Ipsofactoj.com: International Cases [2001] Part 8 Case 2 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

KLM Royal Dutch Airlines

- vs -

Morris

LORD PHILLIPS MR

LORD JUSTICE PETER GIBSON

LORD JUSTICE LATHAM

17 MAY 2001


Judgment

Lord Phillips MR

(delivered the judgment of the Court)

  1. This is an appeal from a judgment of His Honour Judge Carter, QC, given in the Bury County Court sitting at Bolton on 1 December 2000. The material facts, which are agreed, are as follows.

  2. On 6 September 1998 Kelly Morris, the respondent, who was born on 24 September 1982 and was almost 16 years of age, boarded the appellant's aeroplane at Kuala Lumpur on a flight to Amsterdam. She had visited her uncle in Kuala Lumpur 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 to her home in Bolton she went to see a doctor, Dr Cooling. He found that she was suffering from a clinical depression amounting to a single episode of a major depressive illness. Fortunately she has made a full recovery.

  3. In this action the respondent claims damages in respect of her illness. She does not allege that she suffered any physical injury. Her claim is based on Article 17 of the Warsaw Convention of 1929, as amended at The Hague in 1955, ('the Convention'). The Convention is incorporated into English law as schedule 1 to the Carriage by Air Act 1961. The respondent's claim turns on important issues in relation to the interpretation of Article 17. Before Judge Carter each party claimed that those issues fell to be determined in a manner that entitled that party to summary judgment. Judge Carter resolved those issues in favour of the respondent and gave judgment in her favour on liability, with damages to be assessed.

    THE ISSUES

  4. Article 17 of the Convention provides that:

    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.

  5. The first issue is whether the respondent's illness was caused by an accident within the meaning of Article 17. The second issue is whether her illness constituted bodily injury within the meaning of Article 17. The meaning of these three words, in the context of Article 17, have been analysed repeatedly, and on occasion at very great length, in the courts of a number of signatories to the Convention. Some of the jurisprudence consists of detailed analysis of the architecture of what were found, at the end of the day, to constitute blind alleys. We propose to take advantage of the conclusions reached as a result of that analysis without duplicating the exercise that was required to reach those conclusions.

    PRINCIPLES OF INTERPRETATION

  6. The starting point in interpreting Article 17 must be to consider the natural meaning of the language of the Article itself. The English text of the Convention, as scheduled to the 1961 Act, is a translation of the French text, which is also scheduled to the Act. The French is the original text of the Convention and section 1(3) of the 1961 Act provides that if there is any inconsistency between the two texts, the French text is to prevail.

  7. In interpreting the Article, it is necessary to consider the Convention as a whole and to give it a purposive interpretation: see Lord Diplock in Fothergill v Monarch Airlines [1981] A.C. 251 at 279. Later in his speech, at p.281, Lord Diplock, referring to the Convention, said:

    The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

    The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co. Ltd v Babco Forwarding & Shipping (U.K.) Ltd [1978] A.C. 141, 152, 'unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation'.

  8. Lord Diplock went on to observe that it is legitimate to have regard to the "travaux préparatoires" or "legislative history" in order to resolve ambiguities or obscurities in the enacting words. As to this, Lord Wilberforce had earlier remarked at p.278:

    .... there may be cases where such travaux préparatoires can profitably be used. These cases should be rare, and only where two conditions are fulfilled, first, that such material involved is public and accessible, and secondly, that the travaux préparatoires clearly and indisputably point to a definite legislative intention.

  9. Lord Hope clearly had this passage in mind when he stated in Sidhu v British Airways [1997] A.C. 430 at p. 442, referring to the Convention, that:

    It is sufficient to say that cautious use may be made of this material, the availability to the public of which is not in doubt. But it will only be helpful if, after proper analysis, it clearly points to a definite intention on the part of the delegates as to how the point at issue should be resolved.

  10. Not only is it legitimate to look at the travaux préparatoires as a guide to the interpretation of a statute. It is also legitimate to have regard to 'any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation'. This principle of public international law is now embodied in Article 31.3(b) of the Vienna Convention on the Law of Treaties, which came into force, with prospective effect, on January 27, 1980.

  11. Finally, assistance should be sought from the relevant jurisprudence both of this country and of other jurisdictions.

  12. The doctrine of precedent requires this Court to follow decisions of the House of Lords and the Court of Appeal of this country, where applicable. While they are not binding, respect falls to be paid to relevant decisions of courts of other signatories to the Convention. In an ideal world the Convention should be accorded the same meaning by all who are party to it and careful consideration must be given to the reasoning of courts of other jurisdictions, particularly those of high standing, that have grappled with the same problems that are raised by this appeal.

    THE MEANING OF 'ACCIDENT'

  13. The same word is used in both the English and the French texts and there has been no suggestion that the meaning of that word differs in the two languages. On behalf of the appellant, Mr Haddon-Cave, QC, contended that the indecent assault suffered by the respondent could not properly be described as an accident. He submitted that:

    accident must involve an unexpected or unusual event or happening which is external to the passenger and which relates to the operation of the aircraft or could be regarded as a characteristic of air travel.

  14. The latter part of this definition cannot be derived from the ordinary meaning of 'accident'. Mr Haddon-Cave submitted that the requirement that the accident must be related to air travel could be deduced from

    1. the travaux préparatoires,

    2. a purposive approach to interpretation and

    3. a significant body of United States authority. In argument he relied principally on this final factor.

  15. Mr Braslavsky, QC, for the respondent, was happy to address the meaning of 'accident' on the basis of the American authorities. He submitted

    1. that the leading decision of the American Supreme Court did not justify a finding that there was a requirement that the accident had to be related to air travel but

    2. that if there was such a requirement, it was abundantly satisfied on the facts of this case.

  16. The case on which both parties principally relied was Air France v Saks (1985) 470 US 392. The claimant suffered loss of hearing in her left ear as a result of injury which she alleged was caused by the operation of the air pressurisation system as the aircraft lost height before landing. The issue was whether this was an 'accident' within the meaning of Article 17. The Supreme Court held that it was not. The Court drew a distinction between the use of the word accident to describe an event causing hurt or loss and the use of the same word to describe the occurrence of the hurt or loss itself, citing the following passage from the speech of Lord Lindley in Fenton v J. Thorley & Co. [1903] A.C. 443 at p.453:

    The word 'accident' is not a technical legal term with a clearly designed meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.

  17. The Court went on to comment at p.398:

    In Article 17, the drafters of the Warsaw Convention apparently did make an attempt to discriminate between 'the cause and the effect'; they specified that air carriers would be liable if an accident caused the passenger's injury. The text of the Convention thus implies that, however we define 'accident', it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone. American jurisprudence has long recognized this distinction between an accident that is the cause of an injury and an injury that is itself an accident. See Landress v Phoenix Mutual Life Ins. Co. 291 US 491, 78 L Ed 934, 54 S Ct 461, 90 ALR 1382 (1934).

