Montreal Convention: Settlement of action leaves law uncertain on recoverability of damages for psychiatric injury

Caroline Delaney was awarded £9,200 after airline Jet2.com accepted that, under the Montreal Convention 1999, it was strictly liable for the “bodily injuries” she sustained as a result of the collision, but the extra-judicial settlement of the action means that the question of whether damages can be recovered for psychiatric injury remains unanswered.

Sheriff Peter Braid made the observation as he granted a motion by the pursuer, which was opposed by the defenders, seeking certification of a consultant psychiatrist who was instructed by her solicitors to provide a report.

‘Bodily injury’

The All-Scotland Sheriff Personal Injury Court in Edinburgh heard that the pursuer’s case arose from an accident that occurred in December 2017, when she landed at Tenerife South Airport on one of the defender’s flights from Glasgow.

En route from the aircraft to the airport terminal building, a bus transporting passengers collided with a truck carrying concrete pillars, as a result of which the pursuer suffered some physical injuries.

The parties agreed that the accident fell within the scope of article 17 of the Montreal Convention 1999, which provides that the carrier is strictly liable for damages sustained “in the case of death or bodily injury of a passenger upon condition only that he 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”.

Liability to compensate the pursuer was admitted, and the action was settled, by virtue of a tender and acceptance, in the sum of £9,200.

However, the pursuer had also claimed to have suffered psychiatric injury, and her solicitors instructed consultant psychiatrist Dr Martin Livingston to provide a report on her condition, but the defender argued that it was not reasonable for the pursuer’s solicitors to have instructed him when they did.

‘Arguable case’

When the pursuer’s lawyer was instructed he had the pursuer’s GP records, which referred to her having sustained physical injury and some psychiatric injury, and he also had a report from a consultant orthopaedic surgeon, which recommended that a report be undertaken by a psychiatrist.

While the House of Lords held, in the case if King v Bristol Helicopters Ltd 2002 SC (HL) 59 that a claim could not be made under article 17 of the Warsaw Convention 1929 - the precursor to the Montreal Convention - where a pursuer had suffered pure psychiatric loss and no physical injury, the present case was distinguishable because the pursuer had suffered both.

The pursuer’s lawyer also referred to the 2004 U.S. case of Ehrlich v American Airlines, where the Second Circuit Court of Appeals held that, in cases within the scope of article 17, psychiatric injury was only recoverable where it was causally linked not to the accident itself but to the physical injury sustained in the accident.

In another, more recent American case in 2017, Doe v Etihad, the court held that a plaintiff who sustained a needle stick injury on a flight was entitled to recover damages for her mental anguish, on the basis of the term “on condition only”, which appeared in the Montreal but not the Warsaw Convention.

Accordingly, based on the authorities it was submitted that there was an “arguable case” that psychiatric injury was recoverable under the Montreal Convention and since no such case could have pled without evidence of such injury, it was reasonable to instruct a psychiatric report.

It was also argued that, based on the sum tendered, and the pursuer’s quantification of the various aspects of her claim, that it was reasonable to infer that some element of the sum tendered included a sum for psychiatric injury.

‘Authorities favoured the defender’ 

While the defender accepted that there was an argument that the claim for psychiatric injury was not excluded by the Montreal Convention, it was submitted that it was not an argument which could ever have succeeded in the PI court. 

The decision in the case of Doe was not binding, even in America, as it was not a United States Supreme Court decision - it was an “anomaly” which “flew in the face of established authority”.

It was argued that the definition of bodily injury, which was used in both the Montreal and Warsaw Conventions, could not include psychiatric injury.

The case of King - albeit the facts of which were not on all fours with the present case - in which Lord Hope expressed the view that the term “bodily injury” did not include mental injury, was binding on the court.

As for the breakdown of the tender, it was submitted that the court should not speculate as to what lay behind the decisions to tender the sum offered - there were all sorts of reasons, including commercial expediency, which could lead to a particular sum being tendered.

Finally, it was argued that it would be unreasonable if insurers were to be faced with a plethora of claims for certification of psychiatrists, given the present state of the law, which favoured the defender.

‘Reasonable and proportionate’

Granting the motion, the sheriff ruled that the decision to instruct the psychiatric report was “reasonable” and “proportionate”.

In a written note, Sheriff Braid said: “Dealing with the tender point first, I agree that it is not open to me to speculate on what lay behind the defender’s decision to tender, or how the sum tendered is to be broken down. I therefore do not proceed on the basis that it must have included an element for psychiatric injury. 

“By the same token, nor can I proceed on the basis that it definitively did not include such an element. If I cannot have regard to the break-down of the sum tendered, and speculate what it does include, then, by definition, I equally cannot have regard to a letter from the defender stating what it does not include. 

“The most that can be said is that the tender was made in the knowledge by the defender that there was at least a risk of the pursuer being found entitled to damages for psychiatric injury and, in tendering, and having their tender accepted, they bought off that risk. I think that is sufficient to deal with the ‘floodgates’ argument.

“If there is uncertainty in the law…it is open to them to seek certainty by taking one or more cases to debate. That said, in accepting the tender, the pursuer must be taken to have been aware that a higher sum might have been awarded by the court had the pursuer’s argument about recoverability of damages for psychiatric injury been accepted; and by accepting the tender, the pursuer eliminated the risk of having the psychiatric injury point settled against her. By settling the action therefore, both parties have ensured that the law, for now, must remain uncertain.”

He added: “Allowing that that was an open question in our law, even under the Warsaw Convention, and having regard to the slightly different wording of the Montreal Convention, it cannot be stated with any certainty that the pursuer had no claim for psychiatric injury.

“At the point of instruction, the pursuer’s solicitor knew that the pursuer appeared to have suffered psychiatric injury. He was, and in any event must be taken to have been, aware that the authorities as to the recoverability of damages for such injury were, in the main, against him; bu that there was, as I have put it above, a colourable argument that such damages might be recovered.

“The claim as pled put psychiatric injury in issue. Irrespective of the view taken of the law, no claim could have been respected without a psychiatric report. In those circumstances, in my view it was proportionate for Dr Livingston to be instructed, notwithstanding the weight of the authorities. The law, after all, must be given the opportunity to develop.”