This month, two passengers who claimed there should be no upper limit on the amount of compensation Air Canada owes to injured passengers
lost their case
in an Australian court.
The case stems from a
July 2019 Air Canada flight
from Vancouver to Sydney, Australia. The Canadian Press reported at the time that the flight hit severe turbulence and was forced to divert to Hawaii.
Thirty people were sent to hospital, nine in serious condition, some suffering lacerations and injuries to their head, back and neck, emergency first responders in Hawaii said.
Mother and daughter Renae and Stephanie Evans claimed they suffered spinal and psychological injuries during the flight. They also claimed that Air Canada, in its general rules, waived an upper limit set by an international treaty called the Montreal Convention.
The New South Wales Supreme Court initially ruled in favour of the passengers, a decision which was overturned by that state’s Court of Appeal.
The High Court
then unanimously dismissed the passengers’ case.
What is the Montreal Convention?
The Montreal Convention
(or more formally the Convention for the Unification of Certain Rules for International Carriage by Air) is an international treaty that was drawn up in 1999 and came into force in 2003. It sets limits for airline liabilities for everything from lost luggage to loss of life.
In the case of the latter, it said airlines were liable for up to 100,000 SDR for the bodily injury or death of a passenger. SDR or “special drawing rights” is an economic unit that can be translated into any local currency; 100,000 SDR is worth about $192,000 Canadian.
The amount is examined and may be revised every five years.
As of 2024
it stands at 151,880 SDR, equivalent to $277,940 Canadian.
What was the Australians’ argument?
The plaintiffs had argued that Air Canada’s
terms and conditions
included the phrase: “There are no financial limits in respect of death or bodily injury of passengers,” suggesting that the airline was opting out of the limit set by the Montreal Convention.
However, Lawson Hennick, founding lawyer at Hennick Law in Markham, Ont., told National Post that on closer reading of the airline’s regulations and the lawsuit, the high court’s decision makes sense.
“Article 25 of the Montreal Convention expressly permits carriers to agree to higher or unlimited liability,” he said. “The court acknowledged this, noting that a carrier can raise or even eliminate the threshold at which the no-negligence defence applies.”
However, “the court rejected this position, finding that Air Canada had not clearly waived its right to rely on the no-negligence defence.” Specifically, language in the Montreal Convention note that its liability rules “supersede and prevail over any provisions of this tariff which may be inconsistent.”
Meanwhile, Air Canada’s own international tariff rules note that, “except as otherwise provided herein,” the airline “reserves all defences available.”
Said Hennick: “In the result, the passengers were unsuccessful in establishing that the carrier had waived the Article 21(2) defence for claims exceeding the maximum liability set out in the Montreal Convention.”
What does this mean for those injured by turbulence?
Hennick noted that the Montreal Convention, aside from its cap on liabilities, is very open-ended when it comes to injury or loss of life while flying.
“The Montreal Convention says the carrier is liable for damages sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking,” he said. “So if you’re injured by turbulence, that’s considered onboard the aircraft, right? So I would say that would be something that could be compensable.”
He added that passengers can sue beyond the limit, “but if you want to claim it under the Montreal Convention, the benefit of that is all you have to do is prove your injuries.”
“As soon as you start claiming amounts above and beyond that, then they can start putting in defences for negligence. They can start alleging, well, the injury wasn’t caused by us, it was caused by a third party, or could have been a result of pre-existing issues, or something other than that. But if you’re going to be pursuing the limits under the Montreal Convention, it’s a strict liability regime. You just have to show that you’re injured on board the aircraft, prove the value of your injuries, and then they’ll have to pay it.”
One downside, he noted, is that the convention only mentions physical injuries.
“So if it’s a purely psychological claim or psychiatric trauma, and you’re not physically hurt … you may not be able to recover anything out of the Montreal Convention.”
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