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Aviation Bulletin August 2013

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Aviation Bulletin August 2013 Aviation and aerospace Aviation Bulletin August 2013 Contents Time up for historic Time up for historic PTSD claims? Page 1 PTSD claims? Defining the boundaries for nervous shock The recent Scottish case of Abrahm v British International Page 3 Helicopters Limited [2013] CSOH 69 suggests that litigants Federal preemption and the evolving definition of airline “services” who claim that Post Traumatic Stress Disorder (PTSD) Page 6 constitutes “bodily injury” will not be able to delay court Regulation 261/2004 – The proceedings indefinitely in order to allow science to catch Commission’s proposal up with their claims. Page 9 Recent developments relating to food Background information requirements In November 1988 the claimant boarded a helicopter on a North Sea Page 11 oil platform in order to travel to Aberdeen. The helicopter suffered New top level domain names in 2013 mechanical problems and ditched into the North Sea. The claimant Page 13 escaped and was rescued but alleged that he suffered from PTSD as Automatic pensions enrolment – a a result of the accident. Since the claim was governed by the Warsaw challenge for the airline industry Convention as incorporated into domestic law, the claimant had to Page 15 establish that his PTSD amounted to “bodily injury” in order to succeed French Court applies Warsaw in his action. Convention to claim by manufacturer against airline The case was beset by delays; the action was raised in the Aberdeen Page 17 Sheriff Court in 1990 and was immediately stayed, no progress was then made until 1995, when the claimant instructed new solicitors. There were then further delays whilst legal aid was obtained and an expert was instructed. In 1999 the case was transferred to the Court of Session and a date for the hearing was fixed. However, the action was again stayed pending the House of Lords decision in King v Bristow Helicopters, delivered in 2002. The stay was recalled in 2003 and a hearing was proposed on dates to be arranged between the parties. However the parties failed to arrange any dates. There was then further abortive correspondence regarding settlement which ceased in September 2007. By 2013 the claimant was still building his case. The defendant eventually lost patience and applied to the Court to have the case struck out on the grounds that there had been an inordinate and inexcusable delay on the part of the claimant’s solicitors in progressing the claim and that, taking into account all the circumstances, the delay resulted in unfairness to the defendant. Decision Comment The Judge agreed that the defendant was entitled to have The claimant would no doubt argue that the issue of the claim struck out. He found that of the 24 years between whether or not PTSD amounts to “bodily injury” for the the accident and the strike-out application, the total period purposes of the Warsaw and Montreal Conventions has of time representing culpable delay attributable to the not been definitively decided on the basis of the different claimant amounted to 13 years. In the circumstances this reasoning of their Lordships in King v Bristow; Lords Steyn was inordinate and inexcusable. and Hope were of the opinion that PTSD could never amount to bodily injury whereas Lords Nicholls and The Judge also found that the delay would cause unfairness Hobhouse appeared to take the view that PTSD might to the defendant. The claimant wanted to instruct an amount to bodily injury but only if medical science develops American neurologist to examine his brain for physical or so as to prove a physical change in the chemistry or chemical changes some 25 years after the accident. The structure of the brain. Currently this is not possible. Judge held that in doing so, the claimant had effectively “waited for science to catch up with his claim”. He held that it What is clear from the decision in Abrahm is that even if was unfair that the defendant should remain a party to PTSD does amount to bodily injury, a claimant cannot wait litigation while the claimant waited to see whether he had for science to catch up with his claim. In doing so he risks a case. the claim being struck out on procedural grounds. Even where the delay has not been “inordinate or inexcusable”, it It was also held that there was a real danger that the may still be open for defendants to argue that the effluxion claimant’s evidence as to the extent and severity of his of time and associated deterioration in witness evidence symptoms would amount to his own assertions. The has made it impossible to substantiate or quantify the symptoms of PTSD were unlikely to be in the claimant’s claim thereby depriving them of their right to a fair trial. medical records and the quality of witness evidence as to Air operators facing ongoing claims for PTSD arising from his symptoms would inevitably have