Pel-Air Aviation appeals nurse's $5 million crash PTSD compensation

[Sunfish]

A Sydney airline is appealing an order to compensate nurse Karen Casey millions of dollars after she developed post-traumatic stress disorder (PTSD) following a 2009 plane crash.

Ms Casey, 46, was on board a medevac flight when it ditched into the ocean near Norfolk Island in November 2009.


Pel-Air Aviation appeals nurse's $5 million crash PTSD compensation - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/2016-11-21/airline-appeals-near-5-million-dollar-compensation-for-crash/8043652)

I accuse the ATSB of being a political plaything with no credibility whatsoever because it has demonstrably served the interests of the politically powerful as evidenced by the disgraceful delays in producing a factual report into this accident.

I accuse them of doing so in order to provide aid and comfort to the operator of the aircraft involved in this accident at the expense of the airlines staff or employees.

it should be apparent to anyone now that the ATSB is not impartial, truthful, unbiased and interested in the rule of law, let alone truth, and its employees and utterances treated accordingly.

As a corollary, nobody should work for this business (or the ATSB for that matter) given the **** sandwich the regulator, independent safety organisation and their employer is going to deal them if they have an accident.

Australia, a third world country.

[gerry111]

Nice one, Pel-Air Aviation.. :ugh:

[Band a Lot]

I've see and been through much in my Aviation life time that renders PTS, where is my $50 million?

I will say $5,000,000 is a bit over the top - or actually a USA style payment. Or is that the direction you want to TRUMP!:=

[Old Akro]

I know nothing of the details of this or Pel-Air's behavior. I do not know enough about Pel-Air to defend them.

But, before you rush to judge Pel-Air, please bear in mind that sometimes our cumbersome and convoluted workplace law places employers in the position of being forced to do things that they would prefer not to. Workcover will say that we have a no-fault system, but the reality is that Australia has an adversarial system that places presumptive burden on employers.

This case has been a disgrace on the part of our government agencies. The ATSB report is still not complete. Pel-Air will have ongoing legal costs which must be well into the several hundreds of thousands of dollars territory. Other companies may have decided it was easier to have declared bankrupt or voluntarily wound up before now.

[Sunfish]

old Akron, what you say is true, but that does not excuse the partisan behaviour of CASA and ATSB.

[gerry111]

Having followed the sad story of VH-NGA and Pel-Air's responses since 2009, I have no problem having a particular view on this. (That's before I offer judgement on ATSB and CASA, regarding this very sad tale.)

I believe that the Chairman and Board of Pel-Air should now be publically shamed.

[Checklist Charlie]

I believe that the Chairman and Board of Pel-Air should now be publically shamed.

Probably wont be. It obviously pays to be part of the Liberal and National Party or government mates "club" in Canberra.

The whole NGA saga stank from the beginning and still does.

CC

[slats11]

http://periodicdisclosures.aec.gov.au/Returns/51/RINU3.pdf

[slats11]

I wonder what would happen.....

if an operator passed a routine CASA audit in 2008,

and then in 2009 FAA held concerns about CASA's oversight such as "excessive delegation of regulatory functions to carriers", and the FAA was therefore contemplating recommending a downgrade of Australian aviation to category 2 (which would have enormous ramifications),

and then in November 2009 said operator ditched off Norfolk because the plane ran out of fuel and could't reach an alternate airport,

and then the subsequent CASA audit in November - December 2009 found numerous deficiencies with the operator which raised questions about the effectiveness of CASA's oversight (and indeed raised questions about the earlier 2008 audit),

and ...... this all happened right at the very time (30 November - 4 December 2009) the FAA were back in Australia to decide whether to recommend whether Australia should be downgraded to category 2,

then I wonder what CASA would do with the post-accident audit.

It must have been a very strange time at CASA - being audited by the FAA at the same time CASA was performing an audit on the Norfolk ditching. Very strange indeed.


https://wikileaks.org/plusd/cables/09CANBERRA1081_a.html

[Eddie Dean]

The interpretation of the Article seems to be the crux of the appeal.
From the newspaper report:
Pel-Air's barrister Julian Sexton SC said use of the word "bodily" in the convention, shows that not everything was intended to be classified as an injury.

Perhaps lawyery types here can explain further.

I tend to agree with Band a Lot, thin edge of the wedge for precedent to be set for massive compensation payouts.

