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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> King v Bristow Helicopters Ltd [2000] ScotCS 195 (12 July 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/195.html
Cite as: [2001] 1 LLR 95, [2000] ScotCS 195, 2001 SCLR 393, [2001] 1 Lloyd's Rep 95
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Cameron of Lochbroom Lord Reed
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01489/5/1995 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION FOR PURSUER in the cause PHILIP KING Pursuer and Reclaimer; against BRISTOW HELICOPTERS LIMITED Defenders and Respondents: _______ |
Act.: Moynihan, Q.C., Haldane; Balfour & Manson (Burnside, Kemp & Fraser, Aberdeen)
Alt.: Campbell, Q.C., Gilmore; Shepherd & Wedderburn, W.S.
12 July 2000
[1] The pursuer and reclaimer is Mr. Philip King. He sues for damages as reparation for "loss, injury and damage" which he claims to have suffered as the result of his involvement in an incident on 22 December 1993. At the relevant time the pursuer was a passenger on board a helicopter chartered by the defenders. According to his averments, the helicopter took off from the helideck of the Gryphon A floating production platform in the Beryl Oilfield in the North Sea. The helicopter rose to a height of about 35 feet and hovered for a short period. Suddenly its two engines flamed out and there was a loud bang. The helicopter descended rapidly and landed heavily on the helideck, whereupon it was engulfed in smoke which prevented the pursuer and other passengers from seeing out. As a result they did not know whether the helicopter had landed safely or whether it was on the edge of the helideck and liable to crash into the sea. There was an atmosphere of panic, with the passengers shouting. The pursuer was extremely frightened.
[2] The pursuer avers that, as a result of the accident, he suffered loss, injury and damage. The Lord Ordinary heard debate in the pursuer's case and in two other actions in a single hearing on the procedure roll. By his interlocutors of 13 November 1998 the Lord Ordinary dismissed the other actions and in this action he excluded certain of the pursuers' averments of loss, injury and damage from probation. His Lordship's opinion is reported as Hammond v. Bristow Helicopters Ltd. 1999 S.L.T. 919. No reclaiming motion was marked in the other actions. In his reclaiming motion, however, the pursuer asks the court to recall the Lord Ordinary's interlocutor and to allow a proof before answer in respect of all his averments. In a cross- reclaiming motion the defenders ask the court to recall the Lord Ordinary's interlocutor and to dismiss the action. I set out the pursuer's averments in Article 4 of Condescendence, those which the Lord Ordinary excluded from probation being in italic script:
"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 the 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 suffered 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 for is a reasonable estimate of the pursuer's said loss, injury and damage."
[3] During the hearing before this court senior counsel for the pursuer, Mr. Moynihan, Q.C., explained that the averments should be construed on the basis that all the complaints, with the exception of the peptic ulcer disease, were to be regarded as symptoms of the pursuer's post-traumatic stress disorder (PTSD). In addition he explained that the averments reflected the position as known to the pursuer's advisers at the time when the record was closed. Since the hearing before the Lord Ordinary, however, a further medical report had confirmed that the pursuer continued to suffer from PTSD and was also suffering from chronic depression. Moreover, the same report indicated that the pursuer's fear of flying was such that it could be properly regarded as a psychiatric disorder. In the result the pursuer's averments should be interpreted as disclosing that he was suffering from three psychiatric conditions: PTSD, chronic depression and phobic anxiety about flying. His peptic ulcer disease was caused, or materially contributed to, by his psychiatric conditions but counsel was not in a position to say whether it should properly be attributed to one particular condition. In view of the fact that the Lord Ordinary had some difficulty in ascertaining the attitude of the pursuer's then senior counsel to this matter (1999 S.L.T. at p. 926 C - F), I should add that Mr. Moynihan stressed that the pursuer was not offering to prove that his psychiatric conditions were caused by any physiological changes. He did not therefore seek to bring the pursuer's case within the scope of the ratio of Weaver v. Delta Airlines 56 F. Supp. 2d 1190 (1999) where the carrier was held liable to a plaintiff whose PTSD was due to physical changes in her brain brought on during the extreme distress of an emergency landing. Indeed, as will become evident, on the pursuer's approach, the reasoning in that case was unnecessarily narrow and basically misconceived. On behalf of the defenders Mr. Campbell, Q.C., indicated that he was happy to deal with the matter on the footing of the pleadings as explained by Mr. Moynihan without the need for any amendment.
[4] In the extensive case law and literature on the topic, a variety of expressions is used to describe the psychological injury which someone may suffer as the result of a wrong - for instance, "shock", "mental distress", "mental injury", "psychic injury", "psychological injury" and "psychiatric injury". Merely for the sake of consistency, and without implying anything special about the nature of such injuries, in this opinion I propose, as a rule, to adopt the term "psychological injury".
The Relevant Legislation
[5] The pursuer's claim for damages, as focused in his first plea-in-law, is based on Article 17 of the Convention concerning international carriage by air known as "the Warsaw Convention as amended at the Hague, 1955". The Warsaw Convention was concluded in French on 12 October 1929. The necessary arrangements to give its provisions the force of law in the United Kingdom were introduced by the Carriage by Air Act 1932 ("the 1932 Act") and the United Kingdom thereafter ratified the Convention (in French) on 14 February 1933. The 1932 Act achieved its purpose by giving the force of law to a translation into English of the French text of the Convention set out in the First Schedule. The translation was apparently done by the British Government, while in the United States a different translation was adopted, but the actual translation of Article 17 is in all material respects the same in both versions. Although the Convention concerned international carriage, Section 4 of the 1932 Act gave His Majesty power by Order in Council to apply the provisions of the First Schedule to non-international carriage, subject to such exceptions, adaptations and modifications, if any, as might be specified. His Majesty eventually applied the provisions of the First Schedule in a modified form to non-international carriage by The Carriage by Air (Non-international Carriage)(United Kingdom) Order 1952 (S.I. 1952 No. 158). Since, of course, the First Schedule contained only the English text, it was the English text in a modified form which was applied to non-international carriage.
[6] The Warsaw Convention was amended by a subsequent Protocol concluded at The Hague in 1955 and, in order to give effect to the provisions of the Warsaw Convention as now amended, Parliament passed the Carriage by Air Act 1961 ("the 1961 Act"). Again, the same technique was adopted and the provisions to be made part of our law were set out in the First Schedule to the Act. On this occasion, however, Parliament set out both the English translation and the French text of the Convention and provided by Section 1(2) that, if there was any inconsistency between the text in English and the text in French set out in the Schedule, the text in French was to prevail. Again steps were taken under Section 10 of the Act to apply the provisions of the Convention, in an amended form, to non-international carriage. Her Majesty did this by the Carriage by Air (Application of Provisions) Order 1967 ( S.I. 1967 No. 480), which applied to all carriage by air, "not being carriage to which the amended Convention" applied (Article 3). Article 4(a) went on to provide that Schedule 1 to the Order was to have effect in respect to carriage to which the Order applied, being carriage which was not international carriage as defined in Schedule 2 of the Order. It is agreed between the parties that the carriage of the pursuer in the helicopter in the present case was not international carriage as so defined and that, therefore, the First Schedule had effect in respect of the carriage. It should be noted that Article 2(1) of the Order defines "The amended Convention" as meaning "the English text of the Warsaw Convention as amended by the Hague Protocol". Part III of Schedule 1 sets out the relevant terms of the amended Convention which include the following articles:
"Article 17
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.
Article 18
(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.
(2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome in any place whatsoever.
(3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.
Article 19
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.
Article 20
The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
...
Article 22
(1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of 100,000 special drawing rights. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed 100,000 special drawing rights. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
...
Article 24
(1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Schedule.
(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights."
I have quoted Article 22(1) as amended by The Carriage by Air Acts (Application of Provisions)(Third Amendment) Order 1981 (S.I. 1981 No. 440) since that is the version which governs the present proceedings.
The French Text of Article 17
[7] Although I have set out a number of Articles which were referred to in the debate before us, the dispute between the parties actually turns on the interpretation of Article 17. It is therefore useful to have in mind the terms of the French text of that Article as it is to be found in Part II of Schedule 1 to the 1961 Act:
"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 opérations d'embarquement et de débarquement."
Both parties were agreed that, even although Section 1(2) of the 1961 Act does not apply to non-international carriage and hence does not apply in this case, we could properly look at the French text of the Convention when construing the text of Article 17. In my view this approach is justified in the first place by the desirability of applying a uniform approach to interpreting the provisions, wherever the particular incident occurs. I refer to the observations of Lord Hope of Craighead in Herd v. Clyde Helicopters Ltd. 1997 S.C. (H.L.) 86 at p. 100. Since the French text is to prevail in the case of international carriage, it will at least be proper to have regard to it, where appropriate, in interpreting the terms of Article 25 when applied to non-international carriage. Moreover, that approach also appears to be consistent with the long title of the 1961 Act which is
"An Act to give effect to the Convention concerning international carriage by air known as 'the Warsaw Convention as amended at The Hague, 1955', to enable the rules contained in that Convention to be applied, with or without modification, in other cases and, in particular to non-international carriage by air; and for connected purposes".
The Act is to enable "the rules contained in the Warsaw Convention" to be applied, with or without modification, in other cases. In the 1967 Order in Council Her Majesty applied those rules, with modifications, to non-international carriage. So, except to the extent to which they were modified, it was the rules contained in the Warsaw Convention which were to apply and, since those rules were formulated in the French text, it is legitimate, not just in the case of ambiguity, to look at the authentic version of the rules which are now to apply in cases of non-international carriage such as the present. I refer generally to the speeches of Lord Wilberforce in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd. [1978] A.C. 141 and Fothergill v. Monarch Airlines [1981] AC 251.
General Principles of Interpretation
[8] The approach which a court should adopt when interpreting legislation based on an international convention is not in dispute and was stated succinctly by Lord Macmillan in Stag Line v. Foscolo Mango Co. Ltd. [1932] A.C. 328 at p. 350 where he was interpreting a provision in the Carriage of Goods by Sea Act 1924 incorporating (a draft of) the Hague Rules. He said:
"It is important to remember that the Act of 1924 was the outcome of an international conference and that the rules in the schedule have an international currency. As these rules must come under the consideration of foreign courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principles of general acceptation."
Similarly, the parties were agreed that, although the Vienna Convention on the Law of Treaties does not actually apply in the present case, Articles 31(1) and 32 provided general guidance to which a court could properly have regard:
"31(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
...
32 Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable."
The Issue
[9] At the risk of seeming to oversimplify the excellent and sophisticated submissions of counsel for both parties, their basic standpoints can be shortly stated. The pursuer's contention is that the loss, injury and damage which he avers in Article 4 of Condescendence fall within the scope of the term "any other bodily injury" in Article 17 of the Convention and that the defenders are accordingly liable for the damage which he sustained in respect of that "bodily injury". The defenders' contention is that the term "bodily injury" is intended to exclude any mental or psychiatric condition and that not even the pursuer's peptic ulcer disease falls within the scope of the term since, on the pursuer's account, it was triggered by his psychiatric conditions. At first sight the issue seems straightforward, but the debate demonstrated that there are powerful arguments for both interpretations. Under reference to case law from various jurisdictions, the Lord Ordinary held (1999 S.L.T. at p. 924 L) that
"the signatories of the Warsaw Convention did not intend that purely psychological injury should be compensated under the Convention"
but (1999 S.L.T. at p. 926 H - I) that Article 17 nevertheless permitted
"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".
It was on this basis that the Lord Ordinary excluded from probation all of the pursuer's averments in Article 4 except those relating to the peptic ulcer disease.
[10] Although in Abnett v. British Airways PLC 1997 SC (HL) 26 the House of Lords heard some argument as to the scope of the term "bodily injury" in Article 17, their Lordships preferred to express no opinion on the point (1997 S.C. (H.L.) at p. 33 I - 34 A per Lord Hope of Craighead). On the other hand it has been much discussed by courts outside the United Kingdom. In particular in Eastern Airlines, Inc. v. Floyd 499 U.S. 530 (1991) the United States Supreme Court held that "bodily injury" did not include "purely psychic injury". In a passage which lower courts have found difficult to interpret, Marshall J. for the court summarised their view in this way (499 U.S. at p. 552):
"We conclude that an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury. Although Article 17 renders air carriers liable for 'damage sustained in the event of' ('dommage survenu en cas de') such injuries, ... we express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries."
In Kotsambasis v. Singapore Airlines Ltd. (1997) 42 N.S.W.L. R. 110 the Supreme Court of New South Wales followed the decision in Eastern Airlines. Meagher J.A. was of the opinion (42 N.S.W.L.R. at p. 115 F)
"that the term 'bodily injury' was not intended to, and on a proper interpretation of the Convention does not, include purely psychological injury."
Stein J.A. said (42 N.S.W.L.R. at p. 121 B - C):
"Until the Supreme Court of the United States determined Eastern Airlines Inc. v Floyd 499 US 530 (1991) there had been a considerable conflict of authority on the meaning of 'bodily injury' in the United States courts. Eastern Airlines v Floyd held that there could be no recovery for 'psychic' injury unaccompanied by physical injury. However where mental anguish follows and is caused by physical injury, recovery for both injuries is covered. I would agree with this latter statement. Moreover, if the psychological injury is proven to be a species of bodily injury, then it would constitute 'bodily injury' within the article."
[11] By contrast, some years before the Supreme Court decision in Eastern Airlines, the Supreme Court of Israel had held in Daddon v. Air France and Teichner v. Air France (1984) 1 S. & B. Av. R. VII/141 that "bodily injury" must be construed as also including mental anguish. Having investigated the objects of the Convention and the development of the law relating to mental injury, D. Levine J. argued (1 S. & B. A v. R. at VII/153):
"In view of all the aforegoing, and particularly in the light of the rapid development of air transport, in all its branches, and the ever-increasing tendency which manifests itself around the world and in Israel to recognise the duty to compensate pure mental anguish, we must pose for ourselves the question - what is the desirable judicial policy we should apply in regard to a proper interpretation of the term 'bodily injury' for purposes of art 17 of the convention.
In view of the objects of the convention as described above, and on the background of the abovementioned developments, it would be proper, in my opinion, from the point of view of the aforesaid judicial policy, to interpret art 17 of the convention in the widest possible way so that it would be possible in pursuance thereof to award compensation also for pure mental anguish."
[12] In so far as this passage - which is a translation of the Hebrew original - might appear to suggest that a court can apply a judicial policy shaped by later developments in legal thinking to place an interpretation on Article 17 which would not have been intended by the signatories, it is open to criticism. In Fothergill v. Monarch Airlines [1981] A.C. at p. 283 A - B, Lord Diplock described the interpretative function of a court when construing the Convention as being to ascertain
"what it was that the delegates to an international conference agreed upon by their majority vote in favour of the text of an international convention".
For that reason I respectfully agree with the general thrust of the comment of the United States Supreme Court in Eastern Airlines where, in referring to the approach of the Israeli Supreme Court, they say (499 U.S. at p. 530):
"Even if we were to agree that allowing recovery for purely psychic injury is desirable as a policy goal, we cannot give effect to such policy without convincing evidence that the signatories' intent with respect to Article 17 would allow such recovery".
See also the comments to the same effect of Stein J.A. in Kotsambasis 42 N.S.W.L.R. at p. 121 F - G. Adopting that approach, I would hold that, even if we were to consider that allowing recovery for pure psychological injury would be desirable as a policy goal, we could not give effect to such a policy unless we were satisfied that such injury would fall within the scope of the term "any other bodily injury" which the delegates at Warsaw in October 1929 agreed upon by their vote in favour of the text of Article 17 of the Convention.
Domestic Law
[13] In opening the pursuer's reclaiming motion Miss Haldane dwelt at some length on the Scottish and English law on liability for nervous shock. Mrs. Gilmore for the defenders replied. We were referred to the well-known tract of authority stretching from Bell v. Great Northern Railway Co. (1890) 26 L.R. Ir. 428 to Frost v. Chief Constable of South Yorkshire [1999] 2 AC 455. Counsel for the defenders put particular emphasis on the passage from the speech of Lord Macmillan in Bourhill v. Young 1942 SC (HL) 78 at p. 87 where he says:
"It is no longer necessary to consider whether the infliction of what is called mental shock may constitute an actionable wrong. The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer's system. And a mental shock may have consequences more serious than those resulting from physical impact. But in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury, and these elements may give rise to debate as to the precise scope of legal liability."
There, said counsel, Lord Macmillan had identified the distinction between injuries caused by direct impact and injuries sustained through the medium of the eye or ear without direct contact. Although Lord Macmillan had characterised the view as "crude", that distinction lay at the heart of a proper interpretation of Article 17.
[14] Without intending any disrespect to the submissions of counsel, I do not propose to examine these British authorities in detail. They chart the somewhat erratic progress of our courts in dealing with this topic in English and Scots law. But, in conformity with the approach described by Lord Macmillan in Stag Line, I do not consider that our domestic law, whether as caught in a snapshot taken in 1929 or as embodied in the latest decisions, is a useful aid to the proper interpretation of Article 17 of the Warsaw Convention, a treaty which was designed to create an international code.
Purposive Construction
[15] Counsel for both parties urged on us that we should adopt a purposive construction of Article 17. That is envisaged, of course, by Article 31(1) of the Vienna Convention. Moreover, in Herd v. Clyde Helicopters 1997 S.C. (H.L.) at p. 100 A Lord Hope pointed out that
"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."
He went on to examine the background to the Convention and then described the purposes of the Convention in this way (1997 S.C. (H.L.) at p. 100 G - I):
"The Warsaw Convention did not purport to deal with all matters relating to contracts of international carriage by air. But it is clear that what was sought to be achieved was a uniform international code which could be applied to all such contracts. One of the objects of the Convention was to encourage the development of the airline industry, which it was felt might be unduly inhibited by the increasing legal complexity of conducting a business of that kind across international frontiers. The aim was to reduce the opportunity for litigation and to provide a more definite and equitable basis on which airline operators could negotiate rates with their insurers."
Later (1997 S.C. (H.L.) at p. 101 E) his Lordship spoke of
"the desire to lay down a uniform international code which would achieve equity between the carrier and the user of his services".
Further on again (1997 S.C. (H.L.) at p. 103 C), having held that the carrier's liability for the death of the pursuer's husband was restricted by the Convention, Lord Hope said that, although this might seem harsh in the particular case, it should not be forgotten that
"one of the advantages of excluding the rules of common law is that the United Kingdom rules are designed to impose liability on the carrier without proof of fault in respect of the death of or injury to passengers, and to nullify contractual provisions the effect of which would be to relieve the carrier of liability or to restrict his liability in amount. These are significant advantages, as it may be very difficult to prove where fault lies when an aircraft has been destroyed in an air crash and all those who were on board the aircraft have lost their lives, and in view of the opportunities which would otherwise be available to those who provide carriage by air to exclude their liability."
[16] From these passages it is apparent that Lord Hope sees the Convention as enshrining an international code which achieves some kind of equity between the passenger and the carrier. The passenger has the benefit of a system in which there is no need to prove fault and in which the carrier cannot exclude liability, while the carrier has the advantage of a prescribed cap on the damages which can be recovered in any particular case. Lord Hope's analysis of the purposes of the Convention is essentially the same as that which is found, for instance, in the opinion of Bingham J., as he then was, in Swiss Bank Corporation v. Brink's M.A.T. Ltd. [1986] 1 Q.B. 853 at pp. 856 F - 857 A. Having stated the two purposes, his Lordship went on to indicate that
"The proper approach must, I think, be to approach the Convention in an objective spirit in order to try to discover what its true intent is."
Despite the exhortations to apply a purposive approach, I have found it difficult to see exactly how the two purposes which the signatories had in mind are of assistance in deciding which interpretation of "bodily injury" we should adopt. A wider interpretation might, I suppose, be thought to advance the purpose of providing passengers with a basis for recovering damages without the need to prove fault - by including one particular class of injury within the range of that system. On the other hand, a narrow interpretation might be said to further the purpose of limiting the carrier's liability to certain prescribed situations with a fixed cap. Given that the Convention is said to achieve some kind of equitable balance between the two purposes, there seems in any event to be no clear basis upon which one could say that the one purpose took precedence over the other. In that situation I confess that I have found the broad purposes behind the Convention to be of little help in deciding which interpretation to adopt. Like Bingham J., I think that one must approach the Convention in an objective spirit in an endeavour to discover its intent on this particular point.
Three Aspects of the Context of the Discussion
[17] Before turning to apply that approach to the detailed examination of the text of Article 17, I draw attention to three points which became clear as the debate before us progressed. These points may help to set the particular problem within a slightly wider context.
[18] First, the Warsaw Convention does not seek to regulate all matters relating to international carriage by air. It is, rather, a partial harmonisation, directed to the particular issues with which it deals. The intention to cover only certain issues is explicit in the title of the Convention itself: it is a convention for the unification of "certain rules" relating to international carriage. Among the topics dealt with is the liability of the carrier. See Abnett 1997 S.C. (H.L.) at p. 36 H and at p. 44 F - G per Lord Hope. In particular Article 17 deals with the liability of the carrier to passengers for damage sustained by them in certain circumstances. Those circumstances are set out in the phrase "in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger". Death, wounding or any other bodily injury suffered by a passenger are triggers of liability. If an accident causes one of these events, the carrier is liable for damage sustained as a result. That liability is subject, of course, to the cap in Article 22. In the case of the United Kingdom Section 1(4) of the 1932 Act gave effect to the Convention by substituting the liability under Article 17 for any liability of the carrier under statute or common law in international carriage. That provision was applied in Article 2 of the 1952 Order. No similar provision was included in the 1961 Act itself but in Abnett the House of Lords held in effect that the sole basis of liability was to be found in the Convention.
[19] Secondly, as can be seen from Article 24(2), however desirable such an aim might have been in theory, the Convention does not in fact create a uniform system for the recovery of damages based on Article 17. Rather, the determination of damages and the determination in particular of the permissible heads of claim are left to the domestic legal systems. In other words, they will be governed by the applicable system. Referring to Article 24, in Zicherman v. Korean Airlines Co. 516 U.S. 217 (1996) at p. 225 Scalia J. for the United States Supreme Court held:
"The most natural reading of this Article is that, in an action brought under Article 17, the law of the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for. Those questions are to be answered by the domestic law selected by the courts of the contracting states."
Earlier in the opinion (516 U.S. at pp. 223 - 224) the Supreme Court had concluded that the only realistic interpretation
"is to believe that 'dommage' means (as it does in French legal usage) 'legally cognizable harm,' but that Article 17 leaves it to adjudicating courts to specify what harm is cognizable."
[20] I did not understand counsel for the defenders to dispute the general principle emerging from this analysis, though they did seek to make particular submissions about the way it worked in this case. It is consistent with the general approach outlined by the Supreme Court that, for instance, in the case of the United Kingdom Section 1(4) of, and the Second Schedule to, the 1932 Act introduced special rules as to the persons who could enforce the carrier's liability and related matters. But, in its application to Scotland, Section 3 of the 1961 Act now provides:
"The reference in Article 17 in the First Schedule to this Act to the liability of a carrier for damage sustained in the event of the death of a passenger shall be construed as including liability to such persons as are entitled, apart from this act, to sue the carrier (whether for patrimonial damage or solatium or both) in respect of the death".
In terms of Section 7 of the Damages (Scotland) Act 1976, the reference to solatium is to be construed as a reference to loss of society. Counsel for the defenders did not suggest that either the 1932 or the 1961 legislation had failed to give proper effect to the Convention in this respect. It is therefore apparent that from the outset there was nothing in Article 17, as it applied to Scotland, to exclude solatium for the grief and suffering of certain of a deceased passenger's close relatives from the scope of the "damage" for which the carrier was to be liable. Indeed in England in Preston v. Hunting Air Transport Ltd. [1956] 1 Q.B. 454 at p. 462 Ormerod J. took a somewhat wider approach and calculated the damages which he awarded to children, whose mother had been killed in an air accident in Sicily,
"to some extent taking into account the fact that these children have sustained damage possibly of a more intangible character by reason of the loss of their mother...".
Similarly, damages for the relatives' loss of a deceased passenger's society are within the scope of "damage" under the Article. Since the scope of the remedy in damages is thus left to the various domestic systems, one would also prima facie expect that in an appropriate case of liability for "bodily injury" a passenger would be entitled to recover all those damages, including damages for consequential psychological injury, which the applicable system recognised. I return to the point below.
