(back to preceding text)

    75.  The present case involved carriage by air in an aircraft and in a manner, which were, in terms of industry standards and practice, at the relevant times, normal, usual and expected. Like the Master of the Rolls, I can see no basis on which the permanent features of the aircraft, or the subjecting of the passengers to carriage in aircraft with these features could amount to an "accident" within article 17. That is not of course the same as saying that an unexpected event during the flight must always be instantaneous and immediately noticeable, rather than continuous and unrecognised. Ashley J in his partially dissenting judgment in the Court of Appeal of Victoria in Povey gave (at paras. 211-216) some examples of continuous situations (e.g. continuous malfunction of the pressurisation causing injury) where he thought that there would be an 'accident', and I am in sympathy with him on that point. But the situations he was envisaging were on any view unusual and contrary to expected airline standards and practice.

    76.  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.

    77.  Mr Scrivener submits that, if the appellants were able to prove the fault which they allege, that should compel a different and broader view of the term "accident". First, in so far as this argument invokes article 20, it is illegitimate. It is not possible to short-circuit article 17, by ignoring the requirement of an accident causing the death or injury and moving directly to consideration of the factors introduced in article 20. Article 20 only applies if there has been an accident causing death or injury, an occurrence causing damage to baggage or cargo or damage occasioned by delay within, respectively, articles 17, 18 or 19. As Supreme Court observed in Air France v. Saks 470 US 392 (1985), 407:

"The 'accident' requirement of Article 17 is distinct from the defenses in Article 20(1) both because it is located in a separate article and because it involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury."

Secondly, though associated with the first point, liability under the terms of article 17 is strict, and the exemption which an air carrier can claim under article 25 in the presently relevant form of the Convention as amended requires more than a simple negativing of fault in the ordinary domestic sense: cf Swiss Bank Corporation v Brink's MAT Ltd [1986] QB 853. The general effect of article 25 is not therefore to make the carrier liable on the basis of fault. Hence, it is understandable that article 17 may include additional substantive pre-conditions to the carrier's liability, such as the requirement of an "accident". This will, as I have pointed out, be a point of even greater significance in cases under the Montreal Protocol of 1999, where there is no equivalent to article 20.

    78.  Thirdly, references to fault (e.g. in failing to warn) can be attractive to the domestic lawyer, familiar with contractual or tortious claims for failure to exercise due skill and care. But it is the nature of the event, rather than the care taken to avoid injury which is the focus of the term 'accident' in article 17 (cf the citation from Air France v. Saks in paragraph 77 above). As the majority pointed out in the High Court of Australia in Povey at para. 41, such references "must proceed from unstated premises about the content or origin of some duty to warn". Unless a proper foundation can be found for these in the concept of "accident", introduced in article 17 and elaborated in Saks in a way which both parties accept, they have no place. However, that concept addresses what was actually expected or usual at the time, not what might or should have been according to some undefined different standard.

    79.  Fourthly, I do not accept that such a conclusion is a recipe for maintaining lax standards. Airlines and airline safety are matters which are, and must always have been, very much in the public eye. They are closely regulated at international and national levels. It seems improbable in the extreme that the or even an important driver for aircraft safety and consideration for passengers is the legal responsibility that may result from liability under article 17. Standard regulatory systems, competition between airlines and the incentives to offer better service are much more credible factors. In the context of the balanced compromise at which article 17 aims, I see nothing incoherent about a standard of liability determined by current expected airline practice, rather than by some higher standard which a court would be asked, in effect retrospectively, to identify.

    80.  Fifthly, where an airline and the crew of its aircraft have acted in accordance with usual and expected practice current at the relevant time, it is at least questionable whether a failure to act in some other way could, without artificiality, be regarded as an accident on board or in the course of embarking or disembarking. The realistic target of criticism would seem to be not the crew, but senior officers of the airline, in the airline's office responsible for safety, for failing to identify the risk of DVT and to introduce further precautions, changes or warnings in relation to flights on its airplanes and flights. Further, if, as in Mr Scrivener's submissions, the emphasis is on the failure to warn, the right time for any warning, in view of the seriousness of DVT, could well be regarded as being not merely prior to boarding, but prior to any booking, so as to give the passenger full opportunity not to commit himself or herself to fly at all.

    81.  There is a substantial body of international authority consistent with the views that I have expressed. In Saks itself, the claim was for internal injury allegedly sustained as a result of the usual, normal and expected operation of the aircraft's pressurisation system (cf pp.395-6 and 406). Common law allegations of negligence were nonetheless, left open (pre-Tseng) and remitted to the court below for further consideration. In Capacchione v. Qantas Airways, Ltd. 25 Avi Cas 17,346 (1996) (US District Court, Central District of Colombia) the claim was for injury allegedly sustained as a result of exposure to an insecticide which the airline was required by Australian regulations to spray inside the aircraft. There was an allegation of negligent failure to warn about the use of such insecticides on board. Nonetheless, the court (again pre-Tseng) held that there had been no accident within article 17:

"The failure to warn Capacchione was not unusual or unexpected. Rather, nothing in Qantas's standard procedure required giving a warning about insecticides" (p.17,351).

