The
plaintiffs issued summons against the defendant for damages for
psychological trauma, pain and suffering allegedly caused to the
first and second plaintiffs arising from Air Carriage.
The
allegations are that the first and second plaintiffs,
who are minors, travelled on the defendant's airline to South
Africa on 30 March 2016. The third and fourth plaintiffs, who are
parents to the minor children, alleged that they had entered into a
contract with the defendant on the following agreed terms;
1.
That the two minor children would be escorted onto the flight and off
the flight;
2.
That they would be monitored and assisted throughout the flight;
3.
That they would be cared for on the plane;
4.
That they would be taken through immigration and handed over to a
designated person, namely, Haruchemwi Christine Masuta;
5.
That their documents would be kept safely by the airline staff who
would hand-over same to Hamuchemwi C Masuku; and
6.
That Hamuchemwi C Masuku would sign documents acknowledging receiving
the minor children.
The
plaintiffs alleged that, in breach of the terms of the contract, the
minors were not taken care of nor provided any assistance. Instead, a
stranger who happened to be a passenger on the plane was asked to
assist the children. The plaintiffs alleged that, as a result, they
suffered psychological trauma, pain and suffering and claimed
$75,000= damages in respect of the first and second plaintiffs and
$100,000= damages in respect of the third and fourth plaintiffs.
The
defendant excepted to the summons and declaration on the following
grounds;
(1)
That since the carriage by air of the first and second plaintiffs
from Harare to Johannesburg constituted an international carriage
within the meaning of Article 1(2) of the Convention for Unification
of Certain Rules relating to International Carriage by Air (Warsaw
Convention) as ratified by section 3 of the Carriage by Air Act
[Chapter 13:04], the cause of action should be premised on the Warsaw
Convention.
(2)
That the plaintiffs cause of action, being founded on the defendant's
alleged breach of contract, cannot be sustained at law; and
(3)
That the claims of the Carriage by Air Act and Warsaw Convention,
being limited to instances of death or wounding of a passenger or any
other bodily injury by a passenger, and the
plaintiffs not having pleaded the essential elements, their claim is
incurably bad at law.
The
defendant prayed for dismissal of the plaintiffs claim with costs of
suit on an attorney client scale.
I
am indebted to the parties for the detailed heads of argument filed.
The
defendant argued that claims arising out of air travel are
specifically governed by the Warsaw Convention. Any claims should
fall squarely within the four corners of the Warsaw Convention. Any
claims falling outside the Warsaw Convention could not be sustained.
Since the plaintiffs claims arose from a breach of contract, and,
possibly, delict, their claims ought to be dismissed.
The
plaintiffs, on the other hand, argued that the Warsaw Convention does
not provide the “sole and exclusive” remedies to claims arising
from carriage by air. The Convention, as it stands, does not
specifically ouster claims arising under common law. In any case, the
plaintiffs submitted that Article 17 of the Warsaw Convention does
incorporate psychological trauma and distress. In case it is found
that Article 17 is applicable, the plaintiffs argued that Article 17
is an archaic piece of legislation which is not justifiable in a
dynamic and democratic legal system such as ours.
The
first issue falling for determination is whether the Warsaw
Convention provides the exclusive remedy to claims arising from
carriage by air.
Article
1(1) of the Warsaw Convention provides;
“For
the purposes of this Convention, the expression 'international
carriage' means any carriage in which, according to the agreement
between the parties, the place of departure and the place of
destination, whether or not there be a breath in the carriage or a
trans-shipment, are situated either within the territories of two
High Contracting Parties or within the territory of a single High
Contracting Party if there is an agreed stopping place within the
territory of another State, even if that State is not a High
Contracting Party. Carriage between two points within the territory
of a single High Contracting Party without an agreed stopping place
within the territory of another State is not international carriage
for purposes of this carriage.”
The
Warsaw Convention was ratified by section 3 of the Carriage By
Air Act [Chapter 13:04]. That means that where there is conflict
between the Warsaw Convention and common law, the Warsaw Convention
should prevail and apply.
