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1984
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[1984] ZASCA 143
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Aviation Insurance Company of Africa Ltd. v Smit (152/84) [1984] ZASCA 143 (27 November 1984)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the appeal of :
THE AVIATION INSURANCE COMPANY
OF AFRICA LIMITED
1st appellant
and
J H SMIT
2nd appellant
versus
MAURICE ANTHONY JOSEPH AZZIE
... respondent
Coram
: MILLER, VAN HEERDEN, JJA, WESSELS, GALGUT et
VIVIER,
AJJA.
Date of hearing
: 8 November 1984
Date of judgment
: 27 November 1984
JUDGMENT GALGUT
AJA:
First appellant carries on business as an insurer. On 8 January 1974 it
issued an insurance policy,
/ to
2
to the owners of a Mooney Super 21 aircraft, in terms whereof it undertook to
make good accidental loss of or damage to the aircraft.
The aircraft was damaged
beyond repair in an accident at Baragwanath Airfield on 21
November 1974. The
insured (and agreed) value of the
aircraft was R9 000. The respondent, to
whom I shall
refer as the plaintiff, and a Dr Smit, who is the above-named
second appellant, were the joint owners of the aircraft. Plaintiff sued
first
appellant, citing it as first defendant, in the Witwatersrand Local Division for
the sum of R4 500 being the value of his half
share in the aircraft. He joined
Dr Smit in the action, as second defendant, because of the latter's interest in
the aircraft but
no relief was sought against him. The first appellant
repudiated liability on grounds which will be set out later. It also filed
a
counterclaim for R4 500. The counterclaim was based on the fact that it had
acquired, by way of cession, such claims as Dr Smit
had against the
plaintiff.
/ The
3
The plaintiff succeeded in his action and the counterclaim was
dismissed. The appeal is against those findings. Dr Smit was not affected
by the
finding of the trial Court and has no interest in this appeal. 1 shall
accordingly refer to first appellant as the defendant.
The insurance policy contained the following relevant clauses:
"
WARRANTIES
WARRANTED THAT
1. The Insured will comply with all air navigation and airworthiness orders
and requirements by any competent authority and will take
all reasonable steps
to ensure that such orders and requirements are complied with by the Insured's
agent(s) and employees and that
the" aircraft shall be airworthy at the
commencement of each flight.
2
GENERAL CONDITIONS
1. The due observance and fulfilment of the terms provisions conditions and
endorsements of this Policy shall be conditions precedent
to any liability of
the Company to make any payment under this Policy.
/ 2
4
2
3. The Insured shall use due
diligence and do and concur in doing
every
thing reasonably practicable to avoid or
diminish any loss hereon
"
At the time of the collision there were navigation and airworthiness orders
and requirements, issued by the Minister of Transport
(a competent authority),
in force. The relevant regulations applicable in the present case were set out
in Chapters 14 and 15 of
the Air Navigation Regulations 1963 (A N R). It was
common cause that plaintiff was not qualified to pilot an aircraft under
"Instrument
Flight Rules" (IFR). He was qualified to pilot an aircraft under
"Visual Flight Rules"(V F R). Chapter 14 of the A N R is headed
"Visual Flight
Rules" and provides that -
"A VFR flight shall be conducted so that the aircraft is flown with visual
reference
to the ground by day in conditions
of visibility and distance from cloud equal to or greater than those
specified in the following table."
/ Baragwanath
5
Baragwanath was an "uncontrolled" airfield and the table applicable to
plaintiff laid down that :-
(a)
in flight, the flight
visibility was to be not less than "three nautical miles (5
km)";
(b)
the horizontal distance from cloud
was not to be less than "2.000 feet (600 m)".
(c)
a pilot was not permitted to take off from, or land at an airfield
when the ground visibility at the airfield was less than "three
nautical miles
(5 km)" and the ceiling was less than "1 500 feet (450
m)".
