Australia: Court of Appeal cant see landmark in crash landing case

The New South Wales Court of Appeal has quashed a landmark decision that saw an aircraft accident survivor awarded compensation for post-traumatic stress disorder.

A 2015 decision of the New South Wales Supreme Court was thought to be the first case where an air carrier was found liable for post-traumatic stress disorder (PTSD) (a purely psychiatric injury) under an international aviation convention.

However, this decision has just been overturned in Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 when the Court of Appeal found in favour of the appellant, Pel Air Aviation, that the PTSD did not constitute a "bodily injury" and therefore was not compensable under the Civil Aviation (Carriers' Liability) Act.

The case is of significant value in the aviation industry to solidify the ability of the Carriers' Liability Act to exclude a range of psychological complaints which may, at the same time, significantly curtail the operation of other statutory frameworks such as discrimination laws.

While the Court of Appeal has left open a window to link back a psychiatric claim to bodily injury, immediate steps taken by airlines to limit the effects of in-flight trauma may further assist to limit liability

The plane crashes in the ocean

An ill-fated flight between Samoa and Melbourne in November 2009 had been arranged to obtain urgent medical treatment for a passenger in Australia. Among the occupants of the aircraft was Ms Casey, a nurse in the employ of CareFlight (NSW) Limited, who was sent to treat the passenger during the flight.

Ferocious weather depleted fuel supplies and a refuelling stop was planned on Norfolk Island. After four failed attempts to land, the aircraft had used up the last of the fuel and the pilot was forced to ditch the plane in the ocean. Astoundingly the occupants of the aircraft survived the impact and were ultimately rescued by a fisherman after spending 90 minutes in the middle of the ocean after the plane sunk.

Not surprisingly Ms Casey suffered significant physical injuries, including spinal injuries and an injury to her right knee. In addition, she suffered PTSD, a major depressive disorder, an anxiety disorder and developed a complex pain syndrome.

Missing the mark

It was not in dispute that Ms Casey suffered the injuries during the crash or that the claim was governed by the Carriers' Liability Act which implements, subject to some minor modifications, the provisions of the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air.

Pel Air Aviation accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability. Therefore, it conceded that Ms Casey's physical injuries and the psychiatric injuries flowing from the physical injuries were all compensable under the Carriers' Liability Act.

The issue in dispute was whether Ms Casey's PTSD was compensable. Pel Air Aviation argued the PTSD was caused by the trauma of the incident and was accordingly a 'pure psychiatric injury'. As the Montreal Convention restricts liability to "bodily injuries", PTSD should not be included.

After hearing submissions from Pel Air Aviation, the Supreme Court decided it had relied too heavily on international cases and paid insufficient attention to two Australian cases which left open the issue of whether psychiatric injuries could be compensable under the Montreal Convention and Carriers' Liability Act.

The Court concluded that, either the PTSD is at least in part a manifestation of the bodily injury, or that bodily injury caused or contributed to the PTSD, or there is a combination of such cause and effect. Whichever it was, the Court said, the result was that the PTSD Ms Casey suffered, was a compensable bodily injury.

Judgment was entered in favour of Ms Casey for the sum of $4,877,604.

The Court of Appeal finds PTSD is not a "bodily injury"

One of the major issues of the appeal was whether the primary judge erred in concluding that Ms Casey's PTSD constituted a "bodily injury".

In quashing the decision at first instance, the Court of Appeal found that while "bodily injury" does not exclude consideration of damage to a person's brain there must be evidence of actual physical damage to the brain. The Court held that there was no evidence that Ms Casey's PTSD resulted from actual physical damage to her brain.

It also considered whether the evidence provided of biochemical changes in her brain constituted "physical damage". While the primary judge rejected Pel Air Aviation's dependence on certain international cases, the Court of Appeal drew on these same cases in deciding that evidence of abnormal brain functioning and chemical imbalance was insufficient to prove a bodily injury.

In deciding this the Court of Appeal has realigned the Australian position with the dominant position internationally that:

  • the adjective "bodily" is a limiting word that draws a distinction between bodily and mental injuries;
  • mental injuries are covered only if they are:
    • a manifestation of physical injuries; or
    • if they result from physical injuries (including physical injuries to the brain).

Takeaways for the aviation industry

While airlines and aviation insurers can breathe a sigh of relief after the Court of Appeal's decision, it has not completely quashed the possibility of compensation being awarded for a pure psychiatric injury under the Montreal Convention in the future.

The Court of Appeal has left it open for developments in medical research to produce evidence that psychiatric disorders can cause physical (as opposed to chemical) changes to the brain.

Accordingly, this issue is unlikely to go away. Future cases dealing with this issue may include complex medical evidence from individuals trying to prove physical damage to their brain as a result of in-flight trauma.

Further, individuals who suffer psychological injuries may be more inclined to frame their injuries or concerns as arising, where possible, outside of the confines of the Carriers' Liability Act (which is restricted to embarkation, disembarkation and during flight). This will be particularly so in discrimination cases where claims for suffering hurt and humiliation cannot point to a bodily injury.

If a claim does arise on board, the airline can consider taking steps to offer and provide immediate and, in some cases, ongoing support to passengers who have suffered in-flight trauma, including, for example:

  • in-flight emergency response procedures that take into account recommendations from trauma experts;
  • offer of immediate assistance to trauma victims and their families (which can include counselling); and
  • keeping records of passengers potentially suffering from trauma and implementing systems for ongoing management.

These responses are designed to reduce the extension of a psychological complaint to a physical and minimise the extent of any complaint arising.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions