Turbulent Times – Psychiatric Injury In Aviation Claims

The Montreal Convention of 1999 (the 'Convention') resulted from the need to modernise the Warsaw Convention (officially the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed in Warsaw on 12 October 1929). Despite such modernisation, an opportunity was clearly missed, as the Convention remains an area of contention in cases regarding the liabilities of airlines and their obligations to passengers in the event of death and/or injury.

In so far as it relates to PTSD-related claims, this contention stems from the wording of Article 17, which states:

'The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.'

The phrase 'upon condition only' was new to the Convention and is not found in the Warsaw Convention, Article 17, which provides:

'The carrier shall be 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 or embarking or disembarking.'

Although the meaning of the term 'death' is clear, it is the Convention's reference to an airline's liability where a passenger has sustained 'bodily injury' that has caused debate. The debate has been based around the meaning of the term in order to establish the scope of what should and should not be considered a 'bodily injury'.

Whether an air carrier could and should be held liable to a passenger for emotional trauma alone was seemingly never discussed during the drafting of the Warsaw Convention, nor the early years after it came into effect. It was the mid-1970s before claims were brought for psychological injury; these claims arising as a result of a number of terrorist hijackings.

Passengers sought compensation for the terror and emotional suffering they had experienced. The litigation that followed raised the question of whether the carrier can be held liable to a passenger who has suffered psychological trauma only, without at the same time suffering any physical injuries. In trying to answer this question, the courts focused on the official French text in an attempt to ascertain the proper meaning and intention of the words 'lésion corporelle' - the French term used in drafting Article 17 that has been translated into 'bodily injury'.

On 6 September 1970, a Trans World Airlines aircraft was hijacked and forced to land in the desert near Amman, Jordan. In the cases that followed, the court's approach was not consistent.

In Burnett v TWA 368, F Supp 1152, Civ. No. 9735, D.N.M, (1973), the court in New Mexico looked at the term 'lésion corporelle' and noted the difference in French law between bodily injury (lésion corporelle) and psychological injury (lésion mental). The court found the terms to be mutually exclusive and reached the decision that psychological trauma did not fall within Article 17.

By contrast, in Rosman v Trans World Airlines 358, N.Y.S. 2d 97, A.Ct., (1974), the New York Appeals Court looked to an English translation of Article 17 and found the carrier liable for bodily injuries and for the emotional distress relating to the injury. However, it denied recovery for emotional distress unaccompanied by a physical injury and...