Airlines face increased liability as courts recognise claims for psychological injuries

Air carrier liability for passenger injury or death in the UK and EU is governed by the Montreal Convention on International Carriage by Air 1999, which applies to international carriage of passengers by air and provides an exclusive liability regime in the event of death or injury. Along with its predecessor, the Warsaw Convention (to which some jurisdictions are still signatories), it provides for strict liability in certain circumstances for ‘bodily injury’ up to a financial limit.

The Montreal Convention has effect in English law by virtue of a statutory instrument; in the EU, provisions of the convention relating to air carrier liability were incorporated into Council Regulation (EC) No 2027/97, as amended by Regulation (EC) No 889/2002.

The liability of the carrier and extent of compensation for damage is found in Article 17, which states “the 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 disembark.”

Article 17 does not require negligence by the carrier to be alleged or proven. However, there is no entitlement to a remedy if the conditions of Article 17 are not satisfied.

The definition of bodily injury’ and whether it includes psychiatric injury have been the subject of much debate.

The Montreal Convention and distinctions between physical and mental injury

During the drafting of the Montreal Convention in 1999, consideration was given to changing ’bodily injury’ to ‘personal injury,’ which would include mental injury, but concerns were raised at there being ‘no standard measurement to assess damages for mental injuries.’

Although a proposal followed to add the words ‘or mental’ to Article 17, this suggestion faced widespread criticism. When the final draft convention was presented, the chairman had effectively left the question of whether bodily injury included psychological/psychiatric injury to the courts.

In England and Wales, two cases heard together in the House of Lords set out the starting position: in Morris v KLM Royal Dutch Airlines and King v Bristow Helicopters Ltd [2002] the court determined that a purely psychiatric injury would only be recoverable within the meaning of ‘bodily injury’ if that injury had been caused by physical damage to the body (including damage to the brain or nervous system).

The House of Lords held that the definition did not extend to shock, anxiety, fear, grief and other emotional disturbances unless shown by an expert to have caused an adverse physical symptom (in these cases, a stroke or a peptic ulcer) or that the psychiatric condition was the expression of physical changes to the structure of the brain caused by the accident.

The US courts were aligned with this approach. In Ehrlich vs. American Airlines [2004], the court determined that “mental injuries that are not caused by bodily injuries are not ‘damage sustained in the event of bodily injury’ [for the purposes of Article 17].”

However, change came about in 2017 in the case of Doe v Etihad Airways, which arose from a passenger on a flight from Abu Dhabi to Chicago who pricked her finger on a hypodermic needle hidden in a seatback pocket in front of her.

The US Court of Appeals for the Sixth Circuit found Etihad Airways liable for damages for mental distress because the damage resulted from an accident that caused physical injury. It determined that Article 17 of the Montreal Convention “allows Doe to recover all her ‘damage sustained’ from the incident, which includes damages for both physical injury and accompanying emotional or mental harm.”

This flagged a departure from the position on recoverability for psychiatric injury under the Montreal Convention, allowing such injury to be recoverable whether caused by a physical injury or by the accident that caused the physical injury.

However, this was later considered an anomaly as Ehrlich was followed soon after in Casey vs. Pel-Air Aviation Pty Ltd, an Australian case in which the passenger sustained both post-traumatic stress disorder (PTSD) caused by the incident and a major depressive disorder caused by her significant physical injuries. The court found that the passenger was only entitled to compensation for her depressive disorder and not her PTSD.

BT v Laudamotion

In the judgment given in 2022 in BT v Laudamotion GmbH Case C-111/21, the Court of Justice of the European Union (CJEU) broadened the meaning of ‘bodily injury’ under Article 17 of the Montreal Convention, finding that purely psychological or psychiatric injuries fall within the meaning of ‘bodily injury.’ This departure from other case law decided before it, particularly American jurisprudence, allows passengers to recover in cases of pure psychiatric injury.

