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[1985] ZASCA 62
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Bates & Lloyd Aviation (Pty) Ltd. and Another v Aviation Insurance Company; Bates & Lloyd Aviation (Pty) Ltd. and Another v Aviation Insurance Company (80/85) [1985] ZASCA 62; [1985] 2 All SA 428 (A) (30 May 1985)
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal of :-
Case A
BATES & LLOYD AVIATION (PTY) LTD
1st appellant
and
GORDON LANG & RICHARD ANTHONY LYONS
.. 2nd appellant
versus
THE AVIATION INSURANCE COMPANY
respondent
and
Case B
BATES & LLOYD AVIATION (PTY) LTD.
... appellant
versus
THE AVIATION INSURANCE COMPANY
respondent.
Co
ram
: Trengove, Nicholas, Hefer JJA, Galgut et Smalberger
AJJA.
Appeal heard
: 4 March 1985.
Date of Judgment
: 30May
1985
JUDGMENT
/
JUDGMENT
GALGUT
AJA:
On the 4th April 1978 and at 09h05 a Beechcraft Baron
aircraft, while being piloted by one George Edward Bates, crashed into the
Soutpansberg
near Louis Trichardt. The pilot and his two passengers were killed
and the aircraft was destroyed.
Arising out of the crash two actions were instituted. The one under case
number 3465/81 was instituted in March 1981 in the Transvaal
Provincial
Division. The other under case number 5584/81 was instituted in April 1981 in
the Witwatersrand Local Division. By Order
of Court dated 20 April 1982 the two
cases were consolidated in terms of Rule 11 of the Uniform Rules of Court.
/ The
3
The action under number 3465/81 has at all relevant times been referred to as
case A and the action under number 5564/81 as case B.
I shall refer to them as
case A and case B respectively. The actions arose out of the following
facts.
(i) In December 1977 Beechcraft Sales SA (Pty) Ltd ("Beechcraft") were
the owners of the aircraft.
(ii) On 21 December 1977 Beechcraft sold the aircraft on hire-purchase to
Bates and Lloyd Aviation (Pty) Limited ("Bates & Co").
(This company is the
first appellant
in case A and the appellant in case B.)
(iii) On 21 December Beechcraft assigned its rights and interests in the
hire-purchase agreement to a finance company, Beech Acceptance
Corporation Inc.
(Beech Inc.").
(iv) On 21 December 1977 the Aviation Insurance Company Limited ("the
Insurer") issued, at the instance of Bates & Co, a policy
of insurance
covering loss or damage
/ to
4
to the aircraft. The insured in terms of the policy was Bates & Co.
The policy also covered any loss suffered by Beechcraft and
Beech Inc. The
policy also provided that the Insurer would indemnify a pilot of the aircraft
in
respect of claims by dependants of any passengers.
(v) On 4 April 1978, as already stated, and at
09h05 while being piloted
by George Bates ("the Pilot"),
the aircraft crashed into the
Soutpansberg.
(vi) At the time the Pilot and his two passengers were on a trip with the
object of obtaining a hunting con-cession in the Louis Trichardt
area. This trip
was a private trip and had nothing to do with the business of Bates & Co.
The company allowed the Pilot to use
the aircraft for his own purposes whenever
he wished to do so.
(vii) The Insurer in terms of the policy paid Beechcraft and/or Beech Inc.
the sum of R131 650,40, being the outstanding balance under
the hire-purchase
agreement. This sum was
paid in May 1978.
/ (viii) The
5 (viii) "The Insurer obtained a cession of action from
Beech Inc. and Beechcraft in May 1978. This cession included such rights as
the
cedents had against Bates & Co and the Pilot's deceased estate.
(ix) Gordon Lang and Richard Anthony Lyons were duly appointed as joint
executors of the deceased estate of the Pilot. I shall refer
to them as "the
Estate". The Estate is the second appellant in case A.
(x) The widows of the two passengers have each made a claim against the
Estate for loss of support for herself and her children. The
total of these
claims is R269 290,00.
(xi) After the crash the Insurer contended that the aircraft was on the
relevant date flown in contravention of certain statutory
air and navigation
rules; that this was in breach of the conditions of the insurance policy; that
the Pilot had been negligent; that
it was not obliged to indemnify Bates &
Co for any loss it had suffered due to the crash; that it was not obliged to
indemnify
the
/ Pilot
6
Pilot against claims by the dependants of the passengers; that it was
entitled to recover from Bates & Co and the Pilot the above
sum of R131
650,40 which it was in terms of the policy obliged to pay.
(xii) The above contentions were denied by Bates & Co and by the
Estate.
(xiii) The Court a
quo
, in the two cases before it, upheld the
contentions of the Insurer and granted relief pursuant to his findings. The
appeals are against
the findings and the relief granted.
Before setting out the issues before this Court it is necessary to give some
detail in respect of the contracts mentioned in paras.
(ii), (iii), (iv) and
(viii) above.
The hire-purchase agreement (see para (ii) above) contained the following
clauses:
/ "1 ALL
7
"1. ALL RISKS attaching to the Aircraft shall pass to the Purchaser forthwith
upon his signing of this agreement but the ownership
and dominium therein shall
remain vested in the Seller until all sums payable hereunder shall have been
fully paid, when the ownership
of the Aircraft shall pass to the Purchaser.
2. The Aircraft shall forthwith be insured and shall be kept insured during
the currency of this agreement by and at the expense of
the Purchaser (Bates
& Co.) with an Insurance Company to be nominated by the Seller against Loss
or Damage to the Aircraft, third
party liability and legal liability to
passengers and against fire, theft, accident risks, Breach of Warranty of Air
Navigation Regulations
and such other risks as the seller may from time to time
direct. Such insurance policy or policies shall hold covered the respective
insurable interests of the Purchaser and the Seller and the said policy or
policies shall specifically cover full flights and ground
risks in respect of
the aircraft to an amount not less than the full balance outstanding by the
Purchaser under this agreement from
time to time."
In the contract mentioned in para (iii) above Beechcraft assigned all its
rights and interests in the above hire-purchase agreement
to Beech Inc. and
received from the latter the amount due to it under the hire-purchase
agreement.
/ The...
8
The insurance contract, see para, (iv) above, contained the following
important provisions (the lettering is mine):
(a)"
Section I - Loss of or Damage to Aircraft
the Company (the Insurer) will at their
option pay for or make good accidental loss of
or damage to the aircraft
as described in
the Schedule hereto ..."
