On February 19, 2003, the Court of Appeal for Ontario upheld the decision of Justice Paul Hermiston of the Ontario Superior Court of Justice, who granted Korean Air’s motion to strike the claim of Ken McDonald, a Canadian victim of the so-called “economy class syndrome” or “jet leg”. McDonald sued Korean Air and his travel agent after suffering deep vein thrombosis on a 20-hour flight from Toronto to Hong Kong in October 2000. Upon his arrival in Hong Kong, McDonald experienced pain in his calf. He was subsequently diagnosed with deep vein thrombosis (DVT), and was hospitalized in Hong Kong for the next 11 days. McDonald contends that his injuries have left him with a significant disability, a loss of income and a loss of competitive advantage.
McDonald’s action is one of several DVT suits launched by airline passengers worldwide. In each case, the passengers allege that the airlines have known that long flights in cramped conditions can lead to DVT. The passengers allege that the airlines ought to have warned them of the known risks of flight related DVT and to have taken reasonable precautions to ensure their safety.
The airlines’ response to DVT claims has been to invoke the provisions of the Warsaw Convention, which governs the rights and obligations of passengers and air carriers respectively, involved in international transportation by air. Under the Convention, the carrier is only liable in respect of an accident within the meaning of Article 17, only if the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. McDonald contends that on air carriers, acts of failing to warn passengers of the risk of DVT, or to inform them of preventative measures and take remedial steps constitutes an “accident’ pursuant to the article. However, as the term has been interpreted by the United States Supreme Court, when an injury indisputably results from a passenger’s own internal reaction to the usual, normal and expected operation of the aircraft, it has been caused by an accident.
The judge found that in not advising passengers of the risk they assume, an airline may be negligent, but this negligence is not in itself an accident within the meaning of Article 17, in that DVT is not linked to an unusual and unexpected event external to the passenger. In a brief endorsement, the Justice Rosalie Abella, writing for the court, agreed with Justice Hermiston that the pleadings filed by McDonald disclosed no reasonable cause of action given the language of Article 17 of the Convention and the leading jurisprudence decided under it in the U.S., the U.K and Australia. On April 17 McDonald served an application for leave to appeal the decision to the S.C.C.
Ken McDonald was represented by John McCarthy and Joyce Chun of McCarthy Kerr Rastin LLP in Midland. Korean Air was represented by Bruce Garrow of Borden Ladner Gervais LLP in Toronto.
McDonald’s action is one of several DVT suits launched by airline passengers worldwide. In each case, the passengers allege that the airlines have known that long flights in cramped conditions can lead to DVT. The passengers allege that the airlines ought to have warned them of the known risks of flight related DVT and to have taken reasonable precautions to ensure their safety.
The airlines’ response to DVT claims has been to invoke the provisions of the Warsaw Convention, which governs the rights and obligations of passengers and air carriers respectively, involved in international transportation by air. Under the Convention, the carrier is only liable in respect of an accident within the meaning of Article 17, only if the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. McDonald contends that on air carriers, acts of failing to warn passengers of the risk of DVT, or to inform them of preventative measures and take remedial steps constitutes an “accident’ pursuant to the article. However, as the term has been interpreted by the United States Supreme Court, when an injury indisputably results from a passenger’s own internal reaction to the usual, normal and expected operation of the aircraft, it has been caused by an accident.
The judge found that in not advising passengers of the risk they assume, an airline may be negligent, but this negligence is not in itself an accident within the meaning of Article 17, in that DVT is not linked to an unusual and unexpected event external to the passenger. In a brief endorsement, the Justice Rosalie Abella, writing for the court, agreed with Justice Hermiston that the pleadings filed by McDonald disclosed no reasonable cause of action given the language of Article 17 of the Convention and the leading jurisprudence decided under it in the U.S., the U.K and Australia. On April 17 McDonald served an application for leave to appeal the decision to the S.C.C.
Ken McDonald was represented by John McCarthy and Joyce Chun of McCarthy Kerr Rastin LLP in Midland. Korean Air was represented by Bruce Garrow of Borden Ladner Gervais LLP in Toronto.
