Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 24 March 2022 ( )

Case C‑111/21

BT

v

Laudamotion GmbH

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling – Air transport – Montreal Convention – Article 17(1) – Liability of air carriers in case of accident – Concept of ‘bodily injury’ – Inclusion of psychological injury – Post-traumatic stress disorder following an accident occurring during a disembarking operation)





I. Introduction

1. Does the concept of ‘bodily injury’ used in Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’) ( ) cover an injury of a psychological nature which, although it has clinical significance, is not the result of a bodily injury stricto sensu? ( )

2. That question, which the Court is asked to answer here, arises against the backdrop of the recognition of mental suffering and psychological trauma within the right to compensation for bodily injury, a field in which hitherto the physical has taken precedence over the psychological, both on account of the nature of the litigation on the basis of which that right came into being and in the light of the limitations imposed until now by medical technology, ( ) as bodily injury stricto sensu is more visible and its existence more palpable and more immediate than psychological injury.

3. This request has been made in proceedings between a passenger and the airline Laudamotion GmbH (‘Laudamotion’). The applicant in the main proceedings brought a claim for compensation as a result of the post-traumatic stress disorder with which she was diagnosed following an accident that occurred during a disembarking operation. In the context of those proceedings, the Oberster Gerichtshof (Supreme Court, Austria) has doubts as to the scope of Article 17(1) of the Montreal Convention, which determines the circumstances in which a person who has sustained a ‘bodily injury’ on account of an accident, on board an aircraft or in the course of any of the operations of embarking or disembarking, may hold the air carrier that operated the flight liable.

4. In this Opinion, which, in line with the request made to the Court, is focused on the first question referred for a preliminary ruling, I will explain the reasons why the concept of ‘bodily injury’ under Article 17(1) of that convention should cover, regardless of any injury caused to the passenger’s bodily integrity, injury to his or her psychological integrity that is sustained as a result of an accident, where that injury is established by a medical report and requires medical treatment.

II. Legal context

A. International law

5. The second, third and fifth recitals in the preamble to the Montreal Convention state:

‘[The States Parties recognise] the need to modernise and consolidate the Warsaw Convention [( )] and related instruments;

[The States Parties recognise] the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution;

…

… collective State action for further harmonisation and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests’.

6. Article 17 of the Montreal Convention, which is entitled ‘Death and Injury of Passengers – Damage to Baggage’, provides, in paragraph 1 thereof:

‘1. 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.’

7. In addition, Article 29 of the Montreal Convention, which is entitled ‘Basis of Claims’, provides as follows:

‘In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.’

B. European Union law

8. Following the signing of the Montreal Convention, Regulation (EC) No 2027/97 ( ) was amended by Regulation (EC) No 889/2002. ( )

9. Recitals 1, 7, 10 and 18 of Regulation No 889/2002 state:

‘(1) In the framework of the common transport policy, it is important to ensure a proper level of compensation for passengers involved in air accidents.

…

(7) This Regulation and the Montreal Convention reinforce the protection of passengers and their dependants and cannot be interpreted so as to weaken their protection in relation to the present legislation on the date of adoption of this Regulation.

…

(10) A system of unlimited liability in case of death or injury to passengers is appropriate in the context of a safe and modern air transport system.

…

(18) To the extent that further rules are required in order to implement the Montreal Convention on points that are not covered by Regulation (EC) No 2020/97, it is the responsibility of the Member States to make such provisions.’

10. Under Article 1 of Regulation No 2027/97:

‘This Regulation implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions. …’

11. Article 2(2) of Regulation No 2027/97 provides:

‘Concepts contained in this Regulation which are not defined in paragraph 1 shall be equivalent to those used in the Montreal Convention.’

12. Article 3(1) of Regulation No 2027/97 provides:

‘The liability of a [Union] carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

13. On 1 March 2019, a passenger embarked on a flight operated by Laudamotion between London (United Kingdom) and Vienna (Austria). The left engine of the aircraft exploded during take-off, causing an evacuation of the plane. The passenger disembarked the aircraft via the emergency exit over the right wing and was hurled several metres through the air by the jet blast from the right engine which was still operating at that time.

