In this blog post, Max Archer of 12 King’s Bench Walk considers the recent judgment of the Court of Appeal of New South Wales in Pel-Air Aviation Pty v Casey, a case that has important ramifications for cases involving a psychiatric injury brought under the Montreal Convention. Max previously considered in detail the issues that arise in claims in this area in a previous blog post here.
Background
In November 2009 Ms Casey was travelling on a small aircraft flying from Samoa. The flight was scheduled to refuel at Norfolk Island, however, bad weather prevented the pilot from landing. The pilot was therefore forced to ‘ditch’ the aircraft in the sea. All six passengers were rescued, however, Ms Casey suffered spinal injuries and an injury to her right knee. She also suffered from PTSD, a major depressive disorder, anxiety disorder and complex pain syndrome.
Ms Casey brought a claim against Pel-Air under the Montreal Convention. The Convention is a complete set of rules pertaining to the civil liability of carriers to passengers incorporated into Australian Law. Ms Casey initially brought District Court proceedings against Pel-Air; those proceedings were subsequently transferred to the Supreme Court of New South Wales and judgment was entered in favour of Ms Casey in the sum of $4,877,604 AUS. She recovered damages under article 17 of the Convention which reads as follows:
‘The carrier is liable for damage sustained in 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.’
Ms Casey recovered damages in respect of all of her injuries, including her PTSD. The judge concluded that “a diagnosis of PTSD does not exclude the possibility that evidence in a particular case may establish that a person has suffered a bodily injury compensable under the Montreal Convention” and that the evidence before her established “that the PTSD which Ms Casey suffers and for which she has also been unsuccessfully treated, is consequent on damage to her brain and to other parts of her bodily processes, which have had the result that her brain is no longer capable of functioning normally”.
The Appeal
Pel-Air appealed the judge’s conclusion that Ms Casey’s PTSD constituted a ‘bodily injury’ for the purposes of the convention. Pel-Air submitted that the case law concerning the definition of ‘bodily injury’ did not justify a conclusion that any change in bodily condition or function was sufficient to constitute “bodily injury” within the meaning of the Convention. Secondly, if the judgment involved a conclusion that the evidence indicated that Ms Casey’s PTSD was the manifestation of some damage to her body, that conclusion was erroneous.
After reviewing the authorities in detail, the court concluded that the expression “bodily injury” connotes damage to a person’s body. This said, it was felt that there was no reason to hold that this excluded damage to a person’s brain. Thus if the evidence in a particular case demonstrated that there has been a physical damage to the brain, “bodily injury” will have been proved. This reasoning is consistent with the cases of Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110, American Airlines Inc v Georgeopoulos (No 2) [1998] NSWCA 273 and Morris v KLM Royal Dutch Airlines; King v Bristow Helicopters Ltd [2002] 2 AC 628, the leading English authority in this area.
The difficulty for Ms Casey was that the evidence did not, in the opinion of the Court of Appeal of New South Wales, demonstrate that her PTSD resulted from actual physical damage to her brain. Instead, the PTSD could be attributed to biochemical changes in the brain. This could not, in the view of the court, be said to constitute a “bodily injury”. This finding follows comments made in Morris by Lord Hope and Lord Steyn.
The experts in this case had not demonstrated that physical changes had occurred in Ms Casey’s brain. Their evidence justified the conclusion that Ms Casey’s PTSD was the result of biochemical changes. As such, the court was not prepared to find that the PTSD amounted to a “bodily injury”.
Comment
This decision is the fullest judgment yet on the issue of damages for purely psychological harm since Morris. It should be stressed that damages for psychological injuries contingent on physical injuries can be recovered under the Convention. This concession was made at first instance by Pel-Air and is entirely consistent with the authorities. Equally, where the evidence indicates ‘physical damage’ to the brain, Claimants can still recover.
Interestingly, the language of the Convention was dissected by the Court as follows:
‘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).’
This is a helpful attempt to interpret the Convention. That said, there was no attempt to go back to the travaux preparatoires in this case to fully flesh out such an interpretation. Thus the door is still open for a court to find a new interpretation of what the treaty drafters meant by “bodily injury”. However, there is little doubt that in light of the decision in Pel-Air it would take a bold court to find that purely psychological injuries were intended to be included under article 17.