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The Dekagram 24th October 2022

Articles, News | Mon 24th Oct, 2022

This week has seen two surprising judgments and one development which didn’t surprise anyone. First and foremost, the Chambers & Partners entries for 2023 were published on Thursday, and to no one’s surprise Deka Chambers was listed in Band 1 for travel, with three silks and six juniors ranked this year; as always, we are all extremely grateful for your kind feedback to the researchers. Then, just as the team was getting back to work after the resulting festivities, the Court of Justice of the European Union gave judgment in BT v Laudamotion, Case C-111/21, which prompted further celebrations amongst those acting for Claimants in Montreal Convention cases, but no little consternation amongst airlines’ representatives. For, only a month after expanding the definition of the word ‘accident’ within the meaning of the Convention (Tearing up the definition of ‘accident’ under the Montreal Convention – The judgment of the CJEU in JR v Austrian Airlines), the CJEU has taken a similarly expansionist approach to the term ‘bodily injury’, ignoring, in the process, decades of international jurisprudence on the subject. It will be interesting to see whether these decisions are followed by the domestic UK courts, now that they are not binding on them. And just as we were digesting the implications of the Court’s breezy approach to Convention authorities, we received the judgment in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB), in which Cotter J eviscerates a number of formerly well-regarded experts. All very unsettling; but as ever you can rely on Deka Chambers to maintain a reassuring stability in these troubled times.

Hold the Front Page! Psychological injuries do fall within the meaning of Article 17(1) of the Montreal Convention

The concept of ‘bodily injury’ within the meaning of the Montreal Convention has arguably required revisiting for some time. Those individuals claiming against an airline carrier for a purely psychological or psychiatric injury, in the absence of some physical bodily injury, have long been unable to do so as the courts have strictly interpreted the meaning of a ‘bodily injury’.

However, in BT v Laudamotion GmbH (Case C-111/21), the Court of Justice of the European Union has finally confirmed that purely psychological/psychiatric injuries can fall within the meaning of Article 17(1).

Factual background

On 1st March 2019, BT embarked on a flight operated by Laudamotion from London to Vienna. During take-off, the left engine of the aircraft exploded. Passengers thereafter had to be evacuated via the emergency exit. As she was disembarking the aircraft, BT was hurled several metres through the air by a jet blast from the right engine, which had not yet been shut down. She was diagnosed with post-traumatic stress disorder and required medical treatment.

The proceedings

BT brought an action against Laudamotion in the Austrian District Court, alleging that Laudamotion were liable for her injuries under Article 17(1) of the Montreal Convention. In the alternative, she claimed that Laudamotion were liable under Austrian law. Laudamotion sought to defend the proceedings, arguing that Article 17(1) solely covered bodily injuries in the strict sense, not purely psychological injuries, and that Austrian law did not apply to the dispute.

On 12th November 2019, BT succeeded in her claim under Austrian law. It is worth noting that the Austrian District Court did not consider that her claim fell within the scope of Article 17(1), as they considered that provision only encompassed bodily injuries. Laudamotion thereafter appealed to the Regional Court in Austria, where they were successful in setting aside the judgment at first instance. The Regional Court held that not only did Article 17(1) not apply in the case of non-bodily injuries, but also (perhaps unsurprisingly) that Article 29 of the Montreal Convention excluded the application of Austrian law.

BT proceeded to appeal to the Supreme Court, who referred the following questions to the CJEU for a preliminary ruling:

  1. Did the psychological impairment of a passenger, which was caused by an accident and had clinical significance, constitute a “bodily injury” within the meaning of Article 17(1) of the Montreal Convention?
  2. If Question 1 was answered in the negative, did Article 29 of that Convention preclude a claim for compensation which would exist under the applicable national law?

The Court of Justice of the European Union

In determining the first question, the Court noted that the concept of ‘bodily injury’ was not defined in either the Montreal Convention or in Regulation (EC) No.2027/97. The Court considered Article 31 of the Vienna Convention on the Law of Treaties of 23rd May 1969, which stated that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. In addition, Article 32 provided that recourse may be had to supplementary means of interpretation.

The Court pointed out that the term ‘injury’ referred to an impairment of an organ, tissue, or cell, due to an illness or accident. The term ‘bodily’ referred to the physical part of the living entity, namely the human body. Although the ordinary meaning of the concept of ‘bodily injury’ could not be interpreted as excluding psychological injury linked to bodily injury, the same was not true of medically proven psychological injury which had no link to bodily injury, as in this case. However, the fact that the concept of ‘bodily injury’ was used in Article 17(1) did not mean that the authors of the Convention intended to exclude the liability of air carriers where psychological injury that was not linked to any bodily injury had been caused. The Court considered that the need for fair compensation, which required equal treatment for passengers who have suffered injuries (whether bodily or psychological) of the same severity as a result of the same accident, would be called into question if Article 17(1) precluded compensation for psychological injuries where they are not linked to a bodily injury.

