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Deep Venous Thrombosis Not 'Accident' Under Warsaw Convention
September 2005 | Litigation & Arbitration | Litigation Brief

In the recent case of Brian William Povey v Qantas Airways Limited & Anor, Australia's highest court, the High Court of Australia, ruled in favour of Qantas Airways Ltd. and British Airways Plc. in a dispute with a passenger, who suffered deep venous thrombosis ("DVT"), which led to a stroke and a pulmonary embolism, after flying between Sydney and London in February 2000. The passenger had filed a claim against the airlines for personal injury under the Warsaw Convention 1929 (amended by the Hague Protocol 1955 and by the Montreal Protocol No 4 1975) ("Amended Warsaw Convention"), claiming the DVT was caused by the cramped seating on the aircraft, the tea, coffee and alcohol served on board and the lack of warning about the risks of the condition.

DVT refers to a medical condition where there is the formation of a thrombus (blood clot) within a deep vein, commonly in the thigh or calf. As it is potentially caused or aggravated by long periods of restricted movement, DVT is thus generally associated with long flights, and has given rise to some litigation in both the United States and England.

Article 17 of the Amended Warsaw Convention provides that a "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." That liability is however subject to an important qualification. The carrier is liable "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" (emphasis added).

It is generally accepted that a person's injury is caused by an "accident" for the purposes of Article 17, only if "caused by an unexpected or unusual event or happening that is external to the passenger" as laid down in Air France v Saks 470 US 392 at 405 (1985).

In this case, the passenger alleged that during the course of or following the flights, he suffered DVT "caused by the cramped seating, the discouraging of movement about the cabin and the offering of alcohol, tea and coffee. The passenger also contended that his contracting of DVT was an "accident" for the purposes of Article 17 because "accident" extends beyond acts occurring on board an aircraft (or in the course of any of the operations of embarking or disembarking)" and embraces omissions. In particular, the passenger contended that "accident" extends to omissions of warning (or the "failure" to warn) of the known dangers of, and precautions to be taken against, the occurrence of DVT, and extends to the flight conditions encountered, or to the combination of the failure to warn and the flight conditions.

The majority of the High Court however held that for the purposes of Article 17, "accident' is used to refer to the "event" of a person's injury rather than the cause of the injury or the damage suffered or the death, wounding or other personal injury. As such, "an unfortunate event, disaster or mishap" would not necessarily be an "accident" for the purposes of Article 17. Thus, while the Court accepted that an "accident' may happen because of some omission or series of omissions, it was insufficient for the passenger to show that the injury sustained was accidental (i.e. not intentional). The passenger would still have to show an event that happened on board the aircraft caused his injury and that the event was unexpected or unusual or external to the passenger. However, in this case, nothing unusual or unexpected happened on board. On this basis, his claim under Article 17 failed.

The Court relied on, in particular, the decisions in Saks and Olympic Airways v Husain 540 US 644 (2004). Following Saks case, the Court noted, the concept of "accident", invited two questions: first, what happened on board (or during embarking or disembarking) that caused the injury and second, was what happened unusual or unexpected? Thus, showing only that while on board or in the course of embarking or disembarking, a passenger sustained some adverse physiological change, did not identify the occurrence of an accident.

The Court also found that the passenger's allegation that the carriers had "failed to warn" him of the risk of contracting DVT, irrelevant and unhelpful. It was irrelevant because there was no duty to warn to begin with, and there was no basis for introducing concepts of common law negligence to the construction of an international treaty. Also, the warning, if it had to be given, could have been given before the passenger boarded the aircraft.

The decision in Brian William Povey v Qantas Airways Limited & Anor is consistent with decisions in other parts of the Commonwealth. In re Deep Vein Thrombosis Litigation [2004] QB 234, the Court of Appeal of England and Wales held, that inaction was a non-event which could not properly be described as an accident and that not warning of the risk of DVT and not giving advice on the precautions that would minimize risks, were not events. Further, the conditions in which passengers traveled on flights (with cramped seating and the like) were not capable of amounting to an event that was within the meaning of "accident". In the United States, the Court of Appeals for the 5th Circuit and the Court of Appeals for the 9th Circuit have, in Blansett v Continental Airlines Inc 379 F 3d 177 (2004) and Rodriguez v Ansett Australia Ltd 383 F 3d 914 (2004) respectively, also held that development of DVT was not, in the circumstances alleged in those cases, an "accident".

In the light of the consistent treatment of DVT cases in the United Kingdom, United States and Australia, it is likely that a Singapore Court would take the same position as Brian William Povey v Qantas Airways Limited & Anor if a DVT case was brought before it.