High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal concerning the interpretation of the Montreal Convention and subsequent construction of a tariff maintained by Air Canada.
The proceedings arise from turbulence on a flight from Montreal to Sydney. They are brought by passengers seeking damages, under Article 17 of the Montreal Convention as incorporated into Australian Law by the Civil Aviation (Carrier’s Liability) Act 1959 (Cth), for spinal and psychological injury allegedly caused by the turbulence. The issue was whether Air Canada could rely on a partial defence contained in Art 21(2) of the Montreal Convention to limit the sum of recoverable damages.
The High Court (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ) held that while Art 25 empowered Air Canada to waive the partial defence, Air Canada did not do so – as the Court of Appeal (Leeming JA with whom Payne JA and Griffiths AJA agreed) concluded.
In determining that the relevant provision in the Air Canada tariff describes the effect of Arts 17 and 21 of the Montreal Convention, rather than stipulating a higher limit of liability for the purposes of Art 25, the High Court had regard to various elements of the Convention’s context and purpose, including its history (and the Warsaw Convention which predated it).
Justin Gleeson SC, Greg O’Mahoney and Luca Moretti appeared for Air Canada, instructed by Mark Mackrell and Keira Nelson from Norton White.
A copy of the High Court decision can be found at:
https://eresources.hcourt.gov.au/downloadPdf/2025/HCA/22
A copy of the New South Wales Court of Appeal decision can be found at: https://www.caselaw.nsw.gov.au/decision/19032d12b34c4df190330ba3
A copy of the decision of the Supreme Court of New South Wales can be found at: https://www.caselaw.nsw.gov.au/decision/18c563dce8c547dc62ce3d0b