UK: Carriage by Air and DVT: The Story so Far…

Last Updated: 4 February 2004
Article by Nicholas Hughes and Lorraine Wilson

On 3 July 2003 the Court of Appeal in a unanimous judgment dismissed an appeal against air carriers on a point of law in The Deep Vein Thrombosis and Air Travel Group Litigation. The effect of judgment is that air carriers are not liable to compensate passengers who allege to have suffered deep vein thrombosis during or arising out of flight, unless they can identify some event, beyond the circumstances of normal flight, that caused their injury. Appellants have petitioned the House of Lords for leave to appeal.

DEEP VEIN THROMBOSIS CLAIMS

Deep vein thrombosis (DVT) is a condition in which a small blood clot or thrombus forms, mainly in the deep veins of the legs. Such clots can be present without symptom or signs, but may give rise to swelling of the affected leg, sometimes accompanied by pain and local tenderness. Complications arising from DVT may be life-threatening.

The phenomenon of DVT is not new, nor is its alleged link with air travel. An association was first suggested as early as 1954. However, it was only in the late 1990s and early 2000s that passengers vocally alleged a causal link between air travel and DVT and looked to bring claims. That now well known term "economy class syndrome" was born.

Potentially, DVT claims present a significant liability exposure for the airline industry: the international nature of airline operations and in particular increased long haul passenger travel means that carriers face exposure to claims in jurisdictions worldwide. Secondly, given ever increasing passengers travelling by air, the number of potential claims cannot be underestimated. To put matters in context, in 2001 the number of passengers carried worldwide by the top 20 scheduled airlines was 1,584,000,000.

AIR CARRIER LIABILITY: THE WARSAW CONVENTION

Within this jurisdiction, claims against air carriers for personal injury or death are not subject to ordinary rules of negligence. Rather, liability is governed by international treaty incorporated into English law. The Warsaw Convention 1929 ("the Convention") has since been ratified/adhered to by most of the countries of the world and since 1929 has been the subject of a series of measures by the international community to amend and update it. The Convention creates a code which supersedes national law, as between states who are party to it, relating to the liability of the carrier during carriage by air.

The Convention provides for a presumption of liability on the part of the carrier, without proof of fault, for death or bodily injury arising from an "accident." (Article 17). The wording of Article 17 remains the same in each version of the Convention:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury 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."

The Warsaw Convention, in all of the forms in which it is incorporated into English law, is expressed to provide the exclusive cause of action and sole remedy against an air carrier in respect of personal injury or death sustained by a passenger in the course of, or arising out of, carriage by air to which it applies. The Convention also applies a strict limitation period of 2 years.

GROUP LITIGATION

DVT Litigation against air carriers proceeded under a Group Litigation Order pursuant to Civil Procedure Rules Part 19. Group Litigation provides a common case management vehicle for claims which give rise to common or related issues of law and/or fact. It is designed as a mechanism to reduce costs and the allocation of court resources associated with claims. Proceeding by way of Group Litigation meant that all relevant claims were subject to one legal proceeding before one court. It avoided the possibility of inconsistent first instance decisions in local courts. Further, the effect of judgment in the Group Litigation would be binding on all claims falling within the group.

On 20 December 2002 Nelson J found for defendant air carriers on three issues of law before him. 24 claimants (of the 56 at first instance) appealed against 18 air carriers including British Airways, Qantas, Continental, JMC, Britannia and others.

THE ISSUE ON APPEAL

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 but otherwise hotly contested. Under the matrix it was assumed 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.

On 3 July 2003 The Master of the Rolls Lord Phillips of Worth Matravers, Judge LJ and Kay LJ delivered a unanimous judgment dismissing the appeal and upholding the first instance decision of Nelson J (The Deep Vein Thrombosis and Air Travel Group Litigation 2003 EWCA Civ 1005).

  • The Court accepted that the test for an accident is an unusual and unexpected event or happening external to the passenger. The Court applied existing US Supreme Court authority on the point (Air France v Saks). This test is to be applied objectively and flexibly. The concept of an accident and the language of Article 17 is straightforward. An accident 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 Qantas 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 (eg failure to warn) is not of itself 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 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 (in the US, the Supreme Court’s decision in Husain v Olympic on "omission" is currently awaited).
  • 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 in the context of the Warsaw regime. One looks instead to the event itself.
  • In submissions, the English Appellants had relied heavily on the Australian first instance DVT decision of Povey v Civil Aviation Safety Authority and others [2002] VSC 580 (20 December 2002) in which Bongionio 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 (the "Povey" case was heard on appeal during July 2003. Judgment is awaited.

APPEAL TO THE HOUSE OF LORDS?

The Court of Appeal refused appellants leave to appeal. The Master of the Rolls commented "…I would add that, if [the appellants’] claim goes no further, this may prove a blessing in disguise. It seems to me that, if they had got over the hurdle of establishing an arguable case under Article 17, they would have faced litigation involving difficult issues of causation which would have been very costly to resolve and the outcome of which would have been questionable…". Undeterred, at end July 2003 they filed petition with the House of Lords for leave. Decision on that petition is awaited.

Barlow Lyde & Gilbert acted for Qantas 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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