Date: Sun, 26 Jun 2005 22:49:40 +1000

From: Harold Luntz

Subject: DVT litigation

On the same day back in December 2002 judges in Victoria and England reached opposite conclusions as to whether passengers who claimed to have suffered deep vein thrombosis (DVT) arguably had a cause of action against the air carriers who carried them long distances. The difference between the two views as to whether such a claim could constitute an "accident" within the meaning of the Warsaw Convention was at least temporarily resolved when the Court of Appeal in each jurisdiction held that there was no arguable case: Qantas Ltd v Povey [2003] VSCA 227 (23 December 2003); Re Deep Vein Thrombosis and Air Travel Group Litigation [2003] EWCA Civ 1005; [2004] QB 234 (CA). Leave to appeal against these decisions was given by the High Court of Australia and the House of Lords respectively. A similar view has been taken in Canada, but there the Supreme Court refused leave to appeal: see Bulletin of Supreme Court Proceedings August 29, 2003.

Last week the High Court of Australia in Povey v Qantas Airways Ltd [2005] HCA 33 (23 June 2005) affirmed the decision of the Vic CA. by a majority of 6:1. The decision of the House of Lords is still awaited.

As Callinan J said:

[203] No one who has ever endured the discomfort of a long journey by air in the seemingly ever diminishing personal space provided by airlines for economy class passengers, could fail to sympathize with the plight of this appellant. But whether the respondents could and should have done better in this and other respects for him on his long flights the subject of his appeal, is not the question. Rather, it is, as the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ explains, whether on the facts alleged by the appellant, he may be able to make out against the respondents a case of accident within the meaning of "accident" as that word is used in Art 17 of the Warsaw Convention 1929 as modified from time to time. The answer to that question must, I think, be a negative one.

[204] The Court of Appeal of England and Wales in In re Deep Vein Thrombosis Litigation took the view that such an accident could not be regarded as having happened unless an event of an unusual, unexpected or untoward kind, external to the passenger, which had adversely affected his health or life, had occurred: mere inaction could not constitute an event or an accident. I agree with that view.

Kirby J remarked:

[130] A study of the minutes of the Second International Conference on Private Aeronautical Law that preceded the adoption of the Warsaw Convention in its original form in 1929 bears out the conclusion that the text ultimately endorsed was not so much the product of considerations of principle, justice and equity as of international and domestic politics, business pressures, a consideration of the technical advances in aviation, as well as changing policy judgments and the differing approaches of municipal judges to such claims [131]. These considerations have continued to affect the later revisions of the text.

[131] In this respect, the Warsaw Convention is similar to many international treaties that are the products of compromise. The disparate economic interests at stake make it unsafe to approach the meaning from a traditional point of view, reflected in the assumptions of municipal law. Instead, it is important to give the words of such an instrument a broad, purposive construction [132]. High amongst its undoubted purposes was the intention to adopt and maintain a uniform and international regime that gave a common effect to the language in which that regime was expressed [133].

McHugh J dissented.

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

<<<< Previous Message  ~  Index  ~  Next Message >>>>>