"On the one hand the carrier surrenders his freedom to exclude or to limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 - which is the issue in the present case - seems to be entirely contrary to the system which these two articles were designed to create. . . . In my opinion the answer to it is to be found not by an exact analysis of the particular words used but by a consideration of the whole purpose of the article. In its context the purpose seems to me to be to prescribe the circumstances - that is to say, the only circumstances - in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air."
" * warning of possible in-flight turbulence; * a missing approach due to weather, or obstruction on the runway; * near miss with other aircraft en route , on approach, or on departure; * lightning strike on aircraft or thunderstorm activity in vicinity of aircraft; * 'accidental' emergency landing announcement; * decompression of aircraft; * hijacking of aircraft; * bomb threat; * emergency landing; * gear malfunction resulting in passengers being warned to prepare for gear collapse on landing; * engine malfunction; * aborted take-off due to engine failure, tyre failure, conflicting traffic; * encountering in-flight turbulence; * diversion to alternative airport due to weather, traffic congestion, fuel shortage; * delayed gate departure due to announced mechanical problem with aircraft or engine; * return to gate due to announced mechanical problem with aircraft or engine; * unruly passenger behaviour in-flight and crew handling of situation"
"We conclude that an air carrier cannot be held liable under article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury. Although article 17 renders air carriers liable for 'damage sustained in the event of' ('domage survenu en cas de') such injuries, . . . we express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries. That issue is not presented here because respondents do not allege physical injury or physical manifestation of injury."
". . . as we read article 17, the compensable injuries must be 'bodily' but there may be an intermediate causal link which is 'mental' between the cause - the 'accident' - and the effect - the 'bodily injury'. And once that predicate of - liability - the 'bodily injury' - is established, then the damages sustained as a result of the 'bodily injury' are compensable including mental suffering"
"Weaver's action here is distinguishable from previous cases, because her claim is presented as a physical injury and she relies on recent scientific research explaining that post-traumatic stress disorder evidences actual trauma to brain cell structures. Weaver's post-traumatic stress disorder evidences an injury to her brain, and the only reasonable conclusion is that it is, in fact, a bodily injury. More particularly, the injury to her brain should be considered a 'bodily injury' as defined under the Warsaw Convention. Granted, Weaver's injury manifests itself in ways that are similar to the 'injuries' previously found not compensatable in similar cases under the Warsaw Convention. However, the central factor here is not legal, but medical. The legal question in this case is simply whether the Warsaw Convention allows recovery for this particular kind of bodily injury, ie a brain injury (even with slight physical effects). The answer must be yes. The court is cognizant that the Warsaw Convention chose to preclude recovery for purely psychic injuries, and the court respects the Supreme Court's determination in Floyd that such was a legislative choice. Moreover, the present holding has the potential of allowing for more valid actions under the Warsaw Convention, with the increase attributable only to the increased sophistication of medical science. However, no floodgates of litigation will be opened by allowing for claims such as Weaver's, which are based on a definite diagnosis of a disorder that arises from a physical injury that is medically verifiable. Fright alone is not compensatable, but brain injury from fright is. Unlike the plaintiffs in Floyd and its progeny, Weaver's injury is a 'bodily injury' as defined by the Warsaw Convention."
"If and when the 1999 Montreal Convention comes into force there may be scope for argument, on the basis of the travaux préparatoires evidencing the consideration that was given to mental injury, that those who drafted the Convention intended the meaning of the phrase 'bodily injury' to turn on the jurisprudence of the individual state applying that Convention. We do not consider that this course is open to those who have to interpret that phrase in the Warsaw Convention. In that Convention the phrase means 'physical injury'"
"Montreal Convention Mr Dismore: To ask the Secretary of State for the Environment, Transport and the Regions what representations he has made in relation to the Montreal Convention to ensure UK passengers will be able to claim compensation for psychiatric injury caused by air accidents; and if he will make a statement. [128317]. Mr Hill: Damages for mental injury caused by air accidents are already recoverable in the UK when associated with physical injury. In preparation for the Diplomatic Conference held in Montreal in May 1999, at which the Convention was signed, the UK supported a proposal by Sweden for a separate head of claim for mental injury. Prior to the Conference, however, that proposal was withdrawn from the draft text of the Convention. Our position was that a separate claim for mental injury could be advocated only if there was sufficient support to gain global agreement. There was not sufficient support so, in the interest of securing the best deal for the UK, it was decided to support the text of the Convention without a separate reference to mental injury. The Conference 'travaux préparatoires', nevertheless, indicate that damages for mental injury can be recovered in certain states and that jurisprudence in this area is developing."
