Do psychological injuries now fall within the meaning of Article 17(1) of the Montreal Convention?

Posted: 16/03/2023

Historically, an airline has not been liable for a psychological/psychiatric injury sustained by passengers. The courts have previously adopted a strict interpretation of the meaning of ‘bodily injury’ under the Montreal Convention.

However, following the case of BT v Laudamotion GmbH (Case C-111/21), the Court of Justice of the European Union (CJEU) has now confirmed that psychological/psychiatric injuries can fall within the meaning of Article 17(1).

The brief synopsis of this case is as follows. The claimant was on a flight from London to Vienna. At some point during take-off, one of the aircraft’s engines exploded. This resulted in an emergency evacuation of the aircraft through the emergency exits. As the claimant exited the aircraft, she got caught in the air blast from the one remaining engine which had not been shut down, throwing her through the air. 

As a result of this incident, the claimant was diagnosed with post-traumatic stress disorder (PTSD), which required medical treatment. The claimant brought an action against the airline in the Austrian courts, on the basis that the airline was liable under Article 17(1) of the Montreal Convention, or under Austrian law.

The airline defended the claim on the basis that Article 17(1) only covered bodily injuries, and not psychological injuries, and that the convention precluded a claim under Austrian law. The claimant succeeded in her claim under Austrian law. However, the Austrian court did note that it did not consider her claim to fall within Article 17(1), due to the interpretation of bodily injuries.

The airline appealed the decision and was successful in setting aside the first instance judgment. The regional court held that Article 17(1) of the convention did not apply in the case of non-bodily injuries, and that Article 29 of the same convention excluded the application of Austrian law.

The claimant appealed to the Supreme Court, who referred the following questions to the CJEU for a preliminary ruling:

1. Did the psychological impairment of a passenger, which was caused by an accident and had clinical significance, constitute a ‘bodily injury’ within the meaning of Article 17(1) of the Montreal Convention?
2. If the answer to the above was negative, did Article 29 of that same convention stop the claimant claiming compensation under the applicable Austrian law?

The CJEU noted that ‘bodily injury’ was not defined in the Montreal Convention, nor in Regulation (EC) No 2027/97, and referred to Article 31 of the Vienna Convention on the Law of Treaties, which states that a treaty must be interpreted in good faith and in accordance with the ordinary meaning.

The CJEU held that whilst the term ‘injury’ referred to an injury to an organ, tissue, or cell, due to an illness or accident, the fact that ‘bodily injury’ was used in Article 17(1) did not mean that the convention intended to exclude the liability of airlines where psychological injury occurred that was not linked to bodily injury. 

It considered that for fair compensation and equal treatment for passengers who had suffered injuries, bodily or psychological, consequent to the same accident, Article 17(1) should not exclude compensation for psychological injuries where they are not linked to a bodily injury.

However, any such psychological injury should be subject to proof in the normal way ie a medical report and proof of treatment.

It should be clear that this has not been adopted by the courts of England and Wales and it remains to be seen if a more unified approach to this issue is taken in due course, in order to avoid inconsistencies in the interpretation dependent on the jurisdiction in which a claim is brought.

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