In the case of Liaw v United Airlines (ND Cal, 2019) the US District Court for the Northern District of California considered the application of the controversial case of Doe v Etihad Airways 870 F3d 406 (6th Cir, 2017) in a passenger claim governed by the Montreal Convention 1999 (MC).

Mr. Liaw was en route from Chicago to London when the aircraft made an emergency landing at Goose Bay due to a crack in the outer layer of the cockpit windshield. Mr Liaw, having sought medical advice ten months after the flight, brought a claim against United Airlines under Art 17MC. He argued that he sustained back injury and emotional distress as a result of an accident, namely the rapid descent of the aircraft during the emergency landing.  It is worth reporting that no injuries were reported at the time of landing and no other passenger brought a claim against United Airlines.

To recover for emotional distress, Mr Liaw relied on the case of Doe v Etihad Airways which held that mental injuries accompanying bodily injuries are recoverable under the MC.  This decision has questioned the prevailing interpretation of Art 17 which permits recovery for mental injuries only when they are directly caused by the bodily injury.

In the case of Doe, the passenger was pricked by a hypodermic needle that that was left by a previous passenger into the backseat pocket drawing blood from her finger. She claimed damages under Art 17MC for the physical injury (the prick in the finger) and for mental injuries caused by the potential exposure to several diseases, including HIV and hepatitis. Etihad, following a long line of case law, defended the claim on the basis that the mental injuries were caused by the nature of the accident (struck by an “orphan” needle), rather than the physical wound in the finger. The Court of Appeals rejected this argument permitting recovery for both the physical injury and the ensuing mental injuries. For the Court the wording of Art. 17 ( “The carrier is liable for damage sustained in case of death or bodily injury of a passenger) supports a conditional test; the  casual test was (wrongly for the Court of Appeals) introduced by case law to protect air carriers under the Warsaw Convention. With the MC emphasizing the protection of passengers, the Court decided to break-free from this long-established case law, permitting recovery “ 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–ie, in the event of a compensable bodily injury”.

Unlike Doe, Mr Liaw’s argument that the mental distress was recoverable as a result of the back injury was not successful.  The District Court dismissed the claim for two reasons. Firstly, there was no evidence that the flight’s decent rate was abnormal. As such, the Court held that the alleged bodily injury was not caused by an accident, namely an unusual and unexpected event that is external to the passenger. Secondly, the Court struck out the testimony of the claimant’s medical expert that the alleged back injury was caused by the decent as “speculative” or, as emphatically put, “Dr. Lewis’s bare-boned conclusion of causation essentially parrots attorney argument”.

Without evidence of a bodily injury caused by an accident, the District Court rightly refused to apply the Doe rationale. As a result, the quest to establish whether the interpretation of Doe is attracting supporters continues.


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