[21] Thirdly, Article 17 imposes a liability for "damage sustained in the event of" three eventualities, including bodily injury. One very literal reading of the terms of the Article could suggest that there would be liability if two contingencies coincided: the passenger suffered bodily injury and the passenger also suffered damage - even though the particular damage had not been caused by the bodily injury. So, for instance, it might be said that, if a passenger sustained a minor injury to his finger in the accident, he could then also recover damages for all the psychological injury which he suffered as a result of the accident. To adopt that interpretation of Article 17 would lead to absurd results, however, with a passenger who was lucky enough to suffer a scratch recovering damages for psychological injury while the passenger sitting next to him, who, unfortunately for him, emerged physically unscathed, would receive nothing by way of damages for similar, or even worse, psychological injury. Counsel for the pursuer made it plain from an early stage in the hearing that they were not advancing that interpretation and that they did not suggest that the pursuer was entitled to a proof before answer of all his averments of psychological injury, merely because he had averments of peptic ulcer disease. There is therefore no need to say more than that in my view counsel for the pursuer were correct not to pursue an argument of that kind. For discussion and rejection of the approach I refer to Jack v. Trans World Airways 854 F. Supp. 654 (N.D. Cal.) (1994) at pp. 665 - 666 per District Judge Caulfield.
"Any other bodily injury" in Article 17
[22] I preface the discussion of the meaning of the phrase "any other bodily injury" in Article 17 by noting that, although the original expression to be construed is in the French text of the Convention, counsel did not argue that we would find any help from investigating the French law on the subject. This is not surprising since, of course, there is no reason to believe that those drafting the Convention would have intended to adopt French law on this particular matter any more than the law of another domestic system. Moreover, so far as pure matters of legal terminology are concerned, both the Israeli Supreme Court in Daddon (S. & B. Av. R. VII/141 at151 - 152) and the United States Supreme Court in Eastern (499 U.S. at pp. 536 - 538) investigated the position in French law and found that the results were inconclusive. Lord Reed has added some further material but, having studied it with profit, I still cannot find any definitive guidance in it. In these circumstances I have concentrated on the language of the Convention without exploring the French law.
[23] A distinguished authority described the English translation of the text of the Convention as "not good" (K.M. Beaumont, "Need for Revision and Amplification of the Warsaw Convention" (1949) 16 Journal of Air Law and Commerce 395). But before us the parties accepted that the translation of Article 17 faithfully reproduces the spirit of the original, though its structure differs slightly from that of the French text. In the English the translator introduces a certain separation between the cases of death and wounding and the case of any other bodily injury. This is because the translation speaks of damage sustained in the event of, first, "the death or wounding of a passenger" and, then, "or [of] any other bodily injury suffered by a passenger". In other words the translation refers to "a passenger" twice and only when referring to "any other bodily injury" does it describe it as being "suffered by a passenger". The French text is more straightforward and refers simply to the case of death, wounding or any other bodily injury suffered by a passenger: "en cas de mort, de blessure ou de toute autre lésion subie par un voyageur". The death, wounding and other bodily injury are all "subie[s]" by the passenger. This is of some significance since, at one point in their submissions, counsel for the defenders sought to argue that Article 17 in effect placed the death of a passenger in a different category from his bodily injury so far as matters of causation were concerned. Any (little) plausibility which such a suggestion might have could derive only from the structure of the English text to which I have drawn attention. But in the original French text all three events are put on a par, each of them being "suffered" (subie) by a passenger. The basis for the supposed distinction disappears.
[24] Next, the critical words "or any other bodily injury", when taken as a whole, are words of expansion, not restriction. They are inserted to increase the range of event giving rise to liability beyond wounding to cover "any other bodily injury" which a passenger suffers. Indeed, while wounding (blessure) falls within their scope, the words "any other" (toute autre) are clearly intended to give the article a wide import and to ensure that any "bodily injury" whatever is covered. The courts have not found it hard to envisage examples of the kind of injury which might not fall readily within the term "wounding" (blessure) but which would be covered by this wider term - for instance, injuries caused by smoke or exhaust inhalation or injuries caused by oxygen deprivation. See, for instance, Eastern Airlines 499 U.S. at p. 541. In a more modern context one could add injuries caused by decompression. On the other hand, it is easy in the age of pressurised aircraft flying high above the weather systems to forget that for many years one of the most obvious potential hazards of flight was air sickness. This appears to have been seen by at least one authoritative commentator on the Convention as a hazard to be included under "any other bodily injury". See the passage from O. Riese and J. T. Lacour, Précis de droit aérien international et suisse (1951), p. 264 which is quoted below and which was also referred to in Palagonia v. Trans World Airlines Sup. 442 N.Y.S. 2d 670 (1978) at pp. 673 and 674. The same point is made in Riese's earlier work, Luftrecht Das internationale Recht der zivilen Luftfahrt unter besonderer Berücksichtigung des schweizerischen Rechts (1949), p. 443:
"Auch die Luftkrankheit, die durch das Schaukeln des Flugzeugs herbeigeführt wird, stellt eine Gesundheitsbeschädigung dar."
The defenders' argument is, however, that within the phrase "any other bodily injury" the adjective "bodily" is a word of restriction and that it shows that the signatories intended to exclude from the scope of the article psychological as opposed to physical injury.
[25] The defenders are certainly correct to argue that, since the duty of the court is to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties (Air France v. Saks 470 U.S. 392 (1985) at p. 399 per O'Connor J. giving the judgment of the Supreme Court), we must neither disregard nor play down the qualification which the adjective "bodily" contains. In Kotsambasis Meagher J.A. put the point in this way (42 N.S.W.L.R. at p. 114 E - F):
"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 interpretation 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 at 94. It is clear that the draftsmen of the Convention did not intend to impose absolute liability in respect of all forms of injury."
In Article 17 the adjective "bodily" was unquestionably inserted with a purpose and we must give effect to that purpose in interpreting the text. Our task is to identify what the signatories' purpose was in including this modifier. More precisely, perhaps, we have to identify why the signatories included the modifier "corporelle" to describe the "lésion" in question.
[26] The contention of the defenders is that the signatories included the modifier in order to exclude psychological as opposed to bodily injury. In other words, the opposite of "lésion corporelle" would be something like "lésion psychique" - though that precise phrase does not seem to be found in the texts. Admittedly, this argument has an immediate appeal to a reader - which may not be the least of the points in its favour. Those who adopt that approach place some weight at least on the undoubted fact that one of the meanings of "lésion" in French is "modification de la structure d'un tissu vivant sous l'influence d'une cause morbide". See, for instance, the opinion of the Supreme Court in Eastern Airlines (499 U.S. at p. 536) referring to the definition in Volume 3 of the Grand Larousse de la Langue Française. It appears to me, however, that the word "lésion" cannot have that meaning in the present context since that meaning contains within itself a reference to injury to the body - it involves a change in the structure of "a living tissue" under the influence of a morbid cause. It would therefore be superfluous to add "corporelle" to describe such a "lésion". It follows that, in the relevant phrase, "lésion" must be used in the wider legal sense given, for instance, in Volume 5 of Le Grand Robert de la Langue Française (2nd edition 1985), "atteinte portée aux intérêts de [quelqu'un]". In that sense it is a synonym for "dommage, préjudice, tort". That is a somewhat general meaning and, if left unqualified, it could, for instance, cover pure financial harm. Indeed that meaning underlies the more technical use of the term in French law (e.g. in Article 1118 of the Code Civil) to refer to the prejudice suffered by one of the parties to an unequal bargain ("enorm lesion" in Scots law). If therefore the phrase in Article 17 had simply read "toute autre lésion", despite its juxtaposition with "mort" and "blessure", it might have been open to the interpretation that it was intended to be of wide import. The effect of the qualification introduced by the adjective "corporelle" is, however, to limit the scope of the term "lésion" and to make it clear that Article 17 applies, not to all kinds of "lésions", but only to those which are "corporelles". In other words, I conclude that the adjective is used to show that the term "lésion" is not intended to cover each and every kind of harm or injury which a passenger might suffer as the result of an accident; rather, it is meant to cover any kind of injury falling into the narrower range described as "corporelle" (bodily). In particular the adjective would have served to exclude pure patrimonial, as opposed to personal, injury.
[27] That being so, I would not accept the argument of the majority of the New York Court of Appeals in Rosman v. Trans World Airlines 34 N.Y. 2d 385 (1974) at pp. 396 - 397 where Rabin J. said:
"But the relationship between 'mind' and 'body' - a stubborn problem in human thought - is not the question before us nor one which we would presume to decide. Rather, in seeking to apply the treaty's terms to the facts before us, we ask whether the treaty's use of the word 'Bodily', in its ordinary meaning, can fairly be said to include 'mental'. We deal with the term as used in an international agreement written almost 50 years ago, a term which even today would have little significance in the treaty as an adjective modifying 'injury' except to import a distinction from 'mental'. In our view, therefore, the ordinary, natural meaning of 'bodily injury' as used in article 17 connotes palpable, conspicuous physical injury, and excludes mental injury with no observable 'bodily', as distinguished from 'behavioural', manifestations."
Contrary to what is said there, it appears to me that, in the context of the Convention, the adjective "bodily" or "corporelle" has significance even if it is not treated as importing a distinction between physical and mental injuries: it serves to import a distinction between a wider undefined class of injury, which would include both bodily and (purely) patrimonial injury, and the narrower class of bodily or personal injury. That argument gains support, as I discuss below, from the need to define the scope of Article 17 in relation to Articles 18 and 19.
[28] It would, accordingly, be wrong to infer, simply from the use of the adjective "corporelle", a specific intention on the part of the signatories to exclude mental or psychological as opposed to bodily injury. In the absence of any indication that the words "lésion corporelle" were being used in order to make that exclusion, they should be interpreted in accordance with the canon of construction laid down by Lord Macmillan in Stag Line v. Foscolo Mango Co. Ltd. which I quoted above. On that basis I see no reason why the phrase "any other bodily injury" or "toute autre lésion corporelle" should be interpreted narrowly; rather, it should be interpreted as covering any injury whatever which can properly be regarded as affecting the body. So construed, the phrase would be capable of including psychological injury.
Indications of a Contemporanea Expositio
[29] I find some support for that approach in certain indications that from the very beginning, in the German-speaking countries at least, the phrase "toute autre lésion corporelle" was interpreted broadly and in a way which would have permitted recovery for psychological injury.
[30] Particularly significant in this regard is the official German-language translation which was prepared as the result of co-operation among officials of Germany, Austria and Switzerland and which must therefore be indicative of a view taken in all three countries. It was published in 1933. The translation interprets the phrase "toute autre lésion corporelle" in a broad rather than a narrow way. It refers to loss
"der dadurch entsteht, daß ein Reisender getötet, körperlich verletzt oder sonst gesundheitlich geschädigt wird ...."
According to that translation, the article applies to the situation where the passenger is "bodily wounded or otherwise damaged in his health".
[31] It is apparently thought that Dr. Otto Riese, a member of the German delegation in all the negotiations from the Paris conference in 1925 onwards, may have had a hand in the translation. See R. H. Mankiewicz, The Liability Regime of the International Air Carrier (1981), p. 146. Since Riese was a senior official in the German Ministry of Justice, the supposition does not seem implausible. Subsequently he became a professor in Lausanne and wrote extensively on air law. After the Second World War he was the head of the German delegation at the conference which gave birth to the Hague Protocol in 1955. Eventually he became the first German Judge on the European Court of Justice. In various writings Riese advanced the same interpretation of Article 17. Indeed, by the end of 1929, shortly after the Warsaw Convention was signed and some time before the German translation was drafted, Riese was already of the view that the phrase should be given this wide scope. In a general article describing the effect of the Convention ("Das Warschauer Übereinkommen zur Vereinheitlichung gewisser Regeln über die internationale Luftbeförderung" (1929) 58 Juristiche Wochenschrift 3440), he said (at p. 3442) that
"Die Frage, welche Personen im Falle der Tötung oder Verletzung bzw Gesundheitsbeschädigung eines Reisenden anspruchsberechtigt sind, bleibt nach ausdrücklicher Vorschrift des Übereinkommens offen..." (emphasis added).
Of course, Riese was not discussing the triggers of liability, but rather the persons who are entitled to recover where the carrier is liable under Article 17. None the less the use of the word "Gesundheitsbeschädigung" does show how, in the immediate aftermath of the conference, he thought the critical phrase in the French text should be interpreted. The following year, in another general article on the Convention Riese made a similar passing reference to "Gesundheitsbeschädigung": O. Riese, "Zum Warschauer Luftprivatrechtsabkommen" (1930) 4 Zeitschrift für Ausländisches und Internationales Privatrecht 244 at p. 255.
[32] Nor did he change that view with the passing years. In 1949, in a passage from his Luftrecht, p. 442, quoted in Palagonia Sup. 442 N.Y.S. 2d at p. 673, he commented:
"Nach Art. 17 WAbk ist der durch Tötung, Körperverletzung und sonstige Gesundheitsbeschädigung eines Reisenden entstandene Schaden zu ersetzen. (Über den Umfang der Ersatzpflicht siehe unten III 6.)
Durch die Erwähnung der Gesundheitsbeschädigung (eine etwas freie Übersetzung des französischen Textes, der von 'lésion corporelle' spricht) neben der Körperverletzung ('blessure') soll offenbar klargestellt werden, dass auch jede Beeinträchtigung des physischen oder psychischen Wohlbefindens einzubeziehen ist, die keine mechanische Einwirkung zur Ursache oder keine anatomische Veränderung im Körper zur Folge hat."
Riese is clearly commenting on the German translation of Article 17 and acknowledges that what - making a noun out of an adverb in the German text - he still refers to as "Gesundheitsbeschädigung" is a somewhat free translation of "lésion corporelle". But he says that by referring to damage to health the German-language text makes it clear that any damage to physical or psychic well-being is to be included, even though it is not caused by a mechanical impact and even though it does not have as a consequence any anatomical change in the body. Not surprisingly, the same approach is to be found in the shorter French text which appeared two years later, Riese and Lacour, Précis de droit aérien international et suisse, p. 264:
"La discrimination faite par le texte entre 'la blessure' et 'toute autre lésion corporelle' démontre que la convention doit être applicable, non pas seulement à la blessure proprement dite, mais également à toute atteinte à la santé du passager, telles que les conséquences d'un choc psychique ou d'un mal de l'air."
Again he sees the terms of Article 17 as being wide enough to cover any injury to health, including the consequences of "a psychic shock". It would be somewhat surprising, to say the least, if such a distinguished expert as Riese had felt able consistently to advance that interpretation while conscious either that his fellow delegates at Warsaw had actually chosen the words "lésion corporelle" with the settled aim of excluding it or that it was wholly inconsistent with the meaning of those words.
[33] In Eastern Airlines 499 U.S. at p. 541, referring to the discussion of Riese's view by a lower court, the Supreme Court professed themselves reluctant to place much weight on
"an English translation of a German translation of a French text, particularly when we have been unable to find (and the parties have not cited) any German, Austrian, or Swiss cases adhering to the broad interpretation of Article 17 that the German delegate evidently espoused."
Perhaps for somewhat similar reasons, in the hearing before us, counsel did not explore this matter. But, for the reasons which I have given, I do not consider that either the official German-language translation or Riese's views can be lightly dismissed. While their significance should not, of course, be exaggerated, the translation and the excerpts from his writings tend to confirm that the expression "lésion corporelle" was not meant to be construed narrowly and, more particularly, that it was not used with the intention of excluding mental or psychological injury.
Travaux Préparatoires
[34] Even those courts which have concluded that the term "bodily injury" should be interpreted as excluding liability for pure psychic injury have acknowledged that the wording is at best ambiguous. See, for instance, Eastern Airlines 499 U.S. at p. 542. Nor did counsel for the defenders seek to persuade us otherwise. Courts have sought support for their narrower interpretation from other sources. In particular the Supreme Court concluded that their interpretation "is consistent, we think, with the negotiating history of the Convention" (499 U.S. at p. 542).
[35] So far as the use of travaux préparatoires is concerned, the House of Lords has adopted a considerably more restrictive approach than is adopted, for instance, by the Supreme Court. In Fothergill Lord Wilberforce referred to a conclusion of the Advocate General in the French Cour de Cassation and expressed the view that there would be cases where the travaux could be used profitably. He added ([1981] A.C. at p. 278):
"These cases should be rare, and only where two conditions are fulfilled, first, that the material involved is public and accessible, and secondly, that the travaux préparatoires clearly and indisputably point to a definite legislative intention."
As Lord Wilberforce points out, on this test the cases where a court, as opposed to a legal adviser, will be able to find assistance in travaux préparatoires are likely to be few and far between since, if the travaux point clearly and indisputably to a definite legislative intention, the chances of a dispute about interpretation reaching the court are small. But the need for caution is justified, if only because delegates at a conference may not actually all share a common view on the point at issue and mere silence on the part of other delegates in the face of an assertion by one of their number may not necessarily point to assent. While at the Bar, both Lord Wilberforce and Lord Diplock had experience of such conferences. Indeed, Lord Wilberforce was a member of the British delegation at the Hague Conference in 1955. Their experience clearly helped to shape the guidance which they gave on this matter. See, for instance, Lord Diplock's observations in relation to amendments ([1981] A.C. at p. 283 F). Lord Roskill concurred with Lord Wilberforce and Lord Diplock on this point, while Lord Scarman adopted a similarly restrictive approach ([1981] A.C. at p. 294 H - 295 A). Lord Wilberforce restated his two conditions in Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Co. 1985 SC (HL) 1 at p. 10 in a passage with which all the other members of the House, apart from Lord Keith, who did not find it necessary to deal with the matter, concurred.
[36] Applying that approach in this case, this court would simply have to conclude that the travaux préparatoires could be of no assistance since it is accepted that the question of psychological injury is not discussed in them. That is indeed the primary conclusion which I reach and apply. None the less, in a case where we have to consider the authoritative decision of a court such as the United States Supreme Court which does in practice look at the matter more broadly, it would seem somewhat unrealistic to ignore the arguments deployed by those courts on the basis of their more relaxed approach to the travaux.
[37] The history of the matter can be explained relatively briefly. At a conference called by the French President in Paris in 1925 the delegates adopted a "Projet de Convention" which is reproduced in the report published by the French Foreign Office under the title Conférence Internationale de Droit Privé Aérien (1926). Article 5 (Conférence Internationale, p. 79) opened with the very general words:
"Le transporteur est responsable des accidents, pertes, avaries et retards."
Following that Conference a new body, the Comité International Technique d'Experts Juridiques Aériens ("C.I.T.E.J.A."), was set up. The C.I.T.E.J.A. appointed commissions to work on different aspects of the law, the liability of the carrier being assigned to the Second Commission. During the second session of the C.I.T.E.J.A. in Paris in April 1927 no definitive work was done by the Second Commission but its rapporteur, the Belgian delegate, Mr. Henry de Vos, reported that the Swiss delegate had suggested that any new text of Article 5 could distinguish the heads of responsibility by reference to whether they concerned people or things. The text which he had proposed was adopted (C.I.T.E.J.A., Compte Rendu de la 2e Session, p. 64). The Second Commission met again later that year and, before the third session in Madrid in May 1928, a fresh draft had been circulated to the experts from the various countries. In his report of 15 May 1928 Mr. de Vos explained the thinking behind the changes which had been introduced. See C.I.T.E.J.A, Compte Rendu de la 3e Session pp. 103 et seq. It is clear that the main concern had been to formulate a basis of liability which would be fair to passengers but not unduly burdensome to carriers. Notable by its absence from his report is any mention of any issue about the kind of personal injury which would be covered. But the draft Article 22, which was put before the meeting and adopted (Compte Rendu, pp. 45 - 47), was in these terms:
"Le transporteur est responsable du dommage pendant le transport:
a) en cas de mort, de blessures ou de toute autre lésion corporelle
subie par un voyageur;
b) en cas de destruction, perte ou avarie de marchandises ou de
bagages;
c) en cas de retard subi par un voyageur, des marchandises ou des
bagages."
The suggestion of one of the German delegates that the word "survenu" should be inserted after "dommage" was accepted. Some discussion followed on the questions of delay and of liability for any personal possessions which the passenger might have with him. After that, the article was adopted. Presumably it represents some elaboration of the text of the article which had been proposed by the Swiss delegate and adopted at the second session in April 1927. In any event in this passage we see the first appearance in the minutes of the wording which is of concern in the present dispute. There is no need to enquire further as to whether or not the plural "blessures" - which might suggest specific wounds rather than the more general "wounding" - had been a deliberate choice by those who drafted the provision rather than a misprint since, by the time that the C.I.T.E.J.A. sent the revised draft of the Convention - accompanied by another report by Mr. de Vos - to the French government in October 1928, Article 21 contained the singular "blessure". The French government circulated the text and report to the other governments.
[38] When the second international conference convened at Warsaw in October 1929, therefore, various governments had already sent in proposed amendments, whether of a drafting or of a substantive nature. These were marshalled by the organisers and considered by the delegates. It can be seen (II Conférence Internationale de Droit Privé Aérien (1930), p. 181) that none of the proposed amendments to Article 21 concerned the words with which we are concerned. During the fourth session (II Conférence Internationale, pp. 46 et seq.) there was considerable discussion about the period of the carrier's liability - a point which arose under Article 20 in the draft but which was seen to have implications for the drafting of other articles, including Article 21. Once the discussion had been completed and the votes taken, the matter was remitted to the drafting committee. So, at the seventh session on 10 October the delegates had before them the fresh draft of the convention which the committee had prepared in the light of the amendments adopted and the discussion in the earlier sessions. In this fresh version Article 17 had taken on its final form. The president of the drafting committee, Mr. Giannini, was at pains to stress that the changes were mere changes in form and not in substance (II Conférence Internationale, pp. 185 - 186). The article was immediately adopted without comment. Once certain drafting changes had been made to other articles, the Convention, including Article 17 in this form, was signed at the closing session on 12 October (II Conférence Internationale, pp. 149 - 153) .
[39] There is nothing in the history of the matter, so far as we can follow it in the travaux préparatoires, to indicate that the delegates, whether to the international conferences or to the meetings of the C.I.T.E.J.A., at any time discussed the scope of the personal injuries for which the carrier would be liable nor in particular that they were in any way concerned about the possible adverse effects on carriers of extending liability to pure psychological injury. For instance, there is no sign that they ever contemplated the spectre that, if psychological injury had been feigned, "the then struggling airlines could easily have been bankrupted": Rosman v. Trans World Airlines 34 N.Y. 2d at p. 403 per Stevens J. dissenting.
[40] In Eastern Airlines the Supreme Court recorded that one possible explanation for the lack of any discussion of mental injuries was that the drafters simply could not contemplate a psychic injury unaccompanied by physical injury (499 U.S. at p. 544). I find that extremely difficult to accept, given not only the language which the German delegate Riese was using in his writings from 1929 onwards but also the recent experience of shell shock and other psychological harm among combatants on both sides in the First World War.
[41] The Supreme Court appear to have attached more importance to another argument. In their opinion they drew attention to the undoubted fact that there was a certain narrowing in the provisions on liability between Article 5 in the 1925 Projet de Convention and Article 17 in the final Convention. They commented (499 U.S. at p. 543):
"Although there is no definitive evidence explaining why the CITEJA drafters chose this narrower language, we believe it is reasonable to infer that the Conference adopted the narrower language to limit the types of recoverable injuries."
That inference is indeed inevitable but in itself it does not assist in solving the question at issue, since it does not tell us how much more limited the delegates intended the liability of the carrier to be - which is the crucial point. For what it is worth, however, the history shows that the more restrictive wording emerged at a time when the treatment of liability was being elaborated, but a single draft article (Article 22) still covered all forms of liability - (a) for death and personal injuries, (b) for destruction and loss of cargo or luggage and (c) for delay. In that context the description of the "lésion" as "corporelle" can be seen as necessary to make it clear that paragraph (a) is confined to death and personal injuries and does not cover, for instance, loss or damage to the passenger's personal effects or the other types of loss in paragraphs (b) and (c). This would tend to support the argument advanced above as to the function of "corporelle" in Article 17, where it now helps to define the ambit of that Article, which does not overlap with Articles 18 (loss and destruction of cargo and luggage) and 19 (delay). Article 22 applies a particular limit to the damages which can be recovered from the carrier in the case of liability under Article 17.
[42] The Supreme Court supply the missing element in the travaux préparatoires by noting (499 U. S. 544 - 545) that in previous decisions and writings two explanations had commonly been offered for why the subject of mental injuries never arose in the Convention proceedings:
"(1) many jurisdictions did not recognize recovery for mental injury at that time, or (2) the drafters simply could not contemplate a psychic injury unaccompanied by physical injury.... 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 would have felt compelled to make an unequivocal reference to purely mental injury if they had specifically intended to allow such recovery."
