Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32
Court of Appeal, Supreme Court New South Wales
Facts
In November 2009 Ms Karen Casey, the respondent, was a nurse employed by Care Flight (NSW). She travelled on a small aircraft to Samoa to evacuate a patient and her husband to Melbourne. The aircraft was scheduled to refuel at Norfolk Island on the return journey but bad weather prevented the pilot landing, as a result of which he ditched the aircraft in the sea. All six of the persons on board were rescued after spending about 90 minutes in the water. The experience was terrifying for Ms Casey.
As a result of the incident Ms Casey suffered significant physical injuries, including spinal injuries and an injury to her right knee. In addition, Ms Casey suffered post-traumatic stress disorder (“PTSD”), a major depressive disorder and an anxiety disorder, and also developed a complex pain syndrome. These injuries, conditions and syndrome have been severely debilitating, precluding Ms Casey from working and seriously affecting her quality of life.
Issue(s)
The issue is summed up in paras 5 to 6 of the judgment:
- The first issue on Pel-Air’s appeal is whether the primary judge erred in concluding that Ms Casey’s PTSD constituted a “bodily injury”. Ms Casey may only recover damages for that type of injury by reason of the 1999 Montreal Convention relating to International Carriage by Air (“the Montreal Convention”). The Civil Aviation (Carriers’ Liability) Act 1959 (Cth) incorporated that Convention into Australian law.
- Whilst the restriction of damages to those related to “bodily injury” is a significant one, the Montreal Convention and its predecessor, the Warsaw Convention of 1929, imposed a strict liability on air carriers, removing the need for claimants to prove negligence to complete their causes of action. The terms of the Convention therefore represented a compromise between the interests of claimants and air carriers.
Discussion
At [47] to [53]:
As will be apparent from my references above at ([19] to [23]) to the medical evidence in the present case, there was no proof here that Ms Casey’s PTSD resulted from actual physical damage to her brain. However the more difficult question that arises is whether the biochemical changes in her brain, of which there is evidence in the present case (see [21] above), constitute “bodily injuries”. My conclusion is that they do not.
The two relevant Australian cases (Kotsambasis and American Airlines) are silent on this issue. However in Morris v KLM, the majority of the members of the House of Lords (Lords Hope, Mackay and Steyn) held that such biochemical changes do not constitute “bodily injuries”. Those Lords disapproved of the decision in Weaver and the first instance decision in Little Rock ([31] above). The former found for the plaintiff where there was evidence of “actual trauma to brain cells structures”, which in fact went beyond the evidence in the present case. In the latter, the evidence referred to “brain dysfunction” which conforms more closely to the evidence in the present case. Lords Hope, Mackay and Steyn took the view that a relevant injury to the brain had to be “capable of being demonstrated by means of an examination of the body of the passenger” (at [33] above), and therefore the psychiatric injuries in both the cases before the House of Lords were not compensable.
Lords Nicholls and Hobhouse took a more benign view of the decision in Weaver and seemingly accepted it as authoritative. However this was a minority opinion.
The US Supreme Court decision in Eastern Airlines v Floyd did not determine the present question, but the more recent American decisions in Little Rock (on appeal), Bobian and Jane Doe (see [42]-[45] above) are against Ms Casey’s claim. In Little Rock, evidence of abnormal brain functioning was found to be insufficient. In Bobian, claims were rejected because there was no evidence that the claimants’ brains had “changed physically from an earlier state” and in Jane Doe, Weaver was treated as wrongly decided.
Consistent with these case authorities, 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).
Conclusion as to whether Ms Casey’s PTSD has been proved to be a “bodily injury”
The effect of the experts’ evidence in this case was that whilst Ms Casey’s PTSD might reflect physical (as distinct from chemical or other) changes that had occurred to her brain, there was no evidence before them that such changes had in fact occurred. Their evidence justified a conclusion that Ms Casey’s brain was malfunctioning as a result of biochemical changes. However for the reasons that I have given above, such changes did not amount to “bodily injuries” within the meaning of that expression in the Montreal Convention.
It follows that the primary judge’s conclusion that Ms Casey’s PTSD was a “bodily injury” because normal functioning of her brain was impaired (see [15] above) was, in the absence of evidence of physical damage to the brain, erroneous.
Useful for
Damages not available for purely mental injuries under Article 17
