March 25, 2024

A court has ruled that state laws apply to the formulation of damages recoverable by international airline passengers for cabin injuries sustained in a turbulence event.

Renae Evans and her daughter Stephanie were enroute from Vancouver to Sydney aboard Air Canada flight AC33 in July 2019 when the Boeing 777 encountered severe turbulence about eight hours into the 16hr journey.

The aircraft suddenly plunged causing many passengers – including the Evans’ – to be flung upwards and then crash down to the cabin floor or onto seat armrests.

The aircraft diverted back to Honolulu where 37 passengers were treated for their injuries.

Renae sustained a disc injury to her cervical spine necessitating a disc replacement and Stephanie suffered soft-tissue injuries to her back and neck.

After negotiations with the airline faltered, they filed a claim in the NSW Supreme Court in June 2021 for recovery of injury compensation.

The airline argued the anti-consumer restrictions contained in the NSW Civil Liability Act applied to the claims because the passengers had chosen to bring their claims before a NSW court.

It relied on a May 2021 single judge decision in the Federal Court of Australia that concluded – because the federal Civil Aviation (Carriers’ Liability) Act (CACLA) does not itself specify how injured international passenger damages are to be calculated – the Civil Liability Act had to be used as “surrogate federal law” to fill in the gap.

The claimant in that case did not clear the 15% injury threshold for damages because the food poisoning injury was trivial. Virgin was thus required to pay him no compensation.

In a case that followed only a few months later, Justice Angus Stewart – also in the federal court – ruled to the opposite effect and awarded $5,000 to a passenger be paid by Emirates Airlines for another trivial injury.  In his view, CACLA and the Montreal Convention of themselves provided a complete cause of action and remedy and there was no “insufficiency” or “gap” that called for any state law to be “picked up”.

Victorian judge Andrew Keogh had come to that very same conclusion in a 2018 case, also against Emirates Airlines.

In a somewhat unexpected decision, Justice Stephen Rothman followed the Virgin decision and ruled that the NSW Civil Liability Act will apply as regards the formulation of damages in the Evans’ claims against Air Canada.

In his view, the Civil Liability law must apply as “surrogate federal law” to fill in the gap because CACLA does not specify how international injured passenger damages are to be assessed.

With two judges ruling for opposing side in the contest, the issue is destined to be put before an appeal court soon.

Air Canada’s win on that point was matched with a loss on the extent of its maximum liability for injury or death under its conditions of carriage.

The Montréal Convention – as at July 2019 – required airlines to pay up to AUD$230,000 for proven losses as a consequence of proven bodily injury.

This would be the usual limit on damages for a turbulence event because an airline only has to pay for proven losses above that sum if it can’t show that it had no part in the event.

Airlines can though contract on the basis they will pay higher compensation as commonly occurred before the Montreal Convention 1999 was in force.  Renae and Stephanie pointed out that the Air Canada conditions of carriage did exactly that by stating “where the Montreal Convention Applies, there are no financial limits in respect of death or bodily injury”.

Justice Rothman rejected the airline’s contention that those words meant something other than their plain and natural meaning.

In arriving at that decision, he also rejected the conclusions in support of Air Canada’s argument from air law expert Paul Dempsey from McGill University in Montreal.

These preliminary rulings will feature in the ultimate trial which- appeals aside – should come before the court for final determination in the coming 12 months.

The entitlement to potentially much higher damages than the AUD$230,000 first tier limit will prove very valuable to the pair if  their injuries are accepted by medical experts to be in the severe category as they contend them to be.

The first tier Montreal Convention ceiling is currently AUD$260,000.

Evans v AIR CANADA [2023] NSWSC 1535 Rothman J, 12 December 2023

Categories: aircraft accident , Aviation Law

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