Deep Vein Thrombosis and Air Travel Group Litigation, Re [2003] EWCA Civ 1005

"1. Deep Vein Thrombosis ('DVT') is a condition in which a small blood clot or thrombus forms mainly in the deep veins of the legs. Such clots can be present without symptom or signs, but may give rise to swelling of the affected leg, sometimes accompanied by pain and local tenderness. Complications arising from DVT may be life-threatening. Complications occur when a thrombus breaks away from the wall of the vein to which it is attached and is carried along with the flow of the blood as an embolus. If the embolus reaches a blood vessel through which it cannot pass, it blocks the vessel, thereby producing an embolism. The most serious of these occurs in the lungs (a pulmonary embolism), which gives rise to chest pain and breathing difficulties and, in the worst cases, death from respiratory failure. 2. There are certain factors which may predispose individuals to the onset of DVT. These include: increasing age above 40 years, pregnancy, former or current malignant disease, blood disorders leading to increased clotting tendency, some types of cardiovascular disease or insufficiency, personal or family history of DVT, recent major surgery or injury (especially to the lower limbs or abdomen), oestrogen hormone therapy (including oral contraception), immobilization for a day or more and depletion of body fluids causing increased body viscosity. 3. The defendant is a commercial air carrier. 4. The Claimant was carried by air by the Defendant, for reward, on an international flight to which the provisions of the Warsaw Convention applied. The flight was characterised by the following features: (1) the layout of the passenger cabin, the seating space available to each passenger and the type of passenger seat installed on the aircraft performing the flight were all in accordance with the Defendant's usual standard for an aircraft of that type flying on the route in question; (2) the flight was operated in accordance with all of the Defendant's usual procedures and practices; (3) nothing happened in the course of the flight which adversely affected the performance or flight characteristics of the aircraft; (4) throughout the flight all of the aircraft's seating and all of its systems affecting the passenger cabin environment were in their normal working order; (5) the aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations; and (6) whether or not the above operation of the aircraft minimized and/or eliminated the risk of passengers suffering from DVT, the Defendant took no further or other steps to minimize and/or eliminate such risk. 5. The Claimant asserts that there is a causal link between air travel and the onset of DVT. The Defendant denies the existence of any such link. For the purpose of this specimen matrix alone it is assumed that the Claimant suffered from a symptomatic DVT caused by the flight. 6. The Claimant asserts that the Defendant knew, or ought to have known, prior to the flight that by virtue of carriage by air passengers would be at an increased risk of suffering DVT over and above that incurred in everyday life. The Defendant denies these assertions. For the purpose of this specimen matrix alone it is assumed that the Claimant's assertions are correct. 7. The Defendant did not give the Claimant any warning as the risk assumed in paragraph 6 above, or any advice as to how to minimize any such risk, at any time before or during the flight."

"The Defendant: (1) required the Claimant to sit in a seat which due to its insufficient width, the insufficient distance between it and seats on either side of it and the insufficient distance between it and the seats in front of and behind it discouraged and/or prevented the Claimant from moving out of his seat throughout the flight or most of the flight and/or restricted his movement and/or caused him to sit in a cramped position while seated in it when it knew or ought to have known that discouraging and/or preventing the Claimant from doing these things or any of them and/or causing him to sit in a cramped position could cause and/or would increase the risk of the flight causing a DVT to the Claimant; 2. provided or caused there to be i. insufficient space between the seats ii. insufficient air pressure within the cabin and/or iii. insufficient levels of oxygen within the cabin and/or iv. insufficient amounts of fresh air and movement of that air within the cabin and/or v. insufficiently humid air within the cabin and/or vi. a temperature within the cabin that was high or excessively high."

"We conclude 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 definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries."

"But when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply."

"Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger..."

"Anything that happens. An occurrence, incident, event."

"Anything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause; a casualty, a contingency."

"In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way. I believe that this is how the Court of Appeal understood the word. A cause is to my mind something altogether less constricted. It can be a continuing state of affairs; it can be the absence of something happening."

"Here, the agreed matrix of fact reveals no event or happening which occurred on the flight."

"Nor on the factual matrix is there any event which is external to the passenger save for the happening of illness itself which does not qualify under article 17 . . . "

"If however nothing happened during an ordinary and unremarkable flight that involved the actions of anyone except for the passenger himself or herself and his or her atypical reaction to a normal and unremarkable flight, there has been no unexpected or unusual event or happening."

"No doubt the domestic courts will try, as carefully as they may, to apply the wording of article 17 to the facts to enable the passenger to obtain a remedy under the Convention."

