Carrier's liability, the exclusivity principle and the Montreal Convention

In our recent air carrier's liability update, we referred to the exclusivity principle under the Warsaw and Montreal Conventions and the approach of the Australian courts to follow a line of UK and US authority, which provides that, where the relevant convention applies, the remedies available to the passenger are those exclusively under that convention. We reported that in the decision of the Western Australian District Court in Cousins v Nimvale Pty Ltd [2013] WADC 175, the parents of two deceased passengers had a right to seek dependency loss under Australian legislation, which gives effect to the relevant convention. However their claims for damages for nervous shock fell outside the scope of the legislation (and convention). In such circumstances, the parents had the right to separately claim against the carrier for their nervous shock under common law negligence or any other relevant statute.