Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72
House of Lords, England
Facts
At [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.
Issue(s)
Is DVT an “accident” within the meaning of Article 17?
Discussion
At [76] per Lord Mance:
With the appellants in this case unable to point to anything unusual or unexpected about the permanent features of the aircraft or its operation, the emphasis has been on the respondent airlines’ alleged failure to warn of the risk of DVT, or to advise on precautions which would avoid or minimise the risk, in the light of the knowledge which it is alleged that they had or ought to have had. But it is accepted that it was neither industry nor the respondent airlines’ practice at the relevant times to give such warnings or advice. The definition suggested in Saks looks (and later authorities treat it as looking) to what was actually expected and usual at the relevant time. Mr Scrivener submits that the airline had or ought to have had knowledge which, if it had also been known to a reasonable passenger or bystander or a court, would have led him or her or it to regard the normal operation of the airline as inappropriate and to expect more of the airline. But that elides what was actually expected with what would or should, in the light of some further knowledge or higher standard, have been expected. The aircraft and airline were operated and able to operate exactly as expected by all concerned, even if this was because the airline did not, in that light, sufficiently address the need to act in a different manner, and because passengers and the public did not have the knowledge to expect anything different.
At [86]:
In these circumstances, it is sufficient to say that there was no unexpected or unusual event on board or during embarkation or disembarkation within the useful paraphrase suggested in Saks, however broadly that may be viewed, and that, viewing the matter in the simple terms of article 17 (which is the ultimate test), the situation does not fall within any ordinary or extended conception of “accident”. For these reasons, and for those set out in the speeches of my noble and learned friends, Lord Scott of Foscote and Lord Steyn, I too would therefore dismiss this appeal.
Useful for
Passenger's own internal reaction to normal and expected operation of aircraft not an accident
