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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hammond v Bristow Helicopters Ltd [1998] ScotCS 66 (13 November 1998)
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Cite as: [1998] ScotCS 66
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OPINION OF LORD PHILIP in the causes PETER FREDERICK HAMMOND Pursuer; against BRISTOW HELICOPTERS LIMITED Defenders: EDWIN THOMAS BROWN Pursuer; against BRISTOW HELICOPTERS LIMITED Defenders and PHILIP KING Pursuer; against BRISTOW HELICOPTERS LIMITED Defenders ________________ |
13 November 1998
This opinion is concerned with three actions arising from three separate incidents which occurred when the respective pursuers were passengers on board helicopters operated by the defenders, Bristow Helicopters Limited, serving North Sea Oil Platforms and Installations.
In the case of Peter Frederick Hammond, the defenders' helicopter was landing on the crew vessel "Stena Seawell" at about 1.40pm on 23 November 1992, when the port engine suddenly failed. The helicopter fell rapidly towards the sea but at the last minute the pilot regained control and a crash was averted.
In the case of Edwin Thomas Brown, the defenders' helicopter was landing on the Safe Lancia oil platform in fog at about 9.30am on 31 May 1993. The pilot is said to have approached the platform at a dangerously high rate of descent. During the final approach he abandoned the attempt to land, and lost control of the helicopter, allowing it to pass below the heli deck, close to sea level. A crash into the sea was narrowly avoided by the application of full power to the engines, causing the main gear box to overtorque and the helicopter to shake violently.
In the case of Philip King, the defenders' helicopter, on taking off from the Gryphen "A" floating production platform, at about 11.09am on 22 December 1993, suffered engine failure and the helicopter suddenly and rapidly descended from a height of about 35ft, and landed heavily on the deck of the platform.
The nature of the loss and injury for which each of the pursuers claims damages is described as post traumatic stress disorder. In Mr King's case there is an additional averment that the stress which he suffered in the accident caused or materially contributed to the onset of peptic ulcer disease which, in turn, caused him to suffer severe dyspeptic pain after August 1994. It is also averred that he suffers from an exacerbation of pre-existing dyspeptic symptoms.
In each of the actions the pursuer claims damages under Article 17 of the Warsaw Convention as amended at The Hague 1955 ("the amended Convention"), as applied by Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 1967. The amended Convention was given the force of law in the United Kingdom, in relation to international carriage by air, by Section 1(1) of the Carriage by Air Act 1961. Schedule 1 to that Act set out both the English and the French Texts of the amended Convention, and Section 1(2) provided that, in the event of any inconsistency between the English and French texts, the French text should prevail. The English text of Article 17 is in the following terms:
"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."
The French text of Article 17 is as follows:
"Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle subie par un voyageur lorsque l'accident qui a causé le dommage s'est produit à bord de l'aéronef ou au cours de toutes operations d'embarquement et de débarquement."
Section 10(1) of the 1961 Act provided that Schedule 1, together with any other provisions of the Act, may be applied by Order in Council to carriage by air, not being carriage by air to which the Convention applies, subject to such exceptions, adaptations and modifications, if any, as may be specified. In exercise of that power, the Carriage by Air Acts (Application of Provisions) Order 1967 was made. Article 4 and Schedule 1 to that Order provided that the amended Convention should apply to non-international carriage by air. In terms of Article 2(1) of the Order "the amended Convention" means the English text set out in Schedule 1 to the 1961 Act.
The cases came before me in a single hearing on the procedure roll when the defenders argued that all three actions should be dismissed as irrelevant. Lest this opinion requires to be considered in other jurisdictions, I should make it clear that no evidence has yet been led in any of these cases. The arguments which I shall outline were advanced by counsel, in accordance with Scottish procedure, on the basis of the pursuers' written pleadings, which set out in detail the facts of the incidents in question, and the nature of the resulting injury and damage sustained by the pursuers, and conclude with the legal proposition that the pursuer is entitled to reparation in terms of Article 17. The procedure allows the defenders to argue, before any evidence is led, that even if the pursuers were to succeed in proving all the facts averred in their pleadings, they would still not be entitled to the remedy which they seek. If the pursuers are successful in this argument the actions will, in Scottish terminology, be held to be irrelevant and fall to be dismissed. In the argument before me no point was made in relation to the nature of the incidents themselves, but counsel for the defenders reserved the right to argue at a later stage that the incidents in question could not properly be described as "accidents".