The Supreme Court go on to refer to the history of the Berne Convention Concerning the Carriage of Passengers and Luggage by Rail (1952) which was subsequently amended specifically to include psychological injury.
[43] The argument is that the expression "lésion corporelle" is ambiguous and that, since many systems at the time did not recognise recovery for pure mental injury, the draftsmen would have felt compelled to make an express reference to it if they had intended to include it. That is, of course, a possible construction to put on the historical record. Another possible construction would be to say that, if the delegates actually wished to exclude liability for pure psychological injury, those who would have been most concerned to clarify the position would have been the delegates of countries whose domestic legal systems actually recognised the possibility of awarding damages for pure psychological injury. It would have been passengers suing in their courts who would have recovered such damages. Passengers suing in courts of a legal system which did not award damages for pure psychological injuries would not have recovered. I do not, for a moment, assert that this is the correct way to construe the silence in the Warsaw minutes. All I am concerned to do is to point out that, since the record is silent, one can devise various hypotheses to explain that silence. But they are simply hypotheses. The argument put forward by the Supreme Court is ultimately based on speculation rather than on fact.
[44] Therefore, even if one applied a wider approach to the use of travaux préparatoires, they would not in my view provide a sound factual basis for inferring that the signatories' intention was to limit the scope of "bodily injury" so as to exclude psychological injury.
Subsequent History of the Convention
[45] The defenders argued that the subsequent history of the Warsaw Convention supported their contention that "bodily injury" should be interpreted as excluding psychological injury. The most significant argument was based on the discussion at the eighth session of the legal committee of the International Civil Aviation Organisation in Madrid in September 1951. Excerpts from the minute of the American delegation were reproduced in (1952) 19 Journal of Law and Commerce 70. Among the excerpts we find this passage:
"There was also a discussion with respect to the type of personal injury which should be covered by the proposed convention. The Committee determined that it should not make specific provision for mental injury in the sense of emotional upset or disturbance unassociated with bodily injury. The Committee also voted to adopt the principles of the official French text of Article 17 of the existing Convention with, however, the substitution of the words "affection corporelle" for the words "lésions corporelle" [sic] where the latter appeared in that text. It was not clear from the discussion in the Committee what the accurate translation of this language in English might be, or even that the English "bodily injury" did not already cover the same ground. The discussion did make it apparent, however, that its purpose was to make certain that physical injury which was not necessarily associated with a "rupture of bodily tissues," such as, for example, lung congestion or muscular paralysis resulting from the discharge of CO2 into the cabin of the aircraft, was covered in the proposed convention, whereas it was felt there might be some doubt under the French "lésions" [sic]."
[46] The official minute of the proceedings is to be found in the International Civil Aviation Organisation, Legal Committee Seventh Session (Madrid, 11 September - 28 September 1951) Minutes and Documents (Doc 7229-LC/133 1951), pp. 136 - 137, the minute of the Twentieth Meeting on 24 September 1951. The British representative was Mr. K. M. Beaumont who was immensely experienced in air law matters and had indeed been the legal adviser to Imperial Airways Ltd. at time of the Warsaw Conference and up until the Second World War. The minute records:
"Mr. Garnault (France) explained why he wished to replace the word 'lésion' by 'affection corporelle'. The expression 'lésion' presupposed a rupture in the tissue, or a dissolution of continuity, while the expression 'affection' was more extensive. Without going into technical details, he thought that there could be concrete cases where, without there being a 'lésion' in the tissues or a break in the continuity of the tissues, there could however be mental illness. But there were other concrete examples. A passenger might suffer from a lung congestion because of the breakdown of the heating apparatus of the aircraft. If it were decided that such cases should be covered, too narrow a terminology should not be used. He did not know whether the lung congestion would be caused by a 'lésion corporelle" or simply by a disturbance of the lung tissues. He would, therefore, delete the narrow expression 'lésion' and substitute the broader expression 'affection'.
Mr. Cavalcanti (Brazil) and Mr. Salvador Merino (Spain) seconded this proposal, the latter proposing the word 'perturbación' for the Spanish text."
There followed a discussion of another matter and then the minute records that
"Mr. Nunneley (United States) said that if Mr. Garnault's proposal implied the
inclusion of mental injury or emotional disturbances or upsets which were not connected with or the result of bodily injury, he must oppose such an extension of the convention. The phrase 'or other bodily injury' [sic] was sufficient to include the types of injury to be covered. He was not clear whether the word 'lésion' used in the French text applied only to bodily injury. He agreed that the carrier should be liable for injury caused where carbon dioxide was released in the cabin of the aircraft."
"Mr. Drion (Netherlands), in discussing the French proposal, asked why there
should be a distinction made between bodily and mental injury. In one and the same accident some passengers might suffer corporal injuries, while others might receive a mental shock necessitating their being brought to a hospital. There was no reason why the hospital expenses of the latter passengers should not be paid by the carrier if he were liable for the similar expenses incurred by the other passengers.
The Committee agreed by a vote of 12 for and 2 against to adopt the French proposal to replace the word 'lésion' in Article 17 of the Warsaw Convention by the expression 'affection corporalle' [sic]."
[47] The views of the French delegate about the interpretation of the phrase "lésion corporelle" do indeed support the narrower interpretation of those words. Since he would be a native speaker of the language, they must carry a certain weight. But, taken as a whole, the legal debate at Madrid shows that by 1951 there was no settled view that the words in Article 17 were to be interpreted as excluding psychological injury. That debate proceeded on the basis of a report which the Committee had requested from Mr. Beaumont, two years before, at their meeting in Montreal. In an article recording some reflections which had been prompted by his work on the report, he records (16 Journal of Air Law and Commerce at 402) that
"It is not clear if mental injury is covered by the Article, for instance anything ranging from temporary mental derangement to permanent madness."
Again, I find it hard to believe that, if the original signatories had had a settled intention or view on the point in the negotiations leading up to the Convention, this would not have been known to the relevant official circles, including Mr. Beaumont and the other members of the Legal Committee of the I.C.A.O.
[48] A few years after the meeting in Madrid, at the twenty-first session of the negotiations which were to result in the Hague Protocol (1955), the Greek delegate proposed to amend Article 17 to refer to "any other mental or bodily injury". The minute records that he said
"It was not clear whether mental injury suffered by a passenger was covered when such injury was not connected with any physical damage. For example, through fear, a passenger might suffer from great shock which might result in mental disorder. With a view to avoiding difficulties in the application of the Convention, he proposed ...."
The proposal was not seconded. The passage shows that the point of interpretation was still not settled. In those circumstances the fact that the proposal was not seconded can safely be taken only as an indication that the conference delegates were content to leave the matter to be determined by the courts.
[49] The Hague Protocol introduced an amended version of Article 3 into the Warsaw Convention. It deals with the notice which a passenger's ticket must give of the limitation of the carrier's liability for injuries to passengers under the Convention. The French text refers to the Convention
"qui limite la responsabilité du transporteur en cas de mort ou de lésion corporelle"
while the English text speaks of the Convention which
"in most cases limits the liability of carriers for death or personal injury".
I would reject any argument about the interpretation of "lésion corporelle" in Article 17 based on the fact that the equivalent phrase is translated as "personal injury" in Article 3. Article 3 is dealing with the kind of brief indication which should be given on a ticket. In that context the phrase is being used as a shorthand reference to the liability laid down in Article 17. That shorthand reference should be interpreted in the light of Article 17 rather than the other way round. On this point I would respectfully adopt the reasoning of the Supreme Court in Eastern Airways 499 U.S. at pp. 547 - 549.
[50] It also appears to me that the Supreme Court were correct to reject (499 U.S. at pp. 549 - 550) any argument based on the amendments proposed by the Guatemala City Protocol where the word "blessure" was to be deleted and "personal injury" was to replace "bodily injury" in the English version. While, if viewed as mere clarification, the proposed amendments could support the view that "lésion corporelle" was always intended to be interpreted broadly, equally, if viewed as making a substantive change, they could support the view that the correct interpretation of "lésion corporelle" in Article 17 had been the narrow one. Especially since the Protocol did not muster much support, it provides no clear guidance either way.
[51] The need for caution in using proposals for amendment as a guide to interpretation is emphasised by the Montreal Convention which was signed on 28 May 1999 and which has not yet, of course, come into force in our law. The convention was drafted in English and Article 17(1) is in these terms:
"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 French translation reads:
"Le transporteur est responsable du préjudice survenu en cas de mort ou de lésion corporelle subie par un passager, par cela seul que l'accident qui a causé la mort ou la lésion s'est produit à bord de l'aéronef ou au cours de toutes opérations d'embarquement ou de débarquement."
In the German translation the reference is to a passenger who is "getötet oder körperlich verletzt" - the (expressly more generous) translation "gesundheitlich geschädigt" not having been adopted on this occasion.
[52] Although there are, as yet at least, no published travaux préparatoires for the Montreal Convention, counsel for the defenders were in a position to put before the court a short document, which they said had been produced under the aegis of the chairman of the conference. It stated:
"The Travaux Préparatoires for the Montreal Convention on Air Carrier Liability should include the following four statements relating to paragraph 4 of Article 3, paragraph 1 of Article 17, paragraph 1 of Article 22 and paragraphs 2 and 3 of Article 33:-
...
2. With reference to Article 17, paragraph 1 of the Convention,
the expression 'bodily injury' is included on the basis of the fact that in some States damages for mental injuries are recoverable under certain circumstances, that jurisprudence in this area is developing and that it is not intended to interfere with this development, having regard to jurisprudence in areas other than international carriage by air."
This demonstrates that the change in wording is not actually intended to make a change from the interpretation of the current Article 17, and that the signatories were content to leave it to the courts to continue the process of working out the jurisprudence on the inclusion of liability for mental injuries under the Article. In this respect at least, the delegates appear to me to have followed an understandably pragmatic approach which may well also have been followed in practice on earlier occasions when proposals were advanced to amend the text. Moreover, the attitude of the delegates in Montreal certainly does not support any suggestion that there had been a settled official view that the only proper interpretation of Article 17 of the Warsaw Convention was one which excluded all liability for psychological injury. Most importantly, perhaps, the delegates' official view shows that they were quite prepared to countenance the situation, which has developed under the Warsaw Convention, where the courts of different States deal with damages for psychological harm in different ways. Their approach appears to me to be consistent indeed with the intention of the delegates at the Warsaw Conference who did not seek to impose a uniform system of assessing damages, being content that the cap on the recoverable damages provided sufficient uniformity for carriers and their insurers.
[53] In Eastern Airways the Supreme Court refer to the effect of their interpretation in the context of the Montreal Agreement (1966), which does not actually amend the Warsaw Convention but is simply an agreement applying to flights with connecting points in the United States. Where it applies, the cap on liability under Article 22 is lifted and the defence under Article 20 is not available to carriers. The effect is to create a form of strict liability. At the first point in their opinion where they deal with the Agreement (499 U.S. at p. 549), the Supreme Court observe that, since it is not a treaty but simply an agreement, it
"does not and cannot purport to speak for the signatories to the Warsaw Convention. Second, the Montreal Agreement does not purport to change or clarify the provisions of Article 17."
They return to the matter in a passage near the end of their opinion where, having concluded that "lésion corporelle" should not be treated as covering purely psychic injury, they add:
"Moreover, we believe our construction of Article 17 better accords with the Warsaw Convention's stated purpose of achieving uniformity of rules governing claims arising from international air transportation.... As noted, the Montreal Agreement subjects international carriers to strict liability for Article 17 injuries sustained on flights connected with the United States.... Recovery for mental distress traditionally has been subject to a high degree of proof, both in this country and others. See Prosser and Keeton on Torts, at 60 - 65, 359 - 361 (American courts require extreme and outrageous conduct by the tortfeasor); Fleming 49 - 50 (British courts limit such recovery through the theory of foreseeability); Miller 114, 126 (French courts require proof of fault and proof that damage is direct and certain). We have no doubt that subjecting international air carriers to strict liability for purely mental distress would be controversial for most signatory countries. Our construction avoids this potential source of divergence."
[54] I rather think that this passage is meant as nothing more than a comment on the outcome (obviously thought to be happy) which the Court's interpretation happens to have achieved in cases of strict liability under the Montreal Agreement. If so, it adds nothing of significance for present purposes. But if the passage is intended as an argument in favour of the interpretation adopted by the Supreme Court, then in my view the argument should be rejected. The effect of a particular interpretation of "lésion corporelle" on the operation of strict liability under the Montreal Agreement can shed no light whatever on the intention of the signatories of the Warsaw Convention which was concluded some thirty-seven years earlier and provided the carrier with a defence under Article 20. The Supreme Court had indeed made exactly this obvious point in the earlier passage in their opinion.
All or Nothing
[55] At first it appeared to me strange that one point on which counsel for both parties were agreed was that this court should not adopt the position taken by the Lord Ordinary. He had rejected liability for pure psychological injury but had held, it will be recalled, that there could be liability for physical injuries even if they were merely the result of shock or mental injury inflicted by the accident. Counsel for the pursuer said that the Lord Ordinary should have gone further and held that there could be liability for pure psychological injury while counsel for the defenders contended that he should not have contemplated the possibility of liability for physical injury if it was the result of shock or mental injury inflicted by the accident. The reason why counsel entrenched themselves in these diametrically opposed positions became clearer as the argument developed.
[56] In deciding as he did, the Lord Ordinary followed the decision of the New York Court of Appeals in Rosman. The first plaintiff, Mrs. Rosman, had been a passenger on an aircraft which was involved in a hijacking, with the result that she was held captive in or near the aircraft for six days before being taken to a hotel and released. Mrs. Rosman claimed that, as a result of the forced immobility, she developed a backache, swollen feet and a large discolouration of her upper legs and back. She also claimed to have developed boils and skin irritation as a result of inadequate sanitation. In addition she stated in her affidavit (34 N.Y. 2d at p. 388):
"[as] a result of the hijacking, I have become highly nervous, tense, anxious and extremely depressed. I have become irritable to my husband and children. I have difficulty in sleeping at night. I have been compelled on my physician's prescription, to take tranquilizers, among other things...."
Another plaintiff, Mrs. Herman, claimed (34 N.Y. 2d at p. 388) that
"she lost much weight, slept very little, became extremely frightened and developed a skin rash. As a result of the hijacking, I have become highly nervous, tense and anxious, and I have ... sustained other injuries. I have been and am currently under a physician's care. I have been compelled to take, on his prescription, tranquilizers, among other things."
[57] The majority of the Court of Appeals held that the plaintiffs should be allowed to prove damages for palpable, objective bodily injuries suffered, whether caused by psychic trauma or by the physical conditions on the aircraft, irrespective of impact, but not for psychic trauma alone nor for the non-bodily or behavioural manifestations of that trauma. I have already recounted their reasons for rejecting the plaintiff's claim based on psychic trauma alone. Rabin J. explained their reasoning in allowing the plaintiffs' claims to go to trial on this more limited basis (34 N.Y. 2d at pp. 399 - 400):
"A faithful reading of the terms of the Convention leads, we believe, to the following conclusions. A claim for damages under article 17 arises 'in the event ... bodily injury'. The claim must therefore be predicated upon some objective identifiable injury to the body. In addition, there must be some causal connection between the bodily injury and the 'accident'. In our view, this connection can be established whether the bodily injury was caused by physical impact, by the physical circumstances of the confinement or by psychic trauma. If the accident - the hijacking - caused severe fright, which in turn manifested itself in some objective 'bodily injury', then we would conclude that the Convention's requirement of the causal connection is satisfied. For example, if plaintiff Herman's skin rash was caused or aggravated by the fright she experienced on board the aircraft, then she should be compensated for the rash and for the damages flowing from the rash. It follows that, if proved at trial, she should be compensated for her mental anguish, suffered as a result of the rash, since this anguish would have flowed from the 'bodily injury'.
Thus, as we read article 17, the compensable injuries must be 'bodily' but there may be an intermediate causal link which is 'mental' between the cause - the 'accident' - and the effect - the 'bodily injury'. And once that predicate of liability - the 'bodily injury'- is established, then the damages sustained as a result of the 'bodily injury' are compensable, including mental suffering. At least to this extent, the treaty may be afforded a liberal interpretation which tends to support the rights which plaintiffs claim under it.... However, only the damages flowing from the 'bodily injury', whatever the causal link, are compensable. We are drawn to these conclusions by the clear import of the terms of article 17. Those terms, in their ordinary meaning, will not support plaintiffs' claim that psychic trauma alone, or even the psychic trauma which caused the bodily injury, is compensable under the Warsaw Convention" (citations omitted).
Similarly, after an exhaustive analysis, in Jack v. Trans World Airways 854 F. Supp. 654 at p. 668 District Judge Caulfield concluded:
"Plaintiffs with impact injuries may recover for their impact injuries and the emotional distress flowing only from the physical injuries. They may also recover for the physical manifestations of their emotional distress. Plaintiffs with physical manifestations may recover damages for the manifestations and any distress flowing from the manifestations, but may not recover damages for the emotional distress that led to the manifestations. In both instances, the emotional distress recoverable is limited to the distress about the physical impact or manifestation, i.e., the bodily injury. Recovery is not allowed for the distress about the accident itself."
[58] Counsel for the defenders argued that the New York Court of Appeals in Rosman - and other judges, including the Lord Ordinary, who had followed them - had erred in holding that a carrier was liable under Article 17 for physical manifestations of any emotional distress which passengers might have suffered in an accident. Mr. Campbell put the point in a variety of ways. In this part of the argument he started, of course, from the assumption that pure mental or psychological injury was not "bodily injury" in terms of Article 17. By reference to Lord Macmillan's analysis in Bourhill, he argued that Article 17 applied only to injuries caused by direct impact and not to those, even if physical in nature, caused by shock or mental distress due to something taken in by the eye or ear. Alternatively, Mr. Campbell said that a physical manifestation does not trigger liability if it results from an event, such as shock or mental distress, which does not itself trigger liability. Any physical manifestation was therefore too remote to attract liability. In any event the notion of a physical manifestation of shock or mental injury was too vague and uncertain to constitute a proper basis for liability, especially in a Convention which had been designed to introduce certainty into the law.
[59] I was unpersuaded by Mr. Campbell's argument that mental shock could never constitute the causal mechanism for "bodily injury" under Article 17. In the first place, it appears to me that causation is really a matter for domestic law and not a matter which is regulated by the Convention. But even applying his view that the Convention governs the matter, Mr. Campbell readily conceded that, if someone died of shock due to an accident, this would give rise to liability under Article 17. That concession could not have been withheld. If an aircraft was involved in an accident and in the accident a passenger died, it could never have been the intention of the signatories of the Convention that the passenger's relatives would have a claim if he died from a broken neck but not if he died of a heart attack brought on by terror.
[60] But, once that concession is made - as Mr. Campbell readily acknowledged - it is difficult indeed to draw the line at death brought on by shock and to deny recovery for lesser injuries caused in the same way. If a carrier is liable to the passenger who dies as a result of a heart attack brought on by terror caused by an accident, it hardly seems sensible to put a premium on death, by holding that there is no liability to a passenger who survives but subsequently suffers from a heart condition brought on by terror. Similarly, it seems unsatisfactory - Mr. Moynihan preferred the description "offensive" - to have to hold that the carrier is not liable to a lady who suffers a miscarriage as a result of her shock caused by an accident. Moreover, as I have pointed out already, the wording of the authentic French text shows that all three conditions - death, wounding and bodily injury - are treated in the same way, as being suffered (subie[s]) by the passenger. There is therefore no basis in the article for distinguishing, so far as causation is concerned, between death and bodily injury. In any event, provided that causation can be proved, there appears to be no reason in legal policy to deny liability simply because the injury is caused without physical impact. To hold otherwise is to introduce into this area of our law the kind of distinction between damnum caused corpori corpore and damnum caused corpori non corpore which once flourished in relation to the lex Aquilia in Roman law and which eventually found an echo in the distinction between trespass and case in English law. Whatever virtues these doctrines may have had in their day and in their context, they have no place in the application of Article 17. I am equally satisfied that physical injuries caused by psychological injury cannot be regarded as being ipso facto too remote. For these reasons I reject Mr. Campbell's argument that carriers are not liable for physical injuries caused by shock or mental distress. It follows that I reject his contention that, in so far as they recognised such a liability, the decisions of the Lord Ordinary and of the courts in Rosman and Jack were incorrect. I would therefore refuse the defenders' cross reclaiming motion.
[61] Mr. Moynihan's criticism of the decisions in Rosman and Jack was, of course, the reverse of Mr. Campbell's: the courts had not gone too far; they had not gone far enough; the liability was not too extensive; it was too limited. In terms of these decisions there was no liability to a passenger who suffered great psychological damage unless it resulted in some particular physical symptom. That physical symptom might be trivial, the least of the passenger's sufferings, and yet the law would concentrate on the physical symptom and disregard the major psychological injury giving rise to it. If you asked a passenger like Mrs. Herman what was wrong with her, she would be unlikely to say, for instance, "I've got a rash" but would, rather, refer to her condition as a whole. The law should reflect that reality by including within the scope of "bodily injury"all the effects of an accident on her body, both the physical and the psychological. Without trespassing on centuries of debate on the mind-body divide, Mr. Moynihan was content to make the point that, in a very real sense, even purely psychological injury is suffered within the victim's body and, for that reason, can be described as a "bodily injury".
[62] I found considerable force in Mr. Moynihan's criticism that, for the reasons that he gave, the focus of the Rosman approach which the Lord Ordinary adopted is inappropriate and therefore wrong. As Mr. Moynihan observed, it derives from a particular, literal, reading of the phrase "bodily injury" in Article 17 and its sole virtue is that it can be justified on those terms. Otherwise, it seems unsatisfactory. Indeed, as I have already noted, Mr. Campbell felt unable to support it, precisely because the distinctions which it entailed seemed so capricious. Of course, seemingly capricious distinctions can and do occur in the law. But what the Rosman approach requires us to believe is that, by using the phrase "any other bodily injury", the signatories of the Warsaw Convention actually intended to impose or refrain from imposing liability on this unsatisfactory basis which seems unlikely to work substantive justice for either the passenger or the carrier. For my part I find it hard indeed to persuade myself that such was the signatories' intention.
[63] The notion that this would have been the signatories' intention becomes all the more difficult to accept when one looks at cases where the passenger does indeed unquestionably suffer wounding or a bodily injury, even on the defenders' approach. Suppose, for instance, the passenger is so severely injured in an accident that his leg has to be amputated. In that event the carrier will be liable under Article 17 for the "damage sustained" by the passenger. As I have explained above, counsel for the defenders did not dispute that the quantification of that damage, including the determination of the heads of recoverable damages, would be a matter for the applicable law and not a matter to be regulated by the Convention. In any similar accident - say, a road accident - governed by Scots law, the victim could undoubtedly recover damages not merely for the pain of the injury and for the financial loss flowing from it, but also for the potentially great psychological effects, such as a deep clinical depression, to which the injury gave rise. Mr. Campbell argued that, even in such a case, the passenger could not recover damages for the psychological injury under Article 17.
[64] It is plain that such a conclusion could not be based on the absence of the necessary trigger for liability, since the passenger has suffered wounding or a bodily injury which leads to the psychological injury. The prerequisite of liability under Article 17 is therefore established. The only basis for saying that damages could not be recovered for the psychological injury would therefore be that the psychological injury did not fall within the scope of the term "damage" in Article 17. Mr. Campbell tentatively advanced such an argument in the form of an assertion that "damage" in Article 17 was to be equiparated with "death or wounding of a passenger or any other bodily injury suffered by a passenger". But such an argument is quite simply incompatible with the actual wording of the Article which is constructed on the basis that "damage" is something which the passenger sustains "in the event of" death, wounding or any other bodily injury. The damage and the events are distinct and the distinction cannot be elided. That being so, I can see no basis for saying that, where a passenger has been wounded or has sustained some other bodily injury, he cannot recover damages under all the heads, including psychological injury, which would apply in such a case according to the applicable law. That was indeed accepted by the courts in both Rosman and Jack.
