King v Bristow Helicopters Ltd [2002] UKHL 7

House of Lords

Facts

Lord Steyn at [11]:

In King v Bristow Helicopters Ltd the alleged facts were as follows. On 22 December 1993, King was a passenger on board a helicopter, owned and operated by Bristow Helicopters Ltd. The helicopter took off from a floating platform in the North Sea in poor weather. The helicopter ascended and hovered for a short period, at which point its two engines failed. It descended and landed on the helideck. Smoke engulfed the helicopter; there was panic on board; and passengers feared that the helicopter was about to crash into the sea. The door was opened and the passengers disembarked. The passenger developed post-traumatic stress disorder. As a result of the stress he suffered an onset of peptic ulcer disease. The Lord Ordinary allowed the claim to go to proof only in respect of the allegations concerning the peptic ulcer. The First Division allowed the appeal and ordered that the entire claim should go to proof.

Issue(s)

Lord Steyn at [9]:

In the context of two appeals, one English and one Scottish, the question before the House concerns the phrase “bodily injury” in article 17 of the Warsaw Convention as amended at The Hague in 1955 which was incorporated into the law of the United Kingdom as Schedule 1 to the Carriage by Air Act 1961. The principal question of law in both appeals is whether a person who suffers no physical injury but who does suffer mental injury or illness (such as clinical depression) as a result of an accident on board an aircraft has a claim against the carrier under article 17 of the Convention. It is a point of construction of the relevant words in their context. It is common ground that no question of implying words into article 17 arises. The Court of Appeal (Lord Phillips of Worth Matravers MR, Peter Gibson and Latham LJJ) answered the question in the negative: Morris v KLM Royal Dutch Airlines [2002] QB 100. By a majority the First Division (the Lord President (Rodger) and Lord Cameron of Lochbroom; Lord Reed dissenting) answered it in the affirmative: King v Bristow Helicopters Ltd 2001 SLT 126. Depending on the view of the House the further question may arise in King whether an adverse physical manifestation, such as a peptic ulcer caused by mental illness may be within article 17.

Discussion

Lord Mackay:

7. Because I consider it important that the Warsaw Convention should have a common construction in all the jurisdictions of the countries that have adopted the Convention, I attach crucial importance to the decisions of the United States Supreme Court in Eastern Airlines Inc v Floyd (1991) 499 US 530 and El Al Israel Airlines v Tseng, particularly as the United States is such a large participant in carriage by air. But for these decisions, I would have given more weight than does my learned friend to the argument that the word “bodily” and its French counterpart “corporelle” were directed to the distinction between injury to a passenger through loss of baggage or delay on the one hand and injury to his person on the other, rather than to the distinction between bodily injury and mental injury.

8. I wish also to say that in my opinion if an injury to the brain of a passenger is found to have occurred, and the other conditions requisite to qualify for compensation under article 17 are present, compensation under the article cannot be refused on the ground that in 1929, this fact would not have been known, with the result that at that time, medical opinion would have been that the passenger had suffered only mental injury. Like my noble and learned friend Lord Nicholls of Birkenhead I do not see merit in adding words to the description of injury which are not present in the Convention text and I would apply the simple test, does the evidence demonstrate injury to the body, including in that expression the brain, the central nervous system and all the other components of the body?

Lord Hope:

123. The evidence indicates that there was no uniform approach among the contracting states in 1929 to recovery in damages for mental injury. As the court noted in Eastern Airlines Inc v Floyd, at p 540, a cause of action for mental injury would not have been recognised in many of them. In this situation clear words would have been needed to ensure that a uniform approach to this problem was adopted in all jurisdictions. The absence of clear words allowing recovery for a purely mental injury is telling. The introduction of the word “corporelle” was not the way to make this point clear. The absence of discussion suggests that the contracting parties were content to use this word as a word of limitation to qualify the otherwise unrestricted scope of the word “lésion”, and that they intended to restrict it to physical injury of a kind that was manifest and observable.