The averments relating to the loss, injury and damage sustained by Mr Hammond are in the following terms:
"As a result of the said accident the pursuer suffered loss, injury and damage. At the material time he was convinced that he was about to be killed in a helicopter crash in the North Sea. He experienced intense fear. As a result he developed severe post-traumatic stress syndrome. He suffered from recurrent nightmares and flashbacks involving the accident. He became tense, anxious and withdrawn. He experienced sensations of agitation and irritability. His sleep was disturbed. He lost his appetite. He lost weight. He suffered from depression. He suffered also from attacks of breathlessness and sweating and experienced feelings of tightness in his chest. He became claustrophobic. He had difficulties with concentration. His personality and outlook on life altered greatly for the worse. The pursuer consulted his general medical practitioner, Dr Lesley G. Henderson, The Health Centre, Pipeland Road, St. Andrews. Anti-depressant medication was prescribed by him for the pursuer. Dr Henderson referred the pursuer for a course of psychiatric treatment by Dr D. R. Neilson (of Stratheden Hospital, Cupar) at St. Andrews Cottage Hospital. The pursuer also underwent treatment at the Department of Mental Health in the University of Aberdeen. At the time of the accident the pursuer was employed as a drilling engineer by Baroid Limited. St. Magnus House, Guild Street, Aberdeen. He worked offshore. He earned about £25,000 net per annum. His earnings would have been increased with the passage of time. The pursuer attempted to return to work in or about February 1993, but he was unable to continue working offshore due to his persistent symptoms and fear of travelling by helicopter. He lost and continues to lose earnings. His prospects of obtaining suitable employment have been substantially impaired as a result of the accident. He received Sick Pay and Social Security benefits, details of which will be produced. In the circumstances, the sum sued for is a reasonable estimate of the pursuer's said loss, injury and damage."
The corresponding averments in Mr Brown's case are as followings terms:
"As a result of the accident the pursuer suffered loss, injury and damage. On their return to Aberdeen he and the other passengers were sent for a medical examination because they were suffering from severe shock. The next day the pursuer was physically incapable of boarding a helicopter for a flight to a platform because he was shocked and terrified of flying. He was sent home where he consulted his general medical practitioner, Dr C. S. Sandbach of Farnham Medical Centre, 435 Stenhope Road, South Shields, Tyne & Wear. He was certified as being unfit for work for several weeks. The pursuer suffered from insomnia. He had nightmares about the accident. He became depressed and suffered from anxiety whenever he thought about the prospect of returning to work off-shore and flying in a helicopter. After about five weeks the pursuer managed to resume working off-shore. He was terrified during the helicopter flights to and from the rig. Eventually the pursuer had to give up off-shore work in December 1993. He was unable to overcome his fear of travelling by helicopter. He continues to suffer from recurrent flashbacks involving the accident. He now works at the Tyneside Docks. As a result of the accident the pursuer suffered from a state of nervous shock and developed symptoms of the post-traumatic stress disorder. He also developed an acute phobia of flying in a helicopter. The condition is liable to persist. As a result of the accident the pursuer lost and continues to lose earnings. While employed off-shore and earned about £450 net per week as a plumber/welder. In the docks he earns about £200 net per week for the same type of work. In the circumstances the sum sued for is a reasonable estimate of the pursuer's side loss, injury and damage."
