Written by Peter CarterAugust 4, 2015
In some cases, not only can a person’s mind be adversely affected by distress and other emotional reactions in relation to a calamity but alterations to neurotransmitter chemicals and pathways, ie organic changes, can also result.
This subtle distinction – which may have widespread significance in personal injury compensation – arises out of a remarkable event that occurred in treacherous conditions at night in November 2009 in the Pacific Ocean, 1500 km east of the Gold Coast.
Careflight medivac jet VH-NGA was on an instrument approach to land at Norfolk Island airport when the captain decided to abort and make another attempt from the opposite direction to penetrate the heavy weather.
The Westwind aircraft had refuelled there earlier that day on the outbound flight from Sydney to Apia (Samoa) to collect a seriously ill holidaymaker whose travel insurance included medical evacuation in such emergencies.
Six were aboard for the return journey to Melbourne: the patient, her husband, a doctor, nurse, the pilot and his co-pilot.
At Apia, the pilot submitted a flight plan by phone to Airservices in Australia. At that time, the forecast weather conditions at Norfolk Island were clear .
But the weather deteriorated en route and on arrival was so stormy that even after four instrument approach attempts over 45 minutes to the minimum permissible altitude of 400’ above the landing strip, the runway lights could not be seen.
The pilot had no alternative but to ditch the plane into the open sea 6 km west of the island in darkness and heavy seas.
All occupants were able to extricate themselves from the broken and sinking aircraft but as there was no life raft, no lights and no beacons, they remained afloat and together by sheer determination.
The pilot signaled to shore with a pocket torch that eventually caught the attention of inhabitants on the remote side of the island who launched fishing boats and completed a rescue about 90 minutes later.
Needless to say, the several unsuccessful landing attempts, the violent impact of the aircraft with the sea, the escape from the sinking hull, the desperation while adrift and the dramatic rescue itself, resulted in severe trauma to all concerned.
This gripping account was retold by many of the participants to NSW’s Supreme Court for the assessment of appropriate injury compensation due by the aircraft operator Pel-Air Aviation, to nurse Karen Casey and doctor David Helm.
Because Casey and Helm were “passengers”, their entitlement to compensation rested on article 17 of the Montréal 1999 Convention which entitles them only to compensation for “bodily” injury.
Casey had suffered – apart from injuries to her head, neck, nerves, teeth, spine, knee, leg and shoulder – a complex pain syndrome, a major depressive order, anxiety and PTSD.
She argued that all of the latter injuries were “bodily” because they resulted from or caused “alterations in neurotransmitter pathways in the brain”.
The airline accepted that argument in relation to the pain syndrome depression and anxiety but not in respect of PTSD which it contended was purely psychiatric.
Justice Monika Schmidt ruled for Casey, that the PTSD “cannot be separated from the causes of the other two psychiatric conditions”.
“The PTSD which Ms Casey developed is not merely the result of an injury to her mind caused by the shock, fear and other emotional trauma in the crash,” Judge Schmidt decided. “It must be concluded that it also involves an injury to her brain….. this is a psychiatric injury caused by a physical route.”
The damages awarded to Helm exceeded $950k. Karen Casey’s damages outcome was not published but given the extent of her injuries which were far greater than those of Dr Helm, and the unlikelihood of the flight care nurse ever working again, her compensation order is likely to be in excess of $2 mil.
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (No 2)  NSWSC 734 Schmidt J, 12 June 2015 – view decision
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd  NSWSC 566 Schmidt J 15 May 2015 – view decision