[65] But, if that is truly the position, then it gives rise to results which are at once strange and hard to justify as elements in a coherent legislative scheme. For instance, in Rosman the court contemplated that the carrier would not be liable to the plaintiff for mental distress caused by the accident, but would be liable for a rash brought on by the mental distress and indeed for any mental distress brought on by the rash brought on by the initial mental distress. Mr. Campbell was not wrong when, in criticising the Lord Ordinary's decision, he described such an approach as overly analytical and unduly legalistic. Looking at the matter more broadly, I find it hard to see why the signatories of the Convention would have been prepared to allow recovery for mental injury in this kind of situation if they had set their face against liability for pure mental injury. After all, the justifications which can be advanced as alleged reasons for not recognising liability for pure mental injury - such as the difficulty of proof and the possibility of fraudulent claims - apply with much the same force to claims for psychological injury based on physical injury. Anyone with the slightest experience of ordinary actions for personal injuries knows that claims for alleged psychological sequelae, such as functional overlay, are often the most disputed elements in the case. So, a decision by the signatories to exclude only claims for pure psychological injury and to allow claims for psychological injury caused by bodily injury would leave wide scope for just the kinds of dispute which, we are told, it was designed to avoid. Again I have difficulty in believing that, if the signatories had truly adopted a policy of excluding liability for psychological injury, they would have done so in such an apparently ill thought out and haphazard fashion.
Conclusion
[66] Of course, the fact that the defenders' interpretation produces inconsistencies and results which are capricious does not necessarily show that it is wrong. But it does constitute a further reason for hesitating to ascribe to the signatories an intention which is nowhere to be descried in the minutes of their discussions and which does not appear, at least, to have subsequently entered into the established official lore of the ministries of the signatory states. Similarly, the fact that a distinguished member of the German delegation at Warsaw, Dr. Riese, consistently advocated an interpretation of Article 17 which was wide enough to include liability for what he called "psychic" injury makes me sceptical of the view that, whether consciously or subconsciously, the delegates at the meetings leading up to the Convention intended it to be read more narrowly. Nor do I find in the various later proposals to amend Article 17 any clear indication that psychological injury lay outside the range of "bodily injury". But, above all, I am not persuaded that the delegates at the various meetings leading up to the completion of the Warsaw Convention had in mind the distinction between bodily and mental injury, when they used the expression "lésion corporelle". It appears to me more plausible to suppose that their real intention was to limit liability under Article 17 to physical or bodily injury, as opposed to the wider class of injury which would have included not only physical and bodily injury but pure patrimonial injury also. For these reasons, while bearing in mind the weight of authority to the contrary and explicitly acknowledging the factors supporting the narrower interpretation, I have come to the view that, on the approach suitable for the interpretation of an international convention, the phrase "any other bodily injury" would indeed be apt to cover all injuries of any kind which could affect a person in his body. Those would include purely psychological injuries which an individual suffers, in a certain sense at least, within his body.
[67] I would accordingly refuse the defenders' cross reclaiming motion, allow the pursuer's reclaiming motion, recall the Lord Ordinary's interlocutor and allow the parties a proof before answer on the whole matter.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord President Lord Cameron of Lochbroom Lord Reed
|
01489/5/1995 OPINION OF LORD CAMERON OF LOCHBROOM in RECLAIMING MOTION FOR PURSUER in the cause PHILIP KING Pursuer and Reclaimer; against BRISTOW HELICOPTERS LIMITED Defenders and Respondents: _______ |
Act.: Moynihan, Q.C., Haldane; Balfour & Manson (Burnside, Kemp & Fraser, Aberdeen)
Alt.: Campbell, Q.C., Gilmore; Shepherd & Wedderburn, W.S.
12 July 2000
[1] The incident upon which the pursuer seeks to found as being the accident giving rise his claim in this action is described in his pleadings in the following terms:
"On or about 22 December 1993 at or about 11.09 am the defenders' helicopter, registered number G-BTCT, lifted off from the helideck of the Gryphon 'A' floating production platform located in the Beryl Oilfield in the North Sea. The pursuer was a passenger aboard the helicopter...The helicopter ascended to a height of approximately thirty five feet above the helideck. It hovered at that height for a short period, when the helicopter's two jet engines suddenly flamed out. The said failure was accompanied by a very loud banging noise. The helicopter rapidly descended towards the platform and landed heavily on the helideck. Immediately on landing, smoke engulfed the helicopter preventing the passengers on board including the pursuer from seeing outside the helicopter."
[2] The defenders admit that the helicopter's two engines suddenly failed and that it descended towards the platform and landed on the helideck. The defenders go on to explain that the most probable cause of the double engine flame out was instantaneous suction by both engines on take off of a quantity of snow accumulated on the sub-frame next to the air intake. The defenders also assert that the incident did not constitute an accident for the purposes of Article 17 of the Convention known as "the Warsaw Convention as amended at The Hague, 1955" ("the Convention"). They go on to aver that in any event they, their servants and agents took all necessary measures to avoid damage to the pursuer and in doing so the defenders make reference to Article 20 of the Convention and to the explanation tendered for the engine failure.
[3] Before the Lord Ordinary counsel for the defenders reserved the right to argue at any later stage of the action that the incident in question could not properly be described as an "accident". As recorded by the Lord Ordinary the debate was limited to the averments relating to the loss injury and damage sustained by each of the pursuers in the three actions then before him on the ground that each of the pursuers' claims was irrelevant because the nature of the injury and damage sustained by the pursuer did not entitle the pursuer to damages under Article 17 since each claim was in respect of emotional or psychiatric injury and so did not come within the description in Article 17 of "any other bodily injury suffered by a passenger".
[4] There is no dispute that at the relevant time the pursuer was being carried as a passenger aboard the defenders' helicopter. Accordingly for the purposes of the present appeal it is to be assumed that the pursuer has sufficient and relevant averments directed to two of the essential matters he must prove in an action founded on Article 17, namely, that he was a passenger and that an accident in the sense of an unusual event extraneous to him which was no part of the normal operation of the helicopter, had occurred (see the decisions of the United States Supreme Court in Air France v. Saks 470 U.S. 392 (1985 El Al Israel Airlines, Ltd v. Tseng 919 F. Supp. 155 (S.D.N.Y. 1996); 122 F. 3d 99 (2nd Cir. 1997); 525 U.S. 155 (1989)). As was said by Lord Justice Leggatt in Chaudhari v. British Airways plc (unreported, Court of Appeal, 16 April 1997):
"In principle, 'accident' is not to be construed as including any injuries caused by the passenger's particular, personal or peculiar reaction to the normal operation of the aircraft."
[5] The provisions of Article 17 both in its French text and in the English translation are set out in the opinion of your Lordship in the chair and I do not further rehearse them. I also gratefully adopt without further recital the history and the details of the relevant legislation set out in your Lordship's opinion and that of Lord Reed.
[6] For the pursuer it was submitted that within the scheme of the Convention the terms of Article 17 allowed the court seised of the action at the instance of the passenger or, in the case of death, of others deriving right of action from the passenger, to determine the recoverable heads of claim for which monetary damages was to be given up to the limit provided by the Convention. In doing so the court was entitled to determine in accordance with domestic law the questions of causation between the accident and the heads of claim - including whether and to what extent the causal link between the accident and the heads of claim has been proved. The causal link could be established by proving that the accident involved either direct physical impact upon the passenger (including invasion of the body through mouth or nose to produce disease or internal physical damage) or indirect impact by way of shocking means. In either case where there was a deleterious effect upon the health of the passenger and hence upon the body of the passenger and its function whether that be through the medium of the body (the physical route) or of the mind (the psychological route), the carrier was liable in damages up to the monetary limit provided in the Convention. In the former case if there was physical harm occasioned by the accident and from that physical harm, for example, the loss of a leg, was derived a medically recognised psychological illness which accompanied and exacerbated the consequential effects of the physical harm, the whole effect and accompanying loss sustained was a proper subject of the claim. In the latter case the psychological illness alone was sufficient to found a claim so long as it had an effect upon health and did not simply fall within the nature of the concomitant of the shocking means - that is to say fright and the immediate human reaction which were not compensable under domestic law (see Page v. Smith [1996] 1 AC 155, per Lord Lloyd of Berwick at p. 189G).
[7] It was submitted that in the scheme "lésion corporelle" was an extension of "mort" and "blessure" to all other forms of injury to health, the shock of the accident being the medium through which the damage was occasioned. There was nothing in the scheme of the Convention which served to indicate an intent on the part of the delegates to impose any restriction on the type of injury for which damages could be sought in an action for personal injury founded on Article 17. The uniform basis of the scheme was provided by the conditions relating to the limits of liability therefor imposed by the Convention. In the case of an action for personal injury founded on the Article, it was left to domestic law to determine who had title to sue and for what losses they were entitled to seek damages within those specified limits. Reference was made to Zicherman v. Korean Air Lines Co. Ltd. 516 U.S. 217 (1996). An examination of cases concerning Article 17 in other jurisdictions, notably in the United States of America, including the Supreme Court decision in Eastern Airways v. Floyd 499 U.S. 530 (1990), in Australia and in Israel revealed a fundamental division of opinion in the construction of the Article. The approach adopted in Israel was to be preferred. It accorded better with what could be deduced from the travaux préparatoires as to the intention of the delegates.
[8] Accordingly the Lord Ordinary had erred in law in holding that the pursuer's averments so far as they identified post-traumatic stress disorder, a phobia of flying constituting an anxiety disorder, and chronic depression, all as distinct from the onset of the peptic ulcer and its concomitants, did not constitute relevant averments of bodily injury within the meaning of the Convention as applied to non-international carriage by the Carriage by Air Act 1961 ("the Act") and the Regulations made thereunder.
[9] The submission for the defenders in its more extreme form was that in Article 17 the word "accident" was to be read in conjunction with the phrase "in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger". Article 17 reflected the distinction between nervous shock and physical injury which was mentioned for example by Lord Macmillan in Bourhill v. Young 1942 SC (HL) 78. The Article permitted claims by a passenger injured in an accident or, where a passenger had died in an accident, by those who derived title to sue from him recognised by the domestic court, only where the death or injury involved external, direct trauma to or interference with the organs, structure or tissues of the body. Reference was made to the dissenting opinion of Stevens J. in the Court of Appeals of New York in Rosman v. Trans World Airlines 34 N.Y. 2d. 385 (1974) where he stated that the term "bodily injury" when used in conjunction with the words "accident which caused the damage" seemed to envision impact or contact and that the term was a limitation on wounding. However, compensation for the consequences of such death or injury was to be determined according to the heads of claim for damages allowable in the domestic court. Thus the Convention did not allow claims at the instance of a passenger or of those entitled to sue on the death of a passenger, where the injury or death arose from shock, stress or fear, whatever the nature of the symptoms or consequences. In any event, as the majority in the case of Rosman stated, the term "bodily" as used in the Warsaw Convention written in 1929, would have little significance in the treaty as an adjective modifying " injury" except to import a distinction from "mental": accordingly, the ordinary, natural meaning of "bodily injury" connoted palpable, conspicuous physical injury and excluded mental injury with no observable "bodily", as distinguished from "behavioural", manifestations. Thus the Article did not allow recovery where the mental illness was not directly consequent upon physical injury and thereby causally linked to the accident and so excluded any behavioural or mental elements which did not follow upon physical injury. The reasoning of the Supreme Court in Eastern Airlines v Floyd was to be preferred. It had been followed in the Australian cases to which reference was made. The delegates to the Warsaw Conference in 1929 cannot have contemplated that psychological injury alone should provide ground for a claim to damages for personal injury in an action under Article 17. The action should be dismissed in its entirety. Alternatively, the Lord Ordinary's determination should be sustained and the appeal of the pursuer so far as it attacked the Lord Ordinary's decision to exclude the averments of psychological injury should be refused.
[10] In approaching resolution of the two interpretations proposed by the parties and in particular the scope of Article 17 within the Convention as a whole, I start from certain propositions drawn from the cases cited to us. In doing so I do not overlook the fact that the Convention concerns international carriage by air as the preamble to the 1961 Act sets out, while the present appeal concerns non-international carriage by air, to which Her Majesty has by Order in Council applied the Convention. However, I did not understand either party in the appeal to suggest that in seeking the answer to the issues raised, the interpretation of Article 17 or its place in the purpose of the Convention, is any different in the one case from the other. The propositions are to the following effect:
1. A passenger who has a claim for bodily injury caused by an accident which took place on board an aircraft, or in the course of embarking or disembarking, cannot maintain a separate claim for loss, injury or damage not covered by Article 17 of the Convention (see Sidhu & Ors v. British Airways plc 1997 SC (HL) 26).
2. The passenger's rights or the rights available to those suing on the death of a passenger are to be found within the wording and structure of the Convention rather than the Act since in terms of section 1 the Convention as set out in Schedule 1 has the force of law in the United Kingdom in relation to any carriage to which the Convention applies. (Holmes v. Bangladesh Biman Airways [1989] 1 A.C. 1112; Sidhu)
3. If there be any inconsistency between the text in English and the text in French as set out in that Schedule, the Act provides that the text in French shall prevail. (Sidhu)
4. As an international convention, the Warsaw Convention requires to be interpreted and its purpose discovered by looking to the text as a whole. Nonetheless if looking to the text both in the English and in the French language the particular words looked at only in their immediate context are ambiguous, the purposive approach may lead to resolving any ambiguity in the language used in any particular part of the Convention where the words used are capable of bearing either a narrower or more extensive meaning, in favour of a more extensive, though less usual meaning. (See for instance Lord Diplock in Fothergill v. Monarch Airlines Ltd. [1981] AC 251).
5. In resolving any ambiguity, cautious use of work leading up to the Warsaw Convention and the Hague Protocol is legitimate by reason that the material involved is public and accessible (see for instance Lord Wilberforce in Fothergill; likewise Lord Hope of Craighead in Sidhu) It further requires that the material clearly and indisputably points to a definite legislative conclusion before they can be used (see Lord Wilberforce in Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Company 1985 SC (HL) 1).
6. There being no authoritative decision of any court in the United Kingdom on the point at issue, namely the meaning of the words "bodily injury" in Article 17, that point being specifically reserved by Lord Hope of Craighead in the case of Sidhu, it is legitimate also to have regard to the commentaries of learned authors ("doctrine") or the decisions of foreign courts ("jurisprudence") in seeking a solution to the point at issue. (Fothergill; Herd & Others v. Clyde Helicopters Limited 1997 S.C. (H.L.) 86).
[11] It is convenient to note at this point that the parties appeared to be at one in the course of their submissions that the meanings to be attributed to the words "toute autre lésion corporelle" in the French text and to the words "any other bodily injury" in the English text were not without ambiguity and that each phrase was capable of bearing a restricted meaning in the sense contended for by the defenders and an extended meaning in the sense contended for by the pursuer. It was also accepted that during the course of the preparatory work which led to the determination of the final text of the Warsaw Convention, there was no debate minuted which indicated, one way or another, which meaning the delegates intended to give to the words as they appeared in the French language in the final text. It was also not in dispute that the words "lésion corporelle" as they stand in the French text did not constitute a widely used legal term in French law at the time (see Eastern Airlines Inc. v. Floyd).
[12] Against that background I turn in the first place to consider whether the scheme of the Convention and hence the purpose to which Article 17 was dedicated, can throw light upon the meaning to be attributed to the words in issue. In doing so, I start by making reference to the text of the Convention in the English language as it is set out in the Act. The Convention requires that a passenger ticket be delivered containing amongst other things a notice to the effect that the Convention may be applicable and that "the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage" (Article 3). Article 4 permits a baggage check for registered baggage to be combined with or incorporated in a passenger ticket complying with Article 3, but by paragraph 2 it is provided that the carrier who takes charge of baggage without delivering a baggage check or delivers a baggage check without notice of the limitation of his liability, is not entitled to avail himself of the provisions of Article 22, paragraph 2. Chapter III of the Convention which contains Articles 17 to 30, is headed "Liability of the Carrier". The chapter deals with damage arising from three different categories of case which give rise to liability. Firstly, Article 17 relates to the event of the death or wounding or any other bodily injury suffered by a passenger. It provides that the damage requires to be caused by an accident which took place on board the aircraft or in the course of embarkation or disembarkation, that is to say within clear and defined general limits. Secondly, Article 18 relates to liability for destruction or loss of, or damage to, any registered baggage or cargo provided that the occurrence which caused the damage took place during the carriage by air as defined in paragraph 2 of the Article and subject also to the further provisions of paragraph 3. This Article would apply in the case of a passenger's registered baggage being destroyed or damaged in an accident which also fell within the terms of Article 17. Thirdly, Article 19 provides for liability for damage occasioned by delay of passengers, baggage or cargo. Article 22 deals with the limits of liability and distinguishes between the liability of the carrier for each passenger "in the carriage of persons" (paragraph 1) and liability "in the carriage of registered baggage and of cargo" (paragraph 2 (a)). Special provision is made where liability arises "in the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein" (paragraph 2(b)). Paragraph 3 limits liability "as regards objects of which the passenger takes charge himself".
[13] Looking to the language of Article 17 alone I do not find anything in the phrase "in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger" which necessarily limits "bodily injury" to the extent of excluding psychiatric illness altogether from its ambit or indeed psychiatric illness consequent upon physical injury. While "wounding" imports the concept of external violence applied to the body, the following phrase with the use of the introductory words "any other" can denote a more extended meaning. The use of the word "bodily" insofar as it serves to govern the word "injury" is understandable in a scheme which differentiates between the carrier's liability in the carriage of persons and in the carriage of his baggage, and, in particular, sets differing monetary limits for liability. The carrier of course cannot relieve himself of liability or fix a lower limit subject to the exception of provision relating to the inherent defect, quality or vice of the cargo carried (Article 23). However, the carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures (Article 20) or proves that the damage was caused by, or contributed to, by the negligence of "the injured person" in which event the court may, "in accordance with the provisions of its own law", exonerate the carrier wholly or partly from his liability (Article 21). It is worthy of note that the minutes of the seventh session of the Warsaw Conference suggest that the delegates recognised that the formula proposed in the article created no obligation to accept the principle of "shared liability". A margin of appreciation was given to the domestic court as to whether liability was to be sanctioned at all and if so, whether it was to be partially or wholly elided. This appears to have arisen because of the differences existing at that time between Continental laws and United Kingdom laws as to the principle and its effect. Article 25 provides that the limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result. Similar provisions are made by Article 25A in respect of an action brought against a servant or agent of the carrier acting within the scope of his employment and arising out of damage to which the Convention relates. A servant or agent is then able to avail himself of the limits of liability which the carrier himself is entitled to invoke under Article 22 and paragraph 2 of Article 25A prevents the aggregate of the amounts recoverable from the carrier, his servants and agents exceeding those limits.
[14] Article 24 provides that "in the cases covered by Article 17" any action for damages, however founded, can only be brought "subject to the conditions and limits set out in the Convention". Article 24 does not specify which law identifies the heads of damages for which compensation may be sought but declares itself to be without prejudice to the questions who are the persons who have right to bring suit (i.e. for death or personal injury) and what are their respective rights. Choice of law questions must arise in these areas (see Shawcross & Beaumont - Encyclopaedia of Air Law para. 289). The word "damage" in Article 17 and in Article 19 falls to be read as "monetary loss" (see Lord Wilberforce in Fothergill) but as I read that case, Lord Wilberforce did not intend to exclude a claim by a passenger for solatium for any recoverable injury for which he was entitled to be compensated in terms of Article 17, subject to the carrier's limit on liability for that injury. Nor, in the case of the representatives of a deceased passenger determined by English law, did that meaning serve to exclude a claim for solatium on their part arising from that death (see Preston v. Hunting Air Transport Ltd. [1956] 1 Q.B. 454). This decision is consistent with the decision of the United States Supreme Court in Zicherman v. Korean Air Lines Co., Ltd. in which the Court decided that in an action brought under Article 17 the law of the Convention did not affect the substantive questions of who may bring suit and what they may be compensated for. Those questions fell to be answered by the domestic law selected by the courts of the contracting states. Thus the Court held that "dommage" meant legally cognisable harm but that Article 17 left it to adjudicating courts to specify what harm is cognisable. It appears to me that in Fothergill Lord Wilberforce was reflecting the fact that any claim had to be recognised by the court seised of the action as one capable of sounding in monetary damages, for that claim to be recoverable in terms of the Convention. But it is a matter for the domestic court to decide what heads of claim arising from the death or injury of a passenger in an air accident will be recognised and to what extent they will sound in damages. That action for damages must be brought, "at the option of the plaintiff", in the territory of one of the High Contracting Parties before the court which has jurisdiction specified in Article 28. On the other hand the right to damages is extinguished if an action is not brought within the period specified in Article 29, although the method of calculating the period of limitation is to be determined by the law of the court seised of the case.
[15] As noted above the defenders have taken advantage of the terms of Article 20 and offer to prove that they, their servants and agents took all necessary measures to avoid damage to the pursuer.
[16] The scheme of the Convention appears to me to start from the proposition that the party entitled to look for monetary compensation for damage caused by an accident taking place as specified in Article 17, damage caused by an occurrence in the circumstances specified in Article 18 or damage occasioned by delay in the carriage by air (Article 19), does not require to prove that the damage was caused by the fault of the carrier, his servants or agents, fault being otherwise presumed. But while compensation for that damage would normally be determined on the principle of restoring him to the position in which he would have been but for the accident, occurrence or delay, in the interests of air carriage there were to be certain limits set to recovery. The concept of fault still permeates the scheme. Liability is not limited to the monetary limits specified if the pursuer can prove that the damage resulted from an act or omission of the carrier, his servants or agents done with intent to cause damage or recklessly and with knowledge "that damage would probably result". By that is meant that damage, and not merely the damage giving rise to the claim, was foreseeable before the event. However, it has to be proved that the carrier's conduct extends beyond what might be termed failure to use ordinary care. Liability is elided if the carrier proves that all "necessary measures" to avoid the damage were taken or that it was impossible to take such measures. What is necessary can only be judged having regard to the state of knowledge, technical, scientific or, it may be, medical, at the time of the accident. The carrier may also escape liability wholly or in part if he proves that the damage "was caused or contributed to by the negligence of the injured person". These matters of proof, including what constitutes necessary measures in the circumstances or what amounts to negligence, are for the court seised of the action, just as much as whether the heads of claim in the action can sound in monetary damages. The Convention seems to me to provide within its conditions and in particular within the scheme for injury in terms of Article 17, a scheme which ,while it subverts proof of fault, still remains one which is familiar to our courts, an action for personal injury at the instance of a passenger involved in an air accident or in the case of his death, through him as the primary victim. In that event, liability for psychological injury would arise where the risk of physical injury was to be foreseen. As Lord Lloyd of Berwick observed in Page v. Smith at p. 189:
"Shock by itself is not the subject of compensation, any more than fear or grief or any other human emotion occasioned by the defendant's negligent conduct. It is only when shock is followed by recognisable psychiatric illness that the defendant may be held liable."
[17] The issue of foreseeability and the respective duties that lie upon the carrier and the passenger would have to be determined by the court having regard to the particular circumstances of the case, if, for instance, reference was made to any of Articles 20, 21 or 24. Where Article 24 was applied to, the adjudicating court would be bound to determine, upon the evidence led before it, what was the risk of damage that would probably result in an air accident of the kind giving rise to the claim. There is nothing in the Convention that prevents such evidence encompassing up to date medical and scientific knowledge. It would be anomalous if a passenger were able to prove that an air accident of the kind of which he complained, was likely to give rise to physical injury and that there were steps that could and should have been taken by the carrier to avoid its occurrence, but because it was shock and not physical impact that gave rise to the psychiatric illness for which he sought compensation and despite its being a head of claim recognised by the court as sounding in monetary damages, he was barred from recovering compensation for that injury.
