Pel-Air crash victim wins right to compensation for PTSD
by Ben Sandilands
Karen Casey, featured in a recent 4 Corners report on her struggle for compensation
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 Justice Monika Schmidt ruled that compensation does apply in the case brought by Ms 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 that relates to damages arising from aviation accidents excluded compensation for psychological injury.
The parties will now consider the detail of the judgment prior to the compensation to be awarded to Ms Casey being determined in further proceedings.
Ms Casey was among the six people on board the Pel-Air Westwind corporate jet conducting a medical evacuation from Apia to Melbourne on 18 November 2009 when it was ditched in 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agency’s procedures by the Transportation Safety Board of Canada, and caused the original ATSB final report to be withdrawn, pending its doing a new, comprehensive and professional report into the accident.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 its chief commissioner Martin Dolan, and found that the aviation safety regulator, CASA had suppressed an internal review which 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.
Chief Commissioner 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 Justice Monika Schmidt said the prospects for Ms Casey’s future were “very poor”.
Justice Schmidt said Ms 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.”
Comment This morning’s decision by the Supreme Court may have implications in Australia and world wide 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.
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The judge decided that under Australian law, as affected by the Montreal Convention, a passenger on board the Pel-Air aircraft was entitled to damages for PTSD only if it was related to a physical injury to the passenger. So she adopted a restrictive interpretation of the law.
However, the judge also concluded, on the evidence, that there was such a relationship in this particular case.
In particular, the judge decided, on the evidence, that Ms Casey had suffered brain damage when she was violently flung around the aircraft during the crash, and struck on the head by the wing of the sinking aircraft, and that her PTSD was “a manifestation of the injuries to her body and brain and not simply the result of an injury to her mind”.
One lawyer said later today that this decision broadens the definition of physical injury in relation to Montreal Convention limitations.
The lawyer is right, but the case decided more than just that.
Ms Casey contended that the Australian law, as amended in 2012, was such that the Montreal Convention did not apply to her claim.
The judge rejected that contention. She therefore decided that by force of the Montreal Convention as applied by Australian law, Ms Casey was entitled to damages only in respect of “bodily injury”.
In that sense, the decision was restrictive; it established that the 2012 amendments had achieved their intended effect of applying the Montreal Convention to domestic air travel.
The judge went on to say that Ms Casey’s claim, insofar as it sought compensation for her PTSD, would be a claim for “bodily injury” if Ms Casey established that the PTSD was related to a physical injury such as brain damage.
In that sense, the case is expansive, in that it establishes that there can be an entitlement to damages for more than just the direct consequences of physical injury, even in a case to which the Montreal Convention applies.
Finally, as indicated in my previous post, the judge concluded that Ms Casey’s PTSD was a manifestation of her injuries to her body and brain, and not just an injury to the mind, and therefore that her claim succeeded.
I fail to see how Ms. Casey could have been considered a passenger by any normal definition of the word: She was a trained professional there to care for her patient. Would you call an ambulance crew member a “passenger”? So the Montreal Convention should never have been a factor…it was just lawyer games designed to keep the rich that way longer and the injured ditto.
It demonstrates the moral repugnance of the air transport company, that it can ruin somebody’s life, and then not offer any help to that person… until a court forces it to.
I’m very glad that Karen Casey will finally get compensation.
Your two learned responses are most welcome. Yesterday was somewhat distracted in Plane Talking land for a number of reasons with no connection with transport stories.
The structure and precision that is apparent in Justice Schmidt’s judgment tells us I suggest that this is what is sometimes termed a ‘landmark’ case.
Surely Karen Casey must be considered as a passenger, since as far as I’m aware, she was never in the full-time employment of Pel-Air.
She may have been employed by Pel-Air or by the medical-team on a contractual basis for the duration of the medevac mission.
Although that would make her part of ‘the crew’, she would not be considered as anything other than a passenger for the purposes of the Montreal agreement.
(A medic in an ambulance would be part of the usual establishment of that vehicle. A nurse employed for a ‘one-off’ medevac flight isn’t the same as a full-time cabin-crew member)
I would assume (perhaps incorrectly.?), that the reason she was unable to seek any damages from Pel-Air directly for the crash, was that for the duration of the flight, she was operating as a self-employed contractor.
Wouldn’t Karen Casey have a viable case to sue CASA for contributory negligence insomuch as Pel Air should not have been eligible to fly that route had CASA carried out it’s regulatory duties in a proper manner?
Some are assuming its ‘heartless’ Pel-Air that is somehow responsible for the court case. Youll find in these sort of things its their insurance company that totally runs the case in Pel-Airs name. AS well the nurse Casey was employed by Flightcare, so could well have been a battle between insurers acting for both business.
And still no recommendation from the ATSB or CASA on this incident,or the Mildura incident, on the fundamental cause;fuel policy.
A truly excellent outcome for a remarkably brave lady that simply would not be denied Justice, let us hope that this decision will not be appealed.
Some excellent comments, I am much interested in the Grizzly considered opinions on the possible knock on effect of this decision by Justice Schmidt.
However IMO the elephant in the room still remains and that is that two Ministers (of both political persuasions) who could have put a stop to this injustice didn’t and merely relied on the advice of their head Mandarin and his subordinate agency Chiefs responsible for aviation safety administration in this country. It is a disgrace and a stain on our reputation as one of the first signatories to the Chicago (ICAO) convention of 1944.
Shame for Truss – http://auntypru.com/forum/-P7-SHAME-for-Truss – but especially shame for Albanese.
“My my, what a day” reads the first line on a text from Karen. Says much for the lady that even “pooped” she can find the patience and time to let us know how she is and what is happening. Thanks Kaz.
I’ll paraphrase the text; in short it all looks pretty good, there are still another nervous 21 days to endure while the insurers decide whether to appeal or stump up.
The lady goes on to say she is tired and will rest now for a while. Aye, sleep well.
What can we say, Bravo, well done the legal team, well done the law and well done those who must make decisions on that law. The ABC and the Four Corners crew deserve special thanks as does the Senate committee and all those who contributed to the Pel-Air inquiry. There are many more to bless, like other flight nurses who have unstintingly been there; folks from all walks of life, to numerous to mention. I am instructed to say thank you to those on these boards who walked through the journey with Karen; “champions all” she declares. – Aw shucks Ma’am, weren’t nuthin’ worth the mentioning.
What a ride, what a long gruelling struggle to get to a starting point. A bravery award for her part in keeping Bernie Curral afloat and alive after the event is merited; but the truly heroic part in all of this has been Karen’s courage and determination to see the thing through to end, despite enough physical and mental hardship to send most scurrying home to Mum, or the nut house. No doubt those who prolonged the agony will be called on by Karma in due course.
Bravo Ziggy, bravo, well done indeed.
May the road rise up to meet you.
May the wind be always at your back.
May the sun shine warm upon your face;
the rains fall soft upon your fields
and until we meet again,
may God hold you in the palm of His hand.
Ps @email@example.com – Now there’s a question? From ‘some’ high profile cases in the past where regulatory oversight (or lack there of) was deemed as contributory to an accident, it
seems that it is virtually impossible to lay a legal glove on CASA when it comes to possible liability – the ‘Untouchables’ comes to mind.
It’s a vexed question which needs to be resolved, once and for all – in law. I believed the ‘Pol-Air’ type of operations had sorted this out – ages ago; that of being ‘an Essential Crew Member’ (ECM) in AWK. A diver being winched into the ocean for example, no point in conducting the sortie without; same-same medivac – no point in sending just ‘aircrew’. In the Norfolk case a doctor and flight nurse were ‘required’ – essential crew if you will. I freely admit to being a dunderhead when it comes to the finer points of law; but it seems to me that however the ‘law’ is interpreted, or whichever ‘statute’ was applied (no matter how old or recently modified); that the essential crew travelled in good faith and in innocence, even if in uniformed ignorance. But they were ‘working’; and, any injury or damage sustained in the course of conducting those ‘essential’ duties were, or should be subject to some form of compensation.
Whether the ECM are obliged to self insure, are included in the ‘company’ cover or, by the general provisions, that information needs to be absolutely crystal clear and made available, to avoid a repetition of the situation. Particularly in Karen’s case, where it is highly unlikely she will ever be able to work again and must take on some fairly heavyweight competition to gain some form of ‘compensation’.
That’s just my two bobs worth, while making no claim to understand the legal niceties. But operationally, that accident was preventable, the reasons for the occurrence have not as yet been addressed and the people responsible for approving Pel-Air operations, and the cynical manipulation of the accident investigation are still hale, hearty, working, well paid and fit. To deny Karen compensation may well be all be legally ‘nice’ but it’s just not cricket, is it? Not in Australia.
Were Flightcare actually employing ms Casey for this task or were they acting as agents.
(Effectively, only responsible for linking the professional person to the available job)
If so, Karen would still be a contractor, not their employee.
It seems clear that ‘no wrong’ can be attached to the actions of Ms Casey during the flight.
Consequently, it is appropriate that she should be able to seek compensation for her loss from somewhere.
(Were she in the employ of a health-care company & travelling in their ambulance, if there was an accident & it was shown that improper maintenance of the vehicle was a contributory factor, she would expect to be compensated by her employer. (or their insurers))
Incidentally, this judgement does NOT mean that she has not ‘won’ her compensation case,
What it does mean is that she has won the right to proceed to a full court hearing of her case, the outcome of which would lead to substantial compensation IF it finds in her favour.
Pain_P2 (comment #12)
Well may you give a big tick to the ABC network for their work in keeping this issue in the eyes of the great unwashed – but you must acknowledge the work of Ben Sandilands and this blog…
Ben has, since the early days of this now 6+ year disgrace – commentated on, agitated about, and willingly challenged the entrenched, myopic and cancerous institutional culture that has permeated this avoidable incident.
I don’t always agree with Ben’s comments and posts – but his unwavering devotion to this issue and its broader implications must be recognised!
I understand that Pel-Air is using an insurer that is calling the shots in the courtroom.
But Pel-Air could also drop the insurance case and make a payout from its own pocket.
Of course, corporations are by nature psychopathic, and wouldn’t make a payment out of compassion. But that’s my point.
I think Pel-Air’s owner, Regional Express (REX), also needs to be tarred with the same brush, and is responsible for the breaches that made this happen, and for the callous treatment of the survivors of this crash.
For those interested here is a link for the Judgement – Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd  NSWSC 566 https://www.caselaw.nsw.gov.au/decision/555526e2e4b06e6e9f0f55e0
And this was the summary:
15 May 2015
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd
 NSWSC 566
In November 2009, a plane which was supposed to transfer a seriously injured patient and her husband from Samoa to Melbourne crashed near Norfolk Island. The plane was operated by Pel-Air Aviation Pty Ltd (the defendant in these proceedings), and had six people on board including a nurse, Ms Karen Casey and Dr David Helm (the plaintiffs).
It was common ground between the parties that Ms Casey and Dr Helm sustained physical injuries as a result of the crash, and that Ms Casey had also suffered serious psychological injuries. Pel-Air also accepted that the crash had been caused by the negligence of the plane’s pilots (for which it had vicarious liability) and, as such, there was no issue that their physical injuries were compensable under the Civil Aviation (Carriers Liability) Act 1959 (Cth).
In Ms Casey’s case, the Supreme Court had to decide whether some of her psychiatric injuries were compensable and also assess certain of the damages she claimed.
In terms of psychiatric injury, the central issue was whether Pt IA of the Civil Aviation Carriers Liability) Act, which refers to the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, permitted Ms Casey to seek compensation in respect of her post-traumatic stress disorder (PTSD).
Schmidt J held that, properly construed, s 9E of that Act did not provide any wider rights to compensation in respect of “personal injury” than the rights to compensation for “bodily injury” under Art 17 of the Montreal Convention. Though this was not the construction for which Ms Casey had argued, her Honour decided that Ms Casey’s PTSD was compensable because, like all her other injuries, it is a “bodily injury”.
The Court also found for Ms Casey on the damages she claimed, concluding that she is entitled, in accordance with the Civil Liability Act 2002 (NSW), to recover various economic and non-economic losses.
