Carriage by air - deep vein thrombosis occurring following flight - failure to warn of risk and provision of cramped seating not 'accident' giving rise to liability

In re Deep Vein Thrombosis and Air Travel Group Litigation: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justice Judge and Kay): 3 July 2003

A group of 55 claimants brought an action against a number of international air carriers under article 17 of the Warsaw Convention 1929, as scheduled to the Carriage by Air Act 1961, alleging injury, and, in some instances, death, following the onset of deep vein thrombosis (DVT) caused by air travel.

On a preliminary issue on assumed facts, Mr Justice Nelson [2002] EWHC 2825 (QB), held that the airlines' alleged failure to warn passengers of the risk of DVT, or to give advice as to how to minimise the risk, and the provision in the normal operation of the airline of cramped seating and cabin conditions, which increased the risk of DVT, were not capable of constituting an 'accident' for the purposes of article 17.

24.

The claimants appealed.

Stuart Cakebread and Christopher Pain (instructed by Collins Solicitors, Watford) for the claimants; Robert Lawson (instructed by Beaumont & Son, DLA and Barlow Lyde & Gilbert) for 17 airlines; Bankim Thanki QC (instructed by Barlow Lyde & Gilbert) for Qantas.

Held, dismissing the appeal, that for there to be an 'accident' within the meaning of article 17, there had to be an unusual, unexpected or untoward event which impacted on the body in a manner which caused death or injury; that inaction was a non-event and could not properly be described as an accident; that while the act of altering air pressure, atmosphere and temperature inside the passenger cabin would be capable of constituting an event, subjecting passengers to cramped seating, air pressure etcetera, which was an integral feature of carriage pertaining throughout the flight, was not capable of amounting to an event; that, similarly, the failure to warn of the risk of DVT, or to advise on precautions which would minimise that risk, were not events; and that, accordingly, neither the flight itself nor the alleged failures were capable of amounting to an 'accident' for the purpose of article 17, and so the airlines were not liable.