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In international air transportation, the courts have consistently held that to recover damages for mental injuries under the Warsaw and Montreal Conventions, there must first be an accident that causes a bodily injury and second, the bodily injury must be the cause of the mental injuries.

On 30 August 2017, the United States (US) Court of Appeals for the Sixth Circuit deviated from this in Doe v Etihad Airways 2017 WL 3723233 (Doe), finding that a carrier may be liable for mental injuries "so long as they are traceable to the accident, regardless of whether they are caused directly by the bodily injury" in respect of a claim under the Montreal Convention.


In Doe, the Plaintiff was on a flight from Abu Dhabi to Chicago. Upon descent into Chicago, the Plaintiff reached into the seat-back pocket and was unexpectedly pricked by a hypodermic needle, causing her finger to bleed. She commenced an action against the air carrier claiming damages for the needle stick injury as well as mental anguish arising from the possibility that she had been exposed to various diseases. The Plaintiff spent the following year being medically examined before she was cleared of exposure to any disease.

The toothpick reasoning

Article 17(1) of the Montreal Convention provides:

"The carrier is liable for damage sustained in case of death or bodily 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 above provision essentially mirrors Article 17 of the original Warsaw Convention, except that the Warsaw provision contains the words "in the event of" rather than "in case of" and "if" rather than "upon condition only that".

Etihad applied to summarily dismiss the Plaintiff's claim for mental injury damages relying on the widely-accepted Second Circuit US Court of Appeals decision in Ehrlich v American Airlines 360 F.3d 366, which held that Article 17 of the Warsaw Convention requires a plaintiff to show that a mental injury was caused by a physical injury to recover damages for mental anguish.  

At first instance, the US District Court followed the Warsaw-based Ehrlich decision and dismissed the Plaintiff's claim for mental injuries because her fear of contracting a disease was not caused by the wound to her finger (the bodily injury) but rather by the event of having been pricked with a needle (the accident). A distinction was drawn between the wound being made by the stray needle or a sterilised toothpick to reinforce that the Plaintiff's fear of contagion was not from the wound itself but only because it was a needle rather than a toothpick that caused the injury.

Is direct causal connection necessary?

The Sixth Circuit Appeals Court reversed the District Court's decision on the basis that, having regard to the plain meaning and purpose of the Montreal Convention, Article 17(1) does not require a causal connection between the physical injury and the mental injury. Article 17(1) only requires that the passenger sustain a compensable bodily injury to recover damages for mental injuries "regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the injury". The Court created the flow chart below to illustrate their reasoning.

Doe case diagram

Etihad argued that the words "in case of" in Article 17(1) of the Montreal Convention means "caused by", thereby requiring a direct causal connection between the Plaintiff's mental anguish and the bodily injury.

The Appeals Court found the phrase "in case of" was defined by the Oxford Dictionary to mean "in the event of", which are the words used in the original Warsaw text. It considered the plain meaning of that phrase was therefore "conditional, not causal".

The Appeals Court also found that where the Warsaw Convention was a "restrictive, pro-airline industry regime", the Montreal Convention is a "treaty that favours passengers rather than airlines". In finding that the Montreal Convention was a new treaty with a different purpose, the Court was not persuaded by the Ehrlich approach, which having found an ambiguity in the original French text of the Warsaw Convention, decided to add a causation requirement to Article 17(1) to further the purpose of that Convention to "limit the liability of air carriers in order to foster the growth of the fledging commercial aviation industry".  

Persuasive but not concrete

Doe effectively expands the circumstances in which a passenger may recover damages as a result of an accident under Article 17(1) of the Montreal Convention.

The Court's analysis of the Convention's plain meaning and purpose is persuasive. Although the Court acknowledged it is not entirely clear what connection must exist between the required bodily injury and the claimed mental anguish, there is evidence in the Explanatory Note to Article 17(1) that the drafters decided not to expressly refer to mental injury as they considered the definition of "bodily injury" would evolve from judicial precedent.

The US Supreme Court has yet to consider Article 17(1) of the Montreal Convention and it remains to be seen if other courts will follow the Doe decision.

So what does this mean for Australian carriers?

Unlike in the US, an international treaty does not automatically have the force of law in Australia. The Civil Aviation (Carrier's Liability) Act 1959 (Cth) was enacted to adopt the original Warsaw Convention, its subsequent amending protocols and more recently the Montreal Convention. It is possible for the carriage of a passenger on a domestic flight to be subject to these international conventions if a domestic flight is booked and forms part of a series of flights that originate or terminate in another country. Our courts may give consideration to this decision (and the decision of other foreign courts) to maintain international uniformity regarding the interpretation of these international conventions.

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