In
the case of Sidhu and Others v British Airways (Pvt) Ltd; Abnett
(known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC) LORD
HOPE stated that:
“The
Convention describes itself as a 'Convention for the Unification of
Certain
Rules relating to International Carriage by Air'.
The
aim of the Convention is to unify the rules to which it applies. If
this aim is to be achieved, exceptions to these rules should not be
permitted, except where the Convention itself provides for them. The
language used and the subject matter with which it deals demonstrate
that what was sought to be achieved was a uniform international code
which could be applied by the courts…, without reference to the
rules of their own domestic law.
The
Convention does not purport to deal with all matter relating to
contract of international carriage of law. But, in those areas with
which it deals, and the liability of the carrier is one of them, the
Code is intended to be uniform and to be exclusive also of any resort
to the rules of domestic law.”
See
also Eastern Airlines Inc v Floyd 499 US 530 (1999) where the United
States Supreme Court held that an air carrier could not be held
liable under Article 17 when an accident had not caused the
passenger's death or to suffer physical injury or any physical
manifestation of injury.
LORD
HOPE, in Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known
as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC), went
further to say;
“…,.
To permit exceptions whereby a passenger could sue out with the
Convention for losses sustained in the course of intentional carriage
by air would distort the whole system, even in case in which the
Convention did not create any liability on the part of the carrier.
Thus, the purpose is to ensure that in all questions relating to the
carriers liability, it is the provisions of the Convention which
apply and that the passenger does not have access to any other
remedies, whether under the common law or otherwise, which may be
available in any particular country where he chooses to raise his
action.”
In
the case of Impala Platinum Limited v Kolinklijke Lunchtraat
Maatshappij NV and Another 2008 (6) SA 600 the court found that
exceptions should not be allowed unless where the Convention itself
provides for those exceptions.
From
the law cited above, and case law, it is clear that claims arising
out of carriage by air, are exclusively governed by the Warsaw
Convention. Where the Convention provides no remedy it follows there
is no remedy. The reason is so as to achieve a uniform application of
air carriage laws without resorting to domestic law. It is therefore
trite that the cause of action should be premised on the Warsaw
Convention.
Having
found the above, it is clear or apparent that the plaintiffs cause of
action, having been founded on an alleged breach of contract and
delict, cannot be sustained at law. See El Al Israel Airlines Ltd v
Tsui Yuan Tseng 525 US155 (1999).
It
is also trite that in terms of the Carriage By
Air Act [Chapter 13:04], and the Warsaw Convention, claims are
limited to instances of death or wounding of a passenger or any other
bodily injury suffered by the passengers.
In
the case of Morris v KLM Royal Dutch Airlines, King v Brishow
Helicopters Ltd (2002) Z ALL ER 565 (HL) the court had the
opportunity to consider the meaning of 'bodily injury' as
provided for under Article 17 of the Warsaw Convention. It was held
that such expression did not cover “a mental injury or illness that
lacked a physical cause.”
See
also Portgieter v British Airways/l 2005 (3) SA 133 (C) where a claim
for negligently causing psychological shock to a passenger by an
employee was dismissed.
Article
17 of the Warsaw Convention provides as follows;
“The
carrier is liable for damages sustained in the event of the death or
wounding of a passenger or any other bodily injury suffered by a
passenger if the accident which caused the damage took place onboard
the aircraft or in the course of any of the operations of embarking
or disembarking.”
From
a reading of the above, it seems that only physical injury is
recoverable under Article 17.
It
has been established that purely psychological injury is not
sufficient in order to recover under the Warsaw Convention. Once an
injury is psychological in nature, it is not recoverable.
In
the matter in casu, the plaintiffs have not pleaded that they
suffered physical injury leading to psychological injury. It is my
view, therefore, that the plaintiffs claim falls outside the purview
of the Warsaw Convention. The Warsaw Convention was designed to
protect carriers from opportunistic claims as the one in casu.
I
am of the view that the exception has been well taken and is
upheld…,.
Accordingly
I order as follows;
1.
The exception be and is hereby upheld.
