A nurse whose life was shattered by the crash of an air ambulance off Norfolk Island has won her case against operator Pel-Air for post-traumatic stress disorder, in a decision that could have international ramifications.
Karen Casey was part of a medical evacuation team that ditched into the sea off Norfolk Island in 2009 when the Westwind jet ran out of fuel.
All six people in the aircraft survived but Ms Casey and doctor David Helm, who also successfully sued Pel-Air, were injured as they were flung around violently in their seats.
Ms Casey was also trapped in her seat by her seatbelt, surrounded by rising water, but managed to break free and help others remain afloat for the 90 minutes it took for rescuers to arrive.
In a decision that will attract international interest, the NSW Supreme Court ruled that the PTSD was not just the result of injury to her mind “caused by shock, fear and other emotional trauma”, but of damage to her brain and other parts of her body.
This means she is able to get compensation for the disorder under national and international rules governing air crashes.
Pel-Air argued the PTSD did not attract compensation under the Montreal Convention, the international agreement defining airline liabilities that informs the Australian Civil Aviation (Carriers Liability) Act, which allows only for “bodily injury”.
But judge Monika Schmidt ruled that Ms Casey’s PTSD was not merely the result of an injury to her mind “caused by the shock, fear and other emotional trauma caused by the crash”.
She said this was a psychiatric injury caused by a physical route.
“It must be concluded, on the balance of probabilities, that Ms Casey’s PTSD also involves an injury to her brain and other parts of her body involved in normal brain function,” she said.
The judge determined that Ms Casey was entitled to damages assessed in accordance with the Civil Liability Act and awarded costs against Pel-Air.
Carneys Lawyers partner and aviation specialist John Dawson said the decision appeared to widen the definition of bodily injury. Mr Dawson said Australia adopted the term in 2013 when it boosted the cap on damages that passengers in an air accident could claim, from $500,000 to $725,000.
“Post-traumatic stress disorder of itself has not been considered to be a bodily injury and therefore not compensable if you come within the scope of the convention or the act, which is based on the convention,” he said.
“It gives a wide meaning to the term bodily injury to say a psychological injury such as PTSD is compensable.”
Ms Casey said outside court it had been a long, hard fight and that there needed to be justice in aviation laws in Australia and internationally.
“I’m very happy with the outcome, but it’s certainly not over yet because it’s an international (issue) that needs to be recognised,” she told the ABC.
“No one should have to go through this again, no one.”
Source: The Australian
Author: Steve Creedy
Date: MAY 16, 2015