By Gbenga Asaaju
The very recent experience of passengers in the troubled United Nigeria Airline PH-Abuja flight but which could not land at its destination has thrown up some issues of aviation safety and liability and particularly traumatised flights that result in Post-Traumatic Stress Disorder (PTSD).
PTSD is a mental health condition that is triggered by a terrifying event — either experiencing it or witnessing it. Symptoms may include flashbacks, nightmares, and severe anxiety, as well as uncontrollable thoughts about the event. Most people who go through traumatic events may have temporary difficulty adjusting and coping, but with time and good self-care, they usually get better. If the symptoms get worse, last for months or even years, and interfere with day-to-day functioning, someone may have PTSD.
Post-traumatic stress disorder symptoms may start within one month of a traumatic event, but sometimes symptoms may not appear until years after the event. These symptoms cause significant problems in social or work situations and in relationships. They can also interfere with ability to go about normal daily tasks. PTSD symptoms are generally grouped into four types: intrusive memories, avoidance, negative changes in thinking and mood, and changes in physical and emotional reactions. Symptoms can vary over time or vary from person to person.
The raging debate as to the veracity of the claims of one of the passengers on the United Nigeria Airline flight in a viral video is good to properly situate the grounding of liability of a carrier in such situations. Aviation liability litigation/claims are replete with instances where passengers that suffer PTSDs recover compensation from Airlines; the United Nigeria Airline incident holds out potentials for any of the passengers that may have suffered the disease; PTSD is connected with the brain and, therefore, a bodily injury within the intendment of Article 17 of the Montreal Convention 1999 as domesticated in the Nigerian Civil Aviation Act 2006.
The reasoning in the case that an injury to the brain is a bodily injury is consistent with the reasoning in the PTSD cases. It seems like the case law has developed into more passenger friendly platforms. This can be said to harmonise with the suggestion to include the term mental injury. It can be ascertained that the decision arrived at in a number of court judgments, for instance, in the United Kingdom apply a broader interpretation of bodily injury.
Solely mental injury does not fulfill the requirements in the term bodily injury according to some judicial decisions, but large developments have been made. In some cases, the courts have developed mental injuries as PTSD into physical injuries. In the judgment in Morris v KLM, it was established that the brain is a part of the body and an injury to a passenger’s brain is recoverable. However, it is a fact of medical evidence to be able to prove a brain damage causing mental injuries.
Other cases also showing great progress concerning PTSD was Weaver v Delta Airlines, and in Re Air Crash at Little Rock. The courts in these cases also concluded that physical injury to the brain was recoverable. They found it proved by new progress in scientific studies concerning PTSD that it could constitute a physical injury to the brain. The case law has definitely developed, and these cases may have ultimately changed the term bodily injury when determined that PTSD can constitute physical injury.
Chief Obiora Okonkwo, Chairman/Founder, United Nigeria Airline
The decision to include the term mental injury in the Montreal Convention indicates a development on the issue to allow recovery for mental injury as well. As many countries around the world allow claims for mental injury and the fact that it is also allowed in other international transport agreements suggest more passenger friendly judgments in the future. This researcher finds the arguments against including mental injuries weak. The argument that mental injuries can be simulated can be dismissed on the fact that the injury has to be medically provable.
In view of the foregoing brief submissions, which readily find support in extant local and international legal instruments on aviation safety and liability, it would seem, afore tiorai, that passengers on the United Nigeria Airline and, indeed, any other passengers who suffer PTSD have good chance to recover damages from Airlines.
The postulations on whether the passenger that released a viral video on the United Nigeria Airline flight incident was exaggerating or not knowing what she was saying would pale into insignificance if she or any of the passengers on board that flight could establish a medical evidence of suffering PTSD.