(b)"
Section II - Third Party Lia
bility
the Company will indemnify the
Insured in respect of all sums which the
Insured shall become liable to pay
as compensation in respect of bodily
injury (fatal or non-fatal) of third
parties caused directly by the aircraft "
(c)"
Section III -
Legal Liability to Passengers
Subject to the terms conditions and limits. hereof the Company will indemnify
the Insured in respect of all sums which the Insured
shall become liable to pay
and shall
pay as compensation in respect of
accidental bodily injury (fatal or non-fatal)
to passengers while on board
the aircraft "
(d)"
Legal Liability of Pilots
It is hereby declared and agreed that the indemnity granted under Section II
- Third Party Liability, and Section III—Legal
Liability to Passengers,
shall extend to include the Legal
/ Liability
9
Liability of any pilot who flies the
aircraft with the express knowledge and
consent of the Insured. "
(It was accepted that this clause was intended
to cover a pilot, who was flying the aircraft with the consent of Bates &
Co, against
liability to passengers in the aircraft.) I shall refer to this
clause as the extension clause. The proviso to this clause reads:
"Provided always that:-
the said pilot
(a)
(b) shall, as though he were the Insured,
observe, fulfil and be subject
to the
terms, conditions, warranties
contained in the policy."
(e) "
WARRANTED THAT
-
The Insured will comply with all air navi
gation and airworthiness orders
and require
ments issued 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 "
I shall refer to this clause as the Warranty clause.
/ (f) "
BREACH
10
(f )"
BREACH OF WARRANTY ENDORSEMENT
In consideration of an additional premium of R136,00 IT IS UNDERSTOOD AND
AGREED THAT: The insurance afforded by the Policy shall
not be invalidated as
regards the interest of Beech Acceptance Corporation of Wichita, Kansas USA and
Beechcraft Sales S.A. (Pty)
Ltd (hereinafter referred to as "The Owners") by any
act or neglect of the Insured........"
I shall refer to this clause as the Breach of Warranty
endorsement.
(g)"
BREACH OF AIR NAVIGATION REGULATIONS
It is agreed that any breach of Air Navigation directions and/or regulations
or contravention of the Insured's flying instructions
and regulations without
the Insured's knowledge and consent shall not invalidate a claim by the Insured
under this insurance but
the individual causing such breach or contravention
shall not be entitled to indemnity hereunder."
(h)"GEN
ERAL CONDITIONS
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".
(i) The insurance policy also contained a clause
which provided that upon payment by the Insurer, pursuant to the policy, of any
sum to the "owners" of the
/ aircraft
11
aircraft the Insurer would be subrogated to all the
rights of the "owners".
The schedule attached to the insurance policy
contains the following paragraph:
"Purposes for which Aircraft USED:- Private, business, pleasure, industrial
aid flights and charter by National Airways Corp. (Pty)
Ltd and/or Air Lowveld
(Pty) Ltd and/or Southern Sphere Mining (Pty) Ltd."
The contract of cession mentioned in para. (viii) above is dated 16 May 1978.
It refers to the hire-purchase agreement and records
that Beechcraft and Beech
Inc: have claims against Bates & Co and the Estate arising out of the
destruction of the aircraft;
that the Insurer has agreed to make payment to them
of the sum of R131 650,40 in terms of the "Breach of Warranty Endorsement"; that
in consideration of such payment they each cede to the insurer -
"all our respective rights, title and interest in and to -
(a)
the said
claims ;
(b)
the said Agreement and the said
Aircraft "
/ I turn
12
I turn now to summarise the pleadings. In case A the Insurer in its main
claim claimed R131 650,40 from Bates & Co and the Estate
jointly and
severally; in the alternative it claimed the amount from Bates & Co only. In
the particulars of claim, as amplified
by further particulars, the hire-purchase
agreement and cession are set out. Thereafter it is alleged that the Pilot was a
director
and employee of Bates & Co; that he was acting in the course of his
employment; that the crash was due to his negligence; that
the aircraft was
destroyed; that Beechcraft,alternatively Beech Inc, suffered damage in the sum
of R131 650,40. Included in the acts
of negligence were allegations that the
Pilot failed to divert from adverse weather conditions; attempted a navigational
flight when
under the prevailing conditions it was dangerous and/or reckless and
contrary to flying regulations for a pilot of his qualifications
so to do;
/ entered
13
entered instrument flying conditions when he was not qualified or competent
so to do. I pause to say this claim is based on delict.
Alternatively to the above the Insurer claimed the above sum from Bates &
Co alleging that in breach of the policy it had violated
the air navigation
regulations by allowing the Pilot, in his aforesaid capacities, to enter
instrument flying conditions when he
was not qualified so to do and to fly below
the prescribed minimum altitude above ground level. The particulars then go on
to allege
that consequent upon the said breach of the terms of the policy it,
the Insurer, had suffered damage and that, when the contract
of insurance was
concluded, it was within the contemplation of Insurer and Bates & Co that
the Insurer would suffer damage if
Bates & Co should breach the terms of the
policy in the manner alleged. This claim is based on breach of contract.
/In
14
In the plea to the main claim both appellants deny that the Pilot was acting
as the servant of Bates & Co; that he was negligent;
that the air navigation
regulations had been contravened; that the Insurer suffered damage; that it was
contemplated that it would
suffer damage if Bates & Co breached the policy
in the manner alleged. In the plea to the alternative claim Bates & Co
pleaded
that in taking cession of the rights of Beechcraft and Beech Inc. the
Insurer was "effectively exercising its purported rights of
subrogation under
the policy"; that as Beechcraft and Beech Inc. were insured parties under the
policy, the Insurer could not be
subrogated to any claim by Beechcraft or Beech
Inc.
In case B Bates,& Co sued the Insurer. In its amended particulars of
claim it alleged that in terms
of the policy the Insurer had undertaken to indemnify it
against accidental loss of the aircraft and against all sums
/up
15
up to Rl 000 000 which it, Bates & Co, became legally liable to pay in
respect of accidental bodily injury, fatal or non-fatal,
to passengers; that the
latter indemnity extended to include the legal liability of any pilot. who flew
the aircraft with its knowledge
and consent; that the Insurer had contracted to
pay the value of the aircraft if it was accidentally destroyed; that the Insurer
was obliged to pay it such value; that the Pilot was flying the aircraft with
its knowledge and consent; that claims had been made
against the Estate; that
the Insurer disputed that it was obliged to indemnify the Estate against such
claims; that Bates & Co
was entitled to ask, and did ask, for an order
declaring that the Insurer was obliged to indemnify the Estate in respect of the
said
claims.
/In
16
In its plea the Insurer alleged that Bates & Co had not complied with the
terms of the policy in that,
inter alia
, there had been a breach of the
Air Navigation Regulations and Rules of the Air; that it was not liable to
indemnify Bates &
Co in the sum claimed or any amount; that it was not
obliged to indemnify the Estate as alleged. In the alternative the Insurer
pleaded
that in the event of the Court finding that it had any liability to
Bates & Co it was limited to R46 549,60 by virtue of the
fact that it had in
terms of the Breach of Warranty Endorsement paid the sum of R131 650,40 which
fell to be deducted from the value
of the aircraft. I pause to say that Bates
& Co has accepted that if it succeeds, the above sum must be deducted from
the agreed
value of the aircraft (R178 200) and now claims only R46 549,60, plus
interest thereon a
tempore morae
.
