The Supreme Court of New South Wales recently gave a landmark decision which has changed the dynamics of workers compensation as employees can now potentially pursue compensation for Post Traumatic Stress Disorder (“PTSD”) as a “bodily injury”.

A doctor and a nurse, Mr H and Ms C, were sent to help transport a seriously ill patient from Samoa to Melbourne. During the course of their journey, the pilot was unable to land the plane after four attempts and crashed the plane into the ocean. Although there were no deaths, Ms Casey suffered physical and psychological injuries.

Ms C commenced proceedings in the New South Wales Supreme Court against Pel-Air Aviation Pty Ltd (“Pel-Air”) and claimed damages. Pel-Air accepted that the crash had been caused by the negligence of the pilot and co pilot, for which they had vicarious liability. An agreed sum of worker’s compensation was made to Ms C.

Ms C had suffered from a complex pain syndrome, a major depressive disorder, an anxiety disorder and PTSD. She argued that these were caused by the injuries and were compensable under the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the “Act”). Pel-Air argued that PTSD was a psychiatric disorder and had been not been caused by the trauma during the crash itself and was not a “bodily injury”.

Justice Schmidt found that the PTSD which Ms C suffered from was caused by damage to her brain and to other bodily processes. Justice Schmidt also stated that the prospects for Ms C’s future were very poor. It was therefore concluded that the PTSD was a bodily injury and compensable under the Montreal Convention and the Act and was to be included in the damages awarded.

What do employers need to be aware of as result of this landmark case?

• Employees who have PTSD due to an injury while working can potentially claim for compensation.
• Employers need to ensure they have all the necessary health and safety policies and procedures in place to minimize the risks of any claim.