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Allens Arthur Robinson

March 2006

Airline liability explored in House of Lords DVT decision

In brief: Consistent with the approach taken by Australia's High Court, the UK House of Lords has rejected an appeal against the dismissal of an action under Article 17 of the Warsaw Convention by airline passengers who developed deep vein thrombosis. Senior Associate Chris Peadon reports on the House of Lords' decision and the approach taken in other jurisdictions. 

Introduction

In the past few years, there have been numerous actions against airlines in various jurisdictions by passengers who claim to have developed deep vein thrombosis (DVT) as a result of air travel. Liability of airlines for death or bodily injury to passengers in countries that are signatories to, and have incorporated the provisions of, the Warsaw Convention (the Convention) into their domestic law is limited under Article 17 of the Convention, which provides that:

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or other bodily injuries suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. [emphasis added]

Courts in various signatory countries, including Australia and the UK, have endorsed the conclusion of Justice O'Connor of the US Supreme Court in Air France v Saks1 that:

... liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening external to the passenger. This definition should be flexibly applied after an assessment of all the circumstances surrounding a passenger's injuries. [emphasis added]

 

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Position in Australia

As reported in Recall, July 2005, the Australian High Court unanimously held in Povey v Qantas2  that, in the absence of a practice or express obligation to warn passengers in respect of DVT at the time of the alleged incident, Mr Povey was not entitled to recover damages under Article 17 on the basis that the airline's failure to warn him was not an 'accident' (ie an unexpected or unusual event external to the passenger).3 Given that by Mr Povey's own admission nothing unusual or unexpected happened on board the aircraft or in the course of embarking or disembarking, the High Court held by the majority of 6-1 that no cause of action was established.4

 

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UK Court of Appeal

In Recall, August 2003, we reviewed the decision of the UK Court of Appeal in the Deep Vein Thrombosis and Air Travel Group Litigation5  case that a failure to warn passengers of the risk of developing DVT could not be an 'accident' and therefore passengers were not entitled to recover damages under Article 17. The airline subsequently funded an appeal by the passengers to the UK House of Lords (the court of last resort in the UK) in respect of this matter.

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Decision of the House of Lords

The House of Lords was asked to consider:6

Whether the onset of [DVT] sustained during the course of, or arising out of, international carriage by air, whether as result of an act and/or omission of the carrier or otherwise, is capable, in principle, of being 'an accident' causing bodily injury within the meaning of article 17 of the Warsaw Convention.

This preliminary question was considered in the context of an assumed set of facts (some of which would be contested in any trial), including:

  • the passenger cabin, seating space and type of seat were all in accordance with the airline's usual standards;
  • the flight was operated in accordance with the airline's usual practices and procedures;
  • nothing happened in the course of the flight that adversely affected the performance or flight characteristics of the aircraft;
  • throughout the flight, the aircraft seating and systems affecting the passenger cabin environment were in their normal working order;
  • the aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations;
  • the airline knew, or ought to have known prior to the flight, that passengers of aircraft are exposed to an increased risk of developing DVT;
  • the airline did not warn the passengers of the risks of developing DVT or advise them how to minimise that risk any time prior to, or during, the flight; and
  • the passengers developed DVT as a result of the flight.

The House of Lords recognised that claims under Article 17 based on a failure to warn passengers of DVT had been rejected in Australia, Canada, Germany and the United States, and acknowledged the importance of adopting an interpretation of the Convention that was consistent with the interpretation adopted by other signatory countries. In his leading judgment, Lord Scott of Foscotte (with whom the other members of the House of Lords agreed) observed that the most important decision was that of the Australian High Court in Povey v Qantas (see above), in which the High Court had considered and rejected a similar claim in the context of similar assumed facts.7 Consistent with the reasoning in Povey v Qantas, the House of Lords held that the normal operation of the aircraft cannot constitute an 'accident' for the purposes of Article 17 and that the event or happening that caused the damage must be something external to the passenger. Lord Scott observed that:8

These two requirements appear to me to rule out Article 17 recovery in DVT cases when no more can be said than that cramped seating arrangements in the aircraft were a causative link in the onset of the DVT. The failure by an airline to warn its passengers of the danger of DVT and the precautions that might be taken to guard against that danger does not in my opinion, improve the case, at least where there is no established practice of airlines generally or the defendant airline in particular to issue such warnings. How the case would look if there were such an established practice and if by an oversight the usual warnings were not given does not arise for consideration in the present case. [emphasis added]

 

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Consistency with position in the US

The UK House of Lords also considered the decision in the context of the reasoning of the US Supreme Court in Olympic Airways v Husain9. In that case, a passenger suffering from a congenital asthmatic condition died on board the aircraft. The passenger and his wife had asked to be moved away from the smoking section of the plane several times, but the flight attendant refused. The US Supreme Court held, by a majority of 6-2, that the flight attendant's conduct could constitute an 'accident' within the meaning of Article 17 and that the action should not be dismissed. The majority accepted the argument that the flight attendant's failure to move the passenger to an available seat further away from the smoking section was a cause of the damage external to the passenger and, since it was contrary to normal airline industry, was therefore neither expected nor usual. The majority rejected the argument that a failure to act could not constitute an 'event or happening' and, therefore, could not be an 'accident' for the purposes of Article 17 of the Convention.

Although several members of the UK House of Lords questioned the US Supreme Court's approach to interpreting the Convention (ie seemingly construing the words of Justice O'Connor in Air France v Saks and not the terms of Article 17)10 , they did not consider that the decision in Olympic Airways v Husain was inconsistent with the position in the UK.

 

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Analysis

In Australia and the UK the question of whether a passenger, who developed DVT in the course of a flight that took place prior to warnings about DVT becoming standard practice in the airline industry and during which no unusual or unexpected event occurred, may recover damages under Article 17 has been resoundingly answered in the negative.

On a theoretical level, an airline that fails to comply with its own or industry procedures to warn passengers in respect of DVT could possibly be held liable under Article 17 on the basis that its omission to warn passengers was an 'accident'. However, the claimant is likely to face significant difficulty in proving the causative link between the failure to warn and the development of DVT.

It appears that the position in the US is consistent with that in Australia and the UK, notwithstanding the apparent criticism of the US Supreme Court's approach to the interpretation of the Convention.

These decisions provide some certainty to participants in the airline industry, and those assessing the risks of successful claims being made against airlines, in respect of DVT or other bodily injuries or deaths suffered during the course of a flight or while embarking or disembarking from an aircraft.

 

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Footnotes
  1. 474 US 392.
  2. (2005) 216 ALR 427.
  3. (2005) 216 ALR 427 at 437 per Chief Justice Gleeson and Justices Gummow, Hayne and Heydon; at 446 per Justice McHugh, at 472 per Justice Kirby; at 472-473 per Justice Callinan.
  4. Chief Justice Gleeson and Justices Gummow, Hayne, Heydon, Kirby and Callinan; Justice McHugh dissenting.
  5. [2003] AII ER (D) 69 (Jul).
  6. Deep Vein Thrombosis and Air Travel Group Litigation [2005] UK HL 72] [10] per Lord Scott of Foscotte.
  7. [2005] UKHL 72 at [20] per Lord Scott of Foscotte.
  8. [2005] UKHL 72 at [24] per Lord Scott of Foscotte.
  9. 124 S.Ct 1221 (2004).
  10. see [2005] UKHL 72 at [22] per Lord Scott of Foscotte (with whom the other members of the House of Lords agreed); at [49] per Baroness Hale of Richmond.

 

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