UK: DVT Court of Appeal Decision 3 July 2003

Last Updated: 25 July 2003
Article by Nicholas Hughes
On 3 July 2003, following oral argument on 1 and 2 July 2003, the Court of Appeal dismissed an appeal brought against air carriers on a point of law in the Air Travel and Deep Vein Thrombosis (DVT) Group Litigation. The effect of the judgment is that air carriers are not liable to compensate passengers who allege to have suffered DVT during or arising out of an international flight merely because nothing untoward occurred (a normal flight) other than the fact of injury to the passenger where the carrier has not provided any warning of the risk of DVT or advised on measures to avoid the risk. The passenger will need to identify some event that caused his injury.

In dismissing the appeal the Court of Appeal (Master of the Rolls Lord Phillips of Worth Matravers, Judge LJ and Kay LJ) confirmed an earlier High Court judgment of Mr Justice Nelson of 20 December 2002.

24 claims (of the 56 at first instance) were under appeal against 18 air carriers including British Airways, Qantas, Continental, JMC, Britannia and others. The issue of law, subject to appeal, was whether the onset of DVT sustained during the course of, or arising out of, international carriage by air, whether as a 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. The issue was tested against a hypothetical specimen matrix agreed between the parties solely for the resolution at a generic level of the legal issues. Under the matrix it was assumed for the purposes only of determining the legal issue, that there was a normal and unremarkable flight, that the carrier knew of the risk of DVT and failed to warn passengers of the risk of DVT or of measures to avoid the risk and that the passenger suffered DVT on the flight.

The Master of the Rolls delivered the leading judgment with Judges LJ and Kay LJ providing shorter concurring judgments.

  • The Court accepted the test for an accident as it is set out in the leading US Supreme Court decision of Air France v Saks: an unusual and unexpected event or happening external to the passenger. This test is to be applied "objectively" and "flexibly".
  • The Court rejected Appellants' arguments (advanced also, unsuccessfully at first instance) that concepts of fault or of risk allocation are relevant to determination of what is an accident. One looks instead to the event itself.
  • The concept of an accident and the language of Article 17 is straightforward. It is an untoward event which impacts directly and physically upon the passenger. As to "event", The Master of the Rolls was assisted by reference by counsel for QF to discussion of the natural meaning of that term by the House of Lords in Axa Re v Field. Mustill LJ held there that "In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way……A cause is to my mind something altogether less constricted. It can be a continuing state of affairs; it can be the absence of something happening."
  • An accident may be caused by an act or an omission but mere inaction is not of itself an accident, "inaction is the antithesis of an accident". The existence of the permanent features of an aircraft or the subjecting of passengers to carriage in aircraft with those features is not capable of amounting to an event that satisfies the first limb of the definition of an "accident". The flight itself is not capable of amounting to an accident for the purpose of Article 17. Also, failure to warn of the risk of DVT or to advise on precautions which would avoid or minimize the risk cannot be categorized as an event. It is simply something that did not happen, a non-event, and so not capable of amounting to an accident under article 17.
  • The Master of the Rolls suggested that consideration of whether what took place (or rather what did not take place) satisfied the Saks requirement of "unexpected or unusual" was perhaps unreal having regard to his conclusion that there was no relevant event. Appellants had submitted that Nelson J had failed to apply the Saks test objectively and flexibly but, instead, applied a subjective test using the carriers' own standard procedure as a benchmark of what was to be expected or was usual. The Master of the Rolls held that "this criticism was misconceived. As I have already observed, the specimen matrix must be considered as setting out not the idiosyncratic procedure of a single airline but the typical procedures of the industry as a whole at the material time."
  • The Court of Appeal addressed and commented on various overseas authorities. In doing so, it expressed agreement with the result but not the reasoning of the US Court in Husain v Olympic Airways. The English court opined that an accident could be found in an airline refusing during flight to move a severely asthmatic passenger to a seat further away from the smoking section. The accident was properly to be found in the enforced exposure to smoke; not the failure (i.e. omission) to move the passenger. The inaction, if so properly termed, of the flight attendant is not comparable to the failure to warn or to advise. (eds. such circumstances will have to be carefully reviewed in future cases).
  • The Court disapproved of the US decision of Blansett v Continental (now on appeal), where the court found against the airline on a motion to dismiss a DVT case. The Master of the Rolls considered the alleged failure in that case to institute safety procedures with respect to DVT, to reprint safety placards and to make announcements once or twice in the course of a flight could not be said to constitute an event or an accident. To do so abused flexibility "beyond breaking point".
  • In submissions the English Appellants had relied heavily on the Australian first instance decision of Povey v CASA, BA and QF in which Bongiorno J had refused to strike out Mr Povey's DVT claim and suggested that a failure to warn could constitute an accident. The Master of the Rolls simply could not concur with the Povey decision: mere inaction or inertia (failure to warn) is not tantamount to action. Further, the Povey decision was in conflict with other DVT decisions namely Van Luin v KLM (New South Wales), McDonald v Korean Air (Ontario Superior Court of Justice) and Rynne v Lauda Air (Queensland). In Rynne the judge on appeal held the reasoning of Nelson J in the English litigation to have been "absolutely compelling". The Master of the Rolls was inclined to agree.

Judge LJ concluded that we must respectfully recognize that the pre-eminence of the judgment of the Supreme Court of the United States in Saks had been accepted internationally and we should apply it. However, article 17 has not been rewritten at greater length incorporating the explanation provided by the Supreme Court. There is no new text. (eds. the Montreal Convention 1999 uses the same formulation). It is important to remember the simple word, "accident".

Kay LJ was mindful that the court could not lose sight of the fact that the foundation for liability for bodily injury that was chosen and agreed to under the Convention was an "accident". "If the arguments that have been advanced by the appellants…..were correct and the intention was to provide a liability for the consequences of air travel of the kind with which this litigation is concerned, it seems to me inevitable that the language of Article 17 would have been different and the word "accident" would never have been used or certainly would never have been used without qualification or without an alternative being expressed".

Appellants were denied leave to appeal but lead group solicitors, Collins, are reported as saying that Appellants are likely to petition the House of Lords for leave.

In relation to airline passenger liability issues, the Court of Appeal decision will be applauded for its clarity and reasoning and be of considerable assistance, sometimes as persuasive authority, in other jurisdictions where carriers are currently exposed to DVT claims. It is also a timely judgment coming less than 4 weeks before a DVT appeal on similar issues is heard in the case of Povey v CASA, BA and Qantas before the Supreme Court of Victoria, Melbourne.

It should have the effect of discouraging claims against airlines for injury in the form of DVT or its complications in the absence of what objectively viewed was an accident viz. special facts. Also, the passenger will need to be able to prove that his injury was caused by the accident onboard a particular flight. In any jurisdiction where the Convention does not provide the sole and exclusive cause of action, as it does in the UK, the decision will be of more limited effect. Similarly it is of no application to Defendants other than airlines. In the USA product manufacturers are Defendants and in Australia, CASA. Any issue however, where passenger health and safety is involved will be of concern to air carriers and they may develop advice to passengers in step with a developing state of knowledge.

Barlow Lyde & Gilbert acted for Qantas Airways and South African Airways.

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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