About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 89
|
|
Charter Hi (Pty) Ltd and Others v Minister of Transport (155/10) [2011] ZASCA 89 (30 May 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 155/10
In
the matter between:
CHARTER HI (PTY) LTD
….....................................................................
First
Appellant
HAW AND INGLIS (PTY)
LTD
….......................................................
Second
Appellant
C90 PARTNERSHIP
…..........................................................................
Third
Appellant
and
THE
MINISTER OF TRANSPORT
…...........................................................
Respondent
Neutral citation:
Charter Hi v Minister of Transport
(155/10)
[2011] ZASCA 89
(30 May 2011)
Coram:
HARMS DP,
NUGENT, MAYA and MALAN JJA and PLASKET AJA
Heard:
9 May 2011
Delivered:
30 May
2010
Summary:
Aircraft accident – whether accident caused by negligence of
flight examiner during course of competency test of pilot for
instrument rating – whether Minister of Transport vicariously
liable.
_______________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng High Court (Pretoria) (Sapire AJ sitting as court of
first instance):
The appeal is dismissed
with costs, including the costs of two counsel.
________________________________________________________________
JUDGMENT
_______________________________________________________________
NUGENT JA and PLASKET AJA
(Harms DP, Maya and Malan JJA concurring)
[1] This appeal arises
from an aircraft accident that occurred north of Cape Town on 13
December 1996. The aircraft was a twin-engine
turbo-prop Beechcraft
King Air C90 in which the appellants shared a financial interest. It
was being piloted by Mr Jonathan Grant
at the time. Seated alongside
him was Mr Ray Grinstead, an official flight examiner –
sometimes referred to in the evidence
as a designated official flight
examiner or DOFE – appointed for that purpose by the
Commissioner for Civil Aviation.
1
Mr Grant was being
examined so as to be certified competent for instrument flying. In
the course of the flight the aircraft tumbled
to the ground from an
altitude of about 2 500 feet above ground level and was destroyed. Mr
Grant, Mr Grinstead, and a passenger
who was also aboard the
aircraft, were killed. The appellants sued the state –
nominally represented by the Minister of Transport
– in the
North Gauteng High Court (Pretoria) for the loss sustained in
consequence of the destruction of the aircraft.
[2] The appellants
alleged that the accident was caused by the negligence of Mr
Grinstead, for which the state was alleged to be
vicariously liable.
The claim was dismissed by Sapire AJ and the appellants now appeal
with his leave. The issues that arise in
this appeal are whether the
appellants proved that Mr Grinstead had acted negligently and, if so,
whether his negligence had caused
the accident; and whether the
Minister was vicariously liable for Mr Grinstead’s conduct.
[3] Considerable evidence
was placed before the trial court. The principal witnesses were three
experts who are all highly qualified
and experienced aviators. Ms
Lilith Seals, a former airline pilot and official flight examiner,
and Dr Michael Hynes, a vastly
experienced professional pilot and
official flight examiner from the United States of America, were
called for the appellants.
Captain Selwyn Levin, a now retired
airline pilot, former chief training pilot for South African Airways,
a champion aerobatic
pilot and an official flight examiner, was
called for the Minister. Much of their evidence is taken up with
explaining aviation
principles and the events that led up to the
accident. To the extent that there are any disputes amongst them they
are narrow.
Aviation principles
and terminology
[4] Some explanation of
basic aviation principles and terminology is necessary to understand
the evidence. The explanation that
follows does not purport to be
comprehensive. It is drawn from various parts of the evidence, either
directly or by implication,
and from the aircraft's operating manual.
[5] An aircraft is
capable of moving on three axes: it pitches (nose up and nose down)
around its lateral axis, it rolls around
its longitudinal axis, and
it rotates or ‘yaws’ (nose left and right) horizontally
around its vertical axis. We are
concerned primarily with ‘yawing’
in that horizontal plane.
[6] Pitching and rolling
is controlled from the control column. Yawing is controlled by the
rudder. The rudder is a moveable surface
that makes up the trailing
part of the vertical tail-plane. It is connected to pedals that are
operated by the pilot’s feet.
Depressing the left pedal has the
effect of yawing the nose in a horizontal plane to the left (through
forces that are exerted
by the airflow over the rudder surface).
Depressing the right pedal has the effect of yawing the nose on a
horizontal plane to
the right.
[7] An aircraft is kept
aloft by maintaining a laminar flow of air over the wings. The design
of the wing is such that the airflow
‘lifts’ the wings
(and hence the aircraft). Moveable surfaces on the trailing portion
of the wings – known as
‘flaps’ – can be
extended to provide a greater surface area and thereby impart greater
lift at slower speeds.
