Montreal Convention – PTSD Is Not Compensable . . . Or Is It?

An Australian nurse was recently awarded a $5 million verdict after she developed post-traumatic stress disorder (PTSD) following the crash of a medevac flight into the ocean, at night, and in rough seas. This award would normally not be noteworthy, as a person who suffers a mental injury while within the zone-of danger during a life threatening accident such as this, can normally recover for mental distress, even if they ultimately escape without any serious physical injuries. The difference here is that the flight in question was an international flight governed by the Montreal Convention.

Under the Montreal Convention, and its predecessor, the Warsaw Convention, the types of damages that a passenger can recover are strictly limited. Passengers can only receive compensation for “dommage survenu en cas de … lésion corporelle,” or damages arising from a bodily injury. As a result, courts in the United States have permitted recover for pain and suffering from a physical injury, such as a broken arm, but denied it in cases where passengers thought they were going to die from an imminent crash, but ultimately came through the experience unharmed.

In the case of the Australian nurse, the PTSD claim, unaccompanied by any physical injury would normally not be compensable under the Montreal Convention. However, the court found that the PTSD itself had caused physical changes in her brain that impaired its function, making her unable to sleep or work, and that these changes in her brain were a bodily injury that was compensable under the Montreal Convention.

The air carrier, Pel-Air, is appealing the decision, arguing that the mental suffering has to arise from a physical injury, and that her expert’s claim that the purely mental injury produced a compensable physical injury goes against the plain language of the Montreal and Warsaw Conventions.

It should be noted that one of the purposes of an international convention such as this is to ensure uniformity of outcomes across all member nations. While the courts in the United States have consistently held a hard line on this bodily injury issue, there have been some conflicting decisions coming out of courts in the UK. If this Australian decision stands, it could lead to increased pressure in the US to change the way the terms are interpreted to “better conform” to the international norm. This is definitely a case worth watching.

Originally posted November 21, 2016

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