The Dekagram: 28th September 2026

This week those readers not fortunate enough to be at the PEOPIL conference in Rome may access the presentation given by Julia Brechtelsbauer on baby loss resulting from clinical negligence, with a bonus on comparative law; whilst Tom Collins keeps an eye on caselaw emanating from the Court of Justice of the European Union relating to the Montreal Convention on carriage of passengers by air.

The English Law Perspective on Baby Loss Resulting From Clinical Negligence

Last week, I gave a talk at the PEOPIL annual conference in Rome on “Baby Loss, Neuroscience and Damages” alongside Giacomo Travaglino (Former Judge of the Italian Supreme Court) and Sean Domnick (Civil Trial Lawyer at Rafferty Domnick Cunningham & Yaffa). I spoke about the English/Welsh law position whilst my fellow panellists provided the Italian and American perspectives respectively.

In English Law, the key starting point is that the mother and the foetus is one legal person. As the foetus has no independent legal personality, it cannot sue and cannot suffer death in law. If a foetus is a stillbirth, in English law, the damage is done to the Mother. In Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053, a case concerning a stillborn, Grubb and Kennedy Principles of Medical Law was cited in the judgment by Michael Kent QC, sitting as a high court judge, which said: “a court will inevitably conclude that one who, in the eyes of the law, has never become a ‘person’, cannot be said to have obtained life, and therefore cannot be said to have suffered death”. If the baby is born alive, even briefly, their cause of action crystallises. This is within statute through the Congenital Disabilities (Civil Liability) Act 1976, and in common law under Burton v Islington Health Authority [1993] QB 204.

The Mother has a good cause of action if the stillborn foetus has suffered harm as a result of negligence, even if she herself had not suffered any additional physical or psychological injury. In the event of psychological injury, the Mother is considered a primary victim; this was confirmed in Wild and Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 980 (QB). This is true also where the baby is born alive (see YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB) and Re (a Child) v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB)). This therefore means the Mother does not need to satisfy the infamous Alcock requirements in order to recover.

By contrast, those who suffer psychiatric injury flowing from the negligence to the foetus / baby apart from the Mother, may struggle to recover damages. They are considered to be secondary victims, because they are outside the zone of physical danger. Therefore, they need to satisfy the Alcock requirements. In Wild the negligence had occurred prior to the birth, the Mother and Father knew at the point of birth that she was delivering a stillborn baby. The Father’s claim was dismissed because his shock came from realising the baby had already died, when no heartbeat could be found, rather than witnessing an external horrifying event. In Kitchen v Hillingdon Hospitals NHS Foundation Trust [2022] (Central London County Court 4 May 2022) the claim likewise failed because of the interval of time between the negligence and the discovery that a twin had died in utero. Re (A Child) is a rare example of the secondary victim claim succeeding; this was on behalf of a grandmother. I would suggest this may be limited to its facts; when the negligence occurred whilst the foetus was in the birth canal, and therefore proximate in time to the horrifying event as required by Alcock. Further, it is questionable whether it survives Paul v Wolverhampton NHS Trust [2024] UKSC 1 and the introduction of the concept of an ‘accident’.

In Stillbirth cases, there are two main heads of damage; PSLA for a psychiatric injury, and the loss of the satisfaction of bringing the pregnancy to a successful conclusion. There is no recovery for grief; there needs to be a recognisable psychiatric condition. Lord Bridge said as much in McLoughlin v O’Brian [1983] 1 AC 410  – there is no right to damages for what are described as ‘the normal emotions by way of grief, sorrow or distress attendance on the loss of a loved one’. The turning point as to what can be recovered is if the child is born alive; then an additional claim can be made for a statutory bereavement sum. In Kerby v Redbridge HA [1994] PIQR Q1, where the baby died after birth, Ognall J refused to allow for a sum concerning ‘dashed hopes’ because “I would be indeed be either awarding damages for bereavement twice over or awarding damages for a head of claim not recognised by English law”.

