What is "bodily injury"?

In November 2009, Ms Karen Casey was a nurse employed by Care Flight (NSW). She was travelling on a small aircraft to Samoa to evacuate a patient and her husband to Melbourne. The aircraft was scheduled to refuel at Norfolk Island on the return journey but bad weather resulted in the pilot conducting an emergency landing of the aircraft at sea. While all of the persons on board were eventually rescued, Ms Casey suffered significant physical and mental injuries, including post traumatic stress disorder (“PTSD”), as a result of the incident.

The appeal

Under Article 17 of the 1999 Montreal Convention relating to International Carriage by Air (“Montreal Convention”), which is incorporated into Australian law by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), “the carrier is liable for damage sustained in case of death or bodily injury of a passenger“. The main issue on appeal was whether the primary judge erred at first instance in concluding that Ms Casey’s PTSD constituted a “bodily injury” as the term is used in the Montreal Convention: [2015] NSWSC 566.

The primary judge had concluded that the evidence before her established “that the PTSD which Ms Casey suffers… is consequent on damage to her brain and to other parts of her bodily processes which have had the result that her brain is no longer capable of functioning normally”. In coming to this conclusion, the primary judge pointed to the failure of Ms Casey to respond to treatment as indicating organic damage to the brain and that any ongoing dysfunction to Ms Casey’s brain was consistent with chemical changes in her brain and alterations in her brain’s neurotransmitter pathways.

Pel-Air submitted first that the case authorities did not justify a conclusion that any change in bodily condition or function was sufficient to constitute “bodily injury” within the meaning of the Montreal Convention. Secondly it also submitted that if the primary judgment involved a conclusion that indicated, on the evidence before it, that Ms Casey’s PTSD was a manifestation of some damage to her body, it was an erroneous conclusion.

The verdict

Joint expert evidence was tendered in relation to the effect of PTSD on the brain. In summary, while the experts agreed that brain malfunction is a chemical issue and if the brain’s neurotransmitter chemicals “are malfunctioning that is going to cause an abnormality in the function of the brain”, it was speculative to suggest that these abnormalities “might lead to changes in the architecture or the structure of the brain”.

Macfarlan JA concluded that the case authorities confirmed that while the expression “bodily injury” connotes damage to a person’s body, it did not exclude consideration of damage to a person’s brain and therefore “if the evidence in a particular case demonstrates that there has been a physical destruction of a part or parts of the brain, “bodily injury” will have been proved”. His Honour went on to state that it is sufficient if the physical injury can be proved. In the present case, there was no proof that Ms Casey’s PTSD resulted from actual physical damage to her brain and the biochemical changes in Ms Casey’s brain do not constitute “bodily injury”. Citing the English and American case authorities, His Honour concluded at [51],

I consider that it is insufficient for a claimant to prove that the function of his or her brain has changed or even that chemical changes have occurred in it. In the absence of compelling medical evidence to the contrary, such malfunctioning or chemical changes cannot fairly be described as “injuries” to the body. Moreover, importance must be attached to the adjective “bodily” as a limiting word. It clearly draws a distinction between bodily and mental injuries: mental injuries are covered only if they are a manifestation of physical injuries, or if they result from physical injuries (including physical injuries to the brain).

Given that the expert evidence tendered only justified a conclusion that Ms Casey’s brain was malfunctioning as a result of biochemical changes and there was no evidence that it reflected physical changes, His Honour accepted both submissions from Pel-Air.

The appeal also went on to consider Ms Casey’s award of damages and recovery of costs of funds management. In relation to the issues about the award of damages, it is also of note that His Honour concluded that “attendant care serves” as defined in s15(1) of the Civil Liability Act 2002 (NSW) can also include emotional support.

What does this mean for Air Carriers and Insurers?

This decision confirms the view that mental injuries which do not derive from physical injuries are not compensable under the Montreal Convention. This is beneficial for air carriers and their insurers because, despite the growing trend for plaintiffs to allege various types of mental injury, it will restrict the ability of courts to award damages for these types of claims.

This article was written by Simon Liddy, Partner, Matthew Brooks, Partner and Carol Cheng, Solicitor.

The HWL Ebsworth National Aviation Team advises the aviation industry and its insurers on liability matters, commercial arrangements and regulatory compliance throughout Australia, the Pacific and Asia. If you would like further information on this article and the potential implications this decision may have on your operations, please contact a member of our team.