It remains only to say that the onus to prove
/ negligence
17
negligence and/or a breach of a condition of the policy was on the Insurer.
See in the latter regard
Resisto Dairy (Pty) Ltd v Auto Protection Insurance
Co Ltd
1963 (1) SA 632
(A) at 644 D and 645 A.
Counsel for the Insurer conceded that it had not been established that the
Pilot was an employee of Bates & Co. He submitted that
on the evidence it
was shown that Bates & Co was, as it were, the
alter ego
of the Pilot
and that he was acting
qua
Bates & Co at the time of the crash. He
said if the Court deemed it necessary he would ask for an amendment of the
pleadings
to this effect. 1 shall deal with the relevant issue as if such an
amendment had been granted. On this aspect it must be remembered,
where the
relationship of master and servant is absent, liability for the negligent
driving of a vehicle will arise when the vehicle
is being driven on behalf
of
/ the
18
the owner and subject to his control; see the cases cited in
Braamfontein
Food Centre v Blake
1982 (3) SA 248
(T) at p 249.
The issues which arise from the pleadings and the submissions by counsel in
this Court are the following:
A. Did the Pilot act
qua
Bates &
Co?
B. Was Bates & Co entitled to indemnity under the
policy even if the
Pilot was negligent or breached
the Warranty clause?
C. Did the Pilot breach Air Navigation Regulations
or Rules of the
Air?
D. Was the Pilot negligent?
E. Did the owner Beechcraft suffer damage?
AD A AND B
ABOVE
Mrs Bates testified that the shareholders and directors of Bates
& Co were the Pilot, Mr Lloyd and herself. She stated that the
Pilot was
entitled to use the aircraft
/ whenever
19 whenever he chose and for whatever purpose he chose; that
consent so to do had been given verbally; that a few days before the
flight of 4
April 1978 he informed the directors that he intended to undertake the flight in
question; that "in so far as it was
necessary the said three directors consented
to such flight". In cross-examination she explained that Bates & Co owned
the aircraft
(i.e. the Beechcraft Baron) and a Beech King 200; that Bates &
Co were paying the instalments due under the hire-purchase contract;
that Bates
& Co did not have a charter licence but was doing aircraft charter under the
umbrella of National Airways and a couple
of other companies; that the aircraft
was only 4 months old when it crashed; that it had been used for such charter
work; that on
the occasions it was flown under the umbrella of National Airways,
Bates & Co made a profit. Mrs Bates was asked whether the
Pilot was "the
controlling director" for that aircraft and
/ she
20
she answered: "Probably, yes". She also said that he did expect income from
Bates & Co - "but not in enormous amounts". It will
be remembered, that in
the schedule to the insurance policy it was stated that the aircraft would be
used
inter alia
for private business, pleasure and for charter work for
National Airways Corp. (Pty) Ltd and certain other named airways.
Counsel for the Insurer urged that even though the evidence did not prove
that the Pilot was an employee, it did show that he controlled
the activities of
this aircraft; that this was not a case of vicarious responsibility but a case
in which he was the directing mind
of Bates & Co in regard to the aircraft;
that it followed that he was acting
qua
Bates & Co when he was flying
the aircraft; that his conduct should be attributed to Bates & Co. In
support of this submission
he quoted
Levy v Central Mining and Investment
Corporation Ltd
1955 (1) SA 141
A at p 149 H where CENTLIVRES CJ referred
to what was said
/ in
21
Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd
(1915) A C 705
by
Viscount HALDANE L C at p 713 to the effect that a corporation can be guilty of
actual fault only where there is fault of its
board of directors or of some
person who "is really the directing mind and will of the corporation, the very
ego and centre of the
personality of the corporation". See also
The Lady
Gwendolen
(1965) 2 All ER 283
(CA) at p 302 H.
The evidence of Mrs Bates shows that Bates & Co was the "owner" of the
aircraft in the sense that it had acquired the aircraft
by way of a
hire-purchase agreement; that Bates & Co acquired and used it to do charter
work from which it made a profit; that
the Pilot was entitled to use the
aircraft whenever he so wished. This evidence does not prove that the Pilot was
the directing mind
of Bates & Co. It is perhaps necessary to be reminded
that a director and shareholder of a company and the company are
/ separate
22
separate and distinct legal entities which can enter into valid contractual
relationships with each other; see
Lee v Lee's Air Farming Ltd
(1961) A C
at p 13. In the present case Bates & Co had contracted to allow the Pilot to
use the aircraft whenever he wished so
to do. In this regard Mrs Bates said: "He
was a very correct person in the fact that he had great respect for myself and
Mr Lloyd
as directors and he would always have mentioned to us" that he intended
using the plane.
In respect of these two issues in the appeal the
interpretation of the Warranty Clause is important. A
similarly worded
clause was interpreted in
Aviation I
nsura
nce
Co of Africa Ltd v Burton Construction (Pty) Ltd
1976 (4)
SA 769 (A) at p 775 B where the following is said:
"It will be noted that the warranty has two distinct parts. The subject of
navigational orders and requirements is common to both
parts; but the obligation
of compliance therewith differs in the two parts. The first obligation is
absolute:
/ the
22
separate and distinct legal entities which can enter into valid contractual
relationships with each other; see
Lee v Lee's Air Farming Ltd
(1961) A C
at p 13. In the present case Bates & Co had contracted to allow the Pilot to
use the aircraft whenever he wished so
to do. In this regard Mrs Bates said: "He
was a very correct person in the fact that he had great respect for myself and
Mr Lloyd
as directors and he would always have mentioned to us" that he intended
using the plane.
In respect of these two issues in the appeal the
interpretation of the Warranty Clause is important. A
similarly worded clause was interpreted in Avi
ation
Insurance
Co
of Africa Ltd v Burton Construction (Pty) Ltd
1976 (4)
SA 769 (A) at p 775 B where the following is said:
"It will be noted that the warranty has two distinct parts. The subject of
navigational orders and requirements is common to both
parts; but the obligation
of compliance therewith differs in the two parts. The first obligation is
absolute:
/ the
23
the second requires only the taking of 'all reasonable steps'. The two are as
different as chalk is from cheese. What is the reason
for this difference? When
does the first part apply and when the second? If the insured were a natural
person, the position would
be clear: if he were acting alone, whether as pilot
or otherwise, he would personally have to comply with all navigational orders
and requirements: an absolute obligation. But if he employed an agent or
servant, whether as pilot or otherwise, he would merely
have to take all
reasonable steps to ensure that he complied with the navigational orders and
requirements. Knowing this, the insurer
used the same printed form for the
insurance of the respondent company's helicopter. Is there any reason to suppose
that the warranty
should be interpreted differently on that account? Why should
the insurer be in a better position merely because the insured is a
company? In
particular, if the company employs a pilot to fly the helicopter, why cannot the
second part of the warranty be applicable,
namely that the company must take all
reasonable steps to ensure the pilot's compliance with the air navigational
regulations? How
does it do this? Basically by employing a qualified and
responsible pilot".