The corresponding passage in Mr King's case is in the following terms:
"As a result of the accident the pursuer has suffered loss, injury and damage. He developed moderate post-traumatic stress disorder. He suffered from insomnia. He suffered from recurrent nightmares involving helicopter crashes. During such nightmares, the pursuer would sleepwalk and damage his surroundings. He suffered from flashbacks involving the accident. He ruminated constantly about the accident. He became irritable and depressed. He suffered from anxiety. He developed a phobia of flying. He found extreme difficulty returning to work offshore following the accident because of his fear of flying. He suffered anxiety whenever he thought about the prospect of travelling to and from the platform in a helicopter. He suffered from anxiety during helicopter flights to and from the platform. The stress which the pursuer suffered in the said accident caused or materially contributed to an onset of peptic ulcer disease which, in turn, caused the pursuer severe dyspeptic pain in and after August 1994. He managed to continue working offshore until in or about April 1995 when he was required to undertake a helicopter survival test. The said test involved a helicopter crash simulation in water. He panicked during the said simulation. He has been unable to resume work since that time because of his fear of flying. He is unemployed. He continues to suffer post-traumatic stress disorder. He continues to suffer from nightmares. He continues to suffer from a phobia of flying. He continues to suffer from anxiety. He continues to be irritable. He continues to suffer from insomnia. He suffers and continues to suffer an exacerbation of pre-existing dyspeptic symptoms. As a result of the accident the pursuer has lost and continues to lose earnings. Whilst employed off-shore he earned about £475 net per week as a steward. He has lost and continues to lose payments in respect of a retainer. He has lost and continues to lose standby payments. In the circumstances the sum sued is for a reasonable estimate of the pursuer's said loss, injury and damage."
The defenders' principal argument was that the pursuers' claims were irrelevant because the nature of the injury and damage sustained by them did not entitle them to damages under Article 17. All the claims were in respect of emotional or psychiatric injury, and so did not come within the description "any other bodily injury suffered by a passenger". Further, in Mr King's case, the physical symptoms suffered by him in the form of peptic ulcer disease and dyspepsia were not covered by Article 17, because they were the result of emotional rather than physical trauma.
The defenders argued that the amended Convention fell to be interpreted by reference to the aims of the Convention and the intentions of the original signatories. Consideration of the negotiating history of the Convention by the United States Supreme Court in the case of Eastern Airlines Inc. v Floyd 1994 1 A.S.L.R. 49 revealed that liability for mental injury had never been considered, and subsequent proposals to allow recovery for mental injury in subsequent protocols had been rejected. The purposes of the Warsaw Convention were threefold, 1. To restrict the liability of carriers in order to encourage the growth of the fledgling aviation industry; 2. To achieve uniformity in the areas of law covered by the Convention; and 3. To enable passengers to recover in circumstances where proof of fault might be difficult or impossible. The Convention provided a unified framework and the rules of its interpretation transcended national frontiers. Accordingly domestic law and policy and any changes in them played no part in its interpretation. Consideration of certain foreign judgments might however be of assistance. In any event, the complex interaction of body and mind was not yet fully understood, and the reception of medical advance took place at different times in different countries and in different legal systems. The peptic ulcer and related symptoms suffered by Mr King were a physical manifestation of mental injury. They were not the result of physical trauma to or impact with Mr King during the accident. Since the Article excluded liability for mental injury, logic required the exclusion of liability for these symptoms also, since they stemmed from that injury.
It was also argued on behalf of the defenders that, although the 1967 Order appeared to apply only the English text of the amended Convention to non-international carriage, nevertheless the French text remained supreme in the event of inconsistency between the two. It was necessary to look at the French text because the phrase "bodily injury" might be regarded as ambiguous. The word "lésion" denoted a purely physical phenomenon, and the phrase "lésion corporelle" represented, in the context of Article 17, words of limitation, closely linking the concept of bodily injury to the concept of wounding.
Counsel for the pursuers argued that the issue before the Court could not be decided without a proof. There was a range of emotional reaction which was compensatable under Article 17. It encompassed psychiatric illnesses which were either (a) physiologically based or (b) manifested by physical symptoms. These two factors explained why such illnesses could be regarded as "bodily injury". In order to dismiss these actions the Court would have to hold that the pursuers had no right to damages under Article 17, even if they were able to prove that their conditions had a physiological basis or a physical manifestation. It was necessary for medical evidence to be led as to whether the pursuers' conditions did have such a basis or manifestation. The cases of Eastern Airlines Inc v Floyd and Kotsambasis v Singapore Airlines Limited, Supreme Court of New South Wales, Court of Appeal, 13 August 1997, were concerned only with whether mere fright or distress gave right to compensation. Mere fright or distress were examples of non-compensatable conditions.
