A-743-81
Air Canada (Appellant)
v.
Swiss Bank Corporation, Swissair and Swiss Air
Transport Co. Ltd. (Respondents)
INDEXED AS: SWISS BANK CORP. V. AIR CANADA
Court of Appeal, Pratte, Marceau and Lacombe
JJ. *—Montréal, February 17; Ottawa, July 9,
1987.
Air law — Appeal from Trial judgment awarding damages
to respondent, and cross-appeal claiming interest from date of
loss at higher than legal rate — Parcel carried by appellant
lost in transit — Last person handling parcel appellant's
employee in charge of valuable objects — Trial Judge finding
loss due to theft by appellant's employees — Appeal dis
missed; cross-appeal allowed — Warsaw Convention, Art. 22
limit on liability not applicable pursuant to Art. 25 — Intent
to cause damage where theft — Scope of employment
Identity of thieves — In view of generality of Art. 18, in few
cases where liability not limited, intending to fully compensate
victim for loss, including interest from date of loss — No error
by Trial Judge in declining to award interest at higher than
legal rate — Art. 18 authorizing interest where Art. 22 not
applicable.
This is an appeal from the Trial judgment ordering Air
Canada to pay to the Swiss Bank Corporation the value of a
parcel lost in transit. The respondent cross-appealed, arguing
that interest should have been awarded from the date of the
loss, rather than from the date of judgment, at a rate higher
than the legal rate. The pilot had given the parcel to a ramp
supervisor, who gave it to another Air Canada employee who
was responsible for receiving and storing valuable objects. The
parcel had not been seen since. Although the Trial Judge could
not find that the parcel had been stolen by the second
employee, he concluded that it had been stolen by one or more
Air Canada employees.
Under the Carriage by Air Act, the carriage of the lost
parcel was subject to the provisions of the Warsaw Convention,
which in Article 22 imposes a limit on the carrier's liability.
Article 25 provides that the Article 22 limits on liability do not
apply if the damage resulted from an act or omission of the
carrier or his servants done with intent to cause damage, and
provided that the servant was acting within the scope of his
employment. The Trial Judge applied an objective test to
determine whether the fault of the carrier or its employees was
* Due to ill health, Lacombe J. was unable to participate in
this judgment.
intentional or reckless. He found that, as the respondent's loss
resulted from a theft by the appellant's employees, the thieves
must have had an "intent to cause damage", and that the theft
occurred within the scope of their employment as the opportu
nity arose while they were working. The Trial Judge held that
the limit on liability did not apply.
Held, the appeal should be dismissed, and the cross-appeal
should be allowed.
The Trial Judge correctly held that the parcel was stolen by
one or more of the appellant's employees. However, he erred in
not identifying the thieves as he could not otherwise say that
the theft was committed within the scope of their employment.
Although the evidence was not sufficient to identify the thieves
with absolute certainty, it was sufficient to support a conclusion
that in all probability, the theft was committed by certain
employees while the parcel was in their custody, as employees
of the appellant.
The Court of Appeal was entitled to contradict the Trial
Judge on a question of fact because 1) it was an inference that
could be drawn from the evidence rather than having to weigh
the evidence 2) the Court of Appeal was in as good a position
as the Trial Judge to identify the thieves since the evidence
consisted of the testimony of the employee who investigated the
matter, and 3) the Trial Judge, out of a sense of fairness, did
not want to identify the thieves because there was still a
reasonable doubt as to their guilt. The Trial Judge having
correctly held that the limit on liability did not apply, Air
Canada's appeal should be dismissed.
The Trial Judge properly exercised his discretion in not
ordering interest at higher than the legal rate. However, the
respondent is entitled to interest prior to judgment. As the
Article 22 limits on liability do not apply, only paragraphs
18(1) and 23(1) are applicable. Article 18 provides that the
carrier is liable for damage sustained in the event of loss of
cargo. Apart from exceptional cases, the Convention limits the
carrier's liability significantly. In view of the generality of the
language of Article 18, in the rare cases in which such liability
is not limited, the authors of the Convention intended that the
victim be compensated in full for the loss sustained. Thus he
should receive compensation which would place him in the
situation he would have been in if the loss had not occurred. In
this case, that means interest that he would have earned from
the date of the loss. The contract of carriage could not divest
him of this right pursuant to Article 23, which declares such
provisions to be null and void.
