Payout to worker with debilitating PTSD
A company has been ordered to pay $515,000, instead of $872,000, to a worker with debilitating PTSD, after the NSW Supreme Court found the worker’s funds could be managed by a less expensive trustee than the one selected by her mother.
Justice Monika Schmidt said that while it was entirely reasonable for the worker’s guardian to prefer the more expensive option, it “does not follow that an order for damages can rest on such a decision, without the reasons for the preference being revealed”.
If a plaintiff such as the injured worker needed a modified vehicle and two suitable models were available, with one costing considerably more than the other, it would be unjust to determine an award of damages based on the costs of the more expensive model simply because the guardian preferred it, she said.
As reported by OHS Alert last year, the CareFlight (NSW) Ltd nurse successfully sued Pel-Air Aviation Pty Ltd in what was believed to be the world’s first lawsuit involving post-traumatic stress disorder as a “bodily injury” (see related article).
The nurse and a doctor were transferring a patient from Samoa to Melbourne on a Pel-Air airplane in November 2009 when it crashed into the sea during a storm.
The nurse and doctor sustained serious injuries and sued the airline, which accepted liability for most of their physical injuries but refused to compensate the nurse for her PTSD because carriers were only liable for “death or bodily injury” under civil aviation laws and the Montreal Convention.
But Justice Schmidt found the nurse’s PTSD was a bodily injury because it was caused by physical damage to her body and brain, rather than by emotional trauma.
In a decision handed down today, Justice Schmidt found the nurse’s damages (otherwise settled) should include a component for funds-management costs because Pel-Air’s negligence impaired her intellectual capacity to manage the lump sum herself.
But she found that funds management by National Australia Trustees Ltd – the trustee chosen by her guardian – cost $872,000, compared to the $515,173 fee that would have applied if the NSW Trustee and Guardian had been chosen.
She said it appeared the nurse’s guardian chose the more expensive option on the advice of a financial planner, but there was no evidence that National Australia Trustees would provide better management of the nurse’s estate than NSW Trustee and Guardian.
“In my view a simple, unexplained preference for a more expensive manager, without more, when there is no question that the NSW Trustee could also be appointed by the Court and that it could also properly perform the work [the nurse] requires, cannot be a just basis upon which the calculation of this head of damage can rest,” Justice Schmidt said.
“[She] must be awarded the sum of $515,173.”
The injured doctor was awarded a total of nearly $960,000 in damages in June 2015 proceedings