Karen Casey wins court case.
Thread Starter
Karen Casey wins court case.
Just saw this on the ABC
Nurse successfully sues Pel-Air for psychological injuries after Norfolk Island plane crash - ABC News (Australian Broadcasting Corporation)
Good news in her long battle for recognition of the psychological injuries she received.
Nurse successfully sues Pel-Air for psychological injuries after Norfolk Island plane crash - ABC News (Australian Broadcasting Corporation)
Good news in her long battle for recognition of the psychological injuries she received.
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Simply put, the brain is part of the body and subject to trauma.
Thus the "convention" is wrong. But will the "convention" see this as a precedent and amend it?
Congratulations are certainly in order, but why should she be left to fight further battles on behalf of everybody subject to the signatory's intent? She's suffered enough.
Thus the "convention" is wrong. But will the "convention" see this as a precedent and amend it?
Congratulations are certainly in order, but why should she be left to fight further battles on behalf of everybody subject to the signatory's intent? She's suffered enough.
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I still can't understand why Karen Casey was legally a passenger on the flight? A cabin attendant is crew,a paramedic in a wheeled ambulance is staff, a paramedic in a helicopter is crew. I have seen cargo masters and horse handlers on a crew declaration, so why is an on duty flight nurse on a Westwind, a passenger? If Karen was legally a passenger under current law,then the law needs sorting out urgently.
I also don't understand the reference to the Montreal Convention and Domestic changes in 2012? The aircraft was coming from an international ,non Australian departure point and everyone on board would have to make a Customs declaration.It certainly wasn't Domestic as far as Customs is concerned.
Wunwing
I also don't understand the reference to the Montreal Convention and Domestic changes in 2012? The aircraft was coming from an international ,non Australian departure point and everyone on board would have to make a Customs declaration.It certainly wasn't Domestic as far as Customs is concerned.
Wunwing
Last edited by Wunwing; 15th May 2015 at 22:49.
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Basically if the person on the flight is employed by the operator of the aircraft. "Ie" airline pilots flight attendants an engineering person doing inflight testing employed by that airline are crew. Pelair pilots are crew. The nurse doctors are not as they are employed by some one else.
Crew on a helicopter doing surveys say on power lines is pilot only. The rest are not crew as they are not employed by the operators of the aircraft.
Crew on a helicopter doing surveys say on power lines is pilot only. The rest are not crew as they are not employed by the operators of the aircraft.
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Not necessarily.I've carried horse handlers and cargo masters who were employed by the consigner and they were on the General Declaration as crew.Also there are a lot of contract cabin crew who dont work for the airline/operator.Qantas is or was one such operator
That was International and it may be different to Domestic but as I said, I still cant see why a flight from a non Australian port of origin to an Australian port is domestic?
Wunwing
That was International and it may be different to Domestic but as I said, I still cant see why a flight from a non Australian port of origin to an Australian port is domestic?
Wunwing
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Well Done!
If Karen was legally a passenger under current law,then the law needs sorting out urgently.
Well done Karen Casey!
Good on you for having the mental tenacity and physical endurance to pursue the justice you were owed.
PG
What is the definition of "passenger" for the purposes of the Carrier's Liability legislation? Is it the same as in the civil aviation regulations?
Good luck in working these questions out - the interconnecting definitions, particularly in the civil aviation regulations, now create a wonderful spaghetti-like mess. (I think the amendments to the civil aviation regulations may have to do with the machinations to ensure heavy metal operators could cut down on the number of cabin staff by having passengers perform duties in exit rows - smelt a lot like a person with duties in relation to the safety of the aircraft ... .)
In any event, it may be that some contractual arrangement meant that Pel-Air's liability to medical crew on board was limited by the same limitations as apply to liability to passengers.
All will be revealed when the judgment is published.
Good luck in working these questions out - the interconnecting definitions, particularly in the civil aviation regulations, now create a wonderful spaghetti-like mess. (I think the amendments to the civil aviation regulations may have to do with the machinations to ensure heavy metal operators could cut down on the number of cabin staff by having passengers perform duties in exit rows - smelt a lot like a person with duties in relation to the safety of the aircraft ... .)
In any event, it may be that some contractual arrangement meant that Pel-Air's liability to medical crew on board was limited by the same limitations as apply to liability to passengers.
