Recognition of psychological injury in air travel under the Montreal Convention

The definition of ‘bodily injury’ has seemingly been expanded by a preliminary ruling of the Court of Justice of the European Union (CJEU) in BT v Laudamotion, Case C-111/21. This case was brought through the Austrian Court by a passenger, BT, against the airline Laudamotion GmbH.

In this case BT suffered psychological injury when the aircraft had to be evacuated following an engine failure. As BT was exiting the aircraft, a second engine exploded, throwing the passenger several metres into the air. The passenger sustained psychological injury and was diagnosed with post-traumatic stress disorder and brought a claim against the airline under Article 17 of the Montreal Convention.

Under Article 17(1) of the Montreal Convention, a carrier is liable for damage sustained in cases of death or bodily injury of a passenger on condition that the accident which caused the death or injury happened on board the aircraft or in the course of any of the operations of embarking or disembarking. 

The CJEU was asked to determine two issues:

The question to the Court regarding Article 29 of the Convention was not answered, as BT was successful on the first issue.

Admittedly it would have been interesting, albeit unlikely, if the CJEU departed from the  principle of exclusivity of the Convention. It is well-established that where an incident satisfies the definition of an “accident” under Convention, they are unable to sue a party other than the carrier and it will likely be some time before we see this point challenged in a senior Court. 

For now we will focus on the significant impact this ruling has had on the interpretation of ‘bodily injury’ which is already a notable departure from established case law.

Whether Article 17(1) extends to psychiatric/psychological injury has long been a point of discussion in litigation.

For several decades it has been accepted that solely psychological injury cannot be compensated under the Convention unless such injury is as a result of physical damage to brain structure or the nervous system, or alternatively where a psychological injury has resulted in a physical injury (Morris v KLM Royal Dutch Airlines; King v Bristow Helicopters Ltd [2002] UKHL 7).

Many signatory states of the Convention have sought to test the scope of recovering damages for psychological injury. However it is the fact that the most senior Court in the European Union has made this ruling which makes this decision feel like we are at a turning point on what was once believed to be a well understood principle in the application of the Convention.

This case began in the Austrian Court before it found itself before the CJEU. We must acknowledge that now that we have left the European Union, the decisions of the CJEU are no longer binding on the Court of England and Wales. However, we cannot say that we won’t continue to look to the EU for guidance on such issues. I do not doubt that the impact of this decision will be felt by litigators in our jurisdiction, and it opens discussion for how this will be followed by other signatory states.

The intention of international conventions is to provide a unified legal framework to benefit us all at an international level. The Montreal Convention’s purpose is to recognise the importance of protecting the interest of consumers globally in carriage by air, and its core principle is to develop international air transport operations and flow of passengers in an orderly manner.

A scenario where jurisdictions are so far apart on the definition of what constitutes ‘bodily injury’ under the same legal instrument is less than desirable. At this juncture it appears we have a choice – to adopt a unified approach and interpret this ruling as the first step in expanding how the Convention should recognise psychological injury, or, expect that this decision is an anomaly soon to be challenged and quashed before progress has even begun.  

The rationale as to why a solely psychological injury shouldn’t be compensated under the Montreal Convention can, in some respects, be appreciated. The nature and severity of psychological conditions are particularly subjective, and it follows that traumatic events can manifest in psychological injury of varying severity from individual to individual. This, paired with the fact that air travel can trigger varying degrees of psychological reaction from passenger to passenger, may explain why there has been a reluctance to recognise psychological injury as something that should be compensated under a strict liability regime such as the Montreal Convention.

On the other hand, the current case law surrounding the definition of ‘bodily injury’ doesn’t exactly provide for much consistency or logic. An example is the case of Doe v Etihad Airways, where a passenger on board a flight placed her hand into a seat pocket and her finger was pricked by a hypodermic needle. This accident resulted in a psychological injury of mental anguish, and the United States Court of Appeals (Sixth Circuit) ruled that as the psychological injury was paired with a physical injury (i.e. the pricked finger), then Ms Doe could in fact be compensated for the psychological injury suffered.

In this case the Court was content that they had interpreted Article 17(1) of the Montreal Convention correctly when making this decision, and confirmed that there is no requirement for the physical and psychological injury to be causally linked.

This isn’t an approach that is adopted in our jurisdiction, but we can see that if there is no requirement for a causal link, how inconsistent and unfair conclusions can arise. In a scenario where two passengers are involved in a traumatic ‘accident’, let’s say an engine failure resulting in a particularly bumpy landing, and where one passenger develops significant psychiatric injury, and another develops a mild psychological reaction and a paper cut, is it right that only the latter should have a right to damages under the Convention? 

Any lawyer who undertakes travel work will be able to recall an occasion where they have acted for an individual who has suffered a traumatic experience during air travel, and as a result has suffered a psychological injury. There is a moment where it must be explained that, where we can seek to recover damages for their physical injury, the psychological element to this event will be disregarded by the Court. In a vulnerable time where a Claimant is suffering from a psychological effect, this position feels simply unjust.

In reality, by continuing to limit the definition of ‘bodily injury’ we are only inviting discrepancy across the jurisdictions of the signatory states as to the interpretation of a Convention which, at its core, is for the purpose of unifying a legal framework. The decision in Laudamotion may well be the push we needed to leave this obsolete approach behind and welcome a wider interpretation of what constitutes a ‘bodily injury’ in the English Court.