Advances in medical science will affect how courts compensate post-traumatic stress disorder following air incidents, lawyers told the McGill conference on international aviation liability last week, with one practitioner suggesting that the increasing complexity requires a whole new convention.

Speaking on a panel considering recent developments in air carrier liability at the 10th Annual McGill Conference on International Aviation Liability and Insurance in Montreal, lawyers discussed ongoing controversy surrounding whether a passenger can recover compensation for emotional damages.

Case law in most jurisdictions states that emotional damage is compensable under article 17 of the Montreal Convention where it flows directly from a physical injury to the brain, said Paul Stephen Dempsey, an aviation law professor at McGill who chaired the debate. But controversy exists about potential claims for emotional damage in the absence of wider physical harm or where it results in a physical manifestation of emotional harm, he added.

Marc Moller at Kreindler & Kreindler in New York said advances in science would inevitably affect how courts interpret proof of bodily harm and said that what we know about post-traumatic stress disorder today may have not been known 10 years ago, or at the time that the Montreal Convention was drafted.

“At the time when they drew up the [Montreal Convention] treaty, they were thinking of broken bones and death. They didn’t understand it [post-traumatic stress disorder],” he said. “Science has evolved to give that term a broader meaning.”

John Maggio at Condon & Forsyth in New York said such an interpretation of the Montreal Convention that allows for compensation as a result of post-traumatic stress disorder is not what the convention envisaged when it included its definition of bodily injury.

“I think we need another convention written to explain it. I think everybody agreed when it [Article 17 of the Montreal Convention] was being written that it meant a bodily injury and not this type of emotional distress,” he said.

Moller countered that post-traumatic stress disorder is not merely emotional distress, but a physical injury that has emotional ramifications.

He explained that past cases would potentially now be decided differently by the courts, in light of scientific advances.

“As facts and science and circumstances evolve, responsibility evolves with it and consequences evolve with it. One of the things that we should be mindful of as lawyers, is to look at how change affects rights, rules and opportunities. We have to be alert on both sides of the equation – claimant or defendant – about how change and knowledge influences what we do and how we handle our cases,” he said.

The panel acknowledged that, for the most part, existing case law restricts compensation claims for post-traumatic stress disorder. Carlos Martins at Bersenas Jacobsen Chouest Thomson Blackburn in Toronto cited the recent case Pel-Air Aviation Pty Ltd v Casey, which was heard in the New South Wales Court of Appeal in Australia earlier this year and overturned a prior case finding an air carrier liable for post-traumatic stress disorder.

Pel-Air Aviation considered whether post-traumatic stress disorder is a physical injury as opposed to another type of ailment. The court confirmed that evidence of actual physical damage to the brain is compensable under the Montreal Convention, but changes in brain function do not necessarily equate to an injury, nor would chemical changes to the brain.

“Importance must be attached to the adjective ‘bodily’ as a limiting word. It clearly draws a distinction between bodily and mental injuries: mental injuries are covered only if they are a manifestation of physical injuries, or if they result from physical injuries, including physical injuries to the brain,” that court ruled.

Pel-Air Aviation said that post-traumatic stress disorder was a purely emotional reaction, mirroring the judgment handed down in the 2002 case Morris v KLM Royal Dutch Airlines in the UK House of Lords, Martins said.

Morris v KLM said that once medical science is able to prove a change in the brain as result of emotional harm, then that damage would be compensable as a physical injury under article 17 of the Montreal Convention.

The McGill 10th Annual Conference on International Aviation Liability and Insurance began on 22 June and concluded the following day. Sybille Michèle Rexer at Dabelstein & Passehl in Hamburg, Germany, also spoke on the panel.