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2009
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[2009] ZAGPPHC 396
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Charter Hi (Pty) Ltd and Others v Minister of Transport (35719/1999) [2009] ZAGPPHC 396 (23 October 2009)
THE
HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG -
PRETORIA
CHARTER
HI (PTY) LTD. AND OTHERS
PLAINTIFFS
V
MINISTER OF
TRANSPORT
DEFENDANT
CIVIL TRIAL
CORAM: SAPIRE AJ
JUDGMENT
Plaintiffs’
claim arises from the destruction of an aircraft on 13th December
1996. A twin engine turbo prop Becchcraft King
Air C90, in which
the plaintiffs have joint financial interests, crashed, in
the vicinity of Atlantis in the Western
Cape. At the time the
aircraft was being used for an instrument rating renewal test
(the flight test) by Jonathan Grant
(Grant) who was the pilot
under test. One Grinstead was the official flight test examiner
as contemplated in Regulation 3.3(5}
(b) (ii) read with
regulation 3.3(1| (e) (i) of the Air Navigation Regulations
1970. Aboard the aircraft when the disaster
took place was a
third person, who has no part in these proceedings. All three were
killed. The aircraft was a total
wreck.
The Plaintiffs are
claiming damages from the Defendant, representing the financial loss
suffered by them caused by the total loss
of the aircraft. The
basis of the claim is alleged negligence on the part of Grinstead,
for which it is contended the
Defendant is vicariously liable.
The Plaintiff’s in their particulars of claim had also
formulated their claim
based on direct negligence on the part of
the defendant. Defendant’s liability so arising was
specifically and expressly disavowed
in argument.
The parties agreed
that, only the question of liability on the part of the Defendant
would be in issue for the present, and that
the amount of damages
if any to be awarded would be resolved and determined separately.
The issues before
the court were therefor,
a) Was Grinstead
negligent? and
b) Was the defendant
vicariously liable for damage caused by his negligence?
The defendant has
suggested that logically the second question should be answered
first, as if the answer is negative the first
falls away, and does
not require an answer. 1 have decided to answer both, as there may be
an appeal against my decision on question
b)
Was Grinstead
negligent?
After an amendment
to Plaintiffs particulars of claim as originally framed was allowed,
PlaintifTs’ allegations of negligence
on the part of Grimstead
read as follows: -
‘
8.1
He failed
to
familiarise
himself with the ‘Pilot's Operating hand book" (POH)
and/or the ‘Aircraft Fight Manual’ (APM)
which documents
detail, inter alia:
8.1.1 the
performance capabilities and limitations of the aircraft; and
8.1.2 the aircraft's
flight safety information concerning asymmetric flight manoeuvres,
minimum control speeds when carrying out
asymmetric flight or failed
engine procedures and stall recovery procedures.
8.2 He failed to
conduct the test flight in accordance with normal principles of
airmanship;
8.3 He failed to
conduct the test flight at a safe altitude in that he permitted
the portion of the test flight involving asymmetric
flight to be
carried out at a height of approximately two thousand five hundred
feet above ground level (*AGL) rather
than a minimum of five
thousand feet AGL:
8.4
He failed to ensure that the manoeuvres requested during the
test flight would comply with the flight manual for the aircraft
in that he failed to ensure that the pilot maintained a
sufficient high speed so as to avoid the aircraft entering a
spin,
alternatively
,
failed to ensure that the pilot controlled the aircraft
appropriately during the asymmetric portion of the test flight
so as to avoid the aircraft entering a spin;
8.5 He failed to
have any, alternatively sufficient, regard to the performance
limitation of the aircraft so as to avoid the
aircraft entering
a spin:
8.6 He failed to
have sufficient regard to the minimum control speed of the
aircraft and the centre of gravity of the aircraft
so as to avoid
the aircraft entering a spin when instructing Grant to carry
out manoeuvres during the test flight:
8.7 He failed to
take over control of the aircraft timeously, or at all,following a
failed asymmetric manoeuvre by Grant.
