King (AP) (Respondent) v Bristow Helicopters Ltd. (Appellants) (Scotland) In Re M (A Child By Her Litigation Friend CM) (FC) (Appellant)
20. For my part the trilogy of decisions of high authority which I have mentioned in the last paragraph, and the reasoning in those decisions, reinforce the view that somebody who suffered no physical injuries but suffered mental injury or illness has no claim under article 17. On the other hand, I would hold that in two respects mental injury and illness may be relevant. First, there is no reason in principle to exclude from consideration pain and suffering caused by physical injury. It may therefore cover mental injury caused by a physical injury. In such cases the threshold requirement of bodily injury under the Convention is satisfied. It is therefore not an exception to the rule as I have stated it. Secondly, I would hold that if a relevant accident causes mental injury or illness which in turn causes adverse physical symptoms, such as strokes, miscarriages or peptic ulcers, the threshold requirement of bodily injury under the Convention is also satisfied. In Rosman v Trans World Airlines Inc (1974) 34 NY 2d 385, 399 the Court of Appeals of New York ruled by a majority of 6:1 that:
For my part this reasoning in Rosman is faithful to the intent of the Warsaw Convention and I would adopt it. This too is not an exception. But mental injury or illness, such as clinical depression, is excluded.
V. Applying the distinction
21. The outcome of applying the interpretation which I have preferred is that the claim in Morris v KLM falls outside article 17 because it involves mental injury or illness only and that the claim in King is within article 17 inasmuch as it involves a peptic ulcer together with pain and suffering associated with it.
VI. The new point: Weaver v Delta Airlines Inc
22. Towards the end of the hearing in the House a new and important point emerged. It was based on Weaver v Delta Airlines Inc, 56 F Supp. 2d 1190. The potential effect of it was that psychiatric injury or illness involved physical changes to the body and is therefore "bodily injury". Given the decisions announced in the speeches today this point does not arise on the appeals under consideration. While the House, of course, has a broad discretion to deal with a point which does not strictly arise, it usually only does so when the point has been considered by courts below and addressed in written and oral argument before the House.
23. It is necessary to explain the forensic background. In Morris v KLM Royal Dutch Airlines, Weaver was not cited to the first instance judge or considered by him. According to the Law Report it was not cited in argument in the Court of Appeal. It is not referred to in the judgment of the Court of Appeal. It is not referred to in the printed cases for the appellant or the respondent. In King v Bristow Helicopters 2001 SLT 126 there is no reference to Weaver in the first instance judgment. In the First Division judgment there are two passing references by Lord Rodger of Earlsferry (para 3 of the opinion) and Lord Reed (para 64 of his dissenting opinion) but it was not an issue addressed by the First Division. Weaver is not referred to in the printed cases of the appellant or respondent. The submissions to the House on Weaver were meagre. In the result the discussion of Weaver in the substantial speeches today contain many matters on which the House has not had the benefit of adversarial argument. That judges are not mere cyphers and may make their independent investigation into matters of law, I do not doubt. Indeed to some extent I have done so in this case. But it is reassuring if an important new issue, on which the House rules, has been properly investigated and debated by counsel. It has not happened in this case. It will be necessary to revisit the Weaver case when it is directly in issue and with the benefit of a proper exploration of the issues. My discussion of Weaver must be read subject to this caveat.
VII. The merits of the Weaver point
24. In Weaver v Delta Airlines Inc, the United States District Court for the District of Montana, Billings Division, was faced with a claim by a passenger to recover compensation for post traumatic stress disorder resulting from an emergency landing. The issue was whether the plaintiff suffered bodily injury. The judge observed, at p 1192:
The 9th Circuit is the appellate court which supervises the Weaver court. Last year the 9th Circuit followed Floyd and Tseng in a post-traumatic stress syndrome case where there was no evidence of physical injury but left open the issue whether such a physical injury would satisfy the requirements of article 17: Carey v United Airlines (2001) 28 Avi 15,408, 15,415 (footnote 47). On the other hand, Weaver was followed in In re Air Crash at Little Rock, Arkansas (2000) 118 F Supp 21d 916. There are also lower court decisions the other way: Jack v Trans World Airlines Inc (1994) 854 F Supp 654; Terrafranca v Virgin Atlantic Airways Ltd (1998) 151 F 3d 108; Alvarez v American Airlines Inc (1999) 27 Avi 17,214; (2000) 27 Avi 17,475. As a matter of precedent Weaver hardly rests on secure foundations.
25. In aid of the argument based on Weaver points have been made which I would not dispute. First, there is the undoubted fact that medical science generally and psychiatry in particular have advanced since 1929. While it is a matter for expert opinion - and there was none before the House - I accept that in cases of recognisable psychiatric illnesses, such as clinical depression (as in the case of Morris v KLM) and post traumatic stress disorder (as in Weaver) there is a physical connection between the illness of the mind and the body inasmuch as the central nervous system which includes the nervous tissue of the brain is involved: see Black's Medical Dictionary, 39th ed, (1999), sv "central nervous system", "brain", "depression" and "post traumatic stress disorder"; and Gelder, Mayou and Cowen, Shorter Oxford Textbook of Psychiatry, 4th ed (2001), passim. Secondly, I accept that courts of law cannot ignore advances in scientific knowledge. In R v Ireland  AC 147, 156, and in Frost v Chief Constable of South Yorkshire Police  2 AC 455, 492, I observed that courts of law must act on the best medical insight of the day. This is also an uncontroversial point and does not provide the answer to the point of interpretation before the House. Thirdly, statutes are generally always speaking, and ought therefore to be interpreted in light of the contemporary social and scientific world. This is not a rule of law but a principle of construction, which may be displaced by a contrary intent revealed by a particular statutory context: R v Ireland,  AC 147 158D-G. Given that the rationale of the principle is that statutes are generally intended to endure for a long time, one can readily accept that multilateral international trade conventions, which are by statute incorporated in our law, should be approached in a similar way. Indeed one may say that a fortiori they ought to be so interpreted. Again, this principle does not provide an answer to the question before the House.
26. None of these points, nor a combination of them, undermines the conclusion that at the time of the Warsaw Convention a line was drawn between bodily injury (that is, involving non fatal physical injury) and mental injury or illness. If this view is correct the argument based on Weaver cannot succeed. To accept it would be to ignore the contextual meaning of the Warsaw Convention. It is no answer to say that the distinction between the body and the mind is arbitrary. To some extent it is. Nevertheless, scientifically and in common sense there is a real distinction between physical injuries and mental injury or illness. In Weaver the threshold requirement of a bodily injury within the meaning of the Convention was absent. For reasons already explained the Weaver case (involving only alleged psychiatric injury) is quite different from the two qualifications which I mentioned in para 12 (involving physical manifestations). If cases of mental injuries and illnesses are to be brought within the Convention system, it must be done by amendment of the Convention system and not by judicial creativity. In my view Weaver was wrong in holding that there is no legal issue but only a medical question. Weaver was not faithful to the law as settled in Floyd and Tseng by the United States Supreme Court. And the acceptability of the Weaver line of authority is not saved by restricting it to recognisable psychiatric illnesses. That is a legal concept taken from post 1929 English case law: see McLoughlin v O'Brian  AC 410, 418; R v Chan-Fook  1 WLR 689; R v Ireland,  AC 147. It was not available at Warsaw to serve as an autonomous concept in article 17. It does not satisfy the criterion of approaching the interpretation of a multilateral trade convention "unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation": James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd  AC 141, 152.
27. Moreover, the court in Weaver failed to take into account that to this day the extension of the Warsaw system to include mental injury and illnesses is too controversial to command sufficient international support. In part this must be due to policy factors, namely the expected escalation of claims, far beyond the incidence of physical claims, if mental injuries and illnesses are held to be included in article 17. The potential range of such cases is one factor. The cost of meeting such claims is likely to be huge. Another aspect is the cost of psychiatric evidence by rival experts to determine whether claims are cognisable. Finally, there is the cost of legal proceedings. It may be that large countries, and major airlines, could cope with such additional exposure. For smaller countries, and smaller airlines, it could be a serious matter. In 1929 the aviation industry was fragile as it apparently is today. In 1929 the world was not ready to include mental injuries and illnesses within the scope of article 17. It is not ready to do so in 2002.
28. It is true, of course, that a judge's instinct must be for full corrective justice. But the language and contextual scene of article 17 rule out the Weaver approach to its interpretation. Courts of law must avoid the reproach that they are becoming the redrafters of the Convention.
29. I would hold that Weaver should not be followed.
VIII. The judgments below
30. I am much indebted to the judgments of the Court of Appeal and the First Division for a careful and analytical exploration of the issues in the cases under consideration. It will be clear, however, that I prefer the opinion of the Court of Appeal to the views of the majority of the First Division.
31. In Morris v KLM,  QB 100, 128, para 103 the Master of the Rolls observed:
A statement to Parliament by the Government further elucidated the position. The relevant House of Commons Written Answers for 3 July 2000 (Col 87W and Col 88W) were as follows:
Mr Dismore: To ask the Secretary of State for the Environment, Transport and the Regions what representations he has made in relation to the Montreal Convention to ensure UK passengers will be able to claim compensation for psychiatric injury caused by air accidents; and if he will make a statement. .
Mr Hill: Damages for mental injury caused by air accidents are already recoverable in the UK when associated with physical injury. In preparation for the Diplomatic Conference held in Montreal in May 1999, at which the Convention was signed, the UK supported a proposal by Sweden for a separate head of claim for mental injury. Prior to the Conference, however, that proposal was withdrawn from the draft text of the Convention. Our position was that a separate claim for mental injury could be advocated only if there was sufficient support to gain global agreement. There was not sufficient support so, in the interest of securing the best deal for the UK, it was decided to support the text of the Convention without a separate reference to mental injury. The Conference 'travaux préparatoires', nevertheless, indicate that damages for mental injury can be recovered in certain states and that jurisprudence in this area is developing."
This is how matters stand at present. Limited progress towards the admission of claims for mental injury and illness must await the coming into operation of the Montreal Convention.
32. For the reasons I have given I would dismiss the appeal in Morris v KLM. For the same reasons I would allow the appeal in King and restore the decision of the Lord Ordinary. I am in agreement with the speech of my noble and learned friend Lord Hope of Craighead.
LORD HOPE OF CRAIGHEAD
33. The question in these appeals relates to the meaning of the phrase "bodily injury" in article 17 of the Warsaw Convention of 1929 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. To what extent, if at all, is the carrier liable under this article where the injury which the passenger sustained in the accident was a mental injury and not a physical injury?
34. Although both cases raise the same question, they arose out of different facts and circumstances and they have arrived here by different routes. I shall give a brief summary of the cases in their historical order before examining the point of law which they have raised.
Mr King's case
35. On 22 December 1993 Philip King was a passenger on a helicopter which Bristow Helicopters Ltd were operating in poor weather in the North Sea. It took off from the helideck of a floating production platform in the Beryl oilfield, rose to a height of about 35 feet and hovered for a short period. Suddenly its two engines flamed out, there was a loud bang and the helicopter descended rapidly and landed heavily on the helideck. It was engulfed in smoke which prevented the passengers from seeing out. They did not know whether it had landed safely or was on the edge of the helideck and liable to fall off into the sea. There was panic on board and the passengers were shouting. Mr King did not sustain any physical injury while he was on board or when he disembarked from the helicopter. But he was extremely frightened, and he developed several psychiatric conditions including a moderate post-traumatic stress disorder as a result of the accident. The stress led to the onset of peptic ulcer disease, which caused him severe pain and an exacerbation of pre-existing dyspeptic symptoms.
36. Mr King raised an action of damages in the Court of Session against Bristow Helicopters Ltd ("Bristow"). His flight was non-international carriage by air within the meaning of the Carriage by Air Acts (Application of Provisions) Order 1967: SI 1967/480. Schedule 1 to the 1967 Order applies to such carriage the Warsaw Convention as amended by the Hague Protocol. He claimed damages under article 17 of the Convention both for the psychiatric conditions and for the peptic ulcer disease.
37. On 13 November 1998 the Lord Ordinary (Lord Philip), having heard a debate on the procedure roll, excluded from probation all the averments about the psychiatric conditions which Mr King sustained as a result of the accident. He also dismissed actions which had been raised by two other passengers which had been heard at the same time: Hammond v Bristow Helicopters Ltd, 1999 SLT 919. But he allowed the averments about Mr King's peptic ulcer disease to go to proof before answer. A reclaiming motion was marked by Mr King in which he sought a proof before answer of all his averments. A cross-reclaiming motion was marked by Bristow in which they asked the court to dismiss the action. On 12 July 2000 the First Division (the Lord President (Rodger) and Lord Cameron of Lochbroom, Lord Reed dissenting), allowed Mr King's reclaiming motion, refused the cross-reclaiming motion and allowed the parties a proof before answer of their averments: 2001 SLT 126. It is against that interlocutor that Bristow have appealed to this House.
38. During the hearing before the First Division Mr King's counsel said that his averments should be interpreted as disclosing that Mr King was suffering from three psychiatric conditions: post-traumatic stress disorder, chronic depression and fear of flying, and that his peptic ulcer disease was caused, or materially contributed to, by his psychiatric conditions: 2001 SLT 126, 129G-H. He also stressed that he was not offering to prove that Mr King's psychiatric conditions were caused by any physiological changes in his body. That position was maintained in the hearing before your Lordships. The appeal in this case was argued on the basis that Mr King suffered two distinct kinds of injury as a result of the accident when he was on board the helicopter. The first was a mental injury which led to the three psychiatric conditions described in the averments. The second was a physical disorder consisting of the peptic ulcer disease which the psychiatric conditions had caused.
Miss Morris's case
39. On 6 September 1998 Miss Morris was on an international flight which was being operated by KLM Royal Dutch Airlines from Kuala Lumpur to Amsterdam. She was just under 16 years old and was travelling as an unaccompanied minor. She was seated next to two men who were speaking French to each other. After a meal she fell asleep and woke to discover the hand of the man next to her touching her left thigh from the hip to the knee. He was caressing her between her hip and knee and his fingers dug into her thigh. She got up, walked away and told an air hostess what had occurred. She became very distressed and on her return went to see a doctor. He found that she was suffering from a clinical depression amounting to a single episode of a major depressive illness. She has now made a full recovery.
40. Miss Morris brought a claim for damages against KLM in Bury County Court. The flight on which she was travelling was international carriage by air for reward within the meaning of article 1 of the Warsaw Convention as amended by the Hague Protocol. She claimed damages under article 17 of the Convention as incorporated into English law by Schedule 1 to the 1961 Act. In the particulars of injuries annexed to her claim form she stated that she relied for particulars of her injury on reports from Dr N J Cooling, a consultant psychiatrist. In his report Dr Cooling said that in his opinion Miss Morris was emotionally shocked by what happened to her, that since returning home she had shown the characteristic features of a clinical depression and that the diagnosis according to DSM-IV criteria was one of a single episode of a major depressive illness (296.2) for which her general practitioner, recognising the very dramatic change in her mental state, had started her on anti-depressant treatment.
