Evans v Air Canada – flight turbulence, what it means for airplane turbulence injuries

Under aviation law, compensation claims for death or personal injury while onboard, embarking or disembarking can involve both domestic laws and international treaties. A challenge for aviation injury lawyers can be how those laws apply and are interpreted in court. Learn more about our clients Renae Evans’ and Stephanie Evans’ case against Air Canada.

What happened in the case, Evans v Air Canada

Our clients Renae Evans and her daughter Stephanie Evans suffered airplane turbulence injuries on their Air Canada flight from Vancouver to Sydney in July 2019. In 2021 they began legal proceedings against Air Canada in the Supreme Court of NSW for compensation for their injuries. 

Renae Evans’ and Stephanie Evans’ airplane turbulence injuries

The severe Air Canada flight turbulence caused the plane to suddenly plunge, about halfway through the 16-hour flight. Renae Evans and Stephanie Evans were flung rapidly upwards and down again. 

The Air Canada flight diverted to Honolulu so injured passengers could be treated for turbulence injuries. Renae Evans’ and Stephanie Evans’ injuries included a spinal injury, soft tissue back and neck injuries and psychological injury. 

What laws applied in Evans v Air Canada?

Renae Evans and Stephanie Evans contacted Shine Lawyers for help in seeking damages for their turbulence injuries. Their personal injury damages claim was made under two relevant laws, the: 

• Civil Aviation (Carriers’ Liability) Act 1959 (CACLA), and 

• Montreal Convention 1999 (Montreal Convention)  

Also relevant were: 

• A NSW law, the Civil Liability Act 2002 (NSW) (Civil Liability Act) regarding assessment of damages 

• Air Canada’s conditions of carriage, referred to in the court cases as their ‘Tariff’ 

The Montreal Convention

Australia is a party to the Montreal Convention, which is an international treaty governing airline liability worldwide in the event of: 

• Passenger death or injury 

• Flight delay 

• Damage or loss of baggage and cargo  

The CACLA gives the Montreal Convention the force of law in Australia. 

The question in Renae and Stephanie’s case

Rules 105(B)(5) and 105(C) in Air Canada’s Tariff poses a significant question in this case. The legal question is whether:

• Air Canada increased the financial limits in respect of death or bodily injury through their Tariff, and if so 

• The limit under Article 21 of the Montreal Convention therefore does not apply

Airline liability for airplane turbulence injuries

The Montreal Convention has a clause about airlines’ responsibility to pay compensation if passengers die or are injured. Under Article 21 of the Montreal Convention, airlines have two potential levels of liability for compensation: 

1. Special Drawing Right amount (SDR amount, see below heading). Airlines can’t escape liability to pay compensation up to the SDR amount specified in the Montreal Convention  

2. Unlimited amount. Airlines could be liable to pay compensation for up to an unlimited, potentially much higher amount (above the SDR amount) 

In general terms, airlines have two possible defences to being liable to pay an unlimited amount to compensate a passenger’s death or injury. This is why the wording in Air Canada’s Tariff has posed an ongoing legal challenge in Renae and Stephanie’s case. 

What is a Special Drawing Right

A SDR is a unit of money defined by the International Monetary Fund. The Montreal Convention refers to SDRs for damages rather than a specified money amount because it applies to multiple countries with different currency systems. 

SDRs are reviewed every five years. The relevant SDRs considered by the court for Renae Evans’ and Stephanie Evans’ injuries were 128,821, which roughly equates (at the time of writing) to AUD230,000.

Court decisions in Evans v Air Canada – flight turbulence

At the time of writing, Renae Evans’ and Stephanie Evans’ claim against Air Canada has involved three different Australian courts: 

Supreme Court of NSW

In the first case (Evans v Air Canada [2023] NSWSC 1535) the Supreme Court of NSW decided: 

• The Civil Liability Act is relevant to the assessment of the Evans’ damages under the Montreal Convention 

• Air Canada’s Tariff entitled passengers (plaintiffs) to claim unlimited damages  

This meant that Air Canada would have to pay an unlimited amount of damages (not only the SDR amount). The damages amount would be decided under the Civil Liability Act. 

NSW Court of Appeal

Air Canada appealed that decision to the NSW Court of Appeal (Air Canada v Evans [2024] NSWCA 153). The NSW Court of Appeal allowed the appeal and said the Air Canada Tariff must be read as a whole document (rather than one clause in isolation) and that its purpose is relevant, as is the history of the Montreal Convention.  

This effectively reversed the Supreme Court of NSW’s decision. It meant that Air Canada may only be responsible for paying the SDR amount. 

High Court of Australia

The Evans appealed the NSW Court of Appeal decision to the High Court of Australia. At the time of writing, the case is ongoing. A decision is anticipated before the end of 2025. 

The case has potentially significant ramifications for aviation law and passengers who die or are injured while embarking, disembarking or in flight. 

Concerned about airplane turbulence injuries? Shine Lawyers can help

Shine’s aviation injury lawyers and travel accident lawyers can help you or your loved one if you’ve suffered airplane turbulence injuries or were otherwise injured on an aircraft. Contact us today.