It was not, nor, as will be seen later, could it have been, suggested that
the Pilot was not a qualified and responsible pilot.
/ The
24
The result of all the above is that it has not been shown that Bates & Co
(the insured corporation) was negligent or was vicariously
responsible for any
act of the Pilot or had breached the warranty clause. It follows that the main
claim against Bates & Co (i.e.
the claim based on delict) and the
alternative claim (i.e. the claim based on breach of contract) in case A should
both have been
dismissed and that in Case B, Bates & Go's claim to be
indemnified in the sum of R46 549,60 should have been allowed in the Court
a
quo
.
The above findings do not assist the Estate in regard to the claim against it
in case A nor do they assist in deciding the issue of
the declaratory order
sought by Bates & Co in case B. These aspects fall to be considered in the
issues C, D and E stated above.
Before dealing with issues C and D it is necessary to establish the facts
within which they are to be decided.
/ These
25
These include the qualifications and competence of the Pilot, the relevant
Air Navigation Rules and Rules of the Air, the weather
conditions and the
topographical features as they were and as shown on the official map.
The Pilot
He had 1347 hours of flying experience. He held an American commercial
pilot's licence and a commercial licence from the Republic
of Botswana. These
licences included an instrument rating. His flying experience included 180 hours
of instrument flying. I will
later set out the importance of an instrument
rating. His American licence had been validated by the Republic of South
Africa's authorities.
In the Court a
quo
it was contended on behalf of
Bates & Co and the Estate that this meant that he held a South African
licence which included an
instrument rating. Reliance for this contention was
based on Air Navigation Regulation 2.17.1. Counsel (he did not appear in the
Court a
quo
) who appeared in this Court rightly conceded
/ that
26
that his South African licence did not include an instrument rating. One has
only to read the validating document to realise this.
Mr Langenegger was the sales manager of Beechcraft Sales South Africa (Pty)
Ltd, a company which sold American aircraft in the Republic.
He is himself a
pilot and he knew the Pilot and had flown with him frequently. The following
extract from his evidence is significant.
"En dra u - het u al ooit die oorledene, mnr Bates, gesien voordat hy uitgaan
op 'n vlug, die ag wat hy slaan op die vliegtuig, sy
beplanning?— Ek het/
en ek kan miskien tyd bespaar deur 'n paar antwoorde te gee. Hy was 'n man wat
altyd pligsgetrou sy
vliegtuig nagesien het voordat hy opgestyg het, en hy het versigtig te werk
gegaan, dieselfde met sy vriend en kollega en vennoot,
mnr James Lloyd. Hulle
was voorbeeldig in dié verband."
/
The Air
27
The Air Navigation Regulations, 1976, and Rules of the Air Regulations,
1975
.
I shall refer to these Regulations as ANR and Rules
respectively. They
were both proclaimed in terms of sec
22 of the Aviation Act, 1962 (Act 74 of 1962). There
is a great deal of
duplication. I will avoid repetition.
The Insurer set out a list of the ANR
and Rules which it
alleged had been breached. Only the following are
relevant
to the issues.
ANR 1
. "'Flight visibility' means the visibility
forward from the cockpit of an aircraft
in flight."
Rule 1
. 'IFR' means instrument flight rules (IFR)."
"'IMC' means instrument meteorological conditions (IMC).
'instrument meteorological conditions' means, atmospheric conditions
expressed in terms of visibility, distance from cloud, or ceiling,
less than the
minima prescribed for VFR flight in Chapter 4 of these regulations.
/'VFR'
28 'VFR' means visual flight rules (VFR)."
Rule 2.4(1)
. "The pilot-in-command of an aircraft shall
be responsible for the operation of the aircraft in accordance with the
provisions of these regulations, except that he may depart
from these
regulations in circumstances that render such departure absolutely necessary in
the interest of safety."
Rule 2.5 requires a pilot to familiarise himself with
all available information for the proposed operation.
Rule 3.1
"An aircraft shall not be operated in a
negligent or reckless manner so as to endanger life or property of
others."
Rule 3.2(1)
. "Except when necessary for taking off or
landing, or except by individual permission from the Commissioner for Civil
Aviation aircraft shall be flown -
(a)
(b) at a height not less than 500
feet above the ground or water unless. the flight can be made without hazard
or nuisance to persons or property on the ground or water."
/
Rule 4.1
29
Rule 4.1
. "A VFR flight shall be conducted so that
the aircraft is flown with visual reference to ground by day and to
identifiable landmarks by night and in conditions of visibility
and distance
from cloud equal to or greater than those specified in the following table:
Airspace Flight Distance
visibility from Cloud.
At or be- one and Clear of low 1 000 half km. cloud. feet above the
surface.
(These distances and conditions apply to airfields such as the one at Louis
Trichardt, i.e. airfields which are uncontrolled and have
no radar or radio
facilities.)
Chapter 5 of the Rules is headed:
"
Instrument
Flight Rules
". Rule 5.3
reads:
"Pilots shall be licensed for flight under the instrument flight rules."
ANR 2.4(10) and 2.6 set out
inter
alia that no person
shall act as pilot in command of an aircraft flying in IMC,
/ unless
30
unless he is the holder of a valid instrument rating.
The weather conditions
.
All the evidence set out hereunder was
given by witnesses called by the Insurer.
The aircraft left Lanseria airport at 07h48. At 08h45 it flew over the
Pietersburg navigation beacon. There was radio communication
between the air
controller of the Pietersburg aerodrome, a Major Venter, and the Pilot. The
Pilot reported his height as 9 500 feet
above sea level. He asked for leave to
fly over the beacon. Major Venter testified that the aerodrome was 4 100 feet
above sea level.
At that time the cloud cover was 8/Bths. He estimated the cloud
base to be between 600 and 1 000 feet above ground level. He conceded
that the
fact that he could see only cloud above him did not mean that the pilot of the
aircraft could not see the ground to the
left or right or ahead of him (the
pilot). A passage in his evidence reads:
/ "Hy kan..
31
"Hy kan tien teen een sien waar die goed (the cloud) ophou waar ek nie kan
sien nie."
Major Venter was quite sure that the pilot knew exactly
where he was.
Mr Keyworth was the chief meteorologist in the Weather Bureau of the
Department of Transport. He detailed his qualifications. He had
a satellite
photograph which showed the cloud coverage between Louis Trichardt and
Pieters-burg at 09hl5 on 4 April 1978. He was
able to pinpoint where Pietersburg
and Louis Trichardt were under the cloud. He testified that the photograph
showed that "on the
straight line" it was mainly cloudy between Pietersburg and
Louis
Trichardt; that there were holes in the cloud; that there was "almost a
tongue of thin cloud or no cloud" approximately midway between
Pietersburg and
Louis Trichardt but "more to the east of the straight line"; that a pilot above
the cloud would have been able to
see the ground.
