ISSUE 54 EWJ web - Journal - Page 47
purely psychiatric injury would not be considered a
bodily injury in the absence of a physical injury. It
must therefore be considered when – or indeed, if –
psychiatric injury will be compensable.
skilled witness of a consultant psychiatrist who had
assessed the pursuer and prepared a report. The pursuer had suffered physical as well as psychiatric injuries whilst on a bus transporting her from an aircraft
to a passenger terminal building. The circumstances
had not been put to Proof, and the question was
whether or not the pursuer had acted reasonably in
instructing a psychiatric expert.
In the 2004 matter of Ehrlich vs. American Airlines 360
F.3d 366, an aircraft had overshot its runway and was
stopped by an “arrestor bed”. Passengers required to
jump six to eight feet from the doorway to evacuate
the aircraft. Two passengers brought claims for physical injuries as well as claiming to have suffered nightmares and a fear of flying resulting from the accident.
The defender argued certification ought to be refused.
Relying on King, the defender’s position was that psychiatric harm was not compensable, and thus the instruction of a psychiatrist was not reasonable. The
pursuer argued that this case was distinguishable from
King as physical harm as well as psychiatric harm had
been suffered in this case.
In Ehrlich, the Court determined that “mental injuries
that are not caused by bodily injuries are not ‘damage sustained in the event of bodily injury.’” There being no
causal link between the psychiatric and physical injuries, no award was made to the passengers in relation to the former.
Sheriff Braid noted that “it cannot be stated with any
certainty that the pursuer had no claim for psychiatric injury”
and gave some consideration to the notion that the
Montreal Convention’s wording may be “more
amenable” to claims for psychiatric harm than its predecessor, the Warsaw Convention. He noted that
there was “a colourable argument that such damages might
be recovered. The claim as pled put psychiatric injury in issue.”
The pursuer was successful.
Differing Approaches Over Time
In the 2017 case of Doe v Etihad Airways 870 F.3d 406,
a passenger was pricked on the finger by a hypodermic needle concealed in a seatback pocket on an aircraft. The needle drew blood, and she claimed in
addition for “mental distress, shock, mortification, sickness
and illness, outrage and embarrassment from natural sequela
of possible exposure to various diseases.” It was conceded
by Etihad Airways that Doe had suffered a bodily injury. They contended the psychiatric harm was “caused
not by Doe's bodily injury (the small hole in her finger) but by
the nature of the instrumentality of that injury (the needle)”
and thus that she was not entitled to compensation.
Know Your Limits
There is a strict two-year limit to bring an action
arising from Article 35 of the Montreal Convention.
The two years will begin either on (i) the date of arrival
at the destination; (ii) the date on which the aircraft
ought to have arrived; or (iii) the date on which the
carriage stopped. This period must be calculated by
the Court which is determining the action.
The Court in Doe determined that the Montreal
Convention “allows Doe to recover all her ‘damage sustained’ from the incident, which includes damages for both
physical injury and accompanying emotional or mental
harm.” The plaintiff was successful. Doe differs slightly
in approach from Ehrlich and may signify the judicial
direction of travel in this area as the idea of psychiatric
harm becomes more widely understood and accepted
by the general public.
Unlike most other rules of prescription and limitation,
this does not come complete with any relief for noncompliance, or for minors whose accidents fall in the
scope of the Montreal Convention. Accordingly, these
cases must be treated with caution and brought
timeously to avoid being timebarred.
In relation to damages, a carrier is unable to exclude
or limit liability up to 128,821 “Special Drawing
Rights” (SDR). SDR is a comparative international
currency index linked to the value of the main global
trading currencies, with one SDR being worth around
£1.04 at the time of writing.
The difference in potential damages was notable in
Casey vs. Pel-Air Aviation Pty Ltd [2017] NSWCA 32, an
Australian case which ultimately followed the Ehrlich
approach on appeal. Ms Casey sustained both posttraumatic stress disorder (PTSD), seen as psychiatric
injury caused by the incident, and a major depressive
disorder, seen as psychiatric injury caused by her significant physical injuries. The Court of Appeal of New
South Wales overturned the (first-instance) Supreme
Court’s decision to award her full compensation, limiting her compensation for her psychiatric injuries to
those relating to the depressive disorder. It is advisable, therefore, for pursuers to obtain proper advice
and medical evidence on the causation of their psychiatric injuries, which may be of particular significance.
For damages exceeding this amount, a carrier will not
be liable if they prove either: “(a) such damage was not
due to the negligence […] of the carrier or its servants or
agents; or (b) such damage was solely due to the negligence
[…] of a third party”.
Article 20 highlights that is possible for a carrier to be
exonerated in relation to all or part of their liability to
the extent to which they prove the injured passenger
caused or contributed to their own demise. This applies both when the passenger is claiming compensation, or if a person other than the passenger is making
a claim in relation to the injury or death of the passenger. This operates in much the same manner as
contributory negligence in Scotland and the UK.
Be Reasonable
More locally, the matter of psychiatric harm was
considered in a recent expenses decision in Delaney v
Jet2.com Ltd 2019 Rep. L.R. 56. Here a pursuer had
accepted a Tender and was seeking certification as a
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