Compensability for PTSD under the Montreal Convention: Psychiatric Injury as a Bodily Injury

Abstract

A dichotomy has frequently been postulated between physical and psychiatric injuries for the purposes of awards of compensation in personal injury cases. The ‘Montreal Convention’, like the ‘Warsaw Convention’ before it, limits compensation in aeroplane accidents to ‘bodily injuries’. In Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 Schmidt J of the New South Wales Supreme Court analysed previous decisions, applied English House of Lords authority and concluded that PTSD, at least in some circumstances, constitutes a brain injury and therefore a bodily injury that is compensable under the Montreal Convention. Her carefully reasoned decision consolidates previous authority and adds further impetus to those who contend that the time has come for amelioration of the unfair, albeit pragmatic, distinction between physical and psychiatric injuries.

Key words:

• bodily injury
• mental harm
• Montreal Convention
• psychiatric injury
• PTSD

Notes

1. See eg Civil Liability Act 2002 (NSW), 532; Civil Liability Act 2002 (WA), s 55; Wrongs Act 1958 (Vic), 572.

2. Emphasis added.

3. Which was incorporated into Australian law by the Carriage by Air Act 1935 (Cth).

4. Gummow and Kirby JJ in Tame v New South Wales (2002) 211 CLR 317 at [192] identified four justifications said to support the control mechanisms over recovery for psychiatric injuries: ‘These are (i) that psychiatric harm is less objectively observable than physical injury and is therefore more likely to be trivial or fabricated and is more captive to shifting medical theories and conflicting expert evidence, (ii) that litigation in respect of purely psychiatric harm is likely to operate as an unconscious disincentive to rehabilitation, (iii) that permitting full recovery for purely psychiatric harm risks indeterminate liability and greatly increases the class of persons who may recover, and (iv) that liability for purely psychiatric harm may impose an unreasonable or disproportionate burden on defendants.

5. See eg Jaensch v Coffey (1984) 155 CLR 549 at [567]; Sinnott v F J Trousers Pty Ltd [2000] VSC 124 at [75]; New South Wales v Thomas; New South Wales v Welling [2004] NSWCA 52 at [57].