[2025] EWHC 1706 (Comm)

In In re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495 the issue was the meaning of “accident” in article 17 of the Warsaw Convention: see Lord Scott at para. [1] of the judgment. The House of Lords held that the occurrence of deep vein thrombosis by passengers while in the air was not the result of an “accident” since it was not the result of an “unintended and unexpected happening” but occurred during the normal operation of the aircraft in normal conditions. However, the House of Lords considered the context of the relationship between articles 17 and 18 which, under the Warsaw Convention, referred to an “occurrence causing damage” rather than an “event”.

Indeed, the judgments turned on the fact that DVT was not the result of an accident in the sense of an event affecting a passenger adversely on an aircraft which was unexpected and unusual and that an event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an “accident” for the purposes of article 17.

In considering the interpretation of “accident”, Lord Scott held:

“7.

The use of the term “accident” in article 17 but the term “occurrence” in article 18 must be significant. Both terms impart the idea that something or other has happened. But “occurrence” is entirely general in its natural meaning. It permits no distinction to be drawn between different types of happening. “Accident” on the other hand must have been intended to denote an occurrence of a particular quality, an occurrence having particular characteristics. In the many decided cases in which the issue was whether the occurrence in question constituted an “accident” for article 17 purposes, the judges have had to ask themselves whether the occurrence possessed the necessary quality or characteristics to qualify as an “accident”. It is evident that it was never, or should never have been, enough for there to have been an occurrence that caused the damage. For article 17 liability the occurrence had to have the characteristics of an “accident”.”.

Lord Scott reviewed a number of US Supreme Court cases on the Convention, namely Air France v Saks (1985) 470 US 392 and Husain v Olympic Airways (2004) 540 US 644, noting at [12] that:

“12.

I think at this point a word of caution about the process of interpretation is in order. It is not the function of any court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to article 17 liability, or of any of those conditions. The language of the Convention itself must always be the starting point. The function of the court is to apply that language to the facts of the case in issue. In order to do so and to explain its decision, and to provide a guide to other courts that may subsequently be faced with similar facts, the court may well need to try to express in its own language the idea inherent in the language used in the Convention. So a judge faced with deciding whether particular facts do or do not constitute an article 17 accident will often describe in his or her own language the characteristics that an event or happening must have in order to qualify as an article 17 accident. But a judicial formulation of the characteristics of an article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention. It should be treated for what it is, namely, an exposition of the reasons for the decision reached and a guide to the application of the Convention language to facts of a type similar to those of the case in question”

He concluded at [23]-[24]:

“23.

Of more importance for present purposes is that nothing in the Husain case casts doubt upon the two important requirements of an article 17 accident that were established in the Saks case and have been applied fairly consistently ever since, namely, that an event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an article 17 accident and, second, that the event or happening that has caused the damage of which complaint is made must be something external to the passenger.

24.

These two requirements appear to me to rule out article 17 recovery in DVT cases where no more can be said than that the cramped seating arrangements in the aircraft were a causative link in the onset of the DVT. The failure by an airline to warn its passengers of the danger of DVT and of the precautions that might be taken to guard against that danger does not, in my opinion, improve the case, at least where there is no established practice of airlines generally or of a defendant airline in particular to issue such warnings. How the case would look if there were such an established practice and if by an oversight the usual warnings were not given does not arise for consideration in the present case. The specimen matrix includes no such assumed facts.”

Lord Steyn stated at [30]-[33]:

“30.

The issues come before the House on assumed facts. Those assumptions include a normal and unremarkable flight. It specifically must be assumed that there was no unusual or unexpected event external to the passenger which could have caused the DVT. The causal mechanism under consideration was the impact of the flight as a whole on a particular passenger. It was not an event external to the passenger. In the ordinary acceptation of the meaning of accident it does not appear to extend to the onset of DVT by itself.

…

33.

Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident…”

Lord Mance noted at [69]:

“Taking the paraphrase suggested in Saks which both sides accepted as a starting point, the issue before us can be broken down into three aspects, namely whether there was (a) an event, which was (b) unexpected or unusual and (c) external to the passenger.”

This echoed Lord Phillips MR in the Court of Appeal at [23]:

“23.

One can break down the definition of an accident into two elements. (1) There must be an event; (2) the event must be unusual, unexpected or untoward. I would endorse the approval by the United States Court of Appeals, Third Circuit in Abramson v Japan Airlines Co Ltd (1984) 739 F 2d 130, 132, of the following charge to a jury as to the correct legal standard for determining the occurrence of an accident under article 17:

"An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening."”

