UK: DVT Update: Air Carriers Winning the Argument on Failure to Warn

After the relative success for air carriers in the UK DVT and Air Travel Group litigation and in Australia, at appellant level, in re Povey v Qantas Airways, the decision of the United States Supreme Court in Husain v Olympic Airways muddied the waters and caused concern that, in the United States at least, carriers might face exposure in a failure to warn case, in a DVT context, by reason of the Supreme Court holding, on the facts of that case, that a carrier’s omission or refusal to act could constitute an ‘accident’ for the purposes of Article 17 of the Warsaw Convention. In the event, more recent decisions have distinguished Husain by reference to its own facts and made the same comment with regard to another earlier decision in Fulop v Malev which also concerned allegations of crew response to passenger injury, in that case a heart attack, when the airline failed to divert and land the aircraft. The US Court of Appeals for the Fifth Circuit has rendered two decisions. On 13 April 2004 in Witty v Delta Airlines, a case concerning noninternational carriage, the court held that any State law claim for failure to warn (of the risks of DVT in carriage by air) must fail for want of conflict with federal regulations set by the FAA that govern such matters as warnings and seat pitch and in respect of which there was no failure to comply by the airline. Then, in Blansett v Continental Airlines Inc, on 21 July 2004, the same court held that the carrier’s failure to warn did not constitute an ‘unusual or unexpected event’ and therefore was not an Article 17 accident. The court did pay regard to whether or not warnings were customary within the industry generally in concluding whether Continental’s failure to warn of DVT could be said to be unexpected or unusual. It found no settled custom and that Continental’s ‘battery of ’ warnings was in accord with the policy of the FAA. This may have been the first US appellant decision on such point.

The US Court of Appeals for the Ninth Circuit held on 3 September 2004 in Rodriguez v Air New Zealand that neither the claimant’s development of DVT nor, in the absence of evidence of an industry standard, the carrier’s failure to warn of DVT risks, constituted an accident for Article 17 purposes. Again, in what had been a normal flight, with nothing external happening to the passenger, the court distinguished the case from those concerned with crew reactions to particular illnesses.

In England, the DVT and Air Travel Group litigation is to go the House of Lords as their Lordships have accepted an appeal on the eight reinstated claims made against two airlines in the Group Litigation. The Group now comprises a very small number of claimants compared to those who embarked on the litigation and, as we say the number of carriers had been reduced to two. The claimants amended their petition to the House of Lords albeit before the above appellant US decisions were to hand, although those will no doubt be referred to in argument.

In Australia, the High Court has also given the claimant in Povey special leave to appeal. The appeal will focus on whether ‘failure to warn’/advise on precautions is a ‘accident’ and will deal with other particulars which the first instance judge opined might found such a cause of action.

One further case of note is Noam David v El Al in which, albeit currently subject to an appeal, an Israeli District Court handed down judgment on 6 July 2004 that a failure to warn of DVT is not ‘an event’ and therefore cannot be considered an ‘accident’, that any failure to warn prior to being on board the aircraft was outside the terms of the Warsaw Convention (which was the only cause of action) and that since the injury itself was not the accident, the claim should be dismissed.