suffered. The Judge felt accidents which happened years or decades ago should that the defendant would not be able to test the claimant’s bear in mind the fact that this kind of litigation need not be evidence as to the overall effect of PTSD on his life due to left hanging over their heads. However it should be noted the poor quality of the evidence available. The impossibility that this decision is currently under appeal. of testing this evidence in court would effectively deprive the defendant of the right to a fair trial. For further information, please contact David Willcox or Accordingly the claim was struck out on the grounds that William Healy the delay was inordinate and inexcusable, resulting in unfairness to the defendant. Back to page 1 Aviation Bulletin August 2013 2 Defining the boundaries for nervous shock Previous articles discussing mental injury have focussed on persons directly involved in an accident and liability under the Warsaw/Montreal Convention system. Less frequently considered are the principles arising where the Convention does not govern, relating to claims by ‘secondary victims’ suffering nervous shock as a reaction to harm caused to a primary victim. The circumstances in which such claims may succeed are contentious because of the boundaries defining who can claim. The absence of a uniform international regime means crash, to appreciate how many people could be affected. that a court faced with a nervous shock issue is left The leading decision is Alcock v Chief Constable of South to rely on its domestic law. With a notable absence of Yorkshire Police [1992], where the House of Lords prescribed Parliamentary intervention, English law on nervous shock ‘control mechanisms’ limiting who could claim for the has been created by a collage of judicial decisions, making trauma of witnessing the 1989 Hillsborough stadium noteworthy a recent decision, benefitting insurers, of the disaster. The Alcock claimants, neither injured nor in English Court of Appeal – Crystal Taylor v A Novo (UK) Limited danger of injury from the crush, argued that what they saw [2013] EWCA, which provides helpful guidance on the and heard at the stadium had caused nervous shock. The relationship between a causative event and the onset intention of these control mechanisms was to keep liability of psychiatric illness. within what would be regarded as acceptable bounds, and accordingly, a claimant must: What is nervous shock and who is a secondary victim? – Be physically in close proximity to the accident Nervous shock is a term used to describe psychiatric illness – Perceive the event or the immediate aftermath in-person or injury, such as post traumatic stress disorder (PTSD) and unaided or clinical depression, arising from witnessing a – Suffer injury from a sudden shock to the nervous system traumatising event. A person suffering from nervous – Have a relationship of love and affection to the shock may not necessarily suffer any physical harm or primary victim any personal danger. – Be of “normal fortitude” so that it is reasonably While English law imposes a duty of care not to cause foreseeable that psychiatric damage would result nervous shock, it generally excludes compensation where an injury arises only from the circumstances of Ms Taylor’s case a relationship to a primary victim – suffering normal The claimant’s mother was injured in an accident at emotions such as grief and stress is not compensable. work caused by the negligence of the employer. Three Judicial precedent has provided an exception to the general weeks later, while apparently making a good recovery, rule where psychiatric illness stems from witnessing injury she suddenly and unexpectedly collapsed and died at or danger to a primary victim. home, from a heart attack consequent upon a deep vein thrombosis caused by the injuries sustained in the The law on recovery for pure psychiatric harm developed accident. Her daughter, Crystal Taylor, witnessed her against a perceived need for pragmatism rather than a mother’s death and suffered PTSD as a result. logical consideration of what constitutes a meritorious claim. The key need for pragmatism arises as to who can Ms Taylor claimed that she was legally entitled to damages claim as a “secondary” victim because of the potential for from her mother’s employer as a “secondary victim” of her a large number of secondary claimants. One only has to mother’s accident. The trial judge agreed, holding that the think in the context of major incidents, such as a plane Alcock control mechanisms were satisfied. Back to page 1 Aviation Bulletin August 2013 3 The employer, Novo, unsuccessfully argued that there was Law affecting aircraft operators no proximity either in time or space because Ms Taylor Where is the limit upon the class of person to whom an suffered shock at witnessing her mother’s death 21 days airline is liable? Rare and improbable though they may after the accident.
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