Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd

[2015] NSWSC 566

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566
Hearing dates:	2 February 2015, 3 February 2015, 4 February 2015, 5 February 2015 and 6 February 2015
Date of orders:	15 May 2015
Decision date:	15 May 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Judgment for the plaintiffs
Catchwords:	TORTS – negligence – negligence of airline operator – whether injuries compensable under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) - damages - non-economic loss – economic loss – superannuation – out-of-pocket expenses – past and future care - STATUTORY CONSTRUCTION – relevant rules of statutory construction - construing International Conventions - the purpose of the Montreal Convention – proper construction of s 9E of the Civil Aviation (Carriers’ Liability) Act – post traumatic stress disorder (‘PTSD’) claim – PTSD and the proper construction of Article 17 of the Montreal Convention – evidence establishes that plaintiff’s PTSD is a compensable “bodily injury”
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Aviation Legislation Amendment (Liability and Insurance Act 2012 (Cth) Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Civil Liability Act 2002 (NSW) Carriage by Air Act 1935 (Cth) Interpretation Act 1987 (NSW) International Monetary Agreements Act 1947 (Cth) Motor Accidents Act 1988 (NSW)
Cases Cited:	Air France v Teichner and Ors (1984) 7 S&B Av R 141 American Airlines Inc v Georgeopoulos And Anor [1996] NSWCA 13 American Airlines Inc v Georgeopoulous [No 2] [1998] NSWCA 273 Bobian v Czech Airlines 93 Fed Appx 406 (3d Cir 2004), Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Doe v United Airlines, Inc 160 Cal App 4th 1500 (2008) In re Air Crash at Little Rock Arkansas on June 1, 1999 291 F 3d 503 (8th Cir 2002) Eastern Airlines Inc v Floyd 499 US 530 (1991) Ehrlich v American Airlines Inc 360 F 3d 366 (2d Cir 2004) IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622 King v Bristow Helicopters Ltd [2002] UKHL 7; [2002] 2 AC 628 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Linsell v Robson [1976] 1 NSWLR 249 Matchan v Lyons [2003] NSWCA 384; (2003) 40 MVR 466 Mead v Kerney [2012] NSWCA 215 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 Nestle Australia Ltd V McDougall [1998] NSWCA 158 Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189 Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 Rocklea Spinning Mills Pty Ltd v Anti Dumping Authority [1995] FCA 210; (1995) 56 FCR 406 Rosman v Trans World Airlines Inc 34 NY 2d 385 (1974) South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1998) 87 FCR 301 SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2014) 86 NSWLR 367 State of Queensland v Commonwealth of Australia [1989] HCA 36; (1989) 167 CLR 232 Terrafranca v Virgin Atlantic Airways Ltd 151 F 3d 108 (3d Cir 1998) Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (D Mont 1999)
Texts Cited:	DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) at [4.6], [1.9] and [3.43] - [3.50] House of Representatives, Commonwealth, Civil Aviation (Carriers’ Liability) Bill 1959, Parliamentary Debates (Hansard), 7 April 1959 at 927 House of Representatives, Commonwealth, Aviation Legislation Amendment (Liability and Insurance) Bill 2012, Parliamentary Debates (Hansard), 22 August 2012 at 9510
Category:	Principal judgment
Parties:	Karen Casey David Helm Pel-Air Aviation Pty Ltd
Representation:	Counsel: Mr RS McIlwaine SC with Mr G Graham (Plaintiffs) Mr D Fagan SC with Mr D Lloyd Solicitors: Everett Evans Solicitors (Penrith) (Plaintiffs) GSG Legal (Defendant)
File Number(s):	2010/385262 2011/46508
Publication restriction:	None

Judgment

1. In November 2009 CareFlight (NSW) Limited sent a nurse and a doctor in its employ, Ms Karen Casey and Dr David Helm, from Sydney to help transport a seriously ill patient and her husband from Samoa to Melbourne. They were then to return to Sydney. The plane was operated by Pel-Air Aviation Pty Ltd. On the flight to Melbourne the plane was scheduled to land at Norfolk Island to refuel. It crashed during that leg of the flight and Ms Casey and Dr Helm were both seriously injured.

2. They now seek to recover damages from Pel-Air.

3. It was not in issue that the weather at Norfolk Island that night was so stormy, that over some 45 minutes four attempts to land were aborted. Eventually the pilot decided to ditch the plane into the ocean, advising the passengers that it had almost run out of fuel. Remarkably, all six people aboard the plane survived the resulting crash, but the plane soon sank. A life raft had not been deployed and so the survivors all had to remain afloat in heavy seas, in the darkness, with no lights, no beacons or any form of communication. They were all rescued after some 90 minutes, by a fishing boat, which had set out from Norfolk Island.

4. Before it hit the water, the plane was travelling at such speed that the violence of the impact caused it to break up behind the wings. Both Ms Casey and Dr Helm had prepared themselves for the impact by putting on life jackets, using their lap seat belts and adopting the brace position. Still, they were flung violently around in their seats during the crash, each suffering injuries as a result, Ms Casey’s more serious than those which Dr Helm suffered.

5. After the crash, they were together in the back section of the sinking plane with the patient. Ms Casey was trapped in her seat by her seatbelt. Water was rising quickly and both she and Dr Helm were in pain from their injuries. Luckily, both Dr Helm and Ms Casey were very fit. They were able to attend to the patient, who was strapped into a stretcher. No life jacket could be found for her and she needed their help to get out of the plane.

6. Together Ms Casey and Dr Helm managed to free the patient, while Ms Casey remained trapped in her seat. After Dr Helm and the patient escaped, Ms Casey also managed to free herself. She swam to the emergency exit, inflated her life vest and jumped into the ocean, where she was struck in the head by the wing of the plane. Only half of her life jacket inflated. She tried unsuccessfully to further inflate the jacket manually and then swam to join the others.

7. Ms Casey and Dr Helm assisted the others who were then all in the water, but who had no life jackets, to remain afloat. Ms Casey supported the patient by herself, with considerable difficulty because of the state of her vest and her injuries, for some 70 minutes. Ms Casey described the state that she was in during that time to have been cold, wet, in considerable pain, fatigued, terrified, swallowing water and vomiting, and beginning to drift into unconsciousness, when they were finally rescued.

8. Dr Helm supported the co-pilot during the time they were in the water, as well as trying to help keep the patient calm, in what he described as having been quite extraordinary circumstances.

9. Ms Casey was initially treated at Norfolk Island Hospital for hypothermia, shock and pain and then evacuated, while sedated, by CareFlight to Sydney, where she was admitted and treated at Nepean Hospital, for a range of physical injuries, over some days. She has since received ongoing treatment for those injuries, as well as for the psychiatric injuries which she has suffered.

10. Dr Helm was also shaken, distressed and severely bruised, when rescued. He was also suffering a nagging pain in his side and discomfort in his back. He did not initially seek further treatment on his return to Sydney. Unlike Ms Casey, while Dr Helm suffered psychological consequences of his experience, he does not consider that he has suffered any permanent psychological injury. The pain in his back, however, has gradually worsened over time.

The issues

11. Ms Casey, Dr Helm and CareFlight claimed damages from Pel-Air, who accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability.

12. The traumatic nature of what Ms Casey and Dr Helm had experienced was not in issue, nor that they had both suffered physical injuries in the crash. That Ms Casey had also suffered serious psychiatric injuries was not in issue, nor was that they had both received workers compensation payments from CareFlight.

13. The claims pressed by CareFlight were settled during the hearing on terms requiring Pel-Air to pay CareFlight an agreed sum in respect of workers compensation payments it had made to Ms Casey and Dr Helm.

14. There was also finally no issue between the remaining parties that:

1.  Pel-Air held a licence in force under the relevant legislation and provided the plane which crashed to CareFlight pursuant to an agreement under which there was international carriage to which the 1999 Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) [2009] ATS 3 (Montreal Convention) applied .

2.  Ms Casey and Dr Helm were passengers on that plane. The Civil Aviation (Carriers’ Liability) Act1959 (Cth) applied as a result to their claims.

3.  Their physical injuries were compensable under that Act.

4.  The damages to which they were entitled had to be assessed in accordance with the provisions of the Civil Liability Act2002 (NSW).

Ms Casey

15. In Ms Casey’s case the cause of some of her psychiatric injuries and whether they were compensable, given the proper construction of the Civil Aviation (Carriers’ Liability) Act, were in issue, as were certain of the damages which she claimed.

16. As well as the consequences of the physical injuries which she suffered, Ms Casey suffers from a complex pain syndrome, a major depressive disorder, an anxiety disorder and post-traumatic stress disorder (PTSD). Her case was that all these injuries were compensable under the Civil Aviation (Carriers’ Liability) Act.

17. Pel-Air conceded in final written submissions at [50] of mfi 8, that Ms Casey’s major depressive disorder had been caused by her physical injuries and so it was compensable under the Civil Aviation (Carriers’ Liability) Act.

18. The pain disorder was not dealt with in the written submissions, but in oral submissions it was explained that Pel-Air accepted that this disorder was also a bodily injury which was compensable under the Civil Aviation (Carriers’ Liability) Act. Its final position in relation to Ms Casey’s anxiety disorder was that it accepted that the evidence established that it was caused both by her physical injuries and by the PTSD which she suffers. Accordingly, Pel-Air also finally accepted that the anxiety disorder was compensable under the Civil Aviation (Carriers’ Liability) Act.

19. Pel-Air did not, however, concede that Ms Casey’s PTSD was compensable under the Civil Aviation (Carriers’ Liability) Act. Its case was that the PTSD was a psychiatric disorder which had been caused by the trauma which Ms Casey had experienced during the crash; that it was not a “bodily injury” falling within Art 17 of the Montreal Convention; and that it was accordingly not compensable under Pt IA of the Civil Aviation (Carriers’ Liability) Act.

20. On Pel-Air’s case, even though the evidence established that Ms Casey had suffered serious physical injuries during the crash, that being the traumatic event which had caused her PTSD, the evidence did not establish either that this disorder had been caused by those physical injuries, or that the crash had caused any physical injury to Ms Casey’s brain itself, of which her PTSD was a manifestation. In the result, it contended that she was not entitled to damages for the treatment she had received for PTSD and that her damages otherwise had to be assessed without regard to the consequences of that PTSD.

21. These issues raised questions of both fact and law.

Dr Helm

22. In Dr Helm’s case, it was only the assessment of certain of the damages which he claimed which was finally in issue.

The evidence

23. There was relatively little disagreement between the parties about the evidence.

24. Evidence given by statements sworn by the lay witnesses was largely unchallenged. Ms Casey was cross-examined briefly as to various activities which she undertook in December 2013, which had been captured by surveillance videos taken over some 20 hours, some 20 minutes of which were tendered. What was there depicted was consistent with the evidence as to her physical capacities.

25. Ms Casey’s daughter, Ms Jemma Patten and her mother, Ms Margaret de Brouwer, were also briefly cross-examined as to the nature of the assistance they had given Ms Casey, following the accident.

