In a landmark decision a NSW Supreme Court judge recently ruled a person who was seriously injured in a plane crash has the right to claim damages for Post Traumatic Stress Disorder from the air operator.
Key to the decision was Justice Monika Schmidt's acceptance that the definition of the words "bodily injury" could include PTSD. It is a term that was first used in 1929 for laws regarding compensation for air crash victims and it didn't include purely psychological injuries.
Victoria Gallanders, travel law specialist at Stacks Goudkamp, said compensation for international plane crash injuries today are under the Montreal Convention 1999.
The case centred on a nurse on a care flight that crashed into the sea near Norfolk Island after running out of fuel in 2009. The nurse had several serious physical injuries and the airline accepted they were liable for those injuries. The airline also conceded the nurse's depressive and anxiety disorders were caused by her physical injuries and should be compensated. However, the airline disputed that they should pay the nurse compensation for her PTSD.
Previous courts had found that "bodily injury" could include a psychological condition if that condition was caused by a physical injury, or if the psychological condition had caused a physical change to the injured person's body, such as an alteration to the function of the brain. The question before the Supreme Court was whether the nurse's PTSD fell into one of these categories.
The Supreme Court's landmark ruling was that the nurse's PTSD was caused, at least in part, by her physical injuries. It also found that psychiatric injuries may be proven to be a 'species of bodily injury', and that medical evidence supported that the nurse's PTSD had caused damage to her brain. The court therefore ruled that the nurse's PTSD was a "bodily injury" under Article 17 of the Montreal Convention, and as a result the nurse was entitled to compensation for her losses arising from this condition, as well as her other injuries.
Victoria Gallanders said it was a significant decision by the Supreme Court and is a step closer to all psychological injuries being compensable for air crash victims.
"This is a welcome decision which sensibly interprets archaic 1920s wording in light of contemporary aviation safety and advances in medical research," she said.
"Whilst some commentators may find this to be a ground-breaking decision, in my view it is in line with the previously decided US, UK and NSW cases which Justice Schmidt considers in detail, and is a natural evolution of case law in this area."
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