(a) Bodily injury
34 Article 17(1) of the Montreal Convention is set out at [6] above. As previously mentioned, Virgin did not deny that there had been an "accident" in serving the applicants tainted water.
35 The relevant issue is whether the applicants suffered a "bodily injury" within the meaning of Art 17(1).
36 In his statement of claim, Mr Grueff gave the following particulars of the bodily injuries which he said he suffered as a result of the accident:
Stomach cramps.
Nausea.
Diahorrea.
Increased tiredness.
Lack of energy.
Sensitivity to all types of food.
Irritation to both eyes.
Loss of weight.
Difficulty in eating or drinking fluids for several weeks after the incident.
37 In her statement of claim, Ms Saltmarshe gave the following particulars of the bodily injuries which she claims she suffered as a result of the accident:
Stomach cramps.
Nausea.
Diahorrea.
Increased tiredness.
Lack of energy.
Sensitivity to all types of food.
Anxiety.
Elevated creatinine levels.
Loss of weight.
Difficulty in eating or drinking fluids for several weeks after the incident.
38 Virgin denied that either applicant suffered "bodily injury" within the meaning of Art 17(1).
39 As Virgin pointed out in its submissions, the expression "bodily injury" is not defined in the Montreal Convention but it has been the subject of many cases, both overseas and in Australia. Virgin also correctly pointed out that much of the litigation has focussed on whether a psychological injury constitutes a "bodily injury".
40 Helpful guidance on the meaning of the expression "bodily injury" is to be obtained from the decision of the House of Lords in Morris v KLM Royal Dutch Airlines [2002] UKHL 7; 2 AC 628, particularly in the speech of Lord Hobhouse of Woodborough. The Court there considered the meaning of the expression "bodily injury" in Art 17 of the Warsaw Convention, as opposed to Art 17 of the Montreal Convention. Although those Articles are not in identical terms they are sufficiently similar to justify regarding what Lord Hobhouse said as providing useful guidance. At [140] and [141], his Lordship said (underlining added to give emphasis):
140 The composite expression bodily injury involves a combination of two elements. The word injury in the context of personal injury involves a condition which departs from the normal, which is not a mere transitory discomfort or inconvenience and which, whilst not permanent or incurable, has, in conjunction with its degree of seriousness, a sufficient duration. It includes a loss of function. A person who is concussed or who is in clinical shock or who is made deaf or blind is properly described as injured. (As to deafness, see, for example, Air France v Saks 470 US 392.) A condition which requires treatment to enable the person to return to the normal is typical of an injury though not essential; many injuries heal over time without intervention. Contracting an illness may amount to an injury depending upon the degree to which the illness departs from the normal. One would not normally describe a person who caught a cold as having suffered an injury but, on the other hand, one would certainly describe someone who contracted a serious disease or condition, say, AIDS or hepatitis, as the result of the deliberate or negligent act of another as having suffered an injury.
141 The word bodily is simpler. It means pertaining to the body. There must be an injury to the body. It is, as it must be, accepted that the brain, the central nervous system and the glands which secrete the hormones which enable the brain and the rest of the central nervous system to operate are all integral parts of the body just as much as are the toes, heart, stomach and liver. They are all susceptible to injury. The mechanisms by which they can be injured vary. An ingested poison might injure the stomach or liver. A lack of oxygen will injure the brain by causing the death of brain cells. An injury to the heart may be caused by a blow or by a traumatic experience or by over-exertion. In every case there is a cause, external to the organ in question, which produces a change in the structure or ability to function of the organ. If the change, either alone or in conjunction with changes in other organs, is properly described as an injury, it is a bodily injury. Since the body is a complex organism depending for its functioning and survival upon the interaction of a large number of parts, the injury may be subtle and a matter of inference not direct observation. The medical science of diagnosis exists to enable the appropriate inferences to be drawn from the observed evidence. Medicinal treatments (as with drugs) are prescribed on the basis that there is a physical condition which can be reversed or alleviated by physical means.
41 Lord Hobhouse observed at [142] that "bodily injury" does not "import disability nor palpability nor externality". His Lordship stated at [143] that "bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury …". I respectfully agree with, and will adopt, that reasoning (bearing in mind that the evident intention of the CACL Act is to create uniform and exclusive rules as to the liability of a carrier consistently with the terms of the Montreal Convention and Warsaw Convention).