26. Numerous medical reports from treating and other doctors who had examined Ms Casey were tendered, as well as reports from occupational experts. Ms Casey’s treating psychiatrist, Dr Richa Rastogi and the psychiatrist Dr Jonathan Phillips, who had prepared a joint report, gave concurrent evidence. The defendant had also obtained reports from another psychiatrist, Dr Peter Klug. His reports were tendered but he did not participate in the joint report and was not called to give evidence. Nor were Dr Charles New and Dr James Vote, the orthopaedic specialists whose joint report was also tendered, finally called.

27. Dr Helm was cross-examined as to evidence he had given in response to a report given by Dr Greg Lindsay, an Australian anaesthetist, as to the work involved in anaesthetics, as practised in Australia and how such work might be modified, in order to accommodate the ongoing effects of Dr Helm’s physical injuries. Dr Lindsay was finally not called.

28. In Dr Helm’s case a joint report prepared by Dr New and Dr Vote was also tendered, but none of the doctors who had examined him were called.

The proper construction of s 9E of the Civil Aviation (Carriers’ Liability) Act

29. It is convenient to begin with the issue lying between Ms Casey and Pel-Air, as to the proper construction of the Civil Aviation (Carriers’ Liability) Act. That was put in issue on the pleadings, as was the question of whether the proceedings had been brought within time. What finally remained in issue was whether, on the proper construction of Pt IA of the Civil Aviation (Carriers’ Liability) Act, the PTSD Ms Casey suffered as the result of the crash, was compensable under that Act. That raised an issue as to the proper construction of s 9E.

30. Ms Casey contended that properly construed, s 9E provided for a departure from the compensation scheme established by the Montreal Convention, by granting passengers such as her wider rights to compensation in respect of “personal injury” than available under the Convention, which restricted their rights to compensation to “bodily injury” of the kind with which Art 17 of the Montreal Convention is concerned.

31. The Civil Aviation (Carriers’ Liability) Act is Commonwealth legislation which enacts into Australian law certain international conventions to which Australia is a signatory. They include the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw, 12 October 1929) 137 LNTS 13 (Warsaw Convention) to which Australia became a signatory in 1929 and that which modernised it, the 1999 Montreal Convention, which is dealt with in Pt IA of the Civil Aviation (Carriers’ Liability) Act.

32. There was also an issue lying between the parties as to the proper construction of Art 17 of the Warsaw Convention and Art 17 of the Montreal Convention.

33. For the reasons which follow, I have concluded that s 9E cannot be construed in the way for which Ms Casey contends.

Relevant rules of statutory construction

34. The parties did not address the principles of construction which apply to the construction of the Civil Aviation (Carriers’ Liability) Act or the two Conventions. They must, however, be applied when resolving the issues lying between the parties and so need to be identified.

35. The basic principles of statutory construction are those discussed by Bathurst CJ in SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2014) 86 NSWLR 367 at [58]:

“[58]   ...As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute.”

36. This accords with the provisions of the Acts Interpretation Act 1901 (Cth), where s 15AA requires that the interpretation that would best achieve the purpose or object of an Act, whether or not it is expressly stated, is to be preferred to each other interpretation. Section 15AB deals with the use of extrinsic material when legislation is interpreted, providing amongst other things:

“15AB   Use of extrinsic material in the interpretation of an Act

(1)    Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)    to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)    to determine the meaning of the provision when:

(i)    the provision is ambiguous or obscure; or

(ii)    the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

…

(3)    In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b)   the need to avoid prolonging legal or other proceedings without compensating advantage.”

37. The practical consequences of giving a particular meaning to an Act must also be considered (see Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336). As must the fact that the Civil Aviation (Carriers’ Liability) Act is a legislative scheme which provides for compensation, which must thus be interpreted so as to give full relief to the fair meaning that its language will allow, but restrained by what is fairly open on the words actually used (see Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 at 361; Khoury v Government Insurance Officeof New South Wales [1984] HCA 55; (1984) 165 CLR 622 at 638 and IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11).

38. Also necessary to be borne in mind are the rebuttable rules of construction that the same words appearing in different parts of a statute are intended to have the same meaning and that different words are intended to have different meanings (see the discussion in DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) at [4.6]).

37. Because the Civil Aviation (Carriers’ Liability) Act is Commonwealth legislation which enacts an international convention into Australian law, the meaning of the Montreal Convention, which appears in a schedule to the Act, is another important consideration in the interpretation of the Act.

38. Consideration must also be given to the Act’s relevant legislative history and decisions which have considered its meaning. Previous decisions concerning the same or similar legislative provisions, even if not binding, may have strong persuasive authority. Also necessary to be borne in mind is the principle that when the Legislature does not change an Act following upon its interpretation, that may provide a basis for considering that it was satisfied with the ruling (see the discussion in DC Pearce and R Geddes, Statutory Interpretation in Australia (8th ed 2014, LexisNexis) at [1.9] and [3.43] - [3.50]).

Construing International Conventions

41. In construing the Conventions, weight must be given to the interpretation which the international community attributes to the particular convention (see State of Queensland v Commonwealth of Australia [1989] HCA 36; (1989) 167 CLR 232 at 240 discussed in Rocklea Spinning Mills Pty Ltd v Anti Dumping Authority [1995] FCA 210; (1995) 56 FCR 406 at 421).

42. In Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189, it was observed at [24] – [25]:

“24   … The guiding principles of treaty interpretation are found in the Vienna Convention on the Law of Treaties. Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. Interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art 31 leaves the meaning "ambiguous or obscure" or "leads to a result which is manifestly absurd or unreasonable".

25.   Importantly, international treaties should be interpreted uniformly by contracting states. But, of course, the ultimate questions are, and must remain: what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law? [Footnotes omitted]”

The purpose of the Montreal Convention

43. In construing the Civil Aviation (Carriers’ Liability) Act, its purpose must be borne in mind. Given that this legislation enacts the Montreal Convention into Australian law, in construing the Act it is also important to have regard to the purpose of the Montreal Convention. That was to modernise and consolidate the compensation scheme established by the Warsaw Convention and related instruments, which are still dealt with in other parts of the Act.

44. Both Conventions established a particular balance between the rights of passengers and the liabilities of carriers, in the event of an accident causing a passenger’s death or injury.

45. The Warsaw Convention imposed absolute liability on carriers in respect of specified kinds of damage caused by the death, or certain injuries, suffered by passengers during international air carriage.

46. In the preamble to the Montreal Convention the contribution made by the Warsaw Convention is recognised; as well as the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo, in accordance with the principles and objectives of the 1944 Convention on International Civil Aviation (Chicago, 7 December 1944) 15 UNTS 295. The need to ensure the protection of the interests of consumers in international carriage by air and to provide for equitable compensation, based on the principle of restitution, is also there referred to.

The proper construction of s 9E of the Civil Aviation (Carriers’ Liability) Act

47. In considering the proper construction of s 9E, it must be born in mind that Pt IA of the Civil Aviation (Carriers’ Liability) Act alters the scheme established by the Montreal Convention, in a number of specified ways.

48. Whether s 9E involved such a departure was in issue in this case.

49. The starting point for determining the proper construction of s 9E of the Civil Aviation (Carriers’ Liability) Act, appearing as it does in Pt IA, carriage to which the 1999 Montreal Convention applies, is its words, considered in their statutory context.

50. The purpose of s 9E, Pt IA and this Act as a whole, must be gleaned from their terms, there being in this statute no provision which deals expressly with the statutory purpose of any particular provision, or with the purpose of the Montreal Convention, to which s 9E refers (see the definition in s 9A).

51. The Civil Aviation (Carriers’ Liability) Act enacts a number of international conventions to which Australia is a signatory into Australian law, in respect of carriage by air to which those conventions apply, in Pts I, IA, II, III and IIIA. Pt IV regulates carriers’ liability for the death or injury of a passenger during interstate travel in Australia, to which these various Conventions do not apply. Pt IVA imposes obligations on carriers to have certain insurance, to ensure that compensation payable under the Act will be paid.

52. It follows that the purpose of the Civil Aviation (Carriers’ Liability) Act is threefold. First, to enact into Australian law the provisions of the various Conventions with which it deals, which establish compensation schemes for international air passengers, subject to the departures from those Conventions which the Parliament determined were appropriate in the Australian context. Second, to also make provision for compensation for passengers’ death or injury during the course of interstate air carriage. Third, to require carriers to maintain insurance, to ensure that passengers’ entitlements under the Act will in fact be paid.

53. The purpose of Pt IA of the Civil Aviation (Carriers’ Liability) Act is to give effect to the Montreal Convention, subject to the alterations there made.

54. The words of s 9E reveal that its purpose is not to confer any rights to compensation upon passengers. It is s 9B which grants such rights in circumstances to which the Montreal Convention applies, giving, as it does the Montreal Convention force of law, subject to the alterations made elsewhere in Pt IA. Section 9B provides:

“9B    The 1999 Montreal Convention to have force of law

Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage.”

55. The purpose of s 9E is to specify the liability of carriers in the event of a passenger suffering an injury to which the Convention applies. It provides:

“9E Liability in respect of injury

Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.”

56. The absolute liability imposed on the carrier by Art 17 of the Convention, for bodily injury, is thereby provided to be in substitution for the civil liability which the carrier has to the passenger under any other law, which would otherwise apply to the carrier.

57. In construing s 9E, s 9F must also be considered. Its purpose is to specify the carrier’s liability to third parties. It provides:

“9F Certain liabilities not excluded

Nothing in the Convention or in this Part is to be taken to exclude any liability of a carrier:

(a)    to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory relating to workers’ compensation; or

(b)    to pay contribution to a tort‑feasor who is liable in respect of the death of, or injury to, the passenger;

but this section does not increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by, or in accordance with, the Convention.”

58. Thus it can be seen that both s 9E and s 9F are concerned with the liabilities of carriers. Section 9E is concerned with their liability to passengers who have suffered injuries to which the Montreal Convention applies and s 9F with their liabilities to identified third parties. Section 9E does not confer any rights to compensation upon passengers.

Ms Casey’s construction of s 9E of the Civil Aviation (Carriers’ Liability) Act must be rejected

59. The construction of s 9E for which Ms Casey contended, namely, that it was intended to effect a departure from the scheme established by the Montreal Convention, depends on the introductory words of s 9B, “Subject to this Part”. Those words were argued by Ms Casey to reveal the Parliament’s intention to depart from the scheme established by the Montreal Convention, in ways provided elsewhere in Pt IA, including in s 9E.

60. Undoubtedly, s 9B contemplates that there are departures from the Montreal Convention provided for elsewhere in Pt IA of the Act. That s 9E is one such departure was in issue. I am satisfied that properly construed, s 9E does not have the effect for which Ms Casey contended.

61. A departure from the balance of rights and liabilities established by the Montreal Convention, is clearly provided for in s 9C, for example. That section provides for the making of Regulations which depart from the Montreal Convention scheme, in relation to the liability of an Australian international carrier in respect of the death or injury of a passenger for “SDRs”, which are dealt with in Art 21 of the Montreal Convention. “SDR” is defined in s 5 of the Act to mean “Special Drawing Rights within the meaning of the International Monetary Agreements Act 1947 (Cth)”.