Counsel for the argued further that, at the time of the negotiations leading up to the signing of the Warsaw Agreement in 1929, it was well accepted in the United Kingdom that the words "bodily injury" fell to be interpreted as including psychiatric illness. Those words had, since before 1900, been understood in the United Kingdom and elsewhere to encompass the physical manifestation of injury caused by nervous shock. The expression "bodily injury" as used in Section 36(1)(a) of the Road Traffic Act 1930 in the context of motor insurance, had, since the enactment of that statute, been interpreted as encompassing psychiatric injury. So, when the Carriage by Air Act 1932 was enacted, incorporating the Warsaw Convention into UK law for the first time, Parliament must have intended the same meaning of "bodily injury" to be applied. Counsel for the pursuers also argued that the provisions of Section 1(2) of the 1961 Act were not applied to non-international carriage by air by the 1967 Order, and accordingly the French text did not prevail over the English where there was any inconsistency between them.
I begin my consideration of the arguments by determining the correct approach to the interpretation of the provisions of Schedule 1 to the 1967 Order. It is well settled that a purposive approach, unconstrained by domestic legal precedent, should be adopted in the interpretation of international Conventions. The question is whether Schedule 1 to the Order, which applies to non-international carriage by air, should be interpreted in the same way as the amended Convention from which it derives. The question was dealt with by Lord Hope of Craighead in Herd v Clyde Helicopters Limited 1997 S.C. (H.L.) 86, at page 100, where his Lordship said:
"As I mentioned in Sidhu v British Airways plc at p.36D, under reference to the discussion of this point in Fothergill v Monarch Airlines Ltd, it is now well established that a purposive approach should be taken to the interpretation of international Conventions which have the force of law in this country. If the United Kingdom rules had been designed to deal exclusively with carriage performed within the United Kingdom, there might have been no need to follow this approach in the interpretation of the United Kingdom rules which were derived from the Conventions. But the same rules apply also to non-Convention carriage involving a place of departure or destination or an agreed stopping place in a foreign state and a place of departure or destination or an agreed stopping place in the United Kingdom or other British territory, in order to eliminate the same kind of conflict of laws problems as between those two states as those which gave rise to the Conventions. Schedule 1 to the Order of 1967 was not made in order to give effect to any treaty obligations of the United Kingdom, but uniformity of interpretation is nevertheless important. All those who are involved in carriage by air, whether as carriers or as passengers, and their insurers should be able to assume that the same law applies no matter where the event occurs or where the forum is for the dispute: Grein v Imperial Airways Ltd, per Green L.J. at pp 74-75. In this situation I think that it is appropriate to have regard to the purpose and subject matter of the Conventions and to decisions of foreign courts in regard to the Conventions in order to resolve the issue whether the phrase 'carriage by air' in art 1 of Sched 1 to the Order of 1967 is wide enough to involve the circumstances in which Sergeant Herd was being carried by the helicopter when it crashed and he was killed."
It is clear from that passage that the same approach requires to be adopted to the interpretation of the provisions of Schedule 1 to the 1967 Order, as to the interpretation of the provisions of the amended Convention itself. Although Sidhu v British Airways [1997] 2 WLR 26 was concerned with the meaning of the phrase "carriage by air", there is no reason why the same approach should not apply equally to the determination of the meaning of the phrase "bodily injury". It is therefore appropriate for me to have regard to the purpose and subject matter of the Convention and to such decisions of foreign courts as bear upon the question, but not to be influenced by developments in domestic law and policy. Detailed submissions were made to me on behalf of the pursuers in relation to the state of the law in Great Britain at the time of the negotiations leading up to the Convention, and I was urged to take the view that the Convention was entered into, at least by the representatives of the United Kingdom, against the background of law in which the phrase "bodily injury" was understood to encompass psychiatric illness. I shall deal with these submissions later in this opinion. At this stage I simply make it clear that, in adopting the approach I do, I am declining to follow the approach taken by the Israel Supreme Court in Daddon & others v Air France, Air France v Teichaer, (1985) 39 R.F.D.A. 232 (1S&B Av.R, vii/141), in which it was held that the need had arisen for a renewed examination of the aims of the Convention in order to serve the needs of modern realities, in the light of what was described as the ever increasing tendency throughout the world to recognise the duty to compensate pure mental anguish. I prefer to follow the approach adopted by the Supreme Court of New South Wales in Kotsambasis v Singapore Airlines Limited, in which Stein J.A. said that, because of the need to achieve uniformity, it was not permissible to construe the Convention in the light of the changes in civil aviation transport since 1929, and the current domestic law view of mental or psychological injury. The New South Wales Court followed the approach of the United States Supreme Court in Eastern Airlines Inc. v Floyd and sought to ascertain the intention of the drafters and signatories of the Convention.
