Air transport. The Court of Justice rules on the concept of “bodily injury”

On 20 October 2022, the Court of Justice handed down its judgment in Case C‑111/21, BT v Laudamotion GmbH, on the interpretation of Article 17(1) and Article 29 of the Montreal Convention. The request has been made in proceedings between BT and Laudamotion GmbH (“Laudamotion”), an air carrier, concerning a claim for compensation brought by BT as a result of post-traumatic stress disorder suffered as a result of an emergency evacuation of the aircraft which was to carry her.

During the take-off of a flight operated by Laudamotion between London and Vienna, on which BT was embarked, the left engine of the aircraft exploded, causing an evacuation of passengers. While disembarking via the emergency exit, BT was hurled several metres through the air by the jet blast from the right engine which had not yet been shut down, which caused her post-traumatic stress disorder.

BT addressed the Bezirksgericht Schwechat (District Court of Schwechat), which upheld her action against Laudamotion. The latter, therefore, appealed the Landesgericht Korneuburg (Regional Court of Korneuburg), which set aside the judgment at first instance and dismissed the action for damages. Consequently, BT brought an appeal on a point of law before the Oberster Gerichtshof (Austrian Supreme Court; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice two questions for a preliminary ruling.

By the first question, the referring court asked whether Article 17(1) of the Montreal Convention must be interpreted as meaning that a psychological injury, if it has clinical significance caused to a passenger by an “accident” within the meaning of that provision, must be compensated in accordance with that provision.

According to the Court, the liability of the air carrier can be incurred, on the basis of Article 17(1) of the Montreal Convention, only if the aggrieved passenger demonstrates, to the requisite legal standard, by means in particular of a medical report and proof of medical treatment, the existence of an adverse effect on his or her psychological integrity suffered as a result of an “accident”, within the meaning of that provision, of such gravity or intensity such that it affects his or her general state of health, in view of its psychosomatic effects, and that it cannot be resolved without medical treatment.

In light of the answer given to the first question, the Court deemed it unnecessary to answer the second one, by which the referring court asked whether Article 29 of the Montreal Convention precludes a claim for compensation which would exist under the applicable national law.

Marco Stillo