62. Ms Casey contended that s 9E provided for another departure from the Convention scheme, by granting passengers wider rights to compensation in respect of “personal injury”, than the rights to compensation for “bodily injury” with which Art 17 of the Montreal Convention is concerned.

63. That s 9E may not be so construed, is supported by a number of considerations. First, from the purpose of the section itself, which I have already discussed, being concerned with a carrier’s liability for personal injury, in circumstances to which the Montreal Convention applies. Section 15AA of the Acts Interpretation Act requires that a construction which promotes the purpose of an Act, must be preferred over one which does not (see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235).

64. In this case, that obligation supports the conclusion that by enacting s 9E, the Parliament intended to confine carriers’ liability for personal injury to the compensation provided by the scheme created by the Montreal Convention, for compensation for damage sustained in case of “bodily injury of a passenger”, provided in Art 17. That liability is “in substitution for any civil liability of the carrier under any other law in respect of the injury”.

65. Under Australian law, injured passengers have rights under various laws in relation to personal injuries which they suffer. It is the limitation of those rights with which s 9E is concerned. By its enactment, s 9E limits carriers’ liability for personal injuries to those provided for by Art 17 of the Montreal Convention. The result is that apart from cases where death results, under s 9E carriers are liable for damages only for “bodily injury”, a narrower class of injury than “personal injury”, as I will explain.

66. Secondly, the structure of s 9E itself does not support the construction for which Ms Casey contended. Unlike s 9C, s 9E does not expressly identify that a departure from the scheme of the Montreal Convention is thereby provided. In the absence of such express provision, such a departure, not revealed by the words used in the section itself, ought not lightly to be inferred.

67. Thirdly, that no such departure was intended by s 9E, is also supported by the relevant history of the Civil Aviation (Carriers’ Liability) Act. Fourthly, it is also supported by relevant case law.

Legislative history

68. That history includes that the Warsaw Convention was first enacted into Australian law by the Carriage by Air Act1935 (Cth). The terms of that Convention were written in English, French and Spanish, but it provides that in the event of inconsistency, the French text will prevail. That has given rise to certain difficulties of interpretation over the years, discussed in various of the authorities to which I will refer, which do not now arise in relation to the Montreal Convention. That is because that Convention was written in five languages, including English.

69. The English text of the Warsaw Convention appears in Sch 2 to the Civil Aviation (Carriers’ Liability) Act. Article 17 of that Convention there provides:

“The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

70. Significantly, for the question which has here arisen for consideration, s 3 of the 1935 Carriage by Air Act did not deal with either personal or bodily injury, but rather provided:

“3. - (1.)   The Governor-General may, by notice published in the Gazette, declare the date upon which the Convention shall come into force in respect of the Commonwealth or of any Territory of the Commonwealth.

(2.)    Upon a date being declared in pursuance of the last preceding sub-section, the provisions of the Convention shall, so far as they relate to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, and subject to this section, have the force of law in the Commonwealth and in any Territory in respect of which a notice has been published in the Gazette in pursuance of the last preceding sub-section in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage.

(3.)    The Governor-General may, by notice published in the Gazette, from time to time, declare-(a) who are the High Contracting Parties to the Convention; (b) the territory in respect of which any such Party is bound by the Convention; and (c) the extent (if any) to which any such Party has availed himself of the provisions of the Additional Protocol to the Convention, and any such notice shall, except to the extent (if any) to which it has been superseded by a subsequent notice under this section, be conclusive evidence of the matters so declared.

(4.)    Any liability imposed by Article seventeen of the Convention on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier under any other law in respect of the death of that passenger, and the provisions set out in the Second Schedule to this Act shall have effect with respect to the persons by and for whose benefit the liability so imposed is enforceable and with respect to the manner in which it may be enforced.”

71. The Carriage by Air Act was repealed in 1959 by the Civil Aviation (Carriers’ Liability) Act, but its provisions and the Warsaw Convention were taken up in Part III of the new Act. That Act also gave effect to the 1955 Hague Protocol (Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 (The Hague, 28 September 1955) ICAO Doc 7632) amending the Warsaw Convention in Pt II and introduced liability in respect of interstate air travel, in Pt IV. When introduced into Parliament, its purposes were explained to include giving effect to the Hague Protocol which amended the Warsaw Convention.

72. Pertinently, the Hague Protocol did not amend Art 17 of the Warsaw Convention. Section 13 of the Civil Aviation (Carriers’ Liability) Act, however, dealt separately with a carriers’ liability for “personal injury”. It did not use the Convention term “bodily injury”. Sections 13 and 14 then provided:

“13.    Subject to the next succeeding section, the liability of a carrier under the Convention in respect of personal injury suffered, by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

14.    Nothing in the Convention or in this Part shall be deemed to exclude any liability of a carrier -

(a)    to indemnify an employer of a passenger in respect of liability of that employer under a law of the Commonwealth or of a State or Territory of the Commonwealth providing for compensation to workmen or employees in respect of accidents arising out of or in the course of their employment; or

(b)    to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger,

but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with the Convention.”

73. Importantly for the resolution of the construction of s 9E which has arisen in this case, it is relevant that s 13 of the Civil Aviation (Carriers’ Liability) Act has not been amended since 1959. Furthermore, s 9E, the equivalent section later enacted in Pt IA in relation to the Montreal Convention, was enacted in similar terms to s 13.

74. The English version of the Montreal Convention appears at Sch 1A to the Civil Aviation (Carriers’ Liability) Act. Also relevant to the construction of s 9E is that Art 17(1) of the Montreal Convention is in relevantly similar terms to the English translation of Art 17 of the Warsaw Convention. Article 17(1) of the Montreal Convention provides:

“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.”

75. It is the meaning of the term “personal injury”, which is used both in s 9E and in s 13, which has arisen for consideration in this case. That question does not appear to have previously arisen for consideration, although the meaning of the term “bodily injury”, used in Art 17 of the Warsaw Convention has earlier been considered by Australian courts, as well as by courts of other signatory countries, including the United States, Israel and the United Kingdom.

76. In construing s 9E it is also relevant to consider that the term “personal injury” was also used in s 28 of Pt IV - Other carriage to which this Act applies, when the Civil Aviation (Carriers’ Liability) Act was first enacted in 1959. It then provided:

“Liability of the carrier for death or injury

Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

77. Pertinently, in the Second Reading Speech, reference was made to Australia’s acceptance of the limitations of the Convention and the Protocol in relation to international travel, but not in interstate transport (see House of Representatives, Commonwealth, Civil Aviation (Carriers’ Liability) Bill 1959, Parliamentary Debates (Hansard), 7 April 1959 at 927). That explains why the term “personal injury” was used as it was in s 28.

78. Section 28 was amended in 2012 by the Aviation Legislation Amendment (Liability and Insurance Act) 2012 (Cth), when, amongst other things, the term “personal injury” was replaced with the term “bodily injury”. The level of compulsory insurance required under the Act was also then increased, as was the cap on liability for domestic travel, to $725,000. In the Second Reading Speech (see House of Representatives, Commonwealth, Aviation Legislation Amendment (Liability and Insurance) Bill 2012, Parliamentary Debates (Hansard), 22 August 2012 at 9510) it was then explained as to the amendment to s 28 that:

“The bill also harmonises Australia’s commitments under the Convention for the Unification of Certain Rules for International Carriage by Air, signed 28 May 1999 (the Montreal convention) by amending references in the [Civil Aviation (Carriers’ Liability) Act 1959] Act concerning ‘personal injury’ and substituting it with ‘bodily injury’.

This brings our domestic liability arrangements in line with the international framework established under the Montreal convention and implemented by more than 100 states around the world.

This will mean that domestic carriers will no longer be liable for mental injuries irrespective of whether other ‘physical injuries’ have also been incurred.”

79. This explanation reflected that the meaning of s 28 had earlier been considered by the Full Federal Court in South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1998) 87 FCR 301. There it was held that the term “personal injury” used in s 28 had a different meaning to the Warsaw Convention term “bodily injury”. It was concluded that “personal injury” was a broader term than “bodily injury”, encompassing both physical and mental injury (see at 317 (Beaumont J)) and psychological injury (see at 342 (Sackville J)).

80. In the result, on this legislative history, prior to the 2012 amendment to s 28, in the case of domestic interstate air travel, carriers had liability for purely psychological injury, that being an injury encompassed by the term “personal injury”, which they did not have in the case of international travel. That was settled in Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110, to which I will return. There it had been concluded that carriers did not have liability for psychological injury, in the case of international travel to which the Warsaw Convention applied. That explains why the 2012 amendment to s 28 was explained to have been intended to harmonise domestic liability arrangements, in line with the international framework established under the Montreal Convention, which replicated the relevant Warsaw Convention provisions.

81. It follows that, in 2012, by amending s 28 of the Civil Aviation (Carriers’ Liability) Act to replace the broader term “personal injury” with the Convention term “bodily injury”, the legislature reduced the range of injuries compensable under Part IV of the Act in the case of interstate air travel, to those compensable under both the Warsaw and Montreal Conventions. No amendments were then, however, made to either s 9E or s 13, where the broader term “personal injury” remained, consistently with their purpose, namely to enact the Montreal and Warsaw Conventions into Australian law.

82. It was argued for Ms Casey that in amending s 28 as the legislature did after the Full Federal Court had considered the proper meaning of the term “personal injury” there used in South Pacific Air Motive Pty Ltd v Magnus, but not amending s 13 or s 9E, the parliamentary intention of those sections, namely, to impose wider liability for compensation for psychological injuries suffered by passengers than flowed from the term “bodily injury” which the Montreal Convention provided for, was confirmed. This reflected that s 9E was another of the departures contemplated by s 9B of the Act.

83. On Pel-Air's case, s 9E was not amended in 2012 when s 28 was, because, properly construed, the effect of s 9E was to limit carrier’s liability for damages for personal injury suffered by passengers, to those available under the provisions of the Montreal Convention, that is damages for “bodily injury” and no more.

84. On the case advanced for Ms Casey, such a construction would make s 9E otiose, given the provision made in s 9B, which enacted the Montreal Convention into law, subject to the statutory alterations provided in Part IA, one of which was that provided in s 9E.

85. That may not be accepted. It is s 9B which enacts the Montreal Convention into Australian law, as I have explained, subject to the departures elsewhere provided in Pt IA. Without the limitation introduced by s 9E upon carriers’ liability for damages under any other law in respect of the “injury”, flowing from any “personal injury” which passengers suffer, carriers would have liability under the Montreal Convention for “bodily injury”, given force by s 9B. They would also have liabilities for such injuries under other Australian laws. Because that was not intended, s 9E limited carriers’ liability for personal injury under other laws, leaving them only with the absolute liability imposed by the Montreal Convention for “bodily injury”.

86. The practical result of s 9E for passengers is that when injured in circumstances to which the Montreal Convention applies, they can only successfully pursue carriers for any “bodily injury” which they have suffered, to which the Montreal Convention applies.

87. That explains why, when enacting the amendments to the Civil Aviation (Carrier’s Liability) Act which gave effect to the Montreal Convention, the legislature did not use the Convention term “bodily injury” in s 9E, but instead used the term “personal injury”, also long used in s 13 in respect of the Warsaw Convention.