Lord Phillips first considered the meaning of “event” within those elements:

“An event

24.

I turn to consider in a little more detail the first element of an accident. It must be an event. The first meaning of accident that is given by the Oxford English Dictionary is: "Anything that happens ... An occurrence, incident, event." That meaning is however obsolete, in that it has become replaced by the second meaning that the dictionary gives: "Anything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause; a casualty, a contingency." The first element of an accident is to be found in all of these.

25.

A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident.

26.

Mr Thanki drew our attention to a description of the natural meaning of an event given by Lord Mustill, in a quite different context, in Axa Reinsurance (UK) plc v Field [1996] 1 WLR 1026 , 1035:

"In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way. I believe that this is how the Court of Appeal understood the word. A cause is to my mind something altogether less constricted. It can be a continuing state of affairs; it can be the absence of something happening."

To a degree I consider that this passage can be applied to an accident in the context of article 17. That article postulates that the accident must "take place on board the aircraft or in the course of any of the operations of embarking or disembarking". This suggests that the accident will be an ephemeral event. However, the requirement of flexibility and a purposive approach means that one cannot preclude the possibility that an activity that continues for a period, such as circulating contaminated air, could amount to an accident for the purposes of article 17 .”

While the judgments are not determinative of the meaning of “event” in article 18(1), they are helpful in that the critical issue was whether there was an event, though one which was unexpected or unusual (and external to the passenger). In particular, at para. [45] Lord Walker cited Lord Phillips with approval in his analysis of the Husain case in the US Supreme Court:

“45.

Later in his judgment Lord Phillips MR related these general observations to Olympic Airways v Husain, which had been decided by the United States Court of Appeals, Ninth Circuit (2002) 316 F 3d 829; after the decision of the Court of Appeal in this case, Husain went to the United States Supreme Court, (2004) 540 US 644, which was divided. Lord Phillips MR stated [2004] QB 234, 254, at para 50:

“The refusal of the flight attendant to move Dr Hanson cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr Hanson was exposed to smoke in circumstances that can properly be described as unusual and unexpected.”

46.

I respectfully agree with that view of Husain …”

In Singapore Airlines Cargo Pte Limited v Principle International Pty Ltd [2017] NSWCA 216 the Supreme Court of New South Wales considered a claim arising from the inadequate ventilation of cattle carried by air from Melbourne to China. This was a case which directly concerned article 18(1) of the Convention. The Court considered the decision of the Court of Appeal in Deep Vein Thrombosis where the meaning of “event” was considered (above) by the Master of the Rolls in terms which were approved by the House of Lords.

Beazley P held at [53]:

“53.

In this case, SIA Cargo’s liability under Art 18(1) is dependent upon there being an “event”, which caused the deaths of the cattle, that took place during the carriage by air, being the period in which the cargo is in the charge of the carrier: see Art 18(3). It is neither relevant nor necessary, for the purposes of identifying the “event”, for the cause of death to be established. As is apparent from the respective submissions of the parties, each seeks to identify the “event” within the meaning of Art 18(1) as having occurred when the cattle were in the charge of the other. According to Mr Muir’s evidence, the exporter was responsible for loading the cattle into the crates and that occurred on the tarmac. It appears that thereafter, the cattle were in the charge of the carrier’s agent, who was responsible for weighing the cattle, placing each crate onto a ULD and then loading the ULDs onto the aircraft (see above at [22]). The placement of each ULD within the aircraft was done by reference to the LIR prepared in Singapore.”

Having considered the “accident” cases, Beazley P continued:

“68.

By contrast, when the question in issue, as it is for the purposes of Art 18(1), is whether “the event which caused the damage … took place during the carriage by air”, the inquiry is not directed to ascertaining whether something occurred that was unusual or unexpected, that is, something that was not part of the usual course of carriage, as SIA Cargo argued. Rather, the inquiry is to identify, as Art 18(1) by its terms expressly specifies, whether there was an event or happening which caused the damage and which took place during the carriage by air. The event must be identified in the context of an “event which caused the damage”. The inquiry is not directed to ascertaining whether there was something unusual or unexpected happening outside the normal incidents of the flight. That is relevant to determining whether there was an accident for the purposes of Art 17(1).

69.

