Judgments - Deep Vein Thrombosis and Air Travel Group Litigation (8 actions) (formerly 24 actions)

(back to preceding text)

    28.  Specifically, article 17 reflects an important part of the bargain struck at Warsaw:

    "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."

Since in the event of inconsistency between the French and English texts the former prevails (see section 1 of the 1961 Act), the French version cannot be ignored:

    "Le transporteur est responsible du dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle subie par un voyageur lorsque l'accident qui a causé le dommage s'est produit à bord de l'aéronef ou au cours de toutes opérations d'embarquement et de débarquement."

In the context of the meaning of "accident", in relation to the issue of DVT, nobody has suggested that there is a relevant difference between the two texts.

    29.  The exclusive remedy under article 17 is dependent on the fulfilment of three indispensable requirements. First, that a passenger sustained death, wounding or other bodily injury. Secondly, that an accident took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Thirdly, that the death, wounding or bodily injury was caused by the accident. This is the immediate context in which the meaning of "accident" must be determined. This setting makes clear that accident is used with reference to the cause rather than the injury itself.

    30.  The issues come before the House on assumed facts. Those assumptions include a normal and unremarkable flight. It specifically must be assumed that there was no unusual or unexpected event external to the passenger which could have caused the DVT. The causal mechanism under consideration was the impact of the flight as a whole on a particular passenger. It was not an event external to the passenger. In the ordinary acceptation of the meaning of accident it does not appear to extend to the onset of DVT by itself.

    31.  In order to achieve a more extensive interpretation of the word "accident" in article 17 counsel for the appellants invoked various policy grounds. He submitted that under article 17 there is a need to impose liability upon the party best able to develop defensive mechanisms, who has physical control of the aircraft, who is most capable of assessing the risk and insuring against it, and who is best able to spread remedial cost over all the passengers. This is a variant of a 'deep pocket' tort law theory which has no place in a trade law treaty such as the Warsaw Convention. On the contrary, article 31 of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted "in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." This is the starting point of treaty interpretation to which other rules are supplementary: see article 31.2; 31.3; 31.4; and 32. The primacy of the treaty language, read in context and purposively, is therefore of critical importance. This approach does not permit the adoption of the economic analysis advocated on behalf of the appellants. Once this approach is rejected the argument for treating DVT by itself as an accident can be seen to be fragile.

    32.  It is, however, necessary to examine the point in the context of the development of comparative jurisprudence. An important case was the Supreme Court decision in Air France v Saks (1985) 470 US 342. The case concerned injuries caused by the normal operation of an aircraft's pressurisation system. The court held that 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 was an important decision. It is also a strong decision: it covers not only discomfort to a passenger in respect of hearing but also actual hearing loss. Nevertheless, it is not regarded as an accident: Shawcross and Beaumont, Air Law, VII, para 701 (Shawcross issue 101). The appellants do not question the correctness of this decision but argue that if flexibly applied it does not stand in the way of their appeal. Once the appellants wider policy arguments are rejected as I have done it is, however, difficult to support the present DVT claim under the principle in Air France v Saks.

    33.  Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident. It is closer to a passenger who suffers an asthmatic attack, congenital back pain, a hiatus hernia or simply from the wear and tear of extreme old age. Not surprisingly, such cases have in practice been treated as not amounting to accidents: see Shawcross and Beaumont, Air Law, VII, para 701 (Shawcross Issue 101). Consequentialist arguments militate in favour of treating essentially similar medical cases in the same legal way. After all, DVT is not immune from the general process of medical science.

    34.  On these straightforward grounds it is difficult to treat DVT as falling within the category of an accident under article 17.

    35.  There is, however, another perspective to be taken into account. In interpretation of a trade law treaty, like the Warsaw Convention, it is of great important that the courts of treaty states, and particular their higher courts, should strive for uniform interpretations on debatable issues. Such uniformity is not always attainable but it must be the constant aim. It is necessary to explore how far on this road, the courts of major courts have travelled in respect with the interpretation of DVT.