88. That conclusion is also supported by s 9H, which deals with contributory negligence. It relevantly provides that:

“9H   Contributory negligence

(1)   For the purposes of Article 20 of the Convention, if, in an action against a carrier under the Convention relating to damage:

(a)   sustained in the case of death or bodily injury of a passenger; or

(b)   sustained in the case of destruction or loss of, or of damage to, baggage of a passenger; or

(c)   sustained in the event of the destruction or loss of, or damage to, cargo; or

(d)   occasioned by delay in the carriage by air of a passenger, a passenger’s baggage, or cargo;

the carrier proves that the damage was caused by, or contributed to by, the negligence of the passenger or the consignor of the cargo, the damages recoverable in respect of the damage must be assessed in accordance with this section.”

89. The use of the term “bodily injury” in s 9H in relation to contributory negligence, is also consistent with a construction of s 9E, that limits damages recoverable under Pt IA from an international carrier to those arising from “bodily injury”.

90. As I have explained, the term “personal injury” was also originally used in s 28 of the Act, which appears in Pt IV, which applies to domestic carriage of passengers in an aircraft by the holder of an airline licence or a charter licence in the course of commercial transport operation, or where the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 (Protocol No 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended by the Protocol Done at the Hague on 28 September 1955 (Montreal, 25 September 1975) ICAO Doc 9148) and the Guadalajara Convention (Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by Air Performed by a Person other than the Contracting Carrier (Guadalajara, 18 September 1961) 500 UNTS 32) do not apply (see s 27).

91. The term “personal injury”, it is apparent from a proper reading of s 9E, s 13 and s 28, was used consistently, when the Civil Aviation (Carriers’ Liability) Act was enacted. The result was that the liability of carriers for personal injury suffered during interstate carriage under s 28, was initially not limited to damages flowing for “bodily injury”, as was the case in respect of international carriage to which s 13 and later when Pt IA was enacted to give effect to the Montreal Convention, to which s 9E applied.

92. That position changed in 2012, when s 28 was amended by adoption of the Convention term, with the result that thereafter, carriers’ liability in the case of injury not causing a passenger’s death was, during both interstate and international travel, limited to “bodily injury”.

93. It follows that, properly construed, s 9E does not, as was contended for Ms Casey, grant her the right to compensation for personal injuries which she suffered in the crash. Her rights to compensation under the Civil Aviation (Carriers’ Liability) Act flow from s 9B and Pel-Air’s liability for those injuries are by s 9E confined to any bodily injury which she has suffered.

The case law

94. That conclusion is also supported by relevant case law.

95. The meaning of “bodily injury” in Art 17 of the Warsaw Convention arose for consideration in American Airlines Inc v Georgeopoulos [1996] NSWCA 13. There a passenger had claimed damages for personal injuries, including nervous shock and mental suffering. A case was stated on the question of whether nervous shock and mental suffering fell within Art 17. The contest turned in part on whether the approach of the Israel Supreme Court in Air France v Teichner (1984) 7 S&B Av R 141 as to the meaning of Art 17 should be preferred over that of the Supreme Court of the United States in Eastern Airlines Inc v Floyd 499 US 530 (1991).

96. The Court of Appeal considered that the stated case was inappropriate and misconceived, having been based on agreed facts which included that the passenger had claimed damages for nervous shock or mental suffering “and (on) no other basis”. Sheller JA (with whom Clarke JA and Simos AJA agreed) took the view that absent a finding as to the nature of the injury suffered, it was not possible to decide whether the passenger had suffered “bodily injury”, within the meaning of Art 17. His Honour observed that nervous shock “might or might not have caused an injury to the passenger’s body tissues”.

97. Before the case returned to the Court of Appeal, Kotsambasis was decided. There Meagher JA considered that the term “bodily injury”, (not defined in the Warsaw Convention, or in the Civil Aviation (Carriers’ Liability) Act)), was ambiguous and that its meaning had to be resolved by looking at the intention of the Warsaw Convention’s contracting parties and adopting a purposive approach to its interpretation (see at 114).

98. His Honour also considered the adjective “bodily” to be a word of limitation, which had to be given effect. Following Eastern Airlines Inc v Floyd, where Marshall J had considered the history of the negotiation of the Convention and the state of the law in many of the other contracting states at the time, his Honour concluded that the term was “not intended to, and on the proper interpretation of the Convention does not, include purely psychological injury” (at 115). It was not there considered necessary to resolve the question left open in Eastern Airlines Inc v Floyd, as to whether the term also encompassed psychological injuries accompanied by physical injuries.

99. That question arose for consideration in American Airlines Inc v Georgeopoulos[No 2] [1998] NSWCA 273, where the passengers’ claims failed. Sheller JA noted that the only direct physical injuries suffered by one of the passengers in that case had been bruising and back pain experienced the next day and a mild post-traumatic stress disorder. The second passenger had not suffered any physical injury, but had also suffered a mild post-traumatic stress disorder. There was no evidence of any structural alteration to either passengers’ bodily tissues, or of any alteration in the function of an organ, or neurochemical change, or any other form of damage to tissues or organs.

100. Sheller JA, with whom Meagher and Beazley JJA agreed, held that:

“… I do not think Article 17 means that if the passenger died or suffered bodily injury, the carrier is liable for any damage caused by the accident if the damage was not the result of the death or bodily injury. Nor do I think the US Supreme Court suggested otherwise. The question which the US Supreme Court did not decide was whether if the passenger suffered bodily injury, the passenger could recover damages for psychic injuries which flowed from the bodily injury, even though not entitled to damages for psychic injuries if there was no bodily injury. At 544 the US Supreme Court said:

Two explanations commonly are offered for why the subject of mental injuries never arose during the Convention proceedings:

(1)    many jurisdictions did not recognise recovery for mental injury at that time, or

(2)    the drafters simply could not contemplate a psychic injury unaccompanied by a physical injury.

In my respectful opinion, consistent with this it could not be suggested that if a passenger was shocked by the fear of imminent death in a plane crash and thereafter injured her hip in obeying a direction to move to the front of the aircraft, she would be able to recover for her mental injuries, but if she had not injured her hip, such recovery would have been denied. I think the US Supreme Court, when it used the word ‘accompanied’, had in mind to leave open the question whether the carrier was liable for mental injuries, consequent upon physical injuries, or emotional shock which had resulted in organic damage such as a coronary thrombosis or stroke.

I think Stein JA in Kotsambasis at 121 correctly delimited the ambit of

recovery for psychic injury when he said where mental anguish follows and

is caused by physical injury, recovery for both injuries is covered …. Moreover, if the psychological injury is proven to be a species of bodily injury, then it would constitute “bodily injury” within the article. Mr Evatt accepted that the stress disorder was not the consequence of any physical injury. The appellant is not therefore liable under Article 17 … “

101. These Australian decisions were later considered by the House of Lords in King v Bristow Helicopters Ltd [2002] UKHL 7; [2002] 2 AC 628. Lord Hope of Craighead there agreed with the NSW approach to Eastern Airlines Inc v Floyd (see at [122]). Lord Hobhouse of Woodborough dealt with these decisions at [169] - [172], also agreeing with the approach there adopted to the meaning of “bodily injury”.

102. In none of these Australian cases was any consideration given to the meaning of the term “personal injury” used in s 13 and whether the use of that wider term there and in s 9E, gave passengers the right to recover damages for any psychological injuries they suffered, which were not compensable under either the Warsaw or Montreal Convention, as Ms Casey claims in these proceedings. Section 9E was not directly relevant in those cases, but s 13 was and yet the construction point here raised by Ms Casey, was not pursued.

103. The explanation for that appears to be that s 13, like s 9E, concerned as they both are with the liability of carriers, not the rights of passengers, do not grant passengers the right Ms Casey claims she has in this case under s 9E, to compensation for personal injury.

104. Also in issue in this case, however, is whether the PTSD which Ms Casey suffers as the result of the crash is a “bodily injury” caused by the crash. That raises mixed questions of fact and law, which makes it necessary to further consider the case law, to which I will return.

Ms Casey’s PTSD claim

105. As I have explained, in New South Wales it was settled by Georgeopoulos[No 2] that Art 17 of the Warsaw Convention draws a distinction between the mind and the body. Article 17 of the Montreal Convention also draws that distinction. Whether a passenger has suffered a compensable bodily injury is a matter of fact, to be determined on the evidence led in a particular case.

106. In the result, consistently with Pel-Air’s concessions in this case, which accord with the case law to which I have referred, Ms Casey’s complex pain syndrome, depression and anxiety disorders, were finally accepted as being compensable bodily injuries, under the Montreal Convention. That reflects they are each either mental injuries consequent upon physical injuries; emotional shock which results in organic damage; mental anguish which follows and is caused by physical injury; or psychological injury proven to be a species of bodily injury and thus each compensable.

107. Ms Casey’s case was that the evidence also established that, like all the other injuries which she had suffered, her PTSD was also such a compensable “bodily injury” under Art 17 of the Montreal Convention. Further, given the nature and complexity of her other injuries, their treatment and consequences, even if Pel-Air was correct, that would have no practical effect on the orders made in her favour in this case.

108. Pel-Air disputed this. On its approach, which relied on various international authorities, properly construed the term “bodily injury” in Art 17 of the Montreal Convention did not encompass PTSD. Further, the evidence did not establish that the PTSD which Ms Casey suffers was the result of the physical injuries which she had suffered, nor had it involved or caused any injury to her body. That, too, was in issue.

109. For reasons which follow, I have firstly 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. Secondly, that the evidence establishes that the PTSD which Ms Casey suffers and for which she also has been unsuccessfully treated, is consequent on damage to her brain and to other of her bodily processes, which have had the result that her brain is no longer capable of functioning normally. Either the PTSD is at least in part a manifestation of that damage, or that damage has caused or contributed to the PTSD, or there is a combination of such cause and effect, which has put Ms Casey into the position she is now in. Whichever it is, the result is that the PTSD which Ms Casey suffers, is a compensable bodily injury.

110. Accordingly, I have also concluded that this bodily injury must also be reflected in the damages which Ms Casey is awarded.

PTSD and the proper construction of Article 17 of the Montreal Convention

111. The proper construction of Art 17 was in issue.

112. It seems to me that despite the conclusions reached in the authorities relied on for Pel-Air, the conclusion it urged, that PTSD is a psychiatric injury for which compensation cannot be recovered under Art 17 of the Convention, given its proper construction, must be rejected.

113. The fact that other cases decided in other signatory countries have resulted in claims relating to PTSD failing, is not a basis upon which it may be concluded, without an analysis of the evidence led in a case where a claim is advanced in relation to PTSD, that such an injury is not compensable under Pt IA of the Act.

114. Pel-Air’s case was that on the proper construction of Art 17 of the Montreal Convention, emotional distress unaccompanied by bodily injury was not compensable, nor were alterations to a person’s body associated with mental distress, or physical manifestations of emotional injuries. In order for PTSD to be compensable, it was thus argued, what was required was evidence that it had been caused by the physical injuries Ms Casey had sustained. There was no such evidence and so this aspect of her claim could not succeed.