In determining the approach to the interpretation of Article 17, I also require to deal with the dispute between the parties as to the status of the French text of the amended Convention. I was urged on behalf of the defenders to have regard to the French text as an aid to the interpretation of Article 17. They argued that the French text should prevail in the event of any inconsistency between it and the English text. In my view the provisions of the 1967 Order do not have that effect. It is true that Section 10(1) of the 1961 Act permits the application of the first schedule to the Act, which contains both the English and French texts, together with any other provisions of the Act, to types of carriage by air to which the Convention does not apply, but it also provides that such application may be subject to such exceptions and modifications as may be specified. In exercising the power conferred by Section 10(1), Articles 2 and 4, and Schedule 1 of the 1967 Order specifically apply only the English text of the amended Convention to non-international carriage. The effect is therefore to apply the first schedule of the Act to non-international carriage, with the exception of the French text, as envisaged by Section 10(1). Likewise, no provision is made by the Order for the application of Section 1(2) of the Act to non-international carriage. Such application could have been made in terms of Section 10(1), had it been thought appropriate, but it was not. In these circumstances I conclude that the French text does not prevail over the English in the interpretation of Schedule 1 to the Order. That does not mean, however, that it is illegitimate to have regard to the French text for assistance in the interpretation of the English text, should such assistance be available.
Even if I am wrong in that conclusion, I do not consider that reference to the French text would make any difference to the interpretation of the words "bodily injury" as they appear in Article 17. The matter was considered in some detail in Eastern Airlines, when the United States Supreme Court came to the conclusion that there was no inconsistency between the phrases "bodily injury" and "lésion corporelle". The same conclusion was come to by Meagher J.A. in the leading judgment in Kotsambasis, where he said, at page 11 of his judgment:
"The words 'bodily injury' appear, in the authentic French texts, as 'lésion corporelle'. Those phrases can be regard essentially as equivalents. They both have the same ambiguity, namely whether the phrase can be taken to refer to a psychological injury. This ambiguity can only be resolved by looking at the intention of the contracting parties and adopting a purposive approach to the interpretation of the Convention."
I respectfully agree.
I turn now to the principal point at issue, which is whether the injury and damage suffered by the pursuers falls within the description of "bodily injury" in terms of Article 17. I shall deal firstly with the averments in each of the three cases which relate to the symptoms of post traumatic stress disorder and the loss flowing from that condition. In the cases of Mr Hammond and Mr Brown, that means all the averments of loss which I quoted earlier in this opinion. In Mr King's case, it means all the averments quoted apart from the two sentences, "The stress which the pursuer suffered in the said accident caused or materially contributed to an onset of peptic ulcer disease, which, in turn, caused the pursuer severe dyspeptic pain in and after August 1994" and "He suffers and continues to suffer an exacerbation of pre-existing dyspeptic symptoms. I shall deal with these two sentences later in this opinion.
The question which I have to consider was considered by the courts in Eastern Airlines and Kotsambasis and, in the passage following on from the passage I have just cited, Meagher J.A. began his consideration of the question by saying:
"It is immediately apparent that the adjective 'bodily' is a word of qualification, or limitation. It is a general principle of statutory interpretation, equally applicable to the intention of international agreements, that courts are not at liberty to consider any word as superfluous or insignificant - Commonwealth of Australia v Baume 1905 2 C.L.R. 405 at 414 - and, more specifically, that effect is to be given to words of limitation: Randwick Corp. v Rutledge (1959) 102 C.L.R. 54 94. It is clear that the draftsmen of the Convention did not intend to impose absolute liability in respect of all forms of injury."
