The Exclusion of Liability for Emotional Harm to Passengers in the Warsaw and Montréal Convention: moving away from Floyd, Siddhu and Pienaar, the Stott Case?

  • Rafia De Gama University of South Africa
Keywords: Dignity, strict liability, limitation of liability


This contribution focuses on the transport of passengers on international routes and the legal regime set down by the Warsaw Convention of 1929 and reinforced by the Montréal Convention of 1999. These Conventions regulate commercial aviation by detailing a set of minimum standardised procedures for flight safety, such as standards for air navigation systems, amongst others, to ensure safe and efficient air travel. 

The legal regime also regulates the possible claims that may be made against airlines for the death of or harm to passengers, as well as relating to damage to and loss of baggage. The regime not only limits claims temporally and by location, but it also excludes the application of national legal regimes. With regard to claims of harm to dignity the regime disallows such claims to be brought within the restrictions placed by the legal regimes or on any other basis.

The contribution does not address the full coverage of these Conventions, only the exclusion of mental / emotional injuries. The Convention excludes emotional harm from the definition of death and physical harm. However claimants have brought claims to undermine the main exclusion of claims with regard to compensation for emotional harm. This contribution explores the exclusion of claims in the Warsaw and Montréal Conventions and thereafter analyses two court decisions in common law countries where this exclusion of claims was challenged and the challenge failed. 


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Author Biography

Rafia De Gama, University of South Africa
LLB LLM (University of Pretoria). Lecturer, University of South Africa.




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Abeyratne RIR "Mental Distress in Aviation Claims - Emergent Trends" 2000 J Air L & Com 225-262

Chouest 2009 IALP
Chouest H "Dualism, Science and the Law: The Treatment of THE Mind-Body Dichotomy Under Article 17 of the Montreal
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Cunningham M "The Montreal Convention: Can Passengers Finally Recover for Mental Injuries?" 2008 Vanderbilt J Transnat'l L 1043-1081

Radosevic 2013 Air & Space Law
Radosevic S "CJEU's Decision in Nelson and Others in Light of the Exclusivity of the Montreal Convention" 2013 Air & Space Law 95-110

Case law

Court of Justice of the European Union

Nelson v Lufthanza C 581/10

TUI Travel v Civil Aviation Authority C 629/10

Cases C‑402/07 and C‑432/07, Sturgeon and Others 2009 ECR I‑10923

Mohamed v British Airways Plc (Civil Chamber 97-10268)

South Africa
Moake v Reckitt & Colman (Africa) Ltd 1968 3 SA 98 (A)

O'Keefe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C)

Potgieter v British Airways Plc 2005 3 SA 133 (C)

United Kingdom
Siddhu v British Airways Plc / Abnett (known as Sykes) v British
Airways Plc 1997 1 All ER 193

Stott v Thomas Cook Tour Operators Limited 2014 UKSC 15

United States
Eastern Airlines, Inc v Floyd 499 US 530 (1991)

El Al Israel Airlines Lmited v Tsui Yuan Tseng 525 US 155 (1999)

Giannopolous v Iberia SA 2012 WL 5383271 (ND Ill 2012)


United Kingdom

Disability Discrimination Act, 1995

Equality Act, 2010

International instruments

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (Convention Against Torture)

Convention for the Unification of Certain Rules for International Carriage by Air (1999) (Montréal Convention)

Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929) (Warsaw Convention)

EU Regulations
Regulation (EC) No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.

Regulation 1107/2006 Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

Internet sources
Anon Date Unknown
Anon Date Unknown Contracting Parties to the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 and the Protocol Modifying the Said Convention Signed at The Hague on 28 September 1955 accessed 24 June 2016
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