Can Psychological Injures Be Included in the Concept of “bodily Injuries” Under the Montreal Convention?

04 December 2023
Att. Gülben GÜLDAŞ
Publications

CAN PSYCHOLOGICAL INJURES BE INCLUDED IN THE CONCEPT OF

“BODILY INJURIES” UNDER THE MONTREAL CONVENTION?

Agreement for Unification of Certain Rules for International Carriage by Air (“Montreal Convention”) accepted in a convention held in Montreal, Canada in 1999. Article 17, paragraph 1 ("17/1") of the Montreal Convention regulates the scope of the carrier's liability in case of death or injury of passengers and loss of baggage.

In order for carriers to be liable for damages caused by the death or bodily injury of a passenger under the Montreal Convention, the accident causing death or injury must have occurred on board the aircraft or during any embarking or disembarking operation.

Many Contracting Parties to the Convention have debated whether or not to compensate persons who have suffered psychological harm under the concept of "bodily injury". In general, courts’ approaches are that "psychological injuries that do not trigger a future physical illness should not be compensated under Article 17/1". In King V. Bristow (2002) 2 WLR 258, the House of Lords held that a purely psychological injury could not be compensated unless it could be shown that it was caused by changes in the structure of the brain itself or, alternatively, that it was caused by subsequent physical injury (for example, shock triggering a peptic ulcer). Likewise, in Weaver v Delta Airlines 56 F Supp 2d 1190 (DC Mont, 1999)^[1], Delta Airlines, which had to make an emergency landing, recognized the emergency landing as an "accident on board" under the Montreal Convention. Weaver, who affected by the terror during the emergency landing, has diagnosed with "post-traumatic psychological disorder" and started medical treatment for her psychological and emotional disorders. After examining all the defenses, the Court decided that purely psychological injuries could not be included within the concept of "bodily injury”; therefore, the carrier could not be held liable under Article 17 unless the accident caused death or physical injury to the passenger, the Court rejected Weaver's claim.

In Jimenez v. Mexicana Airways case^[2], the Plaintiff Jimenez argued that the Defendant Mexicana Airways should pay damages for the psychological injuries he sustained because of finding a finger fragment in a meal served to him by the Defendant Mexicana Airways. Plaintiff Jimenez stated that finding the finger was "very repulsive and unpleasant because it affected him physically and emotionally". However, Mexicana Airways argued that the Plaintiff did not ingest the finger, did not fall ill or seek medical attention, did not prove the existence of any bodily injury, and argued that under the Montreal Convention, the Plaintiff Jimenez was not entitled to any compensation for psychological injury. Indeed, the court held that purely psychological injuries without physical injury could not be compensated under the Montreal Convention and rejected Jimenez's claim.

Similarly, in Eastern Airlines, Inc. v. Floyd (1991)^[3], Plourde v Service Aérien FBO Inc (Skyservice) 2007 QCCA 739^[4], Kotsambasis v. Singapore Airlines 148 ALR 498 (42 NSWLR 110)^[5], the United States, Canada and Australia also stated that purely psychological injuries cannot be accepted within the concept of "bodily injury" and ruled accordingly.

DOE V. ETIHAD AIRWAYS DECISION^[6]

In 2017, Plaintiff Doe and her 11-year-old daughter were on an Etihad Airways flight from Abu Dhabi to Chicago, during the flight, the knob holding Plaintiff Doe's folding dining table fell off, her 11-year-old daughter found it on the floor and gave it to Plaintiff Doe and she placed it in the seat space in front of her. During landing, upon the warning of the cabin crew member, Plaintiff Doe, who wanted to show that the knob had fallen off and therefore could not close the dining table, was pricked in the hand by a needle in the knob, which was later found to be an insulin needle. Plaintiff Doe, whose hand was bleeding due to the needle stick, was provided with antiseptic wipes and band-aids on board the aircraft.

After the flight, Plaintiff Doe went to her own doctor and underwent many tests such as hepatitis, tetanus and HIV. Although the test results were negative, in order to prevent a possible accident, Plaintiff Doe was advised not to be with her spouse for 1 year and not to share any food or belongings with her child or spouse. Plaintiff Doe stated that all this affected her psychology and filed a lawsuit against Etihad Airways for compensation for the psychological damage that she suffered from.