[18] The submission for the defenders appeared to be put forward on two separate bases, the first of which was to the effect that the restriction which it was sought to place upon the ambit of Article 17 was related to the state of medical knowledge in 1929. I am bound to say that I find it very difficult to believe that the original delegates can have been ignorant of the shocking effect of an air accident upon passengers. They must have been well aware, for instance, of the effects of warfare and the concomitants of shell-shock which resulted without any direct impact except that upon the mind of the victim and through that route upon the victim's bodily function. If, as appears to have been the case, the original delegates foresaw technical advances in aviation and with it an increase in air traffic, they must have been well aware that the types of accident that might occur, would extend well beyond those which had then been experienced. Likewise I have difficulty with the argument that was based on the proposition that only a small number of those jurisdictions represented by the delegates in 1929 recognised psychiatric illness arising from shock as giving rise to a head of claim in an action of damages for personal injury. To have validity it seems to me that this would require that those delegates whose jurisdictions did recognise such a head of claim, had deliberately consented to such a restriction and that there was some clear evidence to that effect to be deduced from the Convention itself or from other evidence bearing upon the work of the delegates to that effect. There was nothing of that nature presented before us and the assertion appeared to me to be no more than an inference which, it was said, should be derived from the words of Article 17 itself. Indeed the submission in its principal form appeared to exclude relatives of a passenger who died from shock from any recovery. At times in the course of the argument, it appeared to me that the submission for the defenders directed to excluding the pursuer's claim altogether, proceeded on the premise that the word "accident" was itself determinative of the nature of the injury for which a claim could be made. The word could not be interpreted as meaning an unusual event extraneous to the passenger if it did not have direct impact but caused only "psychological injury" in the sense of a reaction operating through the mind. But if the premise be accepted, the submission would seem to exclude, contrary to the terms of Article 17 in its reference to "death...of a passenger", death brought about by shock where there had been no direct trauma. If, however, the meaning to be ascribed to Article 17 extends to death from shock, that is to say permanent destruction of the functioning of the body of the passenger, it is difficult to see why psychiatric illness which distorts the functioning of the passenger's body during life following the accident, should not also sound in damages.
[19] I recognise that we are dealing with an international convention. We were referred to cases from other jurisdictions, notably the United States, Australia and Israel, which have addressed themselves to the same issues. It is appropriate to look to such cases for guidance as to the meaning to be given to Article 17. I have to say that a substantial divergence of opinion emerges from a consideration of them.
[20] I begin with the case of Daddon v. Air France [1984] S. & B.Av.R. VII/141, also referred to as Teichner, before the Israel Supreme Court in 1984. I observe at the outset that in that case the court was concerned with arguments for the passengers on the one hand that a hijacking did not fall with the category of an accident and that mental anguish was not in the realm of "other bodily injury", and for the carrier on the other hand that on the basis of decided precedents, as they had crystallised around the world, the term "accident" also included "hijacking" and the term "bodily injury" also included damage caused to a passenger at a place where he was forced by the hijackers to stay, and that damage included mental anguish as well. I also note that the court, although invited to do so, did not consider that the Guatemala Protocol so far as it involved changes to the English text of the Warsaw Convention introduced any change of substance in the wording of Article 17. The court bore in mind that the main aim of the Convention was to regulate in uniform manner the laws relating to liability of carriers for damage caused to passengers or their baggage in the course of air transport. It noted that the main motive behind the Convention was the desire to give protection to international air carriage which was then in its infancy while at the same time showing consideration for passengers who displayed the readiness to run the risks which were involved in flying in those days. It considered that the Convention, in the way it was drawn, reflected the optimum balance of these considerations as these were understood by the parties to the convention to the Convention at the time. The court here seems, in my understanding, to reflect the approach to the construction of international conventions that has been followed in the United Kingdom. The court then reached the view, in relation to the term "accident", that acts of hijacking lay within its scope. When it came to consider the meaning of the term "bodily injury", the court took the view that the French legal interpretation of the term in the French language did not lead to an unequivocal conclusion and did not assist very much in the task of interpretation. The court further noted that there was a great deal of doubt as to the extent to which assistance was to be found in the legislative history behind Article 17. The reason for this was that the question of compensation for mental anguish was never dealt with in the course of the discussions which preceded the signing of the Convention from what is reflected in the working papers relating to those discussions. The court then said this (at VII/152):
"Apparently, the parties to the convention had no intention whatsoever in this connection, either because most of the states at that time had not yet recognised mental anguish as a cause of action for the obtaining of compensation, or by reason of the fact that the parties to the convention did not contemplate the possibility of mental anguish which was not accompanied by physical injury as a result of an air accident."
The court reached its view against the background that the main objective of the convention was to create a uniform arrangement in regard to the liability of carriers in the course of keeping a balance between considerations of the good of developing air transport as opposed to interests relating to the good of passengers who were injured in air accidents. It continued as follows (at VII/152),
"however,...since the signing of the convention, there has been dramatically rapid development in civil aviation transport, which places the balance of the aforesaid considerations in a different light. In the view of the aforegoing, the need has arisen for a renewed examination of the aims of the convention and the application thereof, while taking into account the changes which have taken place in the factual infrastructure which serves as the foundation of it since the signing of the convention. A different method of interpretation would result in the convention marking time in preserving the principles enunciated in it, without having the power to serve the needs of modern realities."
The court then had regard to the trend both in Israel and in Anglo-American law to recognise the possibility of awarding compensation for mental anguish before reaching the view that it would be proper to interpret Article 17 in the widest possible way so that it would be possible in pursuance thereof to award compensation also for pure mental anguish. In summary the court accepted that the hijacking of the Air France plane to Entebbe was to be regarded as being an act within the scope of "air carriage" as defined in the Convention, that the damage caused to the passengers in consequence thereof, even if it was purely of a mental nature, was "other bodily injury" as a result of an accident which occurred "inside the aircraft". That is to say, the court accepted the submission of the carrier on the matters at issue in relation to Article 17. I leave to one side the criticism of counsel for the pursuer of the passage cited which was based on the fact that by 1929 at least both in Scots and in English law the courts were prepared to countenance in actions for personal injury claims for psychological injury suffered from shock. More to the point, it appeared to me that what influenced the court was a speculation as to the intention of the parties to the convention, which, for reasons which I have already outlined above, I find it difficult to accept. There is nothing in the Convention that prevents signatory nations from amending their own national laws with the effect that the domestic courts will interpret the Convention differently thereafter. An obvious example is the change made in our law since 1929 with regard to contributory negligence which requires Article 21 to be interpreted differently than it would have been in 1929, as is made clear in section 6 of the 1961 Act.
[21] By contrast in Eastern Airlines Inc. v. Floyd in 1990 the United States Supreme Court considered the question "whether Article 17 allowed recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury". In this instance the carrier while conceding that there had been an "accident", argued that Article 17 also made physical injury a condition of liability. The Court was concerned to resolve a conflict between the decision of the lower court holding that the phrase "lésion corporelle" encompassed purely emotional distress and the earlier decision of the New York Court of Appeal in Rosman v. Trans World Airlines in which it was held that purely psychic trauma was not compensable under Article 17. The Supreme Court held that Article 17 did not allow recovery for purely mental injuries and that an air carrier could not be held liable under Article 17 when an accident had not caused a passenger to suffer death, physical injury or physical manifestation of injury. After citing the French text of Article 17 and the American translation of the text employed by the Senate when it ratified the Convention in 1934, it said this (at 535):
"Thus, under Article 17, an air carrier is liable for passenger injury only when three conditions are satisfied: (1) there has been an accident in which (2) the passenger suffered 'mort', 'blessure', 'ou...toute autre lésion corporelle', and (3) the accident took place on board the aircraft or in the course of operations of embarking or disembarking."
The Court noted that the respondents conceded that they suffered neither "mort" nor "blessure" so that the issue was a narrow one as to whether under the proper interpretation of "lésion corporelle" it could be said that the passenger had suffered only a mental or psychic injury. The Court reviewed first the "French legal meaning" of the phrase "for guidance as to the shared expectations of the parties to the Convention because the Convention was drafted in French by continental jurists". The Court concluded that since its task was to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties, as laid down in the early Supreme Court decision in Saks, it was unlikely that those parties' apparent understanding of the term "lésion corporelle" as "bodily injury" would have been displaced by a meaning abstracted from the French law of damages. The Court then examined the structure of Article 17 under reference to the decision of the lower court and concluded thus (at 542):
"In sum, neither the Warsaw Convention itself nor any of the applicable French legal sources demonstrates that 'lésion corporelle' should be translated other than as 'bodily injury' - a narrow meaning excluding purely mental injuries. However, because a broader interpretation of 'lésion corporelle' reaching purely mental injuries is plausible, and the term is both ambiguous and difficult...we turn to addition aids to construction."
[22] The Court then proceeded to review the negotiating history of the Convention. It concluded that translating "lésion corporelle" as "bodily injury" was consistent with that history. In doing so it noted the difference between the terms of the final protocol of the Paris Conference and the subsequent CITEJA draft which had split the liability article of the Paris Conference's protocol into three provisions with one addressing damages for injury to passengers, the second addressing injury to goods and the third addressing losses caused by delay. It was this draft which had introduced the phrase "en cas de mort, de blessure ou de toute autre lésion corporelle". Having done so the Court said (at 543):
"Although there is no definitive evidence explaining why the CITEJA drafters chose this narrower language, we believe it is reasonable to infer that the Conference adopted the narrower language to limit the types of recoverable injuries...Our review of the documentary record for the Warsaw Conference confirms - and courts 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'...Two explanations commonly are offered for why the subject of mental injuries never arose during the Convention proceedings: (1) many jurisdictions did not recognise recovery for mental injury at that time, or (2) the drafters simply could not contemplate a psychic injury unaccompanied by a physical injury...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 would have felt compelled to make an unequivocal reference to purely mental injury if they had intended to allow such recovery".
[23] The Court also found (at 546) that the narrower reading was consistent "with the primary purpose of the contracting parties to the Convention: limiting the liability of air carriers to foster the growth of the fledgling commercial industry". It also remarked (at 546) that "whatever may be the current view among Convention signatories, in 1929 the parties were more concerned" (my emphasis) "with protecting air carriers and fostering a new industry than providing full recovery to injured passengers, and we read "lésion corporelle" in a way that respects that legislative choice." Thereafter the Court considered the post-1929 "conduct" and "interpretations of the signatories" in accordance with the decision in Saks and concluded on balance that it supported the narrow translation of "lésion corporelle". In particular the Court did not consider that the Hague Protocol signatories intended by their translation of that phrase in the French text of Article 3 as "personal injury" to do more that give a summary description of the limitations of liability imposed by the Convention. The Court took note of the decision in the case of Teichner but found that it was not persuaded by the Israeli Court's reasoning, noting that it was based upon "desirable jurisprudential policy". The Court commented (at 551):
"Even if we were to agree that allowing recovery for purely psychic injury is desirable as a policy goal, we cannot give effect to such policy without convincing evidence that the signatories' intent with respect to Article 17 would allow such recovery. As discussed, neither the language, negotiating history, nor postenactment interpretations of Article 17 clearly evidences such intent...Moreover, we believe our construction of Article 17 better accords with the Warsaw Convention's stated purpose of achieving uniformity of rules governing claims arising from international air transportation...As noted, the Montreal Agreement subjects international carriers to strict liability for Article 17 injures sustained on flights connected with the United States...Recovery for mental distress traditionally has been subject to a high degree of proof, both in this country and others...We have no doubt that subjecting international air carriers to strict liability for purely mental distress would be controversial for most signatory countries. Our construction avoids this potential source of divergence."
[24] With the greatest respect that is due to a decision of the Supreme Court in a matter of this kind, namely the interpretation of an international convention, I confess that I find some difficulty with its reasoning. In the last passage cited the Court appears to have been influenced to some extent by the provisions of the Montreal Agreement which raised the limit of accident liability for international flights with connecting points in the United States and "waived due-care defences" under the Warsaw Convention in respect of such flights. But the Court had already pointed out that the Montreal Agreement did not and could not purport to speak for the signatories to the Warsaw Convention and the Agreement did not purport to change or clarify the provisions of Article 17. The judgment appears to me to have been unduly influenced by a view that in 1929 the parties were more concerned with protection of air carriers than with the interests of injured passengers so far as providing for "full recovery". The problem which I find in accepting the reasoning in Eastern Airlines Inc. v. Floyd is perhaps best illustrated by its effect as understood by Stein J.A. in Kotsambasis v. Singapore Airlines Limited (1997) 42 N.S.W.L.R. 110, namely that while there could be no recovery for "psychic" injury unaccompanied by physical injury, nevertheless where mental anguish follows and is caused by physical injury, recovery for both injuries is covered. Moreover, if the psychological injury is proven to be a "species of bodily injury", then it would also constitute "bodily injury" within the Article. I find such distinctions artificial, to say the least. If the psychological injury or illness is naturally and directly derived from and hence linked to shock from an accident and is of a nature to disturb the bodily function and health of the passenger to his loss, injury and damage, then, just as did Lord Johnston in the case of Wallace v. Kennedy 1908 16 S.L.T. 485, I would regard that as a physical injury in the sense of a bodily injury so that the loss, injury and damage following thereon was damage caused by the accident within the meaning of the Article.
[25] I can further illustrate my difficulty with the reasoning in the case of Floyd in this way. In the case of Zicherman the Supreme Court construed the term "dommage" in Article 17 as a general term. The Court rejected a suggestion that the mere use of the French language would effect adoption by the contracting parties of the precise rule applied in France as to what constitute legally cognisable harm. In doing so the Court found it unlikely that the signatory nations would have understood use of the term to require compensation for elements of harm recognised in France but unrecognised elsewhere or to forbid compensation for elements of harm unrecognised in France but recognised elsewhere. But if the term "lésion corporelle", translated as "bodily harm", is also to be construed as a general term, as it was in the case of Floyd, and if it was apt in 1929, not least in domestic law within the United Kingdom, to include purely psychic or psychological injury, I find it difficult to understand why it should then be inferred that the signatory nations must have intended to forbid a passenger suing an international air carrier from founding his action under Article 17 on such injury and seeking to obtain compensation for the harm occasioned to him by such injury caused by an air accident, if his action was raised in a court whose domestic law permitted recovery by way of damages for such injury. The fact that an action for personal injury founded on purely psychic or psychological injury as a cause of action, and hence recovery by way of compensation for such injury, was unknown in many, if not most, of the jurisdictions of the signatory nations in 1929, does not, it seems to me, justify a conclusion that the drafters' silence on the matter must be construed as forbidding such recovery altogether. At most, it could only justify a conclusion that the signatory nations were content not to require those jurisdictions which did not recognise such recovery, to do so.
[26] I am strengthened in this view by the consideration that it was contemplated that other nations than the original signatories would be entitled to adhere to the Convention at a later date, as indeed came to be the case. In that event, it seems to me that where the Convention uses general terms, it ought to be concluded that, unless the context in which the general term appears makes the matter plain beyond doubt, the terms are to be construed in accordance with the domestic law of the court which is then seised of the passenger's action. Moreover, this would also mean that if the domestic law of a particular signatory nation were subsequently to be altered, so that purely psychic or psychological injury came to be recognised as giving rise to a cause of action, the courts of that jurisdiction would thereafter be free to apply those changed rules to actions raised under Article 17 which came before them. In the case of Zicherman it was held that Article 17 left it to the adjudicating courts to specify what harm was cognisable. From the references to domestic law which follow, it would appear that the Supreme Court had no difficulty with the proposition that where, subsequent to adherence to the Convention, the domestic law in a signatory nation was altered so that what was previously not regarded as legally cognizable harm became so, the adjudicating court of that nation, seised of an action by a passenger under Article 17, was thereafter entitled to compensate the passenger accordingly. By parity of reasoning it seems to me that if a passenger brings a claim under Article 17 for an injury which falls within the wider meaning of "bodily injury" and such a claim is then recognised in the domestic law of the adjudicating court as a cause of action giving rise to harm which is cognisable, then the action is within the competence of the court to determine in accordance with its domestic law, albeit that at the time when the Convention was signed or adhered to by that nation, such a claim would not have been recognised in its domestic law.
[27] I am content to adopt what was said by the Supreme Court in El Al Israel Airlines Ltd v. Tseng about the purpose of the Convention:
"The cardinal purpose of the Warsaw Convention, we have observed, is to 'achiev(e) uniformity of rules governing claims arising from international air transportation'...The Convention signatories, in the treaty's preamble, specifically 'recognized the advantage of regulating in a uniform manner the conditions of...the liability of the carrier'...To provide the desired uniformity, Chapter III of the Convention sets out an array of liability rules which, the treaty declares, 'apply to all international transportation of persons, baggage, or goods performed by aircraft'...In that chapter, the Convention describes and defines the three areas of air carrier liability (personal injuries in Article 17, baggage or good loss, destruction, or damage in Article 18, and damage occasioned by delay in Article 19), the conditions exempting air carriers from liability (Article 20), the monetary limits of liability (Article 22) and the circumstances in which air carriers may not limit liability (Articles 23 and 25)..Given the Convention's comprehensive scheme of liability rules and its textual emphasis on uniformity, we would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations...A complementary purpose of the Convention is to accommodate or balance the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability...The Convention drafters designed Articles 17, 22 and 24 of the Convention as a compromise between the interests of air carriers and their customers worldwide. In Article 17 of the Convention, carriers are denied the contractual prerogative to exclude or limit their liability for personal injury. In Articles 22 and 24, passengers are limited in the amount of damages they may recover and are restricted in the claims they may pursue by the conditions and limits set out in the Convention."
[28] But such a scheme is not subverted if the area of air carrier liability so far as personal injuries is concerned, extends to a wider rather than narrower meaning of "bodily injury" since, putting to one side the limitation of time for raising an action based on Article 17, the carrier is protected by two factors. First, there is the monetary cap on any claim and, second, there is the fact that he may avoid liability altogether by reference to Articles 20 or 21 (subject to the law of the domestic court as to whether and to what extent the principle of shared liability is recognised). On the other hand, the passenger or consignor is only entitled to full recovery for damage if he proves intent to cause damage or recklessness on the part of the carrier or his servants or agents within the limits of Articles 25 or 25A. It would always be necessary for the particular domestic court to be satisfied on the evidence, firstly, that the pursuer had been involved in an "accident" occurring within the temporal and geographical limits imposed by Article 17 and, secondly, that the damage claimed, whether it be purely physical injury or a combination of physical injury and psychological illness or psychological illness alone, was caused by the accident. Indeed if, as was decided in the case of Tseng, the issue of "compensable harm" is one for the domestic courts, then within the scheme there is no uniformity since there must inevitably be circumstances in which a passenger would be entitled to obtain monetary compensation for a "harm" in one domestic jurisdiction where in a different jurisdiction such "harm" would not have been recognised as being one for which monetary compensation was available. Lack of uniformity is also explicit in the provisions of Article 21. I would also add that if the matter of construction was as clear as was maintained for the defenders in the present case, I find it perplexing that the carriers in each of the cases of Daddon and Floyd chose to direct entirely contrary arguments to the same point.
[29] Reference was made for the defenders to a passage in the speech of Lord Hope of Craighead in the case of Sidhu in which he warned against the temptation of giving way to the argument that where there is a wrong there must be a remedy in any consideration of the construction of the Convention. He went on the point out that exclusion and limitation clauses are a common feature of commercial contracts and that contracts of carriage are no exception. At p. 45 he said:
"It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged. It 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 and the conditions under which claims to establish that liability, if disputed,
were to be made. A balance was struck, in the interests of certainty and uniformity.
All the obvious cases in which the carrier ought to accept liability were provided for...No doubt the domestic courts will try, as carefully as they may, to apply the wording of art 17 to the facts to enable the passenger to obtain a remedy under the Convention..."
[30] In the case of Sidhu the pursuers and plaintiffs attempted to apply to the common law of the domestic courts in seeking a remedy. Their reasons for doing so, as recorded by Lord Hope of Craighead, proceeded on the view that Article 17 did not apply either because there had been no accident or because the principal basis of the claim was psychological damage which did not come within the scope of "bodily injury" for the purposes of the article. In the case of the action raised in England this latter reason was expressed on the basis that such damage "probably did not come within that category". It was in these circumstances that the House of Lords was called upon to determine the issue as to whether a passenger who has sustained damage in the course of international carriage by air due to the fault of the carrier, but who has no claim against the carrier under Article 17 of the Convention, is left without a remedy. Thus the principal search within the text of the Convention was, as Lord Hope of Craighead acknowledged (at 37), "for indications of an intention one way or the other about exclusivity of provision in regard to the carrier's liability..." and that search required to be conducted within the provisions of Chapter III. However, there were two provisions in the earlier chapters of the Convention which he considered to be worth noting as being of some value. One of these was Article 3(1)(c ) dealing with ticket delivery. In the English text the passenger has his notice drawn to the Convention with the words depending on the nature of the journey "the Warsaw Convention may be applicable", and is warned that "the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage". The French text reads "leur transport peut être régi par la Convention de Varsovie qui, en général, limite la responsabilité du transporteur en cas de mort ou de lésion corporelle, ainsi qu'en cas de perte ou d'avarie des bagages". It is, I consider, of some materiality that in this part of the text of the Convention the phrase "en cas de" is used not as descriptive of an event in the sense of an event particular to the passenger, but rather as a category to which the limitation of liability of the carrier under the Convention will apply. There are two categories. One category encompasses the person of the passenger and extends to both death and personal injury. The other category extends to his baggage. In Article 17 the category in Article 3 encompassed within the French phrase "de mort ou de lésion corporelle", is defined more particularly in the words "de blessure ou de toute autre lésion corporelle". The latter words appear to me to be intended as an extension of the meaning which the word "blessure" bears, or, to put it another way, make clear, by use of the word "toute", that the latter phrase was not to be restricted by the meaning of the "blessure". In so doing I consider that I am not trespassing upon the "Serbonian bog" referred to in the case of Saks. There the Supreme Court pointed out that any injury is the product of a chain of causes and that it required only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger. But Article 17 was not to be stretched to impose carrier liability for injuries not caused by accidents. In the present case it is accepted for the defenders that the pursuer was involved in an accident. I consider that his averments are sufficient at this stage to entitle him to a proof that the injuries both physical and psychological of which he complains, together with the consequences of those injuries, were caused by the accident.
[31] While it was not founded upon in detail in the submissions but only referred to in passing, I also consider as helpful a passage in American Airlines Inc. v. Georgeopoulos (No. 1) (unreported, New South Wales Court of Appeal, 10 September 1996) where the opinion of Brennan J. in Jaensch & Coffey (1984) 155 C.L.R. 549 was cited. There he said (at 566),
"The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and, on the other, shock which causes it."
Accordingly descriptions of the immediate reaction or reactions to an accident, in the form of fear, surprise or the like, may be important in determining the connection by way of shock between the accident and the consequences, whether psychological or physical, in terms of injury. In the present case I would have left the whole averments for proof before answer even if I had been satisfied that the only element by way of injury for which the pursuer was entitled to sue were the physical symptoms to which the Lord Ordinary refers.
[32] I am fortified in my view as to the proper construction of Article 17 by reference to a particular aspect of the travaux préparatoires leading to the adoption of the article. In the minutes for the third session of the CITEJA in May 1928 the delegates considered what was then article 22, the article from which articles 17, 18 and 19 were to be derived. As placed before the session article 22 read as follows:
"Le transporteur est responsable du dommage pendant le transport:
a) en cas de mort, de blessures ou de toute autre lésion corporelle
subie par un voyageur;
b) en cas de destruction, perte ou avarie de marchandises ou de
bagages;
c) en cas de retard subi par un voyageur, des marchandises ou des
bagages."
[33] The only change made to this article by the delegates was to insert the word "survenu" before the phrase "pendant le transport". From the minutes it would also appear that the plural of the word "blessure" (which appears in the final text in the singular) was used. This phraseology seems to me to suggest that the delegates were intent only on categorising the circumstances in which the carrier was to become liable for damage sustained during carriage and not on defining exactly or specifically the nature of the injuries to which the damage was to be linked in a restricted or restrictive sense. There followed debate amongst the delegates concerning, amongst other things, liability for hand baggage and personal effects of a passenger which could be very valuable. At the conclusion of the debate the rapporteur reminded delegates that "le Comité a établi un régime de responsabilité pour le transporteur" and "qu'il faut prendre garde d'en instituer maintenant un autre. Le transporteur doit connaître l'étendue de ses risques pour pouvoir les assurer." In that context he went on to remind the delegates that in respect of the carriage of goods and baggage, a later article limited the liability of the carrier to a stated sum subject to special arrangements being made with the carrier. In the minutes of the second session of the Warsaw Conference itself, as appears from the text translated into English by Horner and Legrez, the rapporteur, Mr. De Vos, in introducing the draft submitted by CITEJA, at pages 20 -21 explained that the rules in the draft sprang from the fault theory of the liability of the carrier toward passengers and goods and from the obligation of the carrier to assume the burden of proof but provision had been made for the carrier to avoid liability in certain circumstances for the actions of his servants but not for inherent defect in the aircraft. The presumption of fault on the carrier was limited by the nature itself of the carriage in question, carriage whose risks were known to the passenger and the consignor. Thus the Convention did not as a matter of principle impose strict liability upon the carrier. At page 22 Mr. De Vos also made reference to the matter of insurance in a passage in which he was referring to the limitations upon and exoneration from liability. He explained that the Convention began with the fundamental principle that the exoneration clause must be prohibited as much for persons as for goods. But as under such conditions, the consignor of goods might see carriage refused and, moreover, the operator must be able to measure the scope of the risks that he assumed, it was to satisfy this double exigency that the draft prohibited the carrier from eliminating or reducing his liability below a certain value, and at the same time limited the maximum liability of the carrier. It was open to the parties to "raise the value of the life of the passengers and the goods above the limit provided by means of a special clause". Again at pages 205-6 of the minutes, the president of the committee, in introducing the final draft of articles 17,18 and 19, explained that the original scheme or system of the CITEJA preliminary draft, which began in article 21 by defining when the liability of the carrier began and ended, had been departed from. In so doing he said this:
"But, given that there are entirely different liability cases: death or wounding, disappearance of goods, delay, we have deemed that it would be better to begin by setting out the causes of liability for persons, then for goods and baggage, and finally liability in the case of delay."
