Deep Vein Thrombosis - Flying into the Abyss?

Originally published by Lloyd's List - 13 February 2003

Courts are still grappling with the liability issues raised by injury claims, writes Anthony Frances

Although the dangers of "economy class syndrome" or DVT (deep vein thrombosis) are well documented, many airline passengers may be unaware that their travel insurance policies will probably not cover this condition at present.

Furthermore, recent court cases held in the UK and abroad suggest that carriers may not be held liable in the event of a DVT-related injury or death.

The central issue that has been considered by the courts is whether DVT is a claim that can be brought under the Warsaw Convention 1929 (as amended), which is the exclusive international liability regime for claims made against carriers. If DVT does not fall under the Warsaw Convention and therefore there is no basis to claim, the second issue is whether travel insurance cover would protect passengers. Consideration of the recent cases makes the position no clearer.

In the recent UK case of The Deep Vein Thrombosis & Air Travel Group Litigation, 2002 HWHC 2825 (QB), the claimants brought an action for damages against a number of airlines for personal injuries suffered (specifically DVT and related conditions) as a result of flying with the defendant carriers. The case raised a number of complex issues including what is deemed to be an 'accident' under Article 17 of the Warsaw Convention. In short, can passengers claim that DVT-related injuries are an 'accident' under the convention? The court held that the "factual matrix" that was considered did not disclose an 'accident' under Article 17 and as a result, the claimants did not succeed on this point. The court applied the definition in Saks, Morris and Chaudhari (see below).

In the US, Germany and Canada, the courts have also rejected DVT claims on various grounds. The common thread to these cases was the lack of an Article 17 'accident' and in addition, the failure by the claimants to prove the element of causation between DVT and carriage by air.

An interesting recent decision that may provide passengers with a basis for bringing an action against airlines is that of Horan v JMC Holidays Ltd (unreported ó Macclesfield County Court: January 2002). In this case, Mr Horan claimed £5,000 ($8,000) against JMC for discomfort, DVT and other related conditions while on a longhaul flight with the defendant carrier. Although Mr Horan's DVT claim was rejected, he was...