[8] Friction of the
airflow over the various parts of the aircraft impedes its progress
through the air. In normal flight there
is friction over the wings
and the fuselage – the main body of the aircraft. The friction
is increased when the flaps are
extended. It is also increased
substantially when the undercarriage is lowered. The impediment that
is created by friction on the
aircraft is known as ‘drag’.
Increasing the drag will slow the aircraft and the fall of speed
might be compensated
for by increasing the thrust.
[9] The aircraft is
propelled through the air by the rotation of the propeller. In a
‘turbo-prop’ aircraft the propeller
(in this case a
propeller with four blades) is driven by a turbine engine. The thrust
that is generated by the propeller is controlled
by a lever operated
by the pilot (the throttle) that accelerates or decelerates the
turbine engine.
[10] The angle of the
propeller blades relative to the air (the pitch of the blades) is
capable of being varied as the occasion
requires. If the power from
the engine is withdrawn – whether through failure of the engine
or by throttling the engine back
to idling speed – the
propeller will continue to be rotated by the airflow but will produce
no thrust. On the contrary, it
will now impede the aircraft because
the rotating propeller will present itself to the oncoming airflow as
a semi-solid disk. (In
the evidence the propeller is said to be
‘wind-milling’ or ‘disking’.) That impediment
can be reduced substantially
by altering the angle of the propeller
blades so as to align them with the oncoming airflow. That is known
as ‘feathering’
the propeller. Each propeller can be
feathered independently. The blades are feathered by the pilot moving
a lever.
[11] Symmetrical flight
of a twin-engine aircraft with an engine mounted on each wing is
maintained by keeping the thrust from both
propellers in equilibrium.
If the power from one engine is withdrawn that symmetry will be lost.
Thrust from only one side of the
aircraft will yaw the nose of the
aircraft in the direction of the dead engine. The yaw in that
direction is countered by depressing
the rudder pedal on the opposite
side (the side of the live engine) which yaws the nose in the
direction of the live engine.
[12] If the laminar
airflow over the wings is disrupted the ‘lift’ on the
wings will be lost. The wings are then said
to be ‘stalled’.
Most commonly the wings will stall if the aircraft decelerates below
a critical speed (the ‘stalling
speed’) though the wings
are capable of being forced into a stall at higher speeds. When the
wings of the aircraft stall
and the lift is lost the nose of the
aircraft will drop and the aircraft will commence an uncontrolled
descent. There is a standard
procedure for recovering from a stall
but altitude will have been lost by the time recovery occurs.
[13] When an aircraft
banks in a turn the outer wing will be moving slightly faster through
the air than the inner wing. The same
applies when the aircraft yaws.
If the speed of the aircraft decreases towards stalling speed while
it is in that configuration
then the inner wing will stall
momentarily before the outer wing stalls. The result will be that the
inner wing will be the first
to fall and the aircraft will start to
invert. Once the outer wing stalls the momentum of the incipient
inversion will set the
aircraft rotating as it falls towards the
ground. The aircraft is then said to have entered a spin.
[14] To recover from a
spin the process needs to be reversed. Flight will be restored by
restoring the laminar airflow over the
wings, as if recovering from a
stall, and the rudder will be applied to reverse the rotation. The
aircraft’s operating manual
describes the standard spin
recovery procedure as follows:
‘
Immediately
move the control column full forward, apply full rudder opposite to
the direction of the spin and reduce power on both
engines to idle.
These three actions should be done as near simultaneously as
possible; then continue to hold this control position
until rotation
stops and then neutralize all controls and perform a smooth pullout.
Ailerons should be neutral during recovery.’
By the time recovery
occurs even more altitude will have been lost than would have been
lost in a conventional stall.
[15] A pilot who is
flying without a visible horizon will have grave difficulty
recovering from a stall and a spin. The aircraft’s
operating
manual describes his or her position as follows:
‘
Remember
that if an airplane flown under instrument conditions is permitted to
stall or enter a spin, the pilot, without reference
to the horizon,
is certain to become disoriented. He may be unable to recognize a
stall, spin entry or the spin condition and he
may be unable even to
determine even the direction of the rotation’.
[16] A pilot is
prohibited from flying in conditions of restricted visibility unless
he or she is certified to do so.
2
Certification to fly in
those conditions is called an ‘instrument rating’. To
qualify for an instrument rating a pilot
must demonstrate that he or
she is capable of flying the aircraft with reference to its
instruments alone. Training for an instrument
rating requires the
lack of visibility to be simulated. That is done by the pilot donning
what is called a ‘hood’.
A hood is a device that is worn
on the head that restricts the pilot’s vision to the
instruments in the aircraft. Flying
in that condition is commonly
said to be ‘flying under the hood’.