In this case, there was no damage caused to the cattle by the mere fact that they were placed in crates. Accordingly, that could not have been the “event” which caused the damage. Nor is it relevant, as argued by SIA Cargo, that the lack of ventilation was merely a condition of the flight. As I have explained, that is not the relevant inquiry for the purposes of Art 18(1). The cause of death, as SIA Cargo recognised, was the lack of ventilation to the cattle in those crates as placed on the lower deck. However, that was not the “event” for the purposes of Art 18(1). Rather, as is clear from the evidence, it was the placement of the crates, each containing nine cattle, on the lower deck given the conditions on the lower deck, which was the “event” which caused the damage.

70.

It follows that, contrary to SIA Cargo’s submission, there was an “event” within the meaning of Art 18(1) in respect of which SIA Cargo was liable for damage sustained, which in this case, was the loss of the cattle.”

Meagher JA agreed and explained the event causing damage in these terms:

“126.

It is a mischaracterisation of the primary judge’s formulation of that event to say that it is only concerned with the operation of the aircraft’s ventilation system. Her Honour’s formulation refers to a “lack of ventilation to the cows in the two crates” in the aft section of the lower deck. The evidence and primary judge’s findings show that there were three conditions or factors which contributed to that “lack of ventilation”:

(1)

the presence of nine cattle in each crate;

(2)

the stowage of the crates in a part of the lower deck where there was very little distance between the top of the crate and the roof of the lower deck; and

(3)

the limitations inherent in the normal operation of the aircraft’s air ventilation system in that part of the lower deck.

So understood, the primary judge’s formulation describes in a short hand way the combination of conditions to which the cattle were subject that resulted in their deaths. The cattle were held in those conditions from some time shortly after the two crates were stowed. The stowing of the crates in that position, which was the event within Art 18(1), occurred after the cattle were in the carrier’s charge, and accordingly during the carriage by air. That act exposed them to the “lack of ventilation” which resulted in their deaths.

This formulation of the Art 18(1) event more clearly identifies something which happened during the carriage by air. Although the shipper (Principle) did not plead the happening of an event in those terms, counsel for SIA Cargo accepted in this Court that that description reflects the way in which this first question was argued before the primary judge. Given that it does not involve any allegation of different conduct by the carrier, reliance upon it at this stage of the proceedings does not give rise to any prejudice. It follows that the deaths of the cattle in the two crates were caused by something which happened, or an event that took place, during the carriage by air. Grounds 1, 2, 3 and 7 should be dismissed.”

See also Contracts for Carriage by Air, Malcolm Clarke (2nd ed.) at pp. 104-5 and Wolf Müller-Rostin on Article 18, Damage to Cargo in Montreal Convention (annotated by Giemulla, Schmid, Müller-Rostin and others) at paras. 25 to 27. Professor Dr Müller-Rostin states at [27]:

“Indeed, the 1968 edition of Black’s Law Dictionary defines an event as ‘anything that happens, the consequence of anything’. An event does not need to be sudden or unforeseeable, and it makes no difference whether it is a natural occurrence or the conduct of the carrier or of an unconnected third party since the carrier is wholly liable unless one of the grounds under paragraph 2 applies or the defence of exoneration is available under Article 20.

…

The reason why the Convention renders the carrier liable for any event which causes damage to cargo or checked baggage during carriage by air but restricts its liability for the death or injury of passengers to accidents is that the consignor of cargo and the passenger who checks baggage surrender control of their property to the carrier who assumes responsibility for its safekeeping.”

In further litigation under the Warsaw Convention concerning deterioration in a cargo of peaches and nectarines, Winchester Fruit Ltd v American Airlines Inc [2002] 2 Lloyds Rep. 265 HHJ Hallgarten QC at [38] found that:

“38.

The view which I have formed is that the extent of such blemishes as may have affected the peaches on delivery to the defendants was probably within the range of what might have been expected, and that the dominant cause of what was found on outturn was indeed exposure to ambient temperatures at Asuncion and whatever conditions prevailed during the course of the various flights and stopping places prior to delivery to Fastfruit at Heathrow. I considered that the problem was given "a kick-start" in Asuncion by the goods spending as much time as they did at high ambient temperatures in the open, exposed to the sun and possibly to the wind…”

At [42] he equated “occurrence” in article 18(1) with “accident” in article 17(1):

“42.

