| by Ruwantissa Abeyratne

( March 19, 2014, Montreal, Sri Lanka Guardian) This is a hope we all have - that the passengers of Flight MH 370 are still alive and well somewhere and will eventually be found. On that felicitous note we could inquire as to what compensation they will be entitled to. I have already addressed this point in an earlier issue of the Sri Lanka Guardian with regard to compensation for physical injury (see The Sri Lanka Guardian of Sunday 9 March 2014).

But what about the inevitable mental injury they would have been subject to? Unfortunately, this is a different story. The courts which have ruled under existing treaties (the Warsaw and Montreal Conventions) have refused to grant compensation to victims of air accidents concerning international air carriage (carriage between two countries or carriage within two or more points within the same country with an agreed stopping place in another country) to mental injury on its own unless it is caused as a result of accompanying physical injury. Since both Malaysia (the country of departure of Flight MH 370) and China (the country of arrival of the flight) have ratified these Conventions the legal situation would not be different.

Judicial reasoning in insisting that mental injury must follow physical injury in aircraft accidents has got one thing right – that the danger of numerous arbitrary claims without merit is real and must be addressed.
The non recognition of mental injury as a separate head of damage is both an embarrassment to and travesty at private international air law. The issue of compensation for injury caused as a result of an aircraft accident is not one for judicial naiveté, nor is it one for judicial ineptitude and feckless insouciance. For over 83 years, courts have vacillated between a gross disregard for finding the true nature of mental injury, mostly by ignoring its relevance to recovery as a separate head of liability, and claims to pretention that mental injury is something completely comprehensible to the judicial mind as a “non-bodily injury”.

The glaring neglect of the judiciary in ascribing to itself the status of expert on mental injury on the presumption that mental injury is simplistically an injury of the mind which is devoid of and completely separate from bodily injury, leaves the question unanswered as to whether a more enlightened approach is called for, if only to involve the medical fraternity in the determination of this issue.

Mental distress, or nervous shock as it is sometimes called, has since the 19th century consistently been judicially explained as an unfathomable abstraction. Today, it is no different. When it comes to examining compensation for mental injury caused to a person during air travel, it becomes even more complex as it is not even mentioned in prevailing texts of multilateral treaties covering injury caused during carriage by air. As earlier stated, the most recent treaty on this subject – the Montreal Convention of 1999 - states that the carrier is liable for damage sustained in the death or bodily (my emphasis) 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. The Montreal Convention’s predecessor – the Waraw Convention of 1929 - in Article 17 states that the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

From its inception, this provision has proved contentious in its application as courts adjudicating a claim under Article 17 have been consistently constrained to interpret the words “bodily injury” either as pure physical injury or as mental suffering accompanied by physical injury where the latter was a causative factor in bringing about the former. These rulings held that there could not be compensation under Article 17 for pure mental shock, psychic trauma, anxiety or mental discomfort. In the 1991 case of Eastern Airlines Inc. v. Floyd et al. the United States Supreme Court concluded that there must at least be physical manifestation of injury, if not death or physical injury, in order for a claimant to successfully sue an air carrier under Article 17. The court, however, did not address the issue as to whether mental injury accompanied by physical injury was a compensable element. The Floyd decision is consistent with its precursor - the 1974 case of Rosman (and Herman) v. Trans World Airlines which related to a hijacking incident - holding that there have to be palpable, objective bodily injuries, including those caused by psychic trauma related to the incident, and for the damage flowing from the bodily injuries and not from the trauma per se. The Rosman decision followed in the wake of a 1973 decision which held the same.

It is incontrovertible that, in an aircraft accident, acute mental distress precedes physical injury or death. This makes the cursus curiae on Article 17 of the Montreal Convention – that mental injury can be compensated only if it is the result of physical injury caused by an aircraft accident – an absurdity in itself. One could argue that the judiciary in this instance has got it upside down, or in other words, put the cart before the horse. Mental distress experienced by a passenger prior to an accident could lead to palpable personal injury or trauma. One commentator provides the analogy of the soldiers in Iraq and Afghanistan who suffer traumatic stress without physical injury and who are not awarded the Purple Heart - an honour bestowed for sacrifice rather than valour: " Since the beginning of the current wars in Iraq and Afghanistan, growing numbers of veterans have been diagnosed with post-traumatic stress disorder and treated for the condition. Symptoms include recurring nightmares, severe depression and suicide. At least three hundred thousand veterans reportedly suffer from traumatic stress or major depression... Advocates for these veterans have proposed that they too, should qualify for the purple heart since psychological injuries can be at least as debilitating as physical ones, they argue, soldiers who suffer these wounds should receive the medal". (Michael J. Sandel, Justice – What’s the Right Thing to Do? Farrar, Straus and Giroux, New York:2009, at 10).

