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When Renae Evans and her daughter boarded an Air Canada flight AC33 from Vancouver to Sydney in July 2019, they had no idea their journey would become the centre of a legal battle that might take a decade to resolve.
Evans and daughter Stephanie alleged they suffered serious spinal and psychological injuries as a result of the Boeing 777 encountering severe mid-air turbulence about eight hours into the 16hr journey.
The passengers argued the ticket condition stating “There are no financial limits in respect of death or bodily injury” meant they could recover whatever losses they proved they had suffered in terms of loss of earning capacity, personal care and medical expenses and the same losses going forward.
Air Canada accepted that the Montreal Convention applied but denied the terms of its ticket had the effect of waiving the liability limit of around AUD $230,000.
The initial legal battle unfolded in the Supreme Court of New South Wales before Justice Rothman, who sided with the passengers. The judge found that Air Canada’s tariff language was clear and unambiguous resulting in Air Canada having voluntarily stripped itself of the financial protections built into the Convention.
The airline’s appeal was successful. The New South Wales Court of Appeal unanimously concluded that the statement in Air Canada’s conditions of carriage was merely a reflection of the Montreal Convention’s structure — an acknowledgement that liability is unlimited if the airline is at fault — and not a clear contractual promise to forgo its legal defences.
The passengers appealed that decision to the High Court of Australia.
Chief Justice Stephen Gageler and Justices James Edelman, Simon Steward, Jacqueline Gleeson, and Robert Beech-Jones conducted a thorough review of the Montreal Convention’s drafting history, international legal principles under the Vienna Convention on the Law of Treaties, and decades of previous treaty practice dating back to the Warsaw Convention of 1929.
They observed that while airlines may waive defences and assume greater liability through contractual terms, such waivers must be stated in clear and unmistakable language.
Their joint judgment dismissed the passengers’ appeal and upheld the NSW appeal judges interpretation of the ticket conditions and how waiver under the Montreal Convention operates.
That “there are no financial limits in respect of death or bodily injury” was a correct but general summary of the operation of Montreal Convention’s two-tier liability system – they observed – not a specific waiver of the limits.
The ticket conditions otherwise did not contain any explicit term stating the airline had waived the limits of the two-tier Montreal system.
For Evans and her co-passenger, the ruling means that their compensation claim is capped at around AUD$230,000 unless they can establish that Air Canada’s flight crew had some role to play in the event that caused their serious injuries.
Categories: aircraft accident , Aviation Law , All