Pure Nervous Shock: psychological injury is recoverable in Europe under Montreal Convention Article 17

On 20 October, the CJEU agreed with that opinion.

The Court’s broadened approach to the definition of ‘bodily injury’ certainly diverges from many years of judicial opinion on the subject, with prior case law holding that mental injury was only permissible to the extent it was linked to a physical injury. Given this departure from the norm, it will be interesting to see whether the English, or other non-European, courts adopt a similarly expanded approach.

Background

In BT v Laudamotion GmbH (Case C-111/21), the CJEU considered whether a claim for compensation relating to post-traumatic stress disorder resulting from an aircraft emergency evacuation could be considered ‘bodily injury’, for the purposes of Article 17 of the Montreal Convention.

The claim was originally brought in Austria and arose when, upon emergency evacuation of the aircraft on landing, a passenger (BT) was thrown several metres into the air by the jet blast from an engine. BT has since been diagnosed with PTSD and receives treatment for this.

BT brought a claim against Laudamotion under Article 17 and in application of the Convention, the Austrian courts referred the question of whether ‘mental injury’ constituted ‘bodily injury’ within the meaning of the Convention, to the CJEU. 

The AG’s recommendation to the CJEU in June was that the concept of ‘bodily injury’ should be reinterpreted. The AG advocated for recovery in respect of mental injury, irrespective of physical injury, provided that this was supported by a medical expert’s report and required medical treatment.

Court’s decision

The CJEU noted that neither the Montreal Convention nor Regulation No 2027/97 define the concept of ‘bodily injury’. Nonetheless, the Court reiterated that it must only take account of the rules and interpretations of general international law, rather than how those phrases are understood under Member States’ domestic law. Therefore, “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 light of its object and purpose” as per Article 31 of the Vienna Convention 1969.

Moving onto Article 17, the Court acknowledged that interpreting the ordinary meaning of ‘bodily injury’ to exclude psychological injury without a link to physical injury risked blurring the distinction between the bodily and the psychological. Nonetheless, the Court proceeded to say that it could not necessarily presuppose that the authors of the Convention intended to exclude air carrier liability in the event of an accident which had caused psychological injury, that was not linked to any bodily injury causing the same.

Whilst historic preparatory work for the Convention saw unsuccessful attempts expressly to include the concept of mental injury, it also made clear that the concept of bodily injury was adopted on the basis that “damages for psychological injury can be recovered under certain conditions, that case law develops in this area, and that it is not envisaged that there will be interferences with that development”.

Therefore, and in accordance with the objective of “protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution”, the Court concluded that Article 17 must allow compensation for psychological injury caused by an accident which is not linked to any bodily injury.

Balance of Interests

The CJEU’s judgment is emphatic: “a psychological injury caused to a passenger by an ‘accident’, … which is not linked to ‘bodily injury’, … must be compensated in the same way as such a bodily injury …” (emphasis added). However the CJEU considered the practical implications of including compensation for pure psychological harm within the meaning of ‘bodily injury’ and noted “the need to preserve an ‘equitable balance of interests’ of air carriers and of passengers”.

The liability of the air carrier would therefore only be incurred if the passenger demonstrates:

1. An adverse effect on their psychological integrity, of such gravity that it affects their general state of health; and
2. That it cannot be resolved without medical treatment.

The CJEU judgment did not endorse the AG’s recommendation explicitly mandating a medical expert report in support of the above. In practice, we would anticipate most courts requiring some form of medical report in order to satisfy either if not both limbs of the CJEU’s test.

Comment

The judgment is likely to have significant impact across the EU in opening the door for suitably evidenced claims for purely psychological injury arising from an air accident.  However, it remains to be seen how the English and other non-European courts will deal with such cases in the future.

The fact that UK courts are no longer bound by CJEU judgments post-Brexit is not, however, the only consideration when gauging the likelihood that it will be followed in this jurisdiction. Given that the EU is a party to the Montreal Convention, UK and other courts would have to consider how far general principles of interpretation of conventions, and paying heed to overseas courts’ decisions, come into play. In this context, the UK position was well expressed by Lord Hope in Morris -v- KLM:

“ … case law provides a further potential source of evidence. Careful consideration needs to be given to the reasoning of courts of other jurisdictions which have been called upon to deal with the point at issue, particularly those which are of high standing. Considerable weight should be given to an interpretation which has received general acceptance in other jurisdictions. On the other hand a discriminating approach is required if the decisions conflict, or if there is no clear agreement between them.” (emphasis added)

Lord Hope took a similar approach in Abnett -v- British Airways. While there are some exceptions in the international caselaw, the CJEU decision is not one which has received general acceptance in other jurisdictions. Moreover, the UK Supreme Court has recently opined that:

“Similarly, the mere fact that a particular reading may be seen as a desirable development of the law is not of itself a valid reason for adopting it. It is not for national courts engaged in interpreting a treaty to seek to force the pace of the development of international law, however tempting that may be.”

It is of course relevant that the leading UK cases on this issue are decided on the Warsaw Convention - indeed this is true of many of the decisions in other jurisdictions. This decision may therefore encourage litigants to revisit the issue under the Montreal Convention.  Pending further decisions from the courts, airlines and their insurers may anticipate many more claims of this nature.