Karen Casey, the nurse who was seriously injured in the Pel-Air crash near Norfolk Island in 2009, has won the right to damages from the air operator for post-traumatic stress disorder (PTSD).

In the Supreme Court in Sydney last week Justice Monika Schmidt ruled that compensation did apply in the case brought by Casey because like all her other crash-related injuries, her PTSD is a bodily injury.

The defence had argued in the case brought against Pel-Air by the former nurse that the Montreal Convention, which relates to damages arising from aviation accidents, excluded compensation for psychological injury.

The parties will now consider the detail of the judgment before compensation being awarded to Casey is determined in further proceedings.

Casey was among the six people on board the Pel-Air Westwind corporate jet conducting a medical evacuation from Apia to Melbourne on November 18, 2009, when it was ditched into the sea after being unable to land for refueling at Norfolk Island because of a deterioration in the forecast weather conditions.

The crash has been the subject of prolonged controversy over the conduct and procedures of the Australian Transport Safety Bureau in determining that the captain of the jet was to blame for the accident.

That report by the ATSB has since been discredited by a peer review of the Australian agency’s procedures by the Transportation Safety Board of Canada, which caused the original ATSB final report to be withdrawn, pending its doing a new, comprehensive and professional report into the accident.

The ATSB was also directed to retrieve and if possible, read the flight information on the Pel-Air jet’s flight data recorder, which it has previously refused to recover from the sea floor.

A Senate inquiry into the conduct of the ATSB was severely critical of testimony made by Chief Commissioner Martin Dolan and found that the Civil Aviation Safety Authority had suppressed an internal review that found that had it carried out its duties of oversight of Pel-Air, the accident might have been prevented.

That suppressed document, tabled and made public by the Senate inquiry, showed that Pel-Air was in multiple significant breaches of the safety regulations  at the time of the crash, and that CASA had, inter alia, failed in its duties in relation to Pel-Air’s operations.

Dolan had insisted in testimony to the Senate hearing that the matters revealed by the CASA internal audit were not relevant to its now-discredited and withdrawn final report into the crash.

In her decision Schmidt said the prospects for Casey’s future were “very poor”.

Schmidt said Casey “has been deprived not only of fulfilling work and a long-term career, but her ability to care for her family and much of her enjoyment of life. She has been left by the crash in what must be described as a pitiable condition.

“Ms Casey’s case that the bodily injuries she has suffered were significant and serious, resulting in significant impairment of function, which had prevented her from working from November 2009 and made it unlikely that she will work again in the future, was established by the evidence.

“But for her injuries, Ms Casey would have continued functioning at a high level, pursuing her career, personal interests and family life, as she had done before the crash. In the result, she is entitled to damages assessed in accordance with the provisions of the Civil Liability Act.”

Last week’s decision by the Supreme Court may have implications in Australia and worldwide by way of potential legal precedents for the application of the Montreal Convention to crash victim compensation claims, where previously it has been invoked to exclude damages for psychological injuries.

However it isn’t clear at this stage as to whether the decision can be successfully interpreted as setting a broad legal precedent, rather than a narrow interpretation that might be limited to a set of evidence similar to that brought in relation to this case.

Peter Fray

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