UK: Airline Liabilities – Severe Acute Respiratory Syndrome (SARS)

Last Updated: 16 June 2003
Article by Peter Coles

In 1996, a 32 year old woman died of a drug resistant strain of tuberculosis after flying with United Airlines from Chicago to Hawaii. The Centre for Disease Control traced all 249 passengers and found that six passengers, some as far as 13 rows behind the woman, had caught the pathogenic bacterium which causes tuberculosis. As a result of this incident several governments established guidelines to prevent the spread of communicable diseases including tracing passengers who have been exposed to the infection.

Severe Acute Respiratory Syndrome ("SARS") is not the same as tuberculosis but there may be similarities in the way it is contracted and the steps that airlines need to take to try and ensure the safety of the travelling public. SARS has struck victims in thirty-one countries including China, Hong Kong, Singapore, Thailand, Taiwan and Canada. Reactions to the virus have had a devastating impact on the profitability of many airlines in Asia. The World Health Organisation (WHO) issued an Emergency Travel Advisory to passengers and airlines on 15th March, updated on 23 May, which indicated that while the risk of in-flight transmissions is very low, passengers and airlines should be aware of the main symptoms of SARS and set out recommended travel restrictions and in-flight precautions and measures. Some governments require passengers to complete health declarations on arrival and to submit to medical examination if they are suspected of suffering from SARS. Additionally, passengers have been requested to contact health authorities after investigations have revealed that fellow passengers have caught SARS. The operators of these flights have had to impound their crew on a temporary basis and take steps to disinfect their aircraft.


In general the principles of air carriers’ liability for a passenger contracting SARS in an aircraft cabin are no different to principles relating to the spread of other diseases such as tuberculosis or cholera.

Airlines must comply with international health regulations and the laws of the countries to which they operate services. If they ignore passengers that look unwell, they may be exposed to penalties.

WHO report ‘symptomatic probable SARS cases on four flights have been associated with possible transmission on board’. The possible risk factors for the airlines could include (a) failing to deny at check-in boarding to a passenger who has SARS symptoms or to take any precautionary steps to check that the passenger is medically fit to fly; (b) failing in flight to isolate a passenger who has SARS symptoms or to await medical authorities at destination before disembarking passengers; (c) failing to trace fellow passengers where an airline is notified that a passenger on one of its flights had SARS; (d) a failure in the cabin ventilation system.

In considering the liability of airlines to passengers that have contracted SARS, a distinction needs to be drawn between claims brought in countries that recognise the applicability of the Warsaw Regime and the Montreal Convention (as well as, in many cases, the exclusivity of the cause of action thereby provided) and those countries that do not, such as Thailand and Taiwan where domestic tort and contract law principles regarding personal injuries/death will apply.

The Conventions require an accident to have caused the damage to have taken place on board the aircraft or in the course of operations of embarking and disembarking. The US Supreme Court decision in Air France-v-Saks gives the authoritative definition of the term "accident" as " unexpected or unusual event or happening that is external to the passenger", also holding that an injury resulting from "the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft", is not caused by an accident.

In the Scottish decision of King-v-Bristow Helicopters, the House of Lords held that compensable ‘bodily injury’ includes "the physical infliction of physical injury during the flight even though not already manifested at the conclusion of the flight, for example a disease or illness contracted upon the aircraft through the contamination of the aircraft’s air supply".

The current litigation on DVT issues will assist on whether an airline’s failure to warn passengers of the risk of SARS and/or to take steps to isolate a passenger with SARS symptoms or honour requests by other passengers for alternative seating might possibly amount to an accident as an unexpected or unusual event or happening.

In Hussain-v-Olympic Airways the United States Court of Appeals for the Ninth Circuit concluded that the failure by an airline to accede to a request by a passenger with asthma problems to be moved from a smoking section can be an "accident" under the convention. The Court found that: "The failure to act in the face of a known, serious risk satisfies the meaning of "accident" so long as reasonable alternatives exist that would substantially minimise the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airline". The analysis in Hussain can be criticised for confusing notions of ordinary negligence (fault theory) with the requirements of the Conventions and the US Supreme Court will review the decision.

In the recent English High Court decision in the Deep Vein Thrombosis litigation (which is under appeal) Nelson J concluded that the definition of accident in Saks should be applied flexibly and commented that in a chain of causes the passenger is only required to prove that something in the chain was an unusual or unexpected event external to the passenger. That event must be the cause of the illness rather than the illness itself. The DVT claimants failed to reveal an event or happening external to the passengers which occurred on the flight but the SARS issue highlights the possibility for an attack based on a failure by crew to intervene.


It remains to be seen whether airlines will be exposed to formal claims from passengers who may have contracted SARS aboard flights and whether, as with DVT, issues will arise as to what is an accident. Most airlines have meanwhile taken precautionary measures to keep the travelling public informed of the latest health information available, to screen passengers at check-in and prior to boarding and disinfect aircraft. Tracing of passengers after flights to enable airlines to ascertain those most likely to have been exposed to risk is complicated by a number of factors: passengers on disembarkation are dispersed widely; there is a two to ten day period of incubation; more significantly, some government agencies in Asia are refusing to provide airlines with details of those infected. Airline reservation systems may not have sufficient data relating to passengers to give to airline medical staff and health authorities.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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