Notwithstanding this
ample description of the alleged negligence on the part of Grinstead,
the plaintiff, in argument, relied only
on two aspects which
were stated in Plaintiffs' counsel's helpful heads of argument
as follows:
“
10 Grinstead
was negligent in that he:
10.1 Initiated the
simulated engine failure at approximately 2500 feet above ground
level (‘AGL')|, an altitude that
was manifestly unsafe and
prohibited by the Pilots Operating Handbook (“POH”); and
10.2 Failed to
timeously intervene during the asymmetric phase of the flight so as
to prevent the aircraft from entering a spin.
Plaintiffs’
counsel was constrained so to limit the grounds of negligence relied
on in argument, as there was no evidence
to support the wider
grounds described in the Particulars of Claim.
The argument for the
plaintiff was that from all the proved or common cause facts the
inference to be drawn was that Grinstead was negligent.
The
defendant has maintained throughout that Grinstead was not
negligent and that no wrongful act or omission by him was causally
connected to the loss of the aircraft.
Plaintiffs
counsel in advancing the argument made reference to the maxim res
ipse loquitur.
This
maxim as Appears from the authorities to which I was referred,
is little more than shorthand for a truism. In the
framework of
the present case, from the fact that an aircraft in which no
mechanical defect, malfunction, or non function,
could
be ascertained, crashed, an inference of pilot error could be
inferred. The very fact of the accident in these
circumstances
speaks of pilot error.
Grinstead, however,
was not the pilot. It is not alleged, either in the particulars of
claim or in plaintiffs formulation of the
grounds of negligence
in the heads of argument, that Grinstead had the opportunity to
avoid the accident. When negligence
by omission is alleged to
have caused damage, it is necessary to allege and prove that the
circumstances occasioning
the loss, cast a duty on someone to act in
a particular manner which would have prevented the occurrence of the
event
and that there had been an opportunity so to do.
Without knowing what transpired in the cockpit at the critical
time any conclusion
to which one may come in the absence of
evidence is merely speculation. There was evidence that a
pilot’s reaction to
the onset of asymmetric flight might
be inappropriate. Inappropriate action if persisted in could
acerbate the yaw and
cause a spin to develop.
If, as he should
have, Grinstead perceived that the pilot under test was acting
erroneously, he could have been expected to intervene either
by
telling the pilot what to do or by assuming control of the aircraft
by applying the dual controls with which the aircraft
was fitted.
Grinstead was one of the most experienced top examiners, designated
as such. He would it must be assumed
have taken whatever steps
available to him to prevent the disaster if he could have done
so. Self preservation would
have been a powerful incentive to
avoid the disastrous consequences. But the pilot may have
through disorientation panic
or otherwise, “frozen”
and “fought” with Grinstead for control of the
aircraft. The pilot in panic,
confusion and stress may have
aggravated the consequences of his initial error. This of course
is all speculation, but
there is an inference, as strong as any
other, that Grinstead may not have had the opportunity of
preventing the disaster.
Both Plaintiff and
Defendant presented expert testimony on the technical aspects of the
disaster.
The Plaintiff called
Lilith Seals Michael Kay Heyns Roy Charles Downes all of whom were
experienced aviators who’s opinions
credible. The Defendant
called Selwyn Levin who likewise is an aviator with a lifetime
of experience, well qualified to testify
on the issues which
arise in this case.
The experts
described with little significant difference between them the nature
of the test which, it was common cause; the pilot
was probably
undergoing at the time. The pilot was required to demonstrate
his continued ability while “under the
hood’ (i.e. flying
by instrument only, without being able to refer to conditions
outside the craft) to recover
from a yaw brought about through
the failure of one of the aircraft’s two engines. Yaw, the
experts explained, was a circular
motion of the aircraft about
an axis running through its centre of gravity. Such circular
motion is caused by the forward thrust
of the engine which
continued to function, and zero thrust and possibly drag from
the engine which failed. For the purposes
of the test, the
failure of one engine was simulated by the testing officer, who would
retard one of the throttle levers
to decrease the thrust produced by
an engine to zero. The conditions of imbalance brought about by the
failure of one
engine arc referred to as asymmetrical flight.
The pilot under test was expected timeously to restore straight
and level flight.
In this the pilot must have failed. But what
happened thereafter is not known and is a matter for
speculation.