The foreign cases cited, in support of the argument that the
Convention does not allow interest to be awarded for a period
prior to the judgment, actually held that where the limits on
liability stated in Article 22 apply, the courts cannot award
interest for a period prior to the judgment in addition to the
amount of the limit. The limits imposed in Article 22 are limits
imposed on the liability created by Article 18. If Article 22
prohibits awarding interest prior to the judgment it must be
because Article 18 authorizes such interest to be awarded
where Article 22 does not apply.
Per Marceau J.: In order to apply Article 25, the Trial Judge
had only to find that the parcel had been stolen, and that the
theft was committed by one or more of the appellant's
employees. With respect to the requirement that the act be
done "with intent to cause damage" or "with knowledge that
damage would probably result", it does not matter whether a
subjective or objective test is applied when it is a case of theft.
A theft is necessarily committed with the intent of causing
damage as the thief is attempting to permanently deprive the
owner of his thing by converting it to his own use.
The test to be applied to determine, in a case of theft,
whether an employee was acting within the scope of his
employment is whether, because of his duties, the employee had
free access to the thing stolen. As no breaking was established
where the parcel was located, no entry was made in the register
of valuable objects and no trace of documentation could be
found, the Trial Judge was justified in concluding that there
was sufficiently persuasive evidence that an employee with free
access to the parcel had committed or participated in the theft.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Carriage by Air Act, R.S.C. 1970, c. C-14, Schedule I,
Arts. 18, 22 (as am. by Schedule I11, Art. XI), 23 (as
am. idem, Art. X 11), 25 (as am. idem, Art. XIV).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Swiss Bank Corporation and Others v. Brink's-Mat Ltd.
and Others, [1986] 2 Lloyd's Rep. 99 (Q.B.D.);
O'Rourke v. Eastern Air Lines, Inc., 18 Avi 17,763 (2d
Cir. 1984); Rustenburg Platinum Mines Ltd., Johnson
Matthey (Pty.) Ltd. and Matthey Bishop Inc. v. South
African Airways and Pan American World Airways Inc.,
[1979] 1 Lloyd's Rep. 19 (C.A.); C'e Saint Paul Fire and
Marine c. Ck Air-France, [1986] Rev. Franc. de Droit
Aer. 428.
REFERRED TO:
Domangue v. Eastern Air Lines, Inc., 18 Avi 17,533 (5th
Cir. 1984); Société Financière Mirelis v. Koninklyke
Luchtvaart Maatscheppi N.V., 1968 (Hague District
Court).
AUTHORS CITED:
Cheng, Bin "Wilful Misconduct: From Warsaw to The
Hague and from Brussels to Paris" (1977) II Ann. Air
& Sp. L. 55.
COUNSEL:
J. Vincent O'Donnell, Q.C. for appellant.
Vincent M. Prager and Laurent Fortier for
respondent Swiss Bank Corporation.
Peter Richardson for respondents Swissair
and Swiss Air Transport Co. Ltd.
SOLICITORS:
Lavery, O'Brien, Montréal, for appellant.
Stikeman, Elliott, Montréal, for respondent
Swiss Bank Corporation.
Mackenzie, Gervais, Montréal, for respon
dents Swissair and Swiss Air Transport Co.
Ltd.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Air Canada is appealing from a
judgment of the Trial Division [[1982] 1 F.C. 756]
ordering it to pay the Swiss Bank Corporation
("the respondent") the sum of $60,400, represent
ing the value of a parcel which Air Canada carried
from Zurich to Montréal and which was lost
before being delivered to its intended recipient.
The respondent also filed a cross-appeal from this
judgment, alleging that the Judge should have
awarded it interest on the sum of $60,400 from the
date of the loss (rather than that of the judgment)
at a rate higher than the legal rate.
The lost parcel contained bank notes. It was
delivered to Air Canada on November 5, 1970 to
be sent on flight AC 879 to Montréal. It was in
fact given to the pilot of the aircraft personally.
