Morris v KLM Royal Dutch Airlines (King v Bristow Helicopters Ltd, Hammond v Bristow Helicopters Ltd)

Under article 17 of the Warsaw Convention, an accident is an unexpected or unusual event or happening external to the passenger. It need not be connected with aircraft operation or possess a characteristic unique to air travel. An assault facilitated by the conditions of air travel may therefore constitute an accident.

However, “bodily injury” means physical injury. It does not include mental illness unaccompanied by physical injury. The Convention’s meaning remains the meaning intended by its parties when concluded; subsequent changes in domestic attitudes towards psychiatric injury cannot alter it.

A passenger aged 15 was indecently assaulted by a neighbouring passenger while asleep during an international flight. She developed a major depressive illness but suffered no physical injury. She claimed damages under article 17 of the Warsaw Convention, incorporated into English law by Schedule 1 to the Carriage by Air Act 1961.

The county court gave summary judgment for the passenger on liability, with damages to be assessed. The airline appealed. The issues were whether the assault was an “accident” and whether mental illness without physical injury was “bodily injury” within article 17.

1. The appeal was allowed unanimously. The assault was an “accident” under article 17 of the Warsaw Convention, but the respondent’s purely mental illness was not “bodily injury”. Her claim was therefore unavailable under the Convention.

2. An article 17 accident is an unexpected or unusual event or happening external to the passenger. The definition adopted in Air France v Saks was natural, sensible and sufficiently flexible. Article 17 does not additionally require a relationship with aircraft operation or carriage by air. The Convention places the passenger in the carrier’s charge and permits the carrier to rely upon the defence in article 20.

3. It was unnecessary finally to decide whether some relationship with air travel was required because that requirement was satisfied. Economy seating placed the young, unaccompanied passenger in close proximity to an unknown man while she slept. Those conditions facilitated the assault and exemplified a special risk inherent in air travel. A facilitating feature need not be unique to aviation.

4. The natural contextual meaning of “lésion corporelle” and “bodily injury” is physical injury. “Wounding or any other bodily injury” embraces varieties of physical injury but does not extend, without stretching the language, to mental illness alone. The distinction had to be applied on the agreed premise that the respondent’s illness involved no physical injury.

5. The Convention’s travaux préparatoires did not expressly resolve the ambiguity. Nevertheless, the absence of any discussion of purely mental injury, together with the apparent absence of such claims for decades, supported the conclusion that the drafters did not contemplate psychiatric injury as an event requiring regulation. A treaty intended to promote uniformity cannot acquire different meanings as domestic laws develop. Judicial policy favouring compensation cannot substitute for amendment by the contracting states.

6. The court accepted that article 17 leaves domestic law to identify legally cognisable heads of damage once the Convention’s liability conditions are met. That does not enlarge the antecedent category of “bodily injury”. The majority approach in King v Bristow Helicopters Ltd was disapproved, while the reasoning in Eastern Airlines Inc v Floyd and the dissenting opinion of Lord Reed in King were preferred.

• Court of Appeal: By [2001] EWCA Civ 790, unanimously allowed the airline’s appeal and held that mental illness without physical injury was not “bodily injury” under article 17 of the Warsaw Convention.
• Bury County Court: His Honour Judge Carter QC gave summary judgment for the passenger on liability on 1 December 2000, with damages to be assessed. That judgment was reversed.