An airline has successfully challenged part of the almost $5 million in damages awarded to a former CareFlight nurse who suffered serious physical and psychological injuries when her patient transport plane crash-landed off Norfolk Island.
Pel-Air won its appeal against Sydney nurse Karen Casey with a court finding post-traumatic stress disorder is not a "bodily injury", as defined under the Montreal Convention, which governs air crash compensation around the world.
On Thursday, the NSW Court of Appeal found that expert evidence showed Ms Casey's brain was malfunctioning as a result of "biochemical changes" rather than physical damage to part or parts of the brain.
Ms Casey's damages payout will be reduced by a percentage to be determined, although she won a cross-appeal to increase the amount of money awarded to cover the fees charged by her trustee to manage her funds.
Ms Casey and Dr David Helm were transporting a seriously ill patient, Bernie Currall, from Samoa to Melbourne in November 2009 when bad weather disrupted a planned fuel stop at Norfolk Island.
After four aborted attempts to land, pilot Dominic James elected to ditch the plane into the ocean, where it immediately broke into pieces and began to sink.
Despite suffering serious injuries, Ms Casey was able to keep the patient afloat for 90 minutes until a fisherman rescued them.
Miraculously, the six people on board the plane when it crashed survived.
Pel-Air, the company that owned and operated the aircraft, accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability.
Ms Casey suffered serious long-term injuries including complex pain syndrome, major depression, anxiety and PTSD, as well as multiple physical injuries to her head, brain, neck, nerves, teeth, spine, knee, leg and shoulder.
In 2015 and 2016, the NSW Supreme Court found the company liable for both Ms Casey's physical and psychological injuries.
Ms Casey was awarded $4.87 million in damages and an additional $515,000 to cover the fee charged by her trustee to manage the funds. She cross-appealed, claiming she should be able to recover $872,000.
The Court of Appeal upheld Ms Casey's cross-appeal, finding that, even if she didn't suffer from PTSD, she would nevertheless require funds management.
The parties will return to court to work out the new damages figures at a later date.
Outside court, Ms Casey said the evidence to show that PTSD does cause physical changes to the brain is in its infancy and is not yet accepted by courts.
"Fingers crossed that this will open the doors and start discussions that you might not be able to see inside the brain yet but you can certainly see by the behaviour."
She said she hopes her case will go some way towards helping others with the disorder to get compensation for treatment.
"You can break a bone and heal the bone, but you can't heal the mind.
"To be able to be compensable for help to get treatment is of upmost importance because [managing] finances after PTSD is very difficult when you can't work."
