Originally published by Lloyd's List - 13 February 2003

Courts are still grappling with the liability issues raised by injury claims, writes Anthony Frances

Although the dangers of "economy class syndrome" or DVT (deep vein thrombosis) are well documented, many airline passengers may be unaware that their travel insurance policies will probably not cover this condition at present.

Furthermore, recent court cases held in the UK and abroad suggest that carriers may not be held liable in the event of a DVT-related injury or death.

The central issue that has been considered by the courts is whether DVT is a claim that can be brought under the Warsaw Convention 1929 (as amended), which is the exclusive international liability regime for claims made against carriers. If DVT does not fall under the Warsaw Convention and therefore there is no basis to claim, the second issue is whether travel insurance cover would protect passengers. Consideration of the recent cases makes the position no clearer.

In the recent UK case of The Deep Vein Thrombosis & Air Travel Group Litigation, 2002 HWHC 2825 (QB), the claimants brought an action for damages against a number of airlines for personal injuries suffered (specifically DVT and related conditions) as a result of flying with the defendant carriers. The case raised a number of complex issues including what is deemed to be an 'accident' under Article 17 of the Warsaw Convention. In short, can passengers claim that DVT-related injuries are an 'accident' under the convention? The court held that the "factual matrix" that was considered did not disclose an 'accident' under Article 17 and as a result, the claimants did not succeed on this point. The court applied the definition in Saks, Morris and Chaudhari (see below).

In the US, Germany and Canada, the courts have also rejected DVT claims on various grounds. The common thread to these cases was the lack of an Article 17 'accident' and in addition, the failure by the claimants to prove the element of causation between DVT and carriage by air.

An interesting recent decision that may provide passengers with a basis for bringing an action against airlines is that of Horan v JMC Holidays Ltd (unreported — Macclesfield County Court: January 2002). In this case, Mr Horan claimed £5,000 ($8,000) against JMC for discomfort, DVT and other related conditions while on a longhaul flight with the defendant carrier. Although Mr Horan's DVT claim was rejected, he was awarded £500 for his discomfort during the flight.

In Australia, a recent decision has also raised concerns for carriers and their insurers. In Povey v Civil Aviation Safety Authority & Others, 2002 VSC580, the claimant brought an action against the Australian regulatory authority CASA for breach of statutory duty and against British Airways/Qantas for damages as a result of injuries, including DVT, sustained during a longhaul flight with the defendant carriers.

Mr Justice Bongiorno considered a number of cases dealing with Article 17 of the Warsaw Convention, as incorporated into Australian legislation including Chaudhari v British Airways (unreported 7/5/97), Air France v Saks 1984 470 US 392, Morris v KLM 2002 QB 200 and American Airlines v Georgeopoulos (No 2) 1998 NSWSC 463.

Of particular significance was the case of Husain v Olympic Airways 2000 116 F Supp 2d which was considered by the court to provide support for the claimant in Povey. In the Husain case, the defendant carrier was held liable for failing to move a passenger from the smoking area of the aircraft and failing to provide an oxygen respirator.

Using these facts, Mr Justice Bongiorno stated that an 'accident' may include action or inaction by a carrier. The court stated that it was the "peculiar situation of reliance" of passengers on the airline that must be considered.

An added consideration of DVT and for airlines is that pertaining to insurance. Recent evidence has suggested that travel insurance will not cover DVT and related conditions, as there was no 'accident'. Indeed, some insurance companies have expressly excluded DVT and DVT related-injuries from their policies. It would therefore appear that there is a gap in insurance coverage for passengers. The legal position with respect to DVT is uncertain. What is apparent from the UK and Australian decisions is an attempt to define what is an accident within the ambit of the Warsaw Convention.

Any judge or arbitrator will undoubtedly have to consider the technical and legal aspects of air travel and ask whether the incidence of DVT was an unexpected event. If not, then this issue may be put to rest and passengers will have to take care of their own welfare in the skies.

Anthony Frances is a solicitor in the aviation department of Howard Kennedy, the law firm.

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