"As the accident must be in some way external to the passenger, death on board as a result of a pre-existing medical condition does not render the carrier liable. A heart attack on an entirely normal flight will not be classed as an accident, even, it seems, if the passenger alleges that the cabin crew failed to provide adequate attention. There is a considerable body of case-law to this effect in the United States and elsewhere, even where the court expresses some unhappiness at the result. Similarly, where the flight, which has no unusual features, aggravates an existing medical condition, such as thrombophlebitis, or causes discomfort to a passenger with a hiatus hernia, there will be no accident. The same is true of cases in which passengers have suffered asthmatic attacks, even where the attack caused the death of the passenger as result of its effect on his weak heart, or have fainted and injured themselves in the resulting fall. The courts have shown a similar unwillingness to find accidents in cases in which an intoxicated passenger dies after choking on his food, or is injured when he falls to the floor of the aircraft. In the cases just considered, the point is that the event or happening is not external to the passenger. The matter may be less clear-cut where the passenger can point to a specific feature of the flight as having affected his health. It is not unknown for the routine depressurisation of the aircraft cabin during the descent to land to cause not mere discomfort in the passenger's ears but actual hearing loss. The courts in the United States and France have, however, regarded this as not amounting to an accident, there being nothing in the conduct of the flight which was unusual. The same has been held where the effect, on a pre-existing heart condition, was attributed to the normal acceleration required on take-off or to normal deceleration on landing."

"Abramson argues that although JAL did not cause his hiatal hernia injury, the alleged aggravation of the injury by JAL's acts and omissions constituted an 'unusual or unexpected happening within the definition of' DeMarines. He attempts to analogize JAL's refusal to aid him as an unusual occurrence tantamount to other occurrences treated as 'accidents', such as the following: terrorist attacks, hijackings and bombings [and references are given]. We are not persuaded that the situations are analogous. In none of those cases was the injury suffered during the course of a routine and normal flight, as here. In the absence of proof of abnormal external factors, aggravation of a pre-existing injury during the course of a routine and normal flight should not be considered an 'accident' within the meaning of Article 17. . . . . . . . . . We agree with the district court that the alleged acts and omissions of JAL and its employees during the routine flight on which Abramson was a passenger do not constitute an 'accident' for which the Warsaw Convention imposes liability on the carrier. Thus, judgment for the defendant on the Warsaw Convention claim was properly entered."

"This court is not persuaded, however, that a carrier's alleged violation of its own operations and procedures in handling an emergency when it did occur and the alleged attendant delay in obtaining adequate medical care that may ensue when the occasion arises, could objectively be deemed normal, usual or expected. To the contrary, by definition a measure of normal is adherence to norms; conversely, what is aberrant reflects departure from the norm at issue. Any major deviation from a standard articulated in recognised practices and procedures represents the exceptional case -- the unusual or unexpected happening. In and of itself, the incident of a traveler suffering a heart attack during flight, whatever the triggering event, is far from routine. It requires no citation to statistics to say that such occurrences are rare and that they demand correspondingly extraordinary responses. It also requires no reliance on authority to assert that, viewing the circumstances objectively as the Saks inquiry demands, the ordinary traveler reasonably would expect that -- as the normal, usual and expected response to such urgencies, and as a fair balancing of interests and risks characteristic of air travel -- in handling life-threatening exigencies, airlines rendering services as common carriers would be particularly scrupulous and exacting in complying with their own industry norms, internal policies and procedures, and general standards of care. In this Court's view, injuries possibly resulting from an air carrier's significant departure from applicable procedures in responding to passenger emergencies relates to aircraft or airline operations and may have a sufficient causal bearing to the circumstances surrounding a resultant injury to support liability under the Warsaw Convention. Consequently, Malev's alleged deviation from its own rules and standards that were in place to deal with passengers stricken by medical emergencies may be sufficient to support a determination that such an event -- the relevant occurrence properly here at issue -- was unusual or unexpected, and thus an accident within Saks's interpretation of the Convention's Article 17."

"The Court does not dispute that smoke in the cabin may be an expected aspect of international travel. Indeed, it is clear from the record that the Husains knew before boarding that the January 4 flight would have a smoking section. However, [the] defendant's argument misses the mark. The smoke in the cabin was not the 'unusual' or 'unexpected' event which caused Dr Hanson's death, although, as detailed above, the smoke undoubtedly had a significant place in the causal chain. Rather, the unusual and unexpected event on which [the] plaintiffs base their claim was the failure of the flight attendant to adequately respond to Ms Husain's [the wife's] transfer requests."