"Injuries of this type may take two forms. First, physical illness or injury not brought about by a chain of demonstrable physical events but by mental or emotional stresses, ie by a psychiatric route. Examples are a heart attack or a miscarriage produced by shock. In this case, the end product is a physical condition although it has been brought about by a process which is not demonstrably a physical one but lies in the mental or nervous system. The second form is psychiatric illness itself which is brought about by mental or emotional stresses, ie by a psychiatric route. Because medical science has so far been less successful in demonstrating the nature of psychiatric illness and the processes whereby it is brought about by the psychiatric route, the courts have been more reluctant to accept the risk of such illness as being foreseeable. But since the decision of this House in McLoughlin v O'Brian[1983] 1 AC 410 it has been established that, in certain circumstances, a defendant can be liable for illness or injury, whether psychiatric or physical, produced in a plaintiff by purely psychiatric processes, without any direct physical impact on, or injury to, the limbs or organs of the plaintiff."
"These are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word 'harm' is a synonym for injury. The word 'actual' indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."
"The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties."
"Accordingly the phrase 'actual bodily harm' is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition."
"The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the 1861 Act, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant inquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the 'always speaking' type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury."
"Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle subie par un voyageur lorsque l'accident qui a causé le dommage s'est produit à bord de l'aéronef ou au cours de toutes opérations d'embarquement et de débarquement."
"Le transporteur est responsable des pertes, avaries et retards qui résultent de ses fautes personelles et du vice propre de l'appareil."
"Le transporteur est responsable du dommage pendant le transport: a) en cas de mort, de blessures ou de toute autre lésion corporelle subie par un voyaguer; b) en cas de destruction, perte ou avarie de marchandises ou de bagages; c) en cas de retard subi par un voyageur, des marchandises ou des bagages."
"As our colleagues certainly recall, these are perhaps the most important articles of the Convention."
"With reference to article 17, paragraph 1 of the Convention, the expression 'bodily injury' is included on the basis of the fact that in some states damages for mental injuries are recoverable under certain circumstances, that jurisprudence in this area is developing and that it is not intended to interfere with this development, having regard to jurisprudence in areas other than international carriage by air."
"Rather, in seeking to apply the treaty's terms to the facts before us, we ask whether the treaty's use of the word 'bodily', in its ordinary meaning, can fairly be said to include 'mental'. We deal with the term as used in an international agreement written almost 50 years ago, a term which even today would have little significance in the treaty as an adjective modifying 'injury' except to import a distinction from 'mental'. In our view , therefore, the ordinary, natural meaning of 'bodily injury' as used in article 17 connotes palpable , conspicuous physical injury, and excludes mental injury with no observable 'bodily', as distinguished from 'behavioural', manifestations."
"In our view, this connection can be established whether the bodily injury was caused by physical impact, by the physical circumstances of the confinement or by psychic trauma. If the accident - the hijacking- caused severe fright, which in turn manifested itself in some objective 'bodily injury', then we would conclude that the Convention's requirement of the causal connection is satisfied."
"Even if we were to agree that allowing recovery for purely psychic injury is desirable as a policy goal, we cannot give effect to such policy without convincing evidence that the signatories' intent with respect to article 17 would allow such recovery. As discussed, neither the language, negotiating history, nor postenactment interpretations of article 17 clearly evidences such intent… Moreover, we believe our construction of article 17 better accords with the Warsaw Convention's stated purpose of achieving uniformity of rules governing claims arising from international air transportation… We have no doubt that subjecting international air carriers to strict liability for purely mental distress would be controversial for most signatory countries. Our construction avoids this potential source of divergence."
"We conclude that an air carrier cannot be held liable under article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury. Although article 17 renders air carriers liable for "damage sustained in the event of" ("dommage survenu en cas de") such injuries, we express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries. That issue is not presented here because respondents do not allege physical injury or physical manifestation of injury."
"'Impact injuries' refer to the bodily injuries (such as bruises, lacerations and broken bones) that passengers suffer during an airplane accident (here, the aborted take-off and evacuation of the plane). 'Physical manifestations' refer to those bodily injuries or illnesses (such as skin rashes and heart attacks) that result from the distress one experiences during or after an accident. 'Emotional distress' refers to the psychic trauma that one experiences either during or after the accident."
