UK: Recovery Under Civil Aviation Act For Psychiatric Injuries

For the purpose of considering the preliminary issues it was assumed that the claimants witnessed the crash and the events following it either seeing them or hearing them directly and suffered psychiatric injuries as a result.

The material parts of s.76(2) of the 1982 Act are as follows:

"…where material loss or damage is caused to any person or property on land or water by … an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recovered without poof of negligence or intention or other cause of action as if the loss or damage had been caused by the wilful act, negligence or default of the owner of the aircraft."

The court concluded that the 1982 Act should be interpreted as an "always speaking" statute, i.e. one which should be construed in the light of contemporary circumstances rather than the more unusual case where the words are intended to be of unchanging effect. The fact that damages in respect of psychiatric injuries were not recoverable in the 1920’s, when the words which now appear in s.76(2) were first enacted, did not preclude recovery for such injury if it was available in contemporary circumstances. The parties had been unable to find any statutes where "personal injury" was defined as excluding mental impairment and, in the absence of any apparent reason why Parliament should have intended to exclude the same in this instance, the Court accepted the contention of Mr Philip Shepherd, Counsel for the Claimants, that the "material loss or damage" referred to in s.76(2) included psychiatric injuries.

Mr Justice Simon referred to his analysis of the first preliminary issue to answer this in the affirmative but, in any event, accepted that he was bound by the recent House of Lords decision in Morris -v- KLM which held that a person can recover on the basis that a "bodily injury" has been suffered if it can be established that the mental injury complained of is evidence of structural change to the brain or central nervous system.

The Claimants submitted that there was no reason to restrict the right to recover damages for this statutory tort to the usual rules relating to recovery of damages if negligence were proved because to do so put too much emphasis on the word "neglect" and ignored the other words in the same phrase, in particular, "wilful act". Furthermore it was asserted that by referring to "wilful act" the 1982 Act intended to treat the Defendant’s act as if it was a deliberate infliction of injury thereby permitting recovery of damages in respect of injured feelings or mental distress which would not be recoverable if caused by mere negligence.

The court disagreed preferring to interpret "wilful act" as meaning a deliberate act rather than "intentional wrong doing" and that, consequently, the normal rules as to foreseeability and remoteness applicable to acts of negligence should apply. In support of this interpretation the court expressed the concern that, if the Claimants’ construction was correct, potentially there would be two different approaches to the recoverability of damages under s.76(2), one arising from a "wilful act" and the other arising from "neglect or default" without any statutory indication as to which approach applied in any particular case. Mr Justice Simon regarded this as an inherently unlikely legislative intention. In the light of this he held that psychiatric loss or damage is only recoverable under s.76(2) if such loss or damage would be recoverable at common law.

Although s.76(2) of the 1982 Act relieves the Claimant of the burden of proving negligence on the part of the aircraft owner, the ability to recover damages for purely psychiatric injuries will be limited to those classes of persons who would have such an entitlement under common law. In essence this only permits a recovery either where the person alleging the psychiatric injury physically witnesses the incident or its immediate aftermath and has a very close relationship with the victim of the Defendant’s negligence or where the Claimant was personally endangered (or had reasonable grounds to believe so) by the incident. Consequently, damages for psychiatric injury caused by simply witnessing at first hand an air crash which did not directly threaten the safety of that witness nor injure that person’s loved ones (as appears to be what was envisaged in the agreed factual matrix used for the determination of the three preliminary issues) will not be recoverable under s76(2) of the 1982 Act.