The commentator – a professor at Harvard University - offers the interesting philosophical suggestion based on Aristotelian moral logic that compensation might be awarded on the basis of the virtues the medal honours. This approach, when applied analogically to mental injury under the Montreal Convention would inevitably ask the question: What is the purpose of awarding compensation to victims under Article 17? Is it to compensate for a particular category of injury excluding others; or is it to make pecuniary amends for harm caused by the accident? This is a question hitherto not asked by the learned judges who have adjudicated this issue both under the Warsaw regime as well as the Montreal Convention since 1929. I would argue that, if it is the latter, then clearly mental injury has to be compensated.

Psychosomatic injury is an accepted category of injury by the medical profession, and has been for long. It is defined as: “pertaining to mind-body relationship’ having bodily symptoms of psychic, emotional or mental origin”. In an aircraft accident, although a passenger in the aircraft may not suffer physical injury at all, he could suffer what is medically identified as Somatoform Autonomic Dysfunction (SAD) which the World Health Organization describes as follows: " Symptoms are presented by the patient as if they were due to a physical disorder of a system or organ that is largely or completely under autonomic innervations and control, i.e. the cardiovascular, gastrointestinal, respiratory and urogenital systems. The symptoms are usually two types, neither of which indicates a physical disorder of the organ or system concerned. First, there are complaints based upon objective signs of autonomic arousal such as palpitations, sweating, flushing, tremor, and expression of fear and distress about the possibility of a physical disorder. Second, there are subjective complaints of a non-specific or changing nature such as fleeting aches and pains, sensations of burning, heaviness, tightness, and feelings of being bloated or distended, which are referred by the patient to a specific organ or system".

SAD is a system where a mental condition brought about by stress may result in palpable physical discomfort and disease, and which could well result from an aircraft accident. WHO lists some of the physical diseases that could result from SAD as cardiac neurosis, gastric neurosis, neurocirculatory asthenia, and psychogenic forms of aerophagy, cough, diarrhoea, dyspepsia and irritable bowel syndrome.

The WHO also lists Persistent Somatoform Pain Disorder which is a predominant complaint of severe, persistent and distressing pain which cannot be explained fully by a physiological process or a physical disorder, and which occurs in association with emotional conflict or psychosocial problems that are sufficient to allow the conclusion that that they are the main causative influences. The result is a marked increase in personal or medical attention given to the patient.

Another glaring fact of judicial inadequacy in the determination of the nature of “injury” under firstly the Warsaw Convention of 1929 - which had the exact provision as the Montreal Convention’s Article 17 – and then the Montreal Convention, is blatant in that the judiciary has gone on the theoretical definition of “bodily injury which is “damage to the body” which seemingly has been relegated by the judiciary to tissue damage.

Judicial reasoning in insisting that mental injury must follow physical injury in aircraft accidents has got one thing right – that the danger of numerous arbitrary claims without merit is real and must be addressed. However, to reject the notion of mental injury as a stand-alone injury merely because of this reason is irresponsible and fecklessly naive. They must distinguish true claims from false ones; not pretend to be psychiatrists or medical experts, but solicit the assistance of the medical fraternity. The driving criteria should be both the intention of the parties who drafted the Montreal Convention, which, as discussed, ended in a reluctant compromise and a somewhat timid and insouciant reliance on the Warsaw terminology of “bodily injury”, and a well reasoned determination whether, in medical parlance, mental injury causes palpable harm to a victim even when unaccompanied by physical injury in certain circumstances. One way of evaluating the extent of mental injury is to follow the New Zealand model of assigning external cause codes to cover mental health outcomes where psychological injury could be ascertained through injury events which can in turn be paired with particular mental disorders. This system could be implemented through the maintenance of hospital records that assign codes at discharge from the hospital even if there is no linking physical damage. An operational definition of injury should be developed, taking into consideration the strong link between physical and mental injury through established medical research and findings. A thorough revision should be undertaken pertaining to hitherto acceptable theoretical and operational definitions that are arrived at without basis or appropriate scientific and legal considerations.