As such, the Court held that Article 17(1) does in fact allow for compensation for psychological injuries caused by an accident, which are not linked to a bodily injury. However, the liability of the air carrier can only be incurred if the passenger demonstrates, to the requisite legal standard, by means of a medical report and proof of treatment, the existence of an adverse effect on their psychological integrity suffered as a result of an accident within the meaning of the Convention.

In the light of their determination of the first question, the Court did not answer the second question.

Comment

Given the scientific developments in medicine in relation to psychological and psychiatric injuries over the years, it appeared it was only a matter of time before the Convention was interpreted more liberally. As Advocate General De La Tour recognised in his opinion before the ruling was given, the modern approach to mental health is far different to what it used to be. To continue to exclude psychological/psychiatric injury in claims under Article 17(1) would undoubtedly have reflected an outdated approach, thus the Court’s approach on this issue is certainly welcome.

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

Stop Press! Time to reconsider your expert evidence? Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) considered

On Friday 21st October Cotter J handed down judgment in a £3 million claim brought by a former member of the Armed Forces in respect of a Non Freezing Cold Injury (NFCI) said by the MoD to be fraudulent. Over the course of twelve days the judge heard from 29 lay and ten expert witnesses; and he didn’t think much of some of them.

Lay evidence

In paragraphs 10 to 21 of the judgment Cotter J permits us an insight into the workings of a judge’s mind when confronted with lay evidence, some of which must be wrong and may be dishonest. It is a fascinating passage which shows us a judge testing the evidence against what is known to be true, and finding it wanting. As a result, he rejects the Claimant’s evidence and that of his wife, and makes a finding of dishonesty.

Expert evidence

He goes on, at paragraphs 167 to 171, to make the point that doctors, and particular specialists in NFCI, psychiatrists and pain experts, are heavily dependent on the honesty of patients in taking their history and arriving at a diagnosis. Having concluded himself, and not without reason, that the Claimant had exaggerated his symptoms to the court and to the medicolegal experts, the judge criticises the experts instructed on behalf of the Claimant for failing to acknowledge this possibility either in their written reports or in cross examination. Of the Claimant’s psychiatrist he says (at paragraphs 232 to 244):

I recognise that Dr Baggaley conducted his interview remotely via skype so did not have a clear view of the Claimant’s physical disability e.g. how he walked, got up from and sat down on a chair etc. However, he failed to comment upon the inconsistency with the presentation to other medical experts, including [the Defendant’s psychiatrist] Dr Friedman. Dr Baggaley only reluctantly conceded during extensive cross-examination that there were any inconsistencies and was accused by [counsel for the Defendant] Mr Ward of a partisan view. In my opinion there was some force in the criticism; not least of the reasons for which is that [the NFCI experts] Dr Carey and Dr Mumford agreed that there were inconsistencies. My view is that such inconsistencies were plain to see and Dr Baggaley should have readily conceded that this was the case.

Dr Baggaley remained of the view that the Claimant had suffered, and continued to suffer, with depression. He stated that depression was a common comorbid symptom with an NFCI. He supported his view that the Claimant had not pretended to be depressed with an assertion (made for the first time in cross-examination) that people with an African background are ashamed of mental illness. Dr Friedman took great issue with this opinion which he said was wholly unsupported by any evidence. Dr Friedman had been involved with Rwandan and African psychiatry services and has an adopted son who is African. He believed that Dr Baggaley’s view was offensive and that a significant number of African soldiers had presented with mental health problems including, most significantly, the Claimant himself in November 2015 (when he was noted to be self reporting as PH9; consistent with a severe depression). I accept Dr Friedman’s view that this was a point without any validity and a rather unfortunate attempt to shore up an untenable opinion.

Having taken, in paragraph 278, a swipe at the Claimant’s pain expert, Cotter J goes on to get to grips with the care experts, Amanda Kerby and Jill Ferrie respectively; and with the employment experts, Mr Craggs and Mr Cameron. By this point in the judgment the reader suspects that, having hit his stride, he is thoroughly enjoying himself.

I doubt either Ms Kerby or Mr Craggs would be anxious to relive their experience of giving evidence. However I have limited sympathy for either in this regard. They acted at times as advocate for the Claimant and both at times presented partisan views to the court and, in my view, in so doing neglected their duties as independent experts.

The very significant edifice of damages constructed within the schedule was built with significant reliance upon the evidence of Ms Kerby and crumbled significantly as the case progressed even on the assumption that the Claimant’s evidence was largely reliable.

At times Mr Craggs adopted the twin roles of expert and Judge of the facts (his findings being favourable to the Claimant).