Captain Downes
called by the Plaintiff, testified through a television connection
from where he was in the U K at the time, of the
trial. At the
time of the fatal flight which is the concern of this trial, he was
an employee of the Civil Aviation Authority
serving as chief
accident investigator. In this capacity he undertook the
investigation of the accident giving rise to
Plaintiffs' claim.
He made a report of his examination of all available relevant
data pertaining to the flight and its
disastrous end. He
confirmed the correctness of the report; He also confirmed that
the aircraft was travelling at a speed
considerably above
stalling speed immediately before it went into the fatal spin. Under
cross examination he summarised
his own conclusions, and those
of his colleagues. He was referred to the report he had made and on
which he had been
led. Turning to page 442 of the bundle
before Court, his opinion there stated, was that the actual
cause of the spin was
a matter of pure speculation. He was when
he testified still of the same opinion. There is no basis for
the court to come
to a different conclusion.
The other ground of
negligence imputed to Grinstead is that he initiated the simulated
when it was unsafe to do so. The thrust of
the one engine was
reduced to simulate failure at 2500 feet above ground level. The
experts were unanimous in their opinion
that there was nothing
Inherently dangerous in an examiner requiring the pilot under test
being required to handle the
failure of an engine while the
aircraft was on cruise, approach, or landing.
The
plaintiff argues that that because in the Pilot’s Operating
Handbook contains a warning under a rubric,
Stalls
,
spins
,
slow flight,
air minimum control speed (VMCA) and intentional one
engine inoperative speed for multi- engine aeroplanes",
that
“this entire procedure should be used at a safe altitude of at
least 5000ft above the ground in clear air only.”
it is
inappropriate and negligent in itself to initiate asymmetric
flight below 5000 feet. For defendants it was argued
that this
is a misreading of the words quoted, and has no application
where the test is conducted at speeds well over Vmca
or Vsse.
The Defendants’ reading is the correct meaning to be attached
to the passage in question.
Liability from such
negligence, if such it was does not in any event arise, as the
plaintiffs have not been able to show that such negligence
is
causally connected to the loss of the aircraft.
I therefore conclude
that the plaintiff has not demonstrated that Grinstead was negligent
in either of the respects alleged.
I turn now to the
question of vicarious liability.
The
most recent decision on this topic in the Court of Appeal is to be
found in
Charter
Props 16 (Pty) Ltd and Another vs. Silberman 2009(1) SA 265
(SCA).
In
that case the court warned against the danger of inappropriately
extending the concept of vicarious liability for acts of negligence.
In the present case
the defendant and Grinstead do not stand in a particular relationship
to one another where vicarious liability
can be imputed to the
defendant for acts of another. The court was referred to a
thesis by Hartmut Wicke entitled "Vicarious
Liability in Modern
South African Law", in which the point is made that in some
cases it is difficult to provide a completely
satisfactory
explanation for the visiting of vicarious liability on the
employer or principal. But instances have become
firmly embedded
in our law.
Grinstead
was not a servant of the defendant, its agent nor yet an independent
contractor appointed by it. Within the framework
of the legislation
the official examiner of candidates for ratings is a person nominated
whose judgment the department
will accept as to the proficiency
of pilots or intending pilots in particular aspects of aviation.
Such official examiner
in terms of Section 22(1) (a) bis of the Act
is not a servant nor yet an independent contractor. So this
was recognised
in
“The
Minister
of Transport
and
Others vs The
South African Airways Pilots Association and Another
delivered
in what was then the Appellate Division on 21
st
September 1995 under case number 23/94. Counsel for the
Defendant who referred to the case was not able to give a report
citation as the judgment has apparently not been reported.
When this case was
first started the plaintiff relied on a master and servant
relationship between the defendant and Grinstead to
give rise to
the vicarious responsibility of the defendant. Because this
was factually incorrect the pleadings were amended
but no
relationship has been alleged or proved which would give rise to
such vicarious liability on the part of the defendant
for acts
of an official examiner.
On this ground too
the plaintiffs action must fail.
The question of
liability must therefore be answered adversely to the plaintiff and
the action is dismissed with costs, including
the costs of two
counsel.