This explanation of the change in drafting seems to me to be entirely consistent with categorising the area of personal injury as one to which accident as a cause of the damage sustained applies rather than as serving to restrict liability for personal injury to physical injury whether or not accompanied by psychological injury.
[34] Furthermore, when regard is had to the point about insurance of risk made in the CITEJA minutes and in the minutes of the second session of the Warsaw Convention already cited, the carrier would be well able to make appropriate provision for insurance for carriage of passengers, knowing the potential number of passengers likely to be carried in his aircraft during the period of insurance as against the limit of liability set by the Convention in respect of any one passenger. The Convention does not prevent a passenger in appropriate circumstances from securing full recovery for the damage sustained by him (Article 24), that is to say giving full rein to the fault theory which would allow compensation to the fullest extent available in the domestic court for the injury. Thus I would find it difficult to envisage disallowing a claim for damages for psychological illness where it was proved by the pursuer that the carrier knew that such was a probable consequence of the accident brought about by his recklessness. Yet as I understand the argument for the defenders, such would be the logical result of their primary argument.
[35] Insofar as a balance has to be struck as between the passenger and the carrier in ascribing a proper construction to Article 17 in the whole scheme of the Convention, which Lord Hope of Craighead indicated in the case of Sidhu should be the touchstone of construction, it seems to me that a more reasonable balance between passenger and carrier is struck by the construction adopted by the Israel Supreme Court in the case of Daddon (a construction which was proposed by the carrier who must, presumably, have known the extent of the risk insurance cover taken out by it) than by the construction adopted by the Supreme Court in the case of Floyd. It was objected by the Supreme Court in the case of Floyd that the Israeli court in the case of Daddon had reached its decision by regarding the allowance of recovery for purely psychic injury as desirable as a policy goal but that effect could not be given to such a policy without convincing evidence that the signatories' intent with respect to Article 17 would allow such recovery. But it seems to me that in Daddon the court did respect the aim and object of the parties to the Convention as being that of creating a balance between the desire to protect international air carriage and the need for compensating passengers injured in the scope of such carriage. Its decision, however, appears to have been predicated upon a view that there had been developments in the field of awards for compensation for civil wrong since 1929 which it was appropriate to take into consideration. In particular the court made reference to a trend in Anglo-American law since the signing of the treaty in relation to the possibility of awarding compensation for mental anguish and to recent statutory developments in its own domestic law in compensating pure mental anguish, by which I take the court to have meant psychological injury. Indeed in the case of Zicherman the Supreme Court pointed to differences within the domestic law of the United States as to what harm was cognisable. The court cited decisions in case law and statutory provisions, a number of which postdated the convention. While the Israeli court would appear to have based its decision on what was termed desirable jurisprudential policy, I consider that it was concerned most with the problem that there had been changes both in their own law and in Anglo-American law after 1929 as to what "harm" was compensable and so could constitute both "bodily injury" and "damage" for the purposes of Article 17. But I consider that the Convention left it to domestic law, as it existed at the time of the action, to determine such issues.
[36] In contradistinction to the Supreme Court's decision in the case of Floyd, I find from a consideration of the language of Article 17 in the context of the Convention as a whole, with such assistance from the negotiating history as I have already set out and under reference to such of the postenactment interpretations of the Convention, including Article 17, as I have referred to above, that the intent of the signatories to the Convention was not to restrict the ambit of Article 17 so narrowly as the Lord Ordinary considered it to be restricted. Rather I find that the language used in its context was intended to be general and extended to cover purely psychic or psychological injury sustained as a consequence of an accident even in the absence of any other physical injury.
[37] I am fortified in my opinion having had the advantage of reading the opinion of your Lordship in the chair in relation to the indications of the signatories' intent to be taken from a consideration of the German text and in discussions of Article 17 in subsequent German legal literature. I would also express my thanks to the excellent presentation by counsel of the issues arising and the relevant legislative history and case law so far as it bore upon the interpretations contended for.
[38] For the reasons which I have endeavoured to set out in this opinion, I would agree that the appeal be disposed of as proposed by your Lordship in the chair.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Cameron of Lochbroom Lord Reed
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01489/5/1995 OPINION OF LORD REED in RECLAIMING MOTION FOR PURSUER in the cause PHILIP KING Pursuer and Reclaimer; against BRISTOW HELICOPTERS LIMITED Defenders and Respondents: _______ |
Act.: Moynihan, Q.C., Haldane; Balfour & Manson (Burnside, Kemp & Fraser, Aberdeen)
Alt.: Campbell, Q.C., Gilmore; Shepherd & Wedderburn, W.S.
12 July 2000
INTRODUCTION
[1] On 22 December 1993 the pursuer was a passenger on board the defenders' helicopter when it took off from an oil production platform in the North Sea. The helicopter ascended and hovered for a short period, at which point its two engines suddenly failed. The helicopter dropped and landed heavily on the platform. According to the pursuer's pleadings, smoke engulfed the helicopter, making it impossible for the passengers to see where it had landed, and whether it was liable to crash into the sea. There was panic and shouting on board, and the pursuer was extremely frightened. As a result of the accident the pursuer developed post-traumatic stress disorder, which manifested itself in a variety of symptoms including insomnia, nightmares, sleepwalking, chronic anxiety, depression, and a fear of flying. He also suffered from peptic ulcer disease, causing severe pain from about August 1994. The pursuer's pleadings include averments to the effect that the stress suffered by him in the accident caused or materially contributed to the onset of this disease, but it was explained to us that the current medical advice was to the effect that the disease was caused, or materially contributed to, by the underlying psychiatric disorder. Both parties were content that the court should proceed on that basis.
[2] In 1995 the pursuer began proceedings for damages against the defenders. Since the pursuer was a passenger on an aircraft on a non-international flight, his rights were governed by the Carriage by Air Acts (Application of Provisions) Order 1967 (S.I. 1967 No. 480) ("the 1967 order"). As I will explain in greater detail, the 1967 Order repeats most of the provisions of the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955. In their defences, the defenders raised two points which were said to exclude any right under the 1967 Order. First, it was said that there had not been any "accident" within the meaning of Article 17 of the Warsaw Convention. Secondly, it was said that the pursuer had not suffered "bodily injury" within the meaning of Article 17. It was accepted that the first of these points could not be determined until the relevant evidence had been heard. The second point was, however, argued before the Lord Ordinary, Lord Philip. The argument proceeded on the footing, familiar under Scottish procedure, that even if the pursuer were to succeed in proving all that could conceivably be proved on the basis of his pleadings, he would still not be entitled to the remedy sought. The Lord Ordinary concluded that a psychiatric disorder was not "bodily injury" within the meaning of Article 17. There was, on the other hand, no dispute before him that the pursuer's dyspeptic symptoms were encompassed by the words "bodily injury". The defenders, however, argued that those symptoms were not covered by Article 17 since they had not been caused by any physical impact to the body during the accident. The Lord Ordinary rejected that contention. He accordingly allowed the action to proceed to proof, but on the basis that proof of damage would be restricted to the averments concerning peptic ulcer disease.
[3] Both parties have reclaimed against that decision. Their respective positions can be summarised, at this stage, by reference to a list of six possible views as to what might be recoverable under Article 17, which was put forward by Mr. Moynihan on behalf of the pursuer. These six possibilities are capable of greater refinement, but they will serve for the present purpose:
1. Bodily injury includes fright or distress - meaning any emotional reaction
short of a recognised psychiatric disorder.
2. Bodily injury means any injury to tissues, organs or bones produced by
physical impact.
3. The parasitic approach: once there is any physical symptom, all loss is
recoverable, even if unrelated to the physical symptom.
4. Bodily injury means any palpable physical symptoms, and possibly any
psychological symptoms secondary to physical symptoms, but not any primary psychological condition which itself produced physical symptoms.
5. Bodily injury includes any psychiatric disorder which itself causes physical
symptoms.
6. Bodily injury is any impairment to health including (a) any physical injury
and (b) any recognised psychiatric disorder.
The defenders adopt the second of these positions. The pursuer adopts the sixth, although the fifth would be sufficient to entitle him to proof of all his heads of claim.
[4] So summarised, this appeal might be thought to raise a short point of interpretation. The issue is, however, less straightforward than it might appear. One consequence of its complexity is that it is difficult to avoid discussing one aspect of the problem without begging questions in respect of other aspects. Clarity may best be served by beginning with a chronology of the various legal instruments which require to be considered, including some of the travaux préparatoires.
CHRONOLOGY
The Paris Conference of 1925
[5] In 1923 the French Government invited foreign governments to participate in an international conference on air transport (the relevant documents are contained in Conférence Internationale de Droit Privé Aérien, published by the French Foreign Ministry in 1926). It had recently prepared a draft domestic law designed to restrict the liability of air carriers, but recognised that the issue was one best addressed on an international basis. This initiative received a favourable response from other governments, but the French Government was requested to prepare a preliminary draft convention to form a basis for discussion. The conference was postponed for that purpose, and in June 1925 the French Government circulated its draft. The preamble to this document recognised that there were two related legal problems affecting international air carriage. One concerned the choice of law (e.g. the law of the place where the contract was concluded, or that of the point of departure, or of the destination, or of the countries over which the aircraft passed), and the other concerned the substantive differences between the various domestic legal systems. The proposed method of solving these problems was to set out agreed rules in an international convention to which domestic effect would then be given by the States adhering to it.
[6] The Conference took place in Paris in October and November 1925. The proceedings were conducted in French. At its first session the Conference decided to appoint a committee to revise the French Government's preliminary draft and to present a revised text for approval. That committee was known as the Second Commission (to distinguish it from another which was set up to look at wider issues of private international law affecting air transport). The Second Commission then produced a report which included a revised draft convention. The draft convention was approved in principle at the second plenary session, but the Second Commission was requested to consider it further and present a finalised draft. It was envisaged that the finalised draft would be incorporated into the conference's final protocol, and thereafter considered by governments with a view to holding a second conference at which the convention would be signed on behalf of the States involved. The Conference also approved, at its second plenary session, the report of the First Commission, which proposed the establishment of a committee of legal experts to continue the work of the Conference in relation to issues of private international law relating to aviation. At the third (and final) plenary session, the Conference approved a draft protocol which included a modified draft of the proposed convention, and also a resolution that a committee of experts be appointed as earlier discussed. The final Protocol was then signed. The Conference also agreed that the second conference should be held in Poland.
CITEJA
[7] Following the Paris Conference, the proposed committee of experts was established. It was known as the Comité Internationale Technique d'Experts Juridiques Aériens, abbreviated to CITEJA. It undertook initially a consideration of the documents of air carriage, and considered a draft convention on this subject. It then decided to combine that issue with that of the liability of the carrier for passengers and goods carried, and established a committee (again known as the Second Commission) to produce a draft convention covering both subjects. The Second Commission prepared a draft convention, which was adopted subject to certain modifications. A report, incorporating the draft convention as approved, was then submitted on behalf of CITEJA to all interested governments, for the purpose of the forthcoming Warsaw Conference. That report (published in the Procès-Verbaux of the Warsaw Conference, and also, in translation, in Minutes, the Second International Conference on Private Aeronautical Law, translated by Horner and Legrez) makes it clear that the draft convention was based on the draft which had been adopted at the Paris Conference, which had itself been based upon the French Government's preliminary draft.
The Warsaw Conference of 1929
[8] The Second Conference met in Warsaw in 1929. The proceedings were again conducted in French. The Conference took as its starting point the CITEJA report and the draft convention adopted by CITEJA. Various amendments and observations were put forward by national delegates, which were discussed by the Conference at its plenary sessions. Once decisions on questions of principle had been taken in plenary session, a drafting committee made consequential revisals to the draft convention. The finalised draft was approved by the Conference at its closing session, and the Convention itself was then signed. The Convention, which was drawn up in French in a single copy, was deposited with the Government of Poland.
The Carriage by Air Act 1932
[9] The United Kingdom ratified the Warsaw Convention on 14 February 1933. The Convention was presented to Parliament (in French, with a translation into English) (Cmd. 4284, 1933). The Convention was given legal effect within the United Kingdom by the Carriage by Air Act 1932 (22 and 23 Geo. V, c. 36), which came into force in the United Kingdom on 13 May 1933. The 1932 Act included, in the First Schedule, an English translation of the Convention, and provided (by section 1) that the provisions of the Convention as so set out should have the force of law in the United Kingdom.
The Carriage by Air (Non-International Carriage) (United Kingdom) Order 1952
[10] The 1932 Act had made provision, in section 4, for the Crown to apply by Order in Council the provisions of the First Schedule to non-international carriage by air. Such provision was in due course made by the Carriage By Air (Non-International Carriage)(United Kingdom) Order 1952 (S.I. 1952 No. 158). This gave legal effect to a modified version of the Warsaw Convention to govern all carriage by air not governed by the Warsaw Convention. The Order was made subsequent to the decision in McKay v. Scottish Airways Limited, 1948 S.C. 254, that the claims of the relatives of passengers killed in an air crash in Scotland were barred by a condition on the ticket excluding all liability on the part of the carrier (the carriage not being covered by the Warsaw Convention, which would have denied effect to such a condition).
The Hague Conference of 1955
[11] In 1955 a conference was convened at the Hague in order, inter alia, to make changes in the limits on the carrier's liability. The resulting protocol amended the Warsaw Convention in a variety of respects. It was ratified by the United Kingdom and presented to Parliament (Cmd. 9824, 1956). The United Kingdom is therefore party to both the Warsaw Convention and the amended version agreed at the Hague. There are a number of other countries (including the USA) which are party to the Warsaw Convention but have not adopted the Hague version.
Carriage by Air Act 1961
[12] The Hague Protocol was given legal effect in the United Kingdom by the Carriage by Air Act 1961 (9 and 10 Eliz. 2, c. 27). Schedule 1 to the Act was in two parts. Part I set out an English translation of the Warsaw Convention, as amended by the Hague Protocol. Part II set out the French text, i.e. the Warsaw Convention itself, as amended. Section 1(1) of the 1961 Act provided that the Convention as amended "as set out in Schedule 1" should have the force of law in the United Kingdom, and that the 1932 Act should cease to have effect. Section 1(2) provided:
"If there is any inconsistency between the text in English in Part I of Schedule I to this Act and the text in French in Part II of that Schedule, the text in French shall prevail."
Section 10(1) of the 1961 Act provided:
"Her Majesty may by Order in Council apply Schedule I to this Act, together with any other provisions of this Act, to carriage by air, not being carriage by air to which the Convention applies, of such descriptions as may be specified in the Order, subject to such exceptions, adaptations and modifications, if any, as may be so specified."
This was a re-enactment, with immaterial amendments, of section 4 of the 1932 Act.
The Montreal Agreement of 1966
[13] The USA adhered to the Warsaw Convention in 1934. Its dissatisfaction with the low limit on liability led it in 1965 to give formal notice of denunciation of the Convention. This notice prompted a conference in Montreal, from which emerged a private accord among airlines, approved by the United States Government, known as the Montreal Agreement. Under this agreement, the majority of international air carriers agreed to increase their liability limit per passenger and to waive their right under Article 20(1) of the Convention to defend claims on the grounds that they took all necessary measures to avoid the passengers' injury or that it was impossible to take such measures. In other words, they accepted a form of strict liability for accidents. The United States Government withdrew its notice of denunciation in the light of the accord. The Montreal Agreement affects only international flights with connecting points in the United States and is therefore not relevant to the present case, but it features in some of the American cases discussed later.
The 1967 Order
[14] When the 1961 Act was brought into force, it was necessary to give continuing force in United Kingdom law to the provisions of the Warsaw Convention (in its original form), since it continued to apply to certain international carriage (as a consequence of the fact that certain States party to the Warsaw Convention had not adopted the Hague Protocol). The enabling power conferred by section 10 of the 1961 Act was exercised by the 1967 Order, both for this purpose and to revoke and replace the 1952 Order. In place of the 1952 Order, the 1967 Order enacted instead a modified version of the Warsaw Convention as amended at the Hague, to govern all carriage by air not falling within the definition of "international carriage" in either the original Warsaw Convention or the Hague version. The resultant situation was summarised in Holmes v. Bangladesh Biman Corporation [1989] 1 A.C. 1112, 1126 by Lord Bridge of Harwich (from whose speech I have borrowed in the foregoing account):
"Thus there are now three sets of rules in the law of the United Kingdom and other British territory which govern different categories of carriage by air to which I shall refer for convenience as 'the Hague rules' (Schedule I to the Act of 1961), 'the Warsaw rules' (Schedule II to the Order of 1967) and 'the United Kingdom rules' (Schedule I to the Order of 1967)."
The Guatemala City Protocol of 1971
[15] An international conference on air law was held in Guatemala City in 1971. Representatives of certain of the Warsaw signatories agreed a protocol making amendments to the Convention. The protocol appears to have been ratified by only a few countries, not including the United Kingdom, and therefore does not govern this case. It does, however, feature in certain of the foreign cases to be discussed later.
The Montreal Convention of 1999
[16] An international conference on air law was held in Montreal in May 1999. It ended with the signing of a convention intended to modernise and consolidate the Warsaw Convention and related instruments. The Montreal Convention has not yet entered into force. Some reference was however made to it in counsel's submissions.
THE GENERAL APPROACH TO INTERPRETATION OF THE 1967 ORDER
[17] The appropriate starting point for legal analysis is the 1967 Order, since the present action is founded upon it. By virtue of Article 4 of the Order, Schedule I has effect in respect of non-international carriage, including the carriage of the pursuer as a passenger on the defenders' helicopter at the time of the incident which gave rise to the present action. Part I of Schedule I is headed "Application of the Warsaw Convention as amended at the Hague". It provides:
"The amended Convention shall apply in respect of carriage described in Article 4 of this Order, subject to the following exceptions, adaptations and modifications."
The expression "the amended Convention" is defined by Article 2 as follows:
"'The amended Convention' means the English text of the Warsaw Convention with the amendments made in it by the Hague Protocol as set out in Schedule I to the Act of 1961, and includes the additional protocol to the Warsaw Convention as set out at the end of that Schedule."
Part III of Schedule I to the 1967 Order sets out, "for convenience of reference", the amended Convention with the exceptions, adaptations and modifications made by the Schedule. A comparison of Part III with the English text of the amended Convention, as set out in Schedule I to the 1961 Act, reveals that the exceptions, adaptations and modifications delete those parts of the Hague rules which are not relevant to non-international carriage, and express the financial limits on liability in terms of special drawing rights (with provision for their conversion into Sterling), rather than in French francs. The provisions are otherwise identical to those contained in the English text set out in Schedule I to the 1961 Act. In particular, Article 17 (on which the present action is based) is in identical terms in both texts.
[18] The question was however raised, in the discussion before us, whether Article 17 (and the other provisions) should necessarily be given the same meaning in the context of the 1967 Order as they are given in the context of the Warsaw or Hague rules. In that regard I refer to what was said by Lord Hope of Craighead in Herd v. Clyde Helicopters Limited, 1997 S.C. (H.L.) 86, 100. After discussing the correct approach to the interpretation of international conventions such as the Warsaw Convention and the amended version agreed at the Hague, his Lordship continued:
"If the United Kingdom rules had been designed to deal exclusively with carriage performed in 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 these two States as those which gave rise to the Convention. Schedule I 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 Limited [1937] 1 K.B. 50, per Greene L.J. at pages 74 to 75."
The practical considerations which Lord Hope had in mind can be illustrated by an example. On a flight between Edinburgh and London there may be some passengers for whom those places are the beginning and end of their journey. The carrier's liability towards them will be governed by the United Kingdom rules. There may be other passengers for whom that flight forms part of a longer journey to or from a country which is party to the Warsaw Convention but not to the Hague Protocol. The carrier's liability towards them will be governed by the Warsaw rules. There may be other passengers for whom that flight forms part of a longer journey to or from a country which is party to both the Warsaw Convention and the Hague Protocol. The carrier's liability towards them will be governed by the Hague rules. There may be other passengers for whom that flight forms part of longer journey to or from a country which is party to neither the Warsaw Convention nor the Hague Protocol. The carrier's liability towards them under United Kingdom law will be governed by the United Kingdom rules. The practical advantages of construing identical provisions in all three sets of rules in the same sense are manifest. The carrier knows that there are uniform rules governing its liabilities towards its passengers, regardless of their particular travelling arrangements, and can arrange its insurance on that basis; and passengers and their insurers can equally proceed on the basis that a uniform regime is in place.
[19] This conclusion is, in my opinion, fortified by a consideration of the express purpose of the 1961 Act, under which the 1967 Order was made. As Lord Hope of Craighead observed in Herd (at page 97), the long title of the 1961 Act states that it is:
"An Act to give effect to a Convention concerning international carriage by air known as 'the Warsaw Convention as amended at the Hague 1955', to enable the rules contained in that Convention to be applied, with or without modification, in other cases and, in particular, to non-international carriage by air; and for connected purposes."
So the United Kingdom rules are intended to be the same as the Hague rules (except in so far as modified), rather than a discrete set of rules which happen to be identical in wording to the English translation of the Hague rules.
[20] In the present case, it was not suggested that any of the "exceptions, adaptations and modifications" specified in Part I of Schedule I to the 1967 Order were relevant to the interpretation of the relevant rules: all the rules which require to be considered in the present case are to be found in Schedule I to the 1967 Order in identical terms to those in which they appear in Part I of Schedule I to the 1961 Act (subject to the immaterial difference as to the currency in which the financial limits on liability are expressed). Nor was it suggested, so far as the corresponding Hague rules are concerned, that there was any inconsistency between the English and French texts in Schedule I to the 1961 Act (in which event, in giving effect to the Hague rules, the French text would prevail, by virtue of section 1(2) of the 1961 Act). In these circumstances, I consider that the relevant rules in the 1967 Order should be given the same meaning as the corresponding rules in the 1961 Act, i.e. the English translation of the Warsaw Convention as amended by the Hague Protocol.
[21] The general approach to interpretation of the rules in the 1961 Act was considered by the House of Lords in Fothergill v. Monarch Airlines Limited [1981] AC 251. It is, however, relevant to note that that case did not concern the 1967 Order, but the 1961 Act itself. Both the French text and the English text formed part of the United Kingdom law which had to be applied in that case, and (as I have already mentioned) in the event of any inconsistency between the two, the French text was to be preferred. The 1967 Order, on the other hand, gives effect only to the English text (in a modified form). That does not, however, entail that the French text is irrelevant. For the reasons I have explained, the rules in the 1967 Order are to be given the same meaning as the corresponding rules in the English text in the 1961 Act; and it is appropriate (even in the absence of the statutory enactment of the French text, or the provision giving it priority over the English text) to have regard to the French text as an aid to the interpretation of the English text contained in the 1961 Act and reproduced in the 1967 Order (cf. James Buchanan & Co. Limited v. Babco Forwarding & Shipping (U.K.) Limited [1978] A.C. 141 at page 152 per Lord Wilberforce, page 161 per Lord Salmon).
THE INTERPRETATION OF ARTICLE 17
[22] On the basis that Article 17 of the United Kingdom rules should be given the same meaning as Article 17 of the Hague rules (the latter being itself identical to Article 17 of the Warsaw rules), the question arises how the Warsaw Convention and the Hague Protocol should be interpreted. Following the approach adopted in Fothergill v. Monarch Airlines Limited and subsequent cases (notably Abnett v. British Airways plc, 1997 SC (HL) 26 - in which the issue to be determined in the present case was raised (at page 33) but not decided - and Herd v. Clyde Helicopters Limited) it appears to me that the starting point is the language of the Convention itself (both in the English text, and in the French original, of which the English text is merely a translation, albeit one which has been given statutory effect), interpreted according to the principles upon which international conventions are to be interpreted. It is also proper to have regard to relevant decisions of other courts; to the writings of jurists; and, if the matter remains in doubt, to the travaux préparatoires.
