| 12-03-2003 |
DVT - Passenger liability rocking the Industry? |
IN SPITE OF one recent victory in the UK High Court,
airline executives and their liability insurers will continue to squirm in their first class seats as the contentious issue of liability for potentially fatal blood clots - or, Deep Vein Thrombosis (DVT) - is fought out in the courts. Twin conflicting judgments on opposite sides of the globe have on one hand staunched the flow and on the other opened the floodgates for new claims.
Claimants argue that airlines have long known the danger of developing clots associated with flying, but have continually denied any link and failed to inform or educate passengers in the preventative measures they can take, exacerbating the risk by seating them in cramped conditions.
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Thousands of deaths attributed
DVT has rapidly risen to the forefront of public consciousness in the past two years. The condition known, some say erroneously, as 'economy class syndrome', is attributed to be the cause of thousands of deaths each year. Studies have revealed that up to 1 in 10 long-haul travellers develop some form of DVT after flying.
In its most serious form, a clot develops in the deep veins of the legs or groin area, blocking the blood flow, and may break off and travel to the heart, brain or lungs. It can then trigger a heart attack, stroke, or fatally, a pulmonary embolism blocking the lungs.
Medical opinion is divided over a causal link between flying and DVT, and has yet to conclusively establish the relationship. However, the Department of Health has conceded that the risk of developing a DVT may be increased in long-haul flights where passengers are constricted in their movements for long periods of time.
A House of Lords report in 2000 found that:
"it is not known (or has not yet been established) whether air travel increases the incidence of DVT above that found in the general population or above that found in other travellers"
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This ambiguity has been jumped upon by airlines in their defence. British Airways says it:
"sympathises with all victims of DVT but, since the World Health Organisation and the House of Lords agree that there is no evidence of a specific link that flying causes DVT, any further claims will continue to be resisted."
Confusingly though, the 'world's favourite airline' has started providing its customers with a leaflet pointing to the dangers of DVT and instructing passengers of a few simple steps minimising risk.
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Known about’ for 30 years
There is evidence airlines have known of a possible link between flying and DVT for more than 30 years. In 1968 Professor Peter Beighton and Dr Peter Richards co- authored a study linking the unique conditions of air travel to blood clots. Published in the British Heart Journal, the report found:
" The stasis of a long journey, combined with pressure from the aircraft seat at the back of the legs and the hypoxia (oxygen deficiency) together provide an ideal climate for precipitating deep vein thrombosis."
It went as far as to recommend:
"With these considerations in mind, it is worth while to induce those at risk, however comfortable, to take a prophylactic stroll to the washroom along the aircraft gangway, for the benefit of the exercise, from time to time during a lengthy flight."
Tellingly, Dr Richards was working as a medical officer for BOAC (now BA) at the time, and sought and was granted permission of the airline's Director of Medical Services to publish. It is claimed that copies of the article were distributed to other major airlines.
However, any growing signs of airlines' willingness to warn of a link between passengers sitting immobile on their planes and collapsing with a DVT an hour or two after don't seem to be a precursor to admitting their culpability.
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All claims brought against the airlines have been vigorously defended under the terms of the internationally recognised 1929 Warsaw Convention, which states:
" The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident
which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
The High Court test case brought in the UK last year involved 56 claimants - victims, or relatives of deceased victims - and 27 airlines. Airlines in the action included British Airways, Virgin, Qantas and a number of the major US carriers.
Receiving blanket media coverage, the thrust of the claimants' argument, as represented by Counsel Stuart Cakebread, was that the Warsaw Convention:
"intended to provide a sensible code which would have the dual
effect of:
a. enabling a passenger to obtain redress for injuries or death suffered because of acts or omissions on the part of the carrier without having to deal with difficult jurisdictional problems or in most cases having to prove fault and
b. limiting the carrier's liability whilst enabling it to escape liability if it could establish it was not at fault"
Cakebread described the Convention as an "early form of consumer protection", adding:
" We say that it is simply inconceivable that the drafters or delegates could have had as their intention or purpose the exclusion of liability on the part of the airlines in plain cases where physical injury or death resulted from their culpable acts or omissions."
The defendants took a strict interpretation of legislation they described as not primary but an international treaty obligation. They contended an unfortunate onset of DVT is not an accident but an internal reaction to the "expected and usual" operation of the aircraft.