  18. The Court went on to consider the travaux préparatoires to see whether these threw any light on the nature of the 'accident' that the Convention required should be demonstrated to give rise to liability and concluded at p.403 that:

    Like the text of the Convention, however, the records of its negotiation offer no precise definition of "accident".

  19. The Court then considered jurisprudence of both the courts of America and of other signatories to the Convention before giving its own definition at p.405:

    We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries. Maugnie [v Cie. Nationale Air France] (1977) 14 Aviation Cases 17,534, at 1262. For example, lower courts in this country have interpreted Article 17 broadly enough to encompass torts committed by terrorists or fellow passengers.

  20. In referring, with approval, to the inclusion in the definition of 'accident' of torts committed by fellow passengers, the Court said nothing to suggest that those torts had, in some respect, to relate to the operation of the aircraft or to be a characteristic of air travel, although this could be said to have been a feature of cases cited by the Court by way of illustration of such accidents. The Court concluded at p.406:

    But when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply.

  21. These words described the circumstances in which the claimant had sustained her injury and the Court concluded, in consequence, that her claim was not made out.

  22. Although the Supreme Court did not suggest that an 'accident' had, in some respect, to be related to or a characteristic of air travel, subsequent decisions in the United States imposed this requirement. Thus, in Harley Price v British Airways (1992) 23 Aviation Cases 18,465, the District Court for the Southern District of New York rejected a claim by a passenger who had been injured in a fight with another passenger on the ground that the accident which caused the damage had no relationship with the operation of the aircraft. Mr Haddon-Cave relied on this, and other cases to like effect, in contending that, even if the assault suffered by the respondent in the present case was an 'accident', it had no relationship with the operation of the aircraft and thus involved no liability on the part of the appellant.

  23. In Chaudhari v British Airways (Unreported – 16 April 1997) the Court of Appeal in this country founded on the decision in Saks when rejecting a claim under Article 17 of a disabled passenger who had sustained an injury as a result of falling while leaving his seat to go to the lavatory in the course of a flight. Leggatt L.J. held that the plaintiff's accident:

    .... was not caused by any unexpected or unusual event external to him, but by his own personal, particular or peculiar reaction to the normal operation of the aircraft.

  24. The definition of 'accident' in Saks gives that word a natural and sensible meaning in the context in which it appears and has been approved by this Court. We propose to apply it in the present case.

  25. There is nothing in Saks that justifies the requirement that an 'accident' must have some relationship with the operation of the aircraft or carriage by air. Nor do we consider that a purposive approach to interpretation requires that gloss on the word. Article 20 of the Convention provides:

    The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

  26. Liability under Article 17 only arises in relation to an accident that occurs on board the aircraft or in the course of embarking or disembarking. Thus the accident will occur at a time when the passenger is in the charge of the carrier. In those circumstances it seems to us to be a logical and reasonable scheme of liability that, whatever the nature of the accident, a passenger should be entitled to be compensated for its consequences where the carrier is not able to discharge the burden imposed by Article 20.

  27. It is not, however, necessary to decide this point, for we agree with Mr Braslavsky that, on the facts of this case, the respondent can satisfy the requirement, if so it be, of demonstrating that the 'accident' that occurred related to or was a characteristic of her carriage by air. This can be demonstrated by reference to a recent case of very similar facts. This is a decision of the United States Court of Appeal, Second Circuit, on appeal from another decision of the District Court for the Southern District of New York – Brandi Wallace v Korean Air I (2000) 27 Aviation Cases 17,864. The basis of the Plaintiff's claim under Article 17 was that she had been sexually assaulted by the passenger seated next to her – the details of the assault appear sufficiently from the passage that we are about to cite. The Court was concerned with a preliminary issue of whether or not this constituted an 'accident'. The majority of the Court drew attention to the fact that, since Saks, two lines of authority had developed. One held that there was a requirement that the accident should have some relationship with air travel; the other did not. At p.17,869 the majority observed that "this Talmudic debate is academic in the unique circumstances of this case" and went on to give the following explanation for finding in favour of the plaintiff on the issue:

    Turning to the particular facts that give rise to an 'accident' in this case, it is plain that the characteristics of air travel increased Ms Wallace's vulnerability to Mr Park's assault. When Ms Wallace took her seat in economy class on the KAL flight, she was cramped into a confined space beside two men she did not know, one of whom turned out to be a sexual predator. The lights were turned down and the sexual predator was left unsupervised in the dark. It was then that the attack occurred.

    Equally important was the manner in which Mr Park was able to carry out his assault. While Ms Wallace lay sleeping, Mr Park: (1) unbuckled her belt: (2) unbuttoned her shorts; (3) unzipped her shorts; and (4) squeezed his hands into her underpants. These could not have been five-second procedures even for the nimblest of fingers. Nor could they have been entirely inconspicuous. Yet it is undisputed that for the entire duration of Mr Park's attack not a single flight attendant noticed a problem. And it is not without significance that when Ms Wallace woke up, she could not get away immediately, but had to endure another of Mr Park's advances before clambering out to the aisle.

    In sum, recognizing the flexibility called for by Saks, we are satisfied that Mr Park's assault on Ms Wallace was, in the language of Saks, 'an unexpected or unusual event or happening that [was] external to the passenger'. 470 US at 405. As such, it constituted an 'accident' for purposes of Article 17 of the Warsaw Convention.

  28. Mr Haddon-Cave sought to distinguish this decision on its facts. He submitted that in the present case there were no facts found that created any relationship between the assault on the respondent and the fact that she was being carried by air. It had not been found that she was in a cramped space in close proximity to the 'predator', nor that the lights were dimmed, nor that the assault continued over a significant period of time. He added that there were other situations where strangers came into close physical proximity – on the railway, in the underground or in the cinema.

  29. We were not persuaded by these submissions. All that the authorities relied upon by the appellant require is that the accident should be brought about or facilitated by some special feature of air travel, not that that feature should be unique. Judges do not travel exclusively in first class seats and can take judicial notice of the fact that those who travel economy have to accept relatively cramped conditions which bring them into close proximity with their neighbours. Circumstances are rare that result in a fifteen year old girl settling down to sleep in close proximity to an unknown man. Indeed, as Mr Braslavsky pointed out, the youth of the respondent was an additional special feature that was absent in Brandi Wallace.

  30. Mr Braslavsky drew our attention to a standard form used by the appellant in relation to the carriage of unaccompanied minors. This includes a space for entry of the name of the minor's 'escort in flight'. This suggests, as one would expect, that the appellant accepts a degree of responsibility for the care of unaccompanied minors in flight.