14. Since then, that passenger has suffered from sleep and concentration disorders, mood swings, sudden episodes of crying, severe fatigue and stuttering. She has been diagnosed with post-traumatic stress disorder, for which she is receiving medical treatment.

15. The applicant brought an action before the Bezirksgericht Schwechat (District Court, Schwechat, Austria) against Laudamotion for a declaration that it was liable under Article 17(1) of the Montreal Convention as well as the payment of EUR 4 353.60, in respect of the medical expenses she has incurred, and EUR 2 500 in damages for pain and suffering, plus costs and expenses. Furthermore, she is also seeking a declaration that Laudamotion will be liable for any future damage and observes that, in any case, such liability is incurred under Austrian law.

16. By judgment of 12 November 2019, the Bezirksgericht Schwechat (District Court, Schwechat) upheld the action. That court found that Article 17(1) of the Montreal Convention was not applicable because that provision provides for the air carrier’s liability only for bodily injury, but that Laudamotion is liable under Austrian law, which provides for damages even for purely psychological injury if, as is the case here, that injury has clinical significance.

17. Laudamotion lodged an appeal before the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), which, by judgment of 7 April 2020, upheld the judgment of the court of first instance as regards the interpretation of Article 17(1) of the Montreal Convention but rejected the action as to the remainder on the ground that the application of Austrian law is precluded pursuant to Article 29 of the Montreal Convention.

18. The applicant lodged an appeal on a point of law against that judgment before the Oberster Gerichtshof (Supreme Court), which harbours doubts as to whether the concept of ‘bodily injury’, within the meaning of Article 17(1) of the Montreal Convention, covers purely psychological impairments and whether, if the answer is in the negative, an action for damages based on national law is excluded pursuant to Article 29 of the Montreal Convention.

19. In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the psychological impairment of a passenger, which is caused by an accident and has clinical significance, constitute a “bodily injury” within the meaning of Article 17(1) of the [Montreal Convention]?

(2) If Question 1 is answered in the negative[, d]oes Article 29 of that convention preclude a claim for compensation which would exist under the applicable national law?’

20. Written observations were lodged before the Court, on the one hand, by the defendant in the main proceedings and the European Commission, who are opposed to compensation being awarded for psychological injury, as such, under Article 17(1) of the Montreal Convention and, on the other hand, by the applicant in the main proceedings and the German Government which argue, by contrast, that psychological injury that has clinical significance must be eligible for compensation under that article.

IV. Analysis

A. Preliminary observations

21. As a preliminary point, it should be recalled that, with regard to the areas covered by the Montreal Convention, the Member States transferred their competence to that convention as regards the liability of air carriers for damage sustained in case of death or injury of a passenger. ( ) In addition, Article 3(1) of Regulation No 2027/97 provides that the liability of an air carrier in respect of passengers is to be governed by all provisions of the Montreal Convention relevant to such liability. ( ) Since those provisions thus form an integral part of the EU legal order, ( ) the Court has jurisdiction to rule on the interpretation of that convention.

22. Furthermore, like the concept of an ‘accident’, or even the concept of ‘damage’, the concept of ‘bodily injury’ within the meaning of Article 17(1) of the Montreal Convention is not defined. In such circumstances, the Court holds that, ‘in the light of the aim of that convention, which is to unify the rules for international carriage by air, that term must be given a uniform and autonomous interpretation, notwithstanding the different meanings given to that concept in the domestic laws of the States Parties to that convention’. ( )

23. To that end, the Court must take account not of the various meanings that may have been given to the concept of ‘bodily injury’ in the domestic law of the Member States but rather of the rules of interpretation of general international law, which are binding on the European Union. ( ) Thus, the Court is obliged to interpret that concept in accordance with Article 31 of the Vienna Convention, ( ) which codifies general international law, and under which a treaty must be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. ( ) Moreover, Article 32 of the Vienna Convention refers, as supplementary means of interpretation, inter alia to the preparatory work of the treaty concerned and the circumstances of its conclusion.

