ECJ: Psychological Injury also Compensable after Aviation Accident

Nov 4, 2022 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has clarified that under Art 17(1) of the Montreal Convention (MC), psychological injuries can also give rise to compensation claims against airlines.

The initial facts of the case were an incident involving a Laudamotion jet en route from Vienna to London. During take-off, the left engine of the aircraft exploded, after which the passengers were evacuated from the aircraft. The plaintiff exited the aircraft via an emergency exit and was hurled several metres through the air by the jet blast from the right engine which had not yet been shut down. The plaintiff has since been diagnosed with post-traumatic stress disorder.

According to Art 17 (1) of the Convention, an airline must compensate for damage if a passenger is killed or physically injured as a result of an accident on board or during boarding or disembarking from the aircraft.

The plaintiff claimed damages for pain and suffering from Laudamotion.

The lower courts were divided as to whether a psychological injury constitutes bodily injury within the meaning of Art 17 (1) of the Convention. This was also not entirely evident to the Supreme Court, which is why it referred the matter to the ECJ for a preliminary ruling.

Pursuant to the ECJ, the wording ‘bodily injury’ in Art 17 (1) of the Convention does not include psychological injury. It was also apparent from the preparatory works on the agreements that the inclusion of psychological injury in the provision (which had been suggested by several States) was not pursued. However, it was clear from the preparatory works that the concept of  ‘bodily injury’ was adopted on the basis that in some States, under certain conditions, psychological damage could as well be compensated, and that case-law in this area was constantly developing and an encroachment on this development was not intended.

In addition, the objectives of the Convention, primarily consumer protection, also argue in favour of a broader interpretation.

As a result, the ECJ ruled that psychological injury is included if the psychological impairment is of a severity which cannot be resolved without medical treatment.

ECJ C-111/21 (20 October 2022)