  31. We have no doubt that the accident that befell the respondent exemplified a special risk inherent in air travel and that, whatever the precise test may be, it constituted an "accident" within the meaning of that word in Article 17. Judge Carter reached the same conclusion, but on the wider basis that an unusual event or happening external to the passenger constitutes an "accident" whether or not it is a characteristic of air travel. This was a conclusion shared by Judge Pooler, who delivered a minority judgment in Brandi Wallace in which he gave his own reasons for concurring with the decision of the majority.

    BODILY INJURY

    The issue

  32. The appellant's case is that 'bodily injury' in Article 17 means injury that results in some form of physical damage to the structure of the body and does not extend to illness of the mind. The respondent's case is that 'bodily injury' encompasses both physical injury and mental injury. The conclusion of Judge Carter appears from the following short paragraph in his judgment at p.7:

    .... what the parties believed in 1929 by bodily injury is not an end to the matter. The decisions which have held that hijack or other forms of modern terrorism amount to an accident are not said to be wrong because hijack was not anticipated or thought of in 1929. In the same way, why should mental illness without physical injury not amount to bodily injury although mental illness may not have been thought of in this context in 1929.

  33. The judge also observed that he was following the majority in the recent decision of the Inner House of the Court of Session in King v Bristow Helicopters Ltd. [2001] 1 Lloyd's Rep 95, a case that we shall have to consider in detail in due course.

  34. The analogy drawn by Judge Carter between a hijack and mental illness is not necessarily apt. Both 'accident' and 'bodily injury' are generic descriptions. It does not follow from the fact that a hijack falls, in the context of the Convention, within the genus of 'accident' that mental illness can be drawn within the genus of 'bodily injury'. That question is one which requires detailed analysis. This analysis involves consideration of a number of other Articles of the Convention, and it may be helpful to set these out at this stage, together with Article 17, using the English text:

    CHAPTER III LIABILITY OF THE CARRIER

    ARTICLE 17

    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 operation of embarking or disembarking.

    ARTICLE 18

    (1)

    The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.

    ARTICLE 19

    The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

    ARTICLE 20

    The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

    ARTICLE 21

    If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.

    ARTICLE 24

    (1)

    In the cases covered by Article 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.

    (2)

    In the cases covered by Article 17, the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.

    The distinction between physical injury and mental injury

  35. This appeal has proceeded on the premise that there is a distinction between physical injury and mental injury; 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.

  36. This was undoubtedly the general belief in the 1920s, when the terms of the Warsaw Convention were negotiated. Today it is recognised that the picture is less clear. In McLoughlin v O'Brian [1983] 1 A.C. 410 at 418 Lord Wilberforce observed:

    Although we continue to use the hallowed expression 'nervous shock', English law, and common understanding, have moved some distance since recognition was given to this symptom as a basis for liability. Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact.

  37. More recently in Frost v Chief Constable of South Yorkshire [1999] 2 A.C.455 at p.463, Lord Griffiths said:

    As medical science advances we realise how difficult it is to separate out the physical and psychiatric consequences of trauma, and I believe the law would do better to regard both as personal injury.

  38. In Mullany on Tort Liability for Psychiatric Damage (1993) the authors comment at p.18:

    It should be noted that physical symptoms resulting from shock, such as strokes, miscarriages, peptic ulcerations or increased blood pressure, will fall outside the category of recognisable psychiatric illness. This does not mean that such harm is not compensable, merely that it is conceptually distinct from damage to the mind.

  39. Munkman on Damages for Personal Injuries and Death, 10th Ed., also draws a distinction between physical and mental injury. In a footnote at p.118, however, the author notes:

    But no doubt long-term malfunctioning also produces physical changes in parts of the brain or its chemistry. Some psychiatric treatments are physical (eg drugs, electro-convulsant therapy).

    .... The latest investigations indicate that many mental disorders are due to excess or deficiency of complex chemicals in the brain, and the trend is towards the use of drugs which counteract this. No one knew why ECT worked - perhaps this too had a chemical effect - but it gave relief in many depressive cases though there has been much ill-informed criticism of it.

  40. These passages lead to the reflection that it is possible that every mental illness may, in time, be shown to be accompanied by and consequent upon some change to the physical structure of the body, so that mental illness can properly be described as a type of physical injury. That stage has not yet been reached, however, and this appeal must be approached on the premise that mental illness and physical injury are distinguishable and that the respondent, as she accepts, suffered no physical injury.

    The natural meaning of bodily 'injury' / 'lésion corporelle'

  41. Mr Haddon-Cave submitted that the meaning of 'bodily injury', and of the primary French phrase 'lésion corporelle', was clear and unambiguous, so that reference to external aids to interpretation was neither necessary nor permissible. In his skeleton argument he put the matter thus:

    the words 'wounding .... or any other bodily injury' are inapposite linguistically to describe purely mental illness or injury. They both connote physical injury as opposed to mental or spiritual injury. In the case of 'bodily injury' this is reinforced by the express reference back to 'wounding' by inclusion of the words 'any other'. The French text uses the words 'blessure ou de toute autre lésion corporelle' which have the same meaning.

  42. Mr Braslavsky countered:

    It is incorrect to treat the use of the word 'corporelle' in the French text as necessarily distinguishing between injuries to the body and injuries to the mind. Nor does it follow that such was the intention of the legislators. There is no reason to interpret narrowly. It is entirely capable of being interpreted as covering any injury whatever which can properly be regarded as affecting the body. Such a construction would be capable of including psychological injury.

  43. Mr Haddon-Cave's submission was ambitious. Most who have previously considered the phrase, whether in English or in French, have recognised that it is ambiguous. 'Lésion' and 'injury' can be used, without qualifying adjective, to describe physical damage to the body. Each word can also be used, however, to describe a much wider range of prejudice. Thus the first meaning of 'lésion' given by the 1981 edition 'Petite Robert' dictionary is 'atteinte porteé aux intérêts de' and the first two meanings of 'injury' given by the 1973 edition of the Shorter Oxford English Dictionary are 'wrongful action or treatment; violation or infringement of another's rights'. There is an issue as to whether the addition of the adjective 'corporelle' / 'bodily' was designed to restrict the meaning of the noun to physical damage to the body or to restrict it less stringently to harm having an effect upon the body, comprehending both physical injury and mental illness.

  44. In support of the wider meaning of the phrase, Mr Braslavsky, following in the footsteps of prior analysts of the language, drew attention to the fact that Article 17 of the Convention is dealing with the death of or injury affecting the person of the passenger, in contrast to Article 18, which is dealing with the loss of or damage to property. He submitted that the use of the adjective 'corporelle' / 'bodily' was explicable by a wish to underline the contrast between these two types of prejudice.

