Psychological injuries – of the mind or body?18 May 2018
The concept that the mind and body are separate and injuries fall within the scope of psychology and biology respectively – has been enshrined within legal and medical systems on a global scale.
However, recent developments in neuroscience have caused a shift in the perception of psychological conditions, demystifying the place of the mind within the body and providing new information about the extent of damage caused to the brain by psychological conditions.
As a result, there has been an increase in the application of neuroscientific evidence to both civil and criminal matters, particularly in the United States. This trend has continued to an extent in Australia with a landmark decision passed by the Supreme Court in Casey v Pel-Air Aviation Pty Ltd  NSWSC (hereafter Casey v Pel-Air). Although an appeal of the primary decision was successful, both cases demonstrated a willingness by the courts to challenge traditional legal notions about the separation of mind and body
Karen Casey was a nurse employed by CareFlight (NSW) Limited to assist in the transportation of patients by plane. In November 2009 Ms Casey was travelling between Samoa and Melbourne on a plane operated by Pel-Air Aviation Pty Ltd (Pel-Air), when it ditched into the ocean. Ms Casey suffered a number of physical and psychological injuries, and sued Pel-Air for compensation at common law.
Pel-Air accepted vicarious liability for Ms Casey’s claimed complex pain syndrome, major depressive disorder and anxiety disorder on the basis that these were secondary to the physical injuries she suffered and thus fell within the applicable definition, which was that of “bodily injury” rather than “personal injury.” However, with regard to Ms Casey’s post-traumatic stress disorder (PTSD), Pel-Air argued that this resulted from the emotional trauma of the event itself and thus was not a bodily injury for the purposes of Article 17 of the Montreal Convention, which is incorporated into the Civil Aviation (Carrier’s Liability) Act (CACL Act).The fact that Ms Casey suffered from PTSD was not in issue. At first instance, expert evidence provided by Ms Casey’s expert witnesses was that PTSD as a condition in general, is caused by chemical changes and disruption to the brain’s neurotransmitter pathways. On the basis that Ms Casey was suffering PTSD, a mental dysfunction caused by changes to the brain, Schmidt J intuitively held that her PTSD was a bodily condition for which she should be compensated.
However, upon appeal Macfarlane JA, Ward JA and Gleeson JA reversed the decision. Macfarlane J held that in order for the Court of Appeal to uphold the Schmidt J’s ruling it would need to be established that Ms Casey had suffered “physical destruction” to her brain which caused the PTSD, rather than mere chemical changes. Thus in the absence of physical evidence proving Ms Casey’s brain was impaired, any finding of bodily injury was unsubstantiated and Ms Casey was deemed not entitled to compensation for her PTSD condition pursuant to the CACL Act.
Where traditionally psychological illness and trauma were considered ‘mental’ issues only, neuroscientific testing can now be applied to determine whether the condition resulted from changes or damage to the brain. This is an advance upon structural neuroimaging studies such as CT scans and diagnostic MRI scans which have long been admitted as evidence to determine the presence of brain injury, trauma and health conditions such as dementia.
Advances in neuroscientific research and technology allowing non-invasive detection of brain activity challenge the approach upon which our medical and legal systems were founded, by providing new appreciation of the brain, its relationship to the mind, and place and function within the body.
With the court’s readiness to consider neuroscientific evidence, it is inevitable that the demarcation between mind and body will continue to be blurred and possibly eliminated altogether in criminal and civil proceedings.