All will be revealed when the judgment is published.
Folks,
As Creamie says, all will be revealed when the judgement is published.
However, a central point is that the flight was, per CAR 206, aerial work, not "charter" or "RPT", that was a major issue, and has since resulted in rule changes that most EMS flights will be "air transport" or some such definition.
Tootle pip!!
As Creamie says, all will be revealed when the judgement is published.
However, a central point is that the flight was, per CAR 206, aerial work, not "charter" or "RPT", that was a major issue, and has since resulted in rule changes that most EMS flights will be "air transport" or some such definition.
Tootle pip!!
The judgement appears to be in the public domain. You can search for it at the following link
Judgments - Supreme Court New South Wales
I presume it can be published here, and the media have quoted some extracts. . However there is a legal disclaimer at the bottom, so it might be better for interested people to search for it themselves.
It reads to me that the judge found that PTSD is compensable if it is a consequence of a physical injury to the body or brain. Pure PTSD per se may not be compensable, as per the intent of the Montreal Convention. So I’m not sure this is the landmark case that some are suggesting - it may be this was a fairy unusual case which permitted some specific findings.
Anyway, congratulations Karen.
Judgments - Supreme Court New South Wales
I presume it can be published here, and the media have quoted some extracts. . However there is a legal disclaimer at the bottom, so it might be better for interested people to search for it themselves.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
It reads to me that the judge found that PTSD is compensable if it is a consequence of a physical injury to the body or brain. Pure PTSD per se may not be compensable, as per the intent of the Montreal Convention. So I’m not sure this is the landmark case that some are suggesting - it may be this was a fairy unusual case which permitted some specific findings.
Anyway, congratulations Karen.
The judgment is published here: https://www.caselaw.nsw.gov.au/decis...b06e6e9f0f55e0
The parties agreed a number of issues, one of which was Ms Casey and Dr Helm were passengers on NGA. Why the parties decided not to agitate that issue is not explained:
The ratio of the decision is that PSTD is compensable "bodily injury" for the purpose of the Montreal Convention and section 9E of the Civil Aviation (Carriers Liability) Act.
The parties agreed a number of issues, one of which was Ms Casey and Dr Helm were passengers on NGA. Why the parties decided not to agitate that issue is not explained:
THE ISSUES
11 Ms Casey, Dr Helm and CareFlight claimed damages from Pel-Air, who accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability.
12 The traumatic nature of what Ms Casey and Dr Helm had experienced was not in issue, nor that they had both suffered physical injuries in the crash. That Ms Casey had also suffered serious psychiatric injuries was not in issue, nor was that they had both received workers compensation payments from CareFlight.
13 The claims pressed by CareFlight were settled during the hearing on terms requiring Pel-Air to pay CareFlight an agreed sum in respect of workers compensation payments it had made to Ms Casey and Dr Helm.
14 There was also finally no issue between the remaining parties that:
Pel-Air held a licence in force under the relevant legislation and provided the plane which crashed to CareFlight pursuant to an agreement under which there was international carriage to which the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air applied .
Ms Casey and Dr Helm were passengers on that plane. The Civil Aviation (Carriers Liability) Act 1959 (Cth) applied as a result to their claims.
Their physical injuries were compensable under that Act.
The damages to which they were entitled had to be assessed in accordance with the provisions of the Civil Liability Act 2002 (NSW).
11 Ms Casey, Dr Helm and CareFlight claimed damages from Pel-Air, who accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability.
12 The traumatic nature of what Ms Casey and Dr Helm had experienced was not in issue, nor that they had both suffered physical injuries in the crash. That Ms Casey had also suffered serious psychiatric injuries was not in issue, nor was that they had both received workers compensation payments from CareFlight.
13 The claims pressed by CareFlight were settled during the hearing on terms requiring Pel-Air to pay CareFlight an agreed sum in respect of workers compensation payments it had made to Ms Casey and Dr Helm.
14 There was also finally no issue between the remaining parties that:
Pel-Air held a licence in force under the relevant legislation and provided the plane which crashed to CareFlight pursuant to an agreement under which there was international carriage to which the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air applied .
