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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.