  45. We accept that there is sufficient ambiguity in the phrase 'lésion corporelle' / 'bodily injury' to open the door to the meaning for which Mr Braslavsky contends, if the purposive approach, which must be brought to the interpretation of the Convention, drives one to the conclusion that this was the meaning that the parties to the Convention intended the words to bear. Nonetheless, we consider that the interpretation contended for by Mr Haddon-Cave is that which gives the words their natural meaning in their context. 'Bodily injury' bears the natural meaning of injury to the body. 'Wounding' is a specific type of injury to the body. 'Wounding .... or any other bodily injury' naturally embraces all varieties of physical injury but does not, without stretching its natural meaning, extend to mental illness. Equally, the effect of the addition of the adjective 'corporelle' to the word 'lésion', is not merely to make it plain that the type of harm described is that which affects the body. Lésion, when used in the context of harm affecting the body, bears the natural meaning of physical harm. This point is made by Dr Georgette Miller in her work 'Liability in International Air Transport' at pp.127-8:

    A much stronger argument in favour of considering that Article 17's conditions are not met when there is mental injury alone is provided by the use of the word 'lésion'. 'Lésion' is classically defined as:

    Changement morbide quelconque survenu dans les organes.

    Another authoritative, but more recent definition is:

    Changement grave dans les caractéres anatomiques et histologoques d'un organe sous l'influence d'une maladie, d'un accident.

    The two definitions emphasise the fact that an organ is affected. Their physical connotations are obvious. This is illustrated by constructing the expression 'lésion mentale'. If one accepts the literal definitions, it would be difficult to argue that 'lésion mentale' refers to mental injury because of the physical connotations of the word 'lésion'. Perhaps 'lésion mentale' could be interpreted as a poorly worded reference to an injury to the brain. Such an interpretation would avoid the antinomy between the terms since both would refer to a physical object.

    The word 'lésion' is also used as an abstract term in French law. The physical connotations of the literal meaning are then absent. An example of the utilisation of 'lésion' in an abstract or figurative sense is the 'lésion' of a right, such as the right to obtain a fair price in some contracts of sale. Another instance is the requirement that no claim for damages may be sustained if it does not relate to the 'lésion' of a legally protected interest.

    There is no ambiguity as to the sense in which 'lésion' is used in Article 17. It cannot be argued that it is used abstractly, thus allowing the requirement that the word must have physical implications to be disregarded. It appears from its context that Article 17 refers to the physical world by listing the occurrences of death, wounding, and 'toute autre lésion corporelle' as conditions for the carrier's liability under the Convention. If 'lésion corporelle' is to be consistent with the preceding words, 'lésion' must be taken in its literal sense, with its physical connotations. Consequently, an interpretation of Article 17 based purely on the literal meaning of the words would lead to the conclusion that the requirement of 'lésion corporelle' is not satisfied by mental injury alone.

  46. Dr Miller goes on to observe that the French courts would not necessarily apply the literal meaning of Article 17 but, adopting what we would describe as a purposive approach, might give the words a more liberal construction so as to include mental injury. We turn to consider whether external indications suggest that the natural meaning of the words in question should be stretched to embrace mental injury.

    Travaux préparatoires

  47. A detailed account of the travaux préparatoires is to be found in the judgments of the three members of the Inner House in King v Bristow Helicopters Ltd. The notable feature of the travaux is that there is not, from beginning to end, any mention by any of those taking part in the exercise of negotiating the terms of the Convention of the scope of the injuries which ultimately formed the subject matter of Article 17. This led the Lord President to observe at page 107 that, applying the approach to the use of travaux préparatoires laid down by the House of Lords in Fothergill:

    this Court would simply have to conclude that the travaux préparatoires could be of no assistance since it is accepted that the question of psychological injury is not discussed in them.

  48. Lord Rodger, nonetheless, went on to apply a wider approach to the use of travaux préparatoires by considering whether any inferences could validly be drawn from the fact that no mention was made of mental injuries in the travaux. He concluded at p.109 that any inferences would be based on speculation rather than fact, and would not provide a sound factual basis for inferring that the signatories' intention was to limit the scope of 'bodily injury' so as to exclude psychological injury.

  49. Lord Reed carried out a similar exercise, and concluded at p.142:

    [56]

    The travaux préparatoires do not support any theory that the signatories to the Warsaw Convention had a specific intention either to include or to exclude liability for psychiatric disorders. They do, on the other hand, confirm that arts 17, 18 and 19 should be read as a whole, concerned respectively with passengers, goods and delay.

  50. We agree that the travaux préparatoires do not afford the type of clear indication of intention that enables them to be used to resolve the ambiguity that exists in this case. At the same time we believe that the fact that no mention was made of mental injury is not without significance when one comes to consider the overall purpose and scheme of the Convention. We will return to it in that context in due course.

    Subsequent practice in the application of the Convention

  51. We have been referred to no case raising the issue whether mental injury falls within or without the scope of Article 17 prior to Daddon v Air France; Air France v Teichner (1984) 1 S&B Av R VII/141, although references indicate that this became a live issue in the United States in the 1970s.

  52. Thus there is no evidence of settled practice on the part of the signatories to the Convention indicating whether or not they considered that claims for mental illness fell within the scope of Article 17. We shall, in due course, comment on the significance of the absence of such evidence.

  53. What did occur was a series of occasions on which consideration was given to revising the terms of the Warsaw Convention. These included:

    • Periodic consideration by the Legal Committee of the International Civil Aviation Organisation, which was established in 1947.

    • A Conference at The Hague in 1955 which resulted in a Protocol revising certain provisions of the Convention. The United Kingdom gave effect to this Protocol by the Carriage by Air Act 1961.

    • An agreement concluded in Montreal in 1966 under which the signatories agreed to increase their liability limit per passenger and to waive their rights under Article 20(1) of the Convention. This agreement only applied to flights with a connecting point in the United States.

    • A Conference in Guatemala in 1971, which led to a number of countries, including the United Kingdom, signing a Protocol making certain amendments to the Convention. This Protocol has, however, not been ratified by the United Kingdom and is not yet in force.

    • A Conference in Montreal in 1999 which adopted a New Convention on air law which has not yet come into force in this country.

  54. Details of these events are set out in the judgments of Lord Rodger and Lord Reed in King v Bristow Helicopters. It suffices to state that on occasion there was inconclusive discussion on the desirability of making it clear whether or not the provisions of Article 17 extended to an accident of which the only consequence was mental injury. Article 17(1) was revised by the 1999 Montreal Convention to provide:

    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.

  55. We have been informed that the travaux préparatoires of that Convention are to include the following statement:

    With reference to Article 17 paragraph 1 of the Convention, the expression "bodily injury" is included on the basis of the fact that in some States damages for mental injuries are recoverable under certain circumstances, that jurisprudence in this area is developing and that it is not intended to interfere with this development, having regard to jurisprudence in areas other than international carriage by air.

