Pel-Air Aviation Pty Ltd v Casey - [2017] NSWCA 32

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32
Hearing dates: 21 and 22 November 2016
Decision date: 09 March 2017
Before: Macfarlan JA at [1];
Ward JA at [110];
Gleeson JA at [111]
Decision:
(1)   Appeal allowed.
(2)   Cross-appeal allowed.
(3)   Set aside the judgment and orders numbered (1), (2) and (3) made below on 21 March 2016 and the costs order made below on 19 April 2016.
(4)   Direct the parties to lodge and serve, in accordance with the following timetable, written submissions not exceeding five pages in length quantifying the amount of the judgment to be entered in favour of Ms Casey in conformity with these reasons for judgment and dealing with issues as to costs:
(i)   Ms Casey’s submissions within seven days of the date of this judgment.
(ii)   Pel-Air’s submissions within a further seven days.
(iii)   Ms Casey’s submissions in reply within a further seven days.

Catchwords:
INTERNATIONAL LAW – torts – personal injury - strict liability claim against air carrier for injuries sustained during aircraft accident – respondent suffered physical and psychiatric injuries including Post Traumatic Stress Disorder (“PTSD”) – whether PTSD constitutes a “bodily injury” - Article 17(1) of the Montreal Convention relating to International Carriage by Air – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) sections 9B and 9E - bodily injury includes physical damage to the brain – evidence that PTSD caused chemical changes in respondent’s brain but no evidence of physical damage to the brain

DAMAGES – whether the respondent’s injuries excluding Post Traumatic Stress Disorder warranted an award for the costs of funds management – onus of proof discussed where loss partly caused by an injury for which the defendant does not bear legal responsibility – Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208 referred to

DAMAGES – principles relevant to recovery of out-of-pocket expenses discussed – funds management costs – whether appointment of National Australia Trustee as funds manager was so unreasonable that it could not be regarded as a consequence of the injury – Gray v Richard (2014) 253 CLR 660; [2014] HCA 40 referred to – respondent/cross appellant entitled to recover costs for funds management calculated according to National Australia Trustee rates
WORDS AND PHRASES – “bodily injury”
Legislation Cited: Civil Aviation (Carriers’ Liability) Act 1959 (Cth)
Civil Liability Act 2002 (NSW), ss 15, 16
Cases Cited: ALDI Foods Pty Ltd v Young [2016] NSWCA 109
American Airlines Inc v Georgeopoulos (No 2) [1998] NSWCA 273
Bobian v Czech Airlines 93 Fed Appx 406 (2004)
Eastern Airlines, Inc v Floyd 499 US 530 (1991)
Gray v Richard (2014) 253 CLR 660; [2014] HCA 40
In re Air Crash at Little Rock, Arkansas, on June 1, 1999 118 F Supp 2d 916 (2000)
In re Air Crash at Little Rock Arkansas, on June 1 1999 291 F 3d 503 (8th Cir 2002)
Jane Doe v United Airlines…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCA 32
Decision Date: 09 March 2017

CaseChat Overview and Summary

In *Pel-Air Aviation Pty Ltd v Casey*, the New South Wales Court of Appeal considered a claim for personal injury brought by Ms Casey against Pel-Air Aviation Pty Ltd. Ms Casey suffered physical and psychiatric injuries, including Post Traumatic Stress Disorder (PTSD), as a result of an aircraft accident. The claim was brought under Article 17(1) of the Montreal Convention, as incorporated into Australian law by the *Civil Aviation (Carriers’ Liability) Act 1959* (Cth).

The primary legal issues before the Court of Appeal were whether PTSD constituted a "bodily injury" for the purposes of Article 17(1) of the Montreal Convention, and whether Ms Casey was entitled to recover the costs of funds management for her damages. The court was required to determine the scope of "bodily injury" in the context of international air carriage and the principles governing the recovery of out-of-pocket expenses, particularly where the loss may have been partly caused by an injury for which the defendant was not legally responsible.