The Judge then went on to explain how the provisions of other articles of the Convention served to indicate how Article 17 should be interpreted and cited the following passage from the speech of Lord Hope in Sidhu in explanation of the purpose of Article 17:
"On the one hand the carrier surrenders his freedom to exclude or to limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention ...
[The Convention] was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability ... A balance was struck, in the interests of certainty and uniformity ..."
Meagher J.A. then referred to the review of the history of negotiations of the Convention by the United States Supreme Court in Eastern Airlines, and cited the following passage from the opinion of the court, given by Marshall J. at page 53:
"Our review of the documentary record for the Warsaw Conference confirms - and commentators appear universally to agree - that there is no evidence that the drafters or signatories of the Warsaw Convention specifically considered liability for psychic injury or the meaning of 'lésion corporelle' ... Indeed, the unavailability of compensation for purely psychic injury in many common and civil law countries at the time of the Warsaw Conference persuades us that the signatories had no specific intent to include such a remedy in the Convention. Because such a remedy was unknown in many, if not most, jurisdictions in 1929, the drafters most likely have felt compelled to make an unequivocal reference to purely mental injury if they had specifically intended to allow such recovery.
In this sense, we find it significant that, when the parties to a different international transport treaty wanted to make it clear that rail passengers could recover for purely psychic harms, the drafters made a specific modification to this effect."
Meagher J.A. then concluded, as did the United States Supreme Court in Eastern Airlines, that the term "bodily injury" was not intended to, and on a proper interpretation of the Convention, did not, include purely psychological injury.
The argument before me was to some extent complicated by the variety of expressions used to describe non-physical injury in the cases cited. I shall explain what I came to understand to be the meaning of the various expressions used, and the potential legal consequences of the conditions described. I understood counsel to be agreed that the normal human emotions of fright or distress, so long as they did not give rise to a recognised form of clinical mental or psychological illness, were not compensatable, either in negligence, or under Article 17. On the other hand, conditions which could be described as clinical psychological or mental illnesses were potentially compensatable, under the law of negligence at any rate. I have proceeded on the assumption that such phrases as "mental or psychic injuries", as used in Eastern Airlines, and "psychological injury" and "mental injury", as used in Kotsambasis, all fall to be equiparated with recognised clinical psychiatric, psychological or mental illness, of which post traumatic stress disorder is an example.
In my view, all the material gathered together by the United States Supreme Courts in Eastern Airlines points in the same direction, and indicates that the signatories of the Warsaw Convention did not intend that purely psychological injury should be compensated under the Convention. The material to which I refer includes such factors as the following. The natural meaning of the phrase "bodily injury" and the link, in the context of Article 17, with the concept of "wounding", tends to convey physical damage only. The records of the discussions and negotiations leading up to the framing of the Convention (the "traveaux preparatoires") make no reference to purely mental injury. Subsequent attempts to propose that mental injury should be compensatable have been rejected. Psychological illness and injury was, (and still is,) generally speaking, less well understood than physical injury, and may give rise to greater difficulties of objective proof. The indication is that the laws of the signatory nations of the Convention lacked uniformity in relation to liability for mental injury. One of the principal aims of the Convention was to achieve uniformity. Having regard to these factors, I am persuaded that the reasoning set out in the cases of Eastern Airlines and Kotsambasis is sound and should be followed. I therefore conclude that the signatories to the amended Convention did not intend the term "bodily injury" in Article 17 to include purely psychological or mental injury, or psychiatric illness, of the kind suffered by the pursuers in these three cases. In these circumstances the pursuers' claims so far as they are based upon post traumatic stress disorder are irrelevant.
I still have to consider the averments in Mr King's case of peptic ulcer disease and related symptoms, but before I do so I require to deal with certain other arguments advanced by the pursuers in support of their motion for a proof. Counsel for the pursuers submitted that both Eastern Airlines and Kotsambasis were concerned only with the condition of mere fright and distress, as opposed to true psychological injury or illness, and that it was for that reason that the plaintiffs in these cases were held not to be entitled to recover under Article 17. I do not accept that argument. In the first place, the judgment of the court below in Kotsambasis, the District Court of New South Wales, which was provided to me, revealed that the plaintiff claimed to be suffering from "the psychiatric illness of post traumatic stress disorder", and described symptoms which were not dissimilar to those said to have been suffered by the pursuers in the present cases. Detailed information as to the nature of the injuries suffered by the plaintiff in Eastern Airlines is not provided in the report, but certain passages indicate to me that the Court was dealing with more than mere fright or distress. In particular Marshall J. at page 49, column 2, said:
"This case presents the questions whether Article 17 allows recovery for mental or psychic injuries (my emphasis) unaccompanied by physical injury or physical manifestation of injury."
