Deep Vein Thrombosis and Air Travel Group Litigation, Re

For Article 17 of the Warsaw Convention, an accident is an unusual, unexpected or untoward event or happening external to the passenger which causes the injury. The test is flexible, but it cannot replace the Convention’s requirement for an event. A flight’s ordinary, industry-standard features, including cramped seating and normal cabin conditions, are not themselves an event. A failure to warn or advise about DVT is inaction and cannot itself be an accident. An act or omission may form part of a wider incident that produces an external event, but that principle does not convert mere inertia into an accident. Article 17 is not fault-based, and the appeal was dismissed.

The appeal arose from group litigation by passengers against international air carriers. The passengers alleged that they developed DVT through air travel and claimed under Article 17 of the Warsaw Convention, incorporated into English law by the Carriage by Air Act 1961.

Nelson J decided four preliminary issues on 20 December 2002. This appeal concerned whether an agreed specimen matrix disclosed an Article 17 accident. The matrix assumed that the flight caused DVT, but described an ordinary flight, its usual cabin features and the absence of warnings or advice. Nelson J held that no accident was disclosed. The central issue was whether those conditions or omissions could amount to an accident.

The Court of Appeal, consisting of Lord Phillips MR, Judge LJ and Kay LJ, unanimously dismissed the appeal.

1. Article 17 requires bodily injury to be caused by an accident taking place on board the aircraft or during embarking or disembarking. Following Air France v Saks (1985) 470 US 392, an accident is an unexpected, unusual or untoward event or happening external to the passenger. The definition must be applied flexibly, but it does not replace the Convention’s use of the word accident. Article 17 liability is not fault-based.
2. An accident contains two essential elements: an event and the event’s unusual, unexpected or untoward character. Inaction is a non-event. A failure to warn or advise about DVT therefore cannot itself constitute an Article 17 accident. Article 25’s reference to an act or omission does not extend Article 17 to cover inactivity. It operates where an accident has occurred and may affect liability limits.
3. A continuing activity, such as circulating contaminated air, might in principle be an event. Permanent aircraft features, or exposing passengers to those features throughout an otherwise normal flight, are not an event taking place on board. An omission may form part of a wider incident that produces an external event, as in a case involving enforced exposure to smoke, but that reasoning does not convert mere inertia into an accident.
4. Applying the matrix, the flight reflected ordinary industry practice and contained no triggering external event. The DVT was assumed to result from the passenger’s internal reaction to normal operation. Cramped seating and ordinary cabin conditions did not satisfy the event requirement, and the failure to warn or advise could not do so. The judge below was correct.
5. Judge LJ emphasised that courts should seek a uniform or consistent construction of the Warsaw Convention, while recognising that foreign authorities carry differing weight. The Supreme Court’s decision in Saks was pre-eminent and binding in this jurisdiction. Kay LJ stressed that the guidance in Saks could not be used to substitute different words for Article 17.

The appeal was dismissed.

1. High Court, Queen’s Bench Division. Nelson J gave judgment on 20 December 2002 on four preliminary issues. On the issue appealed, he held that the specimen matrix disclosed no accident under Article 17.
2. Court of Appeal (Civil Division). The passengers appealed with permission. The Court of Appeal dismissed the appeal: [2003] EWCA Civ 1005.