Air Canada v Evans

Case [2024] NSWCA 153


Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Air Canada v Evans [2024] NSWCA 153
Hearing dates: 5 June 2024
Decision date: 21 June 2024
Before: Leeming JA at [1];
Payne JA at [94];
Griffiths AJA at [95]
Decision:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the answer to question (1)(a) given by Rothman J on 12 December 2023, and in lieu thereof answer that question “No”.

4. The respondents to pay Air Canada’s costs of the appeal (including the application for leave to appeal).

5. Save in relation to the documents replicating the tickets on which the respondents travelled, and the extracts from reg 122 of the Canadian Air Transportation Regulations, SOR/88-58, reject Air Canada’s application to tender further evidence.

Catchwords:

AVIATION LAW – international carriage of passengers by air – Montreal Convention 1999 – limits of liability for bodily injury – whether carrier’s tariff waived partial defence under Art 21(2) for liability above 113,100 SDRs – whether unlimited strict liability for bodily injury

Legislation Cited:

Air Navigation Regulation 2016 (Cth), Pt 4

Canadian Air Transportation Regulations, SOR/88-58, reg 122

Carriage by Air Act 1935 (Cth)

Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 9B, Sch 1A

Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth)

Civil Liability Act 2002 (NSW)

Corporations Act 2001 (Cth)

Evidence Act 1995 (NSW), s 174

Income Tax Assessment Act 1997 (Cth)

Supreme Court Act 1970 (NSW), s 103

Uniform Civil Procedure Rules 2005 (NSW), rr 14.11, 28.2, 36.16

Guadalajara Convention 1961

Hague Protocol 1955, Art 22

Montreal Convention 1999, Arts 1, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 55

Montreal Protocol No 4 1975, Art 22

Vienna Convention on the Law of Treaties 1969, Art 31

Warsaw Convention, Arts 1, 17, 18, 19, 20, 22, 23, 25

Cases Cited:

Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36

Bradshaw v Emirates [2021] FCA 1407; 395 ALR 97

Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57

Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402

Chevron (TAPL) Pty Ltd v Pilbara Iron Company (Services) Pty Ltd (2021) 58 WAR 102; [2021] WASCA 193

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24

Cohen v American Airlines,Inc 13 F 4th 240 (2021)

Dyczynski v Gibson (2020) 280 FCR 583; [2020] FCAFC 120

Ehrlich v American Airlines, Inc 360 F 3d 366 (2d Cir 2004)

Evans v Air Canada [2023] NSWSC 1535

Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53

GIO General Ltd v Centennial Newstan Pty Ltd [2014] NSWCA 13; 18 ANZ Ins Cas 62-005

Great China…

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Details
AGLC
Air Canada v Evans [2024] NSWCA 153
Case
[2024] NSWCA 153
Decision Date

CaseChat Overview and Summary

Air Canada appealed to the Court of Appeal of New South Wales against a decision of Rothman J concerning claims brought by passengers for bodily injury sustained during international carriage by air. The dispute centred on the application of the Montreal Convention 1999, specifically the limits of liability for bodily injury.

The primary legal issue before the Court of Appeal was whether Air Canada’s tariff, by not explicitly referring to the limitation of liability provisions in Article 21(2) of the Montreal Convention, had waived its right to rely on the partial defence for liability above 113,100 Special Drawing Rights (SDRs). This raised the question of whether Air Canada was subject to unlimited strict liability for bodily injury.

The Court of Appeal reasoned that Article 21(2) of the Montreal Convention provides a carrier with a defence against claims for damages exceeding 113,100 SDRs, provided the carrier proves that the damage was not due to the negligence or other wrongful act or omission of the carrier, its servants or agents. The Court held that for a carrier to waive this defence, there must be a clear and unequivocal statement to that effect in its tariff. In this instance, the Court found that Air Canada’s tariff did not contain such a statement, and therefore, the carrier retained the benefit of the defence under Article 21(2). Consequently, the Court allowed the appeal, set aside the primary judge's answer to the relevant question, and answered it in the negative, meaning Air Canada was not subject to unlimited strict liability.

Orders

Orders of the court

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the answer to question (1)(a) given by Rothman J on 12 December 2023, and in lieu thereof answer that question “No”.

4. The respondents to pay Air Canada’s costs of the appeal (including the application for leave to appeal).

5. Save in relation to the documents replicating the tickets on which the respondents travelled, and the extracts from reg 122 of the Canadian Air Transportation Regulations, SOR/88-58, reject Air Canada’s application to tender further evidence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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