AMERICAN AIRLINES INC v GEORGEOPOULOS [NO 2] [1998] NSWCA 273

AMERICAN AIRLINES INC v GEORGEOPOULOS [NO 2] SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

5 MEAGHER, SHELLER and BEAZLEY JJA 10 July, 5 August 1998

[1998] NSWCA 273 The respondents began actions in the Local Court based upon Article 17 of the Warsaw Convention (Article 17) to recover damages for nervous shock they suffered whilst travelling as passengers on the appellant's aircraft.

15 The Magistrate held that the respondents were not entitled to recover because the nervous shock they suffered were not covered by Article 17. Each stated case came before a single Judge of the Supreme Court by way of summons. The Judge held that nervous shock was to be classified as bodily injury and, therefore, fell within Article 17. The appeal from this decision was adjourned until after the matter had been remitted to the Magistrate to make findings of fact and to amend the stated case accordingly.

20 The Court of Appeal overruled the single Judge's decision in Kotsambasis v Singapore Airlines Limited (1997) 42 NSWLR 110 which held that purely psychological injury was not covered by Article 17. On the adjourned hearing of the appeal, the appellant submitted that on the basis of Kotsambasis the verdicts in favour of the appellant in the local court were right. The respondent accepted the law as stated in Kotsambasis but submitting that this case could be distinguished on the facts.

Held:

1. Under Article 17 of the Warsaw Convention, the carrier is liable if the damage is sustained "in the event" of, relevantly, bodily injury suffered by the passenger.

2. The US Supreme Court in Eastern Airlines Inc v Floyd 499 US 530 left open the question of whether a passenger could recover damages for mental injuries flowing from bodily injuries.

3. Under Article 17 of the Warsaw Convention, recovery of damages for psychic injury is limited to situations in which mental anguish follows and is caused by physical injury and where the psychological injury is proven to be a species of the bodily injury: Kotsambasis.