At page 50, column 1, he said:
"We now hold that Article 17 does not allow recovery for purely mental injuries."
At page 51, column 1, he said:
"Therefore, the narrow issue presented here is whether, under the proper interpretation of 'lésion corporelle', condition (2) is satisfied when a passenger has suffered only a mental or psychic injury."
I interpret the use of the word "injury" in these passages as indicating the presence of a psychological or psychiatric illness, as opposed to an emotional reaction, not amounting to a clinical disorder.
Counsel for the pursuers also relied on dicta in certain pre-1929 British cases for two propositions. Firstly, they contended that the expression "bodily injury" was clearly understood in the United Kingdom prior to 1929 to encompass psychiatric injury. Secondly, they contended that since there were dicta in those cases which indicated that the judges could not rule out the possibility that medical science could demonstrate physical manifestations of conditions which were normally understood to be of a purely nervous or mental nature, the pursuers were entitled to an opportunity of proving that such physical manifestations existed in their cases.
The cases in question were Bell v Great Northern Railway Company [1890] 26 L.R. Ir. 428, Dulieu v White & Sons [1901] 2 KB 669 and Brown v John Watson Limited 1914 S.R. (H.L.) 44. In relation to the first contention, I do not consider that the reference in these cases to the expression "bodily injury" assists me in the interpretation of that expression in Article 17. In the first place, these cases were concerned with the law of negligence and Bell and Dulieu in particular were concerned with questions of remoteness. In Bell, the opinion of Palles C.B. proceeded on the stated assumption that the psychological injuries suffered by the plaintiff fell within the description "bodily or physical injury", and for that reason were within a class of injury which could be left to the consideration of the jury. This, it was argued, indicated that, as early as 1890, the expression "bodily injury" was regarded as encompassing psychiatric illness or injury, and the subsequent approval of Palles C.B.'s opinion in Dulien and Brown indicated that that view had gained acceptance throughout the United Kingdom prior to the signing of the Warsaw Convention. I do not agree. It seems to me that the reason for the reference to this assumption by the Chief Baron was that the existence of "bodily or physical injury" was a prerequisite of liability in negligence in the sate of the law at that time, and accordingly the Court proceeded on the assumption that that requirement had been met. By the time the case of Brown was decided by the House of Lords the requirement for "bodily or physical injury" to be established seems to have been departed from. The point at issue in that case was whether physical impact or lesion was necessary to enable a pursuer to recover damages. In these circumstances, I do not regard the cases cited as having any relevance to the interpretation of Article 17.
In all three cases there are dicta to the effect that the judges were not prepared to assume that nervous shock or mental injury were necessarily unaccompanied by any physical manifestation, and this was seen, as I understand it, as an additional reason why the injuries suffered in those cases should be held to give rise to liability in negligence. In particular in Bell Palles C.B. said at page 441:
"Further, the judgment (in an earlier Privy Council case which the court declined to follow) assumes, as a matter of law, that nervous shock is something which effects merely the mental functions, and is not in itself a peculiar physical state of the body. This error pervades the entire judgment."
In Dulieu Kennedy J. said at page 677, in approving the judgment of Palles C.B.:
"For my own part, I should not like to assume it to be scientifically true that a nervous shock which causes serious bodily illness is not actually accompanied by physical injury, although it may be impossible, or at least difficult, to detect the injury at the time in the living subject. I should not be surprised if the surgeon or the physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organism."
And in Brown Lord Shaw of Dunfermline said at page 51:
"Indeed it may be suggested that the proposition that injury so produced to the mind is unaccompanied by physical affection or change might itself be met by a modern physiology or pathology with instant challenge."
These passages, argued counsel for the pursuers, were sufficient to entitle them to the opportunity of proving, on the basis of the averments of loss quoted earlier in this opinion, that their psychological injuries were either physiologically based or manifested by physical symptoms.
