Case insight: BT v Laudamotion

CJEU rules that psychological injuries are recoverable under the Montreal Convention 1999 for an ‘accident’. Is a tsunami coming?

On Thursday 20 October 2022, the Court of Justice of the European Union (“CJEU”) passed Judgment in the case of BT v Laudamotion GmbH (C-111/21) on the question of whether the term ‘bodily injury’ in Article 17.1 of the Montreal Convention 1999 includes psychological injuries. In other words, can passengers recover damages for psychological injuries in the absence of a bodily injury? The Court said yes, contradicting decades of internationally recognised case law on the topic.

The underlying facts of the case are as follows: BT (as Claimant) embarked on a flight operated by Laudamotion between London and Vienna; following a take-off, the left engine of the aircraft exploded and an emergency evacuation of passengers was required. The Claimant was diagnosed with post-traumatic stress disorder allegedly caused as a result of the emergency evacuation incident. The Austrian Supreme Court referred the question on whether psychological injuries are recoverable to the CJEU.

The CJEU’s Judgment outlined the need for the concept of ‘bodily injury’ under the Convention to be given “a uniform and autonomous interpretation” with the need to interpret the term in “good faith” and in accordance with its “ordinary meaning”, and yet it failed to give any detailed analysis of the concept, made no reference to any case law other than its own, and treated the concept of ‘bodily injury’ as though entirely new.

In short, the Court concluded that psychological injuries must be compensated in the same way as bodily injuries. But this is an impossible task due to the very nature of psychological disorders.

It sought to justify its decision by referencing the effect a psychological injury can have on an individual, being often comparable in severity to a physical injury. There was no attempt in its reasoning to explain how the concept of ‘bodily injury’ might feasibly extend to diseases or disorders of the brain, in reference to the “ordinary meaning” of the word. Indeed, an argument along those lines might have been mildly convincing; with the development of science, it may be possible to demonstrate via brain imaging some physical or chemical change in the structure of the brain.

The Court instead made a rather non-sensical argument by stating that the drafters of the Convention didn’t necessarily intend to exclude psychological injury, in limiting the wording to ‘bodily injury’, whilst also acknowledging that the drafters did reject every proposal aimed at including the concept of psychological injury into the Convention.

The Court, perhaps unsurprisingly, focused its ‘reasoning’ on the objectives of the Convention and specifically to the need to protect consumers and provide for “equitable” compensation.

However, rather than ensuring the “equitable balance of interests” between passenger and air carrier, the effect of the decision has in fact tipped the balance markedly in the consumer’s favour, and to a worrying degree when combined with the CJEU’s recent decision of Niki Luftfahrt and it’s definition of ‘accident’, which removes the externality criterion.

The Court seems to attempt to place certain restrictions or conditions on the recoverability of psychological injuries by stating that a claimant must demonstrate with “medical evidence” or proof of medical treatment, the existence of an “adverse effect on his or her psychological integrity” of such “gravity and intensity” that it affects his or her “general state of health” and “cannot be resolved without medical treatment”. It adds that this is particularly in view of “psychosomatic effects” that might be experienced. There are several issues with these apparent conditions which lead to more questions than answers:

• The term ‘psychological integrity’ is not defined. What constitutes an effect on one’s psychological integrity that can be regarded as of such a severe nature as to fall within this definition? What is the standard by which this is assessed? Is the test subjective or objective? The psychological impact of events on an individual will depend on that individual’s circumstances, mental robustness, emotional resilience, and past history.
• Certain individuals experiencing anxiety, depression or another form of psychological disorder might have the ability to overcome their symptoms without the need for “medical treatment”, which is also not defined. This will depend on circumstances, their support network around them and again their previous history and general emotional resilience.
• Does medical treatment mean prescribed medication? Does talking therapy count? What about exercise? Dietary changes?
• If you are fortunate enough to have never experienced any form of hardship, trauma or mental illness in life and then experience a stressful flight (for example, you are involved in an emergency evacuation of the aircraft leading to feelings of anxiety), you might not need any form of “medical treatment”, perhaps a few days off work and some relaxation techniques. Is that enough to satisfy the definition? Is your general state of health so affected that you are entitled to compensation?
• There is no objective test to analyse the intensity of someone’s psychological reaction, to assess their feelings; they will be felt differently by each person. The verification of psychological injuries therefore relies entirely on self-reported symptoms. A medical report can easily be obtained from a GP or psychologist to say that an individual is depressed or suffering from PTSD, but such a diagnosis is made entirely off the back of self-reported symptoms, often utilising questionnaires completed by the patient which are, sadly, ripe for fabrication of symptoms experienced, or at the very least, for exaggeration as to the severity of symptoms.
• The reference to psychosomatic symptoms implies that it will be perhaps easier to establish the requisite impact on your health if you have also experiences physical manifestations of your psychological disorder, for example, fatigue, heart palpitations or gastrointestinal upset. The impact of a psychological event and whether that then manifests physically will again depend on the individual, and opens up the scope for exaggerated claims to include these physical symptoms (with higher damages attached), which again rely on accurate self-reporting.

The CJEU almost mocks air carriers when it says that its decision enables carriers to “protect themselves against fraudulent claims” by adding these ‘restrictions’. There is certainly the potential for this decision to open the floodgates to a tsunami of claims for pure psychological injury following an ‘accident’.

Claims of this type are incredibly difficult to verify and there is unfortunately a very real risk of a rise in fraudulent claims with claims management companies across Europe seeing an opportunity for a quick payment where, for example, an entire aircraft full of passengers are involved in an incident which might cause alarm or distress to passengers, such as a heavy landing or aborted take-off.

The CJEU has once again sought to make its decision in isolation with no reference to international case law on the question of ‘bodily injury’ showing, at best, its sheer incompetence and at worst, its disregard for the uniformity of the Convention and the other signatory states, in particular the hundred plus who are not EU member states.

The decision is not binding on the courts of England and Wales since the UK’s exit from the EU. However, there is an arguable case that the courts have yet to rule on the meaning of ‘bodily injury’ under the Montreal Convention 1999, the leading decision being Morris v KLM/King v Bristow which was decided under its predecessor, the Warsaw Convention 1929. It is hoped that if a challenge is brought to this well-established precedent before the English courts, they will, unlike the CJEU, be able to provide a well-reasoned opinion that doesn’t blindly serve the consumer and provides an adequate balancing of interests.

Further, we can be under no illusion that this decision will impact upon claimant behaviour with the potential for forum shopping where the routing provides for jurisdiction in an EU Member State.

If a tsunami of psychological injury claims does flood the aviation market, the ultimate impact will be to the consumer, with the cost associated with an increase in such claims being passed on via air fares.

If you have any questions or would like further information, please contact Sarah.Bolt@clydeco.com.