Montreal Convention Permits Passenger to Recover for Fear of Infection

Plaintiff was on a flight from Abu Dhabi to Chicago.  She placed her hand into the seatback pocket, and was unexpectedly stuck with a hypodermic needle that lay within.

Because the flight was international, the Montreal Convention applied to the passenger’s claim against the airline.  The airline conceded that the needle prick was an “accident” for the purposes of the Convention, and thus the passenger was entitled to compensation.  It also conceded that the passenger was entitled not just to compensation for the bodily injury suffered, but also the emotional distress that resulted from that injury.  But the bodily injury (the needle prick) and the pain from the prick (“ouch”) was nothing compared to the substantial emotional distress the passenger suffered over the course of the next year fearing that she had been infected with various diseases such as HIV.

The airline argued that it need not compensate the passenger for the emotional distress arising from the fear of infection because those fears were not caused by the bodily injury the passenger suffered, but rather by the nature of the instrumentality of the injury – the needle.

The trail judge agreed with the airline and threw out most of the passenger’s claim.  But the court of appeal reversed, ruling that Convention allows a passenger to recover for all the emotional injuries sustained as a result of the bodily injury, including those that flowed from the nature of the instrumentality of the injury.  In a somewhat unusual opinion, the court of appeal drew a number of diagrams to illustrate its point.  But the bottom line was fairly straightforward:

As this diagram makes clear, because an accident onboard Etihad’s aircraft caused Doe to suffer a bodily injury (a fact that Etihad concedes), Doe may therefore recover damages for her mental anguish, regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the bodily injury.  That is because, either way, Doe’s mental anguish is “damage sustained in case of”—i.e., “in the event of” a compensable bodily injury.

 

  

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