  56. These events afford no assistance in determining whether or not the signatories of the Warsaw Convention intended, in 1929, that 'bodily injury' in Article 17 should comprehend injury that was purely mental.

    The objects and scheme of the Warsaw Convention

  57. If a purposive approach is to be given to the interpretation of the provisions of the Convention it is first necessary to identify the object which those who were party to it were attempting to achieve. The preamble to the French text of the Convention recorded:

    Ayant reconnu l'utilité de régler d'une manière uniforme les conditions, du transport aérien international en ce qui concerne les documents utilisés pour ce transport el la responsabilité du transporteur.

  58. The English text was headed:

    Convention for the Unification of certain Rules relating to International Carriage by Air.

  59. It is beyond doubt that the primary object of the Convention was to bring about a degree of uniformity in relation to the legal liability of carriers by air. It is less easy to identify how far that uniformity was intended to extend.

  60. Chapter III of the Convention deals with the 'Liability of the Carrier'. The scheme of the chapter is to identify a number of events giving rise to damage and to make uniform provisions in relation to some aspects of liability in relation to such damage. Those events are, so far as the person of the passenger is concerned, death or bodily injury caused by an accident on board the aircraft or in the course of any of the operations of boarding or disembarking (Article 17).

  61. The uniform provisions that apply to such damage have the following effect:

    1. The carrier is liable for the damage unless he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures (Article 20).

    2. The carrier's liability is limited (Article 22) unless it is proved that the damage was caused intentionally or recklessly with knowledge that damage would probably result (Article 25).

    3. The carrier's liability is extinguished if action is not brought within two years (Article 29).

  62. The terms of the Convention make it plain that some aspects of liability remain to be governed by the domestic law applicable in the individual case, namely:

    1. The effect of contributory negligence (Article 21).

    2. The persons who have the right to bring suit and their respective rights (Article 24(2)).

  63. The express terms of the Convention leave unanswered some major questions as to the degree of uniformity which is to be achieved.

  64. One such question is whether the provisions of the Convention define exclusively the events which can give rise to liability on the part of the carrier. The House of Lords has recently answered this question in the affirmative: Sidhu v British Airways. The Supreme Court of both Israel and the United States deliberately left this question unresolved in decisions to which we shall be making detailed reference in due course, but the United States Supreme Court has since reached the same conclusion as the House of Lords in Sidhu - see El Al Israel Airlines Ltd v Tsui Yuan Tseng 119 SCt 662, 26 Avi 16,141, (12th January 1999).

  65. A second question is whether Articles 17, 18 and 19 create causes of action, or, where the Convention does not have direct effect, require signatories to create causes of action.

  66. This country has given effect to the Warsaw Convention by the Carriage by Air Act 1932 and to the Warsaw Convention as amended by The Hague Protocol by the Carriage by Air Act 1961. In Swiss Bank Corporation v Brink's M.A.T. Ltd [1986] QB 853, Bingham J. observed at p.856 that one obvious purpose of the Convention:

    .... is to enable a plaintiff to recover damages even though, in the absence of the Convention and the Act, he might have no cause of action which would entitle him to succeed. His right of action is not dependent on proving negligence or any breach of contract in any ordinary sense. So the Convention confers an obvious advantage on a plaintiff.

  67. We have no difficulty with the conclusion that the Convention was intended to create a uniform set of circumstances in which a carrier by air would be obliged to pay compensation for damage sustained. That, however, raises the question of what damage. Articles 17 and 18 each stipulate that the carrier is 'liable for damage ('dommage' in French) sustained' in an event which, itself, may involve a type of damage - bodily injury in the case of Article 17; destruction of or damage to goods in the cause of Article 18.

  68. In Fothergill Lord Wilberforce at p.273 and Lord Fraser at p.286 said, obiter, that damage / dommage in Articles 17, 18 and 19 meant monetary or economic loss. Bingham J. accepted that this was correct in Swiss Bank v Brink's M.A.T. at p.857. If this is indeed correct, 'dommage' has a uniform meaning in the Convention - a meaning which would appear to preclude any award for pain, suffering and loss of amenities in relation to an injury caused in the course of carriage by air. Such a result is not fanciful. In 1929 the domestic law of a number of the signatories to the Convention restricted the damage in respect of which damages were recoverable for personal injury to pecuniary loss. Yet Mr Haddon-Cave did not advance this argument in support of a contention that the respondent had no right to recover general damages for mental injury. Nor were we referred to any authority in which it was argued, let alone held, that liability in damages under Article 17 did not extend beyond liability for economic loss.

  69. Before us both Counsel accepted as correct the recent analysis on this difficult topic of the United States Supreme Court in Zicherman v Korean Air Lines Co. (1996) 516 U.S. 217. The issue in that case was whether a claimant was entitled to recover under Article 17 damages for 'loss of society' in respect of the death of a relation in a plane crash. Justice Scalia, delivering the unanimous opinion of the Court, observed at p.603:

    It is obvious that the English word "damage" or "harm" –or in the official text of the Convention, the French word 'dommage' can be applied to an extremely wide range of phenomena, from the medical expenses incurred as a result of Kole's injuries (for which every legal system would provide tort compensation), to the mental distress of some stranger who reads about Kole's death in the paper (for which no legal system would provide tort compensation). It cannot seriously be maintained that Article 17 uses the term in this broadest sense, thus exploding tort liability beyond what any legal system in the world allows, to the farthest reaches of what could be denominated "harm". We therefore reject petitioners' initial proposal that we simply look to English dictionary definitions of "damage" and apply that term's "plain meaning."

  70. The Court then went on to conclude at pp.604-605 that there was only one realistic solution to the problem, which was:

    .... that "dommage" means (as it does in French legal usage) "legally cognizable harm", but that Article 17 leaves it to adjudicating courts to specify what harm is cognizable ....

    The most natural reading of this Article is that, in an action brought under Article 17, the law of the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for. Those questions are to be answered by the domestic law selected by the courts of the contracting states.

  71. All three members of the Inner House in King v Bristow Helicopters accepted that the analysis in Zicherman v Korean Air Lines was correct and, in the absence of any jurisprudence to support the obiter observations in Fothergill, so shall we.

  72. The meaning of 'damage / dommage' in Article 17 formed a significant element in the reasoning of the Inner House in King v Bristow Helicopters and it is now time to turn to consider that decision, and three decisions in other jurisdictions that bear directly on the issue that we have to resolve.