The 6th Chamber of the United States Court of Appeals first examined Article 17(1) of the Montreal Convention, then examined the arguments of both parties and finally reached its decision. The Court of Appeal held that "in order to claim compensation under Article 17(1), the plaintiff must prove that (i) there was an "accident", defined as "an unexpected or unusual event occurring without the passenger's fault", (ii) the accident occurred "on board the aircraft" or during the " embarking or disembarking operations", and (iii) the accident caused "death or bodily injury to a passenger". If all the conditions are met, the carrier will be liable for "bodily injury", which we interpret to include emotional or mental harm, so long as it is attributable to the accident, regardless of whether it is directly caused by bodily injury." and The Court of Appeals also states that;

Since Etihad airways characterized the incident as "an accident on plane" and,
Doe had suffered bodily injury in the accident occurred in the plane,
Regardless of whether Doe's suffering resulted directly from her physical injury or more generally from the accident that caused the physical injury, she should be compensated for the psychological damage that she suffered.

BT V. LAUDAMOTON GMBH DECISION

As above mentioned, for a very long time, the courts have held and ruled that in order for "psychological injuries" to be compensated under Article 17/1 of the Montreal Convention, there must be a physical injury in an aircraft accident and the psychological injury must be caused by the physical injury. Most recently, the Court of Justice of the European Union ("CJEU") issued a precedent-setting and controversial preliminary ruling[7] on October 20, 2022.

On March 1, 2019, passengers on a Laudamotion flight between London and Vienna were evacuated through emergency exit doors after the left engine exploded during take-off. Passenger BT, who was thrown meters in the air by the strong airflow created by the right engine which was still running during the evacuation, was diagnosed with "post-traumatic stress disorder" and started to receive psychological treatment. BT, who stated that she had been psychologically injured as a result of the in-flight accident, applied to the domestic courts for compensation of psychological damage she suffered, and the Austrian Supreme Court applied to the CJEU on whether psychological injury could constitute bodily injury within the meaning of the Montreal Convention and whether compensation could be claimed accordingly.

While many previous Supreme Court decisions have excluded psychological injuries from liability for compensation, the CJEU in its preliminary ruling in BT v Laudamotion GmbH (Case C-111/21), where the term "injury" referred to an injury to an organ, tissue or cell caused by a disease or accident, emphasized that the use of the expression "bodily injury" in Article 17/1 does not mean that the Convention was intended to exclude the liability of airlines in cases of psychological injuries not connected with bodily injury. It also noted that "bodily injury" is not defined in the Montreal Convention or Council Regulation 2027/97, and referred to Article 31 of the Vienna Convention on the Law of Treaties, which provides that a treaty must be interpreted in good faith and in accordance with its ordinary meaning. Therefore, it was argued that in order to ensure fair compensation and equal treatment for passengers who suffer physical or psychological injuries as a result of the same accident, 17/1 requires that psychological injuries not related to physical injuries should also be compensated as long as they are proven by a medical report and evidence of treatment.

CONCLUSION

The incurrent understanding of the high and local courts is that the concept of "bodily injury" is a physical harm. However, in the subsequent periods, the view was adopted that the concept of "bodily injury" also includes psychological side effects resulting from physical harm, and that psychological injuries arising for this reason should be compensated under the Montreal Convention. Most recently, the CJEU held that even in the absence of physical injury, accidents on board the aircraft or during embarking or disembarking, which cause significant psychological damage to passengers, as well as the treatment provided in connection therewith, fall within the scope of "bodily injury" and should be compensated by passenger carriers.

REFERENCES

[1] Weaver v Delta Airlines 56 F Supp 2d 1190 (DC Mont, 1999)

https://law.justia.com/cases/federal/district-courts/FSupp2/56/1190/2449343/

[2] Jimenez v. Mexicana Airways

https://casetext.com/case/jimenez-v-mexicana-airways

[3] Eastern Aırlınes, Inc. V. Floyd (1991)

https://caselaw.findlaw.com/court/us-supreme-court/499/530.html

[4] Plourde v Service Aérien FBO Inc (Skyservice) 2007 QCCA 739 https://www.canlii.org/en/qc/qcca/doc/2007/2007qcca739/2007qcca739.html

[5] Kotsambasis v. Singapore Airlines, 148 ALR 498 (42 NSWLR 110

https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1562522&fileOId=1565988

[6] Doe V. Etihad Airways 870 F.3d 406

https://casetext.com/case/jane-doe-v-etihad-airways-1