[17] A pilot who is being
examined for an instrument rating will fly the aircraft ‘under
the hood’ with the examiner
seated alongside him or her. The
examiner will then direct the pilot to perform various manoeuvres.
Invariably the examiner, without
forewarning the pilot, will also
simulate abnormal conditions that might be encountered. One such
abnormal condition when flying
a twin-engine aircraft is the failure
of one engine. Depending upon the type of aircraft there are various
ways in which that can
be simulated. Commonly in a turbo-prop
aircraft the throttle will be reduced to idling speed. The throttle
levers of the two engines
are mounted alongside one another. The
examiner will shield the levers from the view of the pilot and then
pull one lever back
to idling speed.
[18] The standard drill
when an engine has failed appears from various parts of the evidence
of the experts but is most conveniently
described by Dr Hynes. The
failure will cause the nose to yaw towards the ‘dead’
engine and the first step is to counter
the yaw with the rudder so as
to maintain symmetrical flight. At the same time the throttle levers
of both engines will be advanced
to produce maximum power on the live
engine (whichever engine that might be). The failed engine must then
be identified with certainty.
The relative pressure that is required
to be exerted on the rudder pedals so as to maintain symmetrical
flight should tell the
pilot which engine has failed but other
techniques are used to confirm that. Once the pilot is sure which
engine has failed he
will feather the propeller on that engine to
eliminate the considerable drag that is being produced by the
‘disking’
of that propeller.
[19] Each propeller has
its own ‘feathering’ lever. They are located alongside
one another in the aircraft and can be
moved separately or
simultaneously with one hand. If the propeller on the live engine is
inadvertently feathered the thrust from
that propeller will be lost
although that engine is producing power. It will then be as if both
engines have failed and the speed
of the aircraft will rapidly
decline.
The accident
[20] Two pilots who had
been examined by Mr Grinstead for instrument ratings shortly before
the accident occurred, described the
procedure that he had followed.
It is accepted by both parties that he probably followed much the
same procedure in this case.
[21] After taking off
from Cape Town airport Mr Grant would have donned the hood and he
would have performed various manoeuvres
on the directions of
Grinstead while they climbed towards the general flying area. In the
general flying area they would have intercepted
a notional line
indicated by a navigational beacon on Robben Island (the 052 radial).
They would then have commenced flying a standard
‘holding
pattern’ relative to that notional line and a fixed point along
that line (a point 10 nautical miles away
from the beacon along that
notional line).
[22] A holding pattern is
the pattern that an aircraft will fly while holding its position in
anticipation of landing. The pattern
takes the shape of a horse
racing track. The aircraft will fly for a distance towards the fixed
point (the inbound leg) and then
execute a 180 degree turn. It will
then fly for a distance away from the fixed point (the outbound leg)
and again turn 180 degrees
back onto the inbound leg. And so the
pattern of flying will continue. In this case it was a right-hand
pattern, which means that
each 180 degree turn would be to the right.
[23] A radar track of the
aircraft showed that it was indeed flying in that pattern, at an
altitude of 2 500 feet above the ground,
and at a speed of about 148
knots, shortly before the aircraft commenced its uncontrolled descent
to the ground. The wreckage revealed
that the undercarriage of the
aircraft had been lowered and that the flaps had been extended 15
degrees.
[24] The weight of the
evidence is to the effect that Mr Grinstead simulated the failure of
one engine while the aircraft was executing
one of the turns and
while its undercarriage was lowered and its flaps extended 15
degrees. That is what an examiner could be expected
to do and it is
what Grinstead had done on the previous two occasions. It is also
consistent with the evidence of an observer on
the ground, Mr Koos
Moses, who heard the sound of the engines changing while the aircraft
was executing a turn, and observed the
aircraft starting to tumble to
the ground immediately thereafter.
[25] It is common cause
that it was shortly after the failure had been simulated that the
aircraft commenced an uncontrolled spin
towards the ground. The
aircraft shattered upon impact and was engulfed by a fireball from
the ignition of its fuel.
[26] The accident was
investigated by Captain Roy Downes, an experienced aviator and
accident investigator. None of his factual
findings are in dispute.
[27] It appears from his
report that Mr Grant had about 800 hours flying experience, of which
150 hours had been flown on the Beechcraft
King Air C90. Mr Grant had
first been rated for instrument flying on single-engine aircraft on
16 March 1994 and he obtained a
commercial pilot’s licence on 7
June 1994. On 26 April 1995 he passed his first multi-engine
instrument rating while flying
a Beechcraft Baron aircraft. According
to the evidence the validity of an instrument rating expires after
six months. Mr Grant
had again been issued with an instrument rating
on 11 January 1996. The occasion with which we are concerned was the
first occasion
that he had been examined for an instrument rating on
a Beechcraft King Air C90. From that history, it is fair to say that
Mr Grant’s
experience of instrument flying, and in particular
on the aircraft type in question, was relatively limited.
