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KERRY O'BRIEN: A compelling difference between the law and justice: welcome to Four Corners.


Back in 2012, Four Corners told the story of an air ambulance flight, operated by Pel-Air, that was forced to ditch off the coast of Norfolk Island in 2009. The six passengers and crew survived against all odds - but it most certainly doesn't end there.
The reason we did the last story was because of the way the pilot was apparently scapegoated by a regulatory inquiry which was subsequently discredited by two independent reviews in the wake of our program.
We're back again because of another seeming injustice: the way Pel-Air and its insurers are using a law that's little known to air passengers in Australia to avoid paying compensation for overwhelming emotional and psychological suffering directly linked to the plane crash.
They say that, legally, such suffering is not their problem.
In the case of nurse Karen Casey, one of the heroes of the flight, her life has been shattered. Apart from the ongoing pain of her physical injuries, Karen's psychiatrist says she is a classic case of post-traumatic stress disorder, with severe anxiety and a daily nightmare of recurring flashbacks.
Independent Senator Nick Xenophon argues that the law is unjust and should be repealed and has taken up Karen's case.
It's of interest to every passenger flying within Australia.
This investigation is from reporter Geoff Thompson.

Ditched (Link for video, transcript & background info) 

By Geoff Thompson and Morag Ramsay
Updated March 23, 2015 20:31:00

Ditched

• Video: Ditched - Promo (Four Corners)
  

19th March, 2015

Quotes from the Transcript:

JOSEPH WHEELER, AVIATION SPECIALIST, SHINE LAWYERS: I think most people, um, would, would feel as just an intuitive notion that if they suffer through a near-miss and they survive and, for example, there's a ditching at sea and they're picked up as a survivor, um, should they suffer some emotional distress or psychiatric damage, even - some recognisable psychiatric injury - that they would have a claim against that airline for putting them through that ordeal.
The fact is: they don't.

GEOFF THOMPSON: Joe Wheeler is an aviation lawyer. His speciality is the Montreal Convention, which came into effect in Australia in 2009.
It does not allow passengers to sue for purely psychological injuries.

JOSEPH WHEELER: It talks about "bodily injury". So the kinds of injuries are strictly circumscribed. Ah, it doesn't talk about pure mental injury. It doesn't talk about emotional distress. The words "bodily injury" seem to have been there from the very beginning of the Montreal Convention and the Convention which preceded it from the 1920s...

...GEOFF THOMPSON: Before getting to court, Pel-Air accepted responsibility for the crash but not liability for David and Karen's injuries. Citing the Montreal Convention, Pel-Air says it's not required to pay for Karen's PTSD.

KAREN CASEY: I-I can't move my body the way I used to, so of course I'm angry and frustrated. And it comes back. And then you get flashbacks and it's all linked.

GEOFF THOMPSON: Karen's only hope is that the judge will accept that her psychological distress is inextricably linked with her physical injuries.

DAVID HELM: It would be difficult to overlook the ongoing physical problems that Karen has and the ongoing physical pain as a, a permanent reminder of the experience. And so on a daily basis there is always a trigger for her to recall that event.
And she's been through multiple treatment programs and that's not got better and there's nothing suggests that that ever will. Um, so to try and separate the problems that Karen has into different camps is artificial and, ah, I would, I would say inappropriate.

GEOFF THOMPSON: Lawyers representing Pel-Air and its insurers say there is no connection. They argue that Karen's PTSD stems from her experience of the crash itself and not from her physical suffering.

JOSEPH WHEELER: The fact is: when there is a bodily injury that can be evidenced, there's room to argue that a subsequent psychological injury which was caused or primarily caused by that bodily injury should be compensable under the international legal regime. That's not set in stone. Since, um, cases in the 1990s, um, outside of Australia that question's been left open and it really needs a legislative change at international level to clarify that.

GEOFF THOMPSON: The legal regime which has trapped Karen Casey now looms over us all.
Two years ago the law in Australia was changed so that the Montreal Convention's ban on compensation for purely psychological injury now applies to domestic flights too.

JOSEPH WHEELER: The harsh reality for domestic passengers is that there's no compensation available for mental injury if it's unaccompanied or doesn't come from a bodily injury on a domestic flight.

NICK XENOPHON: What happened to Karen Casey can happen to anyone and, in fact, it can happen to more people now because since the Norfolk Island accident the law has been changed in this country to take away people's rights to claim for psychiatric injury, for post-traumatic stress disorder, which can be as debilitating, as crippling as any physical injury.

