From: Neil Foster <neil.foster@newcastle.edu.au>

Sent: Wednesday 14 May 2025 02:35

To: obligations

Subject: ODG: HCA on air carrier liability

Dear Colleagues;

This is not my area but since it is related to a tort claim, thought it was worth mentioning. The High Court of Australia today in Evans v Air Canada [2025] HCA 22 (14 May 2025), in a 5-member joint judgment, dismissed an appeal against a decision of the NSW Court of Appeal on the interpretation 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 (from para [1]).

In short, two passengers injured due to turbulence on an Air Canada flight from Vancouver to Sydney were seeking damages. The action was taken under federal law implementing international conventions on carrier liability: they "sought damages from Air Canada for these bodily injuries under Art 17 of the Montreal Convention, as incorporated into Australian law {Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 9B}. 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."

Without going into all the details, the High Court agreed with the NSWCA that, while there was wording in the domestic Canadian law noting that "[t]here are no financial limits in respect of death or bodily injury", this did not amount to a waiver of the right to limit damages in the circumstances of the accident, and hence the upper limit of 113,1003 Special Drawing Rights "(an international reserve asset created by the International Monetary Fund which is approximately $240,000 at

present exchange rates)" was applicable to the claim.

One for those interested in the interpretation of international treaties in determining civil liability.

Regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

 The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828

Blog: https://lawandreligionaustralia.blog

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

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