[28] The vertical speed
indicator found in the wreckage showed that immediately before the
aircraft struck the ground it was descending
at a rate of 2 650 feet
per minute. Allowing for acceleration of the descent after it had
commenced, the aircraft would thus have
struck the ground some 60
seconds or so after it started to fall. There were indications from
the wreckage that at the time of
impact the left propeller had been
feathered, that the left engine was running but at low speed and
torque, and that the right
engine had been producing power. The
physical evidence also established conclusively that the aircraft was
rotating clockwise immediately
before it struck the ground. Captain
Downes reached the following conclusion:
‘
On
the balance of probabilities, the evidence suggests that during
simulated asymmetric flight, the speed was allowed to decay below
the
Vmca.
3
This
resulted in a critical speed yaw followed by a spin from a height
that precluded any chance of recovery.’
Negligence and
causation
[29] It is not every act
or omission that causes harm that is actionable. This point was made
by Harms JA in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority
4
when he said:
‘
The
first principle of the law of delict, which is so easily forgotten
and hardly appears in any local text on the subject, is,
as the Dutch
author
Asser
points
out, that everyone has to bear the loss he or she suffers. The
Afrikaans aphorism is that “skade rus waar dit val”.
Aquilian liability provides for an exception to the rule and, in
order to be liable for the loss of someone else, the act or omission
of the defendant must have been wrongful and negligent and have
caused the loss.’
In this matter, the
element of wrongfulness is not in issue but only those of negligence
and causation.
[30] At first the
appellants alleged that the Department of Transport had been
negligent because its instructions to flight examiners
were vague and
ambiguous. This allegation was abandoned. The focus of the
appellants’ case was on Mr Grinstead’s actions.
[31] We accept that, as
Mr Grinstead was the official flight examiner and Mr Grant the
examinee, Mr Grinstead was in overall command
of the flight and was
responsible for its safety. This is so because Mr Grant was being
tested for his competence and Mr Grinstead
decided how and where Mr
Grant should fly, as well as what he should do during the course of
the test. Mr Grinstead, not being
‘under the hood’, was
able to see out of the aircraft and, being able to see the horizon
and the ground, was less susceptible
to disorientation than Mr Grant.
This finding that Mr Grinstead was in overall command of the flight
accords with what was held
in the American cases, dealing with
broadly similar circumstances, to which we were referred by Mr Aber,
who appeared for the appellants.
5
[32] We turn now to the
standard of diligence against which Mr Grinstead’s conduct as
official flight examiner must be judged.
It was argued by Mr Aber
that as Mr Grinstead was in command of the flight and of its safety,
if anything went wrong he was responsible.
In effect then, his
argument was that, in the absence of mechanical failure or similar
occurrences over which Mr Grinstead had
no control, he was strictly
liable. This submission is at odds with the law in general and its
application to aviation in particular.
In cases in which specialized
skill is involved, the general standard of the reasonable person is
adjusted upwards to that of the
reasonable expert in the field
involved: the person possessed of (or professing to be possessed of)
specialized skills is required
to display not the ‘highest
possible degree of professional skill’ but ‘the general
level of skill and diligence
possessed and exercised at the time by
the members of the branch of the profession to which the practitioner
belongs’.
6
[33] In the field of
aviation, this same, stricter, standard has been applied to the
reasonable pilot
7
and the reasonable
aerodrome operator,
8
as the statement in
Van
Wyk v Lewis
9
referred to above ‘is
generally accepted as a correct statement of our law when assessing
conduct which requires special expertise’.
10
In this case therefore,
the standard of diligence that applied to Mr Grinstead was that of
the reasonable official flying examiner
placed in the ‘exact
position’ in which he found himself.
11
[34] The appellants’
case on negligence is twofold. The first is founded on a submission
that a reasonable official flight
examiner in the position of Mr
Grinstead, particularly having jeopardised the flight by simulating
the engine failure, could and
would have intervened to ensure that
the simulated failure did not progress to endangering the aircraft.
The fact alone that the
aircraft crashed, so the argument goes,
establishes that Mr Grinstead negligently failed to do so. This was,
Mr Aber argued, a
case of
res
ipsa loquitur
.