124. Insurance practice has not been the subject of evidence. But it is commonplace for insurers to seek to exclude or restrict liability. One of the central points in the Convention was the surrendering of the opportunity to do this in the case of carriage to which the Convention applies. Part of the process of compromise lay in the choice of language for the articles in Part III, including article 17. This adds further weight to the point that the words “bodily” and “corporelle” were used as words of modification or restriction. It would have been a reasonable compromise to provide strict liability for physical injury of a kind that was manifest and observable, but not to extend this to an emotional reaction or any kind of mental injury. Practice since then suggests that this was what the compromise was understood to be, as there was a marked absence of claims of this character until the 1970s despite the many alarming or distressing events that may be encountered during air travel.

125. The search is for the meaning which the words were understood to have when the Convention was entered into. It would be wrong to regard article 17 as limited by the state of medical and scientific knowledge that was current in the 1920s. There is no reason to think that the contracting parties intended that no account should be taken of developments in medical science in determining the question whether a passenger has sustained a bodily injury. I agree with my noble and learned friend Lord Mackay of Clashfern that, if the brain could be shown to have been injured and the other conditions for compensation under article 17 are satisfied, it would not be right to refuse compensation under the article on the ground only that in 1929 an injury of that kind would not have been capable of being demonstrated. Whether or not there is such an injury will always depend on the evidence. But the fact remains that a bodily injury is conceptually distinct from any injury which affects the mind: Mullany & Handford, Tort Liability for Psychiatric Damage (1993), p18.

126. The words “palpable” and “conspicuous” were used by the court in Rosman to describe the kind of injury that they envisaged as falling within the expression “bodily injury”. But the use of such strong language risks substituting a new test for that used in the Convention. The question whether there is any better way of explaining what the Convention meant is best left over for another occasion, as my noble and learned friend Lord Steyn has indicated. For the time being I would venture to suggest that one would expect an injury falling within the expression “bodily injury” to be capable of being demonstrated by an examination of the body of the passenger, making the best use of the most sophisticated means that are now available. The Weaver and Air Crash at Little Rock, Arkansas cases, as I understand them, did not proceed on that kind of evidence. There was no evidence in either case that the passengers had suffered an injury to the brain that was capable of being demonstrated by means of an examination of the body of the passenger. The argument was that the PTSD itself constituted a manifestation of a physical injury. In my opinion evidence of the kind that was available in those cases is not enough to satisfy, the test of showing that a psychiatric illness is or includes a “bodily injury” for the purposes of article 17.

127. I believe that this approach is consistent with the mainstream views in Eastern Airlines v Floyd (1991) 449 US 530 and other leading cases in the United States whose interpretation of article 17, like my noble and learned friend, Lord Nicholls of Birkenhead, I too would wish that this House should follow if possible. I regret that I am unable to agree with the opinion of Lord Hobhouse as to the effect of these authorities.

128. In any event there has been no attempt in either case to demonstrate that the passengers’ depressive illnesses had a physical cause or origin. It would not be right to speculate as to whether, in view of the fact that a clinical diagnosis has been achieved in each case and that treatment has been prescribed for them, their illnesses could be shown to have had a physical origin which could be causally linked to the accident. That would have been a matter for proof. But there has been no offer to lead any such evidence. It is sufficient for the decision in these cases to say that it has not been shown that the mental injury which the passengers sustained falls within the scope of the expression “bodily injury”.

129. I would however follow the indications in Rosman v Trans World Airlines Inc (1974) 34 NY 2d 385 and Jack v Trans World Airlines Inc (1994) 854 F Supp 654 that compensation may be awarded to a passenger under article 17 for the physical manifestations of a mental injury. A peptic ulcer disorder involves the tissues of the body, and it is not difficult to see that it is a kind of bodily injury. The requirement of a causal link to the accident will be satisfied if it can be shown, as Mr King seeks to do, that the disorder was caused by a mental illness which was itself caused by the accident. Thus, while there is no general right to recover damages under article 17 for mental injury sustained by a passenger, damages for the physical manifestations of a mental injury will be recoverable. I would hold that the Lord Ordinary was right to allow Mr King a proof of his averments about the peptic ulcer disease.

Useful for

Damages not available for purely mental injuries under Article 17

Treaty provisions considered

Article 17 WC29

Legislation considered

None identified.

Key subjects or concepts

Accident/ Bodily Injury/

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