Evans v Air Canada

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.