Ms Casey and Dr Helm were passengers on that plane. The Civil Aviation (Carriers Liability) Act 1959 (Cth) applied as a result to their claims.
Their physical injuries were compensable under that Act.
The damages to which they were entitled had to be assessed in accordance with the provisions of the Civil Liability Act 2002 (NSW).
Regarding pax vs crew. In a past life doing aeromed, we had medical crew who only joined us on occasion when required.
They were regarded as passengers and not crew (therefore not able to open doors etc. nor trained how to do it, only briefed as you would a normal passenger for emergencies), mainly for the reason that because that particular organisation went through so many crew and they were so transient in the bases they were at, it was impossible to be able to train them all and keep track of their CAO 20.11.
Fulltime rescue crews that are consistently with one organisation, I would expect them to be fully trained in compliance with CAO 20.11. However in the instance that I described above, and also the Pel-Air/Careflight situation, I can understand why they aren't.
morno
They were regarded as passengers and not crew (therefore not able to open doors etc. nor trained how to do it, only briefed as you would a normal passenger for emergencies), mainly for the reason that because that particular organisation went through so many crew and they were so transient in the bases they were at, it was impossible to be able to train them all and keep track of their CAO 20.11.
Fulltime rescue crews that are consistently with one organisation, I would expect them to be fully trained in compliance with CAO 20.11. However in the instance that I described above, and also the Pel-Air/Careflight situation, I can understand why they aren't.
morno
Regarding pax vs crew. In a past life doing aeromed, we had medical crew who only joined us on occasion when required.
Only crew can be carried on board an "AWK" flight.
(6) In addition, the carriage of persons, essential to the course of the aerial work operation as prescribed In Part D of this Manual, shall be clearly briefed before flight that the operation is aerial work and not charter and that the compulsory seat liability insurance as required by CASA for charter passengers is not applicable to the operation. No other persons shall be carried.
Yes I'm still unclear if the flight was conducted (or was required to be conducted) under Airwork or Charter.
This is of relevance regarding carriage of alternate fuel.
Does this judgement suppoet the contention that it was in fact charter - as implied in the slightly ambiguous CASA audit. This stated (with words to the effect) the AOC covered medevac charter operations.
This is of relevance regarding carriage of alternate fuel.
Does this judgement suppoet the contention that it was in fact charter - as implied in the slightly ambiguous CASA audit. This stated (with words to the effect) the AOC covered medevac charter operations.
On any interpretation of any of the recent versions of the civil aviation regulations, patients on board an aircraft are passengers.
Just as CASA invented ChaRPTer, CASA invented ChAWK.
This is one of the many running sores in the classification of operations scheme that will be fixed in 1998.
Just as CASA invented ChaRPTer, CASA invented ChAWK.
This is one of the many running sores in the classification of operations scheme that will be fixed in 1998.
601,
Well aware of the regulations regarding AWK and Charter with regards to "pax". However I can tell you now, that while not technically "pax", any "crew" that were essential for the conduct of the flight (let's think Doctors not associated with the company conducting the flight, paramedics, police officers, neonatal staff, escorts of the patients), were not CAO 20.11 trained so therefore were not considered, as far as the actual company crew were concerned, as "crew".
morno
Well aware of the regulations regarding AWK and Charter with regards to "pax". However I can tell you now, that while not technically "pax", any "crew" that were essential for the conduct of the flight (let's think Doctors not associated with the company conducting the flight, paramedics, police officers, neonatal staff, escorts of the patients), were not CAO 20.11 trained so therefore were not considered, as far as the actual company crew were concerned, as "crew".
morno
I haven't read the transcript, but relying on Creampuff's quote re: Issues: my reading of that however, is that the 'parties' agreed on a course of action which the Court has allowed - however did the Court RULE on any of the disputed matters?
If not, and they just upheld the agreement/ resolution, then such can hardly be held as a precedent in future claims?
Bit like the difference between CASA Approving VS Accepting an Ops manual etc. Nit picking, but that's the way the law works isn't it?
If not, and they just upheld the agreement/ resolution, then such can hardly be held as a precedent in future claims?
Bit like the difference between CASA Approving VS Accepting an Ops manual etc. Nit picking, but that's the way the law works isn't it?