In paragraphs 283 to 310 the judge reminds us of the approach to be taken to expert care evidence; in paragraphs 311 to 322 he does the same with expert employment evidence. Some of the highlights (or low points, depending on your point of view):

In my view the common working assumption within these fields of litigation that it is axiomatically the case that each party will have a care expert is misplaced, helps perpetuate polarised expert opinions and often greatly increases the cost of litigation.

I am sometimes doubtful that there has been adequate analysis of what assistance is required with gardening so as to identify what is reasonably necessary solely for maintenance purposes as opposed to catering for the pleasurable element. In the present case Ms Kerby gave as part of the justification for an element of privately funded care/assistance that the Claimant had lost the ability to play football with his children.  However children do not have a need to play football with their father and to the extent that the Claimant had suffered a loss in this regard it was clearly a matter to be compensated through the loss of amenity element of general damages.

Ms Kerby revealed that she has been preparing reports solely on behalf of Claimants for nine years. She recognised the understandable concern a Court will have as to the risks that arise when an expert’s workload (and income) is solely for one side to litigation. In my view the risk came to fruition and the reports she prepared contained some partisan views designed to maximise damages for the Claimant rather than recommendations made, as they should have been, after balanced and objective application of the relevant principles. 

 In his report of 23 September 2021 Mr Craggs, an employment expert, provided a critique and his conclusions in relation to the surveillance and social media evidence and the statement of [the Defendant’s lay witnesses] Marlon Lessey and Ms Mgemezulu.  Quite why he thought this was within his remit (and why it was not pointed out to him that it was inappropriate for him to stray into matters of fact) I found difficult to understand.

The difficulty with expressing partisan views (and making factual assumptions/findings favourable to an instructing party) when giving an expert opinion is that it calls into question the reliability of views expressed elsewhere. Put simply if the aim is to assist the Claimant to advance his case any answer has to be viewed with caution.

The judge considers that the Claimant dishonestly exaggerated his claim, finding that he has turned a £100,000 claim into a £3 million claim through his deception.

Fundamental dishonesty

At paragraphs 374 to 388 of the judgment he sets out the legal principles to be considered in cases of fundamental dishonesty, and goes on to apply them to Mr Muyepa’s case. He finds that he and his wife have been thoroughly dishonest throughout the lifetime of the case and that this dishonesty taints the entirety of the claim. There is no injustice to the Claimant in dismissing the claim, and it is therefore dismissed pursuant to s.57(2) of the Criminal Justice and Courts Act 2015.

NFCI claims

And just as the MoD nestles back to bathe in the glow of smug victory, Cotter J concludes his 401 paragraph judgment:

I should finally add that I found the evidence of Mr Lessey to be concerning on the issue of widespread dishonesty in respect of NCFI.  I would suggest that the Defendant, which has paid out large sums in respect of NCFI claims should reflect upon his evidence.  Of course, the problem may be very limited in scope and concerning only those Mr Lessey came into contact with. Alternatively, it may not be.

I was also surprised when I was informed by Dr Carey about the lack of studies into NCFI (including the lack of any base line testing of soldiers before any cold exposure) and by [counsel for the Claimant] Ms Collignon’s comment that, in her experience, there is still a widespread failure to adhere to available guidance as to the prevention of NFCIs. I have only heard one NFCI trial so my observations as to the general picture can carry limited weight.  However, the history of industrial disease litigation provides the lesson that if an employer continues to breach its duty of care and personal injury claims can be made, wholly or substantially, on the basis of subjective reporting of symptoms there will be, along with the valid claims, some dishonest claims; both partially and fundamentally. The obvious solution is to carefully consider to what extent, and why, any breaches of the duty of care continue to occur, and then to take appropriate action. 

In the end, then, the Claimant and his wife come out of it badly; the Claimant’s experts come out of it badly; and the MoD is left with plenty of homework to do.

Comment

Apart from providing evidence that sometimes judges are permitted to enjoy themselves when writing judgments, this case is a reminder to anyone instructing experts of any discipline that it is imperative that those experts understand and comply with their duty to the court as set out in CPR Part 35. Failure to do so can lead to the kind of scathing comments made by Cotter J here and to dishonest claims being put before the court when, in truth, they ought to be nipped in the bud at a far earlier stage. It is perhaps only natural for experts to wish to support the case of those instructing them; but it is not commensurate with their duty as independent witnesses, and it is counterproductive. It would have been better for all concerned had Mr Muyepa’s untruthfulness been found out much earlier and for the claim never to have been made. Quite apart from anything, the time, energy and costs incurred in pursuing a dishonest claim such as this are staggering; and all in the face of surveillance and other evidence which showed the Claimant to be a liar. And, it would appear, the experience has left in the mind of at least one judge a lingering doubt as to the veracity of any Claimants bringing similar claims.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

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