Shortly before landing in Montréal, he sent a radio
message asking for whoever was responsible to
meet him and take delivery of the parcel. On
arrival, the person who responded was a ramp
supervisor, identified by the Trial Judge with the
letter "X": the pilot gave him the parcel and
obtained a receipt for it. X then apparently went to
an area specially equipped to store valuable objects
and gave the parcel to another Air Canada
employee, identified by the Trial Judge with the
letter "Y", who was responsible for receiving and
storing such objects. The orders were that this
employee was to place the parcel in a vault and
enter receipt of it in a special register. He did
nothing of the sort and since that day the parcel
has not been seen. However, the loss was not
discovered until a month later because all the
documents relating to the shipment, which were in
the possession of Air Canada, also disappeared.
None of these facts is in dispute. They were
established at the hearing by the testimony of the
Air Canada employee responsible for investigating
the circumstances of the loss. Neither employee X
nor employee Y were heard as witnesses.
Employee X was in fact served by the respondent,
but it did not call him. Employee Y could not be
located. He was suspected in 1970 of taking part
in the rash of thefts that occurred at the Dorval
airport, and in 1976, six years after the incident
under consideration, he was sentenced to imprison
ment for participating in another theft at Dorval
with other Air Canada employees.
Considering the cause of the loss of the parcel,
the Trial Judge said [at page 768] he could not say
it had been stolen by employee Y:
It would be pure speculation to conclude that he stole it,
however. He could have been ... careless in his handling of it
... and merely put it down somewhere, intending to enter it on
the register and put it in the locker later. Any employee or
anyone with access to the shed could then have taken it and
employee Y would attempt to cover his negligence by denying
ever having received it.
Nevertheless, he concluded [at pages 768-769]
that the parcel had been stolen by one or more Air
Canada employees:
Counsel for defendant Air Canada suggested that anyone
having access to the sheds, such as employees of other airlines
or even strangers who might be in the Airport, although they
had no right to be, could have taken it but this is an unlikely
possibility in view of the evidence of previous and subsequent
thefts of cargo by Air Canada employees from the cargo sheds
at Dorval Airport, and the unexplained disappearance of cover
ing documents.
Since the investigation at the time did not uncover any
evidence enabling the blame to be attributed to any specific
individual this certainly cannot be done now, but I have no
doubt, as I have already indicated, that the parcel was stolen by
one or more employees of Air Canada having access to it and to
the covering documents which delayed the investigation of the
theft.
Under the Carriage by Air Act,' the carriage of
the lost parcel was subject to the provisions of the
Warsaw Convention, which in Article 22 [as am.
by Schedule III, Art. XI] imposes a limit on the
carrier's liability. The only problem raised by Air
Canada's appeal is as to whether, in the circum
stances, it can take advantage of this limit on
liability. In particular, the question is whether the
damage which the respondent claims compensation
for was caused in the circumstances described in
Article 25 of the Convention, under which
Article 25
The limits of liability specified in Article 22 shall not apply if
it is proved that the damage resulted from an act or omission of
the carrier, his servants or agents, done with intent to cause
damage or recklessly and with knowledge that damage would
probably result; provided that, in the case of such act or
omission of a servant or agent, it is also proved that he was
acting within the scope of his employment.
In answer to this question, the Trial Judge first
expressed the view that the question of whether the
fault of the air carrier or of its employees was
intentional or reckless must, as the French Court
of Cassation has held, be decided objectively
rather than subjectively. He went on to say that, in
any case, as the damage suffered by the respon
dent resulted from a theft committed by the appel
lant's employees, the perpetrators of the theft must
of necessity have had an "intent to cause damage".
Finally, on the question of whether the employees
of the appellant who stole the parcel acted within
the scope of their employment, the Judge conclud
ed as follows [at page 785]:
I therefore conclude that the presumed theft of the parcel in
question by an employee or employees of defendant Air Canada
can be brought within the provisions of Article 25 of the
Convention as having occurred within the scope of their
employment or "dans l'exercice de leurs fonctions", the oppor
tunity having occurred while they were working in the cargo
shed handling cargo of which the valuable parcel in question
would be a part.
The Judge accordingly held that, in the circum
stances, the appellant could not benefit from the
limit on liability.
The appellant made two objections to this judg
ment: that it adopted the argument of the French
Court of Cassation as to how the Court should
1 R.S.C. 1970, c. C-14.
assess whether the carrier's fault was intentional
or reckless, and secondly, that it concluded that
the perpetrators of the theft were the appellant's
employees acting within the scope of their
employment.
