In November 2009, CareFlight sent a nurse and a doctor in its employ, Ms Karen Casey (Ms Casey) and Dr David Helm (Dr Helm), from Sydney to help transport a seriously ill patient from Samoa to Melbourne. The plane was operated by Pel-Air Aviation Pty Ltd (Pel-Air). On the flight to Melbourne, the plane was scheduled to land at Norfolk Island to refuel. It crashed during that leg and Ms Casey and Dr Helm were flung violently around in their seats, each suffering injuries as a result. They both sought to recover damages from Pel-Air.

While the assessment of particular damages were only in issue in Dr Helm’s case, the NSW Supreme Court in the recent case of Casey v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 was required to determine the following issues for Ms Casey:

  1. Whether the Civil Aviation (Carriers Liability) Act 1959 (Cth) (Act) intended to depart from the Montreal Convention to include a broader scope of injury; and
  2. Was Ms Casey’s Post Traumatic Stress Disorder (PTSD) compensable under the Act?

Does the Act depart from the Montreal Convention to include a broader scope of injuries?

Ms Casey argued s 9E intended to be a departure from the Montreal Convention granting passengers wider rights to compensation for ‘personal injury’ as distinct from ‘bodily injury’ under the Montreal Convention. Pel-Air contested this argument on the basis the proper construction of Article 17 of the Montreal Convention is that emotional distress unaccompanied by bodily injury are not compensable, nor are alterations to a person’s body associated with mental distress, or physical manifestations of emotional injuries. In order for Ms Casey’s PTSD to be compensable, Pel-Air said she needed evidence such injuries were caused by her physical injuries, which Pel-Air said no such evidence existed.

Justice Schmidt indicated that by enacting s 9E, the parliament intended to confine carriers’ liability to the compensation provided for under Article 17 of the Montreal Convention. Unlike other sections of the Act, s 9E does not expressly identify that a departure from the Montreal Convention is intended. The court also highlighted that no such departure in s 9E was supported by the relevant legislative history or case law. The legislative history indicates the term ‘physical injury’ was replaced with the term ‘bodily injury’ in the Act to harmonise Australia’s commitment under the Montreal Convention. The result of this finding is that apart from cases where death results, carriers are liable for damages only for ‘bodily injury’, a narrower class of injury than ‘personal injury’ which encompasses both physical and mental injuries.

Whether Ms Casey’s PTSD was compensable as a bodily injury under the Act?

Pel-Air conceded that Ms Casey’s complex pain syndrome, depression and anxiety disorders were compensable bodily injuries under the Montreal Convention, as they were mental injuries consequent upon physical injuries. However, Pel-Air disputed ‘bodily injury’ in Article 17 of the Montreal Convention encompassed PTSD. Pel-Air argued the evidence did not establish PTSD was the result of the physical injuries Ms Casey suffered or that it had caused any injury to her body.

Justice Schmidt indicated the evidence established, on the balance of probabilities, the PTSD which Ms Casey suffered was a bodily injury compensable under the Montreal Convention. Her Honour indicated the evidence established the PTSD was consequent on her brain being unable to function normally. Her Honour distinguished this from mere emotional upset such as fear, distress, grief or mental anguish which would not be covered by the Act.

Conclusion

Plaintiff lawyers and Senator Xenophon alike will welcome Justice Schmidt’s findings, albeit it could be cautioned the decision may not be entirely binding on similar cases where the nature of an alleged psychological injury differs. Whatever the case, the decision does highlight a changing perception of mental illness which is perhaps not all that difficult to accept given how long the aviation industry has relied on the tenets of the Montreal Convention.