Philip King V. Bristow Helicopters Limited
| Jurisdiction | Scotland |
| Judge | Lord President |
| Date | 12 July 2000 |
| Docket Number | 01489/5 |
| Court | Court of Session |
| Published date | 12 July 2000 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
| Lord President Lord Cameron of Lochbroom Lord Reed
| 01489/5/1995 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION FOR PURSUER in the cause PHILIP KING Pursuer and Reclaimer; against BRISTOW HELICOPTERS LIMITED Defenders and Respondents: _______ |
Act.: Moynihan, Q.C., Haldane; Balfour & Manson (Burnside, Kemp & Fraser, Aberdeen)
Alt.: Campbell, Q.C., Gilmore; Shepherd & Wedderburn, W.S.
12 July 2000
[1]The pursuer and reclaimer is Mr. Philip King. He sues for damages as reparation for "loss, injury and damage" which he claims to have suffered as the result of his involvement in an incident on 22 December 1993. At the relevant time the pursuer was a passenger on board a helicopter chartered by the defenders. According to his averments, the helicopter took off from the helideck of the Gryphon A floating production platform in the Beryl Oilfield in the North Sea. The helicopter rose to a height of about 35 feet and hovered for a short period. Suddenly its two engines flamed out and there was a loud bang. The helicopter descended rapidly and landed heavily on the helideck, whereupon it was engulfed in smoke which prevented the pursuer and other passengers from seeing out. As a result they did not know whether the helicopter had landed safely or whether it was on the edge of the helideck and liable to crash into the sea. There was an atmosphere of panic, with the passengers shouting. The pursuer was extremely frightened.
[2]The pursuer avers that, as a result of the accident, he suffered loss, injury and damage. The Lord Ordinary heard debate in the pursuer's case and in two other actions in a single hearing on the procedure roll. By his interlocutors of 13 November 1998 the Lord Ordinary dismissed the other actions and in this action he excluded certain of the pursuers' averments of loss, injury and damage from probation. His Lordship's opinion is reported as Hammond v. Bristow Helicopters Ltd. 1999 S.L.T. 919. No reclaiming motion was marked in the other actions. In his reclaiming motion, however, the pursuer asks the court to recall the Lord Ordinary's interlocutor and to allow a proof before answer in respect of all his averments. In a cross- reclaiming motion the defenders ask the court to recall the Lord Ordinary's interlocutor and to dismiss the action. I set out the pursuer's averments in Article 4 of Condescendence, those which the Lord Ordinary excluded from probation being in italic script:
"As a result of the accident the pursuer has suffered loss, injury and damage. He developed moderate post-traumatic stress disorder. He suffered from insomnia. He suffered from recurrent nightmares involving helicopter crashes. During such nightmares, the pursuer would sleepwalk and damage his surroundings. He suffered from flashbacks involving the accident. He ruminated constantly about the accident. He became irritable and depressed. He suffered from anxiety. He developed a phobia of flying. He found extreme difficulty returning to work offshore following the accident because of his fear of flying. He suffered anxiety whenever he thought about the prospect of travelling to and from the platform in a helicopter. He suffered from anxiety during helicopter flights to and from the platform. The stress which the pursuer suffered in the said accident caused or materially contributed to the onset of peptic ulcer disease which, in turn, caused the pursuer severe dyspeptic pain in and after August 1994. He managed to continue working offshore until in or about April 1995 when he was required to undertake a helicopter survival test. The said test involved a helicopter crash simulation in water. He panicked during the said simulation. He has been unable to resume work since that time because of his fear of flying. He is unemployed. He continues to suffer post-traumatic stress disorder. He continues to suffer from nightmares. He continues to suffer from a phobia of flying. He continues to suffer from anxiety. He continues to be irritable. He continues to suffer from insomnia. He suffered and continues to suffer an exacerbation of pre-existing dyspeptic symptoms. As a result of the accident the pursuer has lost and continues to lose earnings. Whilst employed off-shore he earned about £475 net per week as a steward. He has lost and continues to lose payments in respect of a retainer. He has lost and continues to lose standby payments. In the circumstances the sum sued for is a reasonable estimate of the pursuer's said loss, injury and damage."