/ Mr Keyworth
32
Mr Keyworth had also studied the official records of the weather station,
made at 08h00 at Pietersburg and Mara. He stated that at
that time the base of
the cloud at Pietersburg was 600 feet and the visibility under the clouds was 25
kms in horizontal distance;
that at Mara, some 25 kms west of Louis Trichardt,
the base of the cloud was 2 000 ft. and the horizontal visibility was 10 kms.
At
the pre-trial conference the parties, who had had the benefit of Mr Keyworth's
expert opinion, agreed that at 09h00 the cloud
base at Pietersburg was 1 000 ft.
above ground level and the horizontal visibility was 40 kms. As stated, this was
agreed and Mr
Keyworth was not asked to deviate from this. I shall, however,
deal with the issues on the basis that the cloud base was between
600 and 1 000
ft above ground level.
Mr Du Plessis had previously been an air mechanic in the South African Air
Force. He left Louis Trichardt
/ that
33
that morning at 07hOO hours and travelled on the main road (it is tarred)
which runs from Louis Trichardt to Mara; he proceeded to
a farm near Nebo; there
he was repairing a water tank when he saw the aircraft. This place he estimated
was about 1 km from Ottoshoogte.
He testified that Louis Trichardt was clear of
cloud or mist; that the
road up to Ottoshoogte was clear of cloud or mist; that it crossed
Ottoshoogte and that Ottoshoogte was in cloud; that from Ottoshoogte
the road to
where he was working was
clear of cloud or mist; that this place was about 50 metres
north of the
Mara main road; that he was looking east when he
heard and saw the aircraft which was south of him when he
first saw it; that it was about 200 ft above the ground;
that this estimate could be out by 50 ft; that the aircraft
passed between him and Ottoshoogte; that it was travelling
from south to north; that it must have passed directly
over the airfield or over its western boundary; that he
could see the aircraft clearly; that it was flying under
/ the
34
the cloud base; that it was flying slowly but under con-trol; that there was
a high ridge running east to west just south of the road;
that he only saw the
aircraft as it came over the ridge; that although it was clearly visible from
the air the pilot of the aircraft
would not have been able to see the road until
he had crossed the ridge; that he could see the foot of the Soutpansberg but
above
that it was covered in cloud; that shortly after the aircraft passed him
the engines were opened up ("oopgemaak") and it started
to climb; that it
disappeared into the cloud on the Soutpansberg and he heard the crash. An aspect
of his evidence on which some
reliance was placed by the
Insurer was that in similar conditions there was usually
mist from Bandolierkop to the Soutpansberg. He does not
say whether this was so on that day. In fact he does not
suggest that one could not see under the clouds to the south
of the
airfield. Had this been so this would have been
/ put
35
put to him, especially as he had testified that from Bandolierkop to Louis
Trichardt the ground surface was level.
Gerald Murphy was employed by the
Forestry
Department. When he left Louis Trichardt
very early
that morning the sky was overcast but Louis Trichardt
was clear of mist.
He proceeded to his place of work;
this was very much higher than Louis Trichardt; he heard
the aircraft but did not see it. His evidence does not
assist in regard to
the cloud or mist conditions in the
vicinity of the airfield. An extract from
his evidence
suggests that there was no mist south of Louis Trichardt.
It reads:
"En toe u nog op Louis Trichardt was, was die uitsig - kon u nog in die
Pieters-burg rigting sien, ek neem aan daar was nie mis in
daardie rigting
nie?-- Nee, ek glo nie, maar jy kan nie van my plek af sien nie.
ja.-- Maar ek glo nie daar was mis nie.
U glo nie daar was mis in daardie area nie?-- Ja."
/Had
36
Had he observed mist after he left Louis Trichardt, in the area south of
Louis Trichardt, he would probably have been asked to give
that testimony.
Dinani is apparently the only employee at the airfield. He keeps the office
buildings and surrounds clean. He was only asked "'n geruime
tyd" after the
events about the crash and the weather conditions. He did not know south from
north or east from west. He did however
know where places such as Messina and
Mara were when he was at the airfield. He testified that he remembered the day
of the crash;
that he heard the aircraft but could not see it; that the sound of
its engines never varied during the time that he heard it; that
the aircraft
flew over the airfield; that he could not see it because the mist was down to
the ground at the airfield; that the sound
of the engines suddenly stopped. In
cross-examination he said that it was on the Messina side of the airfield
/ when
37
that he first heard the aircraft, and from the sound of the engines it was
flying normally. From hand indications which he made in
the Court a
quo
it appeared that he thought
it was flying from west to east.
Colonel Jandrell, a very experienced pilot with
11
000 flying hours and considerable instructional and
general flying time, was
called by the Insurer to give expert evidence. His evidence will be discussed
later. Having testified about
the ability of someone in Dinani's position and
the letter's inability to see because of the mist, he said in answer to the
Judge
a quo;
"Yes, he is talking about the pilot now?-- Yes, but he may see along the edge
of the mist you see, Sir. Mist has a character of being
in puddles or pools.
Yes, that is right.-- So, therefore, it is possible for the pilot to see
beyond the edge of the mist whereas the man on the ground
cannot see beyond the
edge of the mist because he is in the cloud."
/ Captain
38
Captain Worthington, the expert called by
Bates & Co and the Estate, when testifying about the
mist at the
airfield, said:
"What is there - is there any possibility of the... how far would you say
that the mist which he (Dinani) observed could extend? Can
one get any idea of
how far it would extend or how localised it would be?— Mist, as Col
Jandrell pointed out, is often quite
local in its effect. It is low lying in
marshy ground. I have on observation of this larger scale map observed that
there is a stream
on each side of the airfield which would be conducive to this
and the puddle of mist... the mist could well have been a puddle, as
have been
suggested. The thickness probably might not have been more than 50 feet; it
could be quite thin."
Col Jandrell, in another context, said:
"Very often a pilot can see a hole in the cloud which a man on the ground
cannot see, but also the pilot has the other advantage;
he can see bad weather
further than the man on the ground can see. So my point is this, if I can give
you two answers: the one answer
is that he would have had a better view of the
prevailing
/ bad
39
bad weather towards Louis Trichardt than anybody else on the ground. The
second point is that I cannot say whether there were any
holes or not through
which he could see the ground.
Yes, we do not know how he came below the cloud?— We do not know
that."
The topographical features
.
These are to be gathered from the
official aviation 1/1 000 000 map found in the aircraft and from the evidence of
Du Plessis and
Capt. Worthington. The map shows the main road from Pietersburg
to Louis Trichardt. It passes through Bandolierkop. This road runs
approximately
from south to north. A railway line from Tzaneen, ie from an easterly direction,
runs through Bandolierkop and then
runs on to Louis Trichardt. This line lies
well to the west of the road but also runs approximately south to north until it
reaches
a point which is "two to three miles" from the airfield, where it turns
at an angle of nearly 35 in a north-easterly direction towards
/ Louis Trichardt
40
Louis Trichardt. From Louis Trichardt the railway line to Mara runs for a
very short distance in a south-westerly direction at an
angle of near 215 .
