This summary is about:
1. Is PTSD also a physical injury even though it is generally considered
to be a psychological injury?
2. When injured on an aircraft, what are the passenger’s rights?
This a review of the important recent decision from the NSW Supreme Court:
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd
NSW Supreme Court
Justice Schmidt
Decision: 15 May 2015.
This disturbing case has everything. It has remote holiday locations in the South Pacific, miles of ocean, hot tubs (for experts in Court), a tragic air crash and a rescue mission where the rescuers ultimately needed rescuing.
The Warsaw Convention (1929) serves a number of purposes including compensation to airline passengers for injury and for loss of freight. International air carriage is regulated by agreements between nations and is managed by the International Civil Aviation Organisation (ICAO). That Convention was amended by the Montreal Convention in (1999) which tightened up the rules in relation to compensation to passengers and for loss of freight. Importantly for passengers, injuries were compensated on a strict liability basis up to the value of 113,100 SDR (special drawing rights), which is about AUS$200,000. If a plaintiff wishes to claim damages greater than that amount in a case they must demonstrate that the airline was negligent.
Justice Schmidt in her judgment refers to the facts.
A Care Flight nurse, Ms Casey and a doctor, Dr Helms are sent from Melbourne to repatriate a sick patient from Samoa to Australia in November 2009.
Having collected the patient the aircraft heads back to Sydney via Norfolk Island. They were to refuel there. But due to very inclement stormy weather the pilot couldn’t land the plane. He ran out of fuel and had to ditch his plane in the ocean just off Norfolk Island. Thankfully the aircrafts plight and the crash was known to those on the ground at Norfolk Island. A rescue mission for the rescuers began in the stormy night; local fishermen collected all aboard the aircraft. Thankfully no one died in the crash. There were however serious injuries received by those on board, including the nurse and doctor.
The Montreal Convention has not been the subject of a lot of litigation, but the Warsaw Convention has been.
Article 17 in the Conventions deals with compensation for bodily injury.
The nurse on that aircraft was Ms Casey. Ms Casey suffered psychological injury including a complex pain syndrome, depression and anxiety disorders. The airline accepted that they were bodily injuries. This is because they arose directly on and from her experience of her physical injuries.
Ms Casey was also diagnosed with Post Traumatic Stress Disorder (PTSD). The airline said that her PTSD was not a bodily injury. The airline said that PTSD did not involve any physical injury or bodily injury. Nor did the PTSD arise from or come on as a consequence of physical injuries received.
Her honour concluded however in a land-breaking decision that in consequence of the damage to Ms Casey’s brain and to other of the bodily processes, Ms Casey’s PTSD was at least in part a manifestation of that injury, or that damage had caused or contributed to the PTSD, or there is a combination of such cause-and-effect.
“ Whichever it is, the result is that the PTSD which Ms Casey suffers, is a compensable bodily injury.”
In coming to the conclusion Justice Schmidt rejected the airline’s construction of article 17. There was alot of caselaw to back them up. Several decisions from United States of America were against PTSD being a bodily injury because of the absence of evidence of actual physical change within the brain.
Justice Schmidt however preferred the reasoning, and consequently followed, a decision from the English House of Lords, King v Bristow Helicopters Ltd (2002). In that case Lord Hobhouse stated[138]
“bodily injury” (in the Convention) does not import visibility nor palpability nor externality.… take an incident which ruptures a spleen or causes some other internal injury. The doctor infers that the injury has been caused from other signs and symptoms and ultimately confirms it by .. investigation” such a scan.
And he said [143] “thus, bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish. A psychiatric illness may often be evidence of a bodily injury…” and “… physical changes can be scanned and observed using sophisticated instruments. Alterations in the normal chemistry of the brain can now be detected by sophisticated sampling techniques.”
Justice Schmidt [216] also referred to the evidence of the two psychiatrist who gave evidence concurrently (known as hot tubbing). “The experts also agreed that Ms Casey’s disorders can intermittently and chronically lead to functional impairment, which reflects an alteration in brain function, which was explained to be changed patterns of neurotransmitter activity and chemical changes in the brain. “
In conclusion Her honour stated that Ms Casey had developed and continues to suffer from these psychological injuries and that “it must be concluded, on the balance of probabilities, that Ms Casey’s PTSD also involves an injury to her brain and other parts of the body involved in normal brain function.
Therefore Ms Casey was compensated for her serious injuries which included her PTSD, and was awarded significant damages.