DVT: Differing Decisions From The English And Australian Courts

Author:Ms Lorraine Wilson
Profession:Barlow Lyde & Gilbert

On 20 December 2002, the English High Court and the Victoria Supreme Court, Australia handed down seemingly contradictory decisions in deep vein thrombosis (DVT) claims against airlines.


In a first instance decision in the DVT group litigation, Mr Justice Nelson, sitting in the English High Court held that the atypical reaction of any particular passenger to a normal and unremarkable flight, without more, will not constitute an 'accident' under Article 17 of the Warsaw Convention. The decision represents a first instance victory for carriers within this jurisdiction on this now much debated legal issue.

The issues of law were considered against a factual matrix, agreed between the parties solely for the purpose of resolution at a generic level of those legal issues. Under the matrix it was assumed that the cabin layout was usual, the usual flight procedures were followed, the aircraft seating and systems were in normal working order, and the flight complied with all applicable regulations. It was also assumed that passengers were at an increased risk of suffering DVT in circumstances where the carrier knew of the increased risk of passengers suffering DVT and did not give them any warning as to the risk or any measures as to how to minimise such risk. Nelson J found as follows:-

PRELIMINARY ISSUE 1: ARTICLE 17 The onset of DVT sustained during the course of, or arising out of, international carriage by air is not caused by an 'accident' within the meaning of Article 17 of the Warsaw Convention in the circumstances set out in the agreed matrix. Further, a culpable act or omission (e.g. failure to warn) which does not itself amount to an unusual or unexpected event or happening external to the passenger, does not amount to an 'accident'.

Nelson J adopted the definition of 'accident' set out in the U.S. Supreme Court decision of Air France v Saks, i.e. 'an unexpected or unusual event or happening that is external to the passenger'. He found the judgment in Saks to be unanimous and carefully considered, well established and followed in many jurisdictions over nearly two decades. The Convention was not to be interpreted according to English law but in accordance with broad principles of acceptation: "Clearly", remarked Nelson J, "the Saks definition has passed the test of general acceptation".

Claimants had sought to found the existence of an 'accident' by various means. They submitted that a continuing...

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