What constitutes bodily injury for the purposes of recovering
compensation under the Montreal Convention is an area of law that
has challenged judges and lawyers down through the years and is a
topic on which there is a substantial amount of information. This
article sets out some of the salient points which govern this area
of law with particular emphasis on the law in Ireland.
An Exclusive Cause of Action
A starting point for this article is to understand the principle
that the Montreal Convention ("the Convention") provides
an exclusive cause of action. This principle was very clearly
established by the House of Lords in the landmark English case of
Sidhu and others .v. British Airways plc, 1997. Lord Hope
in that case held that "The Convention does not purport to
deal with all matters relating to contracts of international
carriage by air. But in those areas with which it deals - and the
liability of the carrier is one of them - the code is intended to
be uniform and to be exclusive also of any resort to the rules of
the domestic law..
" Essentially, what this means is that where no remedy is
provided for a claimant under the Convention, no remedy exists.
This case of Sidhu was cited in the Irish Supreme Court
decision of AHP Manufacturing B.V. t/a Wyeth Medica .v. DHL
Worldwide Network N.V, DHL Worldwide Express GmbH and DHL
International (Ireland) Limited, 30th July 2001. This
principal was also mentioned obiter dictum in the judgment of
Blayney J in the Irish Supreme Court case of S. Smyth and
Company Limited .v. Aer Turas Teoranta, 3rd February 1997.
The Convention was given force of law in Ireland by virtue of
the Air Navigation and Transport (International Conventions) Act
Article 17 of the Convention
Article 17 of the Convention provides that "The carrier
is liable for damage sustained in case of death or bodily
injury (emphasis added) 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."
Provided the other criteria necessary to establish that there
has been an "accident" within the Convention, it
is clear that only physical injury sustained is recoverable under
the Convention. Where the issue becomes more complex is in
determining whether or not a passenger who has suffered a
recognisable mental condition is entitled to be compensated.
It has been...