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On 3 July 2003, the Court of Appeal delivered its much-anticipated ruling on the Deep Vein Thrombosis and Air Travel Group litigation upholding the first instance decision. The appeal arose from the judgment of Mr Justice Nelson in the High Court on 20 December 2002 in favour of 15 of the world's leading airlines[1], the same day as Mr Justice Bongiorno's decision in the Supreme Court of Victoria, Australia, in favour of passengers who had sued two of these airlines for DVT said to have been contracted on flights with the airlines.

Nelson J gave judgment on four preliminary issues but the DVT victims chose to appeal only one of them, namely, whether on the basis of the agreed specimen matrix, the passengers had a claim under Article 17 of the Warsaw Convention 1929 (as amended) (the Convention) for the DVT they allegedly suffered and, in particular, whether the matrix disclosed an "accident" for the purposes of Article 17[2]. Nelson J had concluded that the matrix did not disclose "an accident".

The agreed specimen matrix before the Court of Appeal including the following matters:

For the purpose of the appeal, the above conditions were treated as typical and usual features of air travel.

Lord Phillips MR, delivering the leading judgment of the court, noted that it was common ground that in the context of Article 17, the word "accident" referred to the cause of the injury and not the injury itself. That proposition and the relevant test for an "accident" under Article 17, was accurately stated by the United States Supreme Court in Air France v Saks (1985) 470 US 399, 405:

"...liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all of the circumstances surrounding a passenger's injuries. But when the injury indisputably results from the passenger's own internal reaction to the usual, normal and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply"

The key to the Claimants' case was their interpretation of two aspects of the definition of "accident" in Saks. It was suggested that the operation of an aircraft is "unexpected or unusual" if, on an objective test and having regard to all material circumstances, it departs from the manner in which the airline would reasonably be expected to have operated it. It was also submitted that an "event or happening" covered both acts and omissions of those operating the aircraft, despite dictionary definitions that required some sort of positive action for there to be an accident. Accordingly, if those operating the aircraft acted in a way which one would not reasonably expect or failed to take some action which one would reasonably expect them to take, this would constitute an "accident under Article 17".

On the facts of the specimen matrix, the carriers knew that the usual features of air travel created a risk of DVT and in light of that, could reasonably have been expected to avoid or mitigate those features. Subjecting passengers to those features was unexpected or unusual and constituted an "accident" under Article 17. Further, it was reasonable to expect the carriers to warn passengers of the risk of DVT and advise them on how to reduce the risk of a DVT and the failure to do so also constituted an "accident".

The carriers noted the acceptance of the proposition that an "accident" must cause the injury in question and this it was suggested required some event which could properly be described as an "accident". Further, the benchmark against which to measure what was "unexpected or unusual" is the expected or usual practice generally adopted by airlines. It followed that since the parties accepted that the specimen matrix reflected the general practice of the defendant airlines, no aspect of that practice could be said to have the quality of an "accident".

Lord Phillips MR, relying on Lord Hope's statements in Morris v KLM Royal Dutch Airlines [2002] 2 WLR 758, stated that the liability imposed by Article 17 was not fault based, and the apportionment of risk in relation to death or bodily injury in the course of carriage by air depended upon whether or not it had been caused by an "accident". Only if death or bodily injury had been caused by an "accident" would the carrier be liable under Article 17 in accordance with the provisions of the Convention.

Lord Phillips, reiterating the opinion he expressed in Morris v KLM, said that the test laid down in Saks gave the word "accident" a natural and sensible meaning. While Lord Phillips was not intending to set down an exclusive description of the word "accident", the word naturally suggested "…an untoward event which impacts on the body in a manner which causes, death, wounding or injury. The impact of the event may be physical or it may be an impact on the senses which results in bodily injury, but one would normally expect the untoward event to cause the death or injury directly".

The description of what constituted an "accident" required that two elements be satisfied. First, there must be an event, since the event itself must cause the injury and secondly, the event had to be an unexpected, unusual or untoward circumstance external to the passenger. In essence, an "accident" is an event, a physical circumstance, which unexpectedly takes place not according to the normal course of things.

Lord Phillips MR held that inaction or an omission to act by an air carrier could not constitute an "accident" under Article 17 since inaction was actually a non-event and therefore the antithesis of an accident. The fact that the accident had to take place whilst on board the aircraft (or in the process of embarking or disembarking) suggested that it was a short-lived occurrence. However, given that Saks required a flexible and purposive approach, Lord Phillips could not exclude the possibility of an activity that continued for a period of time, such as the circulation of contaminated air in the passenger cabin, amounting to an "accident" under Article 17. Indeed, Lord Phillips MR stated that an act of altering the pressure or supply of oxygen or temperature in the passenger cabin would be capable of constituting an event which would, in turn, satisfy the first limb of the test in establishing that there had been an "accident".

Under the matrix, the parties had expressly agreed that the conditions in the passenger cabin were an integral feature of the flight pertaining throughout the duration of the flight and not the effect of acts of the crew during the flight. As such, the conditions set out in the specimen matrix were not capable of amounting to an event and it followed that no "unexpected or unusual" event had occurred and there was therefore nothing capable of constituting an "accident" under Article 17. Similarly, a failure by the airline to warn of the risk of DVT or to provide advice in respect of the risk of DVT could not constitute an "accident".

Given the finding that there had not been an event under the Saks test, the question of whether the omissions complained of were "unexpected or unusual" was academic. Nonetheless, Lord Phillips gave guidance on this point accepting that the knowledge of the actor that its action is culpable could be relevant to determining whether that action was unexpected or unusual. However, it was not possible to apply the Saks test to a state of affairs or a failure to act.

