Deep Vein Thrombosis v Air Travel Group Litigation

JurisdictionEngland & Wales
JudgeLORD SCOTT OF FOSCOTE,LORD STEYN,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD MANCE
Judgment Date08 December 2005
Neutral Citation[2005] UKHL 72
Date08 December 2005
CourtHouse of Lords

[2005] UKHL 72

HOUSE OF LORDS

Deep Vein Thrombosis
and
Air Travel Group Litigation (8 actions) (formerly 24 actions)
LORD SCOTT OF FOSCOTE

My Lords,

Introduction

1

This litigation has raised once again, albeit in a fairly new context, the question as to the scope that should be given to the term "accident" in article 17 of the Warsaw Convention 1929. The purpose of the Convention, as my noble and learned friend Lord Steyn has observed, was "to bring some order to a fragmented international aviation system by a partial harmonisation of the existing law" (para 27) of his opinion repeating his comment in Morris v KLM Royal Dutch Airlines [2002] AC 628, 635). It is common ground, therefore, that it is important that the courts of the respective signatory states should try to adopt a uniform interpretation of the Convention.

2

Article 17 set out the basis on which a carrier would be liable for bodily injury sustained by a passenger during the flight (or while embarking or disembarking from the aircraft). The Convention underwent amendment at the Hague in 1955 but none of the amendments affect the point now in issue. The Convention as amended was incorporated into domestic law by the Carriage of Air Act 1961 and is set out in the 1st Schedule to that Act.

3

Article 17 provided as follows:-

"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."

It is to be noticed that the conditions for the imposition of liability on the carrier do not include any element of fault or blameworthiness or failure to observe a proper standard of care on the part of the carrier. The requirements of liability are, first, that the passenger has suffered a bodily injury (a requirement that gives rise to questions about psychiatric injury which, happily, do not need to be addressed in the present case), second, that the bodily injury has been caused by an "accident" and, third, that the accident took place on board the aircraft (or in the process of embarkation or disembarkation). The omission from these conditions of any requirement of negligence on the part of the carrier is double-edged so far as an injured passenger is concerned. It is to the passenger's advantage that negligence on the part of the carrier needs to be neither alleged nor proved. It is to the passenger's disadvantage, however, that even clear causative negligence on the part of the carrier will not entitle the passenger to a remedy if the article 17 conditions cannot be satisfied. It has been authoritatively established that if a remedy for the injury is not available under the Convention, it is not available at all (see Sidhu v British Airways plc [1997] AC 431 and El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999)).

4

Nonetheless, negligence, or the absence of it, on the part of the carrier may play a part under article 20. Article 20 provided that:

"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."

Plainly, a carrier who had been negligent could not qualify for an Article 20 defence.

5

Contributory fault of the injured person, too, may afford a defence to the carrier. Article 21 provided that:

"If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability."

I should mention also article 22 which imposes monetary limits on the extent of the liability of the carrier for article 17 damage. It has often been observed that the provisions were designed to strike a balance between the interests of passengers and the interests of the airlines. (See e.g. Morris v KLM Royal Dutch Airlines [2002] AC 628 per Lord Hope of Craighead at para. 66).

6

The use in article 17 of the term "accident" is to be contrasted with the choice of a different term in article 18. Article 18 imposes liability on carriers for damage to baggage or cargo:

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

7

The use of the term "accident" in article 17 but the term "occurrence" in article 18 must be significant. Both terms impart the idea that something or other has happened. But "occurrence" is entirely general in its natural meaning. It permits no distinction to be drawn between different types of happening. "Accident" on the other hand must have been intended to denote an occurrence of a particular quality, an occurrence having particular characteristics. In the many decided cases in which the issue was whether the occurrence in question constituted an "accident" for article 17 purposes, the judges have had to ask themselves whether the occurrence possessed the necessary quality or characteristics to qualify as an "accident". It is evident that it was never, or should never have been, enough for there to have been an occurrence that caused the damage. For article 17 liability the occurrence had to have the characteristics of an "accident".

8

The "fairly new context" to which I referred in paragraph 1 is the growing belief that sitting in a cramped position for many hours may give rise to the formation of small blood clots in the deep veins of the legs, hence, deep vein thrombosis (DVT). For obvious reasons DVT in relation to air travel is sometimes referred to as "economy class syndrome". If blood clots break away from the wall of the vein to which they are attached and are carried along with the flow of the blood, serious complications may ensue, including a stroke, a heart attack or, in the worst cases, death. As long ago as 1976 a passenger claimed to have suffered from deep vein thrombosis brought about by a long distance flight. But the Supreme Court of New York held that the condition had not been caused by an article 17 "accident" and the passenger's damages claim failed (see Scherer v Pan American World Airways Inc. (1976) 387 N.Y.S.2d 580). Since then DVT as an alleged consequence of economy class long distance flights has had increasing attention from the media, from members of the medical professions and from airlines themselves. The hand baggage of most passengers on long distance flights will these days include a pair of tight stockings which, if worn, are believed to provide some protection against the onset of DVT. Many air travellers, however, have suffered the serious consequences of DVT to which I have referred and they, or persons on their behalf, believe the onset of the DVT to have been attributable to the nature of the seating provided for them on the aircraft.

9

Litigation has therefore taken place in a number of jurisdictions raising the question whether the onset of DVT in the course of and caused by air travel can constitute an "accident" for article 17 purposes. Litigation by a number of claimants has been commenced in this jurisdiction. They allege that they, or their deceased relatives, have suffered DVT caused by their flying on an aircraft operated by one or other of the respondents, each of which is a commercial airline. They say that the DVT was caused by an "accident" within the meaning of article 17. A Group Litigation Order in respect of these actions was made on 8 March (and amended on 10 March) 2002 and on 10 May 2002 an order was made by the Senior Master directing that a preliminary issue of law be determined on the basis of an agreed "specimen matrix" of fact.

10

The preliminary issue was:

"whether the onset of deep vein thrombosis (DVT) sustained during the course of, or arising out of, international carriage by air, whether as result of an act and/or omission of the carrier or otherwise, is capable, in principle, of being 'an accident' causing bodily injury within the meaning of article 17 of the Warsaw Convention."

The specimen matrix is important. Paragraph 1 describes DVT; paragraph 2 describes characteristics of individuals that may predispose them to the onset of DVT. These details are not important for present purposes. Paragraph 3 simply says that the "Defendant is a commercial air carrier". I should, however, set out in full the remaining paragraphs:

"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 characterized 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...

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