B. Interpretation of the concept of ‘bodily injury’ within the meaning of Article 17(1) of the Montreal Convention

1. Literal interpretation

24. With regard to the wording of Article 17(1) of the Montreal Convention, I note from the outset that only the six language versions of that instrument have been deemed to be ‘authentic’. ( ) Three of those versions correspond to official languages of the European Union, namely English (‘bodily injury’), French (‘lésion corporelle’) and Spanish (‘lesión coporal’). ( ) I see no significant difference between the various language versions, which are all consistent and homogeneous.

25. In accordance with the provisions of Article 31 of the Vienna Convention, the concept of ‘bodily injury’ must therefore now be interpreted in accordance with its ordinary meaning. That concept is both simple and complex. It is simple on the one hand because everyone understands that the injury consists in harm to the integrity of the human body. According to its ordinary meaning, the ‘injury’ is understood to be the localised impairment of an organ, tissue or cell due to an illness or accident. ( ) It is complex on the other hand because the word ‘bodily’ refers to the body, the physical part of a living entity, in particular a human being, as opposed to everything related to the spiritual world. ( )

26. In the light of those definitions, this is therefore seen in the collective psyche as the body as opposed to the mind, the bodily rather than the psychological, and therefore the notion of a ‘bodily injury’ categorically excludes any concept of a ‘psychological injury’ which does not ensue from harm caused to a person’s bodily integrity.

27. However, that view would, it seems to me, ignore the philosophical, legal and scientific issues that surround the definition of the body and reflect on its relationship with the mind. The body cannot be reduced to a mere object, something that can be touched and seen; it is also connected to an individual under the law whose integrity must be protected. Pursuant to Article 3 of the Charter of Fundamental Rights of the European Union, the right to the integrity of the person relates to that person’s physical and mental integrity. Accordingly, the correct approach is not to perceive ‘psychological injury’ in relation to the body but rather to determine whether ‘purely psychological' injury is deserving of compensation on the same basis as bodily injury stricto sensu.

28. It is by studying the context and the objectives surrounding the drafting of Article 17(1) of the Montreal Convention that it will be possible to give an answer to that question.

2. Contextual and teleological interpretation

29. I note, in the first place, that although the concept of ‘bodily injury’ does indeed appear in Article 17(1) of the Montreal Convention, the title of that article, ‘Death and Injury of Passengers – Damage to Baggage’, mentions only the term ‘injury’, without the adjective ‘bodily’. That adjective is also missing from Articles 20 and 21 of that convention, which lay down the conditions under which the air carrier may be exonerated from its liability or its obligation to pay compensation may be limited in case of ‘injury’ sustained by a passenger. It is ultimately only in Article 33(2) of the Montreal Convention, which concerns the court having jurisdiction vis-à-vis ‘damage resulting from the death or injury of a passenger’ that the adjective ‘bodily’ appears once more.

30. In that regard, the International Union of Aviation Insurers had proposed qualifying injury as ‘bodily’ throughout the text of the Montreal Convention to prevent the concept of ‘psychological injury’ finding its way back into an over-generous interpretation of the concept of ‘injury’. ( ) Whether through a lack of care or by deliberate decision on the part of the drafters, I note that the text was not locked into an overly narrow interpretation of the concept of ‘bodily injury’, and nor was the concept of ‘psychological injury’ expressly excluded from it.

31. Moving beyond the text of the Montreal Convention, the whole background to its drafting is, to my mind, revealing. Indeed, I note that the concept of ‘psychological injury’ appeared at several stages of the drafting process alongside cases of ‘death or bodily injury’, for which air carriers are liable. ( )

32. The Legal Committee of the International Civil Aviation Organization, which was tasked with drawing up a draft convention, was the first to have considered going beyond the Warsaw Convention by expressly including the term ‘psychological injury’ in that draft. ( )

33. Since the proposal was not accepted by the Special Group on the Modernization and Consolidation of the ‘Warsaw System’, ( ) only the words ‘bodily injury’ appeared in Article 16(1) of the Draft Convention. ( ) However, the willingness to include the concept of ‘psychological injury’ expressly was bolstered when a number of delegations proposed amending that article to include in it, once again, the words ‘psychological injury’, clarifying that that type of injury should create a right to compensation for the air passenger, even where that injury is not accompanied by a ‘bodily injury’ stricto sensu. ( )

34. In what follows, I will show, first, that the discussions that followed that proposal reflect a strong intent that compensation for ‘psychological injury’ be awarded on the same basis as ‘bodily injury’ stricto sensu and, second, that the fact that the term ‘bodily injury’ was used in the final text of the Convention does not reflect a desire to restrict compensation to certain types of injury.

