Montreal Convention – what is it?
The Montreal Convention provides a scheme for compensation for those injured in aeroplane accidents. It is important to realise that the Montreal Convention overrides the national laws of any country where there has been an aeroplane accident. So, if you don’t have a remedy under the Montreal Convention then you don’t have any remedy at all.
Article 17 of the Montreal Convention provides that passengers can be compensated after an aeroplane accident if they have suffered either death or bodily injury. Since the Montreal Convention came into force the courts have helped define what “bodily” means. In the case of Morris v KLM (2002) UK HL7 the Court decided that psychological injury is not a bodily injury. If you suffer for example, a broken arm and psychological injury then you can be compensated for the psychological injury under the Montreal Convention. If though you only suffer a psychological injury, then you don’t get compensation.
How does a psychological injury develop?
Ongoing research is leading to a general acceptance that psychological injury is caused by shock or stress which cause physical changes in the brain which then lead to psychological injury. There is growing acceptance therefore that because of the physical changes in the brain involved, psychological injury is a bodily injury. There have been calls for the Montreal Convention to be redrafted as a result. This may happen but it may not happen for some time.
In the meantime, it is likely more cases will come before the courts. If the courts accept the trend of the ongoing research, then it is to be hoped that the courts will allow claims for psychological injury alone under Montreal Convention. Indeed, there have already been cases in the USA where claimants have successfully argued that post-traumatic stress disorder (PTSD) was evidence of an underlying brain injury and on this basis the court allowed the claim. Other cases in the USA, though, have failed with this argument. These cases though were decided over 20 years ago and it is possible the courts might now come to a different view.
Psychological injury generally
These continue to cause some doubt and difficulty. For example, in claims for pure psychological injury following an accident it is often thought that the claimant has to show that some psychological injury was a foreseeable result of the accident. This has been taken to mean that you have to show that you were in “the danger zone” otherwise you have no claim. There is no such restriction if you suffer a bodily injury. If it is now accepted that psychological injury is itself a bodily injury, then there should be no need to prove that you were in the danger zone.
As the law currently stands unless you also suffer a bodily injury then if you suffer shock and stress on their own which do not meet the diagnostic criteria for a recognised psychiatric or psychological injury such as PTSD then you don’t get compensation. If, though, stress, shock and anxiety do lead to physical changes in the brain then it is possible that even if the shock, etc. isn’t serious enough to lead to a recognised psychological/psychiatric injury then you may be able to get compensation.
Secondary victim claims
These are claims where a close relative of someone injured in an accident suffers shock through witnessing the accident or its immediate aftermath and then goes on to develop psychological or psychiatric injury. These claims are difficult because the courts for reasons of public policy try to limit who can claim as a secondary victim. If, though, psychological injury is now to be seen as a bodily injury, this may mean that the law about secondary victim claims will have to be rethought. It will be interesting to see how this develops.
How we can help
If you have sustained an injury and think you may have a claim please contact us to discuss the matter on 0800 988 8082 or complete our online enquiry form and a member of our team will get back to you right away.