Montreal Convention and Psychological Injury: Climbing above the turbulence?
Sintons recently secured a settlement for a passenger in a personal injury claim brought against a well-known Airline following psychological injuries sustained following an accident on a flight. Further details can be found by clicking here.
As a result of the incident, our Client suffered from sleep disturbance, nightmares, flashbacks and became aware of the onset of obsessive compulsive rituals. A Clinical Psychologist instructed in the case diagnosed Obsessive Compulsive Disorder together with features of Post-Traumatic Stress Disorder. The case settled shortly before trial with the Claimant recovering damages for psychiatric harm and future psychological treatment.
Whilst that is not in itself unusual in personal injury claims, this was a claim brought under the Montreal Convention 1999 designed to protect passengers injured in plane crashes, incidents during a flight or whilst boarding or disembarking. Whilst the Defendant admitted liability they disputed that our client could recover any damages for psychiatric harm under the Convention. This was on the basis of the wording of Article 17 of the Montréal Convention which identifies that “the (airline) carrier is liable for damage sustained in case of death or personal injury of a passenger” in certain defined circumstances.
It is a common misconception that damages for psychiatric harm are irrecoverable under the Montreal Convention. Whilst this is true where the only injury is psychological, where there is a ‘ bodily injury’ an individual can also recover compensation for psychiatric symptoms. On other occasions it was argued that that in order for psychiatric injuries to be recoverable they had to be directly linked to the physical injury. This arose from the wording of the Convention itself, which refers to liability for ‘ bodily injury’ and as such only losses that were consequential to a ‘ bodily injury’ were recoverable (Morris v KLM [2001] 2 All Er).
However, in recent times this interpretation has changed. In Doe v Etihad P.J.S.C., No. 16-1042 (6th Cir. 2017) an appellate court in the United States held that the reference to ‘ bodily injury’ in Article 7 of the Convention is a trigger for establishing liability, and that psychological injuries are recoverable if they are caused either by a bodily injury, or by the accident that causes the bodily injury. Accordingly, there was no requirement that any psychiatric injuries must be contingent on the physical injuries as previously maintained.
Whilst there is no reported case where the English Court has applied Doe v Etihad, Sintons pursued the claim on the basis that the Montréal Convention has international applicability and accordingly a court in England was likely to follow the reasoning in Doe. Further there is a longstanding line of authority that indicates that Article 17 simply governs the circumstances in which liability will attach under the Convention, rather than limiting the nature of the compensation that can be recovered. As a consequence we argued that on a plain reading of the convention there is nothing that expressly prohibits recovery for psychiatric harm.
Though it remains to be seen whether an English Court would follow the principles in Doe and that damages for psychiatric harm suffered in conjunction with physical injury, will be recoverable, the precedent set by Doe v Etihad is very persuasive.
Further information regarding accidents of this nature and possible claims for compensation can be found at here.
David Knipe is an Associate in the Claimant Personal Injury team at Sintons in Newcastle upon Tyne. Contact him at david.knipe@sintons.co.uk or on 0191 226 7926.