115. Ms Casey’s case was that the evidence established that the crash had caused her body to cease functioning normally, in various ways, causing the PTSD from which she continued to suffer. That evidence established that the PTSD had involved bodily injury, compensable under Art 17.

116. The meaning of Art 17 of the Warsaw Convention has received considerable judicial attention in Australia and other signatory countries. Article 17 of the Montreal Convention does not appear to have arisen for such wide consideration, but the authorities on the construction of Art 17 of the Warsaw Convention, must unquestionably be given considerable weight when Art 17 of the Montreal Convention is construed.

117. Pel-Air summarised the propositions which it argued could be drawn from the relevant Australian and American decisions to be:

(a)   The jurisprudence on Article 17 of the Warsaw Convention is relevant to the construction of Article 17 of the Montreal Convention;

(b)   emotional distress unaccompanied by bodily injury is not recoverable under Article 17;

(c)   alterations to a person’s body associated with mental distress do not constitute bodily injury under Article 17 of the Montreal Convention. What is required is an objective identifiable palpable observable injury to the body;

(d)   in order for damages for mental distress to be recovered they must be caused by physical injuries sustained;

(e)   physical manifestations of emotional injuries are not recoverable.

118. Of considerable persuasive authority is the House of Lord’s judgment in King on the proper construction of Art 17 of the Warsaw Convention, which adopts a similar approach to its construction as was adopted in the Australian authorities to the construction of the Warsaw Convention, which I have dealt with earlier. Those authorities were there referred to with approval.

119. I am satisfied that propositions (c) – (e) advanced for Pel-Air do not follow from these authorities. They are not supported by the conclusions reached either in the Australian authorities or by King, to which insufficient attention was paid in the submissions advanced for Pel-Air.

120. To press the construction for which it contended, Pel-Air also relied on Doe v United Airlines, Inc 160 Cal App 4th 1500 (2008), where the Court of Appeal in California concluded (at 1512 - 1513) that:

“The majority rule, as disclosed by our survey of case authority, is that alterations in an individual's body and behavior intrinsically or characteristically associated with mental distress do not constitute bodily injury under the Warsaw Convention. This rule encompasses alterations or changes in an individual's brain and nervous system characteristically tied to PTSD. At bottom, the rule rests on the recognition that mental distress typically and regularly manifests itself in an individual's brain, nervous system, body, and behavior.”

121. This view does not accord with that reached in Georgeopoulos [No 2], Kotsambasis or King, to which I will return.

122. Pel-Air also relied on Ehrlich v American Airlines Inc 360 F 3d 366 (2d Cir 2004), where the United States Court of Appeals Second Circuit was considering a claim for mental injuries in a case where the passengers had suffered various physical injuries. It accepted that Art 17 of the Warsaw Convention permitted recovery for mental injuries, to the extent that emotional distress was caused by physical injuries suffered (see at 376). It was, however, concluded that carriers were not liable for mental injuries which accompany, but are not caused by bodily injuries (at 385).

123. Pel-Air also relied on Bobian v Czech Airlines 93 Fed Appx 406 (3rd Cir 2004), where the United States Court of Appeals Third Circuit considered a claim that PTSD caused by a plane flown into a hurricane had caused physical changes to the brain, which constituted a bodily injury under Art 17 of the Warsaw Convention. It was concluded that (at 408):

“We agree with Judge Debevoise that the relationship between the physical and emotional dimensions of human existence was well known to the drafters of the Warsaw Convention who nonetheless required “lesion corporelle”. In our view, plaintiffs’ position on post-traumatic stress disorder would abolish the requirement of palpable and conspicuous physical injury, but this can only be done by a change to the language of the Convention. We also note that none of the plaintiffs has brought forward cognizable evidence that his or her brain has changed physically from an earlier state. Our view is supported by a very recent exhaustive and scholarly decision, Ehrlich v American Airlines Inc …”

124. The French term “lesion corporelle” is a reference to the English term “bodily injury”. Pel-Air also relied on similar conclusions reached in:

In re Air Crash at Little Rock Arkansas 291 F 3d 503 (8th Cir 2002) by the United States Court of Appeals Eighth Circuit, where there was found to be no proof that the PTSD suffered by the passenger involved physical changes to the brain;

Terrafranca v Virgin Atlantic Airways Ltd 151 F 3d 108 (3d Cir 1998), where the United States Court of Appeals Third Circuit concluded that mere physical manifestations of emotional injures are not sufficient and that direct, concrete bodily injury, as opposed to mere manifestation of fear or anxiety must be proven.

Rosman v Trans World Airlines Inc 34 NY 2d 385 (1974) where the Court of Appeals of New York took the view that Article 17 requires palpable conspicuous physical injury and that mental injury with observable “bodily”, as distinguished from “behavioral manifestations”, had to be established: at 400.

125. Pel-Air distinguished Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (D Mont 1999), where summary judgment was given in favour of a passenger who claimed damages for actual brain damage caused by extreme stress during her flight experiences, which had resulted in PTSD, where the carrier had failed to raise a factual issue about the claim. That judgment was considered in Doe v United Airlines to be of limited precedential value and on Pel-Air’s case, would not be followed.

126. In King, the authorities relied on by Pel-Air were also considered. There, reference was made to the negotiation of the Montreal Convention, where efforts to include in Art 17 a reference to mental injury had not been agreed and instead, the term bodily injury used in the Warsaw Convention was adopted (see at [105]). The claims there made in respect of PTSD also failed on the evidence, but the possibility that the evidence in a particular case might establish that PTSD was a compensable bodily injury, was accepted.

127. As I have explained, while in Eastern Airlines Inc v Floyd, the Supreme Court of the United States had left open the question of whether a passenger could recover mental injuries accompanied by physical injuries under the Warsaw Convention, that was considered and resolved in this State at least, in Georgeopoulos[No 2] on the basis of Stein JA’s conclusions in Kotsambasis. That approach is consistent with that discussed in King.

128. The principles which flow from those decisions, while not strictly binding on the construction of Art 17 of the Montreal Convention, should be followed and applied to the evidence led in a particular case brought in respect of a claim to which that Convention applies, irrespective of whether the claim advanced in a particular case relates to a diagnosis of PTSD, or some other injury or disorder.

129. In the result, contrary to what was submitted for Pel-Air, it seems to me that if it is proven on the evidence that a particular psychiatric injury, including PTSD, is caused by a physical injury, that is to the brain or other parts of the body, damages for both injuries may be recovered. Further, a psychiatric injury may in a particular case itself be proven on the evidence to be “a species of bodily injury”, compensable under Art 17.

130. In King, no evidence had been led to show that the mental injury or illness which the two plaintiffs, Mr King and Ms Morris, had each suffered, was caused to any extent by any physical injury.

131. It was thus concluded that Ms Morris, a minor who had suffered no physical injuries when touched on the thigh by another passenger during a flight, but who had developed a single episode of major depressive illness later, could not recover under Art 17. Ms Casey’s circumstances are quite different.

132. Mr King had also suffered no physical injury during the helicopter accident in which he had been involved, but he had developed several psychiatric disorders, including PTSD, as well as peptic ulcer disease caused by stress, which had caused severe pain and an exacerbation of pre-existing symptoms. It was concluded that Mr King was entitled to recover damages for the peptic ulcer and the pain associated with it under Art 17 of the Warsaw Convention, but not the PTSD. That conclusion accords with the concessions made by Pel-Air in relation to Ms Casey’s physical injuries, the pain syndrome she suffers and her major depression and anxiety disorders.

133. In relation to Ms Casey’s claim for the PTSD it is pertinent to refer to a number of observations in King, relevant to the arguments which the parties here advanced, with which I agree and respectfully adopt.

134. First, Lord Nicholls of Birkenhead, who agreed with Lord Steyn, Lord Hope of Craighead and Lord Hobhouse of Woodborough, considered at [3] that while shock, anxiety, distress, grief and other emotional disturbances alone do not fall within Art 17:

“[3]    … The brain is part of the body. Injury to a passenger’s brain is an injury to a passenger's body just as much as an injury to any other part of his body. Whether injury to a part of a person's body has occurred is, today as much as in 1929, essentially a question of medical evidence. It may be that, in the less advanced state of medical and scientific knowledge seventy years ago, psychiatric disorders would not have been related to physical impairment of the brain or nervous system. But even if that is so, this cannot be a good reason for now excluding this type of bodily injury, if proved by satisfactory evidence, from the scope of article 17.”

135. Lord Mackay of Clashfern agreed with Lord Hope of Craighead, adding at [8]

“[8]   … if an injury to the brain of a passenger is found to have occurred, and the other conditions requisite to qualify for compensation under article 17 are present, compensation under the article cannot be refused on the ground that in 1929, this fact would not have been known, with the result that at that time, medical opinion would have been that the passenger had suffered only mental injury. Like my noble and learned friend Lord Nicholls of Birkenhead I do not see merit in adding words to the description of injury which are not present in the Convention text and I would apply the simple test, does the evidence demonstrate injury to the body, including in that expression the brain, the central nervous system and all the other components of the body?”

136. Lord Hope of Craighead observed at [49]:

“[49]   … The branch of medical science which is concerned with psychiatric disorders and disturbances is still in the process of development. It is not yet fully understood. We are able to identify physical conditions which have been brought about by a psychiatric route. Mr King's peptic ulcer disorder is a physical condition of this type. We can also identify various psychiatric illnesses which, according to our present state of knowledge, appear not to have been the product of any kind of physical injury. But the distinction between what I have described as a mental injury and a physical injury is unclear, and the extent to which it can be maintained is debatable. It may now be possible to show objectively, by means of expert medical evidence, that a psychiatric illness is due to a disturbance within the patient's own central nervous system which drugs can control or alleviate.”

137. At [125], his Lordship said:

“[125]   It would be wrong to regard article 17 as limited by the state of medical and scientific knowledge that was current in the 1920s. There is no reason to think that the contracting parties intended that no account should be taken of developments in medical science in determining the question whether a passenger has sustained a bodily injury. I agree with my noble and learned friend Lord Mackay of Clashfern that, if the brain could be shown to have been injured and the other conditions for compensation under article 17 are satisfied, it would not be right to refuse compensation under the article on the ground only that in 1929 an injury of that kind would not have been capable of being demonstrated. Whether or not there is such an injury will always depend on the evidence. But the fact remains that a bodily injury is conceptually distinct from any injury which affects the mind: Mullany & Handford, Tort Liability for Psychiatric Damage (1993), p18.”

138. Lord Hobhouse of Woodborough observed at [141] – [143]:

“[141]   The word bodily is simpler. It means pertaining to the body. There must be an injury to the body. It is, as it must be, accepted that the brain, the central nervous system and the glands which secrete the hormones which enable the brain and the rest of the central nervous system to operate are all integral parts of the body just as much as are the toes, heart, stomach and liver. They are all susceptible to injury. The mechanisms by which they can be injured vary. An ingested poison might injure the stomach or liver. A lack of oxygen will injure the brain by causing the death of brain cells. An injury to the heart may be caused by a blow or by a traumatic experience or by over-exertion. In every case there is a cause, external to the organ in question, which produces a change in the structure or ability to function of the organ. If the change, either alone or in conjunction with changes in other organs, is properly described as an injury, it is a bodily injury. Since the body is a complex organism depending for its functioning and survival upon the interaction of a large number of parts, the injury may be subtle and a matter of inference not direct observation. The medical science of diagnosis exists to enable the appropriate inferences to be drawn from the observed evidence. Medicinal treatments (as with drugs) are prescribed on the basis that there is a physical condition which can be reversed or alleviated by physical means.

