UK & Europe
CJEU rules that psychological injuries are recoverable under the Montreal Convention 1999 for an ‘accident’. Is a tsunami coming?
On Thursday 20 October 2022, the Court of Justice of the European Union (“CJEU”) passed Judgment in the case of BT v Laudamotion GmbH (C-111/21) on the question of whether the term ‘bodily injury’ in Article 17.1 of the Montreal Convention 1999 includes psychological injuries. In other words, can passengers recover damages for psychological injuries in the absence of a bodily injury? The Court said yes, contradicting decades of internationally recognised case law on the topic.
The underlying facts of the case are as follows: BT (as Claimant) embarked on a flight operated by Laudamotion between London and Vienna; following a take-off, the left engine of the aircraft exploded and an emergency evacuation of passengers was required. The Claimant was diagnosed with post-traumatic stress disorder allegedly caused as a result of the emergency evacuation incident. The Austrian Supreme Court referred the question on whether psychological injuries are recoverable to the CJEU.
The CJEU’s Judgment outlined the need for the concept of ‘bodily injury’ under the Convention to be given “a uniform and autonomous interpretation” with the need to interpret the term in “good faith” and in accordance with its “ordinary meaning”, and yet it failed to give any detailed analysis of the concept, made no reference to any case law other than its own, and treated the concept of ‘bodily injury’ as though entirely new.
In short, the Court concluded that psychological injuries must be compensated in the same way as bodily injuries. But this is an impossible task due to the very nature of psychological disorders.
It sought to justify its decision by referencing the effect a psychological injury can have on an individual, being often comparable in severity to a physical injury. There was no attempt in its reasoning to explain how the concept of ‘bodily injury’ might feasibly extend to diseases or disorders of the brain, in reference to the “ordinary meaning” of the word. Indeed, an argument along those lines might have been mildly convincing; with the development of science, it may be possible to demonstrate via brain imaging some physical or chemical change in the structure of the brain.
The Court instead made a rather non-sensical argument by stating that the drafters of the Convention didn’t necessarily intend to exclude psychological injury, in limiting the wording to ‘bodily injury’, whilst also acknowledging that the drafters did reject every proposal aimed at including the concept of psychological injury into the Convention.
The Court, perhaps unsurprisingly, focused its ‘reasoning’ on the objectives of the Convention and specifically to the need to protect consumers and provide for “equitable” compensation.
However, rather than ensuring the “equitable balance of interests” between passenger and air carrier, the effect of the decision has in fact tipped the balance markedly in the consumer’s favour, and to a worrying degree when combined with the CJEU’s recent decision of Niki Luftfahrt and it’s definition of ‘accident’, which removes the externality criterion.
The Court seems to attempt to place certain restrictions or conditions on the recoverability of psychological injuries by stating that a claimant must demonstrate with “medical evidence” or proof of medical treatment, the existence of an “adverse effect on his or her psychological integrity” of such “gravity and intensity” that it affects his or her “general state of health” and “cannot be resolved without medical treatment”. It adds that this is particularly in view of “psychosomatic effects” that might be experienced. There are several issues with these apparent conditions which lead to more questions than answers:
The CJEU almost mocks air carriers when it says that its decision enables carriers to “protect themselves against fraudulent claims” by adding these ‘restrictions’. There is certainly the potential for this decision to open the floodgates to a tsunami of claims for pure psychological injury following an ‘accident’.
Claims of this type are incredibly difficult to verify and there is unfortunately a very real risk of a rise in fraudulent claims with claims management companies across Europe seeing an opportunity for a quick payment where, for example, an entire aircraft full of passengers are involved in an incident which might cause alarm or distress to passengers, such as a heavy landing or aborted take-off.
The CJEU has once again sought to make its decision in isolation with no reference to international case law on the question of ‘bodily injury’ showing, at best, its sheer incompetence and at worst, its disregard for the uniformity of the Convention and the other signatory states, in particular the hundred plus who are not EU member states.
The decision is not binding on the courts of England and Wales since the UK’s exit from the EU. However, there is an arguable case that the courts have yet to rule on the meaning of ‘bodily injury’ under the Montreal Convention 1999, the leading decision being Morris v KLM/King v Bristow which was decided under its predecessor, the Warsaw Convention 1929. It is hoped that if a challenge is brought to this well-established precedent before the English courts, they will, unlike the CJEU, be able to provide a well-reasoned opinion that doesn’t blindly serve the consumer and provides an adequate balancing of interests.
Further, we can be under no illusion that this decision will impact upon claimant behaviour with the potential for forum shopping where the routing provides for jurisdiction in an EU Member State.
If a tsunami of psychological injury claims does flood the aviation market, the ultimate impact will be to the consumer, with the cost associated with an increase in such claims being passed on via air fares.