The Convention does not affirmatively exclude liability where the destruction, loss or damage results from the inherent defect, quality or vice of the cargo carried, but instead, by art. 23(2) validates any contractual provisions which govern that eventuality. Does that mean that, absent any such express provision, a carrier is liable in the event that destruction, loss or damage is attributable to inherent defect etc? I do not think so because, as I see it, in such a case the claimant would not be able to identify any relevant occurrence: as a matter of construction of the Convention there must be an occurrence which is something separate from the very destruction, loss or damage itself. In this context, I am unable to discern any material distinction between the use of the word "occurrence" in art. 18 and "accident" in art. 17 …”

He applied Chaudhari v. British Airways plc (C.A.) The Times, May 7, 1997 as approved by Morris v. KLM Royal Dutch Airlines [2002] Q.B. 100 (which was an “accident” case involving harm to a child):

“In Chaudhari it was held was that liability did not attach to the carrier because the alleged injury "was not caused by any unexpected or unusual event external to [the claimant], but by his own personal, particular or peculiar reaction to the normal operation of the aircraft". To revert to art. 18, it seems to me that the example given by Mr. Reeve of the despatch of a parcel of ice to be carried unrefrigerated is very much in point. The melting of the ice will certainly represent damage, but no occurrence can be identified: the melting will have taken place in consequence of a given state of affairs and would have taken place in the ordinary course of events.”

In my judgment, Winchester Fruit does not apply the correct approach to article 18(1) as it currently stands, and indeed is not consistent with the judgments in Deep Vein Thrombosis and the clear reasons for the distinction between recovery by passengers for personal injury or death under article 17 and the wider imposition of liability for goods under article 18. The Judge’s approach was clearly influenced by the approach to “accident” which is curious given that in Morris, at p. 110, Lord Phillips MR had drawn a clear distinction between articles 17 and 18:

“The word "accident" in article 17 is inapposite linguistically to describe what happened to the claimant and is used in contradistinction to "occurrence" in article 18 which bears a wider meaning: see the travaux préparatoires and Chaudhari v British Airways plc The Times, 7 May 1997; Court of Appeal (Civil Division) Transcript No 590 of 1997; and Air France v Saks (1985) 470 US 392 . An "accident" involves an unexpected or unusual event or happening which is external to the passenger and which relates to the operation of the aircraft and/or could be regarded as a characteristic of air travel: see Chaudhari v British Airways plc 16 April 1997 and Harley Price v British Airways plc (1992) 23 Avi 18, 465, 18,466-18, 467; and contrast Air France v Saks 470 US 392.”

Mr Lawson for KLM accepted that the dictum equating “accident” and “occurrence” should not be followed. He submits that an “event” must be something at a particular time, place and in a particular way that happens fortuitously and external to the cargo, and causes the damage complained of; and that this is reinforced by what is then provided in article 18(2), which forms an integral part of the same article. A damage-causing “event” must be something external to the cargo that happens fortuitously at a particular time, at a particular place, in a particular way, but it does not need to be unexpected or unusual.

In my judgment, the meaning of “event” in the light of the above authorities should be approached as follows:

Mr Lawson submits that in determining liability the approach is that:

Mr Lawson summarised the circumstances from Ms Kors-Oudendijk’s written statement at para. 23 of his skeleton argument:

“(1)

The Cargo was exposed to ambient temperatures in Lima during the process of loading.

(2)

The temperature dropped on the flight from Lima to Quito, which is consistent with the pilots having followed the instruction to deploy its refrigeration system at between 2-8^oC.

(3)

The lower cargo deck door would have been opened whilst the aircraft was on the ground in Quito and the aircraft’s refrigeration system shut off.

(4)

Having risen whilst the aircraft was on the ground there, the temperature dropped on the flight between Quito and Miami, which is consistent with the pilots having followed the instruction to deploy its refrigeration system at between 2-8^oC.

(5)

Whilst on the ground in Miami the lower deck door was not opened but the aircraft’s refrigeration system was shut off.

(6)

Having risen whilst the aircraft was on the ground there, the temperature dropped on the flight between Miami and Amsterdam, which is consistent with the pilots having followed the instruction to deploy its refrigeration system at between 2-8^oC.”

He accepted on behalf of KLM at para. 24 that -

“during this time, the Cargo was thereby exposed to ambient temperatures exceeding 2-8^oC for a total of 7 hours and 29 minutes. It says that this exposure was unavoidable.”

However, this summary makes a number of assumptions:

I do not accept these assumptions were consistent with the terms of “Fresh 2”, properly understood, or that the exposure of the asparagus to high ambient temperatures was “unavoidable” within the scope of the terms of carriage, at least once the Cargo had been loaded into the cargo hold at Lima.