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The Warsaw Convention: Part Two

Last week I prepared a blog where I referred briefly to a claim I had for a client who was injured in a hot air balloon accident.I referred to the issue of psychiatric injury and how difficult this is to claim when injured in an accident which involves carriage by air.I referred also to the Bristow Helicopters case and how this followed the Warsaw Convention (article 17) and subsequently the Montreal Convention given force by the Carriage of Air Acts (Application of Provisions) Order 2004 regarding psychiatric injury.One of the issues discussed prior to the introduction of the Montreal Convention was whether mental injury could be included in any new or revised system of liability which went beyond that of the Warsaw Convention which required that the psychiatric injury must arise as a result of a bodily injury, namely due to a disturbance within the patient’s own central nervous system giving rise to a psychiatric injury.Establishing this, namely that the psychiatric injury arose as a result of some change in chemical balance within the central nervous system which in turn gives rise to a physical injury, is very difficult. It is likely to be in the most significant types of injury where a Claimant is likely to succeed in this argument. The more minor injuries are likely instead to be attributed by ae consultant psychiatrist to emotional upset such as fear, distress, grief or mental anguish and will not therefore amount to a bodily injury.It remains to be seen to what extent this interpretation of the law is likely to stand. I anticipate that it will be for some time and it certainly suits air carriers to limit any claims to only those where a physical injury in the generally thought of sense of the phrase, a broken leg, a fractured spine etc.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, or email and one of our specialist personal injury team will review your compensation claim for fre.