The issue of the
availability of mental injury damages under the Montreal Convention continues
to be debated despite the efforts made in the negotiations and drafting to
retain existing language to preserve judicial precedent relating to the Warsaw
Convention, thereby avoiding unnecessary litigation over issues already decided
by the courts.
In the United States
(US), courts had achieved a consensus that pure mental injuries were not
recoverable under the Warsaw Convention because such injuries cannot be
considered a ‘bodily injury’ within the meaning of Article 17, but recovery was
allowed for mental injuries to the extent they were caused by or flowed from a
bodily injury. Recent decisions in the US (and the European Union) have upset
this consensus and uncertainty exists as to the availability and scope of such
damages under the Montreal Convention. The courts in the US are once again
divided as to the whether the mental injury must flow from a ‘bodily injury’
and the EU has taken this even further by eliminating the need for any ‘bodily
injury’ for the recovery of mental injury damages.
This article provides
an overview of the law in the US related to the recovery of mental injury
damages under the Warsaw Convention, the development of the law under the
Montreal Convention and how some courts have reverted to the view rejected over
thirty years ago that mental injury damages are allowed under the Article 17
even if unrelated to the bodily injury.