Although there was no English case law directly on this issue, Lord Phillips MR emphasised that in interpreting international conventions, the decisions of courts of foreign jurisdictions were of great assistance and deserved careful consideration. It was also desirable to ensure, as far as possible, that there was a consistent interpretation of the Convention by the courts in the countries of the Convention States.

Lord Phillips considered the apparently inconsistent decision of the US District Court for the Southern District of New York in Fulop v Malev Hungarian Airlines (2001) 175 F. Supp 2d 651. In that case, the passenger suffered a heart attack in the air and claimed that the consequences were aggravated by the airline's refusal to divert the flight so he could get medical attention. The Judge held that passengers could reasonably expect airlines to comply with industry norms and their own procedures. In Fulop, the crew had failed to follow their airline's procedure for this type of emergency and the failure to divert was held to be the corollary of the decision to fly the plane to its destination notwithstanding the medical emergency. Accordingly, the judge refused to grant the airline summary judgment accepting that the failure to comply with one's own emergency procedure may be sufficient to support a determination that the event was unusual. Lord Phillips considered that the facts in this case were distinguishable from the failure to advise of a risk of DVT and the case did not lead to the conclusion that mere inertia, such as a failure to warn, could constitute an event. Husain v Olympic Airlines (2000) 116 F Supp 2d 1121, a further decision of the US District Court, concerned a passenger who had requested and obtained non-smoking seats but those seats were only a few rows in front of the smoking section. The passenger was particularly sensitive to second-hand smoke and asked to be moved on three occasions. On each occasion, the flight attendant asserted untruthfully that there were no spare seats. The smoke caused the passenger to collapse and die. The failure to move the passenger was found to have constituted a blatant disregard of industry standards and the airline's policy and led to the court holding that this was an accident. Lord Phillips reconciled this decision as not being one of inertia by the crew but part of a complex incident whereby the passenger was exposed to smoke in unusual and unexpected circumstances.

Lord Phillips MR also addressed the disparate Supreme Court of Victoria's decision in Povey v Civil Aviation Authority & Others [2002] VSC 580, which had been handed down in Australia only a matter of hours prior to Nelson J delivering his judgment.

The Povey case involved an application by Qantas and British Airways for summary judgment in respect of a claim for DVT under Article 17. It was alleged that during the course of two flights (from Sydney to London and the return), the passenger had suffered DVT which lead to a pulmonary embolism, a stroke and permanent disability. The passenger’s pleaded case gave particulars of the alleged "accident" but these particulars were restricted to the conditions within the passenger cabin. Although the judge held that the pleaded particulars did not constitute either, individually or collectively, an "accident" within the meaning of Article 17, he found that two allegations made to the Court orally could constitute such an accident. The first was that the airlines had certain knowledge about DVT, its causes, its relationship to the cramped seating conditions in economy class and the preventive measures which could be taken to reduce the risk of DVT occurring. The second was that it was standard practice for air carriers to issue warnings and provide information to passengers in respect of risks of which they were aware. Mr Justice Bongiorno held, citing the United States District Court decision in Husain, that the word "accident" could include action or inaction by airline staff, such as a failure to warn or advise. He went on to say that there must be an objective consideration of whether the airline's conduct was normal. If it was part of the normal operation of an airline to give warnings and advice to passengers concerning dangers of which it was aware, then a failure to do so could amount to an accident in appropriate circumstances. Justice Bongiorno considered that the distinction between acts and omissions was dubious and that in the context of the Convention, it also ignored the express language of Article 25[3] which contemplated accidents constituted by omissions as well as acts.

Lord Phillips disagreed with this approach noting that while in some cases, the distinction between acts and omissions was unreal (for example, the Husain case), it did not follow that inaction was tantamount to action. The scope of Article 25 was wider than Article 17 and did not create a right of action independent of Article 17.

The widely accepted approach to the meaning of the word "accident" was that promulgated by the Supreme Court in Saks, and this was the dominant view emerging from case law in the US and other jurisdictions.

Lord Justices Judge and Kay delivered concurring judgments, noting also the pre-eminence of the Supreme Court decision in Saks. However, both stressed the need to avoid treating the test in Saks as the relevant definition of an "accident", noting that neither Article 17 nor the word "accident" as used in the Convention had been amended. The starting point for considering any factual allegation was the Convention itself and the ordinary meaning of the word "accident".

The cogency of the Court of Appeal's reasoning will be welcomed by the aviation industry and its insurers. However, the authors see in the judgment of the Master of the Rolls a warning that airlines must comply with prevailing industry norms and their own internal procedures to avoid their conduct being treated as aberrant and therefore possibly, an accident under Article 17. Of particular note as well, was the reference to changes in the temperature or cabin oxygen levels being capable of being treated as an event, that being the first element of proving an "accident" had occurred.

One would hope that the decision will not only mark the end of the battle but also the end of war. Lord Phillips stated explicitly that he delivered a detailed judgment out of sympathy for the victims but also in the hope that it would be the end of the saga noting that even if there had been an accident under Article 17, the Claimants still faced very difficult issues in proving causation which would be very costly and have no certainty of outcome. However, this desire may be too much to hope for with an appeal to the House of Lords being rumoured and with the regular media attention that DVT now commands. That said, the current state of the law in England and Wales is not in doubt.

(*) This article was written by Mark Meyer and Sarah Hills of Kendall Freeman, Insurance and Reinsurance Group www.kendallfreeman.com and was first published in the Insurance & Reinsurance Law Briefing, Issue 82 (August, 2003).

[1] Insurance & Reinsurance Law Briefing. Issue 77, March 2003.

[2] Article 17 provides that "The carrier is liable for damage sustained in the event of 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…".

[3] Article 25 provides: "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, …done with intent to cause damage or recklessly and with knowledge that damage would probably result …"