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.
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