[Sunfish]

if a night ditching at sea at a remote island doesn't meet the definition of "traumatic", I don't know what does.

in Australia, payments for impairment reflect the future earnings capacity of the victim and the costs of treating the injury - it's an actuarial calculation, there is no punitive component in it. it ain't the thin end of anything.

[Vref+5]

Volume 1 Part 1 of the Seaview Report:

1.2 The Hon. John Sharp MP, then shadow Minister for Transport, raised questions in the House of Representatives about the standards being required by the CAA and its degree of supervision of the passenger-carrying part of the aviation industry.

1.3 In May 1994 he pursued the matter in the House, saying that an operator, Seaview Air, was receiving unduly favourable treatment from officers of the CAA, who were failing to take action in respect of clear and continuing breaches of the regulations made under the Civil Aviation Act 1988 concerning safety of aircraft and passengers.

The same John Sharp who became Minister for Transport, and oversaw the Seaview Report, the same John Sharp who was CEO of REX when the second aircraft ditched into the ocean......

He knows what occurs when someone starts looking at a crash, and the far reaching consequences. So the simple way to cover it up is;

"There is no problem so complex that it cannot simply be blamed on the pilot."

— Dr Earl Weiner

[slats11]

Just understand that the following likely have to paid out of this settlement
1. Legal fees - I suspect the lawyers took the case on a "no win, no pay" basis. That means "Big win = big pay." Not ideal, but the only way some people can access the legal system
2. Repayment of all the expenses (medical and loss of earnings) that have so far been paid by WorkCover - on the basis that WorkCover have to be repaid if another party is held liable. The State Government is keen to ensure it doesn't pay if someone else will pay.

So the final amount to look after the claimant for the next 40+ years (or whatever the actuaries decided) will be far less than the amount quoted by the media.

[tail wheel]

The decision to appeal may have been made by their insurers, not by the Company?

[Sunfish]

good point tail wheel.

[Creampuff]

V-ref and slats: It's very unkind of you to suggest that a quick and dirty hatchet job was done on DJ, while leaving the operator unscathed from a regulatory perspective, as an expedient way to solve numerous very inconvenient political problems. Those kinds of things usually only happen in third world countries with corrupt governments.

The appeal turns on what the word "bodily" means. The entitlement is to compensation for "bodily injury", not any "injury". PA is arguing, in effect, that "bodily" means physical not psychological injury, and PTSD is a psychological injury. KC is arguing, in effect, that her PTSD is a consequence of her bodily injuries and therefore covered.

"Massive" payouts? Would I trade places with KC for $5,000,000? No way. And, as has been explained, KC has big bills to pay out of that already.

I agree with tail wheel: The appeal is almost certainly being driven by the insurance company.

We can only hope that the litigation nightmare, at least, ends for KC very soon. She already had too many other nightmares and problems to deal with in the wake of the ditching.

[slats11]

Perhaps lawyery types here can explain further.


I'm not a lawyer so feel free to disregard.

I believe the Montreal Convention was intended to exclude claims for pure psychological stress or "injury." This seems reasonable as such claims are very subjective and are often bordering on the ridiculous. Have a look at the following claim successfully defended because of the Montreal Convention

https://nvflyer.com/2016/06/23/montreal-convention-cancels-ticketholders-canceled-ticket-claims/

Accepting the law is always a blunt instrument, the intent behind the Montreal Convention is most likely to exclude vexatious or frivolous claims based on an issue or incident the "average" person would simply accept.

But PTSD in the setting of significant physical injury (which all parties here have accepted) is perhaps different to psychological stress in the absence of a physical injury. PTSD by its very definition is delayed in onset. There are lots of factors that can contribute to PTSD. The psychological stress of course. What about chronic pain and sleep deprivation from physical injuries? - could these factors contribute to PTSD? What about an adversarial legal process drawn out over 7 years - could that contribute? What about the conduct of ATSB Aand CASA and a sense of being let down by the government bodies charged with air safety - could that contribute?

And does depression decrease a person's pain threehold and their ability to cope with pain? Of course it does.

The answer surely is that all these factors are inextricably linked. It is impossibly to try and artificially separate physical and psychological injury. They are each part of the other.

If the intent the of the Montreal Convention was to exclude (often spurious) claims of pure psychological injury, does that mean it was also intended to exclude the psychological consequences of acknowledged substantial physical injury? Is that really the intent of the Montreal Convention? Is that ethically just? Or is that just what a carrier would like to believe.

