CIVIL ACTION NOS. HBC 1024 AND HBC 1025 OF 1983
BETWEEN:
:
KERRY FRANCIS THOMAS
OWEN CLIVE POTTER
Plaintiffs
/p>
TURTLE AIRWAYS LIMITED
First Defendant
RAVINDRA SINGH MINHAS
Second Defendant
Sn Stanton and V. MaV. Maharaj for the Plaintiffs
R.A. Smith for the Defendants
Dates of Hearing and Submissions: 31st July, 1st August 1997,
16th March, 8th and 19th May 1998
Date of Judgment: 21st October 1998
JUDGMENT
Both these actions were consolidated by consent. The Plaintiffs were passengers in a Cessna 172 light aircraft which they had chartered
from the First-named Defendant on the 23rd of November 1981 for a flight from Nadi to Suva. The Second-named Defendant was the Pilot
of that aircraft which crashed into the Bay of Islands at Lami near the Tradewinds Hotel at approximately 11.20 a.m. that day.
Both passengers suffered serious injuries which are detailed in the various medical reports on them submitted by consent of the parties
at the hearing. I shall refer to some of these injuries later.
There was a third passenger also on the aircraft, a Mr. Tommy Hong of the United States, who also suffered injury including internal
bleeding, and who died of a heart attack in the Colonial War Memorial Hospital on the 25th of November 1981. No claim appears to
have ever been made in the Courts by Mr. Hong's estate but a newspaper report in the Fiji Times dated 26th November 1981 stated that
the owner at the time of the First-named Defendant, a Mr. Richard Evanson, had undertaken to pay all Mr. Hong's medical and funeral
expenses. At the time of the accident Mr. Hong was visiting relatives in Suva.
Whilst on the subject of the newspaper report I should mention here that by consent the Plaintiffs tendered as Exhibit P.11 a folder
containing among 143 documents various newspaper articles relating to the accident. I shall have occasion to refer to one of these
articles later when discussing the actions of the Pilot in relation to Article 25 of the Warsaw Convention which is part of the law
of Fiji having been first enacted in the Carriage By Air For Overseas Territory Order 1967 which is now part of the Civil Aviation Act Cap. 174 of 1985.
These actions have had a somewhat chequered history. The Writ was issued on the 11th of November 1983 by the Plaintiffs' former solicitors
and Appearances entered only on behalf of the First Defendant on the 16th of April 1985. I was informed that the Pilot of the aircraft,
the Second Defendant, could not be located but no evidence was given to me or to Scott J. in later interlocutory proceedings as to
any attempts to locate him although I was told that he had apparently returned to his own country Canada some time after the accident.
The interlocutory proceedings before Scott J. were in September 1982 when he granted applications by the First Defendant to have the
actions dismissed for want of prosecution.
The Plaintiffs successfully appealed Scott J.'s decision to the Court of Appeal which delivered its judgment on the 20th of August
1993. The actions thus came before me for trial nearly two years later.
CIRCUMSTANCES OF THE CHARTER AND THE FLIGHT FROM NADI
TO BAY OF ISLANDS
At the time of the accident both Plaintiffs were employed by Seiko Time Pty Ltd, the First-named Plaintiff as Export Manager and the
Second-named Plaintiff as Director of Marketing of that company.
On 21st November 1981 they arrived at Nadi by a Qantas flight from Sydney, the purpose of their trip being to present their Fijian
dealers with Seiko's summer promotional plans and dealer incentive schemes. The presentations were to be conducted at the Nadi Regent
Hotel on 22nd November 1981 and thereafter at Suva Tradewinds Hotel on 23rd November 1981 and finally at the Fijian Hotel on 24th
November 1981. The presentations were to be attended by all dealers in those districts and Seiko's Agents, Pacific Mercantile Pty
Ltd.
The first presentation on 22nd November took place as planned and was attended by among others, a Mr. Kurashina, Managing Director
of Seiko Time Pty. Ltd.