In his particulars of claim plaintiff alleged
that at or about 7.24- on 21 November 1974 the aircraft was damaged beyond
repair "on
final approach of a forced landing due to engine failure".
In its plea defendant denied liability
/ alleging
6
alleging that :
A plaintiff had breached the above warranty
clause in that on the occasion in question he, not being rated as a pilot who
could pilot an aircraft under Instrument Flying Rules,
did fly in conditions to
which these rules applied;
B plaintiff in breach of the said warranty did not ensure, before the
commencement of the flight, that the aircraft was airworthy;
C plaintiff had breached the general condition
which placed upon him the duty to use due
diligence and do and concur in doing everything reasonably practical to avoid
or diminish any loss.
In the main counterclaim the allegations in A, B and C were repeated. In an
alternative counterclaim it was alleged that plaintiff
had been negligent.
The
/ allegations
7
allegations in A, B and C above were repeated and it was said that his
conduct in taking off and piloting the aircraft in misty and
cloudy conditions
was negligent and that such negligence caused the accident.
The aircraft was based at Baragwanath Airfield. The runway is tarred, is
approximately 1 100 metres long and bears roughly north -
south. The exact
bearing is 0030 , indicating that the runway points 30
0
east of north
as seen from its southern end. Standing at the northern end, the bearing is,
obviously, 210
0
, which, interpreted into a layman's language means
that one is looking in a direction 30 west of south. In flying circles the
northern
end of the runway is called "210" (two one zero) and the southern end
"030" (zero three zero).
An inspection in l
oco
was held during the trial. It appears that the
airfield lies on the crest of a gently rising hill, with the runway almost on
the
crest.
/ The
8.
The flying club's club—house is some 200 to 300 metres southeast
of the 030 end. It is somewhat higher than the runway. Except
for the view to
the south-east, the pilot of an aircraft standing at either end has a long view
over the surrounding country. To
the north and north-east there are several
con-spicuous landmarks. Almost in line with the runway, to the north and clearly
visible,
are a prominent church steeple, about 10 to 15 km away, and the
Northcliff Water Tower, about 16 km away. Towards the north-east
the Hertzog
Tower, about 11 km distant, is clearly visible. To the west lies Soweto, with
the Orlando Power Station cooling tower
about 3,5 km away.
Coming closer infield, the observable features are: a clump of trees directly
north of the runway and reasonably close to the 021
end; immediately west of
that end, also fairly close to the runway, is a mine dump; south of the
airfield, some 3 km away, are a
few low hills, but to the west there is a clear
sight of the country into the far
/ distance
9
distance; between these southerly hills and the 030 end of the runway are
power cables running east-west, about 1,5 km away, and between
these cables and
the airfield are buildings and closer still, some trees. The open veld between
the 030 end and the nearest trees
is only about 150 to 200 metres; coming round
to the east are hangars and, a little distance away, the club-house; along the
eastern
side of the runway there are several rows of hangars running parallel to
the runway; many of these were erected subsequent to 1974.
It was specially
noted that as these hangars are now, an aircraft taking off from the 030 end
only becomes visible to anyone in the
vicinity of the club-house after it is
well up in the air.
Plaintiff is a veterinary surgeon; he refers to the animals as his patients;
he used the aircraft in his practice; he had had over
900 hours solo flying. On
25 November 1974, as part of his claim form submitted to defendant, he included
a detailed report of the
accident. A summary
/of
10
of his evidence, which closely followed that report,follows. On the morning
of 21 November at 5h30 he telephoned the meteorological
station at Jan Smuts
Airport and was told that the weather was clear and that it would be a good day
for flying. He left home shortly
after 6h00 going first to Germiston to see a
patient and then drove to
Baragwanath. It was a clear day with a beautiful
blue sky. As he passed the Rand Airport he saw several aircraft taking off. When
he arrived at Baragwanath, he found a local mist or fog, caused apparently by
the coal fires in Soweto. From experience he knew this
to be a local and
temporary condition, and decided to get ready to take off as soon as he could.
