Deep Vein Thrombosis and Air Travel Group Litigation; Re

Introduction

This appeal arises out of group litigation between the appellants ("the passengers") and the respondents ("the carriers"). Most of the passengers allege that they have suffered deep vein thrombosis ("DVT"), leading to serious injury, as a result of travelling in the carriers' aircraft. In some particularly tragic cases the DVT proved fatal and the claim is brought by the personal representatives of the passenger.

The passengers number 24. Their claims include an allegation that the carriers are liable to them under the provisions of Article 17 of the 1929 Warsaw Convention as amended and incorporated into English law by the Carriage by Air Act 1961. The carriers number 18. They include 15 out of the leading 25 international airlines. They deny that the passengers suffered DVT as a result of travelling in their aircraft, but contend that, even if they did, this does not give rise to valid claims under Article 17.

On 20 December 2002 Nelson J gave judgment in respect of four preliminary issues. This appeal relates to only one. At the outset of his judgment Nelson J described this issue as "whether, on the basis of the agreed specimen matrix, the Claimants have a claim under Article 17 of the Warsaw Convention for the DVT allegedly suffered by them, and in particular whether the specimen matrix discloses an 'accident' for the purposes of Article 17". The judge held that the specimen matrix did not disclose an "accident" and the passengers appeal against that decision with the permission of the judge.

The Warsaw Convention

The following articles of the Warsaw Convention are relevant to the issue before us:

"Chapter III

Liability of the Carrier

Article 17

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any 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.

Article 18

(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.

………

Article 19

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Article 20

The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures."

5. Article 22 imposes limits of the liability that is imposed by Articles 17, 18 and 19.

"Article 24

(1) In the case covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.

(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.

Article 25

The limits of liability specified in Article 22 shall not apply, if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servants or agent, it is also proved that he was acting within the scope of his employment."

The specimen matrix

6. The specimen matrix is in the following terms:

"1. Deep Vein Thrombosis ('DVT') is a condition in which a small blood clot or thrombus forms mainly in the deep veins of the legs. Such clots can be present without symptom or signs, but may give rise to swelling of the affected leg, sometimes accompanied by pain and local tenderness. Complications arising from DVT may be life-threatening. Complications occur when a thrombus breaks away from the wall of the vein to which it is attached and is carried along with the flow of the blood as an embolus. If the embolus reaches a blood vessel through which it cannot pass, it blocks the vessel, thereby producing an embolism. The most serious of these occurs in the lungs (a pulmonary embolism), which gives rise to chest pain and breathing difficulties and, in the worst cases, death from respiratory failure.

2. There are certain factors which may predispose individuals to the onset of DVT. These include: increasing age above 40 years, pregnancy, former or current malignant disease, blood disorders leading to increased clotting tendency, some types of cardiovascular disease or insufficiency, personal or family history of DVT, recent major surgery or injury (especially to the lower limbs or abdomen), oestrogen hormone therapy (including oral contraception), immobilization for a day or more and depletion of body fluids causing increased body viscosity.

3. The defendant is a commercial air carrier.

4. The Claimant was carried by air by the Defendant, for reward, on an international flight to which the provisions of the Warsaw Convention applied. The flight was characterised by the following features:

(1) the layout of the passenger cabin, the seating space available to each passenger and the type of passenger seat installed on the aircraft performing the flight were all in accordance with the Defendant's usual standard for an aircraft of that type flying on the route in question;

(2) the flight was operated in accordance with all of the Defendant's usual procedures and practices;

(3) nothing happened in the course of the flight which adversely affected the performance or flight characteristics of the aircraft;

(4) throughout the flight all of the aircraft's seating and all of its systems affecting the passenger cabin environment were in their normal working order;

(5) the aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations; and

(6) whether or not the above operation of the aircraft minimized and/or eliminated the risk of passengers suffering from DVT, the Defendant took no further or other steps to minimize and/or eliminate such risk.

5. The Claimant asserts that there is a causal link between air travel and the onset of DVT. The Defendant denies the existence of any such link. For the purpose of this specimen matrix alone it is assumed that the Claimant suffered from a symptomatic DVT caused by the flight.

6. The Claimant asserts that the Defendant knew, or ought to have known, prior to the flight that by virtue of carriage by air passengers would be at an increased risk of suffering DVT over and above that incurred in everyday life. The Defendant denies these assertions. For the purpose of this specimen matrix alone it is assumed that the Claimant's assertions are correct.

7. The Defendant did not give the Claimant any warning as the risk assumed in paragraph 6 above, or any advice as to how to minimize any such risk, at any time before or during the flight."

It is thus agreed, for the purpose of the issue before us, that the specimen claimant suffered DVT which was "caused by the flight". For the passengers, Mr Cakebread contends that this statement in the specimen matrix falls to be supplemented by the following pleaded "Further Information", supplied under Part 18 of the Civil Procedure Rules:

"The Defendant:

(1) required the Claimant to sit in a seat which due to its insufficient width, the insufficient distance between it and seats on either side of it and the insufficient distance between it and the seats in front of and behind it discouraged and/or prevented the Claimant from moving out of his seat throughout the flight or most of the flight and/or restricted his movement and/or caused him to sit in a cramped position while seated in it when it knew or ought to have known that discouraging and/or preventing the Claimant from doing these things or any of them and/or causing him to sit in a cramped position could cause and/or would increase the risk of the flight causing a DVT to the Claimant;

2. provided or caused there to be

i. insufficient space between the seats

ii. insufficient air pressure within the cabin and/or

iii. insufficient levels of oxygen within the cabin and/or

iv. insufficient amounts of fresh air and movement of that air within the cabin and/or

v. insufficiently humid air within the cabin and/or

vi. a temperature within the cabin that was high or excessively high."

Mr Robert Lawson, who appears for all the carriers except Qantas, has not objected to this course, subject to one reservation. He submits that for the purpose of the preliminary issue these particulars must be treated as typical and usual features of travel by air at the material time. Neither Mr Cakebread nor Mr Bankim Thanki QC, who appears for Qantas, has demurred to that submission, and I shall proceed on the basis suggested by Mr Lawson.

Common ground

The issue...