Does Part 2 of the Civil Liability Act 2002 (NSW) apply to the determination of the quantum of any damages recoverable by a plaintiff in a claim governed by the Montreal Convention? The Montreal Convention has been given force of law in Australia by section 9B of the Aviation Act and is recited in Schedule 1A thereto.

I refer to the recent decision of Evans v Air Canada (2023) NSWSC 1535. In this case, Mr Justice Rothman determined Part 2 of the Civil Liability Act did apply and therefore this decision adds support to the view State domestic statute law should be applied to the determination of quantum of damages under the Montreal convention.

This is contrary to the decision of Justice Stewart in Federal Court case of Bradshaw V Emirates (2021) FCA 1407. The decision of Keogh J in the Supreme Court of Victoria, Di Falco v Emirates (2018) 57 VR 394, (in which the judge took a similar view to Stewart J, concerning the application of State statute laws to compensation under the CACL Act) was not referred to in the Evans V Air Canada case nor apparently considered by Rothman J.

I am of the opinion, until there is a further determination by a Court of Appeal or ideally the High Court, it seems likely there will continue to be a divide between the views expressed by single judges in the Federal Court of Australia and those in State courts, having regard to the fact, neither court is bound to follow the decisions of the other.

In his decision, Justice Rothman stated he found the case of Zicherman V Korean Airlines Co Limited (1996) 516 US 217 to be helpful in reasoning his decision.

In the case of Bradshaw V Emirates, the defendant sought to divert the court’s attention from the Carriers Liability Act to the level of international treaties. The defendant sought to argue that “the code is uniform “and try and bring into the matter US decisions from a different legal context altogether. The US law concerning liability of carriers operates in a very different way from the Australian law. Nothing of significance to the Australian law can be drawn from the US cases given the different way in which the Montreal Code has been” brought into “Australian law.

Zicherman is beyond being simply “distinguishable” from the Bradshaw case and Australian Law. Zicherman is a case from a different domain altogether with a different legal system and different laws. Zicherman involved a death on the high seas which fell under the US Death on the High Seas Act which created a statutory action available to particular relatives of the deceased person. The kinds of damages sought to be recovered by the relatives fell outside the statutory action created by the Death on the High Seas Act.

As the Supreme Court said in Zicherman ,” a treaty ratified by the United States… is the law of this land” by virtue of the US Constitution. In this very different context, the Supreme Court held that.

“Congress may choose to enact special provisions, applicable to Warsaw convention cases… absent such legislation, however, Articles 17 and 24 (2) provide nothing more than a pass-through authorising us to apply the law that would govern in absence of the Warsaw Convention”.

The Supreme Court's analysis stands in another field altogether to Australian law. Under Australian law, the Adopted Article 17(1) is a law of the Commonwealth. As noted elsewhere, the Adopted Article 17(1) is akin to Section 82 of the Trade Practices Act. Statements made by Scalia J in Zicherman were taken out of context by the defendant in the Emirates case and sought to be applied as they were statutory provisions in Australian law.

Justice Rothman found Part 2 the Civil Liability Act would be applicable to the plaintiffs’ claims against Air Canada in these proceedings, despite those claims being in the category of “no-fault” claims. He determined the limits and thresholds imposed on awards of personal injury damages by the Civil Liability Act were not incompatible with the scheme under the Montreal Convention.

With respect, I consider this reasoning is wrong. There is no common law that comes into the Adopted Article 17(1) Statutory Action, as there is no common law that comes into the action, there is no” vehicle” carrying the NSW Civil Liability Act into the matter.

The provisions of the NSW Civil Liability Act do not stand consistently with the Adopted Article 17(1) Statutory Action. If the NSW legislature did purport to make a law affecting the Commonwealth Adopted Article 17(1) Statutory Action, it would be beyond State Legislative power and also inoperative under Section 109 of the Constitution.

The NSW Civil Liability Act is concerned with “fault-based” liability. The Adopted Article 17(1) Statutory Action is an action where the Carriers’ liability is not fault based. As his Honour McHugh J said in Povey V Qantas Airways (2005) 223 CLR 189 (69), where he refers to the Adopted Article segment of the Warsaw Convention.

“One of the objects of the Convention is to provide compensation for injured passengers without the need to prove fault on the part of the air carrier”.

Fault is essential to the operation of the NSW Civil Liability Act and so it does not stand in a position that is” not inconsistent” with the Adopted Article 17(1) Statutory Action.

In Bradshaw v Emirates, the defendant contended because there is no reference to default in Part 2 of the NSW Civil Liability Act, provisions of Part 2 come into the matter and are not inconsistent with the Adopted Article 17(1) Statutory Action.

In relation to this contention concerning fault, I note the following propositions.

The Civil Liability Act must be read as a whole and construed as such. Part 2 is not independent of the rest of the Act especially not of Part 1A.
On the contrary, without Part 1A, there would be no Part 2. Part 2 is a complement of Part 1A.
Part 1A squarely depends for its operation on proceedings involving allegations of negligence (thus fault). See Section 5A and the earlier reference to tort in section 3C. Although section 5A makes it unnecessary to do so, should such a need exist regard could be had to the heading in Part 1A which is “Part 1A negligence”. The fact that Part 1A and Part 2 are in the same statute and that the whole statute is concerned with claims for damages for personal injury means that Section11A, as to the application of Part 2, is speaking of claims for damages and awards in damages in proceedings involving allegations of fault. Put another way the claims contemplated Part 2 are the same as those contemplated in Part 1A.
In this regard the fact that the wording of section 5A is the same as that of section 11A {2} is significant.
If there were any doubt about this view, regard can be had to the IPP Report, which spawned the Civil Liability Act and similar legislative intervention in other States, and specifically for NSW purposes, regard can be had to the second reading speeches. Despite the caution to be applied in second reading speeches, in this case one cannot, with respect, read those extrinsic materials without seeing that it is quite clear that Civil Liability Act is concerned with claims that are fault based
It follows that despite some difference in wording, the Civil Liability Act is properly to be seen as not materially different from the Victorian legislation that was the subject of Di Falco and vice versa .The reasoning and conclusions in that case should be accepted and applied for this purpose, and the extra words in the Victorian Wrongs Act should fairly be seen as not making a difference in substance.

The correctness of Di Falco in this regard extends, with respect to the view, the Victorian Legislation and thus the NSW Civil Liability Act,” otherwise provides” because it derogates from and clashes with the Commonwealth legislation. The latter proceeds on the footing that damages will be recovered. There is no indication that the damages will be subject to reduction or complete elimination as distinct from capped. The NSW Civil Liability Act on the other hand, must in some cases preclude recovery altogether and in others reduces it.

Further in Di Falco, Keogh J was correct in his observation the NSW cases applying the NSW Civil Liability Act in analogous situations to the present involved no judicial determination.

If The NSW legislature did purport to make a law affecting the Commonwealth’s Adopted Article 17(1) Statutory Action, It would be beyond State Legislative power. If the NSW Legislature did purport to make a law affecting the Commonwealth’s Adopted Article 17(1) Statutory Action and if somehow it was not beyond State Legislative power to do so, such a law would be” inoperative” under section 109 of the Constitution.