Air Canada v Evans

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.