    36.  In North America there is a clear trend to be observed in the decisions on DVT. Experience shows that a carrier does not incur liability under article 17 for the onset of DVT by itself. Such a claim was dismissed in a lower court in Scherer v Pan American World Airways (1976) 54 AD 2d 636. Similar conclusions were reached in two lower courts in the United States in Blansett v Continental Airlines Inc 379F 3rd 177 (5th Cir 2004) and Rodriques v Ausett Australia Ltd 383F 3rd 914 (2004). (In a case of a congenital asthmatic condition the court came to a similar view: Walker v Eastern Airlines Inc 775 F Supp. 111 (1991)). In the Ontario Court of Appeal a Canadian court came to a similar conclusion: McDonald v Korean Air et al (2003) 171 OAC 368.

    37.  There are also decisions of lower courts in other jurisdictions to which my noble and learned friend Lord Scott of Foscote has made reference. There are, however, two decisions to which I must make particular reference.

    38.  The first is the decision of the Court of Appeal in the present case: In re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234. The court held that for accident to exist there had to be an external event which had an adverse impact on the passenger. Moreover, the court held that inaction was a non event which could not rank as an accident. In careful judgments the Court of Appeal held that a simple question must be asked. Was there, on any recognised meaning of the word, an accident in circumstances where a person suffered DVT merely because of the effect of a flight on an aeroplane without there being any triggering event? The court answered this question in the negative. It regarded it as an error to focus on the component parts of the classic definition in Air France v Saks rather than on the simple concept of accident itself.

    39.  The next development in this important branch of air law was the decision of the Australian High Court in Povey v Qantas Airways Ltd [2005] HCA 33. The issues in Povey were substantially the same as in the English Court of Appeal. In the majority judgment Gleeson LJ, Gummow, Hayne and Heydon JJ followed the reasoning of the English Court of Appeal. They observed (para 44):

    ". . . In In re Deep Vein Thrombosis Litigation, the Court of Appeal of England and Wales held that the word 'accident' in the Warsaw Convention as modified by the Hague Protocol was to be given a natural and sensible, but flexible and purposive meaning in its context and that for there to be an accident within the meaning of the relevant article, there had to be an event external to the passenger which impacted on the body in a manner which caused death or bodily injury and the event had to be unusual, unexpected or untoward. The Court held that inaction was a non-event which could not properly be described as an accident. Not warning of the risk of DVT and not giving advice on the precautions that would minimise that risk were not events. The conditions in which passengers travelled on flights (with cramped seating and the like) were not capable of amounting to an event that satisfied the first limb of the definition of an accident which 'took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

The majority therefore endorsed the reasoning of the Court of Appeal. Kirby JJ and Callinan J came to similar conclusions in separate judgments. Only McHugh J dissented. Povey is a virtually unanimous decision by the highest court of Australia.

    40.  It is now necessary to consider a recent decision of the United States Supreme Court, which is not directly concerned with a DVT case. It is the case of Olympic Airways v. Husain 540 US 644 (2004). It involved the death of a passenger on board an aircraft as a result of exposure to cigarette smoke. He suffered from a congenital asthmatic condition. The passenger had several times asked to be moved from the smoking section of the plane. A flight attendant refused his request to move him to a non-smoking section. The United States Supreme Court held by a majority of six to two that the flight attendant's conduct did (or could) constitute an accident within the meaning of article 17. I would not cast doubt on the majority decision. It is, however, a very different case from the DVT cases arising from consideration in the present case. And I do not regard it as invalidating the analysis which I have suggested or militating against the virtually uniform interpretation of article 17 to DVT which has so far been adopted.

    41.  Standing back from the detail of the case, my view is that the correct interpretation of article 17 excludes classic DVT cases under consideration from its scope. But if the issue of interpretation had been doubtful I would have wanted to support the strong international judicial consensus which has emerged.

    42.  My Lords, I am in full agreement with the reasons expressed in the House today by my noble and learned friends. I also would dismiss the appeal.


My Lords,

    43.  I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote and Lord Steyn. I am in full agreement with them. I add some brief comments of my own.

