King v Bristow Helicopters Ltd Re M

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD MACKAY OF CLASHFERN,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date28 Feb 2002
Neutral Citation[2002] UKHL 7
Docket NumberNo 3

[2002] UKHL 7

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Steyn

Lord Hope of Craighead

Lord Hobhouse of Wood-borough

King (Ap)
(Respondent)
and
Bristow Helicopters Limited
(Appellants)(Scotland)
In Re M (A Child By Her Litigation Friend Cm)(Fc)
(Appellant)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

The facts and issues in these two appeals are set out fully in the speeches of my noble and learned friends Lord Steyn, Lord Hope of Craighead, and Lord Hobhouse of Woodborough. Your Lordships are agreed on the outcome of these appeals: the appeal in the King case should be allowed, and the decision of the Lord Ordinary restored, and the appeal in the Morris case should be dismissed. I also agree.

2

There is a measure of disagreement between your Lordships on whether inherent in article 17 of the Warsaw Convention is an antithesis between bodily injury and mental injury, the latter being outside the scope of article 17. I can state my own view shortly.

3

The expression 'bodily injury', or 'lésion corporelle', in article 17 means, simply, injury to the passenger's body. The contrast is with absence of injury to a passenger's body. This simple meaning propounds a coherent and workable test. None of the submissions urged upon your Lordships has persuaded me that this phrase should be given a different, more limited meaning. In particular, I see no occasion for limiting article 17 to bodily injuries which are 'palpable and conspicuous', whatever those two ambiguous expressions are taken to mean in this context. The brain is part of the body. Injury to a passenger's brain is an injury to a passenger's body just as much as an injury to any other part of his body. Whether injury to a part of a person's body has occurred is, today as much as in 1929, essentially a question of medical evidence. It may be that, in the less advanced state of medical and scientific knowledge seventy years ago, psychiatric disorders would not have been related to physical impairment of the brain or nervous system. But even if that is so, this cannot be a good reason for now excluding this type of bodily injury, if proved by satisfactory evidence, from the scope of article 17.

4

This does not mean that shock, anxiety, fear, distress, grief or other emotional disturbances will as such now fall within article 17. It is all a question of medical evidence. In Weaver v Delta Airlines (1999) 56 F Supp 2d 1190 the uncontradicted medical evidence was that extreme stress could cause actual physical brain damage. The judge observed, at p 1192, that 'fright alone is not compensable, but brain injury from fright is'.

5

It really goes without saying that international uniformity of interpretation of article 17 is highly desirable. Like Lord Mackay of Clashfern, I have been much concerned that the interpretation of article 17 espoused by this House should, if possible, be consistent with the mainstream views expressed in leading overseas authorities. Most notable in this respect, given the important position of the United States in carriage by air, is the decision of the United States Supreme Court in Eastern Airlines Inc v Floyd (1991) 499 US 530. I consider the view I have expressed above is consistent with Floyd and the other leading cases. I agree with Lord Hobhouse's analysis of the authorities.

LORD MACKAY OF CLASHFERN

My Lords,

6

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. I agree with his conclusion on the disposal of these appeals and with the reasons he gives for it, subject to the following comment.

7

Because I consider it important that the Warsaw Convention should have a common construction in all the jurisdictions of the countries that have adopted the Convention, I attach crucial importance to the decisions of the United States Supreme Court in Eastern Airlines Inc v Floyd (1991) 499 US 530 and El Al Israel Airlines v Tseng, particularly as the United States is such a large participant in carriage by air. But for these decisions, I would have given more weight than does my learned friend to the argument that the word "bodily" and its French counterpart "corporelle" were directed to the distinction between injury to a passenger through loss of baggage or delay on the one hand and injury to his person on the other, rather than to the distinction between bodily injury and mental injury.

