House of Lords
|Session 2001- 02
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King (AP) (Respondent) v Bristow Helicopters Ltd. (Appellants) (Scotland) In Re M (A Child By Her Litigation Friend CM) (FC) (Appellant)
HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Steyn Lord Hope of Craighead Lord Hobhouse of Wood-borough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
BRISTOW HELICOPTERS LIMITED (APPELLANTS) (SCOTLAND)
IN RE M (A CHILD BY HER LITIGATION FRIEND CM) (FC) (APPELLANT)
ON 28 FEBRUARY 2002
 UKHL 7
LORD NICHOLLS OF BIRKENHEAD
1. The facts and issues in these two appeals are set out fully in the speeches of my noble and learned friends Lord Steyn, Lord Hope of Craighead, and Lord Hobhouse of Woodborough. Your Lordships are agreed on the outcome of these appeals: the appeal in the King case should be allowed, and the decision of the Lord Ordinary restored, and the appeal in the Morris case should be dismissed. I also agree.
2. There is a measure of disagreement between your Lordships on whether inherent in article 17 of the Warsaw Convention is an antithesis between bodily injury and mental injury, the latter being outside the scope of article 17. I can state my own view shortly.
3. The expression 'bodily injury', or 'lésion corporelle', in article 17 means, simply, injury to the passenger's body. The contrast is with absence of injury to a passenger's body. This simple meaning propounds a coherent and workable test. None of the submissions urged upon your Lordships has persuaded me that this phrase should be given a different, more limited meaning. In particular, I see no occasion for limiting article 17 to bodily injuries which are 'palpable and conspicuous', whatever those two ambiguous expressions are taken to mean in this context. The brain is part of the body. Injury to a passenger's brain is an injury to a passenger's body just as much as an injury to any other part of his body. Whether injury to a part of a person's body has occurred is, today as much as in 1929, essentially a question of medical evidence. It may be that, in the less advanced state of medical and scientific knowledge seventy years ago, psychiatric disorders would not have been related to physical impairment of the brain or nervous system. But even if that is so, this cannot be a good reason for now excluding this type of bodily injury, if proved by satisfactory evidence, from the scope of article 17.
4. This does not mean that shock, anxiety, fear, distress, grief or other emotional disturbances will as such now fall within article 17. It is all a question of medical evidence. In Weaver v Delta Airlines (1999) 56 F Supp 2d 1190 the uncontradicted medical evidence was that extreme stress could cause actual physical brain damage. The judge observed, at p 1192, that 'fright alone is not compensable, but brain injury from fright is'.
5. It really goes without saying that international uniformity of interpretation of article 17 is highly desirable. Like Lord Mackay of Clashfern, I have been much concerned that the interpretation of article 17 espoused by this House should, if possible, be consistent with the mainstream views expressed in leading overseas authorities. Most notable in this respect, given the important position of the United States in carriage by air, is the decision of the United States Supreme Court in Eastern Airlines Inc v Floyd (1991) 499 US 530. I consider the view I have expressed above is consistent with Floyd and the other leading cases. I agree with Lord Hobhouse's analysis of the authorities.
LORD MACKAY OF CLASHFERN
6. I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. I agree with his conclusion on the disposal of these appeals and with the reasons he gives for it, subject to the following comment.
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?
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  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.
I. The assumed facts:
10. In Morris v KLM the alleged facts were as follows. On 6 September 1998 the appellant was a passenger carried for reward on a KLM flight from Kuala Lumpur to Amsterdam. At the time, she was not yet 16 years of age and was travelling on her own. She was seated next to two men. After a meal, she fell asleep and woke to discover the hand of the man next to her caressing her left thigh from the hip to the knee. She got up, and told an air hostess what had happened and was moved to another seat. She was very distressed. On her return to England a doctor found that she was suffering from clinical depression amounting to a single episode of a major depressive illness. She does not allege that she suffered any physical illness. Her claim for mental injury under article 17 was upheld by a judge. The Court of Appeal held that what befell the appellant was an accident within article 17. But the Court of Appeal held that a mental injury falls outside article 17. Only the latter ruling is before the House.
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.
II. The scheme of the Convention
12. It is important to understand the major objective of the Warsaw Convention. Before it came into operation passengers were free to claim under a diversity of applicable national laws in respect of damage caused by death, wounding and bodily injury; loss of or damage to property; and delay. On the other hand, carriers were free to limit their liability to passengers by exception and limitation clauses. The liability insurance premiums charged by insurers to carriers no doubt reflected the exception and limitation clauses imposed. Taking into account exception and limitation clauses, prudent passengers would have had to take out appropriate direct insurance cover. This system was unsatisfactory from the point of view of the public, who wanted to travel by air, and for the fledgling and still fragile aviation industry. The purpose of the Warsaw Convention, following the precedent of the earlier Hague Rules governing carriage by sea, was to bring some order to a fragmented system by a partial harmonisation of the applicable laws.
