Pure Nervous Shock: Recoverable in Europe under Montreal Convention Article 17?
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In a recent Opinion for the European Court of Justice (ECJ), Advocate General De La Tour has recommended that the concept of ‘bodily injury’ under Article 17 of the Montreal Convention 1999 should be reinterpreted[1]. Established case law has to date held that recovery for mental injury is only permissible where it is linked to an accompanying physical injury. The Opinion advocates recovery in respect of a purely mental/psychological injury suffered as a result of an accident (irrespective of any physical injury) provided that this is supported by a medical expert report and requires medical treatment. Given this change, it will be interesting to see the approach the ECJ will adopt when deciding this case.
Background
The case arose following a claim in the Austrian courts between a passenger and the airline Laudamotion GmbH. The aircraft was evacuated on landing after an airborne engine failure. The passenger used the emergency exit and was thrown several metres into the air by the engine. The passenger has since suffered from, among others, sleep and concentration disorders and mood swings, and was diagnosed with post-traumatic stress disorder (PTSD) for which she is medically monitored.
The passenger bought a claim against Laudamotion under Article 17 of the Montreal Convention, which provides that ‘[t]he carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.
The Austrian Supreme Court had doubts as to whether the concept of ‘bodily injury’ under Article 17 covers purely mental disorders and referred the following question to the ECJ for a preliminary ruling:
‘Does a passenger’s mental disorder, caused by an accident and reaching a pathological level, constitute a “bodily injury” within the meaning of Article 17(1) of the [Montreal Convention]?’[2]
Reasoning behind the Advocate General’s Interpretation of ‘Bodily Injury’
The Advocate General acknowledged that, despite earlier drafts which specifically mentioned mental injury, the final text of Article 17 does not. Despite this, he relies on statements made during the Montreal Conference in May 1999 to evidence that the omission of mental injury from the text of the Convention was not intended to hinder the continued development of case law in this area, which should develop in line with the requirements of contemporary society.
His reasoning places significant weight on the modern approach to mental health, indeed going as far as saying it is ‘essential’ that bodily injury is interpreted to include mental/psychological injury which can be just as ‘real and devastating’ as physical injury. Any alternative interpretation would be seen as being an ‘outdated and unsustainable dichotomy’.
Further, he concluded that such an interpretation (that is, allowing an air passenger to obtain compensation for purely mental injuries in the same way as for bodily injury) would remain compatible with the aims and objectives of the Montreal Convention, which includes the protection of consumers and fair compensation by means of a system of strict liability while still preserving a fair balance of interests.
Comparisons with Existing Case Law
As mentioned above, the case law to date in this area has required a clearly-evidenced physical injury in order for a passenger to succeed with a claim under Article 17, either caused by the accident itself or arising from a psychological trauma caused by the accident. The Opinion did not discuss case law in any detail: there were references to a number of ECJ decisions, but no consideration of their reasoning, and no reference to, for instance, the line of US authorities following Eastern Airlines Inc v Floyd (1991) 499 U.S. 530[3].
These US cases found that physical manifestations of PTSD (such as weight loss, anorexia, nausea, cramps, headaches, and panic attacks) were not bodily injury (or were purely psychic injury) and recovery was therefore denied.
One of the leading UK cases is King v Bristow Helicopters Ltd [2002] UKHL 7 in which the House of Lords considered whether a mental injury with no accompanying physical injury could fall within the scope of Article 17. The House of Lords found that a psychiatric condition developed by a passenger as a result of an air accident did not fall within the definition of ‘bodily injury’ but if the passenger could demonstrate a physical symptom (for example, a peptic ulcer or physical changes to the brain’s structure, as in these cases), then Article 17 would have been satisfied.
Conclusion
The Advocate General’s Opinion does seem to recognise that some of the leading cases in this area were decided 20 – 30 years ago and indeed part of his rationale focuses on the importance of mental health in modern society. The Opinion is not binding on the ECJ but the Court does generally follow such Opinions so it will be worth keeping an eye out for that judgment once handed down.
One of the key concerns at the time of drafting Article 17 was the wish to prevent fraudulent compensation claims for mental injury, which was felt to be vague and difficult to prove. The Opinion attempts to dispel these concerns given two important caveats which must be proven by a passenger: (a) the mental injury must be established by a medical expert report; and (b) it must require medical treatment. The burden of proof is on the passenger and this, it is said, should guard against any fraudulent claims. Nevertheless, airlines and their insurers will be aware that this would be a further consumer-friendly development. Historically, courts deciding Montreal Convention cases have frequently followed a similar approach on issues of this nature, and it could result in re-litigation of this issue in other countries. We will report further in due course.
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[1] Advocate General: Opinion, Case C-111/21 (BT v Laudamotion GmbH) (24 March 2022)
[2] The referral included a second question as to liability under Austrian law which was not covered in the Opinion and is therefore not relevant for the purposes of this
[3] See for example Terrafranca v Virgin Atlantic Airways Ltd 151 F 3d 108 (3rd Cir 1998), Carey v United Airlines 255 F 3d 1044 (9th Cir, 2001) and Hermano v United Airlines 27 Avi 17,524 (ND Cal, 1999)