    82.  In Fulop v. Malev Hungarian Airlines 175F Supp. 2d 651, to which I have referred in paragraph 69 above, the passenger suffered an heart attack on a flight from Budapest to New York, and claimed that he requested a diversion to London for treatment that the carrier failed to carry out. It was accepted that the carrier had no liability for the initial heart attack, but the claim was that it had been aggravated, leading to "additional complications and graver injuries proximately attributable to the flight crew's conduct which conceivably would not have occurred had the carrier's personnel adhered to established operational standards, rules or policies applicable in the circumstances" (p.664). The District Court said (pp.670-1):

"One course, the one chosen, was 'normal' and uneventful insofar as it led the flight directly to its intended destination.

But the Flight was not 'normal' in that, by not diverting, it led to Fulop's more serious injuries. … One way, the route not chosen, would have complied with airline and industry practices, while the 'normal' scheduled flight in fact allegedly contravened established rules.

Whether in the final analysis the flight crew's acts under these circumstances were culpably negligent is beside the point. What does matter, in this Court's view, is that the Flight and the air carrier's operation were not routine or normal in the sense that they allegedly deviated from compliance with expected procedures and that the departure and its associated delay in bringing emergency relief sooner may have aggravated Fulop's injury."

    83.  In Blansett v. Continental Airlines, Inc. 379 F.3d 177 (5th Cir. 2004) (US Court of Appeals), a passenger on a trans-Atlantic flight in June 2001 suffered DVT which left him disabilitated. By that date many international carriers (it appears about half of them) provided passengers with information and advice about DVT, but many, including Continental Airlines, did not (p.182). The crew of the aircraft on which Mr Blansett travelled remained accordingly "entirely passive", i.e. silent, in that respect. The Court of Appeals, considering Husain, observed that the Supreme Court had "declined to base its analysis on language of reasonableness or unreasonableness" and held that the district court had accordingly erred when it "called for consideration whether Continental's conduct was an accident merely because it was "unreasonable" (p.181). It pointed out that there was nothing in the case equivalent to the crew's alleged failure in Husain to react to an urgent situation arising in flight, saying:

"No such circumstances were thrust on the flight crew in the present case, and their compliance with the regular policy of their airline was hardly unexpected. Rather, the Blansetts allege that the "unexpected" nature of the alleged event arose not from the choices of the flight attendants, but from the Continental policymakers who decided not to mandate DVT warnings on Continental flights.

The Blansetts reason that though this decision occurred at a time and place distant from Blansett's flight, article 17 is to be 'applied flexibly' after 'assessment of all the circumstances surrounding a passenger's injuries …" See Saks, 470 U.S. at 405 …"

The Court of Appeals was prepared to assume that the failure to warn was a departure from an industry standard (p.181). The emphasis here is on the word "an", because the Court went on to make clear that it was undisputed that in 2001 many international carriers did not give DVT warnings, and that Continental's "battery" of other warnings accorded with the Federal Aviation Administration's ("FAA's) then current prescriptions. It decided the appeal on the basis that (p.182):

"It was not an unexpected or unusual decision for Continental merely to cleave to the exclusive list of warnings required of it by the agency that has regulatory authority over its flights.

Ultimately, no jury may be permitted to find that Continental's failure to warn of DVT constituted an 'accident' under article 17. Continental's policy was far from unique in 2001 and was fully in accord with the expectations of the FAA. Its procedures were neither unexpected nor unusual."

    84.  Blansett was followed and applied by the Court of Appeals of the Ninth Circuit in Rodriguez v. Ansett Australia Ltd. 383 F 3d 914 (2004), where the claimant sustained DVT during a flight to New Zealand in September 2000, and complained of an alleged failure to warn, without submitting any evidence to raise any genuine issue as to whether there was at the time either a clear industry standard or an airline policy regarding DVT warnings.

    85.  The same approach has now been adopted by the majority judgment in the High Court of Australia in Povey, which referred to both Blansett and Rodriguez as well as the decision of the English Court of Appeal presently under appeal as being "consistent" with its own conclusion. The claim was again for DVT allegedly caused by the conditions of and procedures relating to passenger travel in flight. But neither the flight conditions nor anything happening on board was said to be out of the ordinary or unusual. The conditions and procedures were standard, and "only by the mechanism of describing the absence of warning as a 'failure to warn' did the appellant seek to suggest that the absence of warning was in any respect unusual or unexpected on the flights concerned" (para. 40). The High Court upheld the majority decision below dismissing the claim, stating (at paras. 41 and 42):

"References to 'failure' to warn in this context are irrelevant and unhelpful. They are irrelevant because they must proceed from unstated premises about the content or origin of some duty to warn.

The references to failure are unhelpful because they suggest that the only point at which some relevant warning could or should have been given is on board the aircraft. But if some warning was necessary or appropriate, it is not apparent why it should not have been given at a much earlier point of making arrangements to travel by air, rather than on board the aircraft. Further, reference to failure is unhelpful because it diverts attention from what it is that happened on board to what might have, could have, or perhaps should have happened there and why that should be so. If, as earlier indicated, it is appropriate to ask 'what happened on board?' the answer in this case is that the appellant alleges that nothing unexpected or unusual happened there."

    86.  I agree with this reasoning and conclusion, and it applies equally in the present case. 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.