King v. Bristow

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King v Bristow Helicopter Limited: Morris v KLM

UK House of Lords: Lords Nicholls, Mackay, Steyn, Hope and Hobhouse: February 2002

What the Case decided

In a landmark judgment, the House of Lords has determined that claims for purely mental injury with no accompanying physical injury do not come within the term "bodily injury" in Article 17 of the Warsaw Convention.

DMC Category Rating: Developed

Case Note based on an Article in the March 2002 Edition of the ‘Bulletin’, published by the Marine and Insurance teams at the international firm of lawyers, DLA.

Mr King was a passenger on board a helicopter that took off from a floating platform in the North Sea in poor weather. During the flight, the helicopter's two engines failed and it landed on the helideck amidst smoke and panic. The passengers were able to disembark but Mr King developed post-traumatic stress disorder and, as a result, suffered an onset of peptic ulcer disease.

Kelly Morris travelled from Kuala Lumpur to Amsterdam as an unaccompanied minor on a KLM flight. After a meal, she fell asleep and awoke to discover the hand of the man next to her touching her left thigh from the hip to the knee. She suffered no physical injury from the incident but, on her return home, was diagnosed as suffering from clinical depression.

Neither claimant attempted to argue that the mental illness or injury was caused by a physical injury. The only physical injury sustained was in Mr King's case where a pre-existing condition was exacerbated by his mental condition following the incident.

The issue therefore was whether the injuries complained of came within Article 17 of the Convention, which reads:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking".

The Scottish Court of First Division held by a majority that Mr King's claim for purely mental injury came within the term "bodily injury". It also held that a passenger could claim under Article 17 if he had suffered an adverse physical manifestation of mental injury, such as in Mr King's case, a peptic ulcer. The Court of Appeal in the Morris v KLM case decided that the incident was an "accident" within the terms of the Article, but that the claimant's symptoms of depression and post-traumatic stress disorder did not amount to a bodily injury.

All five Law Lords concluded that there could be no recovery under the Convention for claims of a purely psychological nature where no physical harm had been suffered.

The principles of interpretation are set out in Sidhu v British Airways [1997] AC 430 which held that the Convention has to be considered as a whole and should be given a purposive construction. The ordinary and natural meaning of the words used in English provides a starting point, but this needs to be compared with the French text, which, in the event of inconsistency, will prevail. The meaning should be consistent with the common intention of the states represented at the conference and it is legitimate to look at the travaux préparatoires to resolve ambiguities or obscurities, but these should be viewed with caution since the delegates may not have shared a common view. It is also legitimate to look at subsequent practice in the application of the Convention.

Lord Steyn and Lord Hope were satisfied that in its natural and ordinary meaning the word "bodily" qualified and limited "injury" (the same went for the use of the French word "corporelle") so as to make a distinction between physical and purely mental injury. Both thought it significant that the travaux préparatoires revealed no discussion or mention of liability for mental injury, which indicated that the idea was never contemplated. It was also significant that no claims for mental injury were brought until the hijacking cases of the 1970's, supporting the argument that the orthodox view was that such claims were not covered.

On this basis, they were satisfied that the Convention did not permit recovery for mental injury unaccompanied by physical injury, a conclusion in line with the leading US cases, Eastern Airlines Inc v Floyd (1991) 499 US 350 and El Al Israel Airlines Limited v Tseng (1999) 525 US 155.

Lord Hobhouse thought this was the wrong approach. The Convention has to be interpreted objectively and it was a mistake to try to decide what the delegates thought they were agreeing to in 1929. He agreed that "bodily injury" did not cover injury that was purely psychological. There had to be some change in some part of the body sufficiently serious to be described as an injury, so that an emotional upset, such as fear, distress, grief or mental anguish on its own would not be covered. But it was a mistake to interpret the Convention as if frozen in time. "Words have a meaning which does not change, but the application of those words to the decision of any question depends on the facts and circumstances of the case in which the question arises".

In his view, the meaning of "bodily injury" had not changed. What had changed was the passenger's ability to bring his case within it. If advances in medical science could show physical changes caused by a mental condition, those physical changes would be capable of amounting to a bodily injury under the Convention. The passenger would need to prove by qualified expert evidence that the changes had occurred, that they were caused by the accident and that they had led to the psychological harm.

This point was illustrated by the recent US case, Weaver v Delta Airlines Inc (1999 56 Fed Supp 2d 1190) in which the passenger successfully claimed compensation for post-traumatic stress disorder ("PTSD") resulting from an emergency landing. The case relied on recent scientific research that suggested PTSD evidences actual trauma to brain cell structures. The judge held that, whereas fright alone is not compensatable, brain injury from fright is, so the passenger's injuries came within Article 17.

Lord Steyn disagreed, concluding that Weaver had been decided incorrectly because the required threshold of physical injury had not been satisfied. The Convention drew a line between bodily injury and mental injury or illness and to seek to extend it would be too controversial to command sufficient international support.

Lord Hope, Lord Nicholls and Lord Mackay, however, accepted that the brain was a part of the body. If it could be shown by satisfactory evidence that the brain was injured, it would not be right to refuse compensation on the grounds that in 1929 an injury of that kind would have been unknown. Lord Hope thought the injury should be capable of being demonstrated by an examination of the body of the passenger, making the best use of the most sophisticated techniques available. But, in his view, Weaver failed this test.

All five Law Lords agreed, however, that Mr King should be entitled to claim under the Convention for the physical manifestation of his mental condition, but that neither Mr King nor Kelly Morris could recover for their purely psychological injuries. Since Kelly Morris did not claim that the assault had caused her any physical injury, her appeal had to fail.

Under the ruling, it is clear that shock, anxiety, fear, distress, grief or other emotional disturbances alone do not fall within Article 17. If, however, the passenger can show by qualified expert evidence that the condition complained of has caused an adverse physical symptom (as in Mr King's case), or that the psychological condition was the direct expression of physical changes to the structure of the brain caused by the accident, he will have a claim under the Convention.


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