The European Court of Justice has to deal with the Laudamotion engine defect and the subsequent evacuation of what was then the OE-LOA. The incident occurred on March 1, 2019 at London Stansted Airport. An Austrian is suing the company because she suffered post-traumatic stress disorder as a result of the incident.

The British accident investigators heavily criticized the former Austrian airline in their final report. Among other things, it was alleged that the responsible senior flight attendant lacked previous experience. Your promotion took place after less than a year of practice. The authority is also of the opinion that the evacuation of the machine was not necessary and that the instructions of the master were disregarded. The pilots were even surprised that passengers could suddenly be seen around the machine. However, since the still functioning engine was not switched off, but evacuation was initiated, a passenger was "thrown several meters through the air" according to court documents. The lady went to court.

An inmate of the OE-LOA suffered a post-traumatic stress disorder as a result of the incident and filed a lawsuit with the Schwechat District Court (reference number: 17 C 1014 / 19z-7). The defendant Laudamotion GmbH did not consider it necessary to comply with the summons of the court, so that the first instance issued a default judgment. Due to the absence, the position of the plaintiff was fully complied with. The verdict of the Schwechat District Court is dated November 12, 2019.

Laudamotion skipped first trial

Apparently the management of Laudamotion realized the scope of the default judgment, because the passenger was awarded a large sum of damages. This can also result in costly liability for consequential damage. On the other hand, the former airline filed an appeal, so that the case was heard before the Korneuburg Regional Court under the reference number GZ 22 R 39 / 20w-14. The judgment of April 7, 2020 shows that Laudamotion GmbH prevailed in the second instance and the lawsuit was therefore dismissed.

This did not end the matter, however, because the plaintiff filed an appeal on appeal and the case is now pending before the Supreme Court under the transaction number 2Ob131 / 20h. The Austrian Supreme Court has now submitted questions to the European Court of Justice for a preliminary ruling. The proceedings are suspended until the ECJ's assessment has been received.

The Supreme Court is of the opinion that this is a very tricky question, because under Austrian law Laudamotion would also be liable for purely psychological damage. However, the Montreal Convention speaks of liability for bodily harm. It is precisely from this point that the defendant Laudamotion does not want to pay the required healing costs of 4.353,60 euros and pain compensation of 2.500 euros, according to the court documents. The plaintiff also wants Laudamotion to be liable for all consequential damage. This is exactly what could be extremely costly for the former airline.

The Supreme Court submitted the following questions to the European Court of Justice for a preliminary ruling:

"1. Is a psychological impairment of a passenger caused by an accident, which reaches the level of illness, a "bodily harm" within the meaning of Article 17 Paragraph 1 of the Convention for the Unification of Certain Regulations for International Carriage by Air, which concluded on May 28, 1999 in Montreal on Signed 9 December 1999 by the European Community and approved on its behalf by Council Decision 2001/539 / EC of 5 April 2001?

2. If Question 1 is answered in the negative:

Does Article 29 of the aforementioned Convention preclude a right to compensation that would exist under the applicable national law? "

The Supreme Court also stated:

"4.4. According to Austrian law, if the other conditions are met, the injuring party is also liable for the consequences of purely psychological impairments, if these show a disease value, i.e. are in need of treatment (OGH 2 Ob 99/95; 1 ​​Ob 91 / 99k). This applies in particular to post-traumatic stress disorder that requires treatment (OGH 2 Ob 120 / 02i). In this case, according to general principles, the injuring party has to reimburse the material damage (in particular the healing costs) and to pay appropriate pain and suffering compensation to compensate for the immaterial damage.

5. Regarding the first question referred:

5.1. Art 17 para 1 MT provides (in the German version) compensation for damage caused by the fact that a traveler is killed or "physically injured". This “bodily harm” is referred to in the authentic language versions of the Convention (available to the court) as “bodily injury”, “lésion corporelle” and “lesión corporal”. Question 1 is directed to whether this term also includes psychological impairments that are of disease value but are not the result of an injury to the body in the narrower sense.

5.2. As far as relevant here, Art 17 Para 1 MT essentially corresponds to Art 17 of the Warsaw Convention for the Unification of Rules for International Air Transport (hereinafter: WA). (a) This does not follow from the (inauthentic) German version of Art 17 WA, which reads as follows: “The air carrier has to compensate for the damage caused by the fact that a traveler is killed, physically injured or otherwise harmed to health if the accident that caused the damage occurred on board the aircraft or when boarding or disembarking. "