Povey v Qantas Airways Ltd

The appellant, Mr Povey, brought proceedings against Qantas Airways Ltd and British Airways, alleging he contracted deep venous thrombosis (DVT) as a result of long-haul international flights. The dispute concerned whether the airline carriers were liable under Article 17 of the Warsaw Convention, as amended, for the injuries sustained by Mr Povey due to the conditions of carriage, including immobility, restricted movement, the provision of alcohol, and a lack of warnings or advice regarding the risk of DVT. The High Court of Australia was required to determine whether Mr Povey's contracting of DVT constituted an "accident" within the meaning of Article 17 of the Convention.

The court was asked to consider whether the circumstances pleaded by Mr Povey, which included the confined environment of the aircraft, impediments to movement, the offer of alcoholic beverages, and the failure to provide information about DVT risks, amounted to an "accident" as contemplated by Article 17 of the Warsaw Convention. This article imposes liability on carriers for damage sustained by a passenger if the accident causing the damage occurred on board the aircraft or during embarking or disembarking. The interpretation of "accident" under the Convention, requiring an event that is unexpected or unusual and external to the passenger, was central to the determination.

The High Court held that the conditions described by Mr Povey, even when viewed as a combination of circumstances, did not rise to the level of an "event" or "happening" that could be characterised as an accident under Article 17. The court reasoned that mere inaction or the inherent conditions of air travel, such as immobility in economy class, did not constitute an accident. Applying the principle that an accident requires an unusual, unexpected, or untoward event external to the passenger, the court found that the appellant's claim did not disclose an arguable cause of action under the Convention. Consequently, the appeal was dismissed with costs.