[142]    Bodily injury does not import visibility nor palpability nor externality. Its use in Article 17 in addition to the use of the words “death” and “wounding” (“blessure”) and the inclusion of the word “any” confirm this. Take an incident which ruptures a spleen or causes some other internal injury. The doctor infers that the injury has been caused from other signs and symptoms and ultimately confirms it by an invasive (surgery) or non-invasive (ultrascan or x-ray) procedure. An incident may damage someone’s optic nerve in a location or manner which cannot be observed; the person may as a result have no sight in that eye; this will be a bodily injury even though there is no thing palpable, conspicuous or visible. The use of the word “palpable” in the discussion of the meaning of Article 17 typifies the dangers of the use of loose terminology which does not aid clarity but, rather, creates ambiguity. “Palpable” is a term which has a precise meaning - capable of being felt by touch - which is its medical meaning. But it also has a metaphorical usage - readily perceived by the senses or the mind. It will be readily understood that the precise meaning is too restrictive and cannot be justified as a gloss upon the simple phrase bodily injury. The metaphorical usage likewise cannot be justified and is impractical and unprincipled. Is the judge or arbitrator to say: “Having heard the evidence I am satisfied that the passenger suffered an injury but I cannot say that I readily perceived it”? The obvious attraction of using words such as “palpable” is that they give an illusion of clarity when in truth they enable the user to avoid clarity and simply serve to detract from the clarity of the primary terminology.

[143]    Thus, bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish (cf argument (8)). A psychiatric illness may often be evidence of a bodily injury or the description of a condition which includes bodily injury. But the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury.”

139. At [152], his Lordship observed:

“[152]   It is a feature of the brain and the central nervous system that the manner in which it works has inevitably limited the knowledge and understanding of how the organ functions and its pathology. It is an interrelated and interdependent system. Only limited knowledge could be gained from the examination of the anatomy of a corpse. In the living subject, the scope for intrusive investigation was very limited. In the popular perception, this has led to the perpetuation of theories of psychic disembodiment long after they have any scientific justification. There now exist techniques for investigating the functioning of the living brain and the central nervous system together with the roles played by neurotransmitters, hormones and electrical impulses. Physical changes can be scanned and observed using sophisticated instruments and the alterations in the normal chemistry of the brain can now be detected by sophisticated sampling techniques. What was previously invisible can now be made visible. These developments have two relevant results. It can now be shown by valid scientific techniques that certain psychiatric symptoms correspond to physical changes in the brain. Psychiatry (the science of mental illness) has been able to develop a more reliable classification and aetiology enabling better diagnoses to be made and more reliable opinions to be given as to the probable causation of observed disorders. What these developments have changed is not the phenomena nor the meaning of the language used in the article but the ability to adduce evidence relevant to the factual issues raised by the article.”

140. It thus remains now to explain why I have come to conclude that the evidence established on the balance of probabilities, that the PTSD which Ms Casey suffers is a bodily injury compensable under the Montreal Convention.

The evidence establishes that Ms Casey’s PTSD is a “bodily injury”

141. The evidence established that the terrifying, painful experiences which Ms Casey underwent in the crash, affected her mind, with resulting emotional distress, which is not compensable under the Convention. The crash also, however, caused various injuries to her body, three psychiatric conditions and a pain syndrome, which are all compensable bodily injuries under the Montreal Convention.

142. The evidence established that not only the functioning of parts of Ms Casey’s body, but the functioning of her brain and other bodily processes necessary for her brain’s normal functioning, were damaged in ways which resulted in her developing a complex pain disorder and various psychiatric conditions. She has not been able to recover from the damage done to her body and brain and has lost their normal functioning, in a variety of ways. Because of the nature of those injuries and the pain and other problems which they continue to cause, she has never been able to recover her health.

143. The ongoing effects of the physical damage to her body also adversely impacted her recovery from the anxiety disorder, major depression and PTSD which she developed after the crash. Those four conditions also impacted upon each other. They have all been unsuccessfully treated with the pharmacological and other treatments which Ms Casey has pursued diligently, but unsuccessfully. The PTSD which Ms Casey suffers has been treated unsuccessfully, by the same kinds of treatment which have been directed at her other psychiatric conditions.

144. PTSD was the only injury which Pel-Air did not accept as having involved any bodily injury. Ms Casey has met the onus falling upon her to establish that the PTSD is also a bodily injury caused, at least in part, by the injuries to her body. It has been impacted both by the pain syndrome which those injuries have caused and by the other two psychiatric treatment resistant conditions which Ms Casey suffers. They have all exacerbated the nature and severity of her PTSD; they continue to affect its treatment; and they have inhibited her recovery from that disorder.

145. Ms Casey’s failure to respond to the treatment she has received for both PTSD and her other psychiatric conditions, is consistent with Ms Casey having suffered organic damage to her brain and other parts of her body on which its normal functioning depends. That is also consistent with her recovery from her PTSD having been precluded by the damage which helped cause that disorder.

289. In the result, having considered this and other evidence earlier mentioned, I consider a buffer of $10,000 to be appropriate.

Past and future care

292. Pel-Air’s case was that Ms Casey’s disability to her right arm had necessitated some gratuitous domestic care in relation to heavier household duties, but it argued that the evidence as to how much assistance she had received in the past, was unclear. It conceded that objective evidence supported a conclusion that there had been approximately three hours per week of such care provided, consistent with her right arm not being completely disabled, as Ms Casey had acknowledged and the video evidence had confirmed.

293. Pel-Air’s submitted that in the result, Ms Casey’s care requirements did not meet the threshold specified in s 15(3) of the Civil Liability Act, of at least six hours per week, for at least six consecutive months.

294. Pel-Air also argued that with adjustments to suit her physical limitations, Ms Casey could cook, shop, carry loads and drive for limited journeys, but it was accepted that heavy housework and gardening would be beyond her. Given that she could not work and the evidence she tried to do as much as she could herself, Ms Hammond’s assessment that she had required assistance of three hours per week, in the first year after the accident and then from 3 September 2012 to 25 July, 1.08 hours, would be accepted.

295. Those submissions cannot be accepted. Ms Casey has in the past received voluntary care in excess of the statutory requirement and will in future require considerable ongoing care, given all that she continues to suffer. Her needs cannot justly be assessed by reference only to her physical injuries, as Dr Rastogi and Dr Phillips agreed.

Past care

296. Attendant care services are defined in s 15 of the Civil Liability Act to mean:

“(a)   services of a domestic nature,

(b)   services relating to nursing,

(c)   services that aim to alleviate the consequences of an injury.”

297. The evidence well establishes that since the crash Ms Casey has received such care, in excess of the statutory requirement from her parents and children, particularly as they grew older. She received ongoing assistance with domestic tasks which she undertook previously for herself and her family, as well as assistance which she herself required, to alleviate not only the serious physical consequences of her injuries and the pain which they caused her but also the consequences of the psychological conditions which she suffered.

298. Ms Casey, her children and parents gave evidence about these matters, which is not open to doubt, consistent as that evidence was, not only with that of other witnesses, but with Ms Casey’s medical history. That history includes repeated hospital admissions for various treatments. It is not necessary to refer to all of that evidence. It is sufficient to refer to that which Ms Casey gave and that which her daughter, Jemma, and her mother gave. I have no doubt that their evidence was honestly and frankly given. It was supported by and consistent with evidence given by other of Ms Casey’s family members.

299. Ms Casey was cross-examined as to the type of light activity that she was now capable of undertaking, in relation to what she could be seen doing on the video in evidence, which included taking down tinsel Christmas decoration from a veranda at the front of her home and minimising use of her right arm when carrying shopping, and on one occasion, a roll of shade cloth. She explained how she had dispensed with some past commercial care she had been provided, because of embarrassment at her need for help, which she found difficult to accept.

300. Ms Casey’s daughter, Jemma, who was aged 15 at the time of the crash, was required for cross-examination. In her first statement, Jemma said that before the crash Ms Casey had looked after her children and the house. Afterwards she was in a lot of pain and kept to her room. After she had recovered from the initial effects of the crash, Ms Casey gradually tried to do a bit more, but tended to start, but not finish things. Over time, Jemma came to realise her mother would not get better. She described her spending a lot of time lying down and telling her that she could not escape the pain, which was with her all of the time. On occasions she was in so much pain she needed her help to do her hair or dress, but she was very independent and did not like to ask for such help.

301. Ms Casey’s parents had visited regularly, doing the cleaning, cooking and shopping. Jemma described the house often to be in chaos. When it was tidy, she knew her grandparents had been there. Often they were still there when she came home from school. She and her brother Jesse had helped with cooking and after a long time, Jesse had taken over the shopping. She described her mother seeming to be “out of it” a fair bit of the time, spending a fair bit of time in hospital in 2011, when she would have to look after the house and her siblings at home. Her father would come over then and bought them food.

302. When her grandparents were not there, her mother often wasn’t able to cook and on occasions there was not enough food in the house and they went to eat at their grandparents’ home. She was the one who ended up doing most of the cooking, although her sister Amy helped, but she was not at home as much. In 2010 she was making dinner three or four times a week. She was missing a lot of school. In 2011, she was spending an hour cooking three or four days a week and two hours a day on other forms of housework.

303. Since she had returned home in 2013, Jemma cooked most meals and did as much of the housework as she could, as well as keeping her mother company, to distract her from her problems and checking on her medication. On average she was spending two hours a week on actual physical work.

304. In her second statement, Jemma said that even while living away from home between January and November 2013, she was going home nearly every day, to keep her mother company and help with chores. She found her mother on occasions unable to look after herself, slow in her movements and speech, sleepy, unkempt and still in her pyjamas.

305. After her return home she took on various household tasks, shopping and the heavy washing. Her mother tried to do what she could with household work and cooking, because it made her feel better

306. Jemma agreed in cross-examination that she had assisted with chores, such as dishwashing, vacuuming, mopping, cleaning, work of a kind she had helped her mother with before, but which had increased after the accident. Afterwards she also helped with cooking, three or four nights a week. Her grandmother then quite frequently also helped. She also confirmed that she could not recall the frequency with which she had performed various tasks on which she estimated on average having spent two hours per day. When giving her evidence she was receiving a carer’s allowance.

307. In her first statement, Ms de Brouwer described Ms Casey having been overwhelmed by what had happened to her. Until the beginning of 2010 she was very confused and bewildered, functioning at a very low level. She and her husband had to be with Ms Casey almost every day. She tried to be there in the afternoons, when the children came home, when she attended to housework, Ms Casey’s personal needs and cooking a meal. Up to March 2010, Ms de Brouwer estimated spending eight hours a day, seven days a week on these activities.