13. For present purposes the compromise agreed on at Warsaw involved the imposition of a form of strict liability on carriers in respect of accidents causing death, wounding or bodily injury to passengers in return for the limitations of liability expressed in the Warsaw Convention. Chapter III of the Warsaw Convention reflects the bargain struck at Warsaw. The relevant articles of Chapter III (as amended) read as follows:
Since, in the event of inconsistency between the English and French texts of the Convention, section 1 of the 1961 Act provides that the French text shall prevail, I cite the French wording of article 17:
14. The effect of the Convention was described by Lord Hope of Craighead in Sidhu v British Airways Plc  AC 430. Speaking on behalf of a unanimous House Lord Hope observed, at p 447B-E:
In El Al Israel Airlines Ltd v Tseng (1999) 525 US 155 the US Supreme Court followed Sidhu on this point. I respectfully adopt this analysis.
15. The Warsaw Convention is an exclusive code of limited liability of carriers to passengers. On the other hand, it enables passengers to recover damages even though, in the absence of the Convention and the Act, they might have no cause of action which would entitle them to succeed: Swiss Bank Corporation v Brink's MAT Ltd  QB 853, 856G-H, per Bingham J (now Lord Bingham of Cornhill). It is therefore not necessarily right to approach the meaning of the phrase "bodily injury" in article 17 of the Convention through the spectacles of full corrective justice.
16. It follows from the scheme of the Convention, and indeed from its very nature as an international trade law convention, that the basic concepts it employs to achieve its purpose are autonomous concepts. It is irrelevant what bodily injury means in other contexts in national legal systems. The correct inquiry is to determine the autonomous or independent meaning of "bodily injury" in the Convention: R v Secretary of State for the Home Department, Ex p Adan  2 AC 477. And the premise is that something that does not qualify as a "bodily injury" in the Convention sense does not meet the relevant threshold for recovery under it.
III. Indications of the meaning of article 17
17. If the matter was untrammelled by precedent, my approach to the interpretation of "bodily injury" in article 17 would have been influenced by six factors. (1) The contextual scene is that in 1929 in legal systems generally there was compensation available for physical injuries. By contrast in 1929 the position was different in regard to mental injury and illness. The best view is that except in a few states mental injuries and illnesses were not compensatable or were a matter of controversy. In these circumstances one would have expected, if it was intended to cover mental injuries and illnesses by article 17, that it would have been debated in working sessions at Warsaw and expressly provided for. (2) The importance of the factor mentioned in (1) is underlined if one takes into account that many untoward occurrences affecting aircraft may cause mental injury or illness alone but not physical injuries. An IATA position paper presented at the Montreal Conference 1999 [2000 Aviation Quarterly] list by way of example such circumstances as follows:
Such occurrences and consequent mental injuries or illnesses would already have been a reality in 1929. I accept that the medical explanation for mental injuries, and their physical connection, is today somewhat better informed. No competent psychiatrist would, however, assert that this knowledge is complete. The psychiatric nostrums of today may become the scientific heresies of tomorrow. The textually relevant circumstance is that in 1929 it would already have been appreciated that the imposition of strict liability for mental injury and illness would have opened the door to an avalanche of intangible claims, greatly in excess of the number of claims for physical injuries. For the fledgling aviation industry this would have involved a large exposure to (i) judgments and awards, (ii) the cost of expert evidence to sort out what were cognisable claims, and (iii) the cost of litigation, the latter being irrecoverable in the United States. This might have meant larger liability insurance premiums and a resultant increase in passenger fares. In these circumstances Professor Malcolm Clarke, a specialist in this area of the law, commented that the expansive interpretation of the First Division in King v Bristow Helicopters Ltd as including purely psychological injury "caused shock waves": "Air rage: Businessmen behaving badly: Civil liability for uncivil passengers" (2001) LMCLQ 369. (3) In this context it is reasonable to expect that if it had been intended to cover mental injury or illness, it would have been provided for expressly. In the absence of such an express reference it is reasonable to interpret "bodily injury" and "lésion corporelle" as words of restriction, ie as referring to non fatal injury which is physical rather than mental: contrast the wide term "personal injury" in the Guatemala Protocol which never came into force: see Protocol to amend the Convention for the unification of certain rules relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the Protocol done at The Hague on 28 September 1955, signed at Guatemala City on 8 March 1971. His interpretation involves reading the phrase "bodily injury" or "lésion corporelle" ejusdem generis with death ("mort") and wounding ("blessure"). It has the merit, unlike the contrary interpretation, of interpreting "lésion corporelle" and "bodily injury" in a meaningful sense. As a matter of first impression as well as common sense there is inherent in these phrases the antithesis between "bodily injury" and mental injury. These phrases are prima facie inapposite to convey a meaning wide enough to include mental illness: see Dr Georgette Miller in her work Liability in International Air Transport, (1977), pp 127-128 which was cited by the Master of the Rolls in Morris v KLM  QB 100, 115-116, paras 45-46. (4) It is common