The Court of Appeal reasoned that while PTSD could cause chemical changes in the brain, there was no evidence of physical damage to the brain itself. Consequently, the court held that PTSD, in the absence of such physical damage, did not fall within the definition of "bodily injury" under Article 17(1). Regarding the costs of funds management, the court applied principles from cases such as *Seltsam Pty Ltd v Ghaleb* and *Gray v Richard*, finding that the appointment of a funds manager was not so unreasonable as to preclude recovery.

The Court of Appeal allowed both the appeal and the cross-appeal, setting aside the previous judgment and orders. The parties were directed to lodge written submissions to quantify the final judgment amount in favour of Ms Casey and to address costs.

Orders

Orders of the court

(1) Appeal allowed.

(2) Cross-appeal allowed.

(3) Set aside the judgment and orders numbered (1), (2) and (3) made below on 21 March 2016 and the costs order made below on 19 April 2016.

(4) Direct the parties to lodge and serve, in accordance with the following timetable, written submissions not exceeding five pages in length quantifying the amount of the judgment to be entered in favour of Ms Casey in conformity with these reasons for judgment and dealing with issues as to costs:

(i) Ms Casey’s submissions within seven days of the date of this judgment.

(ii) Pel-Air’s submissions within a further seven days.

(iii) Ms Casey’s submissions in reply within a further seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32
Hearing dates:	21 and 22 November 2016
Decision date:	09 March 2017
Before:	Macfarlan JA at [1]; Ward JA at [110]; Gleeson JA at [111]
Decision:	(1) Appeal allowed. (2) Cross-appeal allowed. (3) Set aside the judgment and orders numbered (1), (2) and (3) made below on 21 March 2016 and the costs order made below on 19 April 2016. (4) Direct the parties to lodge and serve, in accordance with the following timetable, written submissions not exceeding five pages in length quantifying the amount of the judgment to be entered in favour of Ms Casey in conformity with these reasons for judgment and dealing with issues as to costs: (i) Ms Casey’s submissions within seven days of the date of this judgment. (ii) Pel-Air’s submissions within a further seven days. (iii) Ms Casey’s submissions in reply within a further seven days.
Catchwords:	INTERNATIONAL LAW – torts – personal injury - strict liability claim against air carrier for injuries sustained during aircraft accident – respondent suffered physical and psychiatric injuries including Post Traumatic Stress Disorder (“PTSD”) – whether PTSD constitutes a “bodily injury” - Article 17(1) of the Montreal Convention relating to International Carriage by Air – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) sections 9B and 9E - bodily injury includes physical damage to the brain – evidence that PTSD caused chemical changes in respondent’s brain but no evidence of physical damage to the brain DAMAGES – whether the respondent’s injuries excluding Post Traumatic Stress Disorder warranted an award for the costs of funds management – onus of proof discussed where loss partly caused by an injury for which the defendant does not bear legal responsibility – Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208 referred to DAMAGES – principles relevant to recovery of out-of-pocket expenses discussed – funds management costs – whether appointment of National Australia Trustee as funds manager was so unreasonable that it could not be regarded as a consequence of the injury – Gray v Richard (2014) 253 CLR 660; [2014] HCA 40 referred to – respondent/cross appellant entitled to recover costs for funds management calculated according to National Australia Trustee rates WORDS AND PHRASES – “bodily injury”
Legislation Cited:	Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Civil Liability Act 2002 (NSW), ss 15, 16
Cases Cited:	ALDI Foods Pty Ltd v Young [2016] NSWCA 109 American Airlines Inc v Georgeopoulos (No 2) [1998] NSWCA 273 Bobian v Czech Airlines 93 Fed Appx 406 (2004) Eastern Airlines, Inc v Floyd 499 US 530 (1991) Gray v Richard (2014) 253 CLR 660; [2014] HCA 40 In re Air Crash at Little Rock, Arkansas, on June 1, 1999 118 F Supp 2d 916 (2000) In re Air Crash at Little Rock Arkansas, on June 1 1999 291 F 3d 503 (8th Cir 2002) Jane Doe v United Airlines…