41. By consent the issue of liability was treated in the county court as a preliminary issue. This issue was heard on the basis of agreed facts before Judge Carter QC. On 1 December 2000 he gave judgment for Miss Morris for damages to be assessed, but gave KLM permission to appeal. In the appeal the meaning of "accident" and "bodily injury" in article 17 were both in issue. On 17 May 2001 the Court of Appeal (Lord Phillips of Worth Matravers MR, Peter Gibson and Latham LJJ) allowed the appeal:  QB 100. Miss Morris now appeals against that order to this House.
42. Before Judge Carter both parties had claimed that the issue between them fell to be determined in a manner that entitled each party to summary judgment. The hearing in the Court of Appeal also proceeded on the agreed premise that there is a distinction between physical injury and mental injury: that is to say, that physical injury involves damage or adverse change to the structure of the body, whereas mental illness adversely affects the well-being of the mind without organic change to the body:  QB 100, 113, para 35. Lord Phillips of Worth Matravers MR said, at p 114, para 40, that the appeal had to be approached on the premise that mental illness and physical injury are distinguishable and that the claimant had accepted that she suffered no physical injury.
43. It can be seen from this summary that no attempt has been made in either case to show that the mental illness or injury was caused to any extent by physical injury. The only physical injury which is said to have been sustained in either case is what may conveniently be described as the physical manifestation of a mental injury in Mr King's case. This is the peptic ulcer disease which he claims to have developed as a result of the psychiatric conditions described in his averments.
44. As this brief summary has demonstrated, various expressions may be used to describe an injury which affects the mind but is not accompanied by any physical injury. In Mr King's case, the Lord President observed that among the expressions used in the extensive case law and literature on this subject are "shock", "mental distress", "mental injury", "psychic injury", "psychological injury" and "psychiatric injury". For the sake of consistency he chose to adopt the term "psychological injury": 2001 SLT 126, 129K. In Miss Morris's case, Lord Phillips of Worth Matravers MR used the expressions "mental injury" and "mental illness":  QB 100, 113, 114, paras 35 and 40.
45. For the purposes of this judgment, except when I am dealing which Mr King's peptic ulcer disease, I propose to adopt the phrase "mental injury". I think that it is preferable to adhere to the noun "injury", which is the word used in article 17. Moreover, I would wish to recognise at the outset that the word "injury" does not extend to the reactions which a passenger may experience during or as a result of an accident such as fright, fear or anxiety. Emotional upsets of that kind seem to me to be clearly outside the scope of the article. Article 17 is concerned only with something that can properly be described as an injury.
46. As for the choice of adjective, I would prefer to use the word "mental" to "psychological", although I adopted the latter expression in Sidhu v British Airways plc  AC 430, 441B-D. In that case it was suggested that the phrase "bodily injury" in article 17 ought to be construed as including psychological damage, especially if it were shown to have a physiological basis by medical evidence. But the point did not require decision in that case. I recognise at once that the phrase "mental injury" is open to criticism for the reasons which have been so carefully explained by my noble and learned friend, Lord Hobhouse of Woodborough. But, for the purpose of these appeals, all I am looking for is a convenient expression to embrace those conditions affecting the mind which are sufficiently serious to fall within the concept of injury. The words "physical" and "mental" seem to me to provide a sufficient contrast to mark the broad dividing line which has been identified between the two sides of the argument. The question where that line is to be drawn is a difficult one, but is not the question to which the passengers' counsel addressed their principal argument. Their argument was that it was sufficient for them to show that the passengers sustained a mental injury.
Are the two types of injury distinguishable?
47. Underlying the problem of terminology there is a more fundamental question. It has for a long time been recognised that it is not possible to maintain a rigid distinction between the body and the mind in the law relating to liability in damages for negligence. In Bourhill v Young  AC 92, 103 Lord Macmillan recognised that the crude view that the law should take cognisance only of physical injury resulting from actual impact had been discarded and that it was recognised that an action will lie for injury by shock sustained without direct contact. As he put it, the distinction between mental shock and bodily injury was never a scientific one.