The aircraft was refuelled and this
gave three hours flying time. He had had a
report that the aircraft had "cut out" a few days earlier causing the pilot, Dr
Smit,
to carry out a forced landing at Baragwanath. Despite the fact that the
aircraft had, thereafter, been
/ thoroughly
11
thoroughly checked and had been declared to be in order, he nevertheless
drained off more petrol than usual to ensure that no water
had collected in the
bottom of the tanks. By this time the fog was running out and he proceeded to
the "holding area" at the 030
end of the runway. From there he could clearly see
the landmarks to the west and south-west. There was a westerly wind of about 4
km and cloud cover was about 3/8, meaning three eights of the sky was occupied
by clouds. By 7hl0 the fog had lifted to the north
and he could clearly see the
Hertzog Tower and other landmarks. He was fully aware of V F R and was adamant
that he ensured that
he was not in breach of them when taking off. He carried
out the usual preflight checks and everything was in order. . He had been
given
the barometric pressure by Jan Smuts as 1019 millibars. He set his altimeter
accordingly. He intended flying to Viljoenskroon
which was on a 260 bearing, ie
almost due west. There was still some fog to the north. He decided on and
executed
/ a
12
a short take off and then banked to the left and flew in a westerly
direction. In evidence he stated the reason for this was "plain
and simple
(that) at the far end just beyond the airfield on the left side, over the mine
dumps, there was some low smog and I intended
to do a left-hand turn out which
was also conventional for that runway and I was proceeding to Viljoenskroon
which was also requiring
a left-hand turn out". He went on to say that the
engine was performing particularly well. After about 4 minutes flying he had
reached
7 000 ft (ie, above sea level Baragwanath was 5 725 feet above sea
level). He then set his altimeter to the standard barometric pressure
of 1013.2
millibars which would ensure that he was at a flight level corresponding to
other aircraft flying. He switched off the
electric pump. The aircraft started
jerking and misfiring. He tried various methods to rectify this but these
failed. He realised
that he was in trouble and decided to proceed back to
Baragwanath. He did a left-hand turn, ie first
/ to
13
to the south and then to the east. He had in the meantime heard a radio call
from an aircraft preparing to take off from Baragwanath.
The airfield was
completely visible. He saw the aircraft standing near the 030 end of the runway.
He requested that it give him the
priority right to land. This it granted. The
spluttering engine still gave power and he was not losing height. He continued
travelling
east and crossed over the runway at about the middle of the runway.
He decided to make a landing from north to south. He turned left
again
travelling northwards. He then turned left again, travelling in a westerly
direction. As he was approaching the 210 end of
the runway he found that a patch
of cloud had moved over and lay above that end. Instead, therefore, of turning
left again to bring
him into line with the 210 end, he continued on the westerly
course and decided he would try the 030 end. As he was still maintaining
height
and as he did not wish to keep the other aircraft waiting he gave
/ that
14
that pilot clearance to take off. He, plaintiff, then turned left again and
flew from the north-west to the south-east, thereby again
crossing over the
runway but diagonally. When he was south and east of the 030 end he turned right
in order to land at the 030 end.
He, however, found "some cloud" between him and
the runway. He nevertheless continued along the direction of the runway (ie in
the
30 direction) staying above the cloud, intending, when he got beyond the
cloud, to make his landing. When he reached the north end
of the cloud he
throttled back, lowered the aircraft flaps and wheels and commenced a rapid
descent. He then realised that he would
not be able to land and stop the
aircraft on the runway. His altimeter showed 400 ft. He thought he would, by
turning left and continuing
to do a left hand circuit, be able to land at the
030 end of the runway. He turned left and pushed the throttle forward but the
engine
cut out completely..
/He
15
He continued his left-hand circuit and as he was approaching the 030 end the
aircraft drifted to the east beyond the end of the runway
and crashed into a
fence some 75 metres east of the runway. The time was then 7h24. Plaintiff
explained that he had in the stress
of the events forgotten to set the barometer
pressure back to 1019 millibars. This meant that he was 200 feet higher than 400
feet
when the engine cut. out. It was also suggested that when he turned away
from the runway he may, because of his speed, have increased
his height by a
further 100 feet, ie to an actual height of 700 feet.
