Neuroscientific Evidence in Australia – brain based arguments

Recently in Australia, the Courts have accepted evidence of neurologists to explain behaviours of individuals. As technology improves, our understanding of the brain increases.  As such, the courts have allowed the aid of neuroimaging and have accepted expert evidence of neuropsychologists in order to rationalise actions of individuals.

By accepting this type of evidence, questions arise as to whether the person was injured in a way the law recognises, whether the individual acted intentionally and within their own free will and finally, whether the individual had the necessary capacity at the time.

Although neuro-based arguments tend to arise in criminal cases as a mitigating factor, it has recently been applied in civil matters. In recent civil matters, neuroscience has been used as a basis in claiming compensation for pain and suffering for personal injury claimants.

In Karen Casey v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 the plaintiff claimed compensation for post-traumatic stress as a result of a plane crash. Under international law, compensation only needs to be paid in respect of “bodily injuries.” The neuroscientific evidence provided to the court recognised that post-traumatic stress disorder caused chemical changes in the brain, which resulted in structural and toxic changes.

Although post-traumatic stress disorder was once considered ’emotional trauma’ and the plaintiff could not be compensated for emotional loss, Justice Schmidt found in favour of the plaintiff in that post-traumatic stress is classified as “bodily injury… not merely a result of an injury to her mind” but also involves “injury to her brain”.

This is the first Australian case to recover damages for post-traumatic stress disorder as a bodily injury. The matter is now subject to appeal.

As neuroscience becomes increasingly used in Australia, Macquarie University and Sydney University have partnered up to launch the Australian Neurolaw Database. The database compromises cases that involve neuroscience evidence, sentencing opinions and assessments of testamentary capacity. The goal of this database is to help understand how the brain works and to help us answer questions like capacity at the time of an act and whether the intention to perform the act existed. This area of law is slowly increasing and provides opportunities for us to answer the significant questions on whether or not a person should be held responsible for their actions and whether they are telling the truth about their pain.

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