This article is by Max Archer of 12 King’s Bench Walk.
The article considers the Montreal Convention: the regime governing the liability of air carriers to passengers in international carriage. The Convention is a well-worn route for passengers who have been injured aboard an aeroplane. Max considers the recourse available for claimants who have sustained psychiatric harm.
The Convention is a complete set of rules for bringing claims against carriers. For personal injury claims, the relevant provision is Article 17 (1) which reads as follows:
‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.’
For a passenger who has sustained physical injuries this is a straightforward provision. So long as it can be demonstrated that the injury was sustained in the course of an ‘accident’ (a sudden, unexpected event) the Convention imposes a form of strict liability on Carriers.
Passengers who sustain purely psychiatric injuries are in a more problematic position. The leading authority in the area is Morris v KLM Royal Dutch Airlines  UKHL 7. That case involved an indecent assault on a young girl by a fellow passenger where the claimant sustained no physical injuries; her claim was for psychiatric harm only. It was held that Article 17 only allowed passengers who had suffered physical injuries to bring a claim under the precursor to the Montreal Convention, the Warsaw Convention. As per Lord Hobhouse:
‘…bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish. A psychiatric illness may often be evidence of a bodily injury or the description of a condition which includes bodily injury. But the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury’.
Morris appears to offer a clear cut conclusion: claims for psychiatric harm must fail. This is the dominant authority on this point to date but are there grounds for either distinguishing or eliding this case?
The first point of note is that in Morris it was explicitly held that where psychiatric harm is occasioned by a physical impairment of the brain or nervous system it can be called ‘bodily injury’. Lord Nicholls held that what counted as a bodily injury was simply a question of medical evidence, thus if an expert holds that what might be thought of as pure psychiatric harm has been caused by some physical change in the brain, then the action can succeed. In the judgment of Lord Steyn, the American case of Weaver v Delta Airlines Inc 56 F Supp. 2d 1190 was explored in detail. The evidence before the US Supreme Court in that case was that Post-Traumatic Stress Disorder causes changes to the cell structure in the brain such that it could be described as being bodily injury. This was approved by Lord Steyn, opening up the possibility of a similar finding following Morris in this jurisdiction.
There may be no such evidence before a court, leaving claimants stuck with a seemingly rigid interpretation of Article 17 as per Morris. But the matter does not end there: Morris involved the pre-cursor to the Montreal Convention, the Warsaw Convention. Given that the decision was an interpretive one, based on the intention of treaty drafters in 1929, it is possible that the case can be elided on the basis that the treaty drafters of 1999 may have meant something else.
In spite of these possibilities, the odds are stacked against passengers who sustain purely psychiatric injuries. What though, is the situation where the carriage is part of a package contract: would it be then possible to sue a tour operator for psychiatric injuries caused by a carrier?
Assuming that the prerequisites for bringing a claim under the Package Travel, Package Holidays and Package Tour Regulations 1992 are met, the package contract will be subject to reg. 15(1) of the 1992 Regulations. This regulation reads as follows:
‘The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.’
Accordingly, a tour operator can be liable for the improper performance of the carriage component of a package contract. In this scenario the claim is not one brought under the convention, rather it is brought under the package contract, raising the possibility that the convention can be bypassed altogether. This was the situation before the court in the case of Akehurst & Ors v Thomson Holidays Limited & Ors (Unreported) Cardiff County Court, 6 May 2003. In this case the claimants were passengers on board a Brittania aircraft that crash-landed, causing them to suffer from psychological injuries. The claims were brought under reg. 15 of the 1992 Regulations against the tour operator. The question in that case was whether as a matter of contract law the Warsaw Convention had been incorporated into the package contract: only then would it be possible for the defendant to rely on its limitations. As it happened, the court found that the Warsaw Convention had not been incorporated and the claimants were successful.
Akehurst was, in the main, a simple question of contract law. Prima facie, the case seems to demonstrate that it is possible to elide the restrictions that one might encounter in pursuing a carrier. However, Akehurst was brought under the Warsaw Convention. There are no reported cases of this nature under the Montreal Convention. Under the latter convention, a package carrier may be able to rely on articles 39 and 40 and argue that they are a contracting carrier such that they can rely on the restrictions in the Convention. There is enough ambiguity in these articles for this point to be arguable either way.
As can be seen from the above, passengers pursuing a claim for pure psychiatric harm have an uphill struggle. In spite of this, there are ambiguities and untested routes that may allow such a claim to succeed.