Moral damage by flight delay depends on proof

A Fourth Class of the Superior Court of Justice (STJ) Recently ratified the understanding that mere delay or cancellation of flights does not, in itself, constitute sufficient reason for granting compensation for moral damages to passengers.

For the Court, it is necessary to prove the effective occurrence of overtime injury, considering the particularities of civil aviation. According to the court, moral damage cannot be presumed in these cases. Analysis of indemnity claims should take into account the peculiarities of air activity, which is subject to technical, operational, climate and human factors.

In the technical sphere, for example, the safety of operations requires inspection and correction of any failure before takeoff, which can cause inevitable delays. Regarding weather conditions, the STJ pointed out that changes in a locality can trigger chain delays in other regions, impacting the entire air network.

In the human aspect, situations such as health problems of crew or passengers and the exhaustion of the team’s workday are also causes that justify any delays.

The decision stresses that, even though the delay or cancellation related to the risk of air activity – considered internal fortuitous – in many cases its origin is in force majeure factors, as provided for in Articles 734 and 737 of the Civil Code.

Without the demonstration of concrete damage, the claim for compensation for moral damage must be removed by the lower instances.

According to the Brazilian Association of Airlines (Abear), in Brazil every 227 passengers, at least one lawsuit against airlines is registered. For comparison purposes in the United States, this number is an action for every 1.25 million passengers.