Povey v. Qantas Airways
Mr JBR Beach QC with Mr BF Quinn for the appellant, instructed by Slater & Gordon
Mr JL Sher QC with Mr SA O’Meara for Qantas Airways, instructed by Minter Ellison
Mr AJ Meagher SC with Mr AS Bell for British Airways, instructed by Ebsworth & Ebsworth
INTERNATIONAL CARRIAGE BY AIR – PASSENGER CLAIM FOR DAMAGES FOR DEEP VEIN THROMBOSIS ALLEGEDLY SUSTAINED DURING OR AFTER CARRIAGE – WHETHER CARRIERS WERE LIABLE UNDER ARTICLE 17 WARSAW CONVENTION AS AMENDED – WHETHER APPELLANT’S DEEP VEIN THROMBOSIS WAS CAUSED BY AN "ACCIDENT" WITHIN ARTICLE 17 OF THE CONVENTION
In this key judgment, the High Court of Australia has ruled that an international airline passenger cannot bring a claim against carrier airlines for Deep Vein Thrombosis allegedly contracted during the flight or by reason of conditions on board, because the passenger could not establish that his Deep Vein Thrombosis was caused by an "accident" within the terms of Article 17 of the Warsaw Convention
DMC Category Rating: Confirmed
This case note was contributed by Simon Liddy, partner, and Halani Lloyd, solicitor, atEbsworth & Ebsworth Lawyers, Sydney, who represented British Airways. Ebsworth & Ebsworth Lawyers are International Contributors to the website for Australia
The plaintiff’s claim against the airlines was brought under the Civil Aviation (Carrier’s Liability) Act 1959, which incorporates the Warsaw Convention, as amended, into Australian law. The Act is the exclusive remedy for passengers who are injured during the course of international carriage by air. Central to the case was the issue of whether the plaintiff’s DVT had been caused by an "accident", as required by Article 17 of the Convention. Article 17 provides:
Applying to strike out the claims against them, the airlines argued that the pleadings did not disclose any "accident" having caused the DVT. In response the plaintiff argued that the "accident" constituted certain aircraft cabin conditions such as the confined physical environment, combined with the airlines’ offering of particular beverages during flights and their failure to warn passengers about DVT. At first instance, the Supreme Court agreed with the airlines, finding that the case as pleaded and particularised could not succeed. Nevertheless, the Court considered it arguable that a failure to warn of the risks of DVT could in the circumstances constitute an "accident". The Court therefore permitted the claimant to reparticularise his claim to focus on the failure to warn allegation.
The airlines appealed that decision to the Victorian Court of Appeal. There, by a 2 to 1 majority, the Court found that Mr Povey’s alleged DVT was not caused by an "accident", which it accepted was an "unexpected or unusual event that is external to the passenger" in accordance with the leading United States case Air France v Saks (1985) 470 US 392. In particular, the majority considered a failure to warn on the part of the airlines did not amount to an "accident". Accordingly, the Court allowed the airlines’ appeal.
Special leave to appeal to the High Court of Australia was granted to Mr Povey and the appeal was heard on 2 December 2004. The proceeding by Mr Povey was run as an informal test case, with some 500 similar separate actions in several Australian states and territories being held in abeyance pending a final decision.
In separate judgments, Kirby J and Callinan J each agreed that the appeal should be dismissed, despite expressing some dissatisfaction with the Warsaw regime. The dissenting judgment was that of McHugh J, who considered that the definition of "accident" in Saks is too widely stated, if read literally and as intended to be exhaustive, insofar as it excludes voluntary or intended acts having unintentional and reasonably foreseeable consequences. His Honour considered that an offer by flight attendants of alcohol, tea or coffee during a flight, or their discouragement of passengers moving around the cabin, could constitute "accidents".
The majority noted that its findings were consistent with decisions reached in intermediate courts of appeal in the United States and in England concerning the application of the Warsaw Convention to cases of DVT.
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