Bereavement damages are however extremely low under the Fatal Accidents Act 1976. The current figure set is £15,120, and those who can claim for the sum are extremely limited. Many regard this sum as insultingly low, and indeed reform is sought by APIL in their campaign “Fairness for Bereaved Families”. It presses for reform of bereavement damages, both in terms of the fixed award and the categories of who can claim. Many bereaved family members — including in some circumstances unmarried partners, siblings and grandparents — are left with nothing at all. The single fixed sum is simply too blunt an instrument.

Providing the view from across the pond, Sean Domnick explained that in shoulder dystocia cases there is an argument made by Defendants that the injury caused to the child was in fact as a result of natural “maternal forces” as opposed to flowing from any negligence. He explained that this expert view can largely be discredited when looking forensically at the underlying studies. Mr Domnick further detailed that cases involving shoulder dystocia where there is complete loss of use of a limb can result in settlements up to $22,000,000 in the American system.

As to Italian Law, Giacomo Travaglino (ably interpreted by Marco Bona) explained that there were non-pecuniary loses available to claim, recognising the moral suffering and bereavement by parents. Further, in a case where a child is caused disability, what the parents can claim is dependent on whether the parents would have elected to have an abortion had they known about the disability caused to the child; Italian law recognises the right to have an abortion in these circumstances, and the financial implications flowing therefrom.

The overarching theme was that American and Italian law is much more forgiving in terms of the compensation available to bereaved parents in contrast to English law, adding comparative law fuel to campaigns such as that run by APIL.

About the Author

Julia Brechtelsbauer gained tenancy having completed pupillage at Deka Chambers. Before coming to the Bar, she took an LLM in Comparative Private Law at the University of Edinburgh, and during this time she also tutored tort and EU law privately at undergraduate level. Studying Law with Spanish Law at the University of Oxford, Julia came first in her cohort in EU Law and Comparative Private Law, placing 5th overall. She has also been published by the Oxford University Undergraduate Law Journal, focusing on the defence of illegality in tort law. She has already been led by Sarah Prager KC in a paraplegia case involving complex issues around assumption of responsibility and is developing a thriving practice in international work.

Jurisdiction Is Not Where You Click: the CJEU on Article 33 of the Montreal Convention in Vueling Airlines

Case note: I.G.V. v Vueling Airlines SA (Case C-876/24), 17 September 2026.

Where a ticket is bought online, can jurisdiction for a claim arising out of the carriage be founded on where the airline’s website was accessed from? On 17 September 2026 the CJEU said “no” in an important judgment which addresses broader issues of jurisdiction in Montreal Convention claims. It is a reminder that jurisdiction depends on the kind of claim that is being brought — and this should be the very first question that a practitioner considers.

The facts

The claimant (a Spanish citizen, living in Fuenlabrada) bought a Vueling ticket online from her home, for a domestic flight from Madrid to Barcelona. She paid separately for baggage carriage at Madrid airport. The baggage was lost. Unlike England and Wales, jurisdiction in Spain is regionalised such that a simple civil or commercial claim must be brought in the local Courts of First Instance (Juzgados de Primera Instancia).

Rather than sue in Madrid or Barcelona, she issued proceedings in Fuenlabrada — her own local court, and the place from which she had made the booking.

Vueling had no office, agent or other commercial presence in Fuenlabrada. The claimant’s argument was that the airline had, by operating an online bookings system, established a ‘place of business’ wherever their website was accessed from and contracts entered into.

The question

Article 33(1) gives a claimant a choice of suing:

(1) where the carrier is domiciled,

(2) where it has its principal place of business,

(3) in a place of business through which the contract was made, or

(4) the place of destination.

The Spanish referring court’s question, in essence, was whether an online booking, completed in the passenger’s home, could make that home a “place of business through which the contract has been made.”

The Court’s answer

The CJEU said “no”, for several reasons.