After the presentation the Plaintiffs packed up the equipment, Mr. Kurashina electing to travel the next day to the Tradewinds Hotel
in the vehicle carrying the equipment for the presentation there. The Plaintiffs therefore decided to travel by plane to Suva.
They had tickets to fly by Air Pacific on a scheduled flight from Nadi to Suva on 23rd November 1981.
When they arrived at Nadi Airport at about 7.40 a.m. on 23rd November 1981 they found that their flight with Air Pacific had been
re-scheduled and no seats were available on that flight. They had to be at the Tradewinds Hotel by mid-day so they chartered a Cessna
172 aircraft from the First Defendant to fly them to Suva. People were also meeting them at Suva at 12.00 noon to help set up the
presentation at the Tradewinds Hotel when the truck arrived from Nadi with the display equipment.
It was not until about 9.45 a.m. on that day before it was confirmed that they could not go by Air Pacific to Suva. As their vehicle
with the equipment had left Nadi at about 8.00 a.m. that day and realising that the journey to the Tradewinds Hotel by road would
take about four hours they decided that they would have to charter a light aircraft to enable them to reach the hotel in sufficient
time, Mr. Potter being of the opinion that the evening's presentation would have been jeopardised if they did not charter an aircraft
from Nadi in order to arrive in time.
An agent for Air Pacific directed them to Turtle Airways' office and it was agreed that Turtle Airways would fly them to Suva in a
light aircraft for $200.00 which Mr. Potter paid by a Credit Card.
When it was known that they had chartered an aircraft Mr. Hong approached them and asked whether he could have the spare seat on their
aircraft. The Plaintiffs agreed. They took off from Nadi Airport at 9.59 a.m. on 23rd November 1981 in a Cessna 172 aircraft, registered
No. DQ FD1 the pilot of which was the Second Defendant.
The Plaintiff Potter sat in the co-pilot's seat from where he said he could clearly see the altimeter.
The weather at Nadi was fine and clear and while taxiing to take off Mr. Potter asked the pilot what the weather was like in Suva.
He replied, "I have just received a weather report that the weather in Suva is cloudy but clearing." Mr. Potter says that
he asked this question because on the morning of their departure another guest at their hotel had remarked to him that the rain was
"pissing down" in Suva.
They climbed to a height of about 3500 feet and after about 10 to 15 minutes from take-off they encountered very heavy clouds. At
this point the pilot produced a map which he placed on his lap and to which he referred a number of times during the rest of the
flight.
Mr. Potter says the pilot appeared to be in radio contact on several occasions during this part of the flight. The aircraft then descended
to about 900 feet. Visibility was good at times at this height and Mr. Potter says he could see the ground.
After passing Pacific Harbour they ran into very heavy rain and the pilot descended to 300 feet. It appears there was no windscreen
wiper on the aircraft and the rain beating against the windscreen made visibility ahead practically nil. Visibility at the side of
the aircraft was patchy at 300 feet although visibility below was good at times. Mr. Potter says the weather then appeared to be
getting worse.
The pilot kept flying at this altitude for about 10 minutes and as the weather worsened the pilot descended at times to 100 feet and
at one occasion to 80 feet. Mr. Potter said that he was certain about these heights because he could see the altimeter from where
he was sitting in the co-pilot's seat.
The pilot then said after speaking on the radio words to the effect that "I will be unable to approach Nausori Airport at Suva
and I am turning back to Pacific Harbour to land." He then said, "My company will provide road transport to Suva for you."
The pilot then banked and turned the aircraft out over the ocean. Mr. Potter says that at this time visibility was nil on all sides
and below and the pilot eventually increased the altitude of the aircraft to about 300 feet. Mr. Potter said that when commencing
this manoeuvre they nearly went into the ocean for the first time. When this occurred and just as the pilot emerged from the slide,
he began to cry uncontrollably. Mr. Potter says he himself became very scared and most uneasy.
They flew on for some minutes before they sighted land again and the aircraft appeared to fly in a zigzag pattern for some time. Mr.
Potter says the pilot did not appear to know their exact position.