    44.  In the Court of Appeal [2004] QB 234 Lord Phillips of Worth Matravers MR stated (p 247, para 25):

    "A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident."

    45.  Later in his judgment (p 254, para 50) the Master of the Rolls related these general observations to Olympic Airways v. Husain, which had been decided by the United States Court of Appeals, Ninth Circuit 316 F 3d 829 (2002); after the decision of the Court of Appeal in this case Husain went to the United States Supreme Court, 540 US 644 (2004), which was divided. Lord Phillips stated, at para 50:

    "The refusal of the flight attendant to move Dr Hanson cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr Hanson was exposed to smoke in circumstances that can properly be described as unusual and unexpected."

    46.  I respectfully agree with that view of Husain, and I have also found helpful a passage in the judgment of Kirby J in High Court of Australia in Povey v Qantas Airways Ltd [2005] HCA 33. After a general discussion of omissions in paras 173 to 176 Kirby J stated at para 187:

    "It is unnecessary for this Court to choose between the conflicting opinions expressed in Husain. As was predicted in Saks, and is self-evident, cases will present that are at the borderline of establishing an 'accident' or failing to do so. There were peculiar features of the confrontation between the wife, the passenger and the flight attendant in Husain that arguably lifted that case from classification as a 'non-event' into classification as an unexpected or unusual happening or event and hence an 'accident'."

    47.  The same approach can be found in a very familiar literary source. In Conan Doyle's Silver Blaze Sherlock Holmes draws Dr Watson's attention,

    "To the curious incident of the dog in the night-time".

    "The dog did nothing in the night-time."

    "That was the curious incident."

    (cited in the Oxford Dictionary of Quotations 4th ed Revised (1996), p 256, para 14. The dog's failure to bark was part of a more complex incident in which an intruder came into the stable yard in the middle of the night, and was evidently not a stranger to the dog.

    48.  I too would dismiss this appeal.


My Lords,

    49.  I share the view that this appeal should be dismissed and for essentially the same reasons. Once it is clear that the accident which causes the injury must be something other than the injury itself, it becomes equally clear that the suffering of an internal reaction to an ordinarily uncomfortable journey by air, during which nothing untoward other than that reaction took place, cannot fall within article 17 of the Warsaw Convention. But I would particularly like to associate myself with the observations of my noble and learned friend, Lord Scott of Foscote, on the dangers of interpreting the words of the decision of a court, which is interpreting the words of the Convention, as if the court's words were those of the Convention. If I fall over during a flight to New York, and break an arm, I suspect that we would all agree that my broken arm was caused by the accident of my fall; and we would do so irrespective of the reason for my fall; if it was my own silly fault, article 21 may relieve the airline of some or all the liability imposed by article 17, but that is another matter. In reaching those conclusions, we should not be agonising too much over whether my fall was an event 'external' to me. We should simply be asking whether it was an 'accident' which led to my injury. My own synonym for 'accident' would be 'untoward event' but that is by the way.


My Lords,


    50.  The preliminary issue before the House is "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 …". Pleadings were exchanged in the issue, and the matrix was agreed "solely for the purpose of [its] resolution at a generic level" and "without prejudice to any other issue which falls to be determined at a generic level and/or the particular facts relating to any individual air carrier and/or any individual case …". Consistently with this, the agreed statement of facts and issues put before the House recite the appellants' assertion and the respondents' denial that "the allegations in the Group Particulars of Claim and Further Information concerning a failure to warn or advise passengers and/or the method of operation of the nominal flight, when taken against the specimen matrix, are capable of being an 'accident' causing the DVT to occur and thus of giving rise to liability under article 17 …".