ground that the travaux preparatoires reveal no discussion or mention of liability for mental injury or illness. Given the spectre of enormous exposure to liability for carriers if claims for mental injury or illness were held to be within article 17, the omission of a reference to such claims during working sessions is revealing. Undoubtedly, at Warsaw and before carriers, aircraft insurers and countries whose national systems did not recognise liability for mental injury or illness would have been likely to argue against including such claims. This is not a case of mere silence: if the idea of including claims for mental injury was under consideration it would have demanded discussion. This indicates clearly and convincingly that the idea of covering mental injury or illness was never contemplated: see Fothergill v Monarch Airlines Ltd  AC 251, 278B-G, per Lord Wilberforce. (5) While the domestic law position in France is irrelevant, Professor Malcolm Clarke in a book with the title Carriage of Goods by Air to be published in 2002 has shown that the amendments to the French text of the parallel Convention concerning International Carriage by Rail are instructive. In 1952 the text of article 26, the liability provision corresponding to article 17, read "de la mort, les blessures et toute autre atteinte a l'integrite corporelle". However, in 1961 the text was amended to read "de la mort, les blessures et toute autre atteinte a l'integrite corporelle ou mentale". The expression in both the current text of 1980 and the revision of 1999 is "dommage resultant de la mort, des blessures ou toute autre atteinte a l'integrite physique or psychique du voyageur". It follows that successive French drafters of the Convention over the last 50 years did not consider that, in the text of an international Convention, "corporelle" was wide enough to cover purely psychic injury. Moreover, this factor cogently reinforces the proposition that for the framers of the Warsaw Convention the natural and obvious antithesis would have been between bodily injury and mental injury. And it shows how unrealistic it is to describe mental injury as an unscientific term. In using the phrase "bodily injury" the framers were not selecting a scientific term. Rather they adopted a term which in ordinary signification, experience and acceptance had a restrictive meaning. (6) Lastly, there is also the fact that until some 50 years after the Warsaw Convention no claims for mental injury or illness against carriers were ever brought to judgment anywhere in the world: see Daddon v Air France (1984) 1 S & B Av R V11/141. Given that claims for mental injury and illness are inherently likely to occur more frequently and be more controversial than claims for physical injuries, the suggestion that such claims may for decades have been paid or settled is fanciful. The truth is that until the 1970s the view that such claims were not covered was the orthodox view throughout the commercial world. The Court of Appeal rightly attached importance to the fact that decades elapsed after 1929 before such claims were ever advanced against carriers. (7) In combination these factors indicate that a line was drawn in article 17 which excludes liability where a person suffers no physical injury but only mental injury or illness, such as clinical depression.
IV. Comparative jurisprudence
18. Leaving aside for the moment the decisions under appeal there are decisions of courts of high standing to be considered. Lord Hope of Craighead has reviewed the case law comprehensively and accurately. I can therefore deal with the major cases quite shortly. In Daddon v Air France (1984) 1 S & B Av R V11/141 the Israeli Supreme Court held that claims for mental anguish suffered by passengers which was caused by the Entebbe high-jacking was covered by the phrase bodily injury in article 17 of the Warsaw Convention. Unfortunately, the Israeli Supreme Court impermissibly relied on changes in the aviation industry since 1929 and the current domestic law view of mental and psychological injury. In the two appeals under consideration the Court of Appeal and the Court of Session rejected this reasoning. Counsel for the passengers in the two appeals before the House placed no reliance on Daddon. Profound as my respect is for the Supreme Court of Israel I am driven to the same position in regard to this decision.
19. The most important decision is that of the United States Supreme Court in Eastern Airlines Inc v Floyd (1991) 499 US 530. On a flight between the Bahamas and Miami a plane experienced engine failure. The crew announced that "the plane would be ditched". Fortunately, the engine was restarted and the plane landed safely. Passengers sued for emotional injury. The judgment of the Supreme Court addressed in detail the question whether article 17 of the Warsaw Convention permits recovery for mental injury unaccompanied by physical injury. For reasons substantially similar to those I have already given the Supreme Court answered this question in the negative. Justice Marshall, writing for a unanimous court expressed the ratio of the decision, at pp 552-553:
Since then in El Al Israel Airlines Ltd v Tseng (1999) 525 US 155 the United States Supreme Court by an 8:1 decision followed Floyd and reiterated that without bodily injury there could be no recovery under article 17 for solely psychic or psychosomatic injury. That plainly excludes mental injury or illnesses. In a subsequent decision of a lower court in Weaver v Delta Airlines Inc (1999) 56FSupp 2d 1190 there appears to be a development to outflank Floyd and El Al by alleging that psychiatric injury or illness involves physical changes to the body. It is not strictly relevant on the issues before the House but I will briefly comment on it. But there is another decision of high authority on the principal point. In Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 the New South Wales Court of Appeal followed Floyd and held that bodily injury in article 17 does not include purely psychological injury.