Attached to plaintiff's report Was a sketch plan of his flight path after the
engine started spluttering. Defendant did not dispute
the flight path of the
aircraft from take off to the final crash.
Six witnesses were called on behalf of the defendant. They were called to
discredit the plaintiff ,
/as
16
as to the weather conditions, as to the alleged
misfiring
of the engine and as to the manoeuvres described by
the
plaintiff after the engine had cut out. As will be seen
later the real crux of defendant's case was that at all
times from prior
to take off right until the time of the crash,
the weather was misty, foggy or clouded and unsuitable
for flying
according to V F R.
The learned trial Judge had regard to the evidence of the six witnesses. He,
however, accepted the evidence of plaintiff as to the
weather conditions, as to
the behaviour of the engine and as to the manoeuvres carried out after the
engine cut out. The learned
Judge a
quo
said of plaintiff "that although
somewhat pompous and stinted in his speech he is an honest man, not given to
exaggeration. I had
no hesitation in accepting his evidence as being true on all
crucial matters". It must be remembered that four days after the accident
plaintiff prepared the aforementioned
/ report
17
report. His evidence, as already stated, corresponded to his report. In that
report he stated that after four minutes flying the engine
started spluttering
and he decided to turn back. If one remembers that he had taken off safely, that
he had reached a height of 7
000 ft., that he had fuel for three hours flying,
that he had had a
meteorological report from Jan Smuts that the weather was clear and it would
be a good day for flying, that there had been only three
eights cloud cover at
take off, that his destination, Viljoenskroon, was about one and a half hours'
flying away on what was virtually
a clear day, there could have been no reason
for him to turn back unless it was engine trouble. Any suggestion that this was
not
true would be to brand him as being deliberately untruthful. It must also be
remembered that in his report he said he had seen an
aircraft at the holding
area, ready to take off, and that he had spoken on the radio to that pilot. Only
a
/ deliberately
18
deliberately untruthful person would have invented such a story. The
importance of this evidence will apear later when discussing
the evidence of the
witnesses Dhlamini and Melissakis. There is a further aspect. The plaintiff says
his engine cut out at a certain
stage and he then had to carry out a forced
landing. Whereas he might be mistaken as to where and at what height the engine
cut out,
a finding that it did not cut out and that he did not carry out a
forced landing would be branding him as being deliberately untruthful.
I turn now to consider the evidence of the witnesses for the defence. Samuel
Dhlamini had been working at the airfield for some years.
On this day he left
home and went to a shop which is outside the airfield. There he bought bread and
a pint of milk for his breakfast.
He then proceeded to a tree where he sat down
to have his breakfast. This tree is well south of the 030 end and to the east
of
/ the
19
the runway. At one stage he said he was at the tree at 7h10.
At another
stage he said he left the shop at 7hl0. At yet
another stage he said he was
at the tree at 7h20. He said
it was a foggy morning. The fog was not on the ground. There
was a tall
tree some distance north of where he was sitting.
On arrival at his tree he heard the sound of an aircraft
engine and looked up and saw a Mooney aircraft standing
at the 030 end of
the runway "preparing to take off".
He saw it taking off. It then disappeared
into the fog. The
following extracts from his evidence are important.
"When you saw, you heard the plane and you saw it taking off, and then you
heard it, did you keep on hearing that plane or did it
go out of your sound, out
of the range of your hearing?— No, I could still hear it. And hear the
sound all the time?—
All the time, the plane didn't go far away from
me .
Did you hear anything which made you think why the plane is coming
back?— No. Nothing strange?— There was nothing strange.
/ Now
20
Mow it took off, made a turn and started coming back?--. That is
correct.
And when you saw it again, when it was coming down, in which
direction was it flying?— It was flying from west to east.
