Mazvita Banga and Others v Air Zimbabwe (Private) Limited

The first and second plaintiffs, who were minor children, travelled on the defendant airline from Harare to Johannesburg on 30 March 2016. Their parents (third and fourth plaintiffs) alleged they had entered into a contract with the defendant whereby the minors would be escorted onto and off the flight, monitored and assisted throughout, cared for on the plane, taken through immigration and handed over to a designated person (Haruchemwi Christine Masuta), and their documents would be kept safely. The plaintiffs alleged that in breach of contract, the minors were not taken care of nor provided assistance, and instead a stranger who was a passenger was asked to assist the children. As a result, they claimed the minors suffered psychological trauma, pain and suffering. They claimed $75,000 damages for the first and second plaintiffs and $100,000 for the third and fourth plaintiffs. The defendant excepted to the summons on grounds that the claim should be premised on the Warsaw Convention for international air carriage, not breach of contract, and that the Convention only covers death, wounding or bodily injury, which had not been pleaded.

• Whether the Warsaw Convention provides the exclusive remedy for claims arising from international carriage by air
• Whether a claim founded on breach of contract can be sustained in relation to international air carriage
• Whether psychological trauma without physical injury is recoverable under Article 17 of the Warsaw Convention
• Whether the expression 'bodily injury' in Article 17 includes purely psychological injury

The exception was upheld. The plaintiffs' claim was dismissed with costs on an attorney-client scale.

Where international carriage by air is governed by the Warsaw Convention as ratified by the Carriage by Air Act, the Convention provides the sole and exclusive remedy for claims arising from such carriage, and claims based on breach of contract or delict cannot be sustained. Article 17 of the Warsaw Convention limits liability to death, wounding or bodily injury of passengers, and 'bodily injury' does not encompass purely psychological injury or mental trauma that lacks a physical cause or physical manifestation. Claims for purely psychological injury fall outside the purview of the Warsaw Convention and are not recoverable.

The court observed that the Warsaw Convention was designed to protect carriers from opportunistic claims. The court noted that counsel for the plaintiffs had conceded on the day of hearing that the matter fell within the ambit of the Warsaw Convention, yet the plaintiffs persisted with a claim falling outside the Convention, justifying an award of costs on a higher (attorney-client) scale. The court also noted that the plaintiffs had argued that Article 17 is an archaic piece of legislation not justifiable in a dynamic and democratic legal system, but this argument was implicitly rejected in favour of upholding the international uniformity achieved by the Convention.

This case is significant in Zimbabwean aviation law as it affirms that the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air provides the exclusive remedy for claims arising from international air carriage, precluding resort to common law remedies based on contract or delict. It establishes that purely psychological injury without physical manifestation is not recoverable under Article 17 of the Convention. The judgment reinforces the principle that international conventions ratified into domestic law achieve supremacy in their field of application to ensure uniform international application, and that carriers are protected from claims falling outside the Convention's scope.