Tourism Law in Europe

injury or illness has no claim under article 17. Lord Hobhouse said: “(…) bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish. A psychiatric illness may often be evidence of a bodily injury or the description of a condition which includes bodily injury. But the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury (…)”. Bodily injury , at least for the time being, and in the UK courts, means physical injury, therefore, although many UK commentators regard it as being only a matter of time before the courts interpret the phase so as to include serious psychiatric injury; why should a person who sustains a modest graze be compensated, when someone who suffers from debilitating lifelong post traumatic stress disorder is not? The location of the accident causing the damage is also of great importance. To be actionable under the Convention the accident must occur either on board the aircraft or in the course of any of the operations of embarking or disembarking. The courts of different signatories to the Convention have come up with different answers to the question: where does embarking begin and disembarking end? Accordingly, it is quite feasible that a passenger may be regarded as embarking in one jurisdiction but not in another. Some jurisdictions regard the control exercised by a carrier at a given point in the airport procedures as a compelling factor in deciding where the process of embarkation begins. Other jurisdictions have devised multi-faceted tests taking into account not only the control exercised by the carrier, but the location of the incident together with the functions being undertaken by carrier and passenger at the time the incident occurs. However, physical location is usually paramount. The English courts have taken a pragmatic view of the difficulties presented by the concepts of disembarkation at modern airports. In Adatia v Air Canada [1992] 2 S&BAvi VII/63 the court concluded that the Claimant had reached a point of safety in the terminal building and therefore could not be regarded as being in the course of one of the operations of disembarking. The issue of embarkation was dealt with equally pragmatically by the English High Court in Philips v Air New Zealand Limited [2002] EWHC 800 , in which the court posited three criteria: where, geographically, did the accident