Air travel is one of the greatest inventions of the modern era, rightly occupying a vital part of human civilization with a cumulative interlace and exchange of rights and responsibilities. However, as is usual with every sphere of human civilization, this invention presents a unique potpourri of criminal and civil liabilities to both the carriers and passengers alike. Conventions generally govern liabilities in the international carriage of passengers and goods by air,[i] crafted majorly to promote the aviation industry, achieve uniformity and limit the liability of carriers for passenger injuries and deaths.[ii] One of the grey areas in the allocation and limitation of liability is the one manifested in Deep Vein Thrombosis (DVT) claims.
Increased awareness about the causes and implications of DVT has led to a surge in lawsuits and claims against air carriers in the international carriage of goods and passengers. While this trend is longstanding in more established jurisdictions,[iii] the concept of aviation litigation in general and DVT, in particular, is just catching on in Nigeria. Perhaps, this accounts for the scanty state of jurisprudence and case law on the discourse. Courts in advanced jurisdictions have examined DVT cases and arrived at opposing decisions, although a vast majority of these decisions were carrier-friendly. From the restrictive approach in Saks,[iv] to the expansive approach in Wallace’s case,[v] the passengers seem to be at the receiving end of most of the decisions. Although passengers have always maintained that failure to warn of the risk is a ground to make the carriers liable since they prioritize economic benefits over human lives, this contention has been rejected by courts in Australia,[vi] Canada,[vii] Germany and even the USA. Thus, while DVT decisions in more advanced jurisdictions may appear to predominantly favour the carriers due to the predominant carrier leaning and sympathy, decisions by Nigerian courts may be expected to follow the country’s general leaning as a passenger nation.
[i] Notable ones include the Warsaw Convention, 1929 and the Montreal Convention, 1999. Others include The Hague Protocol 1955, the Guadalajara Convention 1961, the Guatemala City Protocol 1971, The Chicago Convention 1944, etc.
[ii] Prior to the Conventions, the earliest being the Warsaw Convention of 1929, carriers were potentially liable without monetary limits for all passenger claims arising from injuries, deaths or baggage loss.
[iii] This includes countries like the United States of America (USA), the United Kingdom (UK), Canada, Australia, Germany, etc.
[iv]Saks v Air France 470 U.S. 392, 105 S.Ct. 1338, 84 L.ED.2d 289 (1985).
[v]Wallace v Korean Airline No 98 Civ. 1039, 1999 WL 187213, at 4-5 (S.D.N.Y. 1999). See also Deep Vein Thrombosis and Air Travel litigation (2006) Lloyd’s Rep. Plus 17.
[vi] See Van Luin v. KLM Airline (10377/01 NSW Dist. Ct.)
[vii] See McDonald v. Korean Air & China Travel Inc No. 01-330373, 18 September 2002.
Click here to read the full publication.
Written by Muhiz Adisa for The Trusted Advisors
Email us: [email protected]