Justice Robert Nelson found in favour of the airlines in his 20 December judgment. He ruled that:
"DVT cannot be regarded as anything other than a serious personal injury, leading as unhappily on occasions it does, to death",
but that plaintiff cases didn't satisfy the definition of accident as "an unexpected or unusual event or happening that is external to the passenger", set out in Saks - a US Supreme Court decision accepted worldwide as precedent. In the Australian test hearing businessman Brian Povey commenced proceedings against Qantas and BA claiming damages for a stroke caused by a DVT he alleged occurred in the course of or following flights from Sydney to London and back. Senior Counsel for the plaintiff also alleged the airlines had certain knowledge of the link and precautions and that as with other safety risks associated with flying, "it was part of the objectively usual, normal and expected operation of the aircraft for such warnings and advice to be given."
Judge Bongiorno ruled the case can go to trial and if the plaintiff amended to focus on the above allegations, it would be open to a court to find an accident.
So, a good day indeed for victims in Australia. The airlines had until 7 February 2003 to appeal. As IQ understands it is likely the court will seek a timeline to try the case later this year. In terms of precedent, the trial will be crucial and will have major implications for decisions in other jurisdictions.
Slater & Gordon, the Australian lawyers acting for the plaintiff, have so far issued 500 individual proceedings and heard from thousands of other potential claimants -although all cases will be held in abeyance pending the outcome of Povey.
The total number of claimants will be limited because under the terms of the Convention, proceedings must be brought within 2 years of disembarking the flight that allegedly caused the injury. As it stands, compensation is also limited under the Convention - but its geographical jurisdictional limits mean that overseas claimants can bring proceedings in Australia even if their domestic courts would reject them. |
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Conflicting rulings
Patrick Over, who handles the day-to-day running of the Povey case told IQ that
"if the person bought their BA ticket in England and it was a return ticket, then they could not pursue a claim in Australia. However, if it was a one-way ticket to Sydney or they bought the ticket in Sydney then they may be able to."
Over highlights the need for jurisdictional harmony over the issue: "Clearly, the Povey decision is of international significance, just as the English case is. Both courts expressed the need for comity in international law, though the conflicting results do not achieve that end."
And he is confident that comity will favour his side:
" It is likely that courts will align in their construction of" accident" in the Convention and I believe the Australian court's position is correct."
Nick Hughes of Barlow, Lyde & Gilbert (BLG) believes that comity will side with the English decision when the Povey outcome is considered at appeal. His firm instructed defence Counsel and he opines:
"We prefer the reasoning in the English decision that is both
more fully reasoned by reference to the detailed arguments addressed to both courts and is consistent with the developing trend of decisions around the world so far."
The only reason for pparently conflicting results was the "different procedural wickets on which the arguments in each were played out."
As is tradition, the Poms lost and the Aussies won.
Passengers - fit to fly?
Other protectors of the industry are confident there is no DVT case against the airlines, highlighting instead the general issue of unfit passengers wilfully getting airborne. David Learmount, Operations and Safety editor of Flight International magazine says:
" Airlines have a major and rapidly growing problem with people who aren't fit to fly expecting to fly. Airlines can advise them not to, and suggest that they visit their GP if they're within risk groups - but passengers can insist that they fly and then sue."
IQ has learnt of claims that airlines are further increasing DVT risks through their drive to increase the efficiency. Engines are trimmed on long distance flights to save fuel and the practise of depressurising the cabin has become widespread. This means less engine power is taken away and by increasing 'Equivalent Cabin Altitude', oxygen is reduced, making passengers drowsier and "calming them down". Such oxygen deficiency is attributed as a factor causing blood clotting.
Insurers giving nothing away
The insurance industry has not been forthcoming on the subject. In response to IQ's quest for a view the best offer came from aviation analyst Charles Otton of UBS Warburg, who suggested:
"You're best off talking to a medic."
Most leading brokers provided no comment - at least until the legal position is clear.
John Lumley of Global Aviation Insurance Network agrees the industry is adopting a 'wait and see' approach. Any precedent is crucial, as the "insurance market is there to reflect that for which the airlines are liable."
He thinks that for now DVT is just an addition to the many woes of the aviation underwriter:
" DVT is part of the underlying deterioration that underwriters are complaining about. It is another example of the broadening of scope for potential claims and along with settlement inflation is another worry for underwriters already concerned about underlying ratings."
Until jurisdictional comity is achieved, the airlines will stick to their guns. Up to the end of last year US cases tended to side with the High Court ruling. But in an action against Continental Airlines the court agreed with the plaintiff view of "accident" and the case is expected to go to trial in July. The nervousness this induced may well have been the cause of American Airlines settling out of court for an undisclosed sum in December.
So, it seems that the pendulum might be swinging, leaving airlines and their insurers in for a turbulent time. |
Source: www.elbornes.com |
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