Deep vein thrombosis - an "accident" or just bad luck?

By Jocelyn Kellam.

Key Points:
Are the airlines responsible for DVT, and can sufferers sue?

Deep vein thrombosis is a recognised complication of air travel, and can disable or kill sufferers. Are the airlines responsible for it, and can sufferers sue? In the latest case the plaintiff was unsuccessful and the High Court indicated that the answer could be "no".

In Povey v Qantas Airways Limited [2005] HCA 33, Mr Povey developed deep vein thrombosis ("DVT") while on an international flight. The Victorian Court of Appeal struck out his claim pursuant to the Civil Aviation (Carriers' Liability) Act 1959 (Cth) against the two airlines he used so he appealed to the High Court. The High Court has now dismissed his appeal against that decision by 6-1, in a manner consistent with decisions overseas, and reaffirmed the special nature of "accident" when considering air carriers' liability.

International treaties on carrier liability

Mr Povey made his claim against the airlines pursuant to the Carriers' Liability Act rather than in negligence. The Carriers' Liability Act gives force of law in Australia to the Warsaw Convention and subsequent international agreements that regulate air carriers, including carrier liability. Carriers are liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage:

• took place on board the aircraft or
• in the course of any of the operations of embarking or disembarking.

The leading authority in this is a decision of the US Supreme Court, Air France v Saks 470 US 392 (1985). It said that that a passenger's injury is caused by an accident only if it was "caused by an unexpected or unusual event or happening that is external to the passenger".

Mr Povey said that his DVT was an accident, because, he said, "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.

What is an "accident" in air travel?

In their joint judgment, Chief Justice Gleeson and Justices Gummow, Hayne and Heydon pointed out that the concept of "accident" is governed by the international treaties, which in turn were drafted by lawyers from outside the tradition of common law. As a result, the meaning of "accident" in this context is not automatically the same as in other areas of law.

The Court said that the concept of "accident" is not to be overrefined, and invites two questions:

• first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made; and
• secondly, was what happened unusual or unexpected?

It is not enough to show that while on board or in the course of embarking or disembarking a passenger sustained some adverse physiological change, because this does not identify the occurrence of an accident. The damage sustained is treated as being distinct from the accident which caused the damage, and both the accident and the damage are treated as distinct from the death, wounding or other personal injury.

The "accident", in the sense of "an unfortunate event, a disaster, a mishap" is not an adverse physiological consequence which the passenger has suffered. So the DVT is not an accident - the accident must be something external to Mr Povey.

Was the "failure" to warn an accident?

Mr Povey did not attempt to show that the operation of the aircraft was an unusual event; he wanted to show that the failure to warn was the unusual, external event. The first problem with this, said the Court, is that it assumes there was a duty to warn in the first place - and common law negligence principles have no application in construing a treaty. Without a reference to some standard of legal behaviour to determine whether what happened was a "failure", the description of what happened as a failure is at best an assertion that there was no warning.

Furthermore, it suggested that the only point at which some relevant warning could or should have been given was on board the aircraft. But if some warning was necessary or appropriate, why not at booking or check-in?

Finally, the real issue is what happened on board, not what might have, could have, or perhaps should have happened there. In this case, Mr Povey alleges that nothing unexpected or unusual happened on board.

As a result, the Court found that Mr Povey's allegations, if proved, would not establish a cause of action against the carriers.

Implications

This litigation has been watched carefully overseas and discussed by the US Supreme Court and the English Court of Appeal when they have considered the meaning of "accident". In this decision the plaintiff's allegations, even if proved, could not constitute an "accident" for the purposes of the Carriers' Liability Act. This decision indicates that airlines will not ordinarily be liable for DVT problems suffered by their passengers unless plaintiffs can frame their claim in terms of the special meaning of "accident".

In addition, this decision is consistent with the international interpretation of the relevant treaties.

It also shows the difficulty of construing legislation which ultimately derives from a treaty, as different legal traditions will underpin the treaty and influence the interpretation and application of its provisions.

For further information, please contact Jocelyn Kellam.