(a) The intent that compensation for ‘psychological injury’ be awarded on the same basis as ‘bodily injury’ stricto sensu

35. Taking as a starting point the idea that it was not possible to divide human beings up into purely physical or psychological elements, ( ) whilst recognising that there was no legal or ethical reason not to award compensation for damage caused by ‘psychological injury’, ( ) the majority of the delegations argued in favour of the amendment of Article 16(1) of the Draft Convention for the Unification of Certain Rules for International Carriage by Air. ( ) Other delegations proposed even broader expressions, such as ‘injury’ without any adjective ( ) or ‘personal injury’. ( )

36. It cannot, however, be ignored that some delegations argued in favour of the original text and requested that the concept of ‘bodily injury’ be retained without reference to ‘psychological injury’. Two comments can be made in that regard.

37. First, some States Parties were of the view that the French term for ‘bodily injury’ (‘lésion corporelle’) already covered ‘psychological injury’, and that there was therefore no need to add an explicit reference to ‘psychological injury’. ( )

38. Second, some delegations opposed the addition of the term ‘psychological injury’ alongside ‘bodily injury’ because they feared that the former – extremely vague ( ) – term could lead to abuse and give rise to fraudulent claims for compensation since ‘psychological injury’ is difficult to prove. ( )

39. Aside from some expressed hesitation, the discussions culminated in a consensus, ( ) from which a new proposal would emerge: Article 16 of the Draft Convention for the Unification of Certain Rules for International Carriage by Air would be reworded by replacing, in paragraph 1, the term ‘bodily injury’ with that of ‘injury’ and adding, in a new paragraph 2, a definition of injury that covers ‘bodily injury’, psychological injury associated with bodily injury stricto sensu and ‘psychological injury’ which significantly impairs the health of the passenger. ( )

(b) The adoption of the words ‘bodily injury’ to allow a broad interpretation of the concept

40. Whilst very advanced proposals demonstrated a clear willingness to include the term ‘psychological injury’ in the wording of the Montreal Convention, a last-minute decision was taken to include in Article 17(1) thereof simply the words ‘bodily injury’. Does that sudden U-turn, although it is confusing, ( ) reflect however an intention to dispense with compensation for ‘purely psychological injury’? I do not believe so.

41. On the contrary, a statement made by the Plenary of the Montreal Convention explains that, for the purpose of interpretation of the Montreal Convention, the expression ‘bodily injury’ was chosen ‘on the basis of the fact that in some States damages for psychological injuries are recoverable under certain circumstances, that jurisprudence in this area is developing and that it is not intended to interfere with this development, having regard to jurisprudence in areas other than international carriage by air’. ( )

42. That statement follows on from concerns expressed by the United States, which pointed out that, in its jurisprudence, the term ‘bodily injury’ was already interpreted as including psychological injury associated with bodily injury stricto sensu. Thus, if the only progress which the Montreal Convention were able to make would be to refer to psychological injury resulting from bodily injury stricto sensu, that would be, for the United States, a ‘step backwards’ ( ) as far as concerns American jurisprudence.

43. The United Kingdom clarified that defining ‘psychological injury’ by adding a qualification, for instance ‘substantial’, would also be a ‘step backwards’. Passengers who were able to recover damages for psychological injury associated with bodily injury stricto sensu without that psychological injury having to have been deemed ‘substantial’ would no longer be able to obtain such damages if the Montreal Convention were to adopt an overly strict definition of ‘psychological injury’. ( )

44. It was to that end that the concept of ‘psychological injury’, included in Article 16(1) of the Draft Convention for the Unification of Certain Rules for International Carriage by Air, and the definition of the term, explained in Article 16(2), were removed. The various forms of words proposed during the revision of that draft were not, therefore, intended to interfere with the continued development of jurisprudence, which will have to address the requirements of contemporary society. ( )

(c) Compensation for ‘psychological injury’ in contemporary society

45. Any final doubts that might remain as regards the correct meaning of the term ‘bodily injury’ can be dispelled, in my view, by reference to the current approach in relation to human health.

