Evans v Air Canada

Case [2025] HCA 22

HIGH COURT OF AUSTRALIA

GAGELER CJ,
EDELMAN, STEWARD, GLEESON AND BEECH‑JONES JJ

RENAE EVANS & ANOR  APPELLANTS

AND

AIR CANADA  RESPONDENT

Evans v Air Canada

[2025] HCA 22

Date of Hearing: 12 March 2025

Date of Judgment: 14 May 2025

S138/2024

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with M Tanevski for the appellants (instructed by Shine Lawyers)

J T Gleeson SC with G O J O’Mahoney and L G Moretti for the respondent (instructed by Norton White)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Evans v Air Canada

Aviation – Carriage of passengers by air – Contract of carriage – Where Air Canada's International Passenger Rules and Fares Tariff ("Air Canada Tariff") formed part of contract of carriage with passengers – Where defences to liability recognised by Convention for the Unification of Certain Rules for International Carriage by Air (1999) ("Montreal Convention") – Where treaty provisions given effect in domestic law – Where liability rules of Montreal Convention expressly incorporated into Air Canada Tariff – Where partial defence in Art 21(2) of Montreal Convention raised – Whether open to Air Canada to waive partial defence limiting extent of passengers' recovery of damages for bodily injury allegedly caused by turbulence experienced on flight – Whether any waiver of partial defence in Air Canada Tariff.

Words and phrases – "aviation", "bodily injury", "context", "contract of carriage", "damages", "defence", "financial limit", "liability cap", "liability rules", "partial defence", "purpose", "tiers of liability", "travaux préparatoires", "treaty", "treaty interpretation", "unlimited liability", "waiver".

Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 9B, 11.

Convention for the Unification of Certain Rules for International Carriage by Air (1999), Arts 17, 21, 25.

Vienna Convention on the Law of Treaties (1969), Arts 31, 32.

GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ.  

Introduction

  1. This appeal concerns the meaning of Arts 17, 21 and 25 of the Convention for the Unification of Certain Rules for International Carriage by Air (1999)[1] ("the Montreal Convention") and the application of those provisions in Air Canada's International Passenger Rules and Fares Tariff ("the Air Canada Tariff"), which formed part of its contract of carriage with passengers.

    [1]2242 UNTS 309.

  2. The issue in this Court arises from a claim, made by two passengers who travelled on an Air Canada flight from Vancouver to Sydney in July 2019, for damages arising from spinal and psychological injury allegedly caused by turbulence experienced on the flight. In the Supreme Court of New South Wales, the passengers sought damages from Air Canada for these bodily injuries under Art 17 of the Montreal Convention, as incorporated into Australian law.[2] Air Canada relied upon a partial defence in Art 21(2) of the Montreal Convention, available where the damage was not due to negligence or any other wrongful act or omission by Air Canada or its servants or agents. Under that partial defence,…

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AGLC
Evans v Air Canada [2025] HCA 22
Case
[2025] HCA 22
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by passengers against Air Canada regarding claims for bodily injury allegedly caused by turbulence experienced on a flight. The dispute centred on whether Air Canada was entitled to rely on a partial defence under Article 21(2) of the Montreal Convention, which limits the extent of an airline's liability for passenger injury, or whether it had waived this defence. The Montreal Convention's liability rules were expressly incorporated into Air Canada's International Passenger Rules and Fares Tariff, forming part of the contract of carriage.

The High Court of Australia was required to determine whether Air Canada could waive the partial defence provided by Article 21(2) of the Montreal Convention, which limits recovery of damages for bodily injury. Specifically, the Court had to consider whether Air Canada's own tariff provisions indicated an intention to waive this defence, thereby allowing passengers to recover damages beyond the limits imposed by the Convention.

The Court reasoned that Air Canada's tariff, particularly rule 105(C)(4), indicated an intention to retain a defence to liability for death or injury not caused by its negligence, subject to the application of Article 21(2). This provision confirmed that Air Canada did not intend to waive the defence available under the Montreal Convention. Therefore, the Court concluded that Air Canada was entitled to rely on the partial defence limiting its liability. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Article 32 permits resort to "supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion", to confirm the meaning of the provision arising from the application of Art 31, or to determine the meaning of the provision if that meaning is ambiguous (including latent ambiguity) or obscure or "[l]eads to a result which is manifestly absurd or unreasonable". The distinction in Art 32 between confirming a meaning and determining a meaning was not intended to be, and has not been, applied rigidly or independently of the considerations of context, object, and purpose in Art 31.[18] The intention was one of "frequent and quite normal recourse to travaux préparatoires without any too nice regard for the question whether the text itself is clear".[19] The history of, and background to, the Montreal Convention[18]Gardiner, Treaty Interpretation, 2nd ed (2015) at 348-349. See also JTI Polska sp z oo v Jakubowski [2024] AC 621 at 633-634 [32].[19]Waldock, Special Rapporteur, Sixth Report on the Law of Treaties, UN Doc A/CN.4/186 and Add 1-7, in [1966] Yearbook of the International Law Commission, vol 2, 51 at 99 [20], quoted in Gardiner, Treaty Interpretation, 2nd ed (2015) at 347.The importance of the history of the Montreal Convention The system involving the rules governing liability for international air carriers and their application has been described as "an unusual hybrid of public international law and private transnational law";[20] the rules are provided by international treaties but disputes are generally adjudicated by domestic courts. Although this appeal is most directly concerned with provisions of the Montreal Convention, the interpretation of the Montreal Convention requires an understanding of its history and development and particularly its relationship with the Warsaw Convention and the agreements that amended the Warsaw Convention or waived the benefits accruing to carriers under it.[20]Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 251. The recitals to the Montreal Convention reveal the importance to the development and understanding of the Montreal Convention of the Warsaw Convention and related instruments ("the Warsaw system"). The recitals include recognition of the "significant contribution" of the Warsaw Convention and the "need to modernize and consolidate the Warsaw Convention and related instruments".[21] It has therefore been consistently reiterated in case law, including by the Court of Appeal in this case,[22] that an understanding of the Warsaw system, including authorities on similar or identical provisions,[23] is necessary to appreciate the meaning of many provisions of the Montreal Convention.[21]Montreal Convention, Preamble.[22]Air Canada v Evans (2024) 114 NSWLR 433 at 445 [34].[23]See Cohen v American Airlines Inc (2021) 13 F 4th 240 at 244-245; Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 42-43.The Warsaw system

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ
Fifthly, the appellant passengers' interpretation of r 105(C)(1)(a) is in tension with Air Canada's provision in r 105(C)(4) (subject to provision otherwise in the Air Canada Tariff or in applicable laws) that it has a defence to liability for death or injury that is not caused by its negligence. Of course, r 105(C)(4) must be read as subject to the limit or threshold for the application of the "no negligence" defence in Art 21(2). But r 105(C)(4) confirms that Air Canada did not intend to waive that defence. Conclusion The appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ

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