Australia: Post-traumatic stress disorder (PTSD) leads to compensation following aviation accident

In brief - PTSD found to be a form of compensable bodily injury

In Casey v Pel-Air Aviation, the plaintiff's post-traumatic stress disorder following an aircraft accident was found to be compensable under the Civil Aviation (Carriers' Liability) Act.

Careflight doctor and nurse sue operator of medical evacuation charter flight

On 15 May 2015 Justice Schmidt gave judgment in the Supreme Court of NSW in the matters of Casey v Pel-Air Aviation Pty Ltd and Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566. The decision has aroused significant interest from aviation insurers.

The matters concerned claims made by a doctor (Dr Helm) and a nurse (Ms Casey), who were employed by CareFlight (NSW) Ltd, against Pel-Air Aviation Pty Ltd, they being passengers aboard a medical evacuation charter flight operated by Pel-Air from Samoa to Norfolk Island, which ditched off the coast of Norfolk Island in heavy weather.

Passengers survive ocean crash during flight from Samoa to Norfolk Island

The facts giving rise to the claim, which we shall set out here only briefly, are undoubtedly harrowing. The ill-fated flight had been arranged to airlift a seriously ill passenger from Samoa to Norfolk Island for the purpose of obtaining urgent medical treatment for her in Australia.

The flight took off from Samoa without incident, but on the approach to the Norfolk Island airstrip, it became apparent that the weather conditions had deteriorated to such an extent as to make it very difficult to land. Four attempts were made to land the aircraft during the stormy weather, but in the end result the aircraft, being low on fuel, was forced to ditch in the ocean, in the darkness.

Somewhat miraculously, the aircraft's occupants survived the impact and were ultimately rescued by a fishing boat after spending some 90 minutes in the water off the coast of Norfolk Island. The plaintiffs, Dr Helm and Ms Casey (as well as the other occupants) suffered various injuries as a result of the crash, which were the subject of the proceedings in the Supreme Court of NSW.

Which forms of psychiatric harm were compensable?

It was not in dispute that the crash had been caused by the negligence of the pilot and co-pilot of the aircraft (for which Pel-Air had vicarious liability). Nor was it in dispute that the Dr Helm and Ms Casey had suffered injuries as a result of the crash. It was also not in issue that the claims were governed by the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Liability Act"), which implements, subject to some modification, the provisions of the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air ("the Convention").

What was in dispute, however, was which injuries (and specifically which of those psychiatric injuries suffered by Ms Casey, the nurse) were compensable pursuant to the Carriers' Liability Act. (In Dr Helm's case the basis of assessment in respect of the damages claimed by him was less controversial to those claimed by Ms Casey).

Application of the Carriers' Liability Act and the Convention

The Carriers' Liability Act provides as follows:

9B The 1999 Montreal Convention to have force of law
Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage.
9E Liability in respect of injury
Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

Consequently, Article 17 of the Convention, set out below, imposes liability upon a carrier for "bodily injury" in substitution for the civil liability which the carrier would otherwise, but for section 9B and 9E have, to the passenger:

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. (Emphasis added)

Plaintiffs' right to compensation confined to bodily injury

Ms Casey was found to have suffered or to have developed a number of physical injuries and various psychiatric injuries. Pel-Air conceded that a number of psychiatric injuries suffered by Ms Casey (including a major depressive disorder, a pain disorder and an anxiety disorder) were all compensable under the Carriers' Liability Act.

In addition to those psychiatric injuries, however, Ms Casey had also developed post-traumatic stress disorder. Pel-Air disputed that the PTSD from which Ms Casey was suffering was compensable under the Carriers' Liability Act, and this issue was argued before and ultimately determined by Schmidt J.

A preliminary issue between the parties was to what, if any, extent did the provisions of the Carriers' Liability Act depart from the regime established by the Convention such that passengers were granted wider rights to compensation for "personal injury" (a term of comparatively broad application) as opposed to for "bodily injury" (a term of comparatively narrow application and applicable under the Convention).

Schimdt J rejected an argument on behalf of Ms Casey that the Carriers' Liability Act granted her a right to compensation for "personal injuries" which she suffered in the crash. Following an analysis of the authorities, at paragraph [93], Schimidt J held that:

[Ms Casey's] rights to compensation under the [Carriers Liability Act] flow from s9B and Pel-Air's liability for those injuries are by s9E confined to any bodily injury which she has suffered. (Emphasis added)

Having determined that compensable loss in the context of Ms Casey's claim was for loss arising from "bodily injury", the court considered whether the PTSD from which Ms Casey was suffering was properly characterised as "bodily injury".

Aircraft operator argues that PTSD not a form of bodily injury

Pel-Air argued that the term "bodily injury" did not encompass PTSD. Pel-Air's position was that the PTSD from which Ms Casey was suffering was a psychiatric disorder that resulted from the trauma that Ms Casey experienced during the crash, and not a "bodily injury" within the meaning of Article 17 of the Convention.

In addition, Pel-Air argued that Ms Casey had failed to establish on the evidence that the PTSD from which she was suffering was the result of the physical injuries which she suffered, nor had it involved or caused any injury to her body, such that it would otherwise be brought within the definition of "bodily injury".

PTSD found to be a psychiatric disorder caused by physical harm to plaintiff

Schmidt J noted to the effect that in considering whether a psychiatric injury constituted a "bodily injury" for the purpose of the Carriers' Liability Act and the Convention, if it was proven that the psychiatric injury was caused by a physical injury to the brain or to other parts of the body, damages for both injuries were recoverable.

In addition, a psychiatric injury may of itself in a particular case be of a species of "bodily injury" compensable under the Convention.

Turning to the injuries suffered by Ms Casey, Schmidt J noted that she had suffered various injuries to her body, three psychiatric conditions and a pain syndrome, all of which were conceded to be compensable injuries under the Convention.

Schmidt J remarked that: "...a diagnosis of PTSD does not exclude the possibility that evidence in a particular case may establish that a person has suffered a bodily injury under [the Convention]".

She concluded that:

...the evidence establishes that the PTSD which Ms Casey suffers and for which she also has been unsuccessfully treated, is consequent on damage to her brain and to other of her bodily processes, which have had the result that her brain is no longer capable of functioning normally. Either the PTSD is at least in part a manifestation of that damage, or that damage has caused or contributed to the PTSD, or there is a combination of such cause and effect, which has put Ms Casey into the position she is now in. Whichever it is, the result is that the PTSD which Ms Casey suffers, is a compensable bodily injury.

Schmidt J concluded that on the balance of probabilities, Ms Casey's PTSD also involved an injury to her brain and other parts of her body involved in normal brain function - drawing from the dicta in the House of Lords decision in King v Bristow Helicopters Ltd, it was a "psychiatric injury caused by a physical route."

Burden remains on plaintiffs to prove that psychiatric disorders derive from bodily injury

Whilst the decision may be of assistance to plaintiffs suffering from psychiatric disorders as a result of aviation accidents, it is arguably substantially factually specific and the burden of proof will remain upon plaintiffs to establish that a psychiatric disorder or disorders (including PTSD) are "bodily injuries" within the meaning of that term under the Convention, to ground an action in damages.

It remains to be seen whether the decision will be disturbed on the almost inevitable appeal.

For further information, please contact:

Marcus Saw Andrew Tulloch
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Andrew Tulloch
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