46. In the first place, there is no longer a dichotomy in the current approach, which is rather based on the view that physical health and mental health form a whole. The World Health Organization defines ‘health’ as a ‘state of complete physical, mental and social well-being and not merely [as] the absence of disease or infirmity’. ( ) As for Article 3 of the Charter of Fundamental Rights, I note that it enshrines the right to integrity as the right of everyone to respect ‘for his or her physical and mental integrity’. In the field of transport and, in particular, that of civil liability insurance in respect of the use of motor vehicles, the Court has held that ‘the notion of “personal injuries” covers any type of damage … resulting from an injury to bodily integrity, which includes both physical and psychological suffering’. ( ) Lastly, as a matter of criminal law, national legislatures today view violence against the person in such a way that that dual component of bodily integrity and mental integrity is brought to the fore, bolstered by the offence of psychological violence or abuse. ( )

47. It therefore appears to be crucial nowadays for the concept of ‘bodily injury’ to be interpreted such that, on the same basis as injury to a person’s bodily integrity, injury to a person’s psychological integrity is recognised once it impairs the ability of the person affected to use his or her body or mind to do what he or she used to do. ( ) Any event that is out of the ordinary and experienced by the individual as a serious and immediate threat to life, such as a natural disaster, a terrorist attack, a serious transportation accident or indeed an assault ( ) may constitute a trauma which, albeit of a psychological nature, is just as real and devastating as bodily injury as such. Excluding such psychological injuries from the concept of ‘bodily injury’ would be an ‘out-dated and an untenable dichotomy’. ( ) In addition, how could one explain two people who have been injured – one physically and the other mentally, or even one mentally as a result of bodily injury stricto sensu and the other ‘purely mentally’ – to the same extent as a result of the same accident not being awarded equal compensation by the air carrier? ( )

48. In the second place, I would point out that the Montreal Convention was to mark a turning point as compared with the primary object pursued by the Warsaw Convention, namely to limit the liability of air carriers in order to foster the growth of the civil aviation industry, then in its infancy. ( )

49. It is apparent from the second, third and fifth recitals in the preamble to the Montreal Convention that, in addition to the objective of ‘modernising and consolidating’ the Warsaw Convention, the new convention seeks to ensure the ‘protection of the interests of consumers in international carriage by air’ and ‘equitable compensation based on the principle of restitution’, by means of a system of objective liability for air carriers, whilst preserving an ‘equitable balance of [the] interests’ concerned. ( )

50. Nowadays, allowing an air passenger to obtain compensation on account of psychological injuries resulting from a transportation accident on the same basis as such injuries occasioned by bodily injuries would be entirely consistent with those objectives.

51. It must be recalled that the burden of proof rests with the air passenger. The air carrier can be held liable only in so far as the injured passenger shows, on the basis of a medical report, injury to his or her psychological integrity, sustained as a result of an accident, that is of such gravity and intensity that that injury significantly affects their health and will not wane without medical treatment. Such an approach allows the ‘equitable balance of interests’ between air carriers and passengers ( ) to be retained, with the former able to protect themselves from fraudulent claims for compensation, such that a very heavy burden of damages that is difficult to identify and calculate is not imposed on them, which might jeopardise, or even paralyse, their economic activity. ( )

52. It is in the light of all the foregoing that I propose that the Court rule that Article 17(1) of the Montreal Convention is to be interpreted as meaning that the concept of ‘bodily injury’ covers, regardless of any injury caused to the passenger’s bodily integrity, injury to his or her psychological integrity that is sustained as a result of an accident where that injury is established by a medical report and requires medical treatment.

53. In view of the answer that I propose is given to the first question referred for a preliminary ruling, there is no need to examine the second question submitted by the referring court.

V. Conclusion

54. In the light of the foregoing considerations, I propose that the Court answer the first question referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria) as follows:

Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 is to be interpreted as meaning that the concept of ‘bodily injury’ covers, regardless of any injury caused to the passenger’s bodily integrity, injury to his or her psychological integrity that is sustained as a result of an accident where that injury is established by a medical report and requires medical treatment.