Recall: Product liability group - August 2003
DVT is no 'accident' - says UK Court of Appeal
In brief: The UK Court of Appeal recently ruled that passengers who developed DVT after travelling on an ordinary commercial flight are not able to recover damages from the airlines under the Warsaw Convention. Partner Belinda Thompson (view CV) and Lawyer Chris Peadon examine the different approaches taken by courts in the US, the UK and Australia to this question and look ahead to likely developments.
- Current Australian DVT litigation
- UK DVT ditigation – decision at first instance
- UK Court of Appeal
- Recent US caselaw
- Implications of these decisions
Current Australian DVT litigation
In Recall, July 2003, Andrew Stumer reviewed the decision of Justice Bongiorno of the Supreme Court of Victoria in Povey v Civil Aviation Safety Authority & Ors1 (Povey) (See Recall: Taking on the airlines: Is DVT an accident?).
Briefly, Qantas and British Airways (together, (QBA) applied to the court to inter alia strike out the Statement of Claim. The basis of the application was that the facts pleaded in the Statement of Claim could not support a successful claim under Article 17 of the Warsaw Convention (the Convention). The Convention is incorporated into Australian law by section 11 of the Civil Aviation (Carriers Liability) Act 1959 (Cwth) (the Act). Section 13 of the Act limits the rights of an injured passenger to those defined by the Convention.
Article 17 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.
Justice Bongiorno refused to strike-out the Statement of Claim. In reaching this decision, his Honour referred to the decision of the US Supreme Court in Air France v Saks2 which defined accident for the purpose of Article 17 of the Convention to mean 'an unexpected or unusual event or happening that is external to the passenger'.3 His Honour held that a failure by QBA to warn of the risks of developing deep vein thrombosis (DVT) and to advise passengers of the precautions that they knew a passenger could take to minimise or eliminate those risks (assumed for the purposes of the strike-out application to be known by QBA) could constitute an 'accident' for the purpose of Article 17 of the Convention. Justice Bongiorno rejected a submission that a failure to warn, being an omission to act, could not constitute an 'event' and, therefore, not be an 'accident'. His Honour reasoned that there is a dubious distinction between acts and omissions and that Article 25 of the Convention, which lifts the limit of damages in circumstances of culpability of the carrier, expressly contemplates accidents caused by omissions as well as those caused acts.
QBA's appeal from Justice Bongiorno's decision commenced before the Supreme Court of Victoria Court of Appeal on 28 July 2003. The Court of Appeal's decision is currently reserved.
The approach of other courts when considering similar issues may shed light on the approach that the Victorian Court of Appeal may take.
UK DVT ditigation – decision at first instance
Also reported in the Recall July 2003 was the first instance decision of 20 December 2002 of Justice Nelson of the High Court of England and Wales, Queens Bench Division, in the Deep Vein Thrombosis and Air Travel Litigation.4 Briefly, Justice Nelson was asked to consider whether the features of a normal flight, in which no steps were taken by the airlines to minimise the cause of DVT, could support the passengers' allegation that DVT was caused by an 'accident' for the purpose of establishing a claim under Article 17 of the Convention. Justice Nelson held that it could not. Accordingly, his Honour struck out the Statement of Claim.
UK Court of Appeal
The passengers appealed Justice Nelson's decision to the UK Court of Appeal, which unanimously dismissed the appeal.
The Court of Appeal based its decision on the failure of the assumed facts to demonstrate that an 'accident', within the meaning of Article 17 of the Convention, had occurred. The Court of Appeal stated that an 'accident' involves (1) an 'event' and (2) that event being 'unusual, unexpected or untoward'.
The Court of Appeal held that the usual features of travel by aircraft did not constitute an 'event' and, thus, the appellants failed to satisfy the first part of the definition.
Moreover, the failure to give a warning about DVT is 'something that did not happen – a non-event'. Accordingly, there was no 'accident'.
The UK Court of Appeal also discussed the relevant case law in various jurisdictions, including the decision of Justice Bongiorno in Povey, and rejected the interpretation adopted by Justice Bongiorno that a failure to warn 'is tantamount to action'.
The UK Court of Appeal also acknowledged that Justice Knight of the District Court of NSW struck out a Statement of Claim in similar circumstances to that in Povey.5 Further, Queensland District Court Justice Boulton had reviewed the reasoning of Justice Nelson and Justice Bongiorno and found 'the analysis of Nelson J to be absolutely compelling'.6
Accordingly, it appears that there is little support for the views expressed by Justice Bongiorno in the UK or Australia at present.
Recent US caselaw
However, the decision of United States Federal Judge Vaughan R Walker in the US District Court for the Northern District of California on 3 July 2003, in which the court rejected applications by airlines in two cases to dismiss DVT proceedings, seems to provide some support for Justice Bongiorno's first instance decision in Povey.7
Implications of these decisions
These decisions all arise out of interlocutory applications by airlines to dismiss claims prior to trial. Accordingly, the courts are only considering whether the passengers may be able to prove that normal features of a flight, including a failure to warn of the dangers of DVT, could constitute an 'accident' for the purpose of Article 17 of the Convention
These cases are not determinative of the substantive issues that will be addressed at trial.
The next chapter in this litigation is likely to be the judgment of the Victorian Court of Appeal.
References
- [2002] VSC 580
- (1985) 470 US 399
- [2002] VSC 580 at para [43] per Bongiorno J
- [2003] 1 All ER 935
- Van Luin v KLM Airlines (unreported, District Court of New South Wales, Knight DCJ, 11 October 2002) see para 50
- Rynne v Lauda-Air Luftahrt Aktiengelsellschaft [2003] QDC 4 (unreported, District Court of Queensland, Boulton DCJ, 7 February 2003) at para 30
- Miller v Continental Airlines 02-1693; Wylie v American Airlines
02-2997.
For further information, please contact:
- Peter O'DonahooPartner,
Melbourne
Ph: +61 3 9613 8742
Peter.ODonahoo@aar.com.au