    51.  The relevance of this point is that in the Particulars of Claim the appellants contend not just that the respondents failed to give any warning or advice in circumstances where (it is said) they knew or ought to have known of the increased risk of DVT (paragraphs 6 and 7 of the agreed matrix), but also that this involved a "failure" by the respondents to carry the appellants "with all the due care and skill to be expected of a reasonable, competent and experienced commercial carrier". Whether allegations of such a nature have any, and if so what, relevance to the existence of an "accident" under article 17 lies at the heart of this appeal. But it is material to note that Mr Scrivener QC for the appellants accepts that, at the dates on which the appellants were carried and suffered DVT (in the late 1990s extending possibly into 2000), the respondent airlines were acting in accordance with general industry practice in carrying them as they did and in not giving any warnings about DVT. There was nothing unusual, abnormal or unexpected about the way in which the relevant aircraft were fitted out or operated. One would expect that to be of considerable - although not decisive - importance if it were relevant to consider whether a carrier acted "with all the due skill and care to be expected of a reasonable, competent and experienced commercial carrier" (cf in English law Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, 586-7; Australian law may differs: cf Rogers v. Whitaker (1992) 175 CLR 479, 484 and Povey v. Qantas Airways Ltd. [2005] HCA 33, para. 177, per Kirby J). On any view the appellants' prospects of success in a case such as the present seem to be confined to a narrow situation in which standard airline practice falls short of some higher standard identified by the court as appropriate at the relevant time(s) between a carrier by air and its passenger.

Approach to interpretation

    52.  With that preliminary comment, I turn to the interpretation of article 17. The argument has taken as the relevant version that appearing in the Warsaw Convention as amended by the Hague Protocol and set out, in English and French, in Schedule 1 to the Carriage by Air Act 1961. The group defence introduces (and the respondents kept open before the House) alternative possibilities as to the version of the Convention actually covering the carriage of any particular claimant passenger, while not suggesting that these involved any presently relevant difference. The wording of article 17 to which submissions were directed reads:

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

    53.  There was little if any difference between the parties regarding the proper approach to interpretation of the relevant version of the Warsaw Convention. Section 1 of the 1961 Act states that "If there is any inconsistency between the text in English in Part I of Schedule 1 or 1A to this Act and the text in French in Part II of that Schedule, the French text shall prevail". The French text provides:

    "Le transporteur est responsible de dommage survenu en cas de mort, de blessure ou de toute autre lesion corporelle subie par un voyageur lorsque l'accident qui a cause le dommage s'est produit à bord de l'aéronef ou au cours de toutes operations d'embarquement et de débarquement."

    In Air France v. Saks 470 US 392 (1985), the United States Supreme Court considered the French text and in particular the French legal meaning of the term "accident", and concluded that it differed little from, and in effect offered the same possibilities as, the English word. The contrary was not suggested before us.

    54.  The primary consideration is the natural meaning of the language used, taking into account the text as a whole, and such conclusions as can be drawn regarding its object and purpose: Fothergill v. Monarch Airlines Ltd. [1981] AC 251, 272F-G per Lord Wilberforce, 282D-E per Lord Diplock, 287D per Lord Fraser and 290G per Lord Scarman. The text should be interpreted "in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation": Stag Line Ltd. v. Foscolo, Mango and Co. Ltd. [1932] AC 328, 350, per Lord Macmillan; Buchanan & Co. Ltd. v. Babco Forwarding and Shipping (UK) Ltd. [1978] AC 141, 152, per Lord Wilberforce; and Fothergill, supra, 272E per Lord Wilberforce, 282A per Lord Diplock, 282C per Lord Fraser and 293C per Lord Scarman. The concepts deployed in the convention are thus autonomous international concepts. The legislative history and travaux préparatoires may be considered to resolve ambiguities or obscurities, when the material is publicly available and points to a definite consensus among delegates. It is also legitimate to have regard to any subsequent practice among the parties which is capable of establishing their agreement regarding interpretation. All these points are, for conventions concluded after 27th January 1980, covered in articles 31(3) and 32 of the Vienna Convention on the Law of Treaties (United Nations, Treaty Series, vol. 1155, 331); and in Fothergill, supra, at pp.282D and 290C Lords Diplock and Scarman treated these articles as codifying previous international legal principles.