In Dr Helm’s case, all that remained in issue was an assessment of certain of the damages he claimed. The Court found for Dr Helm, determining, inter alia, that he is entitled to payment for future economic losses up to a retirement age of 70 and for future care needs from ages 40 to 75.
Comet. you may act irrationally but most people and Pel-Air is amoung them dont. The details of the case show she has been compensated for physical injuries, and there was no dispute over that amount. For most insurance companies in these cases, once they see you and your witnesses sitting outside the courtroom door, will settle immediately
As Pel- Air wasnt even the employer of the medical staff, and in substance the whole flight was probably arranged by another insurance company for the patient, Bernie Currall, she died in February 2015.
It’s not every day we see win-win-win-win situations; but when we do most of the winners are lawyers. If there’s a loser to be found, it tends to be society as a whole.
Karen Casey has a coffee, with Aunty Pru.
Apologies for being absent. A little busy and processing all that has been.
Yes, I believe that PTSD is extremely important to be recognise as a Scientifically proven Disorder which is can most definitely impede significantly on a Persons Life. With or without bodily injury. I live it. How Dare they argue this.
Mrs BC may not have had a bodily injury, but most certainly had PTSD. I saw the fierce cold, dark ocean, smashing it’s unforgiving waves, almost drowning her as this beautiful lady was strapped helpless in the stretcher until others, Doc & myself could release her. Then in the ocean. So very tragic.
The exacerbation of this investigation through pure incompetency has to be earnestly questioned. It really is torture for all in that was in that Aircraft.
PTSD has been proven many times, via the study of neuro plasticity that there are changes in the brain (yes, it is a part of the body…FYI Law) and triggers are everywhere.
Think about it.
To not be recognised after such a horrific event is not only insulting, but reliant on a Law from 1929/44/99, which reworded, stills says the same. Absolute disgrace.
Then, very sneakily, without informing the Flying Public, our GovMutts change our own Domestic Law in 2013 to uphold the MC99. Not surprising given the knowledge I now have regarding not only this issue (and there are many), but how the “fly under the radar” BeRightBacks behave. Not in our Constitution to behave in such a manner at all. Shame on you all.
We employ them. They work for us, supposedly. This is clearly not the case regarding matters of Aviation Safety, Laws, Regulations and Investigation Competency.
Although my Personal matter has had an outcome, which I believe will bring 21st century needed change, the Australian Aviation Industry is in dire straights. The riddles of the tortuous words can change when needing to render a situation. Institutionalised minds do not consult with their industry, which they are meant to protect and support.
Power and Egos combined, recipe for dangerous decisions. So this is how “they” play.
Question. If any of the people survived the MH370, Air Asia and the other tragic crashes recently, do you think for a moment that would not traumatise their brain/minds?
Just because we were in a small jet makes no difference. It was horrific. P/A, CASA, ATSB and every other bastard that has attempted to smother this can do their best to, but I will voice, loud, with scientific proof. Dickheads. Honestly!
Thank you every individual, the 4C team, Ben (legend with passion for truth) Aunty Pru for the freedom to bring these issues to the light.
Very dark forces will be conquered by the light shed. It will. Believe and unite. Do not just say but do, that is when change happens.
I am not walking away from this when my matter is over. I have been gagged for too long. My personal life is on display (no person knew this was to happen) and I have had a hard time with this. But, I understand how important it is to fight for what is right, and if this means exposure.
Accepted. When one loses their career and is injured but told, “oh we know she has PTSD, but the Law says she does not”, you fight for Justice and your Rights as a human citizen of this country to drag the Montreal Convention 99 to light. I stand firm that no-body need endure such a fight again.
If Operators, Insurance Companies and their shareholders deep pockets focused on safety rather than profit, maybe the Av World would not be so Covertly Corrupt. Safety before Profit, not Learning and Arse covering from our own has demised an industry that should be flourishing in our large Land.
I won’t stop and I can see through the crap that has been told.
Thank you so much everyone. Your support and kind words have helped me many times. Also, I can vent here, freely.
I will continue to do so.
I will expose the wrong-doings of them all.
I have a loud voice and this is NOT over.
Power to the people. A force that CAN make change. Stand up for your rights.