"Ms Husain repeatedly informed Ms Leptourgou [the attendant] and other Olympic personnel that Dr Hanson could not be exposed to smoke for health reasons, and that it was necessary that he be moved immediately. Despite her knowledge of Dr Hanson's health risk, Miss Leptourgou failed to act. The district court found, after examining evidence establishing industry standards and Olympic's policies regarding passengers with medical needs, that this failure to act was a 'blatant disregard of industry standards and airline policies.' Miss Leptourgou's failure to act was more egregious in light of the simple nature of Ms Husain's request, which could easily have been satisfied without interference with the airplane's normal operation. Combined, these factors bring Miss Leptourgou's failure to assist Dr Hanson within the meaning of an 'accident' for Article 17 purposes. Her conduct was clearly external to Dr Hanson, and it was unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of Dr Hanson's requested accommodation. The failure to act in the face of a known, serious risk satisfies the meaning of 'accident' within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operations of the airplane."

"Nonetheless, the Court tends to agree with these decisions to the extent that they hold that a failure to divert is not ipso facto an accident. However, the notion that a failure to divert can never present a jury question is more than this Court is willing to hold, particularly in light of the Supreme Court's mandate that courts 'flexibly' apply the definition of an accident after an 'assessment of all the circumstances surrounding the passenger's injuries' [see Saks]. Suppose for example, a passenger inexplicably collapsed and ceased breathing through no initial accident. Thereafter, a medical doctor informs the crew that the passenger's life could be saved, but only if the flight landed within one hour. The plane is within thirty minutes of a suitable airport, but the crew blithely elects to continue on a planned cross-country flight. The notion that this is not an unusual event is staggering. And while the Court's hypothetical does not represent precisely what allegedly occurred on Flight 1476, it is not that far afield of Plaintiff's version of the facts. Thus, a jury should decide this issue, after receiving proper instruction from the court on the meaning of the term 'accident'."

" . . . This Court specifically concludes that an airline's violation of an industry standard of care, alone, can be 'an unusual or unexpected event or happening that is external to the passenger,' see Saks, and thus, an 'accident'. To hold otherwise would have the ironic result of rewarding individual airlines for adopting an 'ostrich' approach of failing to institute routine safety procedures in compliance with generally recognized industry standards of care. Safety in a technically evolving industry, such as air travel, can and must keep up with reasonable and practical industry practises. This is especially true where, as here, no real expense is even involved. This case does not require an expensive or intrusive retrofit or equipment exchange. It involves nothing more than the reprinting of safety placards and a thirty-second oral announcement once or twice in each long flight."

"Accepting all of the evidence and drawing all justifiable inferences in the Blansetts' favor, this Court determines that a reasonable fact-finder, a jury in this case, could determine that Continental's failure to warn passengers on its transatlantic flight of the risk of DVT was an unexpected and unreasonable deviation from routine industry procedure, and thus, an accident under the Warsaw Convention. In this rapidly emerging area of law and medicine, a full adjudication of the issues, enhanced by the wisdom and guidance provided by a jury of the Parties' peers, is needed to resolve this important question."

"Where, objectively viewed, an airline would be expected to act in a particular way (or refrain from doing so) having regard to what is usual or expected in air travel at the time of injury, its failure so to act could constitute an accident for the purposes of Article 17 of the Warsaw Convention."

"The question of normality must be judged objectively. It is a question of fact to be determined on the evidence ultimately led. If that evidence establishes that it is part of the normal operation of an airline to give warnings and advice to passengers concerning dangers which the airline is aware of, then the tribunal of fact could find a failure to do so, in appropriate factual circumstances, amounted to an accident."

"The defendants submitted that a failure to warn, being an omission to act, could not be an event on board an aircraft. But such a submission not only depends upon the dubious distinction between acts and omissions, which is often more illusory than real, but also ignores the fact that Article 25 of the Convention (which lifts the usual limit on damages in circumstances of culpability by the carrier) specifically contemplates accidents which are constituted by omissions as well as those constituted by acts. It must also be remembered that the failure to warn is only one, even if the most important, of the many factors which the plaintiff includes in the particulars of the relevant accident as he argued it upon his expanded case."

"However it seems to me, applying Air France v Saks, that the failure of the crews of the relevant aircraft to advise the plaintiff of the need to regularly move around the cabin and the failure of such crews to advise the plaintiff to drink extra fluid do not constitute either individually or collectively an unexpected or unusual event or happening external to the plaintiff and that therefore such failures either individually or collectively do not constitute an accident within the meaning of Article 17 of the Convention."