Part of the package
Only some of the passengers on the Qantas flight forced to make an emergency landing in Manila could seek compensation for psychological shock, says David Grant
According to press reports, the passengers on Qantas flight QF 30 on 25 July were remarkably phlegmatic when a hole was blown in the side of the plane carrying them from Hong Kong to Australia necessitating an emergency landing in Manila.
Amateur video from the plane shows that there was no panic or screaming of the kind we have come to expect from disaster movies. But nevertheless it must have been a terrifying experience '“ of the kind that is likely to result in psychological harm to some of the passengers.
One might reasonably expect therefore that this could give rise to a claim against Qantas. But these expectations are almost certain to be dashed. The reason for this is that the liability of air carriers for injuries arising from international air carriage is covered by the Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air 1999) which places severe limitations on the ability of claimants to recover for psychological harm.
The basis of any action (effectively a strict liability action) against the carrier would be Art.17.1 of the Convention which provides that: 'The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.'
The key words are 'bodily injury'. These are the same words that were used in Art.17 of the Warsaw Convention 1929, the precursor to the Montreal Convention. These words have been the subject of litigation at the highest level both here in the UK (Morris v KLM and King v Bristow Helicopters Ltd [2002] UKHL 7, which were heard together) and also in other jurisdictions (see Eastern Airlines Inc v Floyd [1991] 499 US 530). There is no reason to believe that these cases would be decided differently under the Montreal Convention.
The essence of these decisions is that a distinction can be drawn between bodily injury and mental injury and that on a proper construction the Convention covers the former but not the latter. The basis of this interpretation is that in 1929, when the Warsaw Convention was drafted, mental injury was not a recognisable head of damage. Although mental injury is now a well-recognised head of damage the Montreal Convention adopted the same terminology as the Warsaw Convention, making no provision for mental injury.
A further bar to compensation is that the Montreal regime is exclusive. If a claimant cannot bring a claim under the Convention then no claim at all can be brought against the carrier under domestic law for breach of contract or tort. This was decided in Sidhu v British Airways Plc [1997] AC 430, a case arising out of the 1991 Gulf War when a BA aircraft landed in Kuwait after the invasion by Iraq had begun. The House of Lords held that there was no right of action under the Warsaw Convention and that as this created an exclusive right of action then the claimants could not bring an action in negligence against BA outside the Warsaw regime. Article 24 of the Convention stated: (1) In the cases covered by Arts.18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.
The corresponding provision in the Montreal Convention is Art.29: 'In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention.'
One minor exception to the rule can be found in the King case. As a consequence of the mental injury the claimant suffered, brought on by fear and panic when the helicopter in which he was being carried crashed onto the helideck of an oil platform, he also suffered a peptic ulcer. The House of Lords permitted him to recover for this physical injury. This would apply to any physical injuries the passengers on QF 30 suffered if they were triggered by their mental injuries. Of course if they suffered physical injury more directly, perhaps by being thrown around the aircraft or from the sudden de-pressurisation, there would be no problem claiming for those.
Perhaps a more fruitful source of compensation would be for those passengers who might have been on the aircraft as part of a package holiday. These passengers would be governed by a different regime '“ the Package Travel Regulations 1992 (SI 1992 No.3288). One case at least, Akehurst v Thomson Holidays Ltd (Cardiff County Court, May 2003, unreported; but see [2004] ITLJ 7) holds out the possibility that passengers could sue their tour operator, as opposed to the carrier, on the basis of their package holiday contract. The claimants, who were survivors of the Gerona air crash in 1999, succeeded in their action for mental injury against their tour operator on the basis of the terms of their contract with the tour operator which did not preclude claims for mental injury.