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Deep Vein Thrombosis: Who pays the price?
You have to hand it to the Greeks. Socrates, Aristophanes, the Olympic Games and George Michael - all great gifts to humankind.
But overshadowing all of these cultural offerings, Greek mythology stands out as a real winner.
Anybody looking for a stocking filler this year would do well to pick up a copy of Homer's Odyssey. They just don't write them like this anymore.
Where else will you find a Goddess magically taking the shape of an eagle (so she can spy on mischievous men), or men panicking because they don't have enough wild bulls to sacrifice before the arrival of an opponent's army?
One of my favourites, however, is Ovid's tale of Icarus - the boy who flew too close to the sun.
For those of you who don't remember, Icarus' dad, Daedalus, helped him create wings which let him fly. He wasn't supposed to fly too close to the ground (presumably to avoid overhanging branches) or too high (because the sun would melt the wax that held the wings together).
Alas, Icarus failed to heed dad's advice, and flew too high - plunging to his death.
It is unusual for a Court to involve itself in an analysis of Greek mythology, but that is exactly what the High Court of Australia did in its recent decision in Povey v Qantas Airlines Limited [1005] HCA 33.
Mr Povey was a passenger on an aircraft which flew from Australia to England. It was established that, during the course of that flight, he contracted deep vein thrombosis (a painful condition caused by long periods of sedentary behaviour). Mr Povey attempted to obtain compensation in respect of this unfortunate incident.
Legal claims against airlines have traditionally provided difficult questions for the law. Which country's law should apply in respect of a flight from one country to another? Indeed, what if Mr Povey's condition occurred whilst he was over the airspace of yet another country?
Fortunately, these questions are all addressed by the Warsaw Convention - an international treaty signed by almost all countries in the world. Put simply, this is an international regulation, which controls the way in which claims can be brought against airlines anywhere.
The trouble is, however, that the Warsaw Convention wasn't drafted with deep vein thrombosis in mind – and the High Court of Australia found that, because it wasn't caused by some sort of external force (such as a suitcase falling on Mr Povey's head), it wasn't covered by the Convention - and no claim could be brought.
Justice Kirby reflected upon the fact that, like Icarus, Mr Povey had become a victim of the dangers of flight. He stated: "Whereas Icarus had only his father Daedalus to assist him in his peril, [Mr Povey] has the Warsaw Convention. To that Convention he has appealed. But as I shall explain, it is of no greater avail."
This lovely piece of judicial writing serves effectively as a decision which has international application: a person suffering from this condition cannot sue an airliner in respect of it.
So what is the legal position in New Zealand? The answer is something of a confusing paradox.
The health and safety legislation applies to flights within New Zealand - and to certain aspects of flights leaving New Zealand. In other words, a plane in New Zealand is a workplace for the purposes of our law.
Like any employer, the airline must take reasonable steps to ensure the safety of people in its workplace. That means that an airliner in this country has to do anything reasonable to prevent people from suffering deep vein thrombosis. Practically, this is probably best achieved by providing general information to passengers about the dangers of this condition - and the ways in which it can be avoided (have a look next time in the airline magazines which have exactly this type of information).
Ironically, however, not much can happen in the event of a breach.
The airline could be prosecuted under health and safety legislation - but only if it could be shown that it failed to take reasonable steps. A person suffering from the condition in New Zealand would be covered by our accident compensation scheme - but that scheme doesn't apply to deep vein thrombosis (because it is a condition or disease). That would normally mean that the person could sue the airline - but, as Mr Povey's case demonstrates, the Warsaw Convention prevents that from happening.
So, with some irony, the airline is required to take steps to prevent the disease - but if it fails it is protected against any realistic prospect of claim (with the possible exception of a health and safety prosecution).
So what is the moral of the story? Your best advice is to try and avoid contracting deep vein thrombosis in the first place.
And if you do contract it, poor you. And poor Mr Povey. And poor Icarus.