KAREN CASEY: Everybody flies. Everybody flies. And my question would be to Pel-Air - one question: Put your butt in the end of a plane and slam it into the ocean and tell me that you don't have any psychological trauma. And you're reminded every single day and you have to fight for justice.

NICK XENOPHON: That's why in the coming session of Parliament I want to move amendments so that we can go back to what it was pre-2013. And I hope that Karen can come with me to see MPs and I want those MPs to look her in the eye and say, "We're not going to change the law back to what it was."

GEOFF THOMPSON: These days, Dominic James is more likely to be a jet passenger than a pilot.
He has not been diagnosed with PTSD, but the Norfolk ditching continues to have a punishing impact on his life and career.
An investigation into the ditching by the Australian Transport Safety Bureau largely blamed Dominic James, saying he failed to plan the flight correctly and didn't carry enough fuel.

Dominic says he was just following company practice.

DOMINIC JAMES: I think at Pel-Air we treated long-distance flying over water as not that much different to long-distance flying over land. But they're hugely different principles and you need access to a whole lot of information that we didn't have. And that the company needs to have a range of procedures that relate exactly to that and those things just weren't there.

GEOFF THOMPSON: Under mounting pressure, including a scathing Senate inquiry and an international review, the ATSB has reopened its investigation into the Norfolk ditching.

NICK XENOPHON: I have no doubt that Dominic James was a scapegoat, In hindsight, maybe he could have made other decisions on that night.

But he was made the scapegoat for regulators that failed to do their job, for regulators that were more concerned about covering their backsides than exposing the truth.

GEOFF THOMPSON: Astonishingly - five-and-a-half years after the crash - here on the ocean floor remain the flight's black box and voice recorder, beneath less than 50 metres of water.

NICK XENOPHON: It doesn't give me much confidence, er, that this is the same mob that is supposed to be recovering the remains of MH370.

Um, if they can't get a black box recorder from 49 metres of water, what hope is there to find it in some location in the Indian Ocean, probably 2,000 or 3,000 metres below the sea?

DOMINIC JAMES: I think closure's incredibly important for all of us. We want to get on with our lives and, and start rebuilding and trying to get back some of what we had before. But while ever this whole circus is going on, it's just keeping us in this moment of uncertainty and frustration and, and, um, it's just- it's very, very tough on all of us. And it takes its toll. It's not... it's not without consequence upon us.
(footage of Karen at medical clinic)...

...ANDREA HENNING: I've asked her: "Do you sometimes wish you'd just died?" She says, "Y-yes," she says. But she said, "The only reason I- I, I changed my mind is because," she said, "I wouldn't s- have seen the kids again." So for her, while she, she often I think wishes that she hadn't survived because of the constant pain she's in, um, I think that, um, it's o- it was the kids. She said, "It was the kids." It's always the kids, I think, at the end of the day, that stops her from taking the final step. Or we get to her first. (laughs)

GEOFF THOMPSON (to Jemma Patten): Do you think your mum, the mum you knew, will ever be back?

JEMMA PATTEN: Mm-mm. No. No- no way. No way.

RITA DE BROUWER: Jemma said to me once - it broke my heart too - she says, "You know, Nanna, my Mum's like a ghost. She's just not there." That's the best explanation: it's like a ghost. She's not there.

GEOFF THOMPSON (to Amy Patten): Do you think you'll get her back?

AMY PATTEN: I hope so. Yeah. I hope I do, I mean I- I really, really miss her a lot. Yep.

GEOFF THOMPSON: Twelve days ago Karen headed to the airport to board a plane, this time not to save a life but to mourn the loss of one.

KAREN CASEY: We've both lived through the aftermath of, of everything.

GEOFF THOMPSON: Bernie Currall, the patient she saved in the water, had died suddenly.

KAREN CASEY: There were six survivors and... and now there's five and, um, there will not be four.
GEOFF THOMPSON: Karen is flying to Bernie's funeral in Melbourne.

KAREN CASEY: I had to pay respect. I had to say goodbye. The reason... (fights tears) the Bernie was so important to me is because she, she taught me and helped me to fight.

NICK XENOPHON: The salutary lesson of Karen Casey is that, even if you do the right thing - in fact, are a hero on the night - the system treats you appallingly. She's been treated like dirt and she deserves better...

...KERRY O'BRIEN: So there's the letter of the law and there's conscience. Somewhere between the two is Karen Casey.
Judgement in her case for compensation will be delivered sometime this year.
Pel-Air declined to be interviewed or answer written questions, telling Four Corners that it is "legally bound not to discuss any aspect of the incident pending the final resolution of the court case."
However, Pel-Air has made detailed changes to its flight practices, particularly with regard to fuel policy and in-flight weather updates, following the accident.