"Weaver's action here is distinguishable from previous cases, because her claim is presented as a physical injury and she relies on recent scientific research explaining that post-traumatic stress disorder evidences actual trauma to brain cell structures. Weaver's post-traumatic stress disorder evidences an injury to her brain, and the only reasonable conclusion is that it is, in fact, a bodily injury… The legal question in this case is simply whether the Warsaw Convention allows recovery for this particular kind of bodily injury, ie, a brain injury (even with slight physical effects). The answer must be yes."
"The Terrafranca and Jack decisions reflect our nascent understanding of the nature of mental illness. It is not clear that those courts were presented with the scientific literature to underpin a finding that PTSD is a biological as well as an emotional and psychological illness... Furthermore, the evidence presented at the trial, both in the form of expert testimony and exhibits, established that PTSD is a biological/physical as well as a psychological injury."
"It is immediately apparent that the adjective 'bodily' is a word of qualification or limitation. It is a general principle of statutory interpretation, equally applicable to the interpretation of international agreements, that courts are not at liberty to consider any word as superfluous or insignificant - Commonwealth v Baume(1905) 2 CLR 405 , 414 - and, more specifically, that effect is to be given to words of limitation: Randwick Municipal Council v Rutledge(1959) 102 CLR 54 , 94. It is clear that the draftsmen of the Convention did not intend to impose absolute liability in respect of all forms of injury."
"if there is any inconsistency between the text in English ... and the text in French ..., the text in French shall prevail."
"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
"A faithful reading of the terms of the Convention leads, we believe, to the following conclusions. A claim for damages under article 17 arises 'in the event of ... bodily injury'. The claim must therefore be predicated upon some objective identifiable injury to the body. In addition, there must be some causal connection between the bodily injury and the 'accident'. In our view, this connection can be established whether the bodily injury was caused by physical impact, by the physical circumstances of the confinement or by psychic trauma. If the accident - the hijacking - caused severe fright, which in turn manifested itself in some objective 'bodily injury', then we would conclude that the Convention's requirement of the causal connection is satisfied. For example, if plaintiff Herman's skin rash was caused or aggravated by the fright she experienced on board the aircraft, then she should be compensated for the rash and the damages flowing from the rash. It follows that, if proved at trial, she should be compensated for her mental anguish, suffered as a result of the rash, since this anguish would have flowed from the 'bodily injury'." " … only the damages flowing from the 'bodily injury', whatever the causal link, are compensable. We are drawn to these conclusions by the clear import of article 17. Those terms, in their ordinary meaning, will not support plaintiffs' claim that psychic trauma alone, or even the psychic trauma which caused the bodily injury, is compensable under the Warsaw Convention."
"We consider that it is highly significant that no mention was made of liability for mental injury [ sic ] in the course of the negotiations that resulted in the Warsaw Convention."
"35 This appeal has proceeded on the premise that there is a distinction between physical injury and mental injury; that physical injury involves damage or adverse change to the structure of the body, whereas mental illness adversely affects the well-being of the mind without organic change to the body. 36 This was undoubtedly the general belief in the 1920s, when the terms of the Warsaw Convention were negotiated. ......."
"Therefore, plaintiffs may recover in this action for any such emotional anxiety that they can demonstrate resulted from a bodily injury suffered as a consequence of the hijacking."
"It does not follow from the fact that the treaty is written in French that in interpreting it we are forever chained to French law, either as it existed when the treaty was written or in its present state of development."
"Nor do we see any useful purpose to be served by [an investigation of French law] to search out the intent of the drafters of Warsaw."
"Rather, in seeking to apply the treaty's terms to the facts before us, we ask whether the treaty's use of the word 'bodily', in its ordinary meaning, can fairly be said to include 'mental'. We deal with the term as used in an international agreement written almost 50 years ago, a term which even today would have little significance in the treaty as an adjective modifying 'injury' except to import a distinction from 'mental'. In our view, therefore, the ordinary, natural meaning of 'bodily injury' as used in article 17 connotes palpable, conspicuous, physical injury and excludes mental injury with no observable bodily, as distinguished from 'behavioral', manifestations."
"I am of the opinion that the term "bodily injury" was not intended to, and on a proper interpretation of the Convention does not, include purely psychological injury. I note that the decision in Eastern Airlines Inc v Floyd specifically left open the possibility that recovery might be available where psychological injury was accompanied by physical injury."