would expect the airline would offer you a refund upon receipt of Fair Trading's correspondence -- and I'd love to hear back from you on the result.

It's also something I will follow up with some key Australian airlines to see if I can get clarification on their policy around delays. Thanks for raising the issue here.. it is a good one.