By a judgment of June 23 2011 the First Civil Chamber of the Court of Cassation reiterated the conditions for establishing an international air carrier's liability under Article 17 of the Warsaw Convention 1929 (and by analogy under Article 17 of the Montreal Convention 1999).(1) This is the first French decision to rule expressly that deep vein thrombosis (DVT) does not constitute an accident under Article 17 of the Warsaw Convention.
Following an Emirates flight from Colombo to Paris on March 1 2004, with stopovers in Muscat and Dubai, a passenger suffered from DVT (the formation of a blood clot in a deep vein). The DVT was diagnosed after his return to France.
The passenger commenced interlocutory proceedings against Emirates before the Paris courts, claiming damages on a summary basis for personal injury resulting from DVT on the grounds that the airline was presumed liable. The court ordered a medical survey. The court-appointed medical expert concluded that there was no logical explanation for the DVT suffered by the claimant, other than the 'economy class syndrome' of remaining seated for too long. The court at first instance dismissed the claim on the grounds that there appeared to be an arguable defence, and that the summary relief sought was inappropriate.
The claimant lodged an appeal to the Paris Court of Appeal. On September 21 2009 the appeal court overturned the interlocutory order, finding the carrier liable under Article 17 of the Warsaw Convention, which provides that the carrier is liable for damage sustained in the event of 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."
Among other things, the appeal court held that the court-appointed medical expert had concluded that the passenger's medical history revealed no particular sensitivity to thrombosis; thus, the appeal court concluded that the presumption of liability under Article 17 operated in favour of the passenger.
Emirates lodged an appeal against this decision before the Court of Cassation.
Emirates challenged the appeal court ruling on the following grounds:
- The presumption of liability under Article 17 applies only where injury results from an accident. The appeal judgment was thus inconsistent with the convention.
- The appeal court found merely that the precise cause of the injury was unknown and that there was no evidence of any previous pathology which could explain the DVT suffered by the passenger. It did not find that there had been an accident. In the absence of an accident, the appeal court had erred in finding Emirates liable under the convention.
The Court of Cassation annulled the appeal court judgment in an unequivocal ruling. The court found that the appeal court's findings of fact did not justify that the injury should be attributed to an accident; as a result, there was no legal basis for the appeal court judgment, which should be annulled in all respects.
For the Court of Cassation the DVT suffered by the passenger was not an accident within the meaning of Article 17.
This ruling is consistent with the French courts' interpretation of the notion of 'accident' under Article 17 of the Warsaw Convention (and Article 17 of the Montreal Convention).
The French courts have repeatedly stressed that an accident must be a sudden and exterior event. Therefore, such test excludes all loss or injury resulting from the internal pathology of the passenger and, more generally, any damage caused by or contributed to by the negligence of the injured person. The Court of Cassation had previously held, in similar circumstances, that the pulmonary embolism (also resulting from the formation of blood clots) suffered by a passenger was not an accident as such.(2) Other decisions have also established that heart attacks, cardiovascular accidents or deafness suffered by a passenger, even during a flight, could not be construed as accidents. All these decisions and the reasoning contained therein should logically also apply to the equivalent provisions of Article 17 of the Montreal Convention.
The decision rendered by the Court of Cassation is consistent with court decisions from other parties to the Warsaw Convention (and the Montreal Convention) in respect of DVT claims.
Over the past decade, passengers have brought claims before the courts of various states for compensation for damage resulting from DVT.(3) As a result, legal authors have referred to the 'economy class syndrome', to which the court-appointed medical expert also alluded.
Therefore, the Court of Cassation's recent ruling is consistent with international interpretations of the convention; the lack of ambiguity in its judgment clearly sets an important precedent within France. Furthermore, the common approach adopted in a number of jurisdictions, and confirmed here by the French courts, is a perfect illustration of the will of the signatory states to try to adopt a uniform interpretation of the convention. In this respect, the French decision was awaited with interest as the Warsaw Convention was initially drawn up in French (Article 36), and this version was intended to prevail if clarification was required.
The decision also confirms that inspiration can and should be sought from decisions of the courts of other convention countries.(4)
For further information on this topic please contact Jean-Baptiste Charles or Olivier Purcell at Holman Fenwick Willan LLP by telephone (+33 1 44 94 40 50), fax (+33 1 42 65 46 25) or email ([email protected] or [email protected]).
(2) Gillet v Air Canada, June 14 2007.
(3) Previous decisions which have ruled that DVT is not an accident under Article 17 of the Warsaw Convention include: Povey v Quantas Airways Limited  HCA 170 (Australia); Deep Vein Thrombosis and Air Travel Group Litigation  UKHL 72 (House of Lords, England and Wales); Blansett v Continental Airlines, 379 F 3d 177 (5th Cir 2001) and Caman v Continental Airlines, Inc, 455 F 3d 1087 (9th Cir 2006) (United States); McDonald v Korean Air  171 OAC 368 (Canada); Zelaksonov v El Al, Distr Court of Tel Aviv (Dec 2007) (Israel); Landgericht München I, March 7 2001, no 2902354/00, 2001 (Germany); Meilan v Air China, Trib Busto Arsizio, Lombardia, January 7 2009 (Italy). Several of these decisions referred directly to the case law of other states.
(4) As observed by Lord Scott of Foscote in his opinion in the Deep Vein Thrombosis and Air Travel Group Litigation judgment at § 11.4.