Post-traumatic stress disorder – can chemical changes to the brain constitute 'bodily injury'? – Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32

The use of the adjective 'bodily' is a limiting word which draws a distinction between injuries of the body and the mind. Mental injuries are only 'bodily injury' if they are a manifestation of physical injuries or result from physical injuries (including physical injuries to the brain).

The plaintiff was a nurse employed by Care Flight (NSW). She flew to Samoa to help evacuate a patient and his wife. On the return journey they encountered bad weather and the pilot was forced to ditch the aircraft in the sea. All six people on board were rescued after spending around 90 minutes in the sea just off Norfolk Island. The experience terrified the plaintiff. She suffered significant physical injuries including spinal injuries and an injury to her right knee. She also developed a complex pain syndrome and three psychiatric conditions, including:

1. Post-traumatic stress disorder (PTSD)
   
   
2. A major depressive disorder
   
   
3. An anxiety disorder.
   
   

The plaintiff's physical injuries, psychiatric conditions and syndrome were severely debilitating and the plaintiff found herself unable to work. Her quality of her life was also seriously affected.

Legislative background

The 1999 Montreal Convention relating to International Carriage by Air (Montreal Convention) is incorporated into Australian law by the Civil Aviation (Carriers' Liability) Act 1959 (Cth). It provides strict liability for air carriers in relation to:

The primary judge⁴ concluded that a diagnosis of PTSD does not exclude the possibility that evidence may establish a person has suffered 'bodily injury'. Her Honour made a finding that the expert evidence before her was consistent with chemical changes having taken place in the plaintiff's brain and body and that the alterations in her brain's neurotransmitter pathways prevented a return to normal brain function. She determined that the plaintiff's PTSD constituted a 'bodily injury'. Pel Air Aviation Pty Ltd (the defendant) appealed.⁵

The defendant accepted that the plaintiff's physical injuries and the mental harm she had suffered, other than the PTSD, were 'bodily injury' for the purpose of the Montreal Convention. The medical evidence suggested that the plaintiff's major depressive and anxiety disorders and pain syndrome were at least in part caused by her physical injuries. However, the defendant submitted that:

1. The case authorities did not justify a conclusion that change in a bodily condition or function, ie a chemical change, is sufficient to constitute 'bodily injury'
   
   
2. The evidence before the primary judge did not suggest that the plaintiff's PTSD was a manifestation of a physical change to her body.

In a joint report, the parties' medical experts⁶ agreed that chronic stress can lead to biochemical changes and functional impairment of brain function⁷. They also agreed that it was speculative to suggest that abnormalities of neurotransmission and neurotransmitters might lead to changes in the architecture or structure of the brain.

In a unanimous decision, the Court of Appeal determined that the expression 'bodily injury' connotes damage to a person's body. Further, there is no reason why damage to a person's brain cannot be 'bodily injury' if the evidence demonstrates there has been physical destruction of a part or parts of the brain. In the absence of compelling medical evidence to the contrary, malfunctioning or chemical changes to a brain cannot normally be described as 'bodily injury'.

The medical evidence did not prove that the plaintiff's PTSD resulted from actual physical damage to her brain. The biochemical changes in her brain were not 'bodily injury'. The defendant's appeal was allowed.

Historically the trigger for cover under liability policies was 'bodily injury'. Until the mid 1980's, tariff form public liability policy wordings were common in the Australian market. They ordinarily covered:

The term 'bodily injury' was not defined in these policies meaning that it was necessary to consider the ordinary meaning of the term and case authorities. Claims for pure nervous shock were rare and were not contemplated by the underwriters of these policies until around the late 1980s. Such claims have come to the fore in more recent years following developments in the case law, in particular as a consequence of claims arising out of train derailments and other disasters.

This case provides a useful example of the limited case law available on this issue in Australia. It provides strong support for the view that 'bodily injury' in the context of public liability policies does not include psychological injury which is not, at least in part, caused by physical injury.

While this is of little relevance to claims under modern policies because the trigger to cover is now 'personal injury',⁸ it is of particular significance to historic claims of sexual abuse – many of which fall under old tariff wordings.

The Australian Government's Royal Commission into Institutional Responses to Child Sexual Abuse has again put the spotlight on historic abuses and the retrospective abolition of limitations periods in respect of such claims, meaning that it has become necessary to consider again the tariff wordings of old and whether such abuses could constitute 'bodily injury' and fall within the cover provided.
This decision may provide some relief for insurers concerned by an influx or historic abuse claims.