UK: Olympic Airways v Husain An Unusual and Unexpected Decision

Last Updated: 17 March 2004
Article by Lorraine Wilson and Nicholas Hughes

On 24 February 2004, the Supreme Court of the United States handed down its decision, on appeal from the Ninth Circuit Court of Appeals. The issue was one of passenger death arising out of exposure to smoke in an aircraft cabin in circumstances where a flight attendant had refused to remove the passenger to another seat location upon request. The combination of the majority and dissenting judgments has ‘muddied the waters’ so far as the interpretation of Article 17 of the Warsaw Convention is concerned.

Perversely, the dissenting judgment highlights the potential wide ranging effect of the majority opinion, finding an ‘accident’, on the facts, when the majority finding, by its lack of clarity, leaves air carriers room to debate on the need still to find an event, of the possibility that this case could be distinguished on its facts and that what might be characterised herein as ‘inaction’ would not mean that any ‘inaction’ was intended to be regarded as an event or happening so to be an ‘accident’ under Article 17.

These matters are important in the many factual contexts that can arise onboard aircraft including the current DVT litigation before the courts. The decision will likely strengthen claimant’s prospects in the UK of the Appeal Committee of the House of Lords granting a petition for leave to appeal. We doubt though whether the majority reasoning of the Supreme Court herein, will be sufficiently persuasive for the House, should it hear the case, to overturn the reasoning of the Court of Appeal and of the first instance decision in the English DVT litigation. It must be remembered that the DVT litigation tested the question of ‘accident’ against a hypothetical specimen matrix wherein the facts assume there to be a normal and unremarkable flight, that the carrier knew of the risk of DVT and yet failed to warn passengers of that risk or of measures to avoid it. This is very different territory from the factual circumstances of the Husain decision.

The Supreme Court, in Husain, in the majority decision (6:2) held that inaction by a carrier satisfies the ‘accident’ requirement for carrier liability in Article 17. The facts in Husain were not straightforward and the circumstances and untimely death of Dr Hanson emotionally charged. In Husain, the carrier’s failure to reseat the asthmatic Dr Hanson in response to express requests so to do was held to have contributed to his pre-existing medical condition being aggravated by exposure to ambient cabin smoke, which caused his death. In holding that the carrier’s failure was a link in the chain of causation that led to death, they found an ‘event’ for the purposes of establishing an ‘accident’ within the meaning of Article 17 and so found liable the airline.

The parties did not challenge the underlying District Court finding that the flight attendant had refused to move Dr Hanson, that the refusal to do so was external to him and also unusual or unexpected because it disregarded industry standards, Olympic policy and was in the context of a simple request. The parties of course also accepted the Air France v Saks definition of ‘accident’ (i.e. an unexpected or unusual event or happening external to the passenger) but did differ as to which ‘event’ should be the focus of the inquiry. Olympic focused on the facts as showing that Dr Hanson died as a result of his own internal reaction (an asthma attack) to the then normal operation of the aircraft which involved ambient cigarette smoke and argued that the flight attendant’s failure to move Hanson was (only) ‘inaction’ whereas only ‘action’ could amount to an event or happening. Dr Hanson’s wife, Rubina Husain, argued to the contrary: the refusal to assist her husband was the necessary ‘injury producing event’.

The Court of Appeal in England when looking at the Husain facts available to them did not consider the circumstances as amounting to a non-event. In the UK DVT Court of Appeal judgment, the Master of the Rolls held that ‘inaction is the antithesis of an accident’ but he would not have characterised the circumstances in Husain as one of carrier’s ‘inaction’. He was concentrating on a pure state of affairs whereby a carrier failed to warn passengers (of the risks of DVT). The majority in the Supreme Court considered their conclusion not inconsistent with the UK Court of Appeals decision, although, to the extent that their reasoning is inconsistent with that of the Supreme Court, rejected the analysis of the English Court and also that of the Australian Court in re: Povey. The Supreme Court dissenting judgment stated that it was not implausible to regard the facts in Husain as involving ‘sufficient elements of inaction to support recovery’ but considered that the real facts could only properly be characterised as inaction (and therefore as not involving an event or happening), rendering the English and Australian decisions on accident (in the DVT context) ‘squarely at odds’ with the majority decision in Husain adding that the answer was not to view the cases as involving substantial factual distinction but of needlessly placing the US in conflict with the courts of other states when there was a need for a coherent international body of law. We may find that the principled trenchant dissent to the effect that the majority’s conclusions were ‘completely opposite’ from the holdings in the DVT appellate cases in the UK and Australia make for some extra hurdles in seeking to distinguish the Husain case, but that is what we shall argue for.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions