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.