[3]During the hearing before this court senior counsel for the pursuer, Mr. Moynihan, Q.C., explained that the averments should be construed on the basis that all the complaints, with the exception of the peptic ulcer disease, were to be regarded as symptoms of the pursuer's post-traumatic stress disorder (PTSD). In addition he explained that the averments reflected the position as known to the pursuer's advisers at the time when the record was closed. Since the hearing before the Lord Ordinary, however, a further medical report had confirmed that the pursuer continued to suffer from PTSD and was also suffering from chronic depression. Moreover, the same report indicated that the pursuer's fear of flying was such that it could be properly regarded as a psychiatric disorder. In the result the pursuer's averments should be interpreted as disclosing that he was suffering from three psychiatric conditions: PTSD, chronic depression and phobic anxiety about flying. His peptic ulcer disease was caused, or materially contributed to, by his psychiatric conditions but counsel was not in a position to say whether it should properly be attributed to one particular condition. In view of the fact that the Lord Ordinary had some difficulty in ascertaining the attitude of the pursuer's then senior counsel to this matter (1999 S.L.T. at p. 926 C - F), I should add that Mr. Moynihan stressed that the pursuer was not offering to prove that his psychiatric conditions were caused by any physiological changes. He did not therefore seek to bring the pursuer's case within the scope of the ratio of Weaver v. Delta Airlines 56 F. Supp. 2d 1190 (1999) where the carrier was held liable to a plaintiff whose PTSD was due to physical changes in her brain brought on during the extreme distress of an emergency landing. Indeed, as will become evident, on the pursuer's approach, the reasoning in that case was unnecessarily narrow and basically misconceived. On behalf of the defenders Mr. Campbell, Q.C., indicated that he was happy to deal with the matter on the footing of the pleadings as explained by Mr. Moynihan without the need for any amendment.
[4]In the extensive case law and literature on the topic, a variety of expressions is used to describe the psychological injury which someone may suffer as the result of a wrong - for instance, "shock", "mental distress", "mental injury", "psychic injury", "psychological injury" and "psychiatric injury". Merely for the sake of consistency, and without implying anything special about the nature of such injuries, in this opinion I propose, as a rule, to adopt the term "psychological injury".
The Relevant Legislation
[5]The pursuer's claim for damages, as focused in his first plea-in-law, is based on Article 17 of the Convention concerning international carriage by air known as "the Warsaw Convention as amended at the Hague, 1955". The Warsaw Convention was concluded in French on 12 October 1929. The necessary arrangements to give its provisions the force of law in the United Kingdom were introduced by the Carriage by Air Act 1932 ("the 1932 Act") and the United Kingdom thereafter ratified the Convention (in French) on 14 February 1933. The 1932 Act achieved its purpose by giving the force of law to a translation into English of the French text of the Convention set out in the First Schedule. The translation was apparently done by the British Government, while in the United States a different translation was adopted, but the actual translation of Article 17 is in all material respects the same in both versions. Although the Convention concerned international carriage, Section 4 of the 1932 Act gave His Majesty power by Order in Council to apply the provisions of the First Schedule to non-international carriage, subject to such exceptions, adaptations and modifications, if any, as might be specified. His Majesty eventually applied the provisions of the First Schedule in a modified form to non-international carriage by The Carriage by Air (Non-international Carriage)(United Kingdom) Order 1952 (S.I. 1952 No. 158). Since, of course, the First Schedule contained only the English text, it was the English text in a modified form which was applied to non-international carriage.
[6]The Warsaw Convention was amended by a subsequent Protocol concluded at The Hague in 1955 and, in order to give effect to the provisions of the Warsaw Convention as now amended, Parliament passed the Carriage by Air Act 1961 ("the 1961 Act"). Again, the same technique was adopted and the provisions to be made part of our law were set out in the First Schedule to the Act. On this occasion, however, Parliament set out both the English translation and the French text of the Convention and provided by Section 1(2) that, if there was any inconsistency between the text in English and the text in French set out in the Schedule, the text in French was to prevail. Again steps were taken under Section 10 of the Act to apply the provisions of the Convention, in an amended form, to non-international carriage. Her Majesty did this by the Carriage by Air (Application of Provisions) Order 1967 ( S.I. 1967 No. 480), which applied to all carriage by air, "not being carriage to which the amended Convention" applied (Article 3). Article 4(a) went on to provide that Schedule 1 to the Order was to have effect in respect to carriage to which the Order applied,...
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