Yes and
then, what did it do then?-- I could see it emerge from this big fog here.
It was flying west to east?— Correct.
And what did it do
then?— It was supposed to turn and then land.
But what did it do, not
what was he supposed to do. I want to know what did he in fact do?— Then
he went past. After it had
gone past he realised he had passed the runway, he
then turned.
Which way did he turn?— He turned left, towards the west again.
Yes, and then?— And then he went straight towards this tree.
Now in
which direction was he travelling when he went towards the tree?-- In the
northerly direction.
Did you see him make only one turn?-- It makes two
turns, with the third time that I saw it coming down.
Which two turns did it
make? You tell me it came from the west; then it turned left?—
Correct.
Made a circle and then you said it went straight to the tree, now how did it
get to the tree?— When this plane took off from
the ground it made two
turns in the air and the third time it went down."
/ Earlier
21
Earlier in his evidence he said the Mooney aircraft was below the level of
the tall tree as it was approaching the runway and it had
to go up "like a frog
jumps" to get over it. He did not see another aircraft in the holding area or
taking off.
At the inspection in
loco
he pointed out the tall tree over which he
said the Mooney aircraft had leapfrogged. The learned Judge a quo noted that
having regard
to where plaintiff's aircraft had crashed it could not possibly
have flown over that tree. There are other criticisms of Dhlamini's
evidence.
His version that the aircraft took off, made a turn bo the left and again to the
left and left again in the attempt to
land, cannot be correct. Plaintiff's
aircraft did not do a short circuit after taking off.
It follows that Dhlamini's evidence was correctly rejected by the learned
Judge a
quo
.
/ George
22
George Melissakis was at the time an engineer employed at the airfield. He
arrived there at between 7hl0 and 7hl5. He testified that
there was a strong
mist. He could not see the hangar (which is on the east side of the runway). He
had parked his car and was walking
to the hangar when he heard an aircraft
approaching. He then saw it through a gap in the mist. It was a Mooney aircraft.
He was able
to see the direction in which it was travelling. He sketched its
path on a sheet of paper, exhibit C, clearly showing that it travelled,
on the
east side of the runway, in a straight line from north-east to south-west and
well past the 030 end of the runway. His evidence
reads:-
" I was standing there and I saw
it going in that direction I showed you. South-west.
I see, it was going south-west. Yes, and from the sound did you manage to
trace the direction of the aircraft after that? Where did
it go after
that?— Yes.
Yes,
just
tell us more or less where was the
aircraft going. Was it circling or was it flying away or what was the position?
What was it doing?—
It was still going straight.
/ Yes,
23
Yes, and after that?— I didn't hear
it again
Now the evidence of the Plaintiff is that when he returned to the airfield
the aircraft was misfiring and spluttering?— I didn't
hear any
misfiring.
Well, what was the sound of the engine that you heard?— It was a normal
running of the engine.
I heard the sound of the engine
before it came in front of me, I saw it in front of me and then as he
continued down I continued to hear the....
At that stage there was nothing wrong with the engine?-- No.
Now can you estimate to us, when you saw the tail of that Mooney, what height
was it above the ground level?— About 100 metres."
It needs no detailed analysis of the evidence to show that Melissakis's
evidence was correctly rejected by the learned Judge a
quo
. At no stage
did plaintiff travel from north-east to south-west on the east side of the
runway; the only time that his aircraft was
at a height of 100 metres was after
his engine had cut out and he was on the west side of the runway manoeuvering to
carry out his
forced landing.
/ P J Godwin......
24.
P J Godwin is a qualified pilot. He was the airport manager. He lived in a
bungalow at the airport. At about 7h00 he came out of his
bungalow and went to
the club-house dining-room to have breakfast.* The normal view from the
dining-room toward the runway is "somewhat
restricted" but when an aeroplane is
100 feet in the air it can be seen from the dining-room. On this day "there was
a layer of either
radiation or convection fog at the height of between 50 and
100 feet above the ground and was between 100 and 200 feet in thickness".