In my opinion, it is not necessary to discuss the
appellant's first point as if, as the Judge held, the
parcel was stolen by the appellant's employees, the
latter as thieves must of necessity have had the
intent described in Article 25 of the Convention.
The only problem is thus the one presented by the
appellant's second point: was the Trial Judge cor
rect in finding, first, that the parcel was stolen by
the appellant's employees, and second, that those
employees were acting within the scope of their
employment at the time?
I think it is beyond question that the Trial Judge
was right in saying that the parcel was stolen by
one or more of the appellant's employees. The
difficulty however is with the Judge's finding that
the perpetrators of the theft were acting within the
scope of their employment at the time. If the
Judge did not know the identity of the employees
who took part in the theft, how could he say that
the theft was committed within the scope of their
employment rather than as an incidental part of
their employment?
This difficulty results from the fact that the
Trial Judge considered that on the evidence he was
unable to identify the perpetrator of the theft. In
my view he was in error on this point. Though the
evidence did not suffice to identify the perpetrator
of the theft with absolute certainty it was more
than sufficient to support a conclusion that, in all
probability, the theft was committed by employees
X or Y, while the parcel was in their custody as
employees of the appellant. I know that in saying
this I am contradicting the Trial Judge on a
question of fact. However, I feel I am entitled to
do so for several reasons: first, because it is an
inference that can be drawn from the evidence
rather than weighing the evidence itself; second,
because the gist of the evidence was in fact the
testimony by the appellant's employee who investi
gated the circumstances in which the parcel disap
peared, testimony in which he told the Court the
results of his investigations, so that this Court is in
as good a position as was the Trial Judge to
identify the perpetrators of the theft; finally,
because 1 suspect that the Trial Judge, with his
well-known sense of fairness, did not wish to iden
tify the perpetrators of the theft because there was
still a reasonable doubt as to their guilt.
That being so, the Trial Judge in my opinion
was right to conclude that in the circumstances the
appellant could not benefit from the limit on liabil
ity contained in Article 22 of the Warsaw Conven
tion. I would therefore dismiss Air Canada's
appeal.
There remains the cross-appeal of the respon
dent, which argues that, instead of ordering the
appellant to pay it the sum of $60,400 with inter
est at the legal rate from the date of the judgment,
the Trial Judge should have ordered the appellant
to pay this sum with interest from the date of the
loss to the date of the payment, calculated at the
average preferential bank rate for that period.
A distinction has to be made, as it was made by
the Trial Judge, between interest claimed for the
period preceding the judgment and that claimed
for the following period. Section 40 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] pro
vides that, unless the Court orders otherwise, a
judgment will bear interest at the legal rate from
the date on which it was rendered. The Trial Judge
did not see fit to order that his judgment bear
interest at a rate higher than the legal rate. There
is nothing in the record to indicate that this was
not a proper exercise of the discretion conferred on
him by law. I would therefore affirm his decision
on this point.
The Trial Judge's refusal to award interest on
the amount of the compensation for the period
prior to the judgment presents a problem that is
more difficult to solve.
The respondent's action is based on the Warsaw
Convention, or more precisely, the Carriage by Air
Act, under which the Convention is applicable in
Canada. That is why the Federal Court has juris
diction over this case. Accordingly, reference must
be made to the Convention to determine the com
pensation to which the respondent is entitled.
As in a case such as this the limits on liability
mentioned in Article 22 do not apply, the only
provisions of the Convention which are applicable
are paragraphs 18(1) and 23(1):
Article 18
(1) The carrier is liable for damage sustained in the event of
the destruction or loss of, or of damage to, any registered
baggage or any cargo, if the occurrence which caused the
damage so sustained took place during the carriage by air.
Article 23
(1) Any provision tending to relieve the carrier of liability or
to fix a lower limit than that which is laid down in this
Convention shall be null and void, but the nullity of any such
provision does not involve the nullity of the whole contract,
which shall remain subject to the provisions of this Convention.
Under paragraph 18(1), therefore, the carrier is
"liable for damage sustained in the event of .. .
loss of ... cargo". The question here is as to the
consequences of this liability. The answer to this
question has to be found in the Convention, since
the rules we usually apply in other areas are not
applicable here.