These railway lines running at these angles of 35 and 215 are parallel and very
close together. The railway line
to Mara there-after runs almost due west. There
is also a power line running from Pietersburg to Louis Trichardt. The air-field
is
shown on the map slightly north of the place where the two railway lines make
their bends. It is just north of the Mara line. Further
north of the line to
Mara is the main tarred road to Mara. This is clearly demarcated and runs almost
due west. The airfield is depicted
as a circle situated between the Mara line
and the Mara road. It appears clearly from the map that the airfield lies very
close to
the points where the two railway lines bend as detailed above. These
roads, the railway lines, the power line and the area of the
airfield
/ are
41
are all so clearly marked on the map that it needs no expert
to tell a
court that a pilot to whom the ground is visible
could not avoid realising
that the road from Pietersburg
to Louis Trichardt runs near the airfield;
that the rail
way line to Louis Trichardt at the place where it bends,
is
close to the airfield (it is in fact within "2 or 3
miles); that the railway
line to Mara bends just south
of the airfield; that the airfield lies very
close to
and, as it were, in this bend; that the road to Mara is
north of
the airfield and almost parallel to the Mara
railway line. The ground south
of the airfield is flat
for more than 40 kms and one would not have to be
directly
over the road or railway line to see them, but they would be seen
before one actually crosses them, The map clearly shows the Soutpansberg
to the
north of the Mara road, running from west to east and parallel to the Mara road.
So much for what is shown on the map. What
is
/ not
42
not shown on the map is a ridge which, so it was common cause at the trial,
is 328 feet higher than the airfield and which is immediately
south of the Mara
road.
It is important to note that both Du Plessis and Capt Worthington testified
that the pilot of a low-flying aircraft would not be able
to see the road before
crossing the ridge. The evidence does not indicate whether the ground rises
gradually from the airfield to
the top of this ridge or whether it is a steep or
moderately steep rise. Photographs taken from ground level do not assist in
ascertaining
when the Pilot should have realised that there was such a ridge,
nor was it shown that he should have realised that the Mara road
was, as it
were, "masked" by the ridge.
Another feature which is not shown on the map is a ridge to the west of where
Du Plessis was standing. This ridge apparently rises
quite steeply and runs from
south to north. Du Plessis testified that this ridge and
/ Ottoshoogte
43
Ottoshoogte were covered in mist or cloud. Although Du
Plessis is no
expert as to the turning radius of an aircraft,
it is interesting to note
that he said -
"Regs kon hy nie (draai nie) want Ottoshoogte was toe.
Maar die vraag is nou toe u horn gesien het daar waar u was net oor die pad,
wat
kon hy toe doen? Kon hy nog links draai?— Nee, dit was toe te laat
gewees."
It appears from the evidence of Du Plessis and Worthington that the forward
vision of the Pilot from where Du Plessis was, was 2 kms
and that the vision to
the Pilot's left and right was considerably less. The distance from Du Plessis
to the airfield was approximately
1½ kms. The airfield consisted of two
strips in the shape of a T. These were merely strips where the grass was cut and
were
not prepared bases. The building on the airfield is apparently only an
office or two.
The importance of objects on the ground is well
/ illustrated
44
illustrated by the evidence given by Col Jandrell and Capt Worthington which
will be set out later.
AD C AND D ABOVE
The expert witnesses called by the parties were Col Jandrell for the Insurer
and Capt Worthington for Bates
& Co and the Estate. The evidence given by Col Jandrell takes up 170
pages of the record and the evidence given by Capt Worthington
97 pages. Col
Jandrell was led at length on the interpretation of the ANR and Rules. He gave
lengthy opinion evidence as to whether
or not the Pilot had been negligent or
had breached the ANR or the Rules. Capt Worthington was also asked to give
evidence on the
latter aspects. All this evidence was inadmissible in that it
was for the Court a
quo
to interpret the ANR and Rules. The evidence of
experts is admissible only whenever by reason of their special knowledge or
skill
they are better qualified to draw inferences than the judicial
/ officer
45
officer. In short, their evidence is admissible on subjects upon which the
court is incapable of forming an opinion or would need
assistance so to do; see
Hoffman and Zeffert,
South African Law of Evidence
, 3rd ed at p
83.
The evidence of the two experts was thus admissible to
assist the Court a
quo
by telling it what all pilots would
probably
do in the conditions present in this case. Once the facts
had been
established and that evidence had been given, it
was the Court's function to
decide whether there had been
negligence or the breach alleged.
It would be a task of supererogation to set out the evidence given by the two
experts. I will set out the aspects of their evidence
which are relevant.
There is no need to set out Capt Worthington's qualifications and flying
history in detail. I merely wish to stress that he was a
pilot with 16 700
flying
/ hours
46 hours of which 6 500 hours were instructional and which in
turn included civil and military instruction. He would thus know what
pilots
would be expected to do in all circumstances . He would also know how visibility
would be affected by cloud and mist conditions.
He had flown to Louis Trichardt
via
Pietersburg on an inspection in
loco
and had been to the scene
of the crash, the place where Du Plessis was at the time, the airfield and had
also inspected the surrounding
area. He had studied the aviation 1/1 000 000 map
and other official maps of 1/500 000 and 1/50 000. He testified that the Pilot
had filed a flight plan which he need not have done; that this indicated that
the Pilot was a person who took considerable care in
planning his journeys. This
confirmed that what he had learned about him was correct, viz. that he was a
careful and responsible
pilot; that having regard to his qualifications the
Pilot was experienced
/ and
47
and competent to fly in IMC (he did not suggest that the Pilot's licence
qualified him to fly a South African registered aircraft
in such conditions);
that he accepted that there was 8/8ths cloud at Pietersburg; that he agreed with
Mr Keyworth's evidence that
there were gaps in the cloud; that a pilot of an
aircraft would have flown with visual reference to the ground and would have
been
able to descend through a gap in the cloud and thereafter fly under the
clouds and have a forward visibility of 25 kms. He said that
this is what all
pilots would have done. Although he went on to describe what the Pilot would
have done, it is implicit in his evidence
that this is what all pilots would
probably have done. He testified that the Pilot would have studied the map; that
he would have
seen the roads, the railway lines, the power line, the circle
denoting the airfield and the Soutpansberg. He also said that the railway
line
and power line formed a funnel and that this funnel and
/ the
48
the other physical features are what the Pilot would have had regard to; that
the Pilot would have realised that the airfield was
within the circle and just
north of the Mara railway line and south of the Mara road; that he would have
known that after he crossed
the Mara railway line he should see the airfield
before reaching the Mara road; I venture to again say that a court would not
need
an expert to tell it that a pilot would study a map before taking off and
would see all the physical features thereon and have regard
to them. Capt
Worthington gave the distances from the airfield to where Du Plessis
was
standing and to where the crash occurred. His distances were arrived at by
measurements from the maps. The distance from the airfield
to the Soutpansberg
was 4 to 5 kms and from the Mara road to the mountain was 3 to 4 kms. However
that may be, it is clear that even
on Du Plessis's evidence the distance from
the airfield to Du Plessis was more than 1½ kms and the distance he gave
from there
to the Soutpansberg varied from 1½ to 2 kms. Capt
Worthington
/testified
49
testified further that the ground surface prior to reaching the airfield area
was level for some 40 kms; that a pilot would have been
able to see the ground;
that having regard to Du Plessis's and Dinani's evidence, the reason why the
Pilot did not see the airfield
was because there was a local patch of mist over
it. It will be remembered that Col Jandrell and Capt Worthington both testified
as to such type of mist patches. Capt Worthington stressed that the map did not
show the ridge south of the Mara road or the ridge
to the west of where Du
Plessis was and that the southern ridge is 328 feet higher than the airfield.
