14 May 2015 NSW Court decision – Post Traumatic Stress Disorder (PTSD) is “bodily injury”, compensable under the Montreal Convention 1999: Casey v Pel-Air Aviation Pty Ltd [2015] NSWSC 566
In November 2009, a small commercial jet ditched when it ran out of fuel near Norfolk Island.
The aircraft was operated by Pel-Air Aviation Pty Ltd and had six people on board including a nurse, Ms Karen Casey and Dr David Helm (the plaintiffs in Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566).
In Ms Casey’s case, the NSW Supreme Court had to decide whether some of her psychiatric injuries were compensable under the Montreal Convention regime which was introduced into Australian law in 2009 by amendments to the Civil Aviation (Carriers Liability) Act 1959.
Ms Casey sought compensation in respect of her post-traumatic stress disorder (PTSD).
Justice Schmidt held that the Act did not provide any broader rights to compensation in respect of “personal injury” than the rights to compensation for “bodily injury” under Article 17 of the Montreal Convention.
Her Honour decided that Ms Casey’s PTSD was compensable because, like all her other injuries, it is a “bodily injury”.
This decision, pending any potential appeals, is a positive step forward in international jurisprudence construing the Montreal Convention, because it recognises a serious and debilitating, yet all too common, injury suffered by the survivors of air accidents and serious incidents.
The Convention regime and Australian law should be updated to reflect this unequivocally, but an opportunity was lost to do so when the Montreal Convention was drafted in 1999. In a presentation at the ICAO Legal Seminar in Seoul, Korea on 26 May 2015, Joseph Wheeler argued that the victims of air crashes, who are lucky enough to survive unscathed but for their mental recollections of horror and distress, must be allowed to have this injury recognised as “bodily” by way of an update or amendment to the Montreal Convention which turned 16 years of age during the week of the Seminar.
The importance of the decision is reflected in the ABC Four Corners show which aired on 23rd March 2015 (more available here).
Finally, the decision was reported on by ABC News NSW, on 15 May 2015 and Joseph Wheeler also gave expert comment on the import of the decision for the aviation industry and its proponents (more available here).