This is the issue the lawyers are debating.


Consider it another way. A person is killed by a drunk driver. At the legal hearing, the parents of the deceased are offered the chance to read a Victim Impact Statement. Would we argue a judge should give such a statement no weight on the grounds the statement described a psychological rather than physical trauma?

[allthecoolnamesarego]

Well said Creampuff!

[gerry111]

I think that it's about time that Rex (and their subsidiary Pel-Air) Chairmen; CEO's and Board members discovered a little bit of humanity, from their overly greedy dollars.

Perhaps book a loss against your profits and leave nurse, K.C. to rebuild her life as best that she may?

A Medivac nurse was sufficiently trusting of your organisation but you nearly killed her. And I sure don't blame the pilots.

[slats11]

There was a routine CASA audit of Pel-Air scheduled for October 2007. This audit had to be terminated as the majority of pilots did not submit their logbooks and Pel-Air therefore could not provide sufficient paperwork to allow this 2007 audit to proceed.

http://www.casa.gov.au/wcmswr/_assets/main/lib100096/foi-ef12-10004.pdf Page 3.

This rescheduled CASA audit took place on 12-13 March 2008. This audit was damning, finding multiple defects. Among the most serious was that the training records of 20 pilots were seriously deficient (for example, 80% of these records contained no evidence of training in emergency procedures), and there were irregularities in the renewal of instrument ratings. Odd that paperwork would still be so deficient give 6 months notice of a rescheduled audit.

http://www.casa.gov.au/wcmswr/_assets/main/lib100096/foi-ef12-10004.pdf Page 4.

Most serious of all was the issue of fatigue management. Pel-Air had been operating under a Fatigue Risk Management System (FRMS) for 11 months. However pilots had not received training in FRMS. This non-compliance was considered by CASA to be an imminent safety threat. On 12 March 2008, CASA issued an immediate “Safety Alert”, which precluded further operations under the FRMS until this training was undertaken. On 17 March 2008, Pel-Air advised CASA the required training had been completed. On 18 March 2008, CASA approved Pel-Air to resume operations under the FRMS - possibly a record turnaround by CASA.

http://www.casa.gov.au/wcmswr/_assets/main/lib100096/foi-ef12-10004.pdf Page 3.

On 11 October 2008, CASA formally documented that all active pilots had been trained in the FRMS (page 45 of above 2008 audit). Which would be all well and good – but for future events.

Roll forward 13 months....

Following the crash, CASA conducted a special audit between 26 November – 15 December 2009. This was much more in depth than the routine March 2008 audit. What had been wrong in March 2008 was still wrong. Furthermore, additional serious problems came to light. This audit found fault with the pilot, fault with Pel-Air, and fault also with CASA itself. The report is truly shocking - it too is in the public domain. But it nearly wasn’t – until someone leaked it to 4 Corners.

http://www.abc.net.au/4corners/documents/norfolkisland2012/CASA_Special_Audit_2009.pdf

The 2009 (post-crash) special audit report is as long (> 100 pages with appendices) as it is damning. There are far too many deficiencies to cover here.

But the issue of fatigue does make an interesting sideline. Remember that poor fatigue management and training in the FRMS system were the major concerns of the March 2008 audit, and led to an immediate “safety alert.” Pel-Air quickly attended to these deficiencies, and CASA (very) quickly accepted that all pilots were suitably trained. But this does make you wonder why the 2009 CASA special audit 12 months later again found ongoing serious issues with fatigue and the FRMS. Four pages (22-25) of this 2009 audit deal solely with fatigue management deficiencies. Strange given this had all been efficiently resolved in 2008.
¥ "Most crew identified a lack of understanding of the FRMS processes, and crews regarded the training as inefficient and ineffective." Page 22.
¥ There was an "FRMS knowledge gap displayed by the pilots." Page 22.
¥ "PelAir have not managed fatigue risk to a standard considered appropriate..." Page 23.
¥ No evidence was found that supported the claim that Pel-Air FRMS had ever managed fatigue risk to a standard considered appropriate, particularly for an operator conducting adhoc, back of the clock medivac operations.
¥ It is evident the fatigue reporting culture within Pel-Air is deficient. This cannot be fixed quickly, and will require a number of months to determine whether this reporting culture has improved. An open and honest reporting culture is critical to the success of any FRMS and there is evidence to suggest one or two key personnel may be the root cause of this cultural problem.

