Friday, 28 April 2017


When she was 15 years old, the clamant, M, flew unaccompanied from Kuala lampur to Amsterdam on an aircraft operated by the defendant airline. She fell asleep,and awoke to discover the man sitting next to her touching her left thigh. Although M sustained no physical injury, she became very depressed. She brought an action for damages against the airline, relying on art 17a of the Warsaw convention 1929(as set out in sch 1 of the carriage  by air Act 1961). Under that provision, the carrier was liable for damage sustained in the event of death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of the operations of embarking or disembarking. On application by both parties for summary judgment, the judge found for M on the question of liability. The airline appealed, con tending that the assault on M was not am 'accident' within the meaning of art 17 since it was not related to the operation of the aircraft or characteristics of air travel. Although M did not accept that that was the correct test, she contended that it was satisfied on the facts of the case. She further submitted that 'bodily injury'__' lesion corporelle' in the French text__ included mental injury and accordingly was not confined, as the airline contended, to physical injury.

HELD__(1) There was no doubt that the accident that had befallen  M exemplified a special risk inherent in air travel  and that, whatever the precise test might be,it constituted an 'accident' within the meaning of art 17. Circumstances were rare that resulted in a 15 years old girl settling down to sleep in close proximity to an unknown man. M could therefore satisfy the requirement, if so it was, of demonstrating that the 'accident' related to,or was characteristics of,carriage by air.
(2) On the true construction of art 17 of the convention, bodily injury' meant physical injury. There was nothing to suggest that in 1929 claims for mental injury or distress__ other than in consequence of the or physical injury of the claimant or someone related to him__were encountered in any of the jurisdictions of the parties to the convention. No mention had been made of liability for mental injury in the course of ththe negotiations that resulted in the convention, and it was a rational deduction that the drafters had not contemplated psychic injury. They were correct, at the time, not to envisaged claims for such injury as an area of liability that required to be addressed in the convention, for decades were to elapse before any such claim was advanced against an air carrier. Those considerationd led to the firm conclusion that when those who had drafted the convention used the phrase 'l├ęsion corporelle'/'bodily injury',and had not intended that it would extend to a different type of harm,namely mental injury. The phrase had for the drafters a uniform meaning, and changes that had since occurred in the attitude of different jurisdictions to liability for causing mental injury could not effect a change in the meaning to be accorded to that phrase to that phrase in the convention, and accordingly the appeal would be allowed.

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