[23] The title of the Warsaw Convention (as translated into English) is "International Convention for the Unification of certain Rules relating to International Carriage by Air." Its preamble identifies the object of the Convention with greater specificity by referring to "the advantage of regulating in a uniform manner the conditions of international carriage by air in respect of the documents to be used for such carriage and of the liability of the Carrier."
[24] Chapter 1 of the Convention deals with its scope and defines certain terms. Chapter 2 deals with documents of carriage. Chapter 3, which is headed "Liability of the Carrier", begins with Article 17. The French text is in the following terms:
"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 opérations d'embarquement et de débarquement."
The English text translates that as follows:
"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."
Article 17 (read short) is thus concerned with the carrier's liability in the event of the death or injury of a passenger. Article 18 (read short) deals with the carrier's liability in the event of damage to registered baggage or cargo. Article 19 deals with the carrier's liability in the event of delay of passengers, baggage or cargo. Article 20 provides the carrier with a defence if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that such measures were impossible. Article 21 provides that the court may exonerate the carrier, in accordance with its own law, if he proves that the damage was caused or contributed to by the negligence of the injured person ("la personne lésée"). Article 22 limits the liability of the carrier, in the carriage of persons, to a fixed sum; in the carriage of registered baggage and cargo, to a fixed sum per kilogram; and as regards objects of which the passenger takes charge himself, to a fixed sum per passenger. Article 23 makes null and void any provision tending to reduce or exclude the carrier's liability. Article 24 provides that in the cases covered by Articles 17, 18 and 19, actions for damages can only be brought subject to the conditions and limits set out in the Convention. Article 28 specifies the courts in which an action for damages can be brought. Article 29 imposes a two year time limit on the raising of actions. The scheme contained in Chapter 3 is common to the Warsaw rules, the Hague rules and the United Kingdom rules.
[25] In interpreting the words "bodily injury" in Article 17, the defenders' argument focused on that particular article. "Death" was self explanatory. "Wounding" was a particular type of physical injury to the body. The words "other bodily injury" extended the scope of Article 17 in non-fatal cases beyond "wounding"; but the word "bodily", giving it its ordinary meaning, confined Article 17 to cases where a non-fatal injury was of a physical rather than mental nature. "Bodily" was used in contradistinction to "mental", "psychological" or "psychiatric". This meaning was even clearer, it was submitted, when one considered the original French text of Article 17, and in particular the words "lésion corporelle".
[26] The pursuer's argument, on the other hand, considered Articles 17, 18 and 19 as a group. Article 17 imposed on the carrier a liability for "damage sustained in the event of" a specified type of occurrence - namely, "the death or wounding of a passenger or any other bodily injury suffered by a passenger." Article 18 had the same structure, but was concerned with a different type of occurrence, namely "the destruction or loss of, or...damage to, any registered baggage or any cargo." Article 19 was concerned with a third type of occurrence which might occasion damage, namely "delay in the carriage by air of passengers, baggage or cargo." There was a fourth type of occurrence which might result in damage but which was not covered by any of these Articles: the destruction or loss of, or damage to, a passenger's hand baggage or personal effects did not trigger any liability under Articles 17 to 19, although Article 22(3) limited the carrier's liability in respect of such objects (a liability which must arise under national law). In these circumstances, the words "other bodily injury" were intended to confine Article 17 to cases of personal injury. "Bodily injury" was used in contradistinction to "damage to property" or "economic loss". This meaning was equally supported, it was submitted, by the French text.
[27] It was common ground that the words "bodily injury" are capable of being construed consistently with either of the interpretations put forward. As I have tried to indicate in the way I have summarised what I consider to be the most salient aspect of this part of the argument, one meaning or the other becomes (to some extent) more or less plausible depending on whether the context is Article 17 alone or the Convention as a whole. In the phrase "death or wounding...or any other bodily injury" one focuses on the fact that wounding is the infliction of a particular type of "bodily injury" which involves trauma to the external tissues of the body (the relevant definition of "wound" in the Shorter Oxford English Dictionary being "an injury to body tissue caused by a cut, blow, hard or sharp impact, etc, esp. one in which the skin is cut or broken; an external injury"). I would observe that "wounding" seems to me to be used in Article 17 in a wider sense than it would be given in ordinary parlance. "Wounding" is the word which is commonly used where an injury has been caused by violence, and particularly by the use of a weapon. If one was reading an account of an air accident, one would be surprised to read that passengers had been wounded (unless the incident had involved the use of violence). It may be that the translator selected "wounding", rather than "injury" (which might be thought to be a more apt translation of "blessure" in this context), because he had decided to use the latter word as his translation of "lésion". Be that as it may, given that the words "other bodily injury" are intended to extend the scope of Article 17 beyond "wounding" but to restrict it to injuries which are "bodily", the most natural reading in that context, in my opinion, is to construe those words as covering other harmful physiological changes in the structure of the body.
[28] Still looking at the question solely in the context of Article 17, that construction seems to me to be equally natural if one considers the French text, although there are certain differences of nuance. The word "blessure" is defined by the Petit Robert as "lésion faite aux tissus vivants par une cause extérieure (pression, instrument tranchant ou contondant, arme à feu; chaleur), involontairement ou pour nuire.". "Lésion" can have a legal or a medical sense. It is defined in the Petit Robert as follows:
"1. Dr. Atteinte portée aux intérêts de. V. Dommage, préjudice, tort -Spécialt. (dans un contrat) Préjudice causé à l'une des parties. Vente entachée de lésion. Rescision de la vente pour cause de lésion.
2. Changement grave dans les caractères anatomiques et histologiques d'un organe sous l'influence d'une maladie, d'un accident. V. Blessure, désordre, trouble. Lésion produite par un coup, un choc (V. Contusion), une brûlure V. aussi Plaie). Lésion secondaire, V. Complication. Lésion ulcéreuse, tuberculeuse, infectieuse. Lésions cérébrales."
The defenders submitted that the word was used in the second of these senses in Article 17, so as to bring within its scope any change in the tissues of the body which could not be described as "blessure". Although the qualifying adjective "corporelle" might be thought to be pleonastic if "lésion" were used in that medical sense, my impression is that French usage nevertheless supports the defenders' submission. I refer to the writers mentioned below and to the discussion at the Madrid Conference of 1951, mentioned later. In any event, the word "lésion" is qualified by "corporelle", the relevant sense of which is defined by the Petit Robert as "relatif au corps" (the other sense being "corporeal", as in "corporeal property"). If one then asks why the scope of Article 17 was extended beyond "blessure" to "toute autre lésion corporelle", the most natural explanation, in my opinion, would be that those words were included so as to take in corporeal injuries which were not within the scope of the term "blessure". Examples suggested during the argument included damage to hearing caused by a drop in air pressure, damage to the lungs caused by smoke inhalation, and disease caused by an accidental escape of radiation or bacteria. These are perhaps not especially compelling examples: if the word "blessure" had stood alone, it might in any event have been interpreted as including damage to hearing or internal organs caused by an external factor such as air pressure or, possibly, smoke; and the theory that the signatories in 1929 had in mind the possibility of passengers suffering the effects of decompression or catching diseases through accidental escapes of bacteria or radiation strikes me as implausible. Nevertheless, the possibility of passengers suffering physical injuries falling outwith the scope of the term "blessure" would not appear to me to be in the least far-fetched. Drowning and asphyxiation, for example, are real possibilities. At the same time, that construction does not seem to me to be so compelling that one could necessarily exclude the alternative explanation put forward on behalf of the pursuer: namely, that the intention of adding the words "toute autre lésion corporelle" was to cover all harm suffered by a passenger in his person as distinct from his property or his business, whether that harm be to his physical or mental health. Nevertheless, if that were the intention, then it seems to me that the word "corporelle" was a more restrictive adjective than one might have expected. The selection of that word does direct one's attention to the body. Whatever its philosophical or physiological soundness may be, there is a linguistic and conceptual distinction between "corporelle" and "mentale"; and if an injury of a mental character were intended to be covered, then "corporelle", standing alone, does not appear to me to have been a natural choice of adjective. One might have expected a different form of words altogether, such as "toute autre atteinte à la santé". The same point applies to the use of the adjective "bodily" in the English translation. In this connection, it is interesting to note that the 1952 Berne Convention on International Rail, which used the expression "la mort, les blessures et toute autre atteinte à l'intégrité corporelle" was amended in 1961 so as to read: "la mort, les blessures et toute autre atteinte à l'intégrité corporelle ou mentale" (emphasis added).
[29] My understanding of the usual meaning of "corporelle" and of "lésion corporelle" is confirmed and illustrated by French legal writings. For example, Savatier's Traité de la Responsabilité Civile (1951) speaks of "toute infirmité corporelle ou mentale" (vol. 2 page 98). Mazeaud and Tunc's Traité théorique et pratique de la responsabilité civile delictuelle et contractuelle (5th ed. 1957) speaks of "décès de la victime par suite de lésion corporelle ou de troubles de la santé" (vol. 1 page 378). Marty and Raynaud's Droit Civil, Les Obligations (2nd ed. 1988) speaks of "préjudice corporel, c'est à dire de l'atteinte à l'intégrité physique de la victime", which is contrasted with "les souffrances subies par la victime" (vol. 1 pages 461-462). Ripert and Boulanger's Traité de Droit Civil (1957), in its discussion of "Blessures" (which is distinct from its discussion of "Maladies"), states (vol. 2, p. 374):
"992. Blessures.- L'atteinte à l'intégrité corporelle de la personne est un dommage rendu très fréquent par le développement du machinisime et par l'intensité de la circulation automobile. Le droit romain considérait que la lésion corporelle n'était pas susceptible d'une réparation en argent 'cum liberum corpus aestimationem non recipiat' (Maynz, t.II, p.26, note 1). La solution moderne est toute opposée. La personne blessée peut réclamer les frais nécessités par blessure...".
Professor Ripert was a member of the French delegation to the Paris and Warsaw Conferences and the French expert on CITEJA. De Juglart's Traité Elémentaire de Droit Aérien (1952, with a preface by Prof. Ripert) criticises (at p.330) the absence from Article 17 of any reference to "lésion mentale":
"Il est regrettable, par ailleurs, qu'aucune distinction ne soit faite entre les invalidités totales ou permanentes et les simples lésions, blessures ou invalidités partielles. La lésion mentale devrait même faire l'objet d'une mention spéciale."
The second sentence quoted is capable of more than one construction; but it implies, at the least, that Article 17 is not well expressed if it is intended to cover "lésion mentale".
[30] Non-legal writings equally illustrate the usage of "corporelle" to refer to the physical body as distinct from an individual's psychological character (e.g. Proust, in the "Bal de têtes" section of Le Temps Retrouvé: "ces possibilités, bien qu'étant toutes physiognomiques ou corporelles, semblaient avoir quelque chose de moral").
[31] So far I have considered the meaning of "bodily injury" or "lésion corporelle" in the context of Article 17 alone. One must, however, consider the scheme of the Convention as a whole, and in particular Article 17 has to be construed in the context of Chapter 3. As I have mentioned, Article 18 deals with damage to registered baggage, and Article 19 with delay. Personal effects are dealt with in Article 22(3). These circumstances tend to strengthen the argument in favour of interpretation of "bodily" or "corporelle" as being intended to demarcate personal injuries from damage to property or economic loss. The interpretation of Article 17 does not however depend, in my opinion, on a stark choice between, on the one hand, ascribing to the signatories a specific intention to demarcate personal injuries from patrimonial loss and, on the other hand, ascribing to them a specific intention to demarcate physical injury from psychiatric injury. They may have had the former intention and not the latter, and yet have used language which had the effect of limiting the range of personal injuries which was covered, because for example they may not have had non-physical injuries in contemplation. I am inclined to accept that "bodily injury" was intended to demarcate Article 17 from Articles 18 and 19, but nevertheless find the pursuer's interpretation of the words rather unattractive, because it strikes me as straining, albeit not beyond breaking point, the usual sense of "bodily" or "corporelle".
[32] Interpretation of the language itself therefore leaves me with a provisional preference for the more limited construction, but that preference is a fairly narrow one, and it would not enable me to reach any confident conclusion. A number of other matters were, however, discussed as tending to favour one interpretation or the other. These can be broadly summarised as:
1. The treatment of psychiatric injury in the legal systems of the 1929
signatories, as forming part of the context in which Article 17 has to be interpreted.
2. The purpose of the Convention.
3. The practical implications of allowing, or disallowing, liability in the event
of psychiatric injury.
[33] In relation to the first of these matters, it was common ground that in 1929, as at the present time, the legal systems of the signatories varied considerably in their treatment of mental distress and psychiatric injury. In some countries, such as France, there was said to be no particular difficulty in respect of liability for matters of that kind. In others, such as the United Kingdom, damages had been awarded for purely psychiatric illness in particular circumstances (Bell v. Great Northern Railway Co. (1890) L.R. (Ir.) 428). In the legal systems of many other signatories, however, such as the U.S.S.R. and the Netherlands, it appears that no damages were recoverable in respect of harm of that kind. Against this background, it was argued by the defenders, those States which did not recognise liability for psychiatric injury would not have signed a Convention which imposed such a liability; and Article 17 ought not therefore to be interpreted as having that effect.
[34] Your Lordships have rejected this argument as resting on a false assumption that the Convention governs not only the circumstances which can give rise to liability but also the heads of loss for which damages are recoverable. I agree that such an assumption would be unwarranted. "Damage", in Article 17, is not synonymous with "death...wounding...or...other bodily injury": it is something which is, or may be, "sustained in the event of" such an occurrence. Indeed, in Articles 18 and 22(2)(b), although the English translation uses the word "damage" to describe both the consequence of the event and the event itself, the original French distinguishes between "dommage" and "avarie". It is also clear in Article 19, at least, that damage is not a necessary consequence of the event triggering liability, since delay may or may not result in damage. What constitutes "damage" is not defined by the Convention, and therefore must be a matter for the national court to determine according to its own law. This can be seen most clearly in the case of relatives' claims following the death of a passenger, where Article 24(2) makes it plain that Article 17 leaves open questions as to who are the persons who have a right to bring suit and what are their respective rights. The differences between English and Scots law in that regard (without ranging further afield) are apparent from sections 3 and 11(3) of the 1961 Act. Even in relation to non-fatal accidents, the heads of loss which are recoverable will inevitably depend on the particular legal system applied by the court dealing with the case. As between Scotland and England, for example, there are differences in the law applicable to the assessment of damages for personal injuries. Given the range of countries which are party to the Warsaw Convention and the diversity of their legal systems, it would not be surprising to find significant differences in their approach to heads of loss (such as pain and suffering, or loss of employability).
[35] Under the circumstances, I can understand your Lordships' view that to construe the range of events under which liability will arise for "damage sustained" as encompassing events in which no damage of a kind of which cognizance is taken by a particular legal system does not create any difficulty for that legal system. The situation is one in which there will be no loss recognised by that system, and therefore no damages awarded by its courts. The defenders' argument might even be turned on its head. If a legal system would award damages to a passenger who suffered a psychiatric illness as a direct result of an accident caused by the negligence of the carrier, it could be said to call for explanation if that State had signed a Convention which absolved the carrier of all such liabilities. A Convention which enabled such damages to be recovered, if the law applied by the court recognised such a head of loss, but did not compel such damages to be awarded if the national law did not take cognizance of such losses, would allow each State to adhere to its own jurisprudence so far as the law of damages was concerned, and might be expected to be generally acceptable.
[36] Nevertheless, I am not convinced that that is a complete answer to the defenders' argument, which appears to me to go to the heart of the present case. In the event that a passenger suffers bodily injury, Article 17 imposes a liability on the carrier for the damage sustained by the passenger. If one says that a psychiatric disorder constitutes bodily injury, but may or may not constitute damage (depending on whether national law takes cognizance of such an injury as a recoverable head of damage), then, if one interprets Article 17 as meaning that a liability comes into existence only if damage is sustained, the consequence is that psychiatric disorder will "trigger" a liability in some signatory States but not in others. Even if one interprets Article 17 as meaning that bodily injury always gives rise to a liability, that liability will inevitably be purely theoretical in signatory States where psychiatric injury is not compensatable. Putting the matter slightly differently, Article 17 (when given effect in domestic law) confers a cause of action. This proposition was agreed by the parties before us, and is supported by the decision of the U.S. Court of Appeals, Second Circuit, in Benjamins v. British European Airways, 572 F. 2d 913 (1978), and the subsequent decision of the Supreme Court in Zicherman v. Korean Airlines Co. Ltd., 516 U.S. 217 (1996) at page 223, as well as by the language of the 1932 Act (especially section 1(4)), the 1961 Act (section 1(1)) and the speech of Lord Mackay of Clashfern L.C. in Herd v. Clyde Helicopters Limited at page 93. If the ingredients of the right of action are (1) the death, wounding or other bodily injury of a passenger in (or, at least, as a result of) an accident (as to the necessity for an accident, see Air France v. Saks, 470 U.S. 392 (1985) and Chaudhari v. British Airways plc, 16 April 1997, Court of Appeal) which occurred while on board, embarking or disembarking, and (2) the sustaining of damage caused by the accident, it again follows, if psychiatric disorders constitute "bodily injury" but may or may not constitute "damage", that whether there is a right of action will depend on domestic law. Even if one adopts the view that the right of action exists whenever a passenger suffers psychiatric disorder due to an accident, and that domestic law only enters into the assessment of damages, the consequence is again that the right of action will always be purely theoretical in signatory States where such a disorder is not compensatable.
[37] The position is different, in my opinion, where the inability of the passenger to recover damages under domestic law is not due to the nature of his injury. For example, if a legal system did not take cognizance of non-pecuniary loss, a passenger who suffered a broken leg might or might not recover damages under that legal system, depending on whether he had suffered pecuniary losses. Any bar to recovery would in reality, as well as in theory, arise solely at the stage of assessment of damages. There would not be any reason why a State with a legal system of that kind should not have agreed that Article 17 should cover broken legs. I find it more difficult, however, to envisage signatories agreeing to create a liability, or to confer a cause of action, in relation to psychiatric disorders, if their legal systems would never recognise that any damage had been suffered in such a situation.
[38] I would distinguish in the same way between the question whether liability can arise as the result of a psychiatric disorder and the question whether damages are recoverable for a psychiatric disorder consequential upon a physical injury. The answer to the first question depends on whether "bodily injury" includes psychiatric disorders, and is therefore a question of interpretation of the Convention. The answer to the second question depends on whether the lex fori recognises psychiatric disorder as a head of damage. In a situation where some signatories had legal systems which recognised such a head of damage and others did not, little practical benefit would be achieved by their agreeing that a carrier should be liable for damage sustained in the event of a passenger's suffering a psychiatric disorder. In the same situation, however, a considerable practical benefit would be achieved by their agreeing that a carrier should be liable (under the conditions set out in the Convention) for damage sustained in the event of a passenger's suffering a bodily injury (construed so as to be restricted to physical injuries), even though the amount of the damages recoverable might vary from one State to another, in a case where a psychiatric disorder (such as a depressive illness) was suffered as a result of the physical injury.
[39] That brings me to the second issue, which again I regard as being of central importance: the purpose of the Convention. It was argued by the defenders that the stated object of uniformity would be compromised if the liability of the carrier were not the same in all the States party to the Convention, and that Article 17 must therefore be construed as imposing a uniform rule as to the recoverability of damages for non-physical injury (which, given the law of such countries as the U.S.S.R., must, it was said, be a rule barring recovery). I do not find this argument compelling as so stated, but it is capable of refinement.
[40] As I have already mentioned, the express purpose of the Convention is the creation of uniform rules in respect of the liability of the carrier (and also in respect of documentation). Chapter 3 in particular is, as Lord Hope of Craighead observed in Abnett (at page 37), designed to set out all the rules relating to the liability of the carrier which are to be applicable to all international carriage of persons, baggage or cargo by air to which the Convention applies. There are certain matters which are expressly or implicitly confided by Chapter 3 to the law applied by the national court. Examples are the effect of contributory negligence (Article 21), title to sue in respect of death (Article 24), questions of procedure (Article 28) and the calculation of the limitation period (Article 29). The Convention does not therefore create complete uniformity. Nevertheless, the Convention aims to achieve uniformity in respect of the critical matters relating to liability, so as to enable both the passenger and the carrier to arrange insurance: notably, the period of risk (i.e. the period of carriage, as defined in Articles 17 and 18); the risks themselves (i.e. the events which give rise to liability, as defined in Articles 17 to 19); the maximum amount of liability (as defined in Article 22); and the period within which claims must be notified (Articles 26 and 28). The idea that liability in respect of a particular type of injury could exist in some signatory States but not in others would appear to me to be entirely contrary to the system which the Convention aimed to create.
[41] The proposition that the wider interpretation of "bodily injury" is consistent with the purpose of the Convention therefore rests on the distinction, which I have already discussed, drawn between "liability" and "damage": if psychiatric injury falls within the scope of Article 17 and is compensatable in some signatory States but not in others, it can be argued on the basis of that distinction that the objective of uniformity of "liability" is respected, albeit the liability has no practical content in some States. This strikes me as an excessively formal argument in relation to a Convention which was designed to achieve practical results. If it is correct, then carriers and passengers require to investigate the legal systems of the countries involved in their flights in order to know whether or not they require insurance cover for a particular risk (i.e. the risk of psychiatric injury), something which the Convention was designed to avoid. I refer again to the speech of Lord Hope of Craighead in Herd at page 100, and to the dictum which his Lordship cited there from the judgment of Greene L.J. in Grein v. Imperial Airways Limited. In my opinion a "purposive" interpretation of Article 17 tends to favour interpreting "bodily injury" so as to exclude psychiatric harm, if (as is agreed) such harm was not recognised as compensatable in many of the signatory States in 1929 (or, indeed, at the present time).
[42] Such an interpretation might be criticised as resulting in a "levelling-down" in States which recognised, in their domestic law, liability for purely mental injury. The likelihood of such States agreeing to dispense with such liability might be argued to be as remote as that of other States agreeing to create a liability unknown in their domestic law. It appears to me however to be necessary to bear in mind, first, that a potential liability under domestic law (prior to the Convention) might be capable of being excluded by contract (as in McKay v. Scottish Airways Ltd). A Convention which created a liability incapable of being excluded by contract, albeit one arising in narrower circumstances than domestic law would have permitted, could therefore constitute a practical benefit to passengers. The second, and more important, point to bear in mind is that the primary purpose of the Convention was to achieve a practical benefit for all those involved in carriage by air, whether as carriers or as passengers, by enabling them and their insurers to arrange their affairs on the basis that liability would arise in the same circumstances no matter where the event occurred or where the matter was litigated. If Article 17 bears the wider meaning contended for, then carriers and passengers have to examine the domestic legal systems of the countries in which any dispute might be litigated (in accordance with Article 28) in order to discover whether damages might be recoverable in the event of the passenger suffering a purely mental injury. If, on the other hand, Article 17 bears the narrower meaning contended for, then carriers know that they do not require insurance cover for the risk of passengers suffering purely mental injuries, and passengers equally know that they must arrange private insurance if they desire cover for that risk. The latter construction is therefore the one which better serves the purpose of the Convention.
[43] In relation to the practical implications of interpreting "bodily injury" so as to include psychiatric illness, the defenders founded on the factors which, in our domestic law, have led the courts to limit the circumstances in which a person can recover under the law of negligence for purely psychiatric harm. Reference was made in particular to the speech of Lord Steyn in Frost v. Chief Constable of South Yorkshire [1999] 2 AC 455 at pages 493-494. His Lordship there identified certain features of claims for psychiatric harm which in combination might account for their different treatment from claims for physical harm. His Lordship emphasised, in particular, the wide scope of potential liability for pure psychiatric harm, i.e. the potentially wide class of plaintiffs involved. His Lordship explained the situations in which recovery for psychiatric harm was permitted under English and Scots law as being situations in which there were restrictions on the classes of plaintiffs who could sue.