[35] The
res
ipsa loquitur
argument
can be disposed of quickly. In much the same way as an inference of
negligence cannot be drawn from the simple fact that
a collision
occurred between two cars on an open road in fair weather,
12
so too, it seems to us,
no inference of negligence can be drawn from the mere fact that,
after Mr Grinstead simulated the engine
failure, the aircraft went
into a spin and crashed: the inference of negligence that is sought
to be drawn is not inevitable and
is, in any event, negatived by the
evidence of the experts who were of the opinion that anything could
have happened in the cockpit
and that they did not have enough facts
at their disposal to speculate on what, if anything, had prevented Mr
Grinstead from taking
over control of the aircraft and saving the
situation. The mere fact of the crash in these circumstances does not
tell its own
story.
[36] The response on
behalf of the Minister to the allegation of negligence on the part of
Mr Grinstead is that while an experienced
official flight examiner
might ordinarily be capable of having intervened to avoid the crash,
the evidence is insufficient to find
with any degree of certainty
that matters indeed took their ordinary course. In support of that
submission Mr Puckrin, who appeared
for the Minister, relied upon
what Captain Levin said was a plausible but yet catastrophic
possibility of what had occurred.
[37] It is not necessary
to examine that possibility more than briefly. It starts from the
assumption that the failure was simulated
on the left engine.
Ordinarily the nose would then have yawed to the left and the
tendency would have been for the aircraft to
invert and then rotate
anticlockwise. Explaining why the aircraft had in fact rotated
clockwise Captain Levin said that that indicates
that the pilot
attempted to correct the yaw by violent application of the rudder,
causing the aircraft to ‘flick’ over
to a clockwise
inversion, and causing it to stall and enter a spin. The suggestion
was that a violent response of that kind could
not have been expected
or averted by Mr Grinstead.
[38] Ms Seals and Dr
Hynes were sceptical of that explanation and said that they had never
heard of it occurring. Captain Levin,
who is a champion aerobatic
pilot, could no doubt execute such a manoeuvre but it seems to us to
be improbable that it occurred,
not least of all because there is
little basis for assuming that the failure was simulated on the left
engine. The only ground
upon which that assumption was made was that,
from an inspection of the wreckage, it appeared that the left
propeller had been
feathered and that the left engine was producing
little power at the time of impact. (It has been pointed out above
that the ordinary
procedure upon failure of an engine is to feather
the propeller on the failed engine to reduce drag caused by disking.)
[39] It is far more
probable that the right engine was failed. It is to be expected that
the inner engine in a turn (the right engine
in this case) would be
failed because that, according to Dr Hynes, is the more critical
engine to fail in a turn, and thus the
most testing for the examinee.
That was also the engine that was chosen for simulating failure on
the two previous occasions. It
would also more easily explain the
clockwise rotation of the spin, without the unusual circumstances
suggested by Captain Levin.
[40] If that was so, then
the fact that the left propeller had been feathered is explicable on
the basis that Mr Grant probably
feathered the wrong propeller once
the engine failure had been simulated, either because he selected the
wrong lever in his haste,
or perhaps because he wrongly identified
which engine had been failed. The fact that the left engine was
producing little power
on impact is not significant. It can be
expected that the engines would have been throttled back in the
course of attempting to
recover from the spin.
[41] If the wrong
propeller had been feathered then the aircraft would have been left
with no power at all. An aircraft that is
banking to the right,
carrying considerable additional drag from the lowered undercarriage
and extended flaps, and with the additional
drag of the disking right
propeller, would rapidly lose speed if power were to be lost on the
live engine. It would be a recipe
for the wings to stall and the
aircraft to enter a clockwise spin.
[42] We are not called
upon to decide what indeed occurred, nor would we be justified in
doing so on the scant evidence. But what
has been described above is
a real possibility, and Captain Levin acknowledged that it was the
more plausible explanation for the
accident. For present purposes we
will assume in favour of the appellants that that is indeed what
occurred. That assumption favours
the appellants because the error
was one that an experienced official flight examiner could expect to
occur and thus could anticipate.
Indeed, all the experts had
experienced that error being made.
[43] Basing herself on
that assumption Ms Seals said that the examiner should have
intervened to stop the pilot feathering the wrong
propeller. Captain
Levin responded that he had had an examinee ‘throttle back and
feather a perfectly good engine before
I could even open my mouth’.
In our view, however, the evidence of Dr Hynes places the enquiry in
its proper perspective.
[44] He pointed out that
the critical question for an examiner is not whether the pilot makes
an error – error by pilots is
to be expected – but
instead whether the pilot has the capacity to recognize and correct
an error. He said that it was not
uncommon for an examinee to feather
the incorrect propeller and he does not fail an examinee for that
reason alone. The fact that
pilots can be expected at times to err
necessarily means that the examiner must not intervene prematurely
but must allow sufficient
time to evaluate the pilot’s response
to the mistake. As he expressed it:
‘
So
here he has feathered the wrong engine and do I count one, two,
three, four, five, to see is the guy going to say, “oh,
my God,
I have feathered the wrong one”, and he undoes what he did and
the flight resumes normally; we certainly would talk
about that at
the end of the check ride, but that would not necessarily be a fail
for the check ride right there. Now if the [examinee]
feathers the
wrong engine and then just sits there and does not react any further,
then the check ride is over… . [You]
sit here and you watch
and you say to yourself, what is this guy going to do next, and that
is one of the issues here is that at
what point must the examiner say
this has gone far enough … .’
