What is bodily injury?

King v Bristow Helicopters Ltd M v Klm Royal Duty Airlines (H of L TLR 1 March)

For a passenger in an aircraft to be entitled to compensation under article 17 of the Warsaw Convention 1929 as a result of an accident on board an aircraft he must have suffered ‘bodily injury’. Bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which was sufficiently serious to be described as an injury. It did not include mere emotional upsets such as fear, distress, grief or mental anguish. There now existed techniques for investigating the functioning of the living brain and the central nervous system together with the roles played by neurotransmitters, hormones and electrical impulses. It could now be shown by valid scientific techniques that certain psychiatric symptoms corresponded to physical changes in the brain. What those developments had changed was not the phenomena, nor the meaning of the language used in the article, but the ability to adduce evidence relevant to the factual issues raised by the article. There was respectable medical support for the view that, for example, a major depressive disorder was the expression of physical changes in the brain and its hormonal chemistry. Such physical changes were capable of amounting to an injury and, if they did, they were, on any ordinary usage of language, bodily injuries. In the present cases, following a helicopter-crash landing, Mr King received no physical injury but suffered from moderate post-traumatic stress disorder and the consequent onset of a peptic ulcer disease. In the circumstances he could claim only in respect of the peptic ulcer. In the second action Miss M could not recover damages for clinical depression brought on as a result of indecent assault on board an aeroplane. Passengers need to prove by qualified expert evidence that physical changes have occurred, that they were caused by the accident and that they had led to the psychiatric condition which constituted the damage complained of The meaning of the phrase ‘bodily injury’ had not changed. The criterion or test remained the same. All that had changed was the ability of certain claimants to bring their cases within it.