308. From that time Ms de Brouwer said Ms Casey gradually became more involved, really trying to overcome her ongoing problems. When the nerve blocks were inserted in her neck, first in October 2010, she had some relief, but only for a few days. Ms de Brouwer continued her almost daily visits to help Ms Casey with the children, cooking and housework, but for shorter periods. Often things were left undone and she would try to catch up, unobtrusively. She and her husband also did the shopping. Ms Casey tried, but often said “it’s overwhelming me”.

309. Ms Casey could manage to get to her nearby GP, physiotherapist and hydrotherapy, but Ms de Brouwer and her husband also had to transport Ms Casey to her various other medical appointments, which never took less than three hours. Ms de Brouwer estimated otherwise spending on average two hours a day, five days a week helping Ms Casey and six hours a week shopping.

310. This pattern continued until the end of 2011, with periods of improvement, when Ms Casey could manage more herself, and then periods when she could do nothing and periods when she required hospitalisation. Over time the children were able to do more and in October 2011 the shopping had come to be managed by Ms Casey with Jesse’s assistance. Still Ms de Brouwer was calling in most days. To October 2011 Ms de Brouwer estimated spending one hour a day, four to five times a week, with an additional hour spent providing care such as checking medication and trying to reassure Ms Casey, as well as additional time spent taking her to medical appointments.

311. During 2012, Ms de Brouwer tried to step back, but Ms Casey was still struggling, contending with depression and unrelenting pain. During 2011 and 2012, she estimated having spent 250 hours taking Ms Casey to medical appointments. She and her husband had also assisted when twice she had to move homes.

312. There were also times when Ms de Brouwer took the children to her home, to give Ms Casey a break and being concerned that there were occasions when they were not having meals at home. On occasions they had brought Ms Casey home to care for her, when she had resisted hospital admissions.

313. In 2013, Ms de Brouwer had restricted her visits to once or twice a week, but still spoke to Ms Casey every day. Her ex-husband had also rented a house nearby, to spend more time with the children and to assist Ms Casey. Her son was providing her with more assistance, after her two daughters had moved out of home. Ms Casey had hospital admissions in 2013, including for further spinal surgery, which was hoped would give her pain relief, which did not eventuate.

314. In Ms de Brouwer’s second statement, she referred to Ms Casey undergoing further surgery to her neck in March 2014. She described her being in an awful state beforehand, lying down, unable to tolerate light, not functioning and unable to look after herself, or her house. She then obtained some relief from unremitting headaches, but not with pain in her neck, arm and shoulder.

315. Ms de Brouwer also described Jemma’s almost full-time care for Ms Casey allowing her and her husband to be less involved in her care, but she still called in three or four times a week and rang Ms Casey everyday. She described ongoing problems, including with weight loss. If Ms Casey was low and Jemma was not there, Ms de Brouwer went over.

316. In the face of all of this evidence, I am satisfied that the claims finally pressed for Ms Casey by reference to the submissions marked mfi 7, which had regard to the differing times at which care was provided and by whom, should be allowed, from 18 November 2009.

317. Reference was made to the observations of Hodgson JA in relation to similar provisions of s 72 of the Motor Accidents Act1988 (NSW) in Matchan v Lyons [2003] NSWCA 384; (2003) 40 MVR 466 at [5] that:

“[5]    ... a plaintiff seeking compensation for unpaid domestic care should prove what domestic tasks he or she previously did and does not now do, that this is due to the relevant injuries and disabilities, and that these tasks are now done for the plaintiff otherwise than as part of the fair give and take of family life.”

318. I am satisfied that Ms Casey has met that onus. Further, there is ample evidence that attendances on Ms Casey included attendances by her mother in order to comfort her in ways reasonably necessary for the alleviation of her pitiable conditions. This must be taken into account on this head, given the provision made in s 15(3).

Future care requirements

319. The parties also differed as to the cost of self-care, Ms Luft assessing the cost at $234.57 and Ms Hammond $249. Ms Casey’s submission that the average figure should be used, should be accepted.

320. Contrary to Ms Hammond’s assessment, the evidence establishes that Ms Casey is only able to drive short distances to shop and attend medical appointments and needs to be driven for medical appointments further away. A claim for one hour a week, with an allowance for mileage calculated at a cost of $50, should be accepted as reasonable on all of the evidence.

321. Ms Casey pressed a figure of 6.7 hours per week domestic care in future, in accordance with Ms Luft’s assessment. I consider that this reflects a reasonable assessment of Ms Casey’s needs, having regard to the evidence I have referred to.

322. Pel-Air contended that Ms Hammond’s assessment of 1.5 hours per week, plus assistance with lawns and car cleaning should be accepted. For reasons already explained in relation to the past care which Ms Casey has received, I have concluded that Ms Hammond’s assessment cannot be accepted as properly reflecting all the assistance which Ms Casey reasonably needs in future. It does not accord even with Dr Philips assessment of four to six hours per week, given her psychiatric condition.

323. There was also a claim for assistance with leisure. Ms Luft assessed this at two hours per week. This was supported by Dr Rastogi and Dr Phillips’ agreement in the joint report that Ms Casey would be assisted by pursuing physical exercise. Ms Hammond considered that the psychiatric nurse could provide such assistance. On the evidence, I am satisfied that these claims should also be allowed.

324. Dr Rastogi and Dr Phillips also agreed with desirability of the continuation of the regular contact with Ms Casey arranged by the insurer. This should be allowed at a cost of $30 per week.

325. The evidence also establishes a need for overnight supervision which has been provided by family members, who will not in the future always be available to provide such care for Ms Casey. I consider that a basis for the claim for seven nights per year has been established on the evidence I have discussed. What is claimed is reasonable and must be allowed.

Dr Helm’s injuries

326. Dr Helm swore two affidavits, the first in September 2013 and the second in January 2015. Pel-Air did not dispute his description of the difficulties he encountered from the injuries which he suffered in the crash. It served a report from Dr Lindsay, an anaesthetist, who described ways in which an anaesthetist may avoid pressure on his back. He was not finally called, Dr Helm’s evidence as to these matters being accepted as sufficiently joining issue on the matters dealt with by Dr Lindsay.

327. Dr Helm was a qualified doctor training in anaesthetics and intensive care specialties in the United Kingdom, when he took a break from his studies and pursued a 12 month appointment with CareFlight in Australia. Dr Helm’s evidence was supported by that of his wife, Ms Stacey Sharman and Dr Christopher Jones, with whom Dr Helm worked at CareFlight. They were not required for cross-examination.

328. At the time of the crash Dr Helm was 32, a very fit and active man, who ran marathons, skied, raced mountain bikes, cycled road bikes almost daily and played competitive rugby league. He was not suffering any pre-existing conditions. Dr Helm was then engaged to Ms Sharman. They have since married, have two children and live in the United Kingdom.

329. Dr Helm was planning to return to the United Kingdom to finish his specialty studies in anaesthetics and intensive care and then to work in the British NHS medical system, at a hospital, as well as a specialist in private practice, after his CareFlight appointment. He there intended to pursue a similar career path to that which Dr Jones described in his evidence.

330. Dr Helm was also considering the possibility of returning to Australia to practise his specialty here in the future. At the time of the hearing he was in Australia undertaking further studies, as part of his specialty training. He and his wife proposed to purchase a house on their return to the UK, when he will complete his studies and begin his work as a specialist.

331. Dr Helm was much less seriously injured in the crash than Ms Casey. He suffered scratches, bruising and multiple soft tissue injuries, as well as an injury to his spine. Dr Helm had some weeks off after the crash, during which he sought treatment, which included seeing a psychologist. He then returned to work where he performed modified duties for CareFlight with some discomfort, for which he was treated. He did not consider that he had suffered any permanent psychological problem, but the pain in his back has not gone away and has gradually become worse.

332. Dr Helm has still not completely recovered from his injuries and never will. He suffers ongoing, fluctuating pain in his lumbar spine, thoracic spine and cervical spine, which has worsened over time. As a result, he has not been able to return to his former very active lifestyle and has had to stop various physical activities, such as jogging and rugby, which he found aggravated his back. His ability to pursue his studies and perform his work have also been adversely affected, as has his physical interaction with his children, which can result in back pain, from bending, twisting or stooping. His physical exercise is now largely restricted to bike riding. Understandably, Dr Helm finds his ongoing restrictions distressing.

333. By the time he swore his January 2015 affidavit, Dr Helm’s back pain had altered, extending from the low back into his buttocks and thighs. He was then finding that he was generally slow and stiff, especially in the mornings, with even simple movements causing him pain, which he described as mild, but constant. Awkward movements increased the pain, which on occasions became severe. There had been several occasions on which it had become excruciating.

334. Dr Helm had earlier found that certain postures and positions which he has to adopt at work aggravated his pain, which was coming on more easily over time and had resulted in him getting more restricted. He has had muscle spasms, with no obvious cause, which resulted in him being unable to manage patient lifting. He had also experienced a pattern of flare up in pain, from which he does not recover to the position he had before.

335. In June 2013, he sought a specialist opinion and was advised to persevere, being cautious and using analgesics, aiming to avoid a spinal fusion. His work involves a lot of physical activity, which he found uncomfortable. Dr Helm gave examples of particular anaesthetic and ICU work which he has to perform and how he manages work which causes him particular problems, including by seeking assistance with lifting and avoiding bending over, stooping and twisting.

336. By January 2015, he was finding the pain a distraction at work on a daily basis, with long procedures when he could not change his position, difficult to manage. He described how he attempted to manage challenging work he had to perform, but that sometimes he had to force past pain, in order to complete the task at hand.

337. The orthopaedic experts Dr New and Dr Vote were not required to give oral evidence in relation to their joint report. It was their joint view that Dr Helm’s physical condition will require ongoing treatment; it will deteriorate over time, with the result a curtailment of the amount and type of work that Dr Helm will be able to perform. These problems will also continue to affect the other activities he is able to pursue.

338. Both experts considered that Dr Helm ought not to attempt any heavy lifting and that he is susceptible to further injury to his spine. They also considered that it was possible that he might require surgery in the future. Dr New considered it likely that Dr Helm would not be able to persist with his work after age 50 and Dr Vote that there was a better than even chance that he could continue to age 60. If his condition requires treatment with opioids, it was possible, however, that his working life would cease sooner.

326. Normal retirement age in the UK NHS system is 68, with an extension to age 70 possible. Dr Helm’s evidence was that he hoped that he would be able to manage his work for longer than Dr New predicted, but with recent exacerbations he had experienced, feared that Dr New might be correct, given that he had very specific technical skills which would not readily translate into other areas of medicine.

327. In the result, the parties agreed that Dr Helm’s earning capacity had been reduced.

Dr Helm’s damages

341. The parties agreed that Dr Helm was entitled to an order for damages. There was no issue as to various of the matters by reference to which those damages must be calculated.

342. There was no issue, for example, that Dr Helm was a fit, active and healthy man before the crash. His most likely future circumstances, but for the injury, his potential earnings and the way in which his gross earning per year should be calculated, were all not in dispute.

343. There was also no dispute about the nature of the injury Dr Helm suffered and that it will have an increasing impact upon him over time, something that he would not have experienced, but for the crash.