They then saw the road below them and the pilot said "I am going to follow the road to Pacific Harbour". Mr. Potter says
the pilot followed the road at altitudes of about 100 feet and at other times at treetop level and at one time below treetop level
for several minutes.
Mr. Potter says that at this time the pilot appeared to be under a lot of pressure and indeed appeared to be panicking. He appeared
to try to recover himself and seemed to be following the road because he was looking down at the road as the flight continued.
After several minutes the Plaintiff Thomas said he called out to the pilot, "We have passed Pacific Harbour". The pilot
did not seem to hear so Mr. Potter says he tapped him on the shoulder and told him but he made no acknowledgment and kept flying.
Mr. Potter says he started crying again and blubbering some words which he could not understand.
A few minutes later they turned towards the sea. Visibility was again nil and they lost height very rapidly a couple of times in a
sideslip movement. Mr. Potter says they appeared to be nearly up side down on one occasion at this point.
The last thing Mr. Potter recalls is the plane nose diving some buildings which he believes were the Tradewinds Hotel when he fell
forward and hit his head on the instrument panel and lost consciousness.
I have taken the above description of the flight from an affidavit by Mr. Potter sworn on 25th of July 1997 and from a broadly similar
affidavit sworn by Kerry Francis Thomas on the 29th of July 1997.
The Plaintiffs had each sworn a previous affidavit, Kerry Francis Thomas on the 26th of March 1982 and Owen Clive Potter on the 22nd
of December 1981. In an affidavit of 22nd December 1981 relating to the circumstances of the accident Mr. Potter makes no mention
of the pilot "crying and blubbering" although he does describe the pilot as panicking in that affidavit. In neither of
his affidavits does Mr. Thomas say the pilot was panicking nor that he was crying or blubbering.
Both Plaintiffs gave sworn evidence but their cross-examination by counsel for the Defendant was directed almost entirely to their
injuries and current disabilities and the cost of replacing various personal items lost or damaged in the crash. However at p.90
of the transcript of 1st August 1997 the Plaintiff Thomas said that when the pilot took off from Nadi he set off on a course that
would have taken him direct to Nausori and not around the coast. He then encountered clouds at about three and a half thousand feet
and Mr. Thomas thought he intended to go through the cloud. However he then turned and headed to the coast when he could not get
through the clouds.
The only other witness called by the Plaintiffs was Mr. Gregory Matthews who is an experienced airman who lives in Sydney and since
1968 has accumulated 12,945 flying hours.
He is endorsed on one jet aircraft, 7 turbo-propeller and 25 piston-powered aircraft. He is familiar with Cessna aircraft, including
the Cessna 172 aeroplane and has flown these and similar light aircraft on occasion. His flying career has been completely in general
aviation and he has been employed as Chief Pilot and a Check Pilot a number of times. He has owned aircraft and operated an aviation
business.
He has flown in all weather conditions including weather conditions as bad as those experienced by the pilot during the flight in
question. He says he is very well aware of the difficulties experienced by pilots under such conditions.
He is also very well aware of the standard of skill and competence required of a pilot in such conditions and of his duties and responsibilities
to his passengers.
Mr. Matthews prepared a report dated 25th June 1997 on the accident and for the purpose of making the report had the following material
made available to him:
1. Accident Investigation Report by Mr. R. Cecil Clarke ("Clarke Report"), including a statement by the Pilot and other
witnesses namely, Unaisi Batirerega, T. Raiwalui, C.A. Hayward, Emma Gibbs, and Turtle Airways Operations Officer Mrs. Vasiti Dyer.
2. A map of the final flight path of the Cessna.
3. Statements by Mr. Potter on 14 December 1981 and 22 December 1981.
4. Statement by Mr. Thomas on 26 March 1982.
Mr. Matthews was cross-examined at considerable length by counsel for the Defendant but refused to be shaken in the opinion he expressed
in his report that the Operator Turtle Airways Ltd and the pilot were guilty of gross negligence and conducted the flight recklessly,
and with knowledge that damage would probably result. The latter part of this phrase "recklessly, and with knowledge that damage
would probably result" is a reference to