Mental Injury Damages under the Montreal Convention 1999 as Developed by the United States

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.