    55.  Allied to the legitimacy of having regard to subsequent practice is the significant consideration that a convention like the Warsaw Convention as amended is aimed at achieving conformity of law and practice in its field, and that uniformity in its interpretation is highly desirable. The Convention endeavours, as the United States Supreme Court said in Zicherman v. Korean Air Lines Co. Ltd. 516 US 217, 230 (1996), "to foster uniformity in the law of international air travel" (cf also El Al Israel Airlines Ltd. v. Tseng 525 U.S.155 (1999), 169-170). Thus, my noble and learned friend Lord Hope said in Morris v. KLM Dutch Airlines [2002] 2 AC 628, para. 81:

    "81.  In an ideal world the Convention should be accorded the same meaning by all who are party to it. So case law provides a further potential source of evidence. Careful consideration needs to be given to the reasoning of courts of other jurisdictions which have been called upon to deal with the point at issue, particularly those which are of high standing. Considerable weight should be given to an interpretation which has received general acceptance in other jurisdictions. On the other hand a discriminating approach is required if the decisions conflict, or if there is no clear agreement between them."

    Lords Nicholls and Mackay made the same point. Lord Nicholls said at para. 5:

    "5.  It really goes without saying that international uniformity of interpretation of article 17 is highly desirable. Like Lord Mackay of Clashfern, I have been much concerned that the interpretation of article 17 espoused by this House should, if possible, be consistent with the mainstream views expressed in leading overseas authorities."

    He went on to attach to a decision of the United States Supreme Court particular importance "given the important position of the United States in carriage by air". Lord Mackay said at para. 7 that:

    "… I consider it important that the Warsaw Convention should have a common construction in all the jurisdictions of the countries that have adopted the Convention …"

    In that light he attached "crucial importance" to two decisions of the United States Supreme Court, saying that he did so "particularly as the United States is such a large participant in carriage by air" and that, but for these decisions, he would have given more weight to the argument for a contrary construction (of the word "bodily" and its French counterpart "corporelle") than he in fact adopted. Lord Hobhouse at para. 147 also identified the importance of having regard to any international consensus upon the understanding of an international convention "and hence to what the courts in other jurisdictions have had to say about the provision in question". Thus, although "the relevant point for decision always remains: what do the actual words used mean?" (per Lord Hobhouse at para. l47), a consensus of domestic legal authority in higher courts of significant standing can weigh significantly in the determination of that meaning, Similar importance was attached to achieving international uniformity of interpretation in Saks, at p.404, and by the majority judges in the High Court of Australia in Povey at pp.25, 137 and 142.

The common ground

    56.  Article 17 is formulated in terms suggesting an assumption that damage sustained in the event of the death, wounding or bodily injury will have been caused by some form of "accident" (a point made by Kirby J in Povey at para. 111). But that is not a sensible reading. First: "Like pilgrims to th'appointed end we tend; the world's an inn and death the journey's end" (Dryden, Palomon and Arcite, (1700) book 3, II, 883-4). Death from entirely natural or internal causes may be described as accidental, but it is not caused by an accident, which is what matters under article 17; and, if a passenger were to suffer bodily injury as a result of a fall on board which was due to some internal condition (such as partial paralysis or drunkenness) not sensibly attributable to the airline, it seems improbable that his injury should be regarded as caused by a relevant accident: compare Chaudhari v. British Airways plc (16th April 1997, Court of Appeal; CCRTI 96/0229/G) - although in that case there were allegations of negligence on the airline's part, which would, it may be, lead Mr Scrivener to submit that the court should have taken a different view on the facts - and Padilla v. Olympic Airways 765 F. Supp. 835 (1999) (U.S. District Court, SDNY). The Supreme Court noted in Air France v. Saks 470 US 392 (1985), 403-4 that many of the signatories to the Warsaw Convention were parties to the Guatemala City Protocol of 1971 (ICAO Doc. 8932) which would, had it been ratified, have imposed liability for an "event which caused the death or injury" but with an express exemption if the death or injury resulted "solely from the state of health of the passenger". The proposed switch from "accident" to "event" was viewed by delegates as expanding the scope of carrier liability to passengers, but, even so, that expansion was not to include liability for death or injury resulting from the passenger's own state of health.

continue previous