Aviation ache and injury suffered and the promotion of litigation

Compensation for moral harm is certainly the main reason for the extraordinary number of lawsuits in Brazil involving airlines.

Without going into the definition of moral harm under Brazilian law and jurisprudence, it can be said that it results from actions that impair a person’s personality, honor, reputation or dignity and cause psychological distress. The prerequisite for liability for such damage, however, is the causality between the actions or omissions of the injuring party and the damage. Even in the system of no-fault liability, these are mandatory prerequisites for a claim for damages to arise from this.

Although Brazilian law does not consider punitive damages, a doctrine of the common law system, Brazilian jurisprudence has included this concept in the scope of moral damages, which therefore has a twofold nature: compensation of the victim who has suffered psychological distress , and punishing the person who caused the damage for educational purposes.

In this context, the Brazilian courts have given rather peculiar interpretations in the sense that flight delays or cancellations, in addition to problems related to baggage transport, trigger moral claims for damages. In addition, such arbitral awards were awarded to relieve plaintiffs from having to prove that the alleged harm had occurred. This is known as presumed moral harm or “in re ipsa”. These interpretations do not hold up after a careful analysis of recent precedents and current legislation.

In 2019, the Third Senate of the Brazilian Supreme Court ruled on an appeal rapporteur Judge Nancy Andrighi (Supreme Court (Resp.) Appeal No. 1796716) that flight delays or cancellations did not constitute alleged moral harm (in re ipsa); therefore, compensation is only owed if it can be proven that an extraordinary circumstance has occurred which has caused psychological distress to the passenger. Subsequently, to end this discussion, Law No. 14,034, issued in 2020, added Article 251-A to the Brazilian Aviation Law, which stipulates that compensation for non-compensatory damage due to non-performance of contracts of carriage is dependent on evidence of actual occurrence by the The damage and its extent is dependent on the passenger.

Recent case law and lawmakers have gone well. It is unreasonable to assume that simple flight delays or cases of delayed or lost luggage cause degradation or damage to the person to be compensated, unless we live in a fragile society made up of citizens who face the general problems of everyday life. Admitting that facts like this or other setbacks we are exposed to on a daily basis give rise to a claim for compensation, would drive the level of intolerance in interpersonal relationships into unbearable, up to and including social chaos.

Likewise, it cannot be recognized that such situations lead to moral damage with a punitive character, in particular if the event is due to force majeure or unforeseeable circumstances or is motivated for reasons of flight safety, which occurs in the vast majority of situations in which air transport. In addition, the judiciary is not entitled to impose sanctions on airlines, even if they voluntarily fail to meet contractual obligations, as the authority to impose sanctions in these cases lies with the regulatory authority (ANAC – Brazilian Civil Aviation Authority). Finally, Article 29 of the Montreal Convention, whose applicability in Brazil was recognized by the Federal Court of Justice with general scope at the time of the proceedings in case 210, expressly prohibits punitive damages.

There are currently debates in Brazil about whether the Montreal Convention also applies to moral harm. However, the discussion about moral harm in connection with flight delays and cancellations or baggage problems goes beyond what is or is not stipulated in the aforementioned international agreement. The examination of its substitutability must concentrate on the origin of this alleged right in order to assess whether the claim is justified or not. And in the absence of evidence of the actual damage and the cause, such claims are to be rejected, as shown.

This conclusion is most relevant to the over-condemnation debate in Brazil. We have heard opinions from owners of online compensation websites that are, in fact, aimed at promoting litigation and defending the broad applicability of moral harm in aviation using the false argument that consumers need to be protected from alleged negligence by airlines. Indeed, the proponents of these theories advocate maintaining the alleged moral harm (“in re ipsa”) with punitive effects, since such a doctrine enables the creation of a financial product that consists of a right to indemnity like a “legal commodity” “as far as it is possible could result from a simple flight delay or loss of luggage, regardless of the behavior of the airline, the cause and the existence of the alleged damage.

Hence, the Brazilian legal community must consider what to strive for as a society, even if within the confines of the relationships discussed in this article. Do we want to promote a complaint culture for the simple benefit of complaint or do we want to promote an ethical society in which complaints are filed when there is harmful behavior and actual damage needs to be repaired?

Law No. 14.034 / 20, the rules and principles of the Montreal Convention as well as the latest case law, in particular the precedent from the proceedings in case 210 by the Federal Supreme Court, are already being applied by Brazilian courts in accordance with its “ratio Decisionndi” and the legal community with them the path to be taken. In this way we will achieve the legal certainty that is necessary both for effective consumer protection and for the development of Brazilian aviation, which can do a lot for the development of Brazil by connecting people, promoting trade, creating jobs and bringing the country to the outstanding Position and leadership position that is intended for him at international level. To do this, it is necessary to loosen the knots and shackles that result from excessive condemnation.

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