[45] The law does not
call for perfection – not even on the part of official flight
examiners. What it calls for is reasonable
conduct. As it has been
famously said: ‘The concept of the [reasonable person] is not
that of a timorous faint-heart always
in trepidation lest he or
others suffer some injury; on the contrary, he ventures out into the
world, engages in affairs and takes
reasonable chances’.
13
Aviation examining is
clearly not for the faint-hearted: it calls for the exercise of fine
judgment. The examination would fail
in its purpose if the examiner
baulked immediately when an error was made, but to allow the error to
continue for too long, on
the other hand, might cost his or her life
and the lives of others. What separates the one from the other in a
case of the present
kind is a period of time that can be counted in
seconds.
[46] On the best
construction of events for the appellants, Mr Grinstead might on this
occasion have erred in his judgment but that
does not amount to
negligence.
14
Added to that is the
complete absence of information on how the pilot himself might have
reacted to error in the moments after it
had been made. A pilot
without a visible horizon is likely to become disoriented if the
aircraft stalls and even more so if it
enters a spin. It is quite
possible that Mr Grant compounded his error immediately after it was
made and thereby prevented or inhibited
Mr Grinstead from correcting
the situation. As Captain Downes put it, one is entering the realm of
pure speculation. The appellants
bear the onus of establishing that
Mr Grinstead negligently failed to intervene and we do not think that
onus was discharged.
[47] The appellants have
a second string to their bow. While in reality an engine might fail
at any time in the course of a flight
it would be foolish to simulate
the condition without sufficient altitude, and more, to allow for
safe recovery. Numerous warnings
to that effect – if they are
needed – are contained in the operating manual of the aircraft
under the heading
‘
STALLS,
SPINS, SLOW FLIGHT, AIR MINIMUM CONTROL SPEED (Vmca), AND INTENTIONAL
ONE-ENGINE-INOPERATIVE SPEED (Vsse) FOR MULTI–ENGINE
AIRPLANES’
.
Amongst other things the manual stipulates that ‘[i]n addition
to the foregoing mandatory procedures’, a pilot should
always
‘[c]onduct any manoeuvres which could possibly result in a spin
at altitudes in excess of five thousand (5 000) feet
above ground
level in clear air only’.
[48] It was submitted on
behalf of the appellants that the manoeuvre in this case fell into
that category and it was negligent for
it to have been performed at
less than 5 000 feet above ground level. (It was, in fact, performed
at 2 500 feet above ground level).
There was considerable debate in
the court below, in particular, as to whether that requirement was
indeed applicable in this case
but it is not necessary to enquire
into that question. We accept for present purposes the submission on
behalf of the appellants
that it was indeed negligent for Mr
Grinstead to have directed the manoeuvre to be performed at less than
5 000 feet. It remains
for the appellants to show that but for this
negligent act the damage would not have occurred.
[49] In
International
Shipping Co (Pty) Ltd v Bentley
15
Corbett CJ, in dealing
with the issue of whether wrongful conduct was the factual cause of
loss, held:
‘
The
enquiry as to factual causation is generally conducted by applying
the so-called “but-for” test, which is designed
to
determine whether a postulated cause can be identified as a
causa
sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff's
loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff's
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa
sine qua non
of
the loss suffered, then no legal liability can arise.’
In keeping with the onus
in civil matters, a plaintiff ‘is not required to establish the
causal link with certainty, but only
to establish that the wrongful
conduct was probably a cause of the loss, which calls for a sensible
retrospective analysis of what
would probably have occurred, based
upon the evidence and what can be expected to occur in the ordinary
course of human affairs
rather than an exercise in metaphysics’.
16
[50] On the argument
advanced for the appellants there could have been no cause for
complaint if the simulated engine failure had
been initiated at 5 000
feet. Thus the question is whether the evidence shows that the
aircraft would probably not have crashed
had a further 2 500 feet
been available for recovery. This issue was not canvassed at all in
the evidence and consequently we do
not have the benefit of the
opinions of the expert witnesses.
[51] What is clear is
that after falling for 2 500 feet the aircraft had not yet come near
to recovery, because it was still rotating
upon impact. There is
simply no basis for finding that it would probably have recovered had
it had a further 2 500 feet to fall,
more particularly because one is
left to speculate as to what was occurring from the time the fall
commenced.
