AMERICAN AIRLINES INC v GEORGEOPOULOS and ANOR [1996] NSWCA 13

AMERICAN AIRLINES INC v GEORGEOPOULOS and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER JJA and Simos AJA 11 September 1996, 26 September 1996

[1996] NSWCA 13

PERSONAL INJURY — nervous shock — whether 'any bodily injury' within Article 17 Warsaw Convention — injury sustained while passenger on international flight — appropriateness of a stated case for determination

The respondents were passengers on the appellant's aircraft when they claimed to have sustained personal injuries, including nervous shock and mental suffering. In proceedings commenced in the Local Court, judgment was given for the appellant, on the basis that damages would not be recoverable because the phrase "any other bodily injury" in Article 17 of the Warsaw Convention did not include nervous shock and mental suffering.

The Magistrate stated a case to be determined by the Supreme Court. An issue for determination was whether "nervous shock and/or mental suffering" was embraced by Article 17, which applied under the Civil Aviation (Carrier's Liability) Act 1959 (the Act). An additional question which would arise if nervous shock" was not within the scope of Article 17, was whether

proceedings claiming damages in respect of such an injury could still be brought in New South Wales.

Ireland J found that nervous shock could be classified as "any other bodily injury" under the Act and remitted it to the Magistrate for determination. The appellant appeals from this decision.

HELD:

1. An appeal by way of stated case was misconceived. because it did not contain a statement of all the ultimate facts which dictated the ultimate conclusion of the Court below. The Magistrate stated the case based on agreed facts, but made no finding as to the nature of the injuries sustained. Absent such a finding, it was impossible to decide whether the respondent suffered "bodily injury" within the meaning of Article 17.