DOES THE CIVIL LIABILITY ACT 2002 (NSW) APPLY TO THE ASSESSMENT OF DAMAGES UNDER ARTICLE 17 OF THE MONTREAL CONVENTION 1999? ANOTHER DISTRICT COURT OF NSW DECISION SAYS YES

The District Court of New South Wales has today held that the Civil Liability Act 2002 (NSW) applies to the assessment of damages under the Montreal Convention 1999.

 In Joyce v Qatar Airways [2021] NSWDC Unreported, No. 248834, the Plaintiff alleged he was injured when an item of luggage fell from the overhead locker and struck him on the head and shoulder.  He sought to recover damages from Qatar Airways pursuant to Article 17 of the Montreal Convention 1999 and contended that the damages he was entitled to recover were not limited by the Civil Liability Act 2002.

 Qatar Airways contended that the Civil Liability Act 2002 applied to the assessment of damages and had the effect of precluding the Plaintiff from recovering damages for non-economic loss, with the result he was entitled to recover only nominal out of pocket medical expenses.

 The issue of the application of the Civil Liability Act 2002 arose in the context of two recent and conflicting Federal Court judgments on this issue.

 In Grueff v Virgin Australia Airlines Pty Limited [2021] FCA 501, Griffiths J held that section 80 of the Judiciary Act operates to pick up the common law as modified by the Civil Liability Act to cases under Article 17 with the result that section 16 of the Civil Liability Act 2002 would apply. 

 In Bradshaw v Emirates [2021] FCA 1407, Stewart J declined to follow the decision of Griffiths J and held that the Civil Liability Act 2002 did not apply but rather held that damages were to be ‘interpreted and implemented by domestic courts’.

Judge Curtis preferred the opinion of Griffith J, holding that as the Convention makes no provision as to the heads of damages which may be awarded in any particular domestic jurisdiction, those damages are to be governed by local law including the Civil Liability Act.  The result was that Mr Joyce was entitled only to damages of $325.25 in respect of out of pocket medical expenses.