[Eddie Dean]

Slats11, thanks for the precis of the situation leading up to and after the accident that caused Karen's injuries.
Does this have any influence on the appeal underway by the company against the awarded damages?

[slats11]

Does this have any influence on the appeal underway by the company against the awarded damages?

The situation leading up to the accident? No, the accident happened and how it came about is irrelevant.

As was mentioned by Sunfish, the awarded damages are an actuarial calculation based on estimated total loss of earnings, and medical and other expenses incurred (past and projected). There is no punitive component. The intent is to replace a loss - not punish anyone.

So you can certainly argue that the events leading up to the event are irrelevant - the loss suffered is the loss suffered irrespective of the circumstances leading to the crash. I suspect that is what you are getting at.

But the actions after the accident? Yes. And the actions after the accident may have been influenced by the circumstances leading up to the accident.

PTSD does not happen at the moment of the crash. It is delayed, and many factors AFTER the crash will determine whether or not someone develops PTSD, and if so then how severe it is. How these factors play out can make PTSD more likely, or they can make PTSD less likely. The crash has happened, but these ongoing factors are under the deliberate control of various parties.

I am not a lawyer, but I have some lawyer friends who are involved in civil litigation. Their advice to defendants (and I am speaking generally here) is that if they want a smaller settlement, be open and transparent and be fair. If they want a larger settlement, then try and cover it up and drag things out. That path is likely to make PTSD more likely, increase the final settlement, and increase all legal costs. So go down that path if you really want, but be forewarned what lays ahead.

Have a read of the current NSW Government policy on "open disclosure."

http://www0.health.nsw.gov.au/policies/pd/2014/pdf/PD2014_028.pdf

Some of the components of open disclosure include:

1. Acknowledgement of a patient safety incident to the patient and/or their support person(s), as soon as possible, generally within 24 hours of the incident. This includes recognising the significance of the incident to the patient.
2. Truthful, clear and timely communication on an ongoing basis as required.
3. Providing an apology to the patient and/or their support person(s) as early as
possible, including the words “I am sorry” or “we are sorry”.

The key reason governments all around the world have moved to a model of "open disclosure" is there is fairly robust evidence demonstrating this approach reduces the likelihood of a negligence claim, reduces the settlement figure in a successful claim, reduces the legal costs incurred, and reduces the time to reach settlement.

Open disclosure is ethically the right thing to do, and it is what we would all want for ourselves if we were the victim of some wrongdoing. But I suspect the financial reasons are the key drivers.

I guess we all have our opinions on how things played out over the past 7 years. Was there open disclosure and a desire to resolve things quickly and allow people to move on?

[aroa]

Compo?? See today's "Australian" how public sector 'workers' are getting into the taxpayer. Its the stress, you know.

I'd posit that struggling in a cold and not so pacific Pacific, at night, trying to keep yourself and your patient afloat would be somewhat MORE stressful that having yr desk re-positioned in a luxury office.

She deserves a medal as well an equitable and fair payout.

Brickbats go to CAsA ,ATsB, Pelair and the political systems for an Arse-Covering par excellence.
And as for insurance companies and their moral standing in the community, we wont start.

[thorn bird]

If anyone needs an illustration of the lack of probity, incompetence and unconcinable behaviour of our bureaucrats, look no further than the Pelair duck up.
No wonder our industry is in the mess that its in.
Its partly our own fault.
The lack of cohesion amongst all the industry groups, especially the major airlines who contemptuously regard General aviation as beneath them, forgetting where they came from.
The "We,re all right jack attitude" will not last forever as cost after cost is heaped, without fear or favour, upon the industry as a whole.
At the end of the line is "the customer", there are limits to what they will pay, do we really want to Morph back to the two airline days when a one way fare to Melbourne cost a months salary for an average punter?

Our politicians must take credit for their mandarins unstated policy of the suppression and ultimate destruction of an entire industry. They are the ones who have allowed the bureaucrats unfetted power, put them beyond the law, which has resulted in the massive regulatory burden that shackles the entire industry today.

If there is to be true reform there must be a united call from the industry as a whole, GA on its own carries no political clout.

The entire Pelair debacle is a national disgrace.