  73. Daddon v Air France; Air France v Teichner involved two appeals which were heard together by the Israel Supreme Court in 1984. They are reported in an English translation from the Hebrew text. Israel became party to the Warsaw Convention in 1949. Long after the two year period of prescription under Article 29 had expired, claims for damages were brought by passengers in respect of 'mental anguish' allegedly sustained as a result of being held captive by hijackers at Entebbe Airport in 1976. Air France argued that the claims arose from 'bodily injury' within the terms of Article 17 and were time barred by virtue of Article 29. The passengers argued that claims for mental anguish did not constitute claims arising from 'bodily injury', that they were not covered by the Convention and that they could consequently be brought without the restraint of the Convention's two year time limit. The Supreme Court held that 'bodily injury' under Article 17 extended to include mental injury and that the claims were time barred. In reaching this conclusion the Supreme Court considered a considerable body of American case law and academic writing on the point. The Court concluded that the legislative history was of little assistance because (VII/152):

    apparently, the parties to the convention had no intention whatsoever in this connection, either because most of the states at that time had not yet recognised mental anguish as a cause of action for the obtaining of compensation, or by reason of the fact that the parties to the Convention did not contemplate the possibility of mental anguish which was not accompanied by physical injury as a result of an air accident.

  74. The Court then observed that:

    .... the need has arisen for a renewed examination of the aims of the convention and the application thereof, while taking into account the changes which have taken place in the factual infrastructure which serves as the foundation for it since the signing of the convention. A different method of interpretation would result in the convention marking time in preserving the principles enunciated in it, without having the power to serve the needs of modern realities.

  75. The changes in the factual infrastructure that the Court identified included the rapid development of civil air transportation and a growing tendency in common law jurisdictions to recognise the validity of claims for damages in relation to 'mental anguish' unaccompanied by any physical injury. The conclusion of the Court appears in the following passage of the judgment delivered by Judge D. Levine (VII/153):

    In view of all the aforegoing, and particularly in the light of the rapid development of air transport, in all its branches, and the ever-increasing tendency which manifests itself around the world and in Israel to recognise the duty to compensate pure mental anguish, we must pose for ourselves the question- what is the desirable judicial policy we should apply in regard to a proper interpretation of the term 'bodily injury' for purposes of art 17 of the convention.

    In view of the objects of the convention as described above, and on the background of the above mentioned developments, it would be proper, in my opinion, from the point of view of the aforesaid judicial policy, to interpret art 17 of the convention in the widest possible way so that it would be possible in pursuance thereof to award compensation also for pure mental anguish.

  76. The approach of the Supreme Court to the interpretation of Article 17 has been criticised in subsequent cases, including King v Bristow Helicopters per Lord Rodger at p.100, Lord Cameron at p.122 and Lord Reed at p.144. We, like Lord Reed:

    .... agree with the comment of Stein, J.A. in the Australian case of Kotsambasis v Singapore Airlines Ltd (1997) 42 N.S.W.L.R. 110, 121:

    It seems to me however that this poses the wrong question. It is impermissible to construe the Convention in the light of the changes in civil aviation transport since 1929 and the current domestic law view of mental or psychological injury. Rather the construction should seek to ascertain the intention of the drafters and signatories as expressed by Marshall J in Floyd. What may be seen as a desirable policy goal cannot be given effect to by the courts unless it was within the intention of the signatories to the Convention. If domestic law notions are utilised by national courts as an aid to construction of the Convention, the stated purpose of achieving uniformity will be diminished.

  77. The effect of an international convention is, necessarily, that the agreement it contains will 'mark time' in accordance with its terms. Insofar as developments of individual domestic laws render it outmoded, the remedy is to amend it. Such amendment in relation to Article 17 was considered, but not pursued, when the Montreal Convention was negotiated.

  78. In Eastern Airlines Inc v Floyd (1991) 499 U.S. 530, the issue was whether damages for a condition of mental distress, unaccompanied by physical injury, induced by apprehension on the part of passengers that their plane was about to ditch in the Atlantic Ocean, were recoverable under Article 17 of the Convention. The Supreme Court resolved conflicting findings on the point on the part of a number of inferior courts by holding that they were not. In reaching this unanimous conclusion the Supreme Court was influenced by a number of considerations.

  79. First, the Supreme Court concluded, as have we, that the more natural meaning of the words lésion corporelle / bodily injury was physical injury but that the phrase was ambiguous (p.542):

    In sum, neither the Warsaw Convention itself nor any of the applicable French legal sources demonstrates that "lésion corporelle" should be translated other than as "bodily injury" – a narrow meaning excluding purely mental injuries. However, because a broader interpretation of "lésion corporelle" reaching purely mental injuries is plausible, and the term is both ambiguous and difficult, .... we turn to additional aids to construction.

  80. The Supreme Court then considered the travaux préparatoires and concluded that the absence of any reference to mental injury was indicative that the signatories had no specific intention to permit recovery for purely mental injury.

    Indeed, the unavailability of compensation for purely psychic injury in many common and civil law countries at the time of the Warsaw Conference persuades us that the signatories had no specific intent to include such a remedy in the Convention. Because such a remedy was unknown in many, if not most, jurisdictions in 1929, the drafters most likely would have felt compelled to make an unequivocal reference to purely mental injury if they had specifically intended to allow such recovery.

     (pp.544-5)

  81. The Supreme Court derived no assistance from the subsequent history of the Convention, and disapproved the approach of the Israel Supreme Court in Daddon (p.551).

  82. Thus the Supreme Court concluded that there was no reason to depart from the more natural, and narrower, meaning of lésion corporelle / bodily injury. In conclusion the Court expressed the view at p.552 that its interpretation better accorded with the Convention's stated purpose of achieving uniformity of rules, although we read this rather as a comment on the effect of the Court's conclusion than as an additional reason for it.

  83. Eastern Airlines v Floyd was followed by the Supreme Court of New South Wales in Kotsambasis v Singapore Airlines Ltd (1997) 42 N.S.W.L.R. 110, which involved an appeal against an award of general damages awarded in respect of psychological injury sustained by a passenger as a consequence of an incident in which an engine of the aircraft in which she was travelling caught fire. In the leading judgment, after referring to this decision, Meagher J.A. said at p.115:

    I am of the opinion that the term 'bodily injury' was not intended to, and on a proper construction of the Convention does not, include purely psychological injury.

  84. Finally we turn to King v Bristow Helicopters Ltd in which the relevant issue was whether the pursuer could recover damages under Article 17 in respect of post traumatic stress disorder that he suffered in consequence of a helicopter accident. The Lord President and Lord Cameron held that damages were recoverable. Lord Reed, dissenting, held that they were not. It is not easy to do justice, in summary form, to the detailed and erudite analysis of the Lord President and the supporting judgment of Lord Cameron. We believe, however, that it is possible to identify the following propositions that led the majority to conclude that 'bodily injury' embraced both physical and mental injury, rather than bearing the narrower meaning of physical injury.

    1. The natural meaning of the phrase, in its context, is the wider rather than the narrower meaning.

    2. A purposive approach to construction favours the wider rather than the narrower meaning.

    3. The narrower meaning contrasts with the heads of damage that are recoverable in a manner that is anomalous.

    4. No conclusion can be drawn from the fact that no mention was made of mental injury in the traveaux préparatoires.

    We propose to consider each of these propositions in turn.