344. What was in issue included retirement age, the impact of Dr Helm’s deteriorating condition, the weekly figure by reference to which his damages should be calculated and the periods to which certain rates should apply; rates for commercial assistance; various care requirements and future treatment expenses.

Future economic loss

345. Dr Helm expects to complete his specialist studies in anaesthetics and intensive care in the United Kingdom in August 2015. He will then seek appointment to an NHS Trust hospital, where he will be paid a salary. He expects there to work in both anaesthetics and intensive care. How much work he would perform in the two fields is job specific. He described what such work involves. He also gave evidence as to how that work differed from the views expressed by Dr Lindsay, as to what anaesthetic work in a hospital in Australia involves. He also explained why he disagreed with various opinions Dr Lindsay expressed, as to steps available to him to take, to accommodate the problems which his injury causes him.

346. It is sufficient to give two examples. Dr Helm referred to Dr Lindsay’s view that electric beds could be utilised to minimise the amount of bending which Dr Helm had to do. Dr Helm said that anaesthetists work as part of a team and that bed height has to be at a level which suits all team members, who might have to work together in emergency situations. Dr Helm is six feet in height and given the height of other team members, he said that there had to be compromise, so that in some cases bed height adjustments which would suit him, could not be made.

347. Dr Helm agreed with Dr Lindsay that the actual placing of an intubation tube normally took about 30 seconds, but said that the entire intubation process took up to three minutes. He agreed that this did not involve bending for a long period. Where intubation was not straight forward, however, it could take considerably longer and require positions which were not optimal for his back.

348. Dr Helm was cross-examined as to his work as an anaesthetist and as an intensivist. He said that he would not be able to restrict his practice to purely anaesthetic work, because of requirements to be on call for emergency work, which requires performing work on patients in intensive care beds, inside and outside the emergency department. He also described the circumstances in which it was not possible to control anaesthetic work to positions which he found comfortable, because of various patient needs. He agreed that intensive work exposed him to such situations more frequently, as did paediatric work and work with obese patients.

349. I accept Dr Helm as a witness of truth. His evidence as to these matters, the impact of his injuries on his work and the pain and limitations which have resulted must be accepted.

350. Dr Helm will also have a right of private practice in the United Kingdom. He intends to practice in anaesthesia, pursuing the career path about which Dr Jones, who is several years ahead of him, gave evidence.

Retirement age

351. Pel-Air accepted that the evidence supported a finding that Dr Helm would lose eight years of his full-time earnings, from age 60, calculated by reference to probable retirement at 68.

352. The current retirement age under the NHS system is 68 years. An extension to age 70 is available. There is no evidence of any retiring age for private practice.

353. Dr Helm is a highly motivated man. The experts agreed that he had downplayed his symptoms and that his survival, while in considerable pain from multiple soft tissue injuries, scratches, bruising and injury to his spine, reflected his CareFlight pre-induction training, which was military in rigour. Dr Vote considered his return to work after only a few weeks off, while still in considerable pain and keeping pain medication to a minimum, to have been amazing.

354. On Dr Helm’s unchallenged evidence, he intended to work to age 68, if not beyond. On that evidence and the evidence of his health and approach to fitness prior to the crash, I consider that Dr Helm would have worked until age 70, but for his injuries. His damages must be calculated by reference to that age.

Dr Helm’s likely future circumstances

355. It was the common view of the orthopaedic experts that the nature of Dr Helm’s condition was such that he will suffer increasing adverse effects over time and that he will not be able to pursue his work beyond the age of 60.

356. Dr Vote agreed with Dr New, who expected that Dr Helm would have significant pain by age 50 and retirement at that age might be taken out of his hands by the NHS, if it was felt that he was not then up to the job. If he began suffering sciatic pain before then, that would also affect what he could do. It was agreed that there was also a possibility of spinal fusion surgery, if Dr Helm’s pain became considerable. Still Dr Vote considered that given his fitness, Dr Helm had a better than even chance of working to age 60.

357. Pel-Air contended that this aspect of calculation should thus be approached on the basis of a diminished capacity to work from age 55, rather than age 50.

358. Given the evidence of Dr Helm’s past approach to his injuries and his evidence as to the deterioration he explained that he has experienced and its impact, I am satisfied that submission cannot reasonably be accepted, notwithstanding Dr Vote’s views.

359. I have earlier discussed Dr Helm’s evidence of his worsening condition, its impact on his work and his concerns for the future, particularly given that working despite the impact of his condition is not a matter only within his control. Resilience and determination alone are not likely to be enough, given the nature of the injuries which Dr Helm has suffered. When all of that evidence is considered, it must be concluded on the balance of probabilities, that Dr Helm’s capacity to work will diminish from age 50, as he contended.

360. A calculation of this aspect of his damages, on the assumption that he would progressively lose one third of his income from his private practice, is a reasonable basis upon which to calculate this loss.

Section 12 of the Civil Liability Act

361. There was a disagreement over the impact of s 12 of the Civil Liability Act. It relevantly provides:

“12 Damages for past or future economic loss - maximum for loss of earnings etc

...

(2)    In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.

(3)    For the purposes of this section, the amount of average weekly earnings at the date of an award is:

(a)    the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or

(b)    if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. “

362. It was agreed that the figure representing three times the relevant average weekly earnings was $3,354.

363. Originally Dr Helm’s damages were calculated by reference to his estimated gross weekly salary of $3,580 (see paragraph 8 of mfi 6). Accepting the figures at paragraph 8 of mfi 6, Pel-Air calculated that his net salary, after deduction of British tax, was $3,614 and submitted that, accordingly, s 12 required that his loss from age 60 be calculated by reference to $3,354 (paragraph 1 of mfi 10).

364. Dr Helm then conceded that in accordance with s 12, these damages had to be calculated by reference to the figure of $3,354 per week (see mfi 13 and 14).

365. Pel-Air then submitted in response to mfi 13 and 14, that these damages should be calculated by reference to a net figure of $2,314, said to have been calculated in accordance with paragraph 1 of mfi 10. No reference was made to such a figure in mfi 10. How that figure was calculated is not revealed by what was submitted there. Reference was also made in Pel-Air’s response to ABS statistics and an average weekly earnings table attached to the submission. How those documents relate to the calculation of the figure of $2,314, is not apparent.

366. I consider that the submissions advanced for Dr Helm as to the proper construction of s 12 of the Civil Liability Act are correct. In calculating these damages s 12 requires any amount by which Dr Helm’s gross weekly earnings would, but for his injuries, have exceeded $3,354, be ignored. That is a figure less than Dr Helm’s net salary would be, after tax, but for his injury. Accordingly, $3,354 is the figure by reference to which these damages must be calculated.

Non-economic loss

367. The issue between the parties was whether the assessment of this loss under s 16 of the Civil Liability Act falls at 25% of a worst case, or 35%, given the evidence of Dr Helm’s pain, discomfort, loss of enjoyment of life and ongoing restrictions.

368. I have already discussed the evidence as to the impact of the crash on Dr Helm’s health, on his working life and the loss of his ability to pursue an active private life in which he successfully pursed a wide range of physical interests and pursuits. There is also evidence that it has had an adverse impact on various aspects of his personal life, another relevant consideration (see Linsell v Robson [1976] 1 NSWLR 249).

369. Dr Helm’s account of the difficulties he has suffered were not disputed by Pel-Air. It was supported by Ms Sharman’s evidence, Dr Helm is plainly a stoic man. His evidence of a condition worsening more than he had expected, must be accepted, consistent as that is with the experts’ evidence. That evidence does not permit the conclusion that what he has suffered was quite moderate, as Pel-Air submitted.

370. On all of that evidence, I am satisfied that a reasonable assessment of his non-economic loss is 35%.

Care

371. There was no claim for past voluntary care, which it was accepted fell below the statutory threshold. The rates at which future needs should be calculated were agreed.

372. It was not in issue that Dr Helm has future care needs.

373. Dr Helm submitted that they should be awarded from age 40 , increasing from age 50, again from age 60 and then ceasing at age 75, it being accepted as a matter of common experience that assistance is required at that age. Pel-Air’s case was that his needs would be assessed at no more than two hours per week, as a realistic average of needs which it was accepted would increase, beginning at age 50 and ceasing at age 70. It was argued that an assessment that his needs over time would increase to nine hours per week was, however, unrealistic.

374. In his January 2015 affidavit, Dr Helm assessed that from age 40 he would require two hours domestic assistance a week, six hours from age 50 and by age 60, nine hours per week. He also there described the nature of his worsening symptoms and their effects.

375. His evidence was supported by Ms Sharman’s affidavit evidence, where she described the effects of Dr Helm’s ongoing back problems on his ability to pursue his sporting interests, to interact with his children and to perform housework and other things such as gardening. She described the ongoing impact of his problems on his mood and ability to cope with his work and life. She also explained why it would be necessary for them to obtain help to perform outside work when they buy the home they plan to purchase and how they currently paid for assistance, when funds were available, to avoid Dr Helm undertaking tasks which already aggravate his back. She assessed that they then needed about three hours a week paid assistance for domestic and inside home maintenance tasks and two hours for paid assistance outside.

376. None of this evidence was challenged.

377. The evidence well establishes that Dr Helm has future care needs which will increase over time. Calculating those needs at two hours per week from age 40 is consistent with the evidence of Dr Helm’s current condition and the evidence that it will deteriorate over time. That his needs will increase to six hours per week by age 50, is consistent with the conclusions which I have reached as to the likely deterioration in his condition by then. That they will have increased further by age 60 to nine hours per week, when Dr Helm is unlikely to be able to continue work at all, is also, I am satisfied, a realistic assessment of his needs at that time.

378. I do accept Pel-Air’s submission that the calculation should reduce at age 70. While increasing longevity and working life is common, it must be accepted that from that age, assistance with heavier tasks are generally required. Dr Helm will, however, require more assistance than normal and so to age 75, he should have an award of five hours per week.

Treatment expenses

379. Past treatment expenses were agreed.

380. Future expenses were calculated by reference to treatment needs to age 85, including medication, physiotherapy, hydrotherapy and surgery.

381. The difference between the parties reflected that the cost of surgery had been calculated by Pel-Air on the basis that there was a 25% chance of surgery, deferred for some 15 years, so that it was calculated on a net present value basis, which seems reasonable in the circumstances.

Orders

382. For the reasons given, I find for Ms Casey and Dr Helm.

383. The usual order as to costs is that they follow the event. In these proceedings that would result in orders that Pel-Air bear their costs, as agreed or assessed. I will hear the parties if any of them seek any different order.

384. The parties are directed to confer and to file short minutes of proposed orders, reflecting the conclusions which I have reached and indicating any remaining areas of disagreement, within 21 days.

385. The matter will be listed for mention on 10 June 2015 at 9:30am.

**********

Amendments

08 March 2016 - amendment to coversheet

08 March 2016 - minor corrections throughout decision

02 October 2015 - typographical error on coversheet and in paragraphs [38] and [40] - the word "Lexus Nexis" corrected to "LexisNexis"

11 June 2015 - typographical error in [363] - 'collected' amended to 'calculated'

Decision last updated: 08 March 2016