Blood oaths

The eyes of airlines, passengers and lawyers alike are on a number of test cases concerned with whether flying has caused deep vein thrombosis. Sally Roberts reports

On 31 January 2002, a group of airline travellers claiming to have suffered from deep vein thrombosis (DVT) after flying was given the all-clear to proceed with its 'economy class action' against Virgin Airlines and British Airways (BA).
The group's claim, brought by Collins Solicitors of Watford, is that there is a causal link between DVT and sitting for many hours on aeroplanes. This agreement to proceed, which is subject to the approval of the Lord Chief Justice, Lord Woolf, could open the floodgates on what is potentially one of the biggest group litigation actions the UK has ever seen.
This test case will set a precedent for determining the responsibility of airlines to its passengers and could encourage thousands of other claimants to come forward. The decision will be dependent on whether the claimants can prove that DVT was caused by sitting in cramped conditions, that the airlines were aware of the risks associated, and that the airlines did not take reasonable steps to inform of these risks.
Australian law firm Slater & Gordon is already involved in a similar test case. The firm has stated that it has more than 2,000 potential DVT claimants, including 90 cases which resulted in fatalities. The three Australian test cases started in July 2001 against Dutch airline KLM, Australia's Qantas Airlines and BA. However, as these cases are not expected to be heard until December 2002, the likely success of the UK test cases is unknown territory.
DVT refers to the formation of a blood clot within a deep vein, usually in the thigh or calf, and the most serious complication of the condition is that it can lead to a pulmonary embolism, which can be fatal. Research into DVT was first conducted during World War II, where it was found that immobilisation in bomb shelters for long periods of time increased the chances of DVT occurring. However, the first direct link between DVT and air travel was established in 1954, after a physician developed the condition following a 14-hour flight. Despite the term 'economy class syndrome' being coined in the 1970s, the link between air travel and DVT has risen in profile only recently on account of the extensive media coverage it has received and the perceived increase in incidents and fatalities concerning passengers.
In response to growing media attention and public concern, a government select committee was appointed to research the area. It was contended that if a conclusive link between DVT and air travel could be established, a national register for travel-associated DVT would be set up. The results, published in May 2001, stated: “We now recognise an association between long-distance travel, in particular long-haul flights, and the development of clots in the legs. During long-haul flights, passengers spend a long period of time sitting relatively still with their legs dependent. The air in the cabin is very dry and the oxygen concentration is less than it would be at sea level”.
A claim against an airline for DVT is likely to encounter more difficulties than that of an ordinary negligence claim. The Warsaw Convention 1929 governs international air travel and makes the airline strictly liable for the safety of its passengers during a flight. The convention codifies international laws governing carriage by air and applies irrespective of where the case is brought. The convention has several limitations, the most problematic issue for the claimant being whether DVT would be classified as an 'accident' for the purposes of the convention.
Article 17 provides: “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 meaning of 'accident' was considered by the US Supreme Court in Air France v Saks (1985), where it was defined as “an unexpected or unusual event or happening that is external to the passenger”. However, it was stressed that Article 17 would not apply where “the injury indisputably results from the passenger's own internal reaction to the usual, normal and expected operation of the aircraft”.
In Philip King v Bristow Helicopters (2000), the Scottish Court of Appeal discussed the meaning of “any other bodily injury” under Article 17 of the convention. It was held that the claimant's psychological and psychiatric injuries came within the meaning of the article, because it was capable of being extended to cover any injuries that could affect a person within their body.
A further example of how the court could opt for a wide interpretation of accident was seen in the Californian case of Husain v Olympic Airways (2001). The claimant was asthmatic and had asked to be moved to non-smoking seats, only to be told by the airline that there were no other seats available. The claimant had also requested an oxygen canister, but the flight attendants were unable to open the canister. The claimant began to suffer from severe breathing difficulties and died on board. It was held that there had been three accidents under the Warsaw Convention: the airline's refusal to move the claimant to a non-smoking seat; the inability of the airline attendants to open the oxygen canister; and the pilot's failure to turn on the no smoking sign.
There have also been successful claims where the accident had characteristics or risks intrinsic to air travel. In the US case of Brandi Wallace v Korean Air (2000), a female passenger was molested by a male passenger. The court stated that the characteristics of air travel increased the claimant's vulnerability, because of the cramped conditions during the flight. The decision in Wallace was followed by the Court of Appeal decision in Kelly Morris v KLM Royal Dutch Airlines (2001), in which it was held that where a 15-year-old girl had been sexually molested by a fellow passenger on board an aeroplane, there had been an accident because of the “special risk inherent in air travel”.
More recently, a German court rejected a passenger's claim for compensation after he developed DVT on a long-haul flight. The court decided that DVT was not an accident under the Warsaw Convention or a breach of the airline's duty of care, but rather a pre-existing condition of the claimant. The court concluded that, although there was evidence to suggest that DVT was caused by sitting in the same position for prolonged periods of time, the condition could not be directly attributed to flying. Considering the lack of UK case law specifically on this area, this decision does not add any merit to the test case.
Practitioners should be aware of the potential stumbling blocks in a claim for economy class syndrome. The courts may be sceptical about making an award for DVT, in the same way that claims for post-traumatic stress disorder (PTSD) have caused controversy in recent years. Similarities can be drawn between the two conditions due to the fact that not everyone who suffers a trauma will develop PTSD, and not everyone who takes a long-haul flight will develop DVT.
However, there is no justification for the courts automatically rejecting such claims, because each case will turn very much on its own particular facts. Indeed, there seems little point in applying a blanket approach to DVT and this would seem an opportune area where the eggshell skull principle (Smith v Leech Brain & Co (1961)) “take your victim as you find them” would apply. It has also proven difficult for a claimant to enjoy a successful claim for repetitive strain injury (RSI). Both DVT and RSI are conditions that can be averted and anticipated: RSI in the sense that it develops from employers' asking their staff to use keyboards all day long, and DVT in the way that airlines refuse to accept the dangers that the cramped conditions on board their flights can lead to.
However, what may be of interest to practitioners is the recent award made by Macclesfield County Court in Brian Horan v JMC Holidays (2002). The claimant was awarded £500 for the fear that he may have contracted DVT through flying. Although there was no medical evidence to support this, the judge found in his favour and acknowledged the stress and discomfort that the 56-year-old businessman had suffered. This is certainly good news for the test case claimants and is a timely acknowledgement by the judiciary, albeit on a small scale, of the link between DVT and flying.
Whatever the result of the test cases, they will be instrumental in ensuring that passengers are provided with enough information to make an educated decision about whether to fly. The difficulty at the moment is that it is only the aircraft and the people flying them that are subject to scrutiny. It may be that the airline industry as a whole calls for more regulation, so that in future the health of the passenger may get the attention it deserves.

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