Psychological injury equals bodily injury? Take-aways for Asian airlines from the Court of Justice of the European Union’s decision
23 November 2022
The Montreal Convention of 1999 among others establishes airline liability in the case of bodily injury to passengers if such injury resulted from an accident on board of the airplane or in the course of embarking or disembarking. By decision dated 20th October 2022, the Court of Justice of the European Union held that a psychological injury caused to a passenger by an accident must be compensated in the same way as such a bodily injury.
What is the Montreal Convention and why does it matter?
The Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”) establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo. It plays a very important role in the unification of the different international treaties covering airline liability.
The Montreal Convention has been signed by 138 countries around the world and the European Union. In Southeast Asia, it has been ratified by Brunei, Cambodia, Indonesia, Malaysia, the Philippines, Singapore, Thailand and Vietnam. Among the ASEAN States, only Lao PDR and Myanmar have not ratified it. Most passenger claims for compensation in ASEAN must thus be dealt with in accordance with the Montreal Convention.
What does the Convention say on compensation for bodily injury?
Although riding in an airplane remains the safest mode of transportation, accidents can never be excluded. Article 17(1) of the Montreal Convention therefore provides as follows:
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 disembarking.
Article 21(1) of the Montreal Convention further makes it clear that airlines cannot exclude or limit their liability for damages arising from Article 17(1) below a certain threshold. In other words: when a passenger suffers bodily injury, all airlines must pay compensation under Article 17(1).
What does the Convention say on compensation for psychological injury and how did the Court of Justice of the European Union reach its decision?
The Montreal Convention is silent on psychological injury. It only speaks of bodily injury. This – or any related – term is not mentioned in the Montreal Convention. In spite of this, the Court of Justice of the European Union (the “CJEU
”) was asked to determine in a preliminary ruling whether psychological injuries to a passenger caused by an accident constitute a “bodily injury” within the meaning of Article 17(1) of the Montreal Convention.
In Case C‑111/21, the CJEU answered this question positively.
The underlying facts of the case were as follows: the applicant BT
embarked on a flight operated by the responding party Laudamotion
between London and Vienna. During take-off, an engine exploded and all passengers needed to be evacuated. When disembarking via the emergency exit, BT was hurled several metres through the air by the jet blast from the other engine, which was still running. BT was physically unharmed but has since been diagnosed with post-traumatic stress disorder, for which she is receiving medical treatment.
The term “bodily injury” is not defined in the Montreal Convention. The CJEU looked at rules of interpretation of general international law to determine the meaning: Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 states that 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. Article 32 provides that recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty at issue and the circumstances of its conclusion.
The CJEU conceded that the term “injury” refers to an impairment of an organ, tissue or cell due to an illness or accident and that the term “bodily” refers to the physical part of a living entity, namely the human body. However, it also found that this does not presuppose that the authors of the Montreal Convention intended to exclude the liability of air carriers where that accident caused psychological injury to a passenger even though the psychological injury is not linked to any bodily injury having the same cause.
The CJEU further noted that it was clear from the preparatory works of the Montreal Convention that the authors had intended to include psychological injuries and that the exclusion of such injuries would be in contradiction to the principles of strict liability for air carriers and fair compensation, both of which the Montreal Convention establishes.
The CJEU therefore concluded that Article 17(1) of the Montreal 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.”
Why are the CJEU’s reasoning and decision significant for ASEAN States?
- The Montreal Convention came into force in Malaysia on 8.10.2007 (section 1(4) of the Malaysian Carriage By Air Act 1974) (Appointment Of Date Of Coming Into Operation [PU(B) 357/2007]).
- By section 11A(1) of the Malaysian Carriage By Air Act 1974, subject to section 11A, inter alia, the provisions of the Montreal Convention shall “so far as they relate to the rights and liabilities of carriers, carriers' servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Malaysia in relation to any carriage by air to which the Amended Convention and the Montreal Convention apply, irrespective of the nationality of the aircraft performing that carriage”.
- There has yet to be any Malaysian decision on whether psychological injury amounts to bodily injury within Article 17(1) of the Montreal Convention.
- Contrary to the CJEU decision, in England, on 28.2.2002, the then House of Lords decided that purely psychological injuries did not amount to bodily injury within Article 17 of the Montreal Convention. However, physical manifestation(s) of a mental/psychological injury (such as a peptic ulcer due to stress) could amount to bodily injury (Re M (orse Morris v KLM Royal Dutch Airlines); King v Bristow HelicoptersLtd,  UKHL 7).
For further information on this topic please contact Mubashir Bin Mansor, Head of Skrine’s Aviation Practice or Dr. iur. Harald Sippel, Head of Skrine’s European Desk by telephone (+603 2081 3999) or email (email@example.com or firstname.lastname@example.org).
- While all courts in the EU are bound to follow the CJEU’s decision, it would be of persuasive value to courts in State Parties to the Montreal Convention which are outside the EU, including Malaysia, in cases of international carriage of persons by air (Article 1(1) and 1(2) of the Montreal Convention).
This alert contains general information only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such. For further information, kindly contact email@example.com.