He
looked out from the dining-room from time to time and the fog was still there.
He expressed the view that if a pilot did not have
an instrument flying rating
he should not have taken off. He went on to say that because of the fog he could
see some clouds but
nothing more. He also indicated that the fog could be patchy
and "so you are quickly out of it and into fog and if you are out of
a piece of
fog in a minute, within a minute you are in another piece".
/ B S Cheyne,
25.
B S Cheyne, an engineer, examined the engine of the aircraft after the crash.
After giving full details of his examination he went
on to say: "There was
nothing evident from my investigation that would lead me to think that the
engine had been misfiring in any
way". He did, however,concede that it was not
possible to do a bench test on the engine, that he did not test the fuel pumps
themselves
and that if there had been a problem with the fuel pumps he would not
have discovered it. I pause to add that Dr Smit had had a similar
problem to
that of plaintiff and that it is implicit in the evidence read as a whole that
no fault was then found with the engine.
It was for that reason that plaintiff
was extra cautious and drained off more than the usual amount of fuel, thereby
seeking to ensure
that there was no water in the fuel.
J R Olthoff, a pilot who owned a Mooney Super 21 aircraft, testified that he
had carried out tests. He
/ flew
26
flew at a height of 700 feet and throttled back when in the middle
(lengthwise) of the runway. He then attempted to turn left and
left again in
order to reach the 030 end of the runway. He was unable to do so. It is not
clear how far he was from the end of the
runway when he had to resort to the
engine to avoid crashing. It is also not clear how wide his arc was in his
efforts to reach the
end of the runway.
A C Jahdrell, a very experienced pilot and instructor, had over 11 000 hours
flying time. He had during the eighteen months prior
to the trial been the
chairman of all boards of inquiry, constituted by the Director of Civil
Aviation, into flying accidents. His
experience was not challenged. It was his
view that plaintiff could not, with a Mooney aircraft having no power, have
reached the
030 end of the runway from a height of 700 feet above the middle of
the runway. It was his view that a pilot in plaintiff's position
would have
re-
/ quired
27.
quired a height of about 1 000 feet to reach the end of that
runway.
The evidence of Olthoff and Jandrell cannot be faulted.
As stated earlier the above six witnesses were called to discredit the
plaintiff.
In this Court it was urged that plaintiff's
evidence should not have been
accepted in respect of the following issues:
(aa) the weather conditions;
(bb) the misfiring of the engine;
(cc) the manoeuvres after the engine failed completely.
Ad (aa): The Weather Conditions
The evidence of Dhlamini and Melissakis was rejected by the trial Judge. For
the reasons set out I
/am
28
am of the view that finding cannot be faulted. This leaves only the evidence
of Godwin and plaintiff. Godwin was in the club-house
and looking westwards.
From where he was the fog appeared to be thick. Plaintiff was at the 030 end. He
was fully aware of the need
to wait until the weather cleared to permit flying
by V F R. This he said he did and he then took off. The visibility from the 030
end may well have been very different from the visibility from the club-house.
It must also be remembered that even on Godwin's evidence
the fog varied. One
could be in the fog one minute and out of it the next minute. The learned Judge
thus had before him the two versions.
He had had the benefit of an inspection in
loco
. He accepted plaintiff's version. This does not mean that Godwin was
untruthful. In any event there is no good reason why Godwin's
evidence should be
preferred to that of the plaintiff.
/
Ad (bb)
:
29
Ad (bb): The Misfiring of the Engine
There is the evidence of Dhlamini and Melissakis. They both said the sound
made by the engine was normal, ie, there was no misfiring.
I need only add that
neither suggested that the engine had ceased to function. Their failure to
notice that the engine had ceased
to function is significant. In any event, as
we have seen, their evidence was rejected. Moreover, had plaintiff's engine been
functioning
correctly, as testified by Dhlamini and Melissakis, he, being a
pilot with 900 hours solo flying, would not have had any difficulty
in carrying
out a normal landing.
