The recent decisions of Mr Justice Nelson in the DVT litigation heard in the High Court and that of His Honour Judge Bongiorno in the Supreme Court of Victoria in Australia, come to different conclusions as to whether a passenger who develops DVT as a consequence of flying has suffered an "accident" under the Warsaw Convention. In this bulletin we examine the contrasting decisions.
In the High Court Mr Justice Nelson heard a number of preliminary issues which he determined on the basis of assumed facts agreed by the parties for the purpose of the preliminary hearing only. Amongst other matters, it was assumed the flight during which the Claimant’s DVT developed, was a normal one, in the sense that it was operated in accordance with the Defendants’ usual operating procedures and practices, that there is a causal link between air travel and DVT of which the airline was aware and that the airline gave no warning or advice upon how to minimise any such risk.
Article 17 of the Warsaw Convention provides:
"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"
If a passenger is able to satisfy Article 17 an airline is strictly liable for personal injury subject to the defence that the airline took all necessary measures to avoid the damage or that it was impossible for such measures to be taken.
Mr Justice Nelson found that he was bound by the definition of the word "accident" given by the Supreme Court of the United States in the case of Air France v Saks (1995) 470 US 392 namely:
"That liability under Article 17 of the Warsaw Convention arises only if the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries."
Applying this definition he held:
- "accident" means an unlooked for mishap or untoward event which is neither expected nor designed;
- on the agreed facts there was no unlooked for mishap or untoward event, the flight had been a normal one;
- he rejected the Claimants’ submission that "accident" should be defined using either a fault-based or apportionment of risk interpretation.
In the Australian case the Defendant airlines were seeking to strike out the Claimant’s case. This was refused because the judge found there was a triable issue if the Claimant amended his pleading to allege the Defendants knew the causes of DVT and its relationship to cramped conditions and if allegations were made that precautions should have been taken in view of the Defendants duty to warn. There, therefore, remains many hurdles for the Claimant to overcome before he succeeds although the judge acknowledged there was a triable issue.
Discussion
The difference in the analysis between the two decisions is that in the High Court proceedings Mr Justice Nelson applied the definition of "accident" on the basis that the flight had been a "normal" one when judged against the airlines’ usual practice which included the absence of any warning as to the potential risk of DVT.
In contrast, in the Australian decision the judge found that merely because it was an airline’s usual practice not to issue any warning did not necessarily mean that that state of affairs should be seen as "normal". In his judgment an accident could be established if it was found that objectively the Defendant airlines should, amongst other matters, have issued warnings. He stated:
"It is not open to the Defendants to argue that because, at the relevant time, their procedures did not provide for advice or warnings to be provided about DVT that there was therefore nothing unusual, abnormal or unexpected about a warning or advice not being given in this case … the question of normality must be judged objectively."
We shall return to this topic in future bulletins as the case law develops.
Article by Howard Watson