This in fact was common cause.
Du Plessis said when the aircraft passed over him the aircraft was 200 feet
(or possibly 250 feet) above him. There is no evidence
to say how much higher
than the ridge the aircraft was when it crossed the ridge. It is thus not
possible to say how high the aircraft
was
/ when
50
when it passed over the airfield. Capt Worthington also
gave evidence as
to aircraft speeds. He said the cruising
speed of this aircraft was 160 kms
per hour and that this
would probably be reduced to 120 kms per hour if the
Pilot
was looking for the airfield to land; that the Pilot, if
he saw the
Mara road timeously, would know that that was
his safety limit. He would
probably have turned before reaching
the road; he did not (and could not) see
the road timeously
because of the ridge (the existence of which he did not
know);
that he was then in a critical situation and had to decide what
to
do; that it was generally accepted in the aviation world
that the reaction
time in such a situation would be 5
seconds; that the Pilot could not turn
either right or
left because Ottoshoogte and the western ridge were covered
in cloud; that an aircraft gains height more rapidly ,
when flying
straight than when turning; that in this
dilemma the Pilot, as testified by
Du Plessis, in-
/ creased
51
creased the engine power and his speed and proceeded straight on to climb as
rapidly as he could in an effort to get over the Soutpansberg
which was 2 600
feet higher than the airfield; that he very nearly succeeded as he crashed only
400 feet from the top of the Soutpansberg.
If one has regard to Du Plessis's
evidence it will be seen that Capt Worthington's reconstruction is not
conjecture but a proper
inference from the physical facts and the facts proved
by Du Plessis.
An important feature is that Capt Worthington stressed that it is most
unlikely that the Pilot could
have been so accurate as to have arrived over
the airfield by the use of instruments; that in order to so arrive he must have
used
the physical features already detailed. There is no doubt from Capt
Worthington's evidence that the Pilot knew where he was. The
following passage
from Col Jandrell's evidence indicates that he too was of the
/ view
52
view that the Pilot knew where he was:
"The Pilot in the air has a larger area which he can see so it is possible
that he saw the environment, he probably saw Louis Trichardt,
he knew where the
airfield was and so one presumes that he could see better than the man standing
on the ground."
Col Jandrell, who was as fully qualified an
expert
as was Capt Worthington, testified that, having
listened to the evidence, especially that of Venter, Du
Plessis and Dinani, in his view the weather was so bad
that the Pilot should not have proceeded beyond Pieters-
burg. Nor should
he thereafter have attempted to find
the airfield and should not have proceeded beyond where
the airfield was and that by doing so he breached the ANR
and Rules. He did not, however, dispute the evidence
given by Keyworth; he
conceded that if there were the
holes and the "funnel" in the clouds, a pilot would see
the ground and would not be in IMC; that there was no
/ evidence
53
evidence to establish where the Pilot descended; that this
could have been
done by coming down through one of the
gaps in the cloud in VFR conditions;
that thereafter the
Pilot could have flown at 500 feet and with full
forward
visibility; that Dinani's evidence was consistent with a
pool of
mist over the airfield; that on Du Plessis's
evidence the Pilot was still flying in VFR conditions.
He testified that
the manoeuvring area around an airfield
was 2 kms and said :-
"And it would be in that area that you would carry out your landing
approach?— That is correct.
And it would be in that area in which you would be justified in being below
500 ft?— That is correct.
If you wanted to land?.— That is correct."
He agreed that the reaction time for a pilot, in situations
such as the Pilot was in, would be 4 to 5 seconds but added
that if he was forewarned of the danger this would be much
/ less
54
less. He also testified that before taking off for an aerodrome which he,
Jandrell, did not know, he would study the charts to see
what the topography was
like; that when a pilot was proceeding to an airfield which might be difficult
to find, he would seek out
some pro-
minent object to use as a guide. It was
Col Jandrell's
view that the Pilot should have realised the dangers before he
reached the Mara road; that he should have turned back before that
stage; that
because he had left it so late he had placed himself in a critical situation;
that he was therefore negligent. Despite
the concession which he had made, as
appears from the above extract from his evidence, he was of the view that when
the Pilot was
over the Mara road he was in breach of ANR in that he was less
than 500 feet above the ground. If one has regard to all the concessions
made by
Col Jandrell it will be seen that save for the latter two aspects his evidence
does not conflict with Capt Worthington's
evidence.
/I proceed
55
I proceed to sum up the evidence. It must be accepted that the Pilot studied
the map before take-off; that he would have seen the
roads, the railway lines,
the power line and the situation of the aerodrome; that while above the clouds
he probably had visual reference
to the ground; that it is not known when he
descended to a level below the clouds; that he was able to descend without
breaching
VFR; that once below the cloud he could proceed below the cloud at not
less than 500 feet; that at all times until after he passed
over Du Plessis he
had "flight visibility" in excess of 1½ kms; that he arrived
at the
airfield by visual reference to the physical features; that having crossed the
Mara railway line at the correct place he failed
to see the airfield because it
was under a local patch of mist; that he knew where he was; that he had reduced
his speed; that he
was entitled to fly over the airfield as this was 4 kms from
the Soutpansberg; that he justifiably believed that he would see the
Mara
/ road
5.6
road timeously; that this would be his normal "cut off" limit; that the Mara
road was masked by the east-west, ridge; that the map
did not show the
south-north ridge to the west; that he then found that he could not turn left or
right; that emergency was created
by the fact that he had not been able to see
the Mara road timeously and the fact that he could not turn to his left because
the
south-north ridge was there and covered in cloud.
The result of all the above is that it has not been shown that he breached
ANR or was negligent up to the time of passing the airfield.
