Australia: Reconsidering Post-Traumatic Stress Disorder (PTSD) as a bodily injury

Last Updated: 12 April 2017
Article by Marcus Saw and Laura Tulloch

IN BRIEF - MEDICAL EVIDENCE NECESSARY TO SHOW ACTUAL PHYSICAL DAMAGE TO BRAIN TO SATISFY "BODILY INJURY" IN PEL-AIR APPEAL

The New South Wales Court of Appeal decision in Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 denies plaintiffs suffering from a PTSD condition a claim under the Montreal Convention in the absence of compelling evidence of physical change to the brain.

PEL-AIR'S SUCCESSFUL APPEAL IS GOOD NEWS FOR AVIATION INSURERS

On 24 June 2015, we reported on the decision of Casey v Pel Air Aviation in our article entitled Post-traumatic stress disorder (PTSD) leads to compensation following aviation accident, and indicated that the damages award was a landmark decision for aviation insurers when a substantial award of damages was handed down.

Pel-Air Aviation Pty Ltd appealed the decision to the New South Wales Court of Appeal in Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32, and the result handed down on 9 March 2017 will bring a sigh of relief from aviation insurers.

NSW SUPREME COURT AWARDS MS CASEY DAMAGES FOR PHYSICAL AND PSYCHIATRIC INJURIES SUFFERED IN AIRCRAFT ACCIDENT

The plaintiff/respondent to the appeal, Ms Casey, was a nurse employed by Care Flight (NSW) who travelled on board a small aircraft to evacuate a patient and the patient's husband from Samoa to Melbourne.

The aircraft, which was due to refuel at Norfolk Island, was unable to land due to heavy weather and was forced to perform an emergency landing in the sea. Miraculously, the aircraft's occupants survived the impact and were rescued after spending 90 minutes in the water.

Ms Casey alleged that, as a result of the incident, she sustained physical injuries to her spine and to her right knee and psychiatric injuries, including post-traumatic stress disorder (PTSD), major depressive disorder and an anxiety disorder.

At first instance, the Supreme Court entered into judgment in favour of Ms Casey in the sum of $4,877,604.

ISSUES ON APPEAL INCLUDE WHETHER PTSD IS A "BODILY INJURY" IN ACCORDANCE WITH ARTICLE 17(1) OF THE MONTREAL CONVENTION

Pel-Air Aviation Pty Ltd appealed the decision and the questions on appeal were as follows:

  1. Whether Ms Casey's PTSD is a "bodily injury" in accordance with the 1999 Montreal Convention.
  2. Whether the damages award was incorrect in respect of non-economic loss and care and treatment expenses.
  3. Whether the evidence justified an award of funds management, particularly if PTSD was not a "bodily injury".

Ms Casey brought her claim for damages pursuant to the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (Carriers' Liability Act) which incorporates the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (1999) (the Convention) into Australian law.

Pursuant to Article 17(1) of the Convention, "The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking".

IS PTSD A BODILY INJURY?

At first instance, Pel-Air conceded that Ms Casey's major depressive disorder, a pain disorder and an anxiety disorder were, at least in part, caused by Ms Casey's physical injuries and by extension could form part of the "bodily injury" compensable under the Carriers' Liability Act. However, Pel-Air disputed that Ms Casey's PTSD was a "bodily injury".

On appeal it was argued by Pel-Air that "bodily injury" suggests damage to a person's body, including a person's brain. It was also conceded by Pel-Air that in circumstances where there is physical damage to a person's brain, bodily injury would be proven. However, in circumstances where a person's brain is considered to be malfunctioning as a result of biochemical changes, it was contended by Pel-Air that this change was not sufficient to constitute a "bodily injury".

The Court relied upon a Joint Report of the psychiatric expert witnesses, who considered several questions relevant to the matters at issue. Relevantly, the experts concluded that:

  • a reference to "brain function" is a reference to chemical changes in the brain, and
  • while there is evidence which suggests that some persons suffering from PTSD or generalised anxiety disorder can suffer from physical changes to specific areas of the brain, there was no evidence available to the experts to suggest the plaintiff had structural changes in her brain

BIOCHEMICAL CHANGES IN BRAIN DO NOT CONSTITUTE BODILY INJURY, COURT CONCLUDED

Macfarlan JA gave the lead judgment, with Ward JA and Gleeson JA agreeing.

Macfarlan JA considered a variety of case examples in order to determine whether Ms Casey's PTSD was a "bodily injury". He concluded that, "if the evidence in a particular case demonstrates that there has been a physical destruction of a part or parts of the brain, "bodily injury" will have been proved". Therefore, it needs to be shown on the medical evidence that there has been an "actual physical damage" to the claimant's brain.

In the circumstances of this case, there was no medical evidence to suggest that Ms Casey's PTSD resulted from actual physical damage, which raised the question as to whether the "biochemical changes in her brain...constitute 'bodily injury'".

Macfarlan JA concluded that they do not, relying on Morris v KLM Royal Dutch Airlines; King v Bristow Helicopters Ltd [2002] 2 AC 628, where majority of the House of Lords concluded that biochemical changes were not sufficient to constitute "bodily injuries". Macfarlan JA stated at paragraph 51 that:

"I consider that it is insufficient for a claimant to prove that the function of his or her brain has changed or even that chemical changes have occurred in it. In the absence of compelling medical evidence to the contrary, such malfunctioning or chemical changes cannot fairly be described as "injuries" to the body. Moreover, importance must be attached to the adjective "bodily" as a limiting word. It clearly 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)."

As such, Macfarlan JA was not satisfied that Ms Casey's PTSD was a "bodily injury".

IMPACT OF THE DECISION ON MS CASEY'S DAMAGES AND FUNDS MANAGEMENT

Unfortunately for Pel-Air, despite successfully arguing that Ms Casey's PTSD did not constitute a "bodily injury", Macfarlan JA was not satisfied that the award for non-economic loss would be substantially reduced. The primary judge assessed Ms Casey as having non-economic loss at 80% of the "most extreme case". Despite the PTSD being the "most significant cause of her mental harm", disentangling Ms Casey's psychiatric condition led the Court to consider that her condition "would not be significantly better than it is" and therefore it would suggest the appropriate reduction be only 10%.

In terms of the claim for future hospitalisations (an average of 1.5 admissions per year) and gratuitous care (past and future), no reductions were made to account for the removal of the PTSD condition. (However, a minor amendment was made to an anomaly to the rate for future care.)

Pel-Air contended that if Ms Casey did not have PTSD, she did not require the costs for managing her damages. Pel-Air relied upon the evidence that Ms Casey was able to manage with the assistance of her family members.

The Court referred to Ms Casey's treating doctors who referenced her "current cognitive capacity, short term memory problems, concentration, difficulty making decisions and impaired judgment" which ultimately rendered her incapable of satisfactorily managing her affairs. The Court's view was that her family would not continue to be available to assist her. As such, Macfarlan JA made an allowance of $872,000 (calculated by reference to the National Australia Trustee Limited rates) for Ms Casey's fund management, noting that these rates were not considered to be "outside the market".

Andrew Tulloch Marcus Saw
Insurance and reinsurance
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.

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
Marcus Saw
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
 
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