Psychological injury and the Montreal Convention – A step too far?

Articles, News

16/11/2022

Jack Harding examines another decision by the Court of Justice of the European Union expanding the reach of the Montreal Convention, hot on the heels of his previous briefing on the meaning of ‘accident’ within the meaning of the Convention.

1. BT v Laudamotion (C111/21) concerned a flight from London to Vienna. The left engine of the aircraft exploded during take-off. Passengers were required to disembark via the emergency exit. During disembarkation the unfortunate Claimant was hurled several metres through the air when the right engine also exploded. She did not receive any physical injury but was subsequently diagnosed with Post-Traumatic Stress Disorder. She sought damages from the airline under Article 17 of the Montreal Convention. The Defendant denied the claim on the basis that ‘bodily injury’ under article 17 does not encompass pure psychiatric or psychological injury.

2. The Third Chamber of the Court of Justice of the European Union (CJEU), in a short judgment which belies its importance in this field of the law,  concluded that:

“a psychological injury caused to a passenger by an ‘accident’, within the meaning of [article 17], 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”

3. The result is perhaps not a complete surprise in the context of the overall direction of travel of the CJEU’s own jurisprudence on the Convention over recent years. Indeed, as long ago as 2009, in Walz v Click Air (C-63/09), it held that the concept of ‘damage’ for the purposes of a lost luggage claim under article 21 of the Convention included ‘non-material damage’ such as loss of enjoyment caused to a holiday.

4. However, the conclusion of the Court represents a very significant departure from the approach adopted by the Courts in most (if not all) signatory states to the Convention.

5. Under English law, the leading authority in respect of the Warsaw Convention (the predecessor to the Montreal Convention) remains the decision of the House of Lords in King v Bristow (2002) 2 WLR 258. The Court held that pure psychiatric injury is not recoverable unless either it can be demonstrated either to have been caused by changes to the structure of the brain itself[1], or alternatively it has manifested in subsequent physical injury (for example shock which precipitates a peptic ulcer). The Highest Courts in the United States[2], Canada[3], Australia[4] and South Africa have all concluded that pure psychiatric injury is not recoverable under the Warsaw Convention. The result has been to preclude recovery in a range of cases where, at least on the facts as pleaded, the ‘merits’ might be said to have favoured protection of the consumer. They include the loss of  insulin needed by diabetic passenger for three days where no physical injury was claimed[5] and a passenger who found part of a finger in their in-flight food[6].

6. It also now generally accepted that psychological injury which flows from, and is caused by, a physical injury, is recoverable. This was accepted (arguably obiter) by Lord Steyn in King, but represents the ratio of the subsequent US Court of Appeal (2nd Circuit) decision in Ehrlich v American Airlines 360 F 3d 366 (2nd Cir, 2004. It has not been challenged in any English cases and is likely also to represent the position under English law.

7. More controversial is the recent decision in Doe v Etihad  (870 F3d 406 (6th Cir, 2017) that under the MC 1999, a psychological injury that occurs concurrently with a physical injury, but without any causal link between them, is also recoverable. The court noted, in particular, the subtle change of wording between Article 17 under the Warsaw and Montreal Conventions (the former permitting recovery for damage sustained ‘the event of’ bodily injury, whereas the latter providing that the passenger is liable for damage sustained ‘in case of’ bodily ‘on condition only’ that it occurred within the timeframe of the convention).

8. Doe has been widely criticised by certain academics, and by the airline industry more broadly. It has has not yet been considered in any English Case, but even if it is followed, its departure from the ‘orthodox’ position is still relatively modest, insofar as it still acknowledges the need for some ‘bodily injury’ to have been caused by ‘the accident’. In other words, even in Doe the focus remained firmly on the plain wording of Article 17 even if the court’s interpretation differed from previous cases. The decision in BT v Laudamotion discards the requirement for bodily injury altogether.

9. It is right to acknowledge that the ‘King orthodoxy’ has not been universally applied. As the House of Lords noted in King itself, the Supreme Court of Israel, as long ago as 1984[7] permitted recovery for pure psychiatric injury. The decision was described by their lordships in King as one which ‘stands alone internationally’ but it is a useful reminder that, as striking as the conclusion in the Laudamotion case is, it is by no means unprecedented.

10. The reasoning of the Court in BT v Laudamotion is however perfunctory. It can be distilled down to 3 core propositions:

a. The concept of bodily injury must be given an autonomous European law interpretation, unshackled by any approach which has been adopted in individual member states.

b. Article 31 of the Vienna Convention on the law of Treaties provides that treaty terms must be interpreted in good faith and in accordance with their ordinary meaning. The ordinary meaning of ‘bodily injury’ does not include pure psychological injury, but the term was adopted on the basis that, in certain signatory states, psychological injury is recoverable under ‘certain conditions’ and case-law on the criteria for recoverability will develop over time.

c. The entire scheme of the convention, according to recitals 2 and 3, is to protect the interests of passengers and provide for equitable compensation based on restitution. Since the consequences of a psychological injury can be as severe as, or worse than, a physical or bodily injury, to disallow recovery for the former would be an injustice.

11. The curious feature of the decision of the CJEU is the somewhat belated attempt, having found that damages for psychological injury are recoverable in principle, to place conditions on recovery. It did this in recognition of the fact that the fifth recital to the Convention requires an ‘equitable balance of interests’ between  carriers on the one hand and the protection of passengers on the other. The solution upon which the court settled is an unsatisfactory one, since it raises more questions than it answers. The Court held that damages would be recoverable:

“only if the aggrieved passenger demonstrates, to the requisite legal  standard, by means in particular of a medical report and proof of medical treatment, the existence of an adverse effect on his or her psychological integrity suffered as a result 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, particularly in view of its psychosomatic effects, and that it cannot be resolved without medical treatment.

12. This appears to be an attempt by the court to impose a threshold condition on recovery, but the language adopted is sufficiently broad to be capable of a wide range of interpretations, and much confusion. What constitutes ‘medical treatment’? When does a psychological injury become sufficiently ‘grave’ or ‘intense’ to affect a person’s general health? What are ‘psychosomatic effects’?[8] There is a broad spectrum of different psychiatric conditions, but insofar as a clinically diagnosable injury has been suffered (which seems to be what is envisaged by the reference to a medical report being required) it is difficult to imagine that this would be regarded by the court as falling below the threshold of ‘gravity’ and ‘intensity’. But if this is right, is the carrier really protected from the “very heavy compensation burden” that the CJEU expressed that it was intending to avoid?

13. Standing back, the reality is that the balance of interests struck by the existing qualified strict-liability regime under the Convention will always operate, in certain circumstances, to the detriment of the consumer, unless it is amended. Indeed, the very exclusivity of the Convention resulted in the Claimants in Stott v Thomas Cook Airlines [2014] 2 WLR 521 having no remedy despite a flagrant act of discrimination against them. The Supreme Court (Lord Toulson giving the leading judgment) noted that:

“The underlying problem is that the Warsaw Convention long pre-dated equality laws which are common today. There is much to be said for the argument that it is time for the Montreal Convention to be amended to take account of the development of equality rights, whether in relation to race (as in King v American Airlines) or in relation to access for the disabled, but any amendment would be a matter for the contracting parties. It seems unfair that a person who suffers ill-treatment of the kind suffered by Mr Stott should be denied any compensation”

14. In BT v Laudamotion, the CJEU sought to cut the gordian knot by re-interpreting the seemingly clear language of the convention in one breath, but then imposing new, judicially created criteria in the next. The result, it seems to this author, is likely to be further confusion. The English Courts are not bound by the CJEU’s decision after Brexit, but nor are they bound to follow King, it being a decision under the Warsaw Convention not the Montreal Convention. It is submitted, however, that most English judges, certainly at first instance, will be likely to follow King and accept the sense in Lord Steyn’s observations that:

“If cases of mental injuries and illnesses are to be brought within the Convention system, it must be done by amendment of the Convention system and not by judicial creativity”


[1] As was the case in Weaver v Delta Airlines      56 F Supp 2d 1190 (DC Mont, 1999)

[2] United Airlines v Floyd (1991) 1 S&B AvR VII/633

[3] Plourde v Service Aérien FBO Inc (Skyservice) 2007 QCCA 739.

[4] Kotsambasis v Singapore Airlines Ltd (1997) 148 ALR 498

[5] Lewis v BA 30 Avi 16 632

[6] Jiminez v Mexicana Airways 34 Avi 15, 346

[7]  Daddon v Air France (1984) 1 S & B Av R VII/141, (1984) 38(3) PD 785,

[8] A number of US decisions have rejected the argument that sweating, heading, palpitations, fever etc associated with psychological injury is enough to constitute bodily injury: see Hermano v United Airlines      27 Avi 17,524 (ND Cal, 1999).

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Jack Harding

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