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DVT ruling
Cramped seating on flights combined with air pressure in the cabin has
commonly been blamed as the cause of passengers who suffer from deep vein
thrombosis (DVT). But last week the Court of Appeal ruled that the condition is
not an "accident" under the Warsaw Convention and therefore airlines
cannot be held liable. Des Collins, senior partner at Collins Solicitors talks
to Mary Luckham about the ruling
"Surprised and
disappointed" was the reaction of Des Collins, senior partner at Collins
Solicitors, to the Court of Appeal decision in the group action Re Deep Vein
Thrombosis and Air Travel Litigation [2003] ALL ER D 69 (3 July). The
court held that an �accident� within Article 17 of the Warsaw Convention was
an unexpected or unusual event or happening which was external to the passenger
and, as such, did not occur when the injury resulted from the passenger�s own
internal reaction to the usual normal and expected operation of the aircraft.
The failure of the carriers to warn of the risk was a �non-event� and,
therefore, could not be classed as an accident.
The claimants had argued that the cramped seating combined with the air
pressure, supply of oxygen or temperature in the cabin � which they alleged
had caused them or those they were representing to suffer from deep vein
thrombosis and the failure of the carriers to warn of the risk of DVT or to
advise on precautions which would avoid or minimise that risk amounted to
accidents within Article 17.
The Warsaw Convention governs whether liability arises on the part of airlines
and Article 17 imposes strict liability for �bodily injury� caused by an
�accident� which occurred during international air travel. The Convention
provides �an exclusive cause of action and sole remedy for a passenger
claiming for loss injury or damage sustained in the course of, or arising out
of, international carriage by air notwithstanding that that right might leave a
claimant without a remedy. Sidhu and others v British Airways PLC; Abnett
(Also known as Sykes v British Airways PLC [1997] 1 ALL ER 193 I). It
follows, that no other action can be taken in respect of such occurrences.
Collins, who acted for the claimants says: "The judges in the Court of
Appeal did not believe than an accident could be a �non event�. For an
accident to happen they said that something has actually got to occur and came
to the conclusion that, no matter how unfortunate the circumstances were, if
nothing untoward and external to the passenger happened during the travel, then
that was the antethisis of an accident."
He disagreed with this finding pointing out that if a passenger is provided with
an inadequate seat and sits down, they do not expect to be sitting in something
which the airlines know is inadequate and know can cause them harm.
He adds: "If 10 people were sitting in their office and the air
conditioning blew out carbon monoxide which killed one of them there has been
accident. Just because nine of the 10 are unaffected, it does not mean that
there has not been an accident. We say that is analagous to what happens in an
aircraft."
Although it was not the reason for the decision, Collins believes Lord Phillips
MR�s view was that to allow the action to go ahead would, in any event, be a
waste of time as causation would be impossible to prove, a view strongly opposed
by Collins. "There is ample evidence of causation," he says.
Although there have been cases in Europe where the decisions have been similar
to that of the Court of Appeal, in the recent Australian case of Povey v
Civil Aviation Safety Authority [2002] VSC 580, the judgment was in the
claimant�s favour.
He explains: "It was held in Povey on similar facts that there was an event
and it was unexpected and unusual because one would normally anticipate that the
airline in question would conduct itself properly and in doing so would provide
warnings to passengers or risks of which it was aware."
"There was subsequently a decision in America - Blansett v.
Continental Airlines, No. G-02-061 (S.D. Texas) - which also allowed a case
in similar circumstances and for similar reasons to go forward. Here it was
decided that the failure to warn was so unexpected and so unusual that it would
constitute an accident."
He points out that the Warsaw Convention was designed to enfranchise passengers.
His view was that the word �accident� was chosen because it was a neutral
word in that, he said: "If the plane dropped out of the sky then there
would be no necessity to prove why it did this or whose fault it was. If
something went wrong and a person was injured then they would be able to recover
damages. However, the word �accident� has now been interpreted to
disenfranchise passengers."
The aviation industry, he says, was merely paying lip service to the Convention
when it agreed to go back and reconsider the Convention. Apart from it being
very difficult for all the contracting parties to get together and agree an
amendment. "The truth," says Collins, "is that 'accident' is not
an inappropriate word � even after 70 years. I think it was obtuse of the
Court of Appeal to construe it in the way it did."
He confirms that they intend to appeal and are petitioning the House of Lords,
the Court of Appeal having refused to grant leave. He says: "It is just
bizarre that in the 21st century there is a potentially serious wrong without
any remedy at all."
(08/07/03)
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