The Unparalleled Series – BT v. Laudamotion GmbH – Extending the definition of “Bodily Injury” under the Montreal Convention

Author: Ann Bugeja

On the 20^th October 2022, the CJEU issued a preliminary ruling with respect to the interpretation of Articles 17(1) and 29 of the Montreal Convention (the “Convention”) following a request made by the Supreme Court of Austria (more commonly known as the “Oberster Gerichtshof”) in BT v. Laudamotion GmbH, whereby the plaintiff brought a claim for compensation against the defendant air carrier as a result of post-traumatic stress disorder (“PTSD”) caused by an emergency evacuation of the aircraft on which she was boarded.

Applicable Law

Prior to assessing the facts of the case at hand, one should primarily analyse the different laws which may be applicable to such a scenario.

In terms of Article 2(2) of EC Regulation 2027/97 regulating air carrier liability in respect of the carriage of passengers and their baggage by air, any concepts contained in the same which are not defined, shall be equivalent to the definitions used within the Convention. Furthermore, Article 3(1) of the Regulation stipulates that the liability of an EU carrier in respect of passengers and their baggage shall be governed by all provisions of the Convention relevant to such liability.

Upon an examination of the relevant provisions within the Convention, Article 17(1) of Chapter III[1] of the Convention states the following:

“The carrier is liable for damage sustained in case of death or bodily injury [emphasis added] 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.”

Facts of the Case

On 1^st March 2019, BT boarded a flight operated by the defendant Laudamotion from London to Vienna. Following an engine explosion just before take-off, the aircraft was evacuated as per the policies and procedures in place. However, upon disembarking the aircraft via the emergency exit, the plaintiff was hurled several metres through the air by the right engine blast which had not yet been shut down. As a consequence of such, the BT has since suffered from, inter alia, sleep and concentration disorders, mood swings, and was ultimately diagnosed with PTSD for which she is medically monitored.

Case before the German Courts

The passenger brought an action before the District Court in Schwechat, Austria (more commonly known as the “Bezirksgericht Schwechat”) against the air carrier arguing it was liable under Article 17(1) of the Convention and for payment of circa €7,000 in relation to treatment costs and pain and suffering. Moreover, BT argued that Laudamotion, in any case, was also liable under Austrian law. The air carrier’s rebuttals for both arguments were based on Article 17(1) only covering bodily injuries and not purely psychological impairments, as well as on Article 29 which precluded national law from applying to such situations, respectively. Whilst the District Court agreed with the strict application of Article 17(1), it held that Austrian law was to apply (which indeed provides for compensation for purely psychological damage where it has clinical significance). On appeal, however, the Regional Court of Korneuburg, Austria (more commonly known as the “Landesgericht Korneuburg”), rubbished any assertions indicating that national law might apply, thereby agreeing in toto with Laudamotion’s submissions at the District court.

Submissions made to the CJEU

Appalled at the Regional Court’s decision, BT appealed once more, on a point of law, before the Supreme Court of Austria, who sought clarification from the CJEU on two points, the most imperative being:

“Does the psychological impairment of a passenger, which is caused by an accident and has clinical significance, constitute a “bodily injury” within the meaning of Article 17(1) of the [Montreal Convention]?”

CJEU’s appraisal and decision

In its assessment of the above question, the CJEU noted that neither the Convention nor the Regulation indeed define “bodily injury”, thereby evidently prompting the need for a uniform and autonomous interpretation of such.

In terms of Article 31 of the Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. The Advocate General, in Point 25 of his Opinion, pointed out as regards the ordinary meaning of the concept of “bodily injury”, the term “injury” refers to an impairment of an organ, tissue or cell due to an illness or accident, whereas the term “bodily” refers to the physical part of a living entity, namely the human body. Whilst it is clear, from the ordinary meaning of the concept of “bodily injury”, that such definition would not exclude psychological injury linked to such bodily injury, the same would not apply, as in this case, where the psychological injury would have no link to bodily injury. The Court further noted however, that the need for fair compensation, which also requires equal treatment for passengers who have suffered injuries, whether bodily or psychological, of the same severity as a result of the same accident, would be called into question if Article 17(1) of the Convention were to be interpreted as precluding compensation for psychological injuries caused by such an accident, where they are not linked to any bodily injury.

Notwithstanding, the CJEU also made reference to Recitals 5 and 6 of the Convention whereby upon issuing a ruling, the need for equitable compensation must be reconciled with the necessity to preserve an equitable balance of interests of both the passengers and the air carriers.

Consequently, the CJEU ruled that for such a balance to be preserved, Article 17(1) of the Convention must be interpreted as meaning that a psychological injury caused to a passenger by an ‘accident’, within the meaning of that provision, which is not linked to ‘bodily injury’, within the meaning of that provision, must be compensated in the same way as such a bodily injury, provided that the aggrieved passenger demonstrates the existence of an adverse effect on his or her psychological integrity of such gravity or intensity that it affects his or her general state of health and that it cannot be resolved without medical treatment.

Lastly, the CJEU deemed it unnecessary to answer the second question, by which the referring court asked whether Article 29 of the Montreal Convention precludes a claim for compensation which would exist under the applicable national law, in light of its ruling on the first.

Concluding Remarks

It is pertinent to note that the CJEU, in delivering its ruling, cited Recitals 2 and 3 of the Convention, which call for the need to modernize and consolidate the old Warsaw Convention as well as to ensure that the protection of the interests of consumers in international carriage by air and the need for equitable compensation based on restitution, is properly accounted for. Whilst some may think that this decision derides air carriers more than it protects them against potential fraudulent claims, others share the Advocate General De La Tour’s sentiment that the CJEU’s modern approach on mental health is most certainly welcome, especially in this day and age. Notwithstanding the differing opinions on the matter, most seem to be in unison on the fact that a plethora of psychological injury claims will soon come the industry’s way, where the rising air fares might mean that the consumer, as always, will get the short end of the stick.

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[1] Chapter III: “Liability of the Carrier and Extent of Compensation for Damage” / Article 17: “Death and Injury of Passengers — Damage to Baggage”