Pure PTSD claims and the decision in Pel-Air: a body blow for plaintiffs

Whilst I realise that for most members of the public a juicy set of facts is far more compelling than even the most irresistibly cogent legal precept, I am often disappointed by the scarcity of legal context given in news stories these days. I did however come across one the other day that had enough of both to pique my interest.

 

It involves a man who has sued an airline alleging that he found the tip of a hypodermic needle in his inflight meal of butter chicken with cauli pea masala. The man alleges that he only discovered the needle once it was inside his mouth.

 

The story immediately brought to mind the quintessential and if true, makes the escargot in Donoghue seem like a delicacy by comparison.

 

Based on what was reported, it would seem that whilst the man may have sustained some physical injuries to the inside of his mouth, the focus of his damages claim will be in respect of alleged depression and post-traumatic stress.

 

The interesting bit of law came from a quote of what the man’s solicitor said, which was to the effect that the plaintiff is seeking damages under the Australian Consumer Law (ACL) and the Civil Aviation (Carrier’s Liability) Act, which for ease of reference I’ll give the somewhat unfortunate acronym of CACLA.

 

Negligence actions framed as a breach of the ACL provide a useful means of circumventing the various liability hurdles and damages caps contained in the Civil Liability Act 2002 and its cognate provisions in other states (cf: Nair-Smith v Perisher). For this reason, it has become a common cause of action where a contractual relationship exists between the relevant parties such as there would have been here.

 

Though not specified in the article, the implied term of due skill and care may be the go-to, or with respect to the supplier sub-contracted to prepare the meal (ie. the “manufacturer”, as defined in the ACL), which the article reports has also been sued, a breach of the statutory obligation to supply safe and/or merchantable goods.

 

There is a defence to that latter action if the manufacturer can show the alleged defect wasn’t there at the time of supply. The airline’s claim, also referred to in the article, that the meal went through a metal detector twice before it made it onto the plane may well assist both it and the supplier in this regard. Similar issues arose in a case called Effem Foods v Nicholls [2004] NSWCA 332 where a consumer was injured by a safety pin concealed within a chocolate bar.

 

The article’s lack of detail regarding that aspect of the claim (there’s that problem again) deems any further comment on this part of the claim otiose (such a judge’s word that I feel a little bit of an imposter in using it). But it’s the CACLA part of the claim that interested me more anyway. CACLA is applicable where a person sustains “bodily injury” whilst on an aircraft or during the course of embarking or disembarking.

 

It was no doubt a particularly appealing basis upon which to claim in the context of these facts because CACLA imposes strict liability, thereby removing the need for the claimant to prove negligence to complete his cause of action.

 

However, if a plaintiff claims for pure psychiatric injuries under CACLA, a decision of the NSW Court of Appeal handed down in March 2017 has now made things more difficult. In Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 the Court was asked to deal with the question of whether PTSD is a “bodily injury” as that term is understood by CACLA.

 

At this point I should say that the decision may also prove to be of some moment in the interpretation of other statutes incorporating those words, of which there are a few. Section 25 of the Companion Animals Act 1998 (NSW), which deals with the (strict) liability of dog owners for injuries caused by their pooches, is one that immediately comes to mind.

 

The plaintiff in Pel-Air was a passenger in a small plane that the pilot was forced to ‘ditch’ into the sea off Norfolk island due to bad weather. As a result, she spent about 90 minutes in the water, suffering multiple injuries including PTSD.

 

It is accepted law that where a physical injury and psychological injury are connected, this kind of psychiatric injury will meet the “bodily injury” requirement. Some of the plaintiff’s psychiatric injuries in Pel-Air fell into this category. However, for what is often termed “pure” psychiatric injury, such as the PTSD suffered by the plaintiff in Pel-Air something more would be required.

 

Nevertheless, at first instance, Justice Schmidt of the NSW Supreme Court determined that given the plaintiff’s PTSD had resulted in ongoing dysfunction that was “consistent with chemical changes in her brain and body and alterations in her brain’s neurotransmitter pathways, which [had] prevented a return to normal brain function”, this was enough for it to be properly categorised as a “bodily injury”.

 

On appeal, Justice Macfarlan (with whom Justices Ward and Gleeson agreed) undertook a detailed analysis of the evidence provided by the experts commissioned by each party and in particular, the joint document produced by them after they had ‘conclaved’, which read (quoted at judgment [21]):

 

“There is meta-analytic research evidence to suggest that in some persons suffering from PTSD or Generalised Anxiety Disorder can suffer from physical changes to specific areas on the brain [sic], [eg.] shrinkage of the hippocampus…[or] changes to the prefrontal areas of the brain… [However], the experts agree that there is no evidence available to them (i.e. imaging) that will prove that the plaintiff has structural changes to her brain.” [emphasis added]

 

His Honour then undertook an interesting review of the case authorities in the United Kingdom, the United States and Canada on the point, which were all highly relevant given that their legislation, in the same way as CACLA, includes the words “bodily injury”, as a result of them all having incorporating the unifying Montreal Convention into their domestic law.

 

Consistent with those authorities, the Court found that something more than malfunctioning or chemical change must to be shown for a claim to be made out in respect of pure psychiatric injury under CACLA. For example, structural or what his Honour referred to as “actual physical damage” (at [47]). It seems that a plaintiff alleging pure psychiatric injury under CACLA will now need brain imaging showing a change in brain architecture in order to succeed.

 

Excuse the pun, but to me this would seem like a bit of a body blow to what might otherwise be a rather straightforward statutory claim.

