UK: Swine Flu – Pandemonium Again!

Last Updated: 6 May 2009
Article by Barlow Lyde & Gilbert LLP

With the spread of swine flu hogging the headlines, airlines may worry that they are in the firing line for claims arising out of this potential pandemic. Drawing on our experience of other worldwide health threats such as SARS and tuberculosis, we consider the real extent of exposure.

What is Swine Influenza?

Swine Influenza (swine flu) is a respiratory disease of pigs caused by a strain of influenza which can be transmitted from person to person. Regular outbreaks among pigs are common, but people do not normally get it. It is thought to spread from person to person through "droplets" that are released through the air when an infected person coughs or sneezes. The droplets can be breathed in by others and can also remain on hard surfaces like counters and doorknobs for up to two hours, where they are picked up on hands and spread when someone touches their eyes, mouth and/or nose.

The symptoms of swine flu are similar to the symptoms of regular human seasonal influenza infection. They include fever, cough, muscle aches, lethargy, and lack of appetite. Some people with swine flu have also reported runny nose, sore throat, nausea, vomiting and diarrhoea.

Infected people may be able to infect others beginning one day before symptoms develop and up to seven days or more after becoming sick. That means that people may be able to pass on the flu to someone else before they know that they are sick, as well as while they are sick.

Potential risk factors for airlines

Potential risk factors for airlines could include: (a) failing to deny at check in boarding to a passenger who has swine flu symptoms; (b) failing to check whether passengers are knowingly infected or have knowingly been in close contact with someone else who is infected; (c) failing, in flight, to isolate a passenger who has swine flu symptoms or to await the attendance of medical authorities at destination before disembarking passengers; (d) failing to trace fellow passengers when the airline is notified that a passenger on one of its flights had swine flu; or (e) a failure in the cabin ventilation systems.

However, the World Health Organization (WHO) has not advised any restrictions on normal travel or the closure of borders and a number of significant hurdles need to be crossed by claimants before liability can be established.

Transmission during carriage by air

The first thing that a passenger claimant has to do is to establish that he/she has been infected during carriage by air. For the vast majority of claims that are governed either by the Warsaw or Montreal Conventions, or legislation applying similar provisions to domestic carriage, this means proving that the infection occurred during a flight or during the period of embarkation or disembarkation. Where claims are not governed by these provisions, local law is likely to adopt a common sense approach based on the actual period in which a passenger is under the de facto control or responsibility of a carrier, including the flight itself.

Therefore, a potential claimant would need to prove that he or she contracted the disease during this timeframe - a matter which may well present significant evidential difficulties. Without evidence, it is always arguable that the passenger became infected at some other time including while at home, at work and on the way to and from airports. In such circumstances, the carrier should not be held liable. This is also likely to be the case if infection takes place in check-in queues, security and immigration checkpoints, duty free shops and public lounges used by a number of airlines.

There is then a further requirement on the passenger to show that the spread of the disease constituted an "accident" for Convention purposes. In many jurisdictions, an "accident" is construed as an unexpected or unusual event external to the passenger.

Whilst clearly external, the transmission of a flu virus from one passenger to another may not be regarded as unexpected or unusual. Despite public fears that they are more likely to become infected on an aircraft – "We caught swine flu on 'plague plane' back from Mexico, say honeymoon Scots"1 - the WHO has argued that there is no medical evidence that normal recirculation of air through the cabin facilitates transmission. On the other hand, it has been held by one court that poor air quality caused by defective equipment in an aircraft leading to a passenger contracting pneumonia amounted to an "accident". Another court held that an airline's failure to move an asthma sufferer further away from the smoking section amounted to an "accident"; and one judge in the House of Lords DVT litigation stated that a failure to move a passenger in these circumstances could not properly be described as a non-compensable non-event.

For claims governed by the Warsaw and Montreal Conventions, passengers are unlikely to succeed in bringing claims for stress or mental injury unless these arise as a direct result of contraction of the flu and only if they can provide medical evidence confirming this direct link. Other claims for stress and the like should be rejected.

Against this background of evidential problems and lack of legal clarity, it is perhaps not surprising that the threat of major claims connected to the outbreak of SARS in South East Asia in 2003 failed to materialise. However, in the absence of a clear precedent precluding Convention claims, claims may be made and they will have to be defended.

Flight cancellations and denied boarding

Airlines may be tempted to err on the side of caution and refuse carriage to passengers who may have been exposed. The general conditions of carriage of most airlines contain a right to refuse carriage if necessary to comply with government regulations, or if carriage endangers the safety and health or comfort of other passengers and the crew. Moreover, remedies available to passengers arising under EU Regulation 261/2004 will not apply where passengers flying on European carriers to and from Europe or flying on Non-European carriers from Europe are denied boarding on reasonable health grounds.

However, this creates a clear tension between the rights of the other passengers to be protected from infection and the rights of the individual to be transported as contracted. In reality, unless passengers disclose their medical condition or exhibit clear symptoms (very difficult in the case of general flu-like symptoms) the carrier is unlikely to be able to deny boarding with impunity. There are specific air carriage regulations, such as the US Air Carrier Access Act, or broader anti-discrimination regulations elsewhere which may prevent refusal of carriage unless there is something someone has an infectious disease. Strictly speaking, only physicians have the right to impose restrictions on a passenger's travel.

We have already seen cancellation of some charter flights to Mexican destinations. Liability for cancellations may be limited if a cancellation is due to government action, but where EU Regulation 261/2004 applies the carrier will still remain obliged to provide a refund or re-routing plus care and assistance for the passenger. Liability to pay compensation under the Regulation is unlikely to arise, however, on grounds of "extraordinary circumstances".

Where physicians are called to examine a passenger but a diagnosis cannot be made without delaying the flight, carriers will need to determine whether to delay the entire flight and provide necessary care and assistance and deal with claims or delay the suspected passenger and deal with any claim for delay and discrimination.

Public law liability

Public law liability is also a possibility - airlines must still comply with international health regulations and the laws of the countries to which they operate services.

Following a serious of infections of communicable diseases (tuberculosis, measles) on board aircraft in the 1980s and 1990s, international regulations (ICAO), standards and recommended practices (WHO, IATA) were adopted to help airlines and airports to take effective measures to prevent the spread of communicable diseases. Following the SARS outbreak, several governments, including the United States government, proposed to amend domestic legislation imposing significant fines on carriers which allowed the outbreak of diseases beyond international borders as a result of failing to comply with regulations.

It is too early to determine whether the swine flu will present a long term headache for airlines. The media's coverage of the SARS pandemic and the handling of the outbreak by certain governments created pandemonium and panic. It was largely this hysteria, rather than the illness itself, that had a devastating impact on airline finances. Today, airlines and governments are better prepared and claimants continue to face significant hurdles in obtaining damages. In the meantime, we will monitor the progression of the flu and epidemiological investigations and report on any significant claims activity

Footnote

1 Daily Record - 1 May 2009

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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