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I still maintain that as the medical / travel insurance company who wanted the patient repatriated called Careflight as the medical company, not Pel-Air; and Careflight contractyed Pel-Air to provide the aircraft and crew to Careflight, then it was a Charter, not Airwork.
For Pel-Air to qualify as an airwork provider the original requesting agency would have had to contact Pel-Air, not Careflight.
For Pel-Air to qualify as an airwork provider the original requesting agency would have had to contact Pel-Air, not Careflight.
Aerial Work or Charter
It seems pretty murky, and there are a number of issues.
1. The CASA regulations at the time
Some people here have stated that carrying a "passenger" is not possible under Aerial Work - that is, the presence of a passenger means the flight must operate as Charter (or RPT).
CASA's NPRM 1003OS July 2010 appears to contradict this view. Section 3 (page 7) makes it clear that passengers can be carried on aerial work flights.
http://www.casa.gov.au/wcmswr/_asset...nprm1003os.pdf
3. Synopsis of Change Proposals
3.1 Purpose of this NPRM
Carriage of Fuel on Flights to a Remote Island – CAO 82.0
3.1.1 The purpose of this NPRM is to consult on a proposed change to CAO 82.0 relating to the carriage of fuel for flights to remote islands. A ‘remote island’ is currently defined as Lord Howe Island; Norfolk Island; or Christmas Island.
3.1.2 Presently, CAO 82.0, subsection 3A requires all passenger-carrying charter flights in aeroplanes to a remote island to carry enough fuel for flight from the remote island to an alternate aerodrome, unless an operator’s operations manual states otherwise. There are no similar provisions for passenger-carrying aerial work, regular public transport (RPT), private or cargo-only charter flights.
3.1.3 The NPRM proposes an amendment to the Order which will require the carriage of enough fuel for flight from a remote island to an alternate aerodrome for all passenger-carrying aerial work, charter and RPT flights in aeroplanes, unless CASA approves othewise.
So at the time of writing (6 months after the crash), CASA implicitly stated passengers could be carried on Aerial Work flights.
2. The 2008 CASA audit describes PelAir's AOC on page 2.
http://www.casa.gov.au/wcmswr/_asset...ef12-10004.pdf
To me, this is written a bit loosely. However it seems to suggest that the medivac work was charter. This section continues "AirWork operations consist of target towing for the RAN."
So the last CASA audit prior to the crash seems to suggest air ambulance flights were Charter.
3. The 2009 CASA special audit stated the PelAir line pilots were not sure whether they were operating as Aerial Work or Charter!
4. The CASA email dated 14 April 2010 suggests CASA was not sure what category PelAir's air ambulance flights operated under. Specifically, this email states CASA can not find any reference one way or another, and further that CASA was not aware of any change from Charter to AirWork in respect of air ambulance functions.
This all reads a bit odd, but seems to suggest CASA expected air ambulance flights were Charter (as described in the 2008 audit).
What was going on within CASA at this time? Was someone asking questions why the flight was being considered AirWork?
5. Separate to all these regulations, did the contract between Careflight and PelAir specify a category the flight was to operate under? There may be a distinction between the contractual act of hiring an aircraft (charter), and the Charter category of operation (as defined by CASA). Thus a farmer could contract someone to spray his property for weeds. The farmer could say he was chartering a plane and pilot. But the flights would be Aerial Work.
1. The CASA regulations at the time
Some people here have stated that carrying a "passenger" is not possible under Aerial Work - that is, the presence of a passenger means the flight must operate as Charter (or RPT).
CASA's NPRM 1003OS July 2010 appears to contradict this view. Section 3 (page 7) makes it clear that passengers can be carried on aerial work flights.
http://www.casa.gov.au/wcmswr/_asset...nprm1003os.pdf
3. Synopsis of Change Proposals
3.1 Purpose of this NPRM
Carriage of Fuel on Flights to a Remote Island – CAO 82.0
3.1.1 The purpose of this NPRM is to consult on a proposed change to CAO 82.0 relating to the carriage of fuel for flights to remote islands. A ‘remote island’ is currently defined as Lord Howe Island; Norfolk Island; or Christmas Island.
