Recovery Under Civil Aviation Act For Psychiatric Injuries

Leonard James Glen & Others -v- Korean Airlines Company Ltd, English High Court

In March this year Mr Justice Simon considered an appeal relating to three preliminary issues arising out of the crash of a Korean Airlines B747 shortly after take-off from Stansted on 22 December 1999. The claimants all lived near the crash site at Great Hallingbury in Hertfordshire and were seeking to recover damages for psychiatric injuries under the provisions of s.76(2) of the Civil Aviation Act 1982 ("the 1982 Act").

For the purpose of considering the preliminary issues it was assumed that the claimants witnessed the crash and the events following it either seeing them or hearing them directly and suffered psychiatric injuries as a result.

The material parts of s.76(2) of the 1982 Act are as follows:

"where material loss or damage is caused to any person or property on land or water by an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recovered without poof of negligence or intention or other cause of action as if the loss or damage had been caused by the wilful act, negligence or default of the owner of the aircraft."

PRELIMINARY ISSUE 1: WHETHER "MATERIAL LOSS OR DAMAGE",

REFERRED TO IN S.76(2) OF THE 1982 ACT, IS LIMITED TO "PHYSICAL

LOSS OR DAMAGE"

The court concluded that the 1982 Act should be interpreted as an "always speaking" statute, i.e. one which should be construed in the light of contemporary circumstances rather than the more unusual case where the words are intended to be of unchanging effect. The fact that damages in respect of psychiatric injuries were not recoverable in the 1920's, when the words which now appear in s.76(2) were first enacted, did not preclude recovery for such injury if it was available in contemporary circumstances. The parties had been unable to find any statutes where "personal injury" was defined as excluding mental impairment and, in the absence of any apparent reason why Parliament should have intended to exclude the same in this instance, the Court accepted the contention of Mr Philip Shepherd, Counsel for the Claimants, that the "material loss or damage" referred to in s.76(2) included psychiatric injuries.

PRELIMINARY ISSUE 2: WHETHER "PERSONAL INJURY" IN S.105 OF THE

1982 ACT, INCLUDES MENTAL INJURY WHERE THE MENTAL INJURY IS

EVIDENCE OF...