Danos morais no transporte aéreo e fomento à judicialização

Por Ricardo Bernardi.

Compensation for moral damages is certainly the main reason for the extraordinary volume of lawsuits in Brazilinvolving airlines.
Without elaborating on the definition of moral damages according to Brazilian law and jurisprudence, one cansay that it results from acts that affect an individual’s personality, honor, good reputation, or dignity, causingpsychological distress. However, as a condition for imposing liability for damage of this kind, it is necessary toestablish causation between the action or omission of the wrongdoer and the damage. Even in the strict liabilitysystem, these are imperative conditions for the right to compensation to arise on this account.
Although Brazilian Law does not contemplate punitive damages, a doctrine of the common law system, Braziliancase law incorporated this concept in the scope moral damages, which, therefore, presents a dual nature:compensate the victim who suffered psychological distress and punish the person who caused the damage, foreducational purposes.
In this context, quite peculiar interpretations emerged in Brazilian Courts, in the sense that flight delays orcancellations, in addition to problems associated with carriage of baggage, triggers moral damages rights.Moreover, awards of this nature started being granted to exempt plaintiffs from proving the occurrence of thealleged damage. This is called presumed moral damage, or “in re ipsa”. These interpretations do not hold up aftera careful analysis of the most recent precedents and current legislation.
In 2019, the Third Panel of the Brazilian Superior Court of Justice, in an appeal whose judge-rapporteur wasJustice Nancy Andrighi (Appeal to the Superior Court of Justice (Resp) no. 1796716), decided that flight delaysor cancellations do not constitute presumed moral damage (
in re ipsa
); therefore, compensation will be due onlyif an extraordinary fact that caused psychological distress to the passenger is proven to have occurred.Subsequently, putting an end to this discussion, Law no. 14.034, issued in 2020, added Article 251-A to theBrazilian Aeronautics Code, establishing that indemnity for non-compensatory damage resulting from a failure inthe performance of carriage contracts is conditioned to the evidencing, by the passenger, of the actual occurrenceof the damage and the extension thereof.
The most recent case law and the legislator went well. It is unreasonable to consider that simple flight delays orevents of baggage delay or loss cause humiliation or damage to the personality subject to compensation, unless itis admitted that we live in a fragile society, made up of citizens unable to understand the common troubles ofeveryday life. Admitting that facts like these, or any other setback that we face on a daily basis, give rise to theright to compensation would raise the degree of intolerance in interpersonal relationships to unbearable, to thepoint of social chaos.
Likewise, it cannot be admitted that such situations give rise to moral damages of a punitive nature, especiallywhen the occurrence is due to force majeure or unforeseeable circumstances, or is motivated by flight safetyreasons, which occurs in the vast majority of the situations involving air carriage. Besides, it is not up to thejudiciary to impose penalties on airlines, even for any voluntary non-performance of contractual obligations,because the authority to apply penalties in these cases lies with the regulatory agency (ANAC – Brazilian Civil Aviation Agency). Finally, Article 29 of the Montreal Convention, which applicability in Brazil was recognizedby the Federal Supreme Court at the time of the trial of Matter 210 of general repercussion, expressly prohibitspunitive damages.
Currently, there are debates in Brazil on whether the Montreal Convention also applies to moral damages.Nevertheless, the discussion on moral damages associated with flight delays and cancelations or baggage issuesgoes beyond what is established or not in the mentioned international treaty. It is at the origin of this alleged rightthat the analysis of its compensability must concentrate, in order to assess whether the claim is justified or not.And, as shown, in the absence of proof of the actual damage and the causation, any and all claims of this kindmust be denied.
This conclusion is of utmost relevance to the debate on excessive judicialization in Brazil. We have been hearingopinions expressed by owners of online compensation websites, which in fact aims at fostering litigation,defending the broad applicability of moral damages in air transport under the false argument that consumers mustbe protected against supposed failures committed by airlines. In fact, the ones in favor of these theories advocatemaintaining the presumed moral damage (”
in re ipsa
“) with punitive effects legal doctrine, since such doctrineallows the creation of a financial product, consisting in an indemnity right like a “legal commodity”, to the extentit could surface from a simple flight delay or baggage loss, regardless the airline’s conduct, the causation, and thevery existence of the alleged damage.
Thus, the Brazilian legal community must consider what to aspire as a society, even if within the limits of therelationships discussed in this article. Do we wish to foster a culture of complaints for the simple advantage ofcomplaining, or do we wish to foster an ethical society, where complaints are filed when there is harmful conductand actual damage to be redressed?
Law no. 14.034/20, the rules and principles of the Montreal Convention, and the most recent case law, notablythe precedent resulting from the trial of Matter 210 by the Federal Supreme Court, if applied according to its“ratio decidendi”, already provide Brazilian Courts and the legal community with the path to follow. In this way,we will achieve the legal certainty that is necessary both for effective consumer protection and for thedevelopment of Brazilian aviation, which has a lot to contribute to the development of Brazil by connectingpeople, promoting trade, generating jobs, and leveraging the country to the prominent place and leadershipposition to which it is destined at the international level. To do so, it is necessary to release the knots and tiescoming from excessive judicialization.

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