First, the ordinary meaning of a “place of business” means the carrier’s own physical footprint — premises, an establishment, a point of commercial presence — not wherever a customer happens to be sitting when a webpage loads. A passenger’s laptop or telephone is not the carrier’s place of business merely because a contract is concluded through it.

Second, Article 33(2) (which deals specifically with death and injury claims) expressly makes the passenger’s own residence a connecting factor, subject to conditions. Article 33(1) does not. That distinction was said to be intentional: had the drafters intended a passenger’s location at the point of sale to found jurisdiction for ordinary claims, they would have said so.

Third, Article 33(1)’s gateways are all anchored to the carrier’s own conduct — where it is domiciled, where it does business, where it has flown the passenger to. If jurisdiction were based on the passenger’s IP address, a carrier could be sued anywhere a ticket happened to be bought, with no relationship at all to where it actually operates — a rule that would cause huge uncertainty for carriers.

Finally, the Court held that the separate baggage contract (made in person in Madrid) did not assist the claimant as the relevant contract for Article 33(1) purposes is the contract of carriage, not the ancillary arrangement for checked luggage bought afterwards.

Baggage v accident claims

For anyone handling “accident” claims under Article 17, the judgment emphasises the different (and more generous) jurisdictional threshold under Article 33(2) whereby an injured passenger can sue in the State of her principal and permanent residence — but only where the carrier also operates services to or from that State, and does so either on its own aircraft or under a commercial agreement, from premises it leases or owns there (or another carrier does, under agreement with it).

Where (as in 99% of cases we handle) the index flight departed from or arrived on English soil, this presents no real difficulty. But the English courts have, on occasion, grappled with cases where this does not apply. In Akulinina and another v Ifly SA [2022] EWHC 166 (QB), dependants of a passenger killed in a helicopter crash in Greece sought to bring their claim in London, relying on an alleged commercial arrangement between the Greek operator and a UK-based jet charter business. Simon Birt QC, sitting as a Deputy High Court Judge, rejected the claim: the connection between the two operators was not made out on the evidence, and Article 33(2) requires a genuine operational link, not one based on inference or speculation.

Is the Convention text fit for purpose in the digital age?

The broader theme in Vueling is the friction between a Convention drafted around physical, identifiable commercial presence and an industry now sold largely through apps and aggregators with no fixed geography of their own. A passenger today may buy a ticket from a carrier’s own site, a metasearch engine, or a third-party agent, often without knowing — or caring — where any of them is established. The Court’s answer is that this shift in how tickets are sold does not, by itself, water down the strict rules around where a carrier may be sued.

The principle of comity

Whilst decisions of the CJEU, of course, no longer bind English courts, this was not a question of EU law but of construction of an international convention of which the UK is a signatory. The Convention requires uniform interpretation across all Contracting States, applying the ordinary rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The House of Lords made exactly this point in relation to the Convention’s predecessor in Fothergill v Monarch Airlines Ltd [1981] AC 251, and reaffirmed it in King v Bristow Helicopters Ltd [2002] UKHL 7: an English court construing the Convention should have regard to how other Contracting States’ courts have construed the same text.

The practical takeaways

Vueling and Akulinina underline the following points of principle:

• Before jurisdiction can be considered, it is necessary to identify with precision what kind of claim is actually being advanced.
• For baggage, delay and most other claims, the passenger’s home or place of booking is irrelevant. Jurisdiction is all about the carrier — its domicile, its business premises, the place the contract was made through the carrier’s own establishment, or the destination.
• For death and injury claims, the passenger’s residence can found jurisdiction, but only where there is cogent evidence that the carrier’s own services, agreements and premises connected it to that State.

About the Author

Called in 2010, Tom Collins is ranked in Chambers and Partners in travel: international personal injury and in the Legal 500 as a leading junior in personal injury. He is said by clients to be ‘exceptionally bright’, an ‘excellent advocate’ and ‘extremely well prepared and very empathetic’. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.