[52] Even if there was
negligence on the part of Mr Grinstead, the appellants bore the onus
of establishing that it was the cause
of the accident. The onus in
that respect has also not been discharged and the claim correctly
failed.
Vicarious Liability
[53] It was alleged by
the appellants that the Minister was vicariously liable for Mr
Grinstead’s alleged negligent conduct.
In order to deal with
this argument, it is necessary, in the first instance, to consider
the nature of the relationship between
Mr Grinstead and the
Department of Transport. Evidence of this was given by Mr Renier van
Zyl, an employee of the Civil Aviation
Authority.
[54] His evidence was
that, prior to the 1990s, flight examiners had generally speaking
been employees of the Department of Transport.
As a result of the
rapid growth of the aviation industry, the Department found that it
did not have the resources to employ sufficient
numbers of flight
examiners. It opted for a system that is used elsewhere in the world:
the Department designated a number of pilots
with the necessary
qualifications and experience to act as official flight examiners.
They were not employees of the Department
and were not paid by the
Department. A list of their names was published by the Department
after they had been designated as official
flight examiners. An
examinee was free to choose any flight examiner from the list, would
make the necessary arrangements with
him or her for an examination
and would pay him or her.
[55] The Department would
accept the certification of the flight examiner as to the competence
of the pilot who was tested and would,
on the strength of the
certificate, issue the appropriate licence, rating or renewal without
itself assessing the competence of
the examinee. Indeed, it would
only become aware that a particular examination had taken place when
it received the flight examiner’s
certificate. It simply
processed the certificate administratively, issuing a successful
examinee with the appropriate licence,
rating or renewal.
[56] Persons designated
as flight examiners were required to have an airline transport pilot
licence, have a grade 1 instructor’s
rating and have extensive
flying experience. The quality of the corps of flight examiners was
maintained by the fact that they
all, as a matter of course, had to
undergo renewal tests every six months for their instrument ratings
and every year for their
airline transport pilot licences. It also
appears from the document designating Mr Grinstead that the
Commissioner for Civil Aviation
claimed the power to ‘suspend
or cancel this approval at any time, should it become necessary in
the interest of public safety’,
to insist that he conduct a
flight test ‘with an inspector of flying from the Civil
Aviation Authority’ and to ‘monitor
any test conducted by
you’.
[57] It will be apparent
from the above that there is no contractual relationship between a
flight examiner and the Department.
The relationship is one created
by statute – sourced in the Commissioner’s power, in
terms of reg 1.6 of the Air Navigation
Regulations – and
involves a designation granted on application to the effect that the
Commissioner is prepared to accept
the opinion of the applicant for
designation as to the competence of those who he or she examines.
There is, however, a contractual
nexus between the official flight
examiner and the examinee, with the latter being able to choose the
former and being responsible
for payment of the former’s fee.
[58] We turn now to the
circumstances in which vicarious liability may arise. In
K
v Minister of Safety and Security
17
O’Regan J held:
‘
The
common law principles of vicarious liability hold an employer liable
for the delicts committed by its employees where the employees
are
acting in the course and scope of their duty as employees. The
principles ascribe liability to an employer where its employees
have
committed a wrong but where the employer is not at fault. As such,
the principles are at odds with a basic norm of our society
that
liability for harm should rest on fault, whether in the form of
negligence or intent.’
While O’Regan J
referred only to the relationship between employer and employee,
vicarious liability can also arise as a result
of other
relationships, such as that of principal and agent,
18
but cannot arise in the
case of the relationship between an independent contractor and his or
her ‘employer’.
19
In essence, it may arise
‘by reason of a relationship between the parties and no more’
20
–
almost inevitably
a contractual relationship – where one of the parties exercises
authority over the other.
21
[59] In this instance,
there was no contractual relationship between Mr Grinstead and the
Department, whether in the nature of an
employment contract or one of
principal and agent. He was simply designated as a person whose
expert judgment the Commissioner
for Civil Aviation would accept for
purposes of determining the competence of pilots. The relationship,
such as it was, did not
give the Commissioner control over how Mr
Grinstead examined pilots and it did not place him in a position of
authority over Mr
Grinstead, even if he retained the power to suspend
or cancel his designation or occasionally oversee or monitor flight
tests conducted
by him. Consequently, in our view, even if the
appellant had proved that a negligent act or omission on the part of
Mr Grinstead
had caused the destruction of the aircraft, there is no
merit in the argument that the Minister was vicariously liable for
the
damage. The appeal must fail on this ground too.
The order
[60] In the result, the
appeal is dismissed with costs, including the costs of two counsel.
