Psychological injury in an aircraft accident: the perils of Convention

The Montreal Convention is an exclusive cause of action which governs the extent of the liability of the airline to the passenger.       If no remedy exists under the Convention, then there can be no alternate domestic remedy.

Article 17 of the convention provides that

“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”

The 1999 Montreal Convention originated way back in 1929 with the Warsaw Convention which was drafted in a very different time for the airline industry when the primary concern was to promote the phenomena of global commercial flight and protect what was a far more dangerous business from pesky liability.

The clause has given rise to a wealth of case law concerning both the definition of the word ‘accident’ and the term ‘bodily injury’.    So far in the UK, the leading judgments have determined that pure psychological injury cannot be recovered.   

There was talk in 1999 when the Convention was revised that clause should be rephrased in a modern context to include mental injury or broadened to personal injury.  Unfortunately neither approach was followed.

The UK Courts interpreting the words bodily injury have deemed that had the Convention been designed to include pure psychological injury then a term other or in addition to ‘bodily’ would have been used Morris v KLM [2002] UKHL.

This interpretation has seen much criticism particularly given the many situations in which the development of psychological trauma following an incident on board an aircraft can be envisaged.

For example, a claimant will succeed in recovering compensation if an air hostess spills hot coffee into her lap, but she will not recovery if an engine catches fire mid flight creating a terrifying near death experience which results in a recognised psychological disorder even if the effect on the claimant’s ability to return to her day-to-day life is vastly more compromised by the later.

Unfortunately for Claimants the position looks unlikely to change any time soon.