Despite Singapore Airlines' recent compensation offer, passengers who have been traumatised by their experience of severe turbulence on flight SQ321 might never be compensated for their psychological scars, say lawyers calling for law reform in Australia.
"Passengers who suffer a psychological injury only, such as PTSD from a near death experience, and not a physical injury will face a huge challenge to receive compensation," said Victoria Roy, spokesperson for the Australian Lawyers Alliance (ALA).
"Singapore Airlines has offered to compensate passengers who sustained both minor and more serious injuries, but has not clarified whether this only covers physical injuries or psychological injuries as well.
"Passengers on SQ321 could experience a long-term psychological injury from the traumatic experience, even if they were not physically injured in the incident."
Airlines' liability for passenger injuries during international flights is governed by international conventions. Under the Montreal Convention while passengers are entitled to compensation from the airline for injuries caused by accidents, which can include turbulence, only 'bodily injury' is covered.
"However, in 2022 the Court of Justice of the European Union interpreted pure psychological injury as being included in 'bodily
Psychiatric injury was compensable for passengers on Australian domestic flights until the legislation was changed in 2012.This removed injured passengers' rights so that they could only recover compensation for 'bodily injury', as with international flights.
The ALA is calling on the federal government to use its White Paper as an opportunity to be a proactive supporter of Australians' mental health and give air passengers who suffer psychiatric injury certainty by changing the law for both domestic and international flights now, rather than wait for Australian case law to develop in this area as it has in the European Union.
In Australia, passengers can only recover compensation for psychological injury from airlines if it is a mental health disorder that flows from physical injuries, such as depression flowing from pain and incapacity from physical injuries, or the passenger can prove that the psychological injury has caused actual physical damage to the brain.
"To show physical damage to the brain requires costly expert medical evidence, which is an unjust barrier to accessing justice," said Ms Roy. "It is unfair that someone who cannot work again because of an orthopaedic injury on a flight is entitled to compensation, but a passenger who cannot work again due to PTSD is not.
"We know that mental health disorders can be debilitating to a person's quality of life, whether or not they can show physical damage to their brain."
The rule only applies to claims against airlines.Compensation claims against third parties like aircraft and equipment manufacturers can include psychological injury without the bodily injury distinction.
The focus on 'bodily injury' is based on the Warsaw Convention of 1929 when the recovery of psychological conditions was not as accepted in most jurisdictions as it is today; there was more stigma and less understanding around mental health issues. In addition, the safety of air travel in 1929 compared to modern aircraft today meant that safe landings were less likely after experiencing difficulties and therefore passengers would suffer physical injury as well as the traumatic event causing psychological injury.