    The natural meaning of lésion corporelle / bodily injury

  85. Lord Rodger accepted, at p.105, that the meaning which we favour had "an immediate appeal to the reader" and that it conformed with a recognised meaning of 'lésion'. But he rejected that meaning because, he said, it would make 'corporelle' superfluous. We do not accept that reasoning. Given that 'lésion' can mean bodily injury or other forms of injury such as financial harm, as Lord Rodger recognised, 'corporelle' serves to exclude any forms of injury other than that which is 'corporelle'. Lord Rodger went on to say that the adjective 'corporelle' would have served to exclude pure patrimonial, as opposed to personal injury. In our view that is a somewhat far-fetched purpose to attribute to the use of 'corporelle' in this context, which might be thought plainly to exclude patrimonial loss. Lord Rodger however thought that his approach was supported by the broad interpretation adopted in German-speaking countries and by the views of one member of the German delegation at the conference in Warsaw, Dr. Otto Riese. But the German version of the text carries little weight, given the supremacy of the French text with which the English text is consistent, and that version was acknowledged to be a 'free translation'. Further, caution must be applied to the views expressed subsequently by one delegate for the reason which Lord Rodger himself gave, that delegates at a conference may not actually all share a common view on the point in issue (p.107).

  86. The Lord President's analysis has not shaken our conclusion that the natural meaning of 'lésion corporelle / bodily injury' is physical injury.

  87. Lord Cameron's conclusion on this matter appears in the following short passage at p.119:

    Looking to the language of art, 17 alone I do not find anything in the phrase "in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger" which necessarily limits "bodily injury" to the extent of excluding psychiatric illness altogether from its ambit or indeed psychiatric illness consequent upon physical injury. While "wounding" imports the concept of external violence applied to the body, the following phrase with the use of the introductory words "any other" can denote a more extended meaning. The use of the word "bodily" insofar as it serves to govern the word "injury" is understandable in a scheme which differentiates between the carrier's liability in the carriage of persons and in the carriage of his baggage, and, in the particular, sets differing monetary limits for liability.

  88. While we accept that 'bodily injury' does not necessarily exclude purely psychiatric illness, we remain of the opinion that it does so if given its natural meaning. In this we have the support of Lord Reed at p.135.

    A purposive approach to construction

  89. Lord Rodger quoted at p.99 a statement of Lord Macmillan in Stag Line v Foscolo Mango Co. Ltd. [1932] AC 328 at 350 to the effect that international conventions have to be construed on 'broad principles of general acceptation'. This led him to conclude at p.105 that:

    On that basis I see no reason why the phrase "any other bodily injury" or "toute autre lésion corporelle" should be interpreted narrowly; rather, it should be interpreted as covering any injury whatever which can properly be regarded as affecting the body. So construed, the phrase would be capable of including psychological injury.

  90. For ourselves we do not see that it is axiomatic that the broad principle of 'general acceptation' militates in favour of a broad rather than a narrow interpretation of bodily injury.

  91. Lord Cameron, at p.124, considered it significant that it was contemplated that nations other than the original signatories would adhere to the Convention at later dates. This led him to the following conclusion:

    In that event, it seems to me that where the Convention uses general terms, it ought to be concluded that, unless the context in which the general term appears makes the matter plain beyond doubt, the terms are to be construed in accordance with the domestic law of the Court which is then seised of the passenger's action. Moreover, this would also mean that if the domestic law of a particular signatory nation were subsequently to be altered, so that purely psychic or psychological injury came to be recognized as giving rise to a cause of action, the Courts of that jurisdiction would thereafter be free to apply those changed rules to actions raised under art 17 which came before them.

  92. This seems to us a novel principle of statutory interpretation which is at odds with the objective of achieving general uniformity.

    A narrow meaning of 'bodily injury' conflicts with recoverable heads of damage

  93. This line of reasoning was based upon the conclusion of the United States Supreme Court in Zicherman that the heads of damage recoverable under Article 17 fall to be determined under domestic law. The consequence of this conclusion is that those jurisdictions which recognise pain and suffering consequent upon physical injury as a cognizable head of damages can award damages in respect of mental injury that is consequent upon physical harm. This led both the Lord President, at p.115, and Lord Cameron, at p.125, to conclude that it was anomalous if the Convention precluded recovery for mental injury that was a direct consequence of an accident. This anomaly was all the greater if the Convention permitted recovery for physical injury caused by shock rather than physical impact.

  94. We agree that it is, to a degree, anomalous to permit recovery in respect of mental injury consequent upon physical injury and to permit recovery of physical injury consequent mental injury, but not to permit recovery for mental injury which is directly caused by an accident. Nonetheless this was an anomaly that persisted in common law jurisdictions until well after 1929. Furthermore, in many jurisdictions recovery could not be made for any non-pecuniary consequences of personal injury. For these reasons we do not consider that the suggested anomalies assist in the identification of the intended meaning of body injury in 1929.

    The significance of silence

  95. We have referred to the conclusion of the Supreme Court in Floyd that those who drafted the Convention would most probably have felt compelled to make an unequivocal reference to purely mental injury if they had specifically intended to allow such recovery. In fact no mention was made of mental injury in the travaux préparatoires. Lord Rodger's reaction to this appears in the following paragraph at p.109:

    [43]

    The argument is that the expression "lésion corporelle" is ambiguous and that, since many systems at the time did not recognize recovery for pure mental injury, the draftsmen would have felt compelled to make an express reference to it if they had intended to include it. That is, of course, a possible construction to put on the historical record. Another possible construction would be to say that, if the delegates actually wished to exclude liability for pure psychological injury, those who would have been most concerned to clarify the position would have been the delegates of countries whose domestic legal systems actually recognized the possibility of awarding damages for pure psychological injury. It would have been passengers suing in their Courts who would have recovered such damages. Passengers suing in Courts of a legal system which did not award damages for pure psychological injuries would not have recovered. I do not, for a moment, assert that this is the correct way to construe the silence in the Warsaw minutes. All I am concerned to do is to point out that, since the record is silent, one can devise various hypotheses to explain that silence. But they are simply hypotheses. The argument put forward by the Supreme Court is ultimately based on speculation rather than on fact.

    CONCLUSIONS

  96. We consider that it is highly significant that no mention was made of liability for mental injury in the course of the negotiations that resulted in the Warsaw Convention. Equally significant is the fact that no claim for mental injury appears to have been made against a carrier by air until the initiation of a number of such claims in the United States in the 1970s - nearly half a century after the Convention was concluded.

