Economy Class Misery

Despite the conveniences of modern air travel, a lengthy flight typically results in symptoms of muscle fatigue and stiffness for even the most seasoned traveler. For some passengers, the confines of air travel have contributed to a condition known as deep vein thrombosis (DVT). This condition involves the development of a blood clot or vessel restriction due, in part due to inactivity.

In the decision of McDonald v. Korean Air and China Travel (Canada) Inc., the Ontario Superior Court had occasion to consider the liability of Korean Air for the pain and damages suffered by a passenger who developed DVT while on board a flight from Toronto to Hong Kong. In the suit, the passenger alleged the airline failed to warn and educate passengers that on lengthy flights they may be at risk for DVT.

Liability of the carrier

Liability of an international air carrier is governed by the Montreal Convention, which has been incorporated into the Carriage by Air Act, Article 17 of chapter III, Liability of the Carrier, which reads: “The carrier is liable for damages 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.”

Thus, under Article 17, the imposition of liability on the carrier does not include any element of fault as is typical for a common tort action. The requirements are merely that the passenger has suffered a bodily injury caused by an “accident” while on board the aircraft. Under Article 17, the benefit to the passenger is that negligence need not be proved. Nonetheless, negligence is not entirely irrelevant since under Article 20 a carrier can escape liability if it proves that it had “taken all necessary measures to avoid the damage or that it was impossible to take such measures.”

McDonald took the position that the DVT acquired on board the aircraft was an “accident” within the meaning of Article 17 and therefore Korean Air should be liable. In reply, the carrier noted the flight in question was quite normal in that there was no significant turbulence and no evasive aircraft operations, which might otherwise have negatively affected the passengers, including McDonald. Thus, Korean Air argued that to recover under Article 17, it must be established that only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger, can it be said that an “accident” has occurred to invoke liability.

The Ontario Superior Court relied upon a 1985 decision of the United States Supreme Court in the case of Air France v. Saks, which stands for the proposition that Article 17 refers to an accident, which caused the passenger’s injury, and not an accident, which is the passenger’s injury, “When the injury results from the passenger’s own internal reactions to the usual normal expected operation of the aircraft, it has not been caused by an accident. . . . The passenger must be able to prove that some link in the chain was an unusual or unexpected event external to the passengers.”

Therefore, the Ontario court determined although an airline may be negligent in not advising passengers of the risk of DVT, negligence is not in itself an accident as contemplated by Article 17. As such, McDonald’s claim was not sustainable in law and was summarily struck out. The Superior Court decision was upheld on appeal with leave to the Supreme Court refused.

The non-reclining seat

More recently, in the decision of Ben-Tovim v. British Airways the Ontario Superior Court revisited the air carrier’s responsibility for a passenger who developed DVT while travelling from Montreal to London. This time, the complaint related, in part, to a nonreclining seat.

The Ontario court dismissed the passenger’s claim and in doing so cited with approval the aforementioned decision of McDonald v. Korean Air. The Ontario court determined the seat was not the culprit and stated,”The real cause for this serious disease was the inactivity of Mr. Ben-Tovim throughout the entire nine-hour journey. He remained in his seat because of the presence of the two ladies who apparently blocked his way to the aisle . . . it was his inaction which caused his deep vein thrombosis; and inaction is a nonevent, not an Article 17 accident. There was no unexpected or unusual event or happening that was external to this passenger. Deep vein thrombosis is endemic to long-distance travelling by air. Exercise during the flight is the answer.”

The Canadian Transportation Agency (CTA) frequently considers related issues of passenger comfort. The CTA is an independent government quasi-judicial tribunal with a mandate to eliminate undue obstacles to the mobility of persons with disabilities and travelling within the federal transportation network.

Consideration of an obstacle

An example is the complaint of a morbidly obese passenger, McKay-Panos, who had travelled with Air Canada from Calgary to Ottawa and back. Apparently, McKay-Panos, at the time of booking her flight, had requested two economy seats (for the price of one) or a business class seat. Upon boarding, she was assigned to a bulkhead seat, which proved to be too small. Fortunately, on the first leg of her trip she was allowed to move a vacant business class seat. On her return flight, she again asked for special consideration, but there was no alternate seating available. She therefore purchased a business class seat for an additional $972.00. Her complaint to the CTA ensued.

The CTA held that “obesity,” per say, is not a disability for the purposes of Part V of the Canadian Transportation Act. However, the CTA recognized there might be individuals in the population who are obese, who have a disability for the purposes of Part V of the Act, which can be attributed to their obesity. During the proceedings, the CTA considered expert evidence on models of disability, including one provided by the World Health Organizations International Classification of Functioning, Disability and Health (ICF Model). The applicant argued her obesity was an impairment under the ICF Model and highlighted what she believed to be the most significant limitation which she encountered: the seat. In a split decision, the complaint was dismissed. The majority concluded the applicant inappropriately relied on the ICF Model to establish her disability. It equated the limitation to an obstacle (the seat) and held that considering the obstacle in determining the disability was inconsistent with the Act.

The applicant was granted to leave to appeal to the Federal Court of Appeal. On appeal, the sole issue was whether the CTA properly held that the obstacle (the seat) should not be considered in determining whether a person was disabled. The Court, in allowing the appeal and setting aside that CTA Decision, commented that, “Despite having held that obesity can, on a case by case basis, be found to be a disability for purposes of the CTA and inviting the applicant to show through fact based evidence that she experienced activity limitations, the majority refused to take into account the limitation which the applicant identified: the seat.”

The Court criticized the CTA and said the CTA erred when it held that the obstacle (i. e.: the seat) could not be considered.

Stuart Blake is a partner with Fillmore Riley, practicing nearly exclusively in the areas of insurance law with an emphasis on commercial liability insurance, general insurance defence matters, aviation law, professional errors and omissions insurance, audit and accounting errors and omissions insurance, product liability, fire claims and coverage disputes.

Fillmore Riley is a member of the Risk Management Counsel of Canada.