Cheyne the engineer examined the engine. He found nothing wrong. However, he
did not examine the fuel pumps nor did he carry out a
proper bench test of the
engine. It must also be remembered, as stated earlier, that plaintiff was safely
airborne; that there was
no reason for
/ him
30
him not to continue his journey to Viljoenskroon. On all the facts there was
no reason other than the faulty engine for plaintiff's
decision to return to the
airfield.
The evidence of Dhlamini and Melissakis was clearly rightly rejected by the
trial Court. Cheyne's evidence does not exclude the possibility
of the aircraft
behaving as testified to by plaintiff. Moreover, the probabilities strongly
favour plaintiff's version and his evidence
must be accepted on this aspect.
Ad (cc): The manoeuvres after the engine failed completely
.
The evidence of Olthoff and Jandrell is quite definite. Plaintiff could not,
from a height of 700 feet, without engine power have
reached the 030 end. This
conclusion does not mean that he was untruthful. For the reasons given in (bb)
above it must be accepted
that the engine started misfiring. This created an
emergency and caused him to return to the airfield. He flew above
/ and
31
and along the line of the runway from the 030 end. He was above the cloud and
planned to land when the cloud ended by doing a rapid
descent. He then realised
that he would not be able to stop on the runway. He then turned and commenced a
left-hand circuit in the
belief that he could reach the 030 end safely. It must
be accepted that, when he pushed the throttle forward, the engine failed
completely.
He was forced to proceed and land without engine power. He said this
in his report (and in his evidence). There can be no mistake
in this regard. He
was either truthful or deliberately untruthful when he wrote his report and when
he repeated this in evidence.
Having regard to the findings of the learned trial
Judge as to his credibility and to the fact that it must be accepted that he
turned
back due to the misfiring engine, it must be accepted that he was not
untruthful when he said he was forced to carry out a landing
without engine
power. Had he had engine power
/ he .
32.
he would not have been forced to carry out the landing. It would seem
therefore that he was probably mistaken either as to his height
when the engine
failed or as to his exact position when it failed. Certainly it has not been
shown that he was untruthful on this
issue.
Defendant's counsel correctly accepted that the onus was on defendant to show
that plaintiff breached either the warranty clause or
clause 3 of the "General
Conditions".
From what has been set out in (aa), (bb) and (cc) it is clear that defendant
has failed in its attack on plaintiff's credibility.
In the result defendant has
not shown that plaintiff failed to comply with V F R at the time of take-off. It
follows that he was
"lawfully" (for lack of a better word) in the air. When the
engine started misfiring he found himself in an emergency situation.
/It
33.
It was not seriously submitted, if it were found that there was such an
emergency, that plaintiff, when he returned to the airfield,
did at that stage
contravene V F R in carrying out his forced landing. More need not be said in
regard to
the defence pleaded as set out in A above.
Plaintiff's evidence that he had made proper
inquiries as to whether the
engine difficulties which Dr Smit had encountered had been rectified and that
he, plaintiff, had carried
out proper preflight checks and that he had drained
off sufficient fuel to ensure that there was no water in the fuel, was not
challenged.
Accordingly no more need be said in regard to the defence in B
above.
Very little need be said in regard to the defence pleaded in C above and in
regard to the allegation of negligence in the counterclaim.
The plaintiff, as we
have seen, found himself in an emergency. He thereafter took such steps as he
deemed necessary to land as soon
/as
34
as possible. It has not been shown that his decision was wrong or that he
thereafter did not "use due diligence" and did not do "everything
reasonably
practical to avoid or diminish any loss". It follows that it has not been shown
that he was negligent. In the result it
cannot be said that the learned Judge a
quo
erred in upholding plaintiff's claim and dismissing defendant's
counterclaim.
The appeal is dismissed with costs.
O. GALGUT.
MILLER JA) VAN HEERDEN JA) WESSELS AJA) CONCUR.
VIVIER AJA)