42 It is also desirable to set out what Lord Hobhouse said at [174] where, in the context of discussing various US cases which dealt with whether or not emotional distress was compensable, his Lordship said (underlining added to give emphasis):
… In two cases Terrafranca v Virgin Atlantic Airways Ltd (1998) 151 F Supp 3d 108, Third Circuit Court of Appeals, and Carey v United Airlines (2001) 28 Avi 15,408, Ninth Circuit Court of Appeals, the passenger sought to satisfy the criteria in Floyd by saying that the accident had caused emotional distress and the emotional distress had caused physical symptoms like, in Terrafranca, loss of weight and, in Carey, sleeplessness, nausea, perspiration etc. These consequences it was argued amounted to "physical manifestations" for the purpose of article 17 so as to bring what would otherwise be mere emotional stress within the terms of that article. It will be appreciated at once that I myself would not accept that argument. What the passenger has to prove is a bodily injury, not something less but with physical manifestations. The argument was based upon the language used in Floyd: but the phrase used there is "physical injury or physical manifestation of injury" (499 US 530, 552-553). If it is simply emotional stress which is causing the person to lose weight, no injury, bodily or otherwise, is proved. For the argument to succeed the plaintiff must prove either that the manifestation proves that there is or has been an underlying bodily injury or that the manifestation itself is a bodily injury. As Rosman 34 NY 2d 385 shows, provided that causation by the accident can also be proved, in the former instance the plaintiff can recover damages for the underlying bodily injury and its consequences and in the latter for the bodily injury but not what preceded it. What I have said corresponds to the reasoning of the Court of Appeals in Terrafranca: see 151 F Supp 3d 108, 110-111 where Rosman is cited. In Carey 28 Avi 15,408, 15,414, Circuit Judge Nelson followed Terrafranca, saying,
"The Third Circuit concluded … that there was no support for the argument that the plaintiff's physical manifestations of her emotional injury satisfied the 'bodily injury' requirement. Because the plaintiff could not 'demonstrate direct, concrete, bodily injury as opposed to mere manifestation of fear or anxiety', the court held that she did not satisfy the conditions for liability under article 17 and thus could not recover for her emotional distress. For reasons similar to those articulated by the Third Circuit in Terrafranca, we hold that physical manifestations of emotional and mental distress do not satisfy the 'bodily injury' requirement in article 17."
Carey came after Weaver 56 Fed Supp 2d 1190 and the Court of Appeals referred to it, at p 15,415, in footnote 47 to its opinion without expressing either approval or disapproval. The value of Terrafranca and Carey is that they implicitly approve Rosman and confirm the primacy of the simple bodily injury criterion, not any gloss or paraphrase of it.
43 Lord Hobhouse's analysis casts grave doubt on whether in the present proceedings many of the applicants' particularised injuries are truly "bodily injuries" for the purposes of Art 17(1). In the particular circumstances here, stomach cramps, nausea, diahorrea, increased tiredness, lack of energy, anxiety, sensitivity to all types of food, eye flickering, loss of weight and difficulty in eating or drinking fluids for several weeks may possibly be described as manifestations or symptoms of some underlying condition, but the precise nature of any underlying medical condition is left entirely unclear on the evidence before the Court. In particular, the evidence leaves unclear whether any underlying condition is an injury at all, whether bodily or not. In addition, many of the alleged injuries involve conditions which lasted for only a few days (or even less), including the nausea, diahorrea, tiredness and stomach cramps. Such conditions are analogous to a person having a cold which, as Lord Hobhouse pointed out, would not normally be described as involving an injury.
44 Ms Saltmarshe's higher creatinine levels might appropriately be described as a manifestation or symptom of some underlying condition, but the evidence does not establish the nature of that underlying condition and whether or not it involved a bodily injury.
45 Lord Hobhouse's reasoning concerning the meaning of the expression "bodily injury" is broadly consistent with the approach taken by the NSW Court of Appeal in American Airlines Inc v Georgeopoulos (No 2) [1998] NSWCA 273. That case involved a claim for damages for nervous shock under Art 17 of the Warsaw Convention. Accordingly, the central focus of the proceeding was on the circumstances in which an airline could be liable for purely psychological injury. After referring to US caselaw on the issue, Sheller JA (with whom Meagher and Beazley JJA agreed) said that the reference in Air France v Saks 470 US 392 (1985) to a "psychic injury unaccompanied by a physical injury" left open the question whether a carrier was liable for mental injuries, consequent upon physical injuries, or emotional shock which had resulted "in organic damage" (such as a coronary thrombosis or stroke) (see page 14 of American Airlines).
46 The need for there to be clear evidence establishing a "bodily injury" is also reflected in the following statement at [704] of the leading text, Shawcross and Beaumont: Air Law (LexisNexis, 4th ed, 2021) (emphasis added):
The case law … tells a complex story, but in general supports an understanding of the relevant phrase which requires clearly-evidenced physical injury to the passenger's body, caused either by the accident or, less certainly, flowing from the psychological trauma the accident produced.
47 The applicants have not persuaded me that any of the health conditions about which they complain constitutes a "bodily injury".