Australia: Supreme Court Of New South Wales Rules That PTSD Can Be A "Bodily Injury" Under The Montreal Convention

Last Updated: 11 November 2015
Article by Michael Dery

In November 2009, an aircraft operated by Pel-Air Aviation Pty Ltd ("Pel-Air") flew from Sydney, Australia to Samoa to transport a seriously ill patient and her husband to Melbourne, Australia.  The plane was scheduled to land at Norfolk Island (on its way to Melbourne) to refuel.  It crashed during that leg of the flight and the doctor and nurse who were onboard the aircraft (Ms. Casey and Dr. Helm) were both seriously injured.  They commenced an action against Pel-Air in the Supreme Court of South Wales.

As this case involved an international flight, Ms. Casey and Dr. Helm could only recover damages according to the provisions of the Montreal Convention, an international treaty that exclusively governs such cases.  Courts around the world have recognized that in cases governed by the Montreal Convention, damages can only be recovered for "bodily injury" (i.e. physical injury) and not purely mental injury.

In its decision released on May 15, 2015 (click here), the Supreme Court of South Wales considered whether Ms. Casey could recover damages for Post-Traumatic Stress Disorder (PTSD), despite the overwhelming international jurisprudence finding that PTSD was not a "bodily injury".  The Court noted expert testimony recognizing that PTSD is primarily caused by an intense psychological experience, which physical disability, acute or traumatic, can exacerbate and that there is a vague link between PTSD and physical injury per se.  The experts testified that it was somewhat artificial to attempt to separate her PTSD from her other disorders.

Importantly, for the question of whether Ms. Casey's PTSD was a compensable bodily injury, the experts also agreed that Ms. Casey's disorders can intermittently and chronically lead to functional impairment, which reflects an alteration in a brain function, which was explained to be changed patterns of neurotransmitter activity and chemical changes in the brain. They agreed that the current state of scientific knowledge of brain functioning is greater in relation to depressive disorders than the other disorders which Ms. Casey suffers, but that the physiological changes associated with the three disorders, depression, anxiety and PTSD overlap.

The experts also agreed that as the result of developments in scientific research, it is also now known that there are a number of chemical neurotransmitting agents important in brain functioning.  They relay signals which regulate mood states, appetite, emotional reserves and help with other bodily functions.

On the basis of this evidence, the Court came to the conclusion that the PTSD which Ms. Casey developed and continued to suffer was not merely the result of an injury to her mind, caused by the shock, fear and other emotional trauma caused by the crash.  The Court concluded that Ms. Casey's PTSD also involved an injury to her brain and other parts of her body involved in normal brain function.

The Court ruled that the evidence was inconsistent with Ms. Casey's PTSD being caused only by the shock, fear and emotional trauma of the crash.  The Court could not separate the cause of the PTSD from the causes of the other two psychiatric conditions which she suffered and their consequences, including her ongoing problems with memory, concentration and other normal brain functions.

Finally, the Court noted that the conclusion that Ms. Casey's PTSD, like her other two psychiatric conditions, has a physical cause and/or is a manifestation of the injuries to her body and brain and not simply the result of an injury to her mind, was also supported by the evidence that her memory had been adversely affected.

It is clear that this decision goes against established international jurisprudence rejecting claims for PTSD in Montreal Convention cases.  It is not surprising that an appeal has been launched.

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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