Apart from exceptional cases, the Convention
limits the carrier's liability significantly. In view of
the generality of the language of paragraph 18(1),
I think one has to conclude that in the rare cases in
which such liability is not limited, the authors of
the Convention intended the victim to be compen
sated in full for the damage sustained. That means
that he is to receive compensation which will place
him in the situation he would have been in if the
loss had not occurred: that is, in a case like the one
at bar in which the goods lost consisted of a sum of
money, the victim must receive in addition to the
amount lost the interest he would undoubtedly
have earned if the loss had not taken place. I
therefore consider that the Convention gave the
respondent the right to claim interest on the sum
of money lost from the date on which delivery
would ordinarily have been made to the date of the
judgment. That being so, contrary to what the
Trial Judge held, the provisions of the contract of
carriage could not divest him of this right. Under
paragraph 23 (1) of the Convention, such provi
sions are null and void.
In support of its argument that the Convention
does not allow interest to be awarded for a period
prior to the judgment, the appellant cited twc
judgments, one British and the other American)
In these two cases it was held that, where the
limits on liability stated in Article 22 of the Con
vention apply, this Article prohibits the courts
from awarding interest for a period prior to the
judgment in addition to the amount of the limit. In
my opinion these judgments do not support the
appellant's argument. The limits imposed in
Article 22 are limits imposed on the liability creat
ed by Article 18. If, therefore, Article 22 prohibits
the awarding of interest for a period prior to the
judgment, this must of necessity be because
Article 18 authorizes such interest to be awarded
in cases where Article 22 does not apply.
The respondent will accordingly be entitled to
interest to compensate it for the loss of income
sustained by it prior to the judgment as a result of
loss of the parcel. At what rate should such inter
est be calculated? As there is no evidence to
establish the true quantum of the income lost by
the respondent, I would calculate this interest at
the legal rate.
I would accordingly dismiss the appeal with
costs, allow the cross-appeal with costs and vary
the judgment a quo by inserting, immediately
after the words "with interest" in line 2, the
following parenthesis:
[at the legal rate from November 6, 1970].
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: I share the view expressed by
Pratte J. on both the principal appeal and the
cross-appeal. As regards the latter and the refusal
of the Trial Judge to award interest on the amount
of the compensation, I have nothing to add; but on
the principal appeal and the application to the
facts of the case at bar of the provisions of Article
25 of the Warsaw Convention, as contained in the
Carriage by Air Act, R.S.C. 1970, c. C-14, I
2 Swiss Bank Corporation and Others v. Brink's-Mat Ltd.
and Others, [I986] 2 Lloyd's Rep. 99 (Q.B.D.); O'Rourke v.
Eastern Air Lines, Inc., 18 Avi 17,763 (2d Cir. 1984).
See, contra, Domangue v. Eastern Air Lines, Inc., 18 Avi
17,533 (5th Cir. 1984).
should briefly like to set forth a more personal
opinion.
I have no hesitation in saying with my brother
Judge that the Trial Judge had before him what he
needed to conclude that, in all probability, the
theft was committed by employees X or Y, or at
least with their connivance and at a time when
they had custody of the parcel. However, I persist
in thinking nevertheless that, in order to apply
Article 25 of the Warsaw Convention as amended
by the Hague Protocol (hereinafter "the Conven
tion") and conclude that the appellant had lost the
benefit of the limit on liability it was attempting to
assert under Article 23 of the said Convention, the
Judge did not need to say any more than he did,
namely that the parcel had been stolen and the
theft committed by an employee or group of
employees of the appellant. It seems to me that
once these two findings of fact were made, it
became apparent that the two conditions for
application of Article 25 of the Convention had
been met.'
I do not think this can be seriously disputed as
to the first condition, namely the requirement of
evidence that the act was done "with intent to
cause damage" or "with knowledge that damage
would probably result". The Trial Judge did refer
in the course of his analysis to the controversy
which has arisen about whether the question of
3 For ease of reference I will again reproduce Article 25 of
the Convention, in both its French and English versions:
Les limites de responsabilité prévues à l'article 22 ne
s'appliquent pas s'il est prouvé que le dommage résulte d'un
acte ou d'une omission du transporteur ou de ses préposés
fait, soit avec l'intention de provoquer un dommage, soit
témérairement et avec conscience qu'un dommage en résul-
tera probablement, pour autant que, dans le cas d'un acte ou
d'une omission de préposés, la preuve soit également appor-
tée que ceux-ci ont agi dans l'exercice de leurs fonctions.
