UK: DVT: No Accident Continued

Last Updated: 26 January 2006
Article by Nicholas Hughes

When an airline passenger sustains bodily injury that is not caused by "accident" when on board an aircraft or in the operations of embarking/disembarking, he has no claim against the airline. That is the law most recently restated, in the DVT context, by the House of Lords in a unanimous judgment.

Eight DVT claims (out of what had been a large group) went to the House of Lords in the UK when two carriers agreed to reinstate litigation discontinued against them so that our highest court could consider the law. With first instance and appellant court judgments in England already secured and a firm trend established against liability in other jurisdictions, other carriers did not opt for a further hearing. Those that did undoubtedly had one eye on the United States and in the result all will likely be satisfied that their Lordships have not done more than uphold earlier judgments that dismissed the appeals. Importantly, they have also distinguished an awkward US Supreme Court decision (arising in the context of aircrew reaction to a passenger in difficulty) as reflecting its own facts very different from those herein.

Their Lordships were unanimous in holding, by reference to the words of the Convention itself, that the accident must be something other than the injury itself and that the internal reaction of a passenger to the ordinary flight conditions cannot amount to an accident. Judges tend to know "an accident" when they see one but the ordinary and natural meaning of the word has to be understood in the context of the Convention.

This requires an "occurrence" for liability in a cargo case but an "accident" for liability in a passenger injury case and so some difference of meaning between the two is presumed. As Lord Mance observes "any accident may be regarded as an occurrence, but the reverse does not hold true". Accordingly, whilst the ordinary and natural meaning of the word in English law may be of "an untoward event", in the context of the Convention and the circumstances applying in carriage by air, "accident" is not to be taken to refer to the internal reaction of the passenger (i.e. a clot in the leg, damage to hearing, an asthmatic attack or other collapse) to the usual flight conditions. Therefore there is a need for some element to be external to the passenger.

It is in this regard that a chink can be detected, perhaps, between elements of the judgments of their Lordships. This is most stark with Baroness Hale who finds an accident in a passenger who falls over during a flight and sustains injury but who does not consider that in such circumstances one needs to find an event "external" to the passenger to determine that an accident has occurred. Such an event would undoubtedly be untoward but how does one in fact distinguish that, possibly idiopathic, fall from other internal reactions to the conditions of the flight? The answer, applied by the majority, is to rely on the need for an unexpected or unusual happening that caused the fall that is external to the passenger.

Moreover, by these judgments, the accident need not rest in an event in the sense of something which is sudden or which necessarily happens at one time and place; it may rest, provided identifiable, in something continuously applying throughout the flight provided it is not simply the usual flight conditions.

Their Lordships appear to affirm that what is usual or expected is to be judged by reference to airline practice and procedure generally, which should be an objective standard, and not by some higher standard which a court, retrospectively, would judge to be the practice and procedure that should be expected or usual at the time. The test is what was actually expected or usual. Lord Scott states "the expectation has to be viewed from the standpoint of the passenger" i.e. the victim on particular facts. If that means what, objectively, was in fact the standards applying at the time it may not amount to an alternative test.

Their Lordships also rejected claimants arguments that the Convention should be applied flexibly so as to foster a policy that whoever is best able to bear the risk of loss and/or who has control of the aircraft bears the liability. The focus is on what event caused injury (not what want of care was taken to avoid it) and not on whom was in the best position to control the risk or injury or to mitigate the risk of injury.

As we go to press, a report commisioned by the UK Department for Transport into the association between air travel and DVT has been published, on the website. We have not had time to review its contents in detail but whilst it appears to confirm that seated immobility is a factor, the risk appears to be small, to arise in all forms of travel and that other risks are more relevant to the incidence of DVT.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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