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General
In a new judgment handed down on 6th July 2004 by the Nazareth District Court, the Israeli Court initially addressed the question - whether DVT claims fall within the scope of the Warsaw Convention, and determined that since DVT is not considered an "accident" according to the Convention, Plaintiff has no cause of action against the air carrier under the said Convention. C.C. 726/03 Noam David v. EL AL Israel Airlines Ltd. (not yet published).
The Claim
The claim was filed by Mr. Noam David against EL AL Israel Airlines and the State of Israel.
Plaintiff used to fly frequently on long-haul flights in the course of his work, sometimes using EL AL's flights from Israel to the United States and Europe.
Plaintiff alleged that during July 1998 he flew to New York and back within 48 hours and by the end of the month he flew to Germany and back within one day. All flights were with EL AL. Shortly after those flights Plaintiff began suffering from sever chest pains, and was later diagnosed as suffering from Pulmonary Embolism.
It was found that the Pulmonary Embolism was caused by "Deep Vein Thrombosis Syndrome" (hereinafter: DVT) which is a syndrome known to be caused, among other reasons, as a result of a prolonged period of sitting in the passenger's seat during long haul flights.
Plaintiff alleged that EL AL was liable to compensate him, according to the Tort Law and the Consumer Protection Law.
- EL AL filed a motion requesting that the claim be struck out in limine, based on two allegations:
•- The fact that the claim is time-barred according to the Warsaw Convention and the Israeli Carriage by Air Law � 1980 (which was enacted based on the Warsaw Convention).
•- The fact that the claim cannot be considered as an event which gives right to compensation according to the Warsaw Convention.
The Warsaw Convention settles the air carrier�s liability
The District Court of Nazareth first established the applicability of the Convention and the Carriage by air Law - 1980, since Israel, Germany and the United States are all signatories to the Convention.
The Court reinforced previous Israeli precedents in which it was determined that any bodily injury which occurred during a flight and/or is particularly related to the flight, can only be discussed within the framework of the Warsaw Convention, and not by any other laws which otherwise could have provided remedies to the injured parties (see for example C.A. 20/83 Dadon v. Air France PDI 38(3) 785 (Israel)).
The Court further determined that in order to be compensated, plaintiff's injury must occur as a result of an accident, in accordance with clause 17 to the Warsaw Convention which provides that: "The carrier is liable for damage 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."
A comparative research reveals that an accident was described as an "unexpected or unusual event or happening that is external to the passenger". (See, for example Air France v. Saks (1985), 470 US 397).
It was also established that the Courts do not consider the contention that the carrier did not warn a passenger as to the dangers of DVT as being an "event".
Therefore it cannot be considered an accident for the purpose of triggering clause 17 of the Warsaw Convention.
The Court also denied Plaintiff's allegation that, since the omissions of EL AL i.e. its failure to warn him as to the dangers of the DVT, occurred prior to the flight, the Warsaw Convention does not apply.
Based on the fact that the event on which Plaintiff's claim against EL AL has failed to comply with the definitions of the Warsaw Convention, the Court ruled that the claim against EL AL should be struck out.
The Court also emphasized that since a passenger's claim may only be brought under the Warsaw Convention, Plaintiff may not pursue and file the DVT claim under any other law, including the Tort Law.
Conclusion:
The outcome of this new judgment is that air carriers will not be liable to compensate passengers suffering from DVT deriving out of their flights.
The Court's decision is still subject to an appeal which may be filed by the plaintiff.
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