3rd Jul 2019 | Articles

Katherine Deal and Asela Wijeyaratne have recently co-written an Aviation legal update for New Law Journal entitled ‘Flying in the face of convention – when does psychiatric injury sustained onboard become compensable”. In the update Katherine and Asela examine the cases pushing the boundaries of current definitions.


Flying in the face of convention – When does psychiatric injury sustained onboard become compensable?

This article considers recent cases in Australia, the US and Scotland on the vexed question of liability for psychiatric injury under the Montreal Convention.

The Warsaw Convention, which opened for signature in 1929, had the ‘primary purpose of… limiting the liability of air carriers in order to foster the growth of the fledgling aviation industry’ (Transworld Airlines Inc v Franklin Mint Corp 466 US 243 (1984), citing conference minutes). One of the varied ways it did so was to limit liability to ‘bodily injury’.

The Montreal Convention 1999, the successor multilateral treaty to which the UK is a party, has the stated purpose of providing a ‘modernized uniform liability regime for international air transportation’. As with the Warsaw Convention, it provides, among other things, for strict liability in certain circumstances for ‘bodily injury’, up to a financial limit. The Montreal Convention has effect in English law by virtue of a statutory instrument. The EU ratified the Montreal Convention on 29 April 2004. The provisions of the Convention relating to air carrier liability were incorporated into Council Regulation (EC) No 2027/97, as amended by Regulation (EC) No 889/2002.

Article 17(1) of the Montreal Convention 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’.

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