My second response on these forums...perhaps my law degree isn't going to be a waste after all!
You raise some interesting points about this woman (whoever she was) taking the airline to court.
It's a very logical argument - if the Flight Crew knew that turbulence was 'forecast', and decided not to avoid it, are they liable?
Equally, if they put the fasten seat belt sign on and one of their passengers develops DVT, are they liable?
In the UK negligence is a vile, ugly and costly area of law, and I'd imagine it's worse in the UK. As a lawyer, I hate the spate of 'where there's a blame, there's a claim' companies trying to clog the legal system
For negligence to be proved there needs to be:
1) A 'duty of care' between A and B
2) Loss or harm suffered by B
3) Which was as a result of the negligence of A
You'll need all three to prove negligence.
There is, clearly, a duty of care between the flight crew and the passengers to fly the passengers safely, and in reasonable comfort. If the pilot started barrel-rolls you'd be suing away! However, to satisfy the first limb you'd need to define what the 'duty of care' is - is it to get the passenger from A to B efficiently, or to get the passenger from A to B comfortably?
If it's the former then the director's wife would lose. If it's the latter then she'd win.
I would imagine the courts WOULDN'T find a duty of care existed to tranport the passengers in comfort - turbulence is a normal occurence in flight, and it's not possible to avoid every blip and bump.
Anyhow, even if this could be established, I don't think passengers would succeed under point (3) - that the damage was be AS A RESULT OF the pilot's negligence.
Firstly, you couldn't pinpoint exactly what sort of turbulence caused the harm. The aircraft may have flown into an area where turbulence was predicted, but may have also hit some wake turbulence, which caused the harm. The pilots predicted the general turbulence, not the wake turbulence. I would find it difficult to see a court of law finding 100% definitely that the injury was caused as a 'direct consequence' of the pilot steering into the turbulence.
An option, which the court may be fond of, would be to allow the claim, but factor in contributory negligence from the passenger - for example, if they weren't wearing a seatbelt at the time, and when they should have been. This raise another interesting point of law:
If the passenger wasn't wearing a seatbelt, and the seatbelt light is ON, then any turbulence causing harm - even if they succeeded in proving negligence - wouldn't get them anywhere, and the courts would probably refuse to award damages, as they were contributorily negligent.
However, if the lights were off, was the passenger negligent in not having their seatbelt on? This is a point for all the aviation enthusiasts, and indeed lawyers, to ponder! People are advised to stretch their legs, though perhaps it could be established that they should do this with a walk to the loo, or exercises, for which the removal of the seatbelt isn't required.
Of course, the issue of DVT is interesting. I realise that some cases have resulted in successful claims for DVT, but the negligence in those cases results from the airlines NOT PUBLICISING DVT AND PREVENTATIVE MEASURES, not causing the DVT itself. As the three point test shows, it would be impossible to say that DVT was caused by the airline. Airlines do not owe their passengers a duty not to give them DVT. They owe a duty to help them prevent it.
In summary, the UK position is less claim-orientated than the states, but the systems are similar. I'd find it hard to suggest a court would find negligence for a flight crew that didn't plan to avoid turbulence. However, I'm sure a court WOULD find negligence if the pilot either a) deliberately flew into turbulence 'for the thrill of it', or b) had a perfectly feasible and equally suitable flight path, but chose the turbulent one over it. This latter arm would be difficult to prove.
I'm sure claims will happen in the courts though...my guess (don't shout at me for this!) would be with LCCs who perhaps are concerned with shaving time off journeys by taking a risk here or there, or less-reputable airlines (see Panoramo airlines thread elsewhere!) who want cost-effectiveness over comfort. I realise the LCCs do take comfort into consideration and WILL avoid turbulence, but if flight crews start taking gambles with turbulence, cases will appear.
Now I'm going to charge you £2000 for that advice
(well, have to fund my flight training somehow!)
Baz