UK: DVT: Differing Decisions From The English And Australian Courts

In a first instance decision in the DVT group litigation, Mr Justice Nelson, sitting in the English High Court held that the atypical reaction of any particular passenger to a normal and unremarkable flight, without more, will not constitute an ‘accident’ under Article 17 of the Warsaw Convention. The decision represents a first instance victory for carriers within this jurisdiction on this now much debated legal issue.

The issues of law were considered against a factual matrix, agreed between the parties solely for the purpose of resolution at a generic level of those legal issues. Under the matrix it was assumed that the cabin layout was usual, the usual flight procedures were followed, the aircraft seating and systems were in normal working order, and the flight complied with all applicable regulations. It was also assumed that passengers were at an increased risk of suffering DVT in circumstances where the carrier knew of the increased risk of passengers suffering DVT and did not give them any warning as to the risk or any measures as to how to minimise such risk. Nelson J found as follows:-

PRELIMINARY ISSUE 1: ARTICLE 17 The onset of DVT sustained during the course of, or arising out of, international carriage by air is not caused by an ‘accident’ within the meaning of Article 17 of the Warsaw Convention in the circumstances set out in the agreed matrix. Further, a culpable act or omission (e.g. failure to warn) which does not itself amount to an unusual or unexpected event or happening external to the passenger, does not amount to an ‘accident’.

• Nelson J adopted the definition of ‘accident’ set out in the U.S. Supreme Court decision of Air France v Saks, i.e. ‘an unexpected or unusual event or happening that is external to the passenger’. He found the judgment in Saks to be unanimous and carefully considered, well established and followed in many jurisdictions over nearly two decades. The Convention was not to be interpreted according to English law but in accordance with broad principles of acceptation: "Clearly", remarked Nelson J, "the Saks definition has passed the test of general acceptation".
• Claimants had sought to found the existence of an ‘accident’ by various means. They submitted that a continuing state of affairs (e.g. the passenger cabin environment) and a pure omission (e.g. failure to warn) could both constitute an ‘accident’. Nelson J dismissed these arguments: until something in a chain of causes can be proven to be some event or happening external to the passenger, no ‘accident’ will have occurred.
• Claimants also argued that the Convention provides a fault based theory of liability; wherever fault exists, passengers should not be denied the opportunity of a remedy. Nelson J rejected the claimants’ submission. The convention provides for a form of strict liability under which the passenger is relieved of the burden of proving fault. Whilst fault may co-incidentally be established in the course of investigating whether or not an accident exists, it is not relevant in itself to that task and only comes into play if the carrier (where permissible) seeks to avoid or diminish liability under article 20/21. To find a defendant is not liable where on assumed facts he has ignored known risks is unattractive. However, Nelson J recognised that this is the application of an international convention in which a balance was struck between the interests of carriers and passengers, with the conditions for liability being established and defences provided on the basis of uniformity and certainty, to the intended benefit of passengers and carriers worldwide. Also rejected was the notion of risk apportionment so that the carrier bears the risk of death or injury if the cause is within his control or influence.

Nelson J again found for carriers holding that the applicable version of the Warsaw Convention (whether Warsaw, Warsaw- Hague or Warsaw-Hague-MAP 4) provides the exclusive cause of action and sole remedy in respect of personal injury or death sustained by a passenger during the course of, or arising out of, international carriage by air. In this, Nelson J was subject to existing binding House of Lords authority, even though the cases in question had been decided before MAP 4 came into force.

Nelson J held that the Warsaw Convention is an international treaty incorporated into domestic law by the Carriage by Air Act 1961and so is primary legislation. As such, it must respect rights under the European Convention on Human Rights (ECHR). However, neither Articles 6(1) nor 8 of the ECHR were ‘engaged’ (i.e. applicable to the matters in question) and even if they had been, the provisions of the Convention were neither incompatible with nor disproportionate such that there was a breach of those Articles.

Four claimants who had issued proceedings outside the Article 29 two-year limitation period argued that EC Regulation 2027/97 amended the Warsaw Convention and/or should be construed as a freestanding Regulation, providing a cause of action in the alternative to that arising under the Convention.

Nelson J rejected these submissions. Argument that the Regulation provides an alternative cause of action or that it in some way excludes the operation of Article 29 is contrary to the proper reading of the whole of the Regulation and is unsustainable.

Claimants sought and were granted permission to appeal on the three preliminary issues of law. Time for appeal was extended to 28 February 2003 to enable instructions to be taken from each of the 56 claimants falling within the group. No leave to appeal was given on the EC Regulation point, but these claimants have until 28 January 2003 ask for it. The court may require some persuasion to grant such permission.

Some Claimants may abandon their action following this first instance defeat; others may be keen to fight on. Much however depends on the support of Claimants’ legal expenses insurers to fund an appeal. Absent their support the majority of Claimants are unlikely to have the private means to continue.

On the same day as the High Court held in favour of air carriers, Mr Justice Bongiorno sitting in the Supreme Court, Victoria, ruled that it was premature to find for defendant carriers (British Airways and Qantas) on a strike out application in a passenger DVT case. Mr Povey’s pleaded claim was in essence that the conditions and procedures of air travel comprised an ‘accident’ within the meaning of article 17 of the Convention. It was not pleaded that those conditions and procedures were in any way unusual or unexpected, nor that his DVT resulted in anything other than an internal reaction to the usual, normal and expected operation of the aircraft.

Bongiorno J found that on the claim as pleaded, Mr Povey could not succeed, as a matter of law, in establishing that his DVT was caused by an ‘accident’ under the Convention. However, it was premature, he determined, to rule for the defendant carriers. He granted Mr Povey leave to amend his pleading to include a formal submission inter alia of failure by the carriers to warn of the risks and measures to minimise such risk. Such argument had been made in oral submissions during the hearing but did not form part of the pleaded case. Bongiorno J commented ‘…. If the plaintiff were to particularise his allegation of an accident to include the matters to which I have referred … and, at trial, to lead evidence of them as matters of fact, it would be open to the tribunal of fact trying this case to reach the conclusion that the defendants’ failure to warn of the risks of DVT as they knew them and to advise as to the precautions which they knew a passenger could take to minimise or eliminate those risks constituted in all the circumstances "… an unexpected or unusual event or happening that is external to the passenger’; that is to say an accident within the Saks definition. Such a finding would represent no more than a flexible application of the Saks definition to the particular circumstances of a plaintiff who suffers DVT, as distinct from some other injury, in the course of an aeroplane journey". The defendant carriers in Victoria have until 7 February 2003 to appeal.

The Povey decision has been presented as a victory for the passenger, and the English decision as victory for the airlines. In truth, there are limitations on each interpretation. Just as Povey must go to a full trial on the argument of whether failure to warn constitutes an accident (with the English decision answering this issue in the negative), so it is open to passengers in England to try to bring cases outside the scope of the agreed factual matrix and argue that those variations constitute "unexpected or unusual events" potentially giving rise to liability. Nevertheless there still remain the causation issues; and in any event if the English decision, which follows traditional common law authorities on the issues, is upheld on appeal, it will narrow considerably the scope for DVT claims against air carriers.