The claimant (BT) had embarked on a flight operated by Laudamotion. During take-off, the aircraft's left engine exploded and BT was hurled through the air by a jet blast from the right engine, which had not shut down. BT was diagnosed with post-traumatic stress disorder that resulted in medical treatment, and alleged this was due to the emergency evacuation.

In preliminary observations, the court noted that the term ‘bodily injury’ was not defined in the convention. The attorney general, Richard de la Tour, suggested there was an obligation on the CJEU to interpret the meaning of ‘bodily injury’ in accordance with Article 31 of the Vienna Convention which states that the interpretation must be in ‘good faith’ and in accordance with ‘the ordinary meaning… in light of its object and purpose.’

Overall, the attorney general was of the opinion that under Article 17(1) of the Montreal Convention, the concept of ‘bodily injury’ should cover ‘injury to his or her psychological integrity that is sustained as a result of an accident, where that injury is established by a medical report and requires medical treatment.’

Although previous cases such as King have demonstrated the court’s acceptance of psychological injury caused by physical injury, the BT decision provides an extension beyond King to include psychological injuries that do not have a relationship to any physical injury suffered by the passenger.

The CJEU established that, to prove liability on the part of the air carrier, the aggrieved passenger must satisfy the following legal test by demonstrating to the requisite standard:

• Existence of an adverse effect on his or her psychological integrity suffered because of an ‘accident’, within the meaning of that provision, of such gravity or intensity such that it affects his or her general state of health, and
• that it cannot be resolved without medical treatment.

The CJEU’s judgment makes specific reference to ‘purely psychological injury’ as opposed to ‘psychological injury.’ A ‘purely psychological injury’ is considered to be an injury of ‘clinical significance’ that is psychological and has no relationship with a physical injury.

Following Brexit, the UK courts are no longer bound to follow the CJEU’s rulings and commentators consider that there is no reason to think the UK will also adopt this approach. However, the CJEU’s ruling remains of persuasive weight.

The future of bodily and psychological injuries in European aviation claims

In many instances, courts worldwide have expressed unease at the potential injustice caused by the exclusion of claims for pure psychological or psychiatric harm under the Montreal Convention.

Morris suggested that should psychological/psychiatric harm be found to result from structural, physical changes to the brain (ie bodily injury), then recovery would be permitted. Subsequently, Doe suggested that ‘bodily injury’ is simply a trigger for liability, and should a passenger sustain some kind of physical harm, damages for psychological/psychiatric harm are a matter for the forum deciding the claim and can be recovered.

The decision in BT v Laudamotion falls some way short of these judicial analyses and appears to have been reached in a vacuum and without reference to any other court’s approach to the issue.

Since BT v Laudamotion, the CJEU has handed down judgment, on 6 July 2023, in DB v Austrian Airlines AG (Case C-510/21), again determining a Montreal claim in favour of the passenger and against the flow of some of the ‘rest of the world’ authorities.

DB v Austrian Airlines AG applied the judgment of BT v Laudamotion but not in the context of pure psychological injury. BT was merely applied in relation to the court’s application of the Vienna Convention in interpreting the term ‘bodily injury.’

In an effort to ‘preserve an equitable balance of interests between air carriers and… passengers’ in BT v Laudamotion, the CJEU has potentially opened the floodgates for cases of ‘pure psychological injuries’ resulting from an air accident.

Whether the decision reflects the intention of the convention’s drafters or simply changes in judicial, societal and consumer opinion, it has undoubtedly broadened the definition of “bodily injury” to the benefit of passengers.

Previously, it would have been difficult for a claimant to pursue an action for psychological or psychiatric injury under the Montreal Convention, airlines and their insurers will now likely anticipate many more claims of this nature.

The CJEU generally does not have regard to the decisions of other jurisdictions, but signatories to the convention ought to interpret it harmoniously with one another and will have to consider how far general principles of interpretation should be followed.

It will be interesting to see whether the English or other non-European courts adopt a similarly expanded approach. Whether this judgment was simply another anomaly remains to be seen.