Here We Go Again: Mental Injury and the Montreal Convention

In previous posts (click here and here), we discussed the trial and appeal decisions in Casey v. Pel-Air Aviation Pty (Supreme Court of New South Wales, Australia). The issue to be determined was whether Ms. Casey could recover damages for Post-Traumatic Stress Disorder (PTSD). Because Ms. Casey had been travelling internationally at the time of the subject aircraft accident, her claim was exclusively governed by the Montreal Convention, an international treaty. The Montreal Convention only allows for the recovery of damages for “bodily injury” (i.e. physical injury) and not purely mental injury.

Contrary to prior jurisprudence, the trial court in Casey accepted that Ms. Casey’s PTSD could be a “bodily injury” in that it was an injury to her brain because it involved changed patterns of neurotransmitter activity and chemical changes. In a unanimous decision, the appeal court then overturned the trial court’s ruling and found that while “bodily injury” does not exclude consideration of damage to a person’s brain, there must be evidence of actual physical damage to the brain.  While there was evidence to support the conclusion that Ms. Casey’s brain was malfunctioning as a result of biochemical changes, there was no evidence that her brain had been physically changed.  The biochemical changes did not amount to “bodily injuries”.

Recently, the United States Court of Appeals (Sixth Circuit) has also considered the issue of whether damages for “mental distress” type injuries could be awarded. In Doe v. Etihad Airways, the passenger was unexpectedly pricked by a hypodermic needle when she reached into an aircraft seatback pocket to retrieve an item. She sought damages for both her physical injury and her “mental distress, shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of possible exposure to various diseases.” In accordance with prior jurisprudence, Etihad argued that the passenger could only recover damages for mental distress if the mental distress was caused by bodily injury.

The Court in Doe noted that most previous decisions considered the language in the Warsaw Convention (the predecessor treaty to the Montreal Convention). The Court interpreted new words in the Montreal Convention to infer that no causal link between the bodily injury and the mental injury is required. All that is required is that a bodily injury (a physical injury) is also suffered. In other words, the Court ruled that mental anguish is compensable as long as the passenger also suffers a physical injury in the same accident.

Prior courts have considered this rationale, but declined to rule in this manner because of the following possible illogical consequence. If two passengers are involved in an aircraft accident and one suffers purely mental injury, while the other suffers the same mental injury and a scratched finger (suffered while evacuating), then the passenger with the scratched finger can recover mental injury damages and the other passenger can recover no damages at all. The Court in Doe was not troubled by this outcome and found that it was fully consistent with the text of the Montreal Convention.

The Doe decision is an anomaly and is sure to generate further debate in the future. In Canada, the Courts have followed prior jurisprudence interpreting the Montreal Convention and have ruled that passengers can only recover damages for mental distress if the mental distress was caused by bodily injury.

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