____________________
RW NUGENT
Judge
of Appeal
____________________
C PLASKET
Acting
Judge of Appeal
APPEARANCES:
For
appellant: G Aber
Instructed
by Bell Dewar, Sandton;
Webbers,
Bloemfontein.
For
respondent: C E Puckrin SC
J
A Meyer SC
Instructed
by The State Attorney, Pretoria;
The
State Attorney, Bloemfontein.
1
See
s 5(4) of the Aviation Act 74 of 1962. Section 1.3 of the Air
Navigation Regulations of 1976 defines an ‘official examiner’
as ‘a person appointed by the Commissioner to conduct the
certificate, licence or rating tests prescribed in these regulations
for flight crew members’.
2
See
Aviation Insurance Co Ltd v Bates & Lloyd Aviation (Pty) Ltd;
Bates & Lloyd Aviation (Pty) Ltd v Aviation Insurance Co Ltd
1982 (4) SA 838
(T) at 849A-B.
3
‘
Air
minimum control speed’, meaning the minimum flight speed at
which the aircraft is directionally controllable as determined
in
accordance with US Federal Aviation Regulations.
4
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking Advertising Standards
Authority
2006 (1) SA 461
(SCA) para 12. See too
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para
12.
5
Hayes
v United States of America
US
[1990] USCA5 840
;
899 F. 2d 438
;
Lange &
another v Nelson-Ryan Flight Service Inc
259 Minn. 460
, 108 N.W.
2d 428;
Udseth v United States of America
530F. 2d 860.
6
Van
Wyk v Lewis
1924 AD 438
at 444 (per Rose-Innes CJ). See too P Q
R Boberg
The Law of Delict
(1984) p 346-347; Jonathan
Burchell
Principles of Delict
(1993) p 87-89.
7
See
Boshoff v Prinsloo
1973 (1) PH J16 (T) at 42: ‘He was
exercising a calling which demands a high measure of skill and
competence.’;
Bickle v Joint Ministers of Law and Order
1980 (2) SA 764
(R) at 770H: 'no reasonably prudent aircraft pilot
would do a compression test without first satisfying himself that
the ignition
was switched off’;
ZS-SVN Syndicate v 43 Air
School (Pty) Ltd
2007 (6) SA 389
(E) para 38: ‘A
reasonable pilot in
Mr Onions’
position would in my
judgment reasonably have foreseen that landing on an unmarked runway
was potentially dangerous’.
8
ZS-SVN
Syndicate v 43 Air School (Pty) Ltd
para
17: ‘The operation of an aerodrome is conduct that calls for
expertise’;
Welkom Municipality v
Masureik & Herman t/a Lotus Corporation
[1997] ZASCA 14
;
1997
(3) SA 363
(SCA) at 373B: ‘There was a dearth of evidence from
anyone competent to give it as to what a reasonable aerodrome
operator
at an aerodrome of this kind would, or should, regard as a
sufficiently wide and reasonably level cleared area adjacent to the
runway in question . . . .’
;
Noakes v Oudtshoorn Municipality
1980
(1) SA 626
(C) at 635D – in which, incidentally, Mr Grinstead
had given expert evidence – ‘A reasonable [aerodrome]
licensee
would have realised . . ..’)
9
Note
6 at 444.
10
ZS-SVN
Syndicate v 43 Air School (Pty) Ltd & another
(note 7) para
18.
11
Van
Wyk v Lewis
(note 6) at 461 (per Wessels JA).
12
See
Road Accident Fund v Mehlomakulu
2009 (5) SA 390
(E) para 10.
13
Herschel
v Mrupe
1954 (3) SA 464
(A) at 490F.
14
Griffiths
v Netherlands Insurance Co of SA Ltd
1976 (4) SA 691
(A) at
698D-H.
See too
Suidwes-Afrikaanse
Munisipale Personeel Vereniging v Minister of Labour
1978
(1) SA 1027
(SWA) at 1038G.
15
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA
680
(A) at 700F-H.
16
Minister
of Safety and Security v Van Duivenboden
(note 4) para 25. See
too
Minister of Finance and others v Gore NO
2007 (1) SA 111
(SCA) para 33.
17
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA
419
(CC) para 21.
18
J
Neethling, JM Potgieter and PJ Visser
Law of Delict
5 ed
(2006) (translated by JC Knobel) p344.
19
Colonial
Mutual Life Assurance Society Ltd v MacDonald
1931 AD 412
at
432;
Langley Fox Building Partnership (Pty) Ltd v De Valence
1991 (1) SA 1
(A) at 8A-B;
Chartaprops 16 (Pty) Ltd v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA) para 6.
20
Minister
of Safety and Security v F
(592/09)
[2011] ZASCA 3
(22 February
2011) para 15.
21
K
v Minister of Safety and Security
(note 17) para 24.