[44] Our domestic law is not in itself relevant to the interpretation of an international treaty, which "should be construed on broad principles of general acceptation" (Stag Line v. Foscolo Mango Co. Ltd. [1932] A.C. 328, 350 per Lord Macmillan). On the other hand, the practical considerations which have influenced the development of our domestic law may in principle be relevant, if one would have expected them also to have influenced the treaty signatories. In the present case, however, the situation with which Article 17 is concerned is far removed from those which Lord Steyn had in contemplation. The class of persons who are entitled to claim under Article 17 in respect of bodily injury is restricted to passengers, who must have been involved in an accident, and the accident must have taken place on board the aircraft or in the course of embarking or disembarking. The potential burden of liability is further restricted by the cap on damages imposed by Article 22. Article 17 is therefore dealing with a situation in which there are in-built restrictions both on the class of potential claimants and on the amount which they can recover.
[45] Counsel for the pursuer on the other hand emphasised the practical difficulties which would result if Article 17 were to be construed as excluding liability in the event of personal injury of a mental rather than physical nature. Such an approach inevitably results in liability depending on the drawing of distinctions which, in our domestic law, have long been regarded as tenuous and potentially unjust (see e.g. Bourhill v. Young, 1942 SC (HL) 78, 87 per Lord Macmillan; Page v. Smith [1996] 1 AC 155, 180-181 per Lord Browne-Wilkinson, 188 per Lord Lloyd of Berwick). In the absence of the danger of unrestricted liability to which Lord Steyn referred in Frost, there might not necessarily appear to a British court to be any compelling reason to distinguish between physical and mental injury, if this were a question of domestic law. This case, however, concerns an international convention, and it is apparent that the legal systems of other signatories treat this question differently from our own. In the circumstances, I do not find the competing arguments based on practical difficulties of much assistance one way or the other.
[46] In interpreting Article 17, one is not confined to the language of the Convention itself. It is also legitimate to take into account "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation": see Article 31.3(b) of the Vienna Convention on the Law of Treaties (which, although it applies only to treaties concluded after 27 January 1980, when it came into force, is to be regarded as having codified existing public international law in relation to treaties). There are two matters which might be mentioned in this context, although they are in themselves of only slight significance.
[47] The first is that the official German translation of "lésion corporelle", adopted by Austria, Germany and Switzerland, is "gesundheitlich geschädigt", words which draw no distinction between mental and physical health. That translation is relevant in so far as one might expect it to reflect a contemporaneous understanding of what had been agreed, but it is of no greater weight than the English translation, and of less weight than the French text. I note that Dr. Otto Riese, who had been a member of the German delegation to the Warsaw Conference, described the German version as a somewhat free translation of the French text ("eine etwas freie Übersetzung des französischen Textes": Luftrecht, 1949, p. 442).
[48] The second matter concerns a meeting of the International Civil Aviation Organisation Legal Committee (which took over the work of CITEJA following the latter's dissolution in 1947), in Madrid in 1951. The meeting formed part of a programme of work on the revision of the Warsaw Convention, which led to the Hague Conference in 1955. Various amendments to Article 17 were proposed at the meeting, including one which was proposed by the French representative, M. Garnault (who was also the head of the French delegation to the Hague Conference in 1955), to substitute "affection corporelle" for "lésion corporelle". His explanation, as recorded in the minutes, was that the word "lésion" "presupposed a rupture in the tissue, or a dissolution of continuity...he thought that there could be concrete cases where, without there being a "lésion" in the tissues or a break in the continuity of the tissues, there could however be mental illness" (or other types of injury, such as congestion of the lungs). The French representative's explanation accordingly adopted the medical meaning of "lésion" rather than the wider legal meaning. The episode is also of some significance in indicating that the French representative did not consider that the words "lésion corporelle" in Article 17 covered mental illness.
[49] A further matter, which was considered to be of assistance in an Israeli case discussed later, was a proposed amendment to Article 17 included in the Guatemala City Protocol. One of the amendments proposed to the French text of Article 17 would have deleted the word "blessure" while retaining "lésion corporelle". In the English text (also authentic) the words "personal injury" would have been substituted for "wounding or other bodily injury". The various courts which have examined the Guatemala travaux préparatoires have however been unable to find any clear indication whether the alteration to the English text was intended to effect a substantive change. I also note that Article 17 of the recent Montreal Convention speaks of "death or bodily injury" in the English version, while the French text uses the words "de mort ou de lésion corporelle". In those circumstances, I would not attach any significance to the wording of the English version of the Guatemala City Protocol. I also note that the German version of Article 17 of the Montreal Convention translates "de mort ou de lésion corporelle" as "getötet oder körperlich verletzt", which seems closer to the natural meaning of the English and French texts than the more expansive German translation of the Warsaw Convention. It is also worthy of note that the Montreal signatories retained the words "bodily injury" in the knowledge of how those words had been interpreted by national courts, as discussed below. The decision of the U.S. Supreme Court in Eastern Airlines Inc. v. Floyd 499 U.S. 530 (1991) might be thought to be particularly significant in that regard, given the importance of the American market in international aviation.
TRAVAUX PRÉPARATOIRES
[50] I would wish to turn next to the relevant decisions of foreign courts, but some of these discuss the travaux préparatoires in such detail that it makes sense to consider the latter first, while not forgetting the limited use which this court can make of such documents in light of Fothergill v. Monarch Airlines Ltd. I should say at once that the travaux préparatoires contain no discussion of the point at issue in the present case, and no clear indication of which of the rival interpretations of Article 17 is to be preferred. Although both parties sought to interpret the silence of the travaux on this point as being in itself significant, I do not consider that any inference can safely be drawn from that silence as to the common intention of the signatories.
[51] I have already summarised the background to the conclusion of the Warsaw Convention. As that summary made clear, the text of the Convention had gone through several previous drafts, originating in the French Government's Draft Protocol which was circulated prior to the Paris Conference of 1925. That draft dealt with liability (in Article 3) in extremely general terms:
"Le transporteur est responsable des pertes, avaries et retards qui résultent de ses fautes personnelles et du vice propre de l'appareil."
That provision might not appear to cover personal injury at all, but other provisions implied that the draft was intended to cover the death of the passenger (and therefore also, presumably, non-fatal injuries). The first revised draft produced at the Paris Conference by the Second Commission clarified that point (in Article 5):
"Le tranporteur est responsable des accidents, pertes, avaries et retards à moins qu'il prouve avoir pris les mesures raisonnables pour éviter le dommage.
Cette preuve est admise même dans le cas où le dommage provient d'un vice propre de l'appareil."
The modified version subsequently produced by the Second Commission, and incorporated into the final Protocol, was in substantially the same terms (in Article 5):
"Le tranporteur est responsable des accidents, pertes, avaries et retards.
Il n'est pas responsable s'il prouve avoir pris les mesures raisonnables pour éviter le dommage; cette preuve est admise même dans le cas où le dommage provient d'un vice propre de l'appareil."
Up to this point, therefore, the draft convention envisaged a general liability for accidents, losses, damage and delays, which could be excluded by proof of reasonable care. As the differences between the various drafts indicate, discussion of this provision during the Conference had focused on the relationship between liability and fault, and not on the nature of the accidents etc. for which liability should exist.
[52] A much more detailed provision was produced by CITEJA's Second Commission. Its initial draft contained, as Article 22, the following:
"Le transporteur est responsable du dommage pendant le transport:
(a) en cas de mort, de blessures ou de toute autre lésion corporelle subie
par un voyageur;
(b) en cas de destruction, perte ou avarie de marchandises ou de bagages;
(c) en cas de retard subi par un voyageur, des marchandises ou des
bagages."
One sees here the introduction of the formula "en cas de" to introduce the three broad categories of event which were subsequently separated into three separate Articles. In this context, it is perhaps easier than in the finalised Convention to appreciate that "lésion corporelle" might be intended to demarcate category (a) from categories (b) and (c). One also sees here the introduction of the term "lésion corporelle" as one of the elements replacing (and arguably restricting) the earlier term "accidents": accidents to persons are dealt with in (a), and accidents to goods are dealt with in (b). When this draft was presented, discussion focused on the meaning of "delay", on the non-imposition of liability in relation to personal effects, and on the definition of the period of carriage. The introduction of the word "survenu" after "dommage" was also proposed and approved, without discussion. In the final report submitted by CITEJA, the provision (re-numbered as Article 21) appeared as so modified (and with "blessure" in the singular).
[53] As already mentioned, the Warsaw Conference took the CITEJA draft as its starting point. There was extensive discussion of the definition of the period of carriage (which was contained in Article 20 of the CITEJA draft). Several delegates were critical of the proposal to have an identical definition for all purposes: it was felt that liability for baggage should commence upon delivery to the carrier, whereas liability for passengers should commence later, at the point when the passengers embarked upon the aircraft (see the proceedings of the Fourth Session). It was also noted that the modification of Article 20 would have implications for Article 21, which used the words "pendant le transport" to describe the relevant period in respect of all of the three categories of event dealt with in (a), (b) and (c). The delegates then voted to have the drafting committee revise Article 20 so as to have different periods during which liability would exist, and also referred to the drafting committee the question whether Article 21 required consequential amendment (page 57 in the French text; page 84 in the English translation).
[54] The Conference considered a revised draft two days later. Article 20 had been modified so as to define the period of carriage differently in respect of passengers and in respect of goods. Article 21 had not been modified. There was a discussion of whether death had to occur "pendant le transport", or whether it could occur after the period of carriage had ended. One suggestion was that the words in question should be moved to the end of each of (a), (b) and (c), with the consequence that it might suffice if death resulted from an injury suffered during the period of carriage. It was agreed that the matter should be considered by the drafting Committee.
[55] The following day the Conference considered a further revision. This contained Article 17 in what was to be its final form, together with Articles 18 and 19 in what was their final form (apart from an insignificant change to Article 18). The president of the drafting committee explained, in relation to Article 17:
"I draw the attention of the Conference to this article and to those which we are going to read, the three articles of the Chapter, for the following reason:
As our colleagues certainly recall, these are perhaps the most important articles of the Convention. There were many amendments proposed and under these conditions the drafting committee envisaged the possibility of retaining the system of the CITEJA preliminary draft, that is to say that of beginning by Article 21: when begins and when ends the liability of the carrier. But, given that there are entirely different liability cases: death or wounding ["mort ou blessures"], disappearance of goods, delay, we have deemed that it would better to begin by setting out the causes of liability for persons, then for goods and baggage, and finally liability in the case of delay...You will find therefore that which appeared in Articles 20 and 21 divided in three articles. I add right away that we are still in the same situation; it's not a question of new articles but of a new numbering of the articles"
(pps. 205-206 of the English translation; pps. 135-136 of the original Procès-Verbaux). The draft Article 17 was then approved without discussion.
[56] The travaux préparatoires do not support any theory that the signatories to the Warsaw Convention had a specific intention either to include or to exclude liability for psychiatric disorders. They do, on the other hand, confirm that Articles 17, 18 and 19 should be read as a whole, concerned respectively with passengers, goods and delay.
DECISIONS OF FOREIGN COURTS
[57] I turn next to consider the decided cases in foreign courts. I observe at the outset that we were referred only to decisions from three jurisdictions: the United States of America, Australia and Israel. I do not criticise counsel in that regard; but I bear in mind that, as Lord Wilberforce observed in Fothergill v Monarch Airlines Ltd (at p.276), there are dangers inherent in trying to assess a balance of foreign judicial opinion from available cases.
[58] The most important of the American cases cited to us was Eastern Airlines Inc. v Floyd 499 U.S. 530 (1991), a decision of the Supreme Court. The case arose out of an incident when an aircraft suffered engine failure over the Atlantic Ocean. It lost altitude rapidly, and passengers were informed that it would be ditched in the ocean. After a period of descent without power, the crew managed to restart an engine and land the aircraft safely. Actions were brought in respect of what the court described as "mental or psychic injuries". The court held that Article 17 did not allow recovery for purely mental injuries. This is a decision of high authority, and offers strong support to the defenders in the present case. If it were representative of an international consensus, that in itself would be a powerful reason for falling into line with the Supreme Court's interpretation of an international convention, even if my own preference had been for a different construction. As will be seen, however, there is no international consensus.
[59] I am reluctant to subject decisions of foreign courts of high authority to critical analysis. Some comment is however unavoidable, given the extent to which the parties' arguments in the present case revolved around the reasoning of the Supreme Court.
[60] With due deference to the Supreme Court, I would not be inclined to follow it in every aspect of its reasoning. In particular, I am not convinced by the court's statement that "the narrower reading of lésion corporelle also is consistent with the primary purpose of the contracting parties to the Convention: limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry" (p. 546). The "primary purpose" of the Convention would appear to me to be the one which is stated in its title and its preamble, namely to regulate in a uniform manner the conditions of international carriage by air in respect of inter alia the liability of the carrier. I have already described the problems arising from the absence of a uniform scheme, which had prompted the French Government to initiate the Paris Conference. It is true that one can find observations made by delegates to the effect that it was important not to over-burden carriers, so as to encourage a young industry. One can also find observations to the effect that the interests of passengers must also be protected. The position adopted at the Warsaw Conference by the head of the British delegation, Sir Alfred Dennis, would appear to me to be one which could be expected to have commanded wide acceptance:
"In the Convention we propose to replace a system of free contract by a system of law, of regulation, of by-laws. My Government feels that these rules must be of such a nature that they can appear in a just, equitable contract between equal parties placed upon equal footing"
(p. 42 of the English translation; p. 29 of the French text). The essential elements in a just balance were the ending of the carrier's ability to impose contractual exclusion clauses and his acceptance of the burden of proof of reasonable care, on the one hand, and the imposition of a low cap on damages, on the other hand. There does not appear to me to be a sound basis for inferring that a "purposive" interpretation of "bodily injury" should as a matter of principle be one which is adverse to passengers.
[61] I would also accept that an observation made by the Court at the end of the judgment is of no relevance to the present case. The Court there observed (p.552) that the narrower construction of Article 17 better accords with the Warsaw Convention's stated purpose of achieving uniformity of rules governing claims arising from international transportation, since the Montreal Agreement imposes strict liability for Article 17 injuries sustained on flights connected with the United States:
"We have no doubt that subjecting international air carriers to strict liability for purely mental distress would be controversial for most signatory countries. Our construction avoids the potential source of divergence."
The court was of course well aware (as is plain from p.549) that one cannot use the Montreal Agreement - a private arrangement relevant only to flights connected with the United States - as any sort of aid to the interpretation of the Warsaw Convention.
[62] Subject to those points, I respectfully agree with the Court's reasoning. The court's starting point was the words "lésion corporelle", which it considered were accurately translated as "bodily injury". The latter phrase was said to suggest that Article 17 did not permit recover for purely psychic injuries (pps.536-537, 542, 552). For the reasons I have already discussed, I would respectfully agree, although I would also accept that the latter construction is not irresistible, particularly if the phrase is considered in the context of Articles 17 to 19 as a whole. The central element in the Court's reasoning appears to me to have been that
"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"
(pps. 544-545; also p. 540). In the discussion before us, this proposition was criticised as resting on an assumption that, if "bodily injury" is capable of including a psychiatric disorder, it follows that damages must be recoverable for such a disorder in all signatory States. The argument was that "bodily injury" is an event which gives rise to a liability for all damages sustained in that event: in other words, it is a trigger or pre-condition to liability, but is conceptually distinct from the damage itself. As already explained, I accept that distinction, but nevertheless agree with the Supreme Court..
[63] There is one other decision of the Supreme Court which appears to me to be important. In Zicherman v Korean Air Lines Co Ltd, 516 U.S. 217 (1996), the issue was whether a relative could recover damages for loss of society resulting from the death of a passenger in an air accident, the flight being one to which the Warsaw Convention applied. The court interpreted "dommage", in Article 17, as meaning legally cognizable harm, but held that Article 17 did not determine what harm was cognizable, leaving that issue to domestic law. In relation to Floyd, the court said (at p. 223):
"Just as we found it 'unlikely' in Floyd that Convention signatories would have understood the general term 'lésion corporelle' to confer a cause of action available under French law but unrecognised in many other nations, see 499 U.S., at 540, so also in the present case we find it unlikely that they would have understood Article 17's use of the general term 'dommage' to require compensation for elements of harm recognised in France but unrecognised elsewhere, or to forbid compensation for elements of harm unrecognised in France but recognised elsewhere."
The court accordingly did not regard its decision as inconsistent with its reasoning in Floyd: the fact that it was for domestic law to determine what sorts of harm were compensatable did not undermine its view that the signatories were unlikely to have had a common intention to create a cause of action in respect of a type of injury which could never result in compensatable harm in some signatory States.
[64] The way in which the Supreme Court expressed its conclusion in Floyd (page 552) was that "an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury". That formulation (like any other attempt to distinguish between the physical and the mental) inevitably raises difficulties of definition, which were illustrated by other American decisions cited to us, such as Rosman v. Trans World Airlines, 34 N.Y. 2nd 385 (1974) (a decision which pre-dates Floyd but adopted the same approach), Jack v. Trans World Airlines, 854 F. Supp. 654 (N.D. Cal. 1994), Terrafranca v. Virgin ATL Airways (U.S. 3rd Circuit Court of Appeals, 23 July 1998) El Al Israel Airlines Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999) and Weaver v. Delta Airlines Inc., 56 F. Supp. 2nd 1190 (1999). These difficulties do not cause me any particular concern. The American courts seem to me, if I may respectfully say so, to have adopted a reasonably clear approach in practice, which treats as "bodily injury" physical injuries consequent upon shock or distress (such as heart attacks, rashes and strokes, and indeed damage to the brain associated with post-traumatic stress disorder), but not manifestations of fear, anxiety or other mental problems which cannot be described as physical injuries, such as sleeplessness, headaches and loss of weight.
[65] The Australian cases cited to us appear to me to add little to the Floyd decision, which they followed. It is, however, necessary to consider the decision of the Supreme Court of Israel in Daddon v. Air France (1984) (published in an English translation in S. & B. Av. R. VIII/141). The case concerned passengers who had been held hostage following a hijacking. They sought damages in respect of their mental anguish. Unusually, the airline argued that such damages were in principle recoverable under Article 17 (the point being that any right of action under the Convention was time-barred), whereas the passengers argued the contrary (in the hope of maintaining a claim under domestic law). The Court decided this point in favour of the airline. The central passage in the judgment, as translated, begins as follows:
"In view of all the aforegoing, and particularly in the light of the rapid development of air transport, in all its branches, and the ever-increasing tendency which manifests itself around the world and in Israel to recognise the duty to compensate pure mental anguish, we must pose for ourselves the question - what is the desirable judicial policy we should apply in regard to a proper interpretation of the term 'bodily injury' for purposes of Art. 17 of the Convention?"
I respectfully agree with the comment of Stein J.A. in the Australian case of Kotsambasis v. Singapore Airlines Ltd. (1997) 42 N.S.W.L.R. 110, 121:
"It seems to me however that this poses the wrong question. It is impermissible 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. Rather the construction should seek to ascertain the intention of the drafters and signatories as expressed by Marshall J. in Floyd. What may be seen as a desirable policy goal cannot be given effect to by the courts unless it was within the intention of the signatories to the Convention. If domestic law notions are utilised by national courts as an aid to construction of the Convention, the stated purpose of achieving uniformity will be diminished."
That is not to deny that the signatories intended that the system which they were establishing should be sufficiently flexible to encompass future changes of practice in commercial aviation; but they must equally have intended that the Convention should continue to be applied with careful regard to its language and to its stated purpose. I also agree with the U.S. Supreme Court's observations in Floyd (at pages 551-552) in respect of the reliance placed by the Israel Supreme Court upon the change in the English text of Article 17 (substituting "personal injury" for "bodily injury") proposed by the Guatemala City Protocol:
"Nor does the Guatemala City Protocol support the Israel court's conclusion because nothing in the Protocol purports to amend Article 17 to reach mental injuries. Moreover, although the Protocol reflects liberalisation of attitudes towards passenger recovery in that it provides for strict liability...the fact that the Guatemala City Protocol is still not in effect after almost 20 years since it was drafted should caution against attaching significance to it."
THE WRITINGS OF JURISTS
[66] It is necessary finally to consider the textbooks and articles, bearing in mind that an international consensus of such materials can provide material support to a particular interpretation (as, for example, in Fothergill v. Monarch Airlines Ltd.). No such consensus is, however, demonstrated by the materials cited to us. Nor do I find the discussion in those materials of much assistance, particularly in so far as it focuses upon the search for a supposed legal meaning of "lésion corporelle" in French law. In the circumstances, I do not consider it necessary to discuss these materials in detail. It does however have to be acknowledged that the writings of Dr. Riese, which support the pursuer's interpretation, have a particular significance by virtue of his membership of the German delegation to the Warsaw Conference.
SUMMARY
[67] The foregoing can be summarised as follows:
1. The words "bodily injury" or "lésion corporelle" tend to suggest
physiological damage to the structure of the body, although a wider construction, which would include any impairment of health, is also possible.
2. Many of the 1929 signatories did not, in their domestic law, allow recovery
for purely mental injury. If such injury is covered by Article 17, it follows that there will be no liability, and no right of action, in those signatory States which do not permit recovery for such injury. In these circumstances, it is unlikely that the signatories had a common intention that Article 17 should cover such injury.
3. Such an intention is also unlikely in view of the signatories' objective of
creating uniform rules as to the liability of carriers.
4. To construe "bodily injury" as excluding purely mental injury results in
difficulties of definition, and may lead to distinctions being drawn which might be described as artificial. On the other hand, American experience suggests that that construction works reasonably well in practice.
5. International case law does not demonstrate a consensus. The American and
Australian case law favouring the narrower interpretation of Article 17 is however more persuasive than the Israeli case law to the contrary effect.
6. The writings of jurists do not demonstrate a consensus.
7. The travaux préparatoires contain no clear guidance.
In these circumstances, I am on balance persuaded that the words "bodily injury" in Article 17 should not be construed as including purely psychological injury. I therefore reject the pursuer's primary contention. I also reject the defenders' contention that only injury caused by impact is covered: that contention is, in my opinion, manifestly untenable, as it has no basis in the text of Article 17 and would lead to results which cannot have been intended, such as the exclusion of heart attacks induced by shock. I consider that Article 17 should be construed as conferring a cause of action for damage sustained in the event of bodily injury (i.e. injury to the body, regarded from a physiological perspective), whether the injury was caused by direct physical impact during the accident in question or not.
[68] In the present case, the pursuer offers to prove that he suffered a physical illness which was caused by the accident. That claim is apt in itself to raise a number of legal questions: whether, for example, peptic ulcer disease brought on by post-traumatic stress disorder can be regarded as an "injury" within the meaning of Article 17 (cf. the authorities discussed in Dhak v. Insurance Company of North America (U.K.) Ltd. [1996] 1 W.L.R. 936); whether Article 17 requires the injury to be suffered in the accident (as is suggested by the Supreme Court's judgments: Floyd at 535-56; Tseng) or merely as a result of the accident; and whether the link between the accident and the illness is sufficiently proximate to permit recovery (as to which the authorities discussed in Dhak may again be relevant). Accordingly, although I have rejected the defenders' "impact" theory, I accept that legal questions may arise in respect of the relationship between the accident and the putative injury. These questions should however be considered on the basis of the facts established by evidence rather than on the pleadings. They do not fall to be decided at this stage.
[69] The only averments made by the pursuer in relation to his peptic ulcer disease are in the following terms:
"The stress which the pursuer suffered in the said accident caused or materially contributed to the onset of peptic ulcer disease which, in turn, caused the pursuer to suffer severe dyspeptic pain in and after August 1994...He suffered and continues to suffer an exacerbation of pre-existing dyspeptic symptoms."
Those are the only specific averments of damage which the Lord Ordinary allowed to go to proof. As I have mentioned, Mr. Moynihan explained during the hearing that the pursuer's advisers had received more recent medical advice indicating that the peptic ulcer disease was caused, or materially contributed to, by his psychiatric condition. Mr. Moynihan did not, however, seek to amend the pursuer's pleadings so as to reflect that advice. In principle, it appears to me that in a case of this kind the proof should encompass all matters which are potentially relevant to ascertaining the factual relationship between the accident and the medical condition which is said to constitute a bodily injury, and thus to determining the legal question whether the condition can form the basis of a relevant claim under Article 17. Accordingly, if there were averments along the lines of the explanation given by Mr. Moynihan, I would allow the averments of psychiatric disorder to go to proof, not because such a disorder could in itself be a "bodily injury", but because it formed part of the connection between the accident and the only physical disorder which might arguably constitute such an injury. In the present case, however, there are no such averments in the pursuer's pleadings.
[70] In the whole circumstances, I regret that I find myself unable to agree with your Lordships that the pursuer's reclaiming motion should be allowed. I would have refused both reclaiming motions and adhered to the interlocutor of the Lord Ordinary.