DMC Category Rating: Confirmed

Facts
The plaintiff was a passenger on a flight from Sydney to London with Qantas Airways (the first respondent) on 15 February 2000 and on a flight from London to Sydney with British Airways (the second respondent) on 18 February 2000. The plaintiff alleged that during or after the carriage, he sustained DVT. In proceedings brought in the Supreme Court of Victoria, the plaintiff claimed that the airlines were liable for his DVT as well as the Civil Aviation Safety Authority of Australia ("CASA").

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:

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.

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.

Judgment
On 23 June 2005, by a 6 to 1 majority (the full seven judges having heard the appeal), the High Court of Australia dismissed the plaintiff’s appeal. In a joint judgment, Gleeson CJ, Gummow, Hayne and Heydon JJ adopted the definition of "accident" in Saks, confirming that for the purposes of Article 17, "accident" referred to an unusual or unexpected event external to the passenger which must be located at a place (on board the aircraft) or otherwise be fixed by reference to circumstances of time and place (embarking or disembarking). Critically, the appellant’s case as pleaded and particularised disclosed that nothing unusual or unexpected had happened during his flights. In fact, in his case against CASA, the plaintiff had pleaded that the relevant flight conditions were "the standard conditions of and procedures relating to passenger travel". The alleged failure to warn was also considered by their Honours to be irrelevant and unhelpful, as it presupposed that the airlines owed such a duty and attempted to introduce common law concepts into the construction of an international treaty. Accordingly, the Court held that the appellant’s allegations would not establish a cause of action against the airlines under Article 17.

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.

Comment
This case is the conclusive pronouncement on the prospects of bringing DVT actions against airlines in Australia, as well as the first time the High Court of Australia has considered Article 17 of the Warsaw Convention in any detail. After four years, it appears that the many DVT plaintiffs in Australia have reached the "end of the road", at least against the airlines. The next big decision awaited on the issue is that of the English House of Lords, which is hearing DVT appeals in October 2005.

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