  97. The signatories to the Warsaw Convention in 1929 consisted of a wide variety of civil and common law countries. They were seeking to agree to a degree of uniformity in relation to the legal liability of carriers by air. In Articles 17, 18 and 19 they set out the events which were perceived to be likely to give rise to legal liability. In this context causing mental injury unaccompanied by any physical injury was a non-event. We have seen nothing to suggest that in 1929 claims for mental injury or distress - other than in consequence of the death or physical injury of the claimant or someone related to the claimant - were encountered in any of the jurisdictions of the parties to the Convention. At our request some evidence in relation to this was provided after the hearing of the appeal, in the form of sections 9-37 to 9-42 of the International Encyclopaedia of Comparative Law (1971). This was a somewhat scanty source of evidence on a matter which we consider to be fundamental to any consideration of the intention of the signatories to the Warsaw Convention in 1929.

  98. The Encyclopaedia demonstrates that in 1929 there was a divide between jurisdictions which recognised claims for 'dommage moral' - non-pecuniary loss and those which only recognised claims for 'dommage materiel' - pecuniary loss, arising from death or personal injury. Within this area the approaches of individual jurisdictions covered a wide spectrum. Sino-Soviet jurisdictions tended to reject claims for non-pecuniary loss in respect of death or personal injury. France and Belgium had Civil Codes sufficiently general to allow compensation to be awarded for 'dommage moral' and, today, 'in each of these two Countries generous awards are made to victims of personal injuries themselves and also to members of the family both where the immediate victim has been killed and even where he has only been injured' (9-39). Common law countries in general awarded damages for 'dommage moral' to the victims of personal injury but not to relatives in the case of injury or wrongful death.

  99. This material suggests that claims for damages for causing personal injury or death, on one basis or another, would have been recognised by all the signatories to the Convention. What it does not make clear is whether in 1929, in the jurisdictions of any of the signatories, claims were made and accepted for mental injury which was not a consequence of death or physical injury. This was a question explored by the Supreme Court in Floyd, who commented at p.539:

    We find it noteworthy, moreover, that scholars who read "lésion corporelle" as encompassing psychic injury do not base their argument on explanations of this term in French cases or French treatises or even in the French Civil Code; rather, they chiefly rely on the principle of French tort law that any damage can "giv[e] rise to reparation when it is real and has been verified." 2 Planiol & Ripert, [Traité élémentaire de droit Civil], at pt 1, No 868. We do not dispute this principle of French law. However, we have been directed to no French case prior to 1929 that allowed recovery based on that principle for the type of mental injury claimed here- injury caused by fright or shock- absent an incident in which someone sustained physical injury. Since our task is to "give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties," [Air France v Saks 470 US 392] at 399, 84L Ed 2d 289, 105 S Ct 1338, we find it unlikely that those parties' apparent understanding of the term "lésion corporelle" as "bodily injury" would have been displaced by a meaning abstracted from the French law of damages. Particularly is this so when the cause of action for psychic injury that evidently was possible under French law in 1929 would not have been recognised in many other countries represented at the Warsaw Convention.

  100. The lack of evidence of claims for causing mental injury, unrelated to death or physical injury, suggests that such claims were unknown in 1929. We do not find this surprising. Only a decade or so earlier those suffering severe cases of what we would recognise as post traumatic stress disorder as a result of trench warfare were being condemned as 'lacking in moral fibre', if they were not being shot for desertion.

  101. The Lord President described as 'speculation' the conclusion that the signatories to the Warsaw Convention made no mention of mental injury because 'the drafters simply could not contemplate a psychic injury unaccompanied by physical injury' (Floyd at p.544). It seems to us to be a rational deduction that, when considering the events which might give rise to claims for damages, the drafters did not contemplate psychic injury. They were correct, at the time, not to envisage claims for psychic injury as an area of liability that required to be addressed in the Convention, for decades were to elapse before any such claim was advanced against an air carrier.

  102. These considerations lead us to the firm conclusion that when those who drafted the Warsaw Convention used the phrase 'lésion corporelle / bodily injury' they intended that phrase to have its natural meaning - physical injury. They did not intend that it would extend to a different type of harm, mental injury. The phrase had for the drafters a uniform meaning. Changes that have since occurred in the attitude of different jurisdictions to liability for causing mental injury cannot effect a change in the meaning to be accorded to the phrase in the Convention.

  103. If and when the 1999 Montreal Convention comes into force there may be scope for argument, on the basis of the travaux préparatoires evidencing the consideration that was given to mental injury, that those who drafted the Convention intended the meaning of the phrase 'bodily injury' to turn on the jurisprudence of the individual state applying that Convention. We do not consider that this course is open to those who have to interpret that phrase in the Warsaw Convention. In that Convention the phrase means 'physical injury'.

  104. It follows that the claim advanced by the respondent is not one that is open to her under the Convention and, for this reason, we would allow this appeal.


Cases

Fothergill v Monarch Airlines [1981] A.C. 251; Sidhu v British Airways [1997] A.C. 430; Air France v Saks (1985) 470 US 392; Fenton v J. Thorley & Co. [1903] A.C. 443; Harley Price v British Airways (1992) 23 Aviation Cases 18,465; Chaudhari v British Airways (Unreported – 16 April 1997), CA; Brandi Wallace v Korean Air I (2000) 27 Aviation Cases 17,864; King v Bristow Helicopters Ltd. [2001] 1 Lloyd's Rep 95; McLoughlin v O'Brian [1983] 1 A.C. 410; Frost v Chief Constable of South Yorkshire [1999] 2 A.C.455; Daddon v Air France; Air France v Teichner (1984) 1 S&B Av R VII/141; El Al Israel Airlines Ltd v Tsui Yuan Tseng 119 SCt 662, 26 Avi 16,141; Zicherman v Korean Air Lines Co. (1996) 516 U.S. 217; Eastern Airlines Inc v Floyd (1991) 499 U.S. 530; Kotsambasis v Singapore Airlines Ltd (1997) 42 N.S.W.L.R. 110; Stag Line v Foscolo Mango Co. Ltd. [1932] AC 328

Legislations

Carriage by Air Act 1961, s.1(3), Sch 1

Warsaw Convention 1929, Art 17, Art 20

Vienna Convention on the Law of Treaties, Art 31.3(b)

Authors and other references

Mullany on Tort Liability for Psychiatric Damage (1993)

Munkman on Damages for Personal Injuries and Death, 10th Ed.

'Petite Robert', 1981 Ed.

Shorter Oxford English Dictionary, 1973 Ed.

Dr Georgette Miller, 'Liability in International Air Transport'

International Encyclopaedia of Comparative Law (1971)

Representations

Charles Haddon-Cave, QC and Robert Lawson for the Appellant (instructed by Beaumont & Son)

Nicholas Braslavsky, QC and Andrew Singer for the Respondent (instructed by Kippax Beaumont Lewis)


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