3.1.2 Presently, CAO 82.0, subsection 3A requires all passenger-carrying charter flights in aeroplanes to a remote island to carry enough fuel for flight from the remote island to an alternate aerodrome, unless an operator’s operations manual states otherwise. There are no similar provisions for passenger-carrying aerial work, regular public transport (RPT), private or cargo-only charter flights.
3.1.3 The NPRM proposes an amendment to the Order which will require the carriage of enough fuel for flight from a remote island to an alternate aerodrome for all passenger-carrying aerial work, charter and RPT flights in aeroplanes, unless CASA approves othewise.
So at the time of writing (6 months after the crash), CASA implicitly stated passengers could be carried on Aerial Work flights.
2. The 2008 CASA audit describes PelAir's AOC on page 2.
http://www.casa.gov.au/wcmswr/_asset...ef12-10004.pdf
To me, this is written a bit loosely. However it seems to suggest that the medivac work was charter. This section continues "AirWork operations consist of target towing for the RAN."
So the last CASA audit prior to the crash seems to suggest air ambulance flights were Charter.
3. The 2009 CASA special audit stated the PelAir line pilots were not sure whether they were operating as Aerial Work or Charter!
4. The CASA email dated 14 April 2010 suggests CASA was not sure what category PelAir's air ambulance flights operated under. Specifically, this email states CASA can not find any reference one way or another, and further that CASA was not aware of any change from Charter to AirWork in respect of air ambulance functions.
This all reads a bit odd, but seems to suggest CASA expected air ambulance flights were Charter (as described in the 2008 audit).
What was going on within CASA at this time? Was someone asking questions why the flight was being considered AirWork?
5. Separate to all these regulations, did the contract between Careflight and PelAir specify a category the flight was to operate under? There may be a distinction between the contractual act of hiring an aircraft (charter), and the Charter category of operation (as defined by CASA). Thus a farmer could contract someone to spray his property for weeds. The farmer could say he was chartering a plane and pilot. But the flights would be Aerial Work.
I agree Allan L: The only 'precedent' this case sets is the finding that PSTD is compensable "bodily injury" for the purpose of the Montreal Convention and section 9E of the Civil Aviation (Carriers Liability) Act (in this case, Commonwealth).
As another example of the distinction between the Court just accepting things as being agreed between the parties versus things being found by the Court, the passage from the judgment I quoted also says:
That's not the same as a finding that the pilot and co-pilot were negligent. As far as I am aware, there have been no procedings to which the pilot or co-pilot were parties in which they have admitted negligence or been found negligent. (There could be proceedings with this outcome, but I'm not aware of them.)
As to the crew/passenger distinction, my only points were: First, whatever the regulatory definitions and contortions muddying the question whether medical people 'working' on board an aircraft were or are members of the crew rather than passengers, the patients being carried on board have always been "passengers" under the civil aviation law. Full stop. Secondly, the current spaghetti of intersecting and interacting definitions don't help much in clarifying the regulatory 'status' of people who aren't licensed aircrew but still have 'jobs' to do on board the aircraft.
As another example of the distinction between the Court just accepting things as being agreed between the parties versus things being found by the Court, the passage from the judgment I quoted also says:
Pel-Air ... accepted that the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability.
As to the crew/passenger distinction, my only points were: First, whatever the regulatory definitions and contortions muddying the question whether medical people 'working' on board an aircraft were or are members of the crew rather than passengers, the patients being carried on board have always been "passengers" under the civil aviation law. Full stop. Secondly, the current spaghetti of intersecting and interacting definitions don't help much in clarifying the regulatory 'status' of people who aren't licensed aircrew but still have 'jobs' to do on board the aircraft.
That's not the same as a finding that the pilot and co-pilot were negligent. As far as I am aware, there have been no procedings to which the pilot or co-pilot were parties in which they have admitted negligence or been found negligent. (There could be proceedings with this outcome, but I'm not aware of them.)
1. It prevented all the regulatory deficiencies being debated in court, and hence protected the PelAir / Rex brand
2. PelAir conceded "the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability." This kept the spotlight off all the deficiencies of PelAir itself - and also CASA! From the outset, the position of both organisations has been that the pilot was almost solely responsible for the crash.
3. There may have been a thought that by admitting liability for the crash, the contested issue (PTSD) would go better for them.
Last edited by slats11; 17th May 2015 at 22:52. Reason: typo