8

I wish also to say that in my opinion if an injury to the brain of a passenger is found to have occurred, and the other conditions requisite to qualify for compensation under article 17 are present, compensation under the article cannot be refused on the ground that in 1929, this fact would not have been known, with the result that at that time, medical opinion would have been that the passenger had suffered only mental injury. Like my noble and learned friend Lord Nicholls of Birkenhead I do not see merit in adding words to the description of injury which are not present in the Convention text and I would apply the simple test, does the evidence demonstrate injury to the body, including in that expression the brain, the central nervous system and all the other components of the body?

LORD STEYN

My Lords,

9

In the context of two appeals, one English and one Scottish, the question before the House concerns the phrase "bodily injury" in article 17 of the Warsaw Convention as amended at The Hague in 1955 which was incorporated into the law of the United Kingdom as Schedule 1 to the Carriage by Air Act 1961. The principal question of law in both appeals is whether a person who suffers no physical injury but who does suffer mental injury or illness (such as clinical depression) as a result of an accident on board an aircraft has a claim against the carrier under article 17 of the Convention. It is a point of construction of the relevant words in their context. It is common ground that no question of implying words into article 17 arises. The Court of Appeal (Lord Phillips of Worth Matravers MR, Peter Gibson and Latham LJJ) answered the question in the negative: Morris v KLM Royal Dutch Airlines [2002] QB 100. By a majority the First Division (the Lord President (Rodger) and Lord Cameron of Lochbroom; Lord Reed dissenting) answered it in the affirmative: King v Bristow Helicopters Ltd 2001 SLT 126. Depending on the view of the House the further question may arise in King whether an adverse physical manifestation, such as a peptic ulcer caused by mental illness may be within article 17.

I. The assumed facts:

10

In Morris v KLM the alleged facts were as follows. On 6 September 1998 the appellant was a passenger carried for reward on a KLM flight from Kuala Lumpur to Amsterdam. At the time, she was not yet 16 years of age and was travelling on her own. She was seated next to two men. After a meal, she fell asleep and woke to discover the hand of the man next to her caressing her left thigh from the hip to the knee. She got up, and told an air hostess what had happened and was moved to another seat. She was very distressed. On her return to England a doctor found that she was suffering from clinical depression amounting to a single episode of a major depressive illness. She does not allege that she suffered any physical illness. Her claim for mental injury under article 17 was upheld by a judge. The Court of Appeal held that what befell the appellant was an accident within article 17. But the Court of Appeal held that a mental injury falls outside article 17. Only the latter ruling is before the House.

11

In King v Bristow Helicopters Ltd the alleged facts were as follows. On 22 December 1993, King was a passenger on board a helicopter, owned and operated by Bristow Helicopters Ltd. The helicopter took off from a floating platform in the North Sea in poor weather. The helicopter ascended and hovered for a short period, at which point its two engines failed. It descended and landed on the helideck. Smoke engulfed the helicopter; there was panic on board; and passengers feared that the helicopter was about to crash into the sea. The door was opened and the passengers disembarked. The passenger developed post-traumatic stress disorder. As a result of the stress he suffered an onset of peptic ulcer disease. The Lord Ordinary allowed the claim to go to proof only in respect of the allegations concerning the peptic ulcer. The First Division allowed the appeal and ordered that the entire claim should go to proof.

II. The scheme of the Convention

12

It is important to understand the major objective of the Warsaw Convention. Before it came into operation passengers were free to claim under a diversity of applicable national laws in respect of damage caused by death, wounding and bodily injury; loss of or damage to property; and delay. On the other hand, carriers were free to limit their liability to passengers by exception and limitation clauses. The liability insurance premiums charged by insurers to carriers no doubt reflected the exception and limitation clauses imposed. Taking into account exception and limitation clauses, prudent passengers would have had to take out appropriate direct insurance cover. This system was unsatisfactory from the point of view of the public, who wanted to travel by air, and for the fledgling and still fragile aviation industry. The purpose of the Warsaw Convention, following the precedent of the earlier Hague Rules governing carriage by sea, was to bring some order to a fragmented system by a partial harmonisation of the applicable laws.

13

For present purposes the compromise agreed on at Warsaw involved the imposition of a form of strict liability on carriers in respect of accidents causing death, wounding or bodily injury to passengers in return for the limitations of liability...

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