It requires to be reiterated that the pursuers' argument was advanced on the basis that they could only succeed under Article 17 if their psychological injuries were either physiologically based or manifested by physical symptoms. In that situation the difficulty which the pursuers face is that they have no averments whatsoever of a physiological basis for their psychological injury or of physical manifestations of it. In my view, these are matters of such materiality in the context of these three cases that our system of pleadings requires the pursuers, if they wish to prove such a basis or such manifestations, to give notice of them in their pleadings. I specifically asked senior counsel for the defenders whether, despite the absence of such averments, he was in a position to offer such evidence. I did not understand him to give me an affirmative response. In these circumstances, on their own analysis of Article 17, the pursuers have not pled a relevant case: Our system does not allow a pursuer to proceed to proof in the hope that he will be able to prove a material fact. The assumption is that he will aver what he is able to prove. I think it is worth remarking in passing that the expectations of the judges in the three cases cited that medical science would, in all cases, be able to provide evidence of physiological bases for, or physical manifestations of, mental injury has not, so far as I am aware, been fulfilled. That state of affairs it seems to me highlights the necessity for the pursuers to aver and prove such bases and manifestations, if they wish to rely on them. For all these reasons the pursuers' argument based on the three cases cited does not alter my view as to the correct interpretation of Article 17.
Finally I turn to deal with the averments in Mr King's case to the effect that the stress which he suffered in the accident caused or materially contributed to the onset of peptic ulcer disease, which caused him to suffer severe dyspeptic pain after August 1994. It is also averred that he suffered from an exacerbation of pre-existing dyspeptic symptoms. There was no dispute that these symptoms were encompassed by the phrase "any other bodily injury", but the defenders argued that only physical injuries which had their origin or mechanism in physical trauma to, or interface with, the body, caused by the accident were compensatable under Article 17. The pursuers argued that the defenders' approach required words to be read into Article 17 in order to introduce a reference to physical impact. That was at odds with the plain meaning of the Article, which required only some causal connection between the accident and the bodily injury.
I consider that Article 17 should be interpreted as allowing recovery for physical injuries, whether they were caused by direct impact during the accident, or as a consequence of shock or mental injury inflicted by the accident. In my view, so long as there was some causal connection between the accident and the bodily injury the injured person should be entitled to compensation. That was the conclusion reached in Rosman v Transworld Airlines 1974 U.S. A.v R. 1 by the Court of Appeals of the State of New York. If shock or fright sustained in an accident was the cause of immediate death, for example from a heart attack, it would in my view be unrealistic to argue that death had not been caused by the accident. So if shock or fright were to lead to the onset of some physical illness, by parity of reasoning, I would find it impossible to hold that the physical illness had not been caused by the accident. It does not seem to me that any delay in the onset of death or physical illness should be a bar to recovery. If a passenger who sustained physical injuries in an accident were to die as a direct result of these injuries six months later, it could hardly be argued that his death was not caused by the accident. Similarly, it seems to me, a passenger, who develops physical symptoms which can be directly linked to shock or fright sustained in the accident, should be able successfully to argue that those physical symptoms were caused by the accident. In these circumstances I take the view that the two sentences containing reference to Mr King's peptic ulcer disease and other symptoms of dyspepsia do form a relevant head of claim under Article 17 and should therefore be allowed to go to proof. As it was not suggested that any of the other averments of loss flowed from the conditions referred to in these two sentences, proof of loss will be restricted to the averments in those to sentences.
In the result I shall dismiss Mr Hammond's and Mr Brown's actions and I shall allow a proof in Mr King's action restricted, in relation to loss, to the averments to which I refer.
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OPINION OF LORD PHILIP in the causes PETER FREDERICK HAMMOND Pursuer; against BRISTOW HELICOPTERS LIMITED Defenders: EDWIN THOMAS BROWN Pursuer; against BRISTOW HELICOPTERS LIMITED Defenders and PHILIP KING Pursuer; against BRISTOW HELICOPTERS LIMITED Defenders ________________
Act: Jones, QC, Moynihan, QC Alt: Vice Dean, QC, Ms Gilmore
13 November 1998 |