The limits of liability specified in Article 22 shall not
apply if it is proved that the damage resulted from an act or
omission of the carrier, his servants or agents, done with
intent to cause damage or recklessly and with knowledge that
damage would probably result; provided that, in the case of
such act or omission of a servant or agent, it is also proved
that he was acting within the scope of his employment.
intent mentioned in the provision is to be assessed
"subjectively", that is attested and proven as exist
ing in the mind of the perpetrator of the wrongful
act himself, which is the opinion of nearly all
commentators and most bodies of national case
law, or "objectively", that is by inference, refer
ring to the standard of a prudent and reasonable
man, as the French Court of Cassation held (see
on the controversy the excellent article by Bin
Cheng, "Wilful Misconduct: From Warsaw to The
Hague and from Brussels to Paris", in the Annals
of Air and Space Law, vol. II, p. 55, Montréal,
McGill University, 1977). In actual fact, however,
this controversy can have no bearing on a case of
theft, as the thief's state of mind presents no
difficulty. A theft is necessarily committed with
the intent of causing damage, as by definition the
thief is attempting to permanently deprive the
owner of his thing by converting it to his own use.
I think that, in the circumstances of the case at
bar, taking into account certain facts already
established, the same will ultimately have to be
said for the second condition, requiring proof that
the employee who committed the theft, or at least
one of the employees who participated in commis
sion of the theft, must have been acting within the
scope of his employment. Here, of course, the
conclusion does not necessarily follow. It all
depends, first, on the meaning given to the phrase
"dans l'exercice de leurs fonctions" ("within the
scope of his employment" in the English version).
The conclusion is clearly not valid if the condition
can only be met when the dishonest employee is
the person to whom custody of the thing was given,
as Lord Denning, M.R. held in his reasons in the
decision of the British Court of Appeal in Rusten-
burg Platinum Mines Ltd., Johnson Matthey
(Pty.) Ltd. and Matthey Bishop Inc. v. South
African Airways and Pan American World Air
ways Inc., [ 1979] 1 Lloyd's Rep. 19, at page 24,
and even less so if the requirement is for evidence
that the dishonest employee committed his crime
during his working hours, as the French Court of
Cassation held in Cfe Saint Paul Fire and Marine
c. C'e Air-France, [1986] R.F.D.A. 428. With
respect, however, I would say that such a narrow,
strict meaning cannot be given to the phrase with-
out running the risk of removing all practical
significance from the exception to the limit on
liability which is the purpose of Article 25 of the
Convention, an exception which I regard as funda
mental in that it determines the extent to which, in
order to encourage the development of the trans
portation industry, the user public is made to
assume the risk of recklessness, error, negligence
or malfeasance by the carrier. In my view, the test
to be applied to determine in a case of theft
whether an employee was within the scope of his
employment is the one which some courts have
adopted and which consists in seeing whether
because of his duties the employee had free access
to the thing stolen (see inter alia the decision of
the Hague District Court in Société Financière
Mirelis v. Koninklyke Luchtvaart Maatscheppi
N.V., 1968). I admit that everything also hinges on
the possibility of showing that the employee was
within the scope of his employment even when the
precise identity of that employee is unknown but I
think it is hard to dispute that such a possibility
exists. The evidence of a fact may be presented
indirectly and by inference, from an analysis of the
circumstances and a study of the possibilities, pro
vided that a sufficient degree of probability can be
established as a result. In my view, taking into
consideration that no breaking was established in
the area where the parcel was located, that no
entry was made in the register of valuable objects
and that no trace of documentation could be
found, the Trial Judge was justified in thinking
that there was sufficiently persuasive evidence that
an employee with free access to the parcel and the
documentation establishing its movements had
committed the theft or at least participated in it.
I am accordingly entirely of the opinion of
Pratte J. that the principal appeal should be dis
missed and I would dispose of the cross-appeal as
he suggests.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.