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Filed under Civil, Crime, damages, evidence, Negligence, statutory interpretation

Pokemon Go: a change of landscape for insurers and gamers alike

As a concerned parent, I have recently had cause to discuss with few fellow mums and dads the whys and wherefores of the Pokemon Go ‘phenomenon’; which, like the word ‘crisis’, has become one of those hyperbolic usages that characterises this age of sensationalism we are living in.

In line with accepted best practice parenting, one particular couple said they took the immersive approach, having decided to spend last Saturday afternoon playing it with their 12-year-old son.

Their rather tame introduction took them as far as the local shops in search of the nearest Pokemon to capture, which for the uninitiated, is the principal aim of the game. And sure enough, right there, smack bang in the middle of the road (in reality, well sort of) was the coveted creature.

It was at this point in telling the story that the boy’s father made the observation that the Google Map data used to determine the player’s location and distribute the various Pokemon is not vetted. Therefore players could well be led onto a busy road in search of glory; or off a cliff perhaps. Yikes!!

However, could or should it be? The conventional wisdom among gamers is that Pokemon are distributed by operation of an algorithm (a bit like the mysterious way Google sees some people’s websites arrive higher up the list of search responses than others). Therefore, it seems to be somewhat random.

The game’s terms and conditions say players should “be aware of [their] surroundings and play safely. …[and take] responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies … reasonably necessary for any injuries.”

But what about the 5 year-old child who all alone embarks on the same trip to the shops on a Pokemon Go quest and is busy standing in the middle of the road trying to make a catch when a car screams around the corner…

Even if such a disclaimer would have any force at law, surely it couldn’t be used to protect against this kind of claim.

Subject to a contributory negligence reduction (which would be little or none for a child of this age), this situation would be the responsibility of the CTP insurer. However, if I were the CTP insurer, I’d be ready for battle with a cross claim for contribution from the game provider. Surely such a tragic result is foreseeable enough to give rise to a duty of care on its part. The misplaced Pokemon could perhaps be likened to the ‘snail in the bottle’ a la Donoghue v Stevenson.

Then the question arises as to how reasonable it is to expect the system to be sufficiently controlled by the provider so as not to put its users in such obvious peril. That would make for a fascinating debate, though it may never reach a courtroom given it would likely result in the scrutiny of the top secret Pokemon distribution algorithm itself.

Airbnb now offers complimentary landlord style insurance to its subscribers whose use of the property as a short term rental might see them excluded by a conventional policy. So I’m sure there is an insurer brave enough to take on this new risk at the right premium, something I’d be strongly recommending if it hasn’t been done already.

Apparently, there’s already a Russian bank already offering to insure users themselves (https://www.rt.com/business/351813-pokemon-go-sberbank-insurance).

Watch this space (no pun intended).

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Filed under Civil, contributory negligence, Insurance, Negligence

Admissibility of Police Reports

 

Police reports can often provide a useful contemporaneous account of an incident that later becomes the subject of court proceedings, criminal or civil.

However, police reports are prima facie a form of hearsay, so unless the party seeking to rely on the document can enliven one of the exceptions to that rule, the report will be inadmissible.

In this regard, it is also uncontroversial that police reports are a form of business record and therefore fall within the ambit of the exception to the hearsay rule contained in section 69 of the Evidence Act. If admitted as a business record, the report can then be used as evidence supporting the truth of the matters recorded therein, which is of course the main game when it comes to evidence at trial.

However, section 69 contains a couple of exclusions for the kinds of business records that do not pass the smell test for reliability that a document created in the course of everyday business (eg. an email) would otherwise possess.

One of these exceptions covers a situation where the matters contained in the report are recorded “in connection with an investigation relating or leading to a criminal proceeding” (per ss 69(3)(b)). That kind of report would ordinarily be inadmissible, the rationale being that once a criminal investigation is underway, human nature dictates that people, including perhaps even the police themselves, may tend to behave in a self-serving fashion.

In a recent decision that could ultimately prove frustrating for insurers in cases where fraud is alleged, Basten JA in Averkin v Insurance Australia Ltd [2016] NSWCA 122 ruled strictly on the question of the admissibility of a police report.

In any argument over the admissibility of a report, the principal question will be whether, objectively speaking, the police report reveals the police to have undertaken “an investigation which would probably lead to a criminal proceeding.” (Averkin at [28]).

The police report in Averkin described the incident as a ‘stolen vehicle’ case, noted a view that there was likely an accelerant used to start the car fire and recorded the nature of inquiries made of the car owner’s wife and neighbours.

The trial judge took the view that the test is whether the investigation has reached a particular stage where, in the ordinary course of events, it would have led to a criminal proceeding. In the instant case, where the police inquiries were very much of a preliminary nature, the trial judge found that the test wasn’t satisfied and therefore the report was admissible.

However, his Honour Basten JA took the following contrary view (at [28]) and found the report should have been ruled inadmissible:

It is patently obvious that on arrival at the scene the police had quickly formed the view that at least two serious property offences had been committed. If the correct approach is an objective assessment [of whether criminal proceedings are probable], this Court should come to the same view on the facts then apparent to the police.

There is an argument that the first few interviews and inquiries police make can be valuable in revealing a picture that is untainted by invention, collusion and lawyerly intervention. However, where even the slightest possibility of impartiality is revealed his Honour has deemed the risk of unfairness too great.

It is sometimes costly, inconvenient and even impossible to have in court the witnesses whose representations are recorded in police reports. However, when the report reveals even a preliminary view on the investigating officer’s part, parties will now need to find another way to make their case.

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Filed under Civil, evidence, Insurance, police experts