He knew that if he
passed
it he would thereafter see the Mara road and this was his cut-off
point. He would know that he could, if he saw the road timeously,
turn round or
turn left. He did not see the Mara road timeously, not because he breached ANR
or was negligent but because it was
masked by the ridge, the existence of which
he did not know. He only saw the road when he was over it. At that stage
/he
57
he realised that he could not turn to his left because of the south-north
ridge of which he did not know. That ridge and Ottoshoogte
were covered with
cloud. He needed the reaction time of 4 to 5 seconds to decide what to do. It
has not been shown that he should
have known or had time to realise that the
east-west ridge would mask the road or that there would be a south-north ridge
to his
left. It has not been shown that up to the time he passed over Du Plessis
he had breached ANR or was negligent. Furthermore, it has
not been shown that
his conduct thereafter was in breach of ANR or negligent. It follows that it has
not been shown (the onus was
on the Insurer) that he breached Rules 2.5 or
4.1.
As to Rule 3.2(1)
Firstly, it was not shown that, when it passed the airfield, the aircraft's
height was less than 500 feet. The fact that it was less
than 500 feet when it
crossed the
/ ridge
58 ridge was not due to any fault of the Pilot. He had no reason
to believe that there was such a ridge. Secondly, the evidence is
that he was
flying slowly; that he was within the airfield manoeuvring area. This suggests
that he was preparing to land as soon
as he saw the airfield.
All that need be said is that it has not been shown that he
was not
preparing to land as soon as he located the airfield. Thirdly, it has not been
shown that prior to his passing over the ridge
and executing the climb, he was a
"hazard or nuisance to persons or property". As has been shown above, once he
was in the emergency
situation he was forced
to take the action which he did
in an effort to clear the
Soutpansberg. It follows that it has not been shown that he breached Rule
3.2(1).
As to Rule 3.1
I have earlier set out that it has not been shown that the pilot was
negligent. I wish to add that, even if
/ it
59
it had been shown that he was negligent, Bates & Co is entitled in Case B
to an order indemnifying the Estate against the claims
by the dependants of the
deceased passengers. The only indemnity which a pilot was given in terms of the
extension clause was an
indemnity arising
from his negligence. If a pilot
were not negligent he
would have no need of an indemnity. The contention that
a pilot was indemnified only if he was not negligent would negate the promise
to
indemnify a pilot of the aircraft. To read it that way would be tantamount to
the Insurer
saying, "I will insure you against your liability for
negligence on condition that you are not negligent". See
Woolfall and
Rimmer Ltd v Moyle and Another
(1941) 3 All ER 304
(C A) at p 311 A.
See also Gordon & Getz,
The South African Law of Ins
ur
ance
3rd ed at p 175;
Nathan N 0 v Ocean Accident and Guarantee Corporation
Ltd
1959 (1) SA 65
(N) at pp 72-74.
/ It
60
It follows that Rule 3.1 does not vitiate the promise made by the Insurer in
terms of the extension clause.
As to Rule 5.3. and ANR 2.4(10) and 2.6
It has been found that the Pilot was not flying in IMC, hence these
regulations do not apply.
As to Rule 2.4(1)
Having crossed the Mara road the Pilot found
himself in an emergency situation not of his own making. The action which he
took was
in an effort to save the lives of himself and his two passengers. His
conduct was,
therefore, not in breach of this Rule.
AS TO E ABOVE
In view of the above conclusions it is not necessary
to deal with this issue.
To sum up. The Insurer failed to prove that
/ the
61
the Pilot was negligent or breached the ANR or, Rules, hence in case A its
main claim, which was based on delict, should have been
dismissed and its
alternative claim, which was based on breach of contract, should also have been
dismissed. It follows also that
Bates & Co was entitled to the indemnity and
the declaratory order sought in case B.
The parties were not agreed on the date from which interest should run in the
event of Bates & Co succeeding in Case B. It would
appear that no proper
demand for payment of the amount due was made by Bates & Co prior to the
date of the service of the summons.
Interest will be allowed from that date.
There remains the question of costs in this Court. The record as originally
filed in this Court was not in order. A petition was filed
seeking condonation
in this respect. The appellants are not entitled to the costs thereof and should
pay the respondent any costs
/ occasioned
62
occasioned to it by the filing
of the petition.
The record consists of 13 volumes. Included in the record were the Government
Gazettes proclaiming the ANR and Rules. These run into
173 pages and are
contained in volumes 11, 12 and 13. Of these at the very most 30 pages were
relevant. Both parties handed in
"bundles" of documents in the Court a
quo
. These run into 217 pages and are contained in volumes 8, 9 and 10.
Documents only become part of the record when referred to in
the evidence or in
the pleadings or if they are handed in, in the sense that their contents are
admitted, by consent. If they have
not become part of the record there is no
need to make any reference to them. I have examined the 217 pages included in
this record.
Of these there was no need to include, again at the very most, more
than 40 pages. Costs occasioned by the inclusion of
/ the
63
the unnecessary pages should not be paid by the Insurer. It is hoped that the
attorneys for the appellants will not raise an attorney
and client fee against
the appellants in respect of these irrelevant pages.
The orders made are as follows:
A. The appeals in both cases
succeed.
B. Save to the extent set out in para. C hereof
the respondent in both
appeals is to pay the
costs of both appellants. Such costs are
to include
the costs of two counsel.
C. The appellants are not
entitled to the costs
occasioned by the inclusion of 177 pages
included in
volumes 8, 9 and 10 and of
140 pages in volumes 11, 12 and 13,
D. The order of the Court , a
quo
in the case of
The Aviation
Insurance Company of Africa Ltd
(plaintiff) versus Bates & Lloyd
Aviation
(Pty) Ltd and Gordon Lang & Richard
Anthony
Lyons (defendants)
(case No 3465/81) is set
aside and
there is substituted an order
reading:
/ "Plaintiff's
64
"Plaintiff's claim is dismissed with costs, which costs include the
qualifying fee of the expert witness, Captain Worthington".
E. The order of the Court a
quo
in the case of
Bates & Lloyd
Aviation (Pty) Ltd (plaintiff) versus The Aviation Insurance Company of
Africa
Ltd (defendant)
(case No 5584/81) is set aside
and there is substituted an order reading:
"(a) Judgment for plaintiff in the sum
of R46 549,60 plus
interest thereon at 11 per cent per annum from the date of service of the
summons.
(b) It is declared that the Aviation
Insurance Company of Africa Ltd is
obliged to indemnify the estate of the late George Edward Bates in respect of
all sums which the estate may become legally liable
to pay as compensation
(including any costs which may be awarded against the estate) up to an amount of
Rl 000 000 to the dependants
of Anthony Challis and Karel Gerhardus
Dannhauser.
/ (c) The
65
(c) The defendant is to pay the plaintiff's costs which costs are to include
the qualifying fee of the expert witness
Captain Worthington".
O GALGUT.
TRENGOVE, JA)
HEFER, JA) CONCUR.
SMALBERGER, AJA)