King (AP) v Bristow Helicopters Ltd and In Re M (A Child By Her Litigation Friend CM) (FM)

Under article 17 of the Warsaw Convention, a carrier is not liable for fright, distress or psychiatric illness alone. The passenger must prove death, wounding or an injury to the body caused by a qualifying accident.

A bodily injury may be produced through a psychiatric causal route. A peptic ulcer, stroke or other actual physical disorder caused by accident-induced mental illness may therefore satisfy article 17. An actual injury to the brain is also an injury to the body if established by satisfactory medical evidence. A psychiatric diagnosis or evidence of emotional disturbance does not by itself meet that requirement.

The Convention supplies an autonomous and exclusive international code. Its language must be interpreted uniformly rather than through domestic rules governing psychiatric injury.

The conjoined Scottish and English appeals concerned the meaning of “bodily injury” in article 17 of the Warsaw Convention as incorporated by the Carriage by Air Act 1961.

In King v Bristow Helicopters Ltd, a helicopter passenger developed post-traumatic stress disorder after an emergency landing and alleged that the disorder caused peptic ulcer disease. The Lord Ordinary excluded the psychiatric claim but allowed the ulcer allegations to proceed to proof. The First Division, by a majority, allowed the entire claim to proceed: 2001 SLT 126.

In Morris v KLM Royal Dutch Airlines, an unaccompanied minor developed clinical depression after an indecent assault during a flight. The county court found for her on liability, but the Court of Appeal held that mental injury without physical injury fell outside article 17: [2002] QB 100.

The common issue was whether mental injury alone, or a physical disorder caused through mental injury, constituted “bodily injury”.

1. Disposition. The House unanimously allowed Bristow Helicopters Ltd’s appeal in King v Bristow Helicopters Ltd and restored the Lord Ordinary’s interlocutor. It unanimously dismissed Miss Morris’s appeal in Morris v KLM Royal Dutch Airlines.

2. Article 17. Lord Hope delivered the principal majority reasoning. Lord Mackay agreed with his reasons, subject to an additional observation, and Lord Steyn also agreed with his conclusion and reasoning. Article 17 requires a qualifying accident, death, wounding or bodily injury, and a causal connection between them. “Bodily” limits the provision to injury to the passenger’s body. Fright, anxiety, distress and mental illness alone do not qualify. A recognised psychiatric diagnosis does not dispense with proof of bodily injury.

3. Physical manifestations. Per Lord Steyn and Lord Hope, the accident may cause mental illness which in turn causes a physical disorder. The psychiatric link does not interrupt causation. A peptic ulcer affecting bodily tissues may therefore be a bodily injury, and Mr King was entitled to prove that the accident caused his ulcer through his psychiatric condition. Once bodily injury is established, compensation may include mental suffering flowing from that injury, consistently with Rosman v Trans World Airlines Inc (1974) 34 NY 2d 385.

4. Injury to the brain. Lords Nicholls, Mackay, Hope and Hobhouse accepted that the brain and central nervous system are parts of the body. An actual injury to them may satisfy article 17 if proved by satisfactory medical evidence. Compensation cannot be refused merely because medical science could not have demonstrated the injury in 1929. Neither claimant, however, offered to prove such an injury.

5. Overseas authority and uniformity. The majority followed Eastern Airlines Inc v Floyd (1991) 499 US 530 in excluding purely mental injury, and rejected the broader approach in Daddon v Air France (1984) 1 S & B Av R VII/141. Lord Steyn and Lord Hope considered, obiter, that the evidential approach in Weaver v Delta Airlines Inc (1999) 56 F Supp 2d 1190 was insufficient and should not be followed. Lords Nicholls and Hobhouse expressed the contrary view that proven physical brain damage of the kind addressed in Weaver could constitute bodily injury.

6. Application to Miss Morris. Her case had been expressly presented on the basis that she suffered clinical depression without physical injury. Her claim therefore fell outside article 17, and it was inappropriate to permit the case to be reopened on a different evidential basis.

• House of Lords: In King v Bristow Helicopters Ltd, allowed the carrier’s appeal and restored the Lord Ordinary’s interlocutor. In Morris v KLM Royal Dutch Airlines, dismissed the passenger’s appeal and left the Court of Appeal’s order standing.
• First Division of the Court of Session: By a majority, allowed Mr King’s reclaiming motion, refused Bristow’s cross-reclaiming motion and allowed proof before answer of the whole claim: 2001 SLT 126.
• Outer House of the Court of Session: The Lord Ordinary excluded Mr King’s psychiatric averments from probation but allowed proof before answer concerning the alleged peptic ulcer disease. The decision was reported with related proceedings as Hammond v Bristow Helicopters Ltd 1999 SLT 919.
• Court of Appeal: Allowed KLM’s appeal from the county court. It held that the incident was an accident but that mental injury without physical injury fell outside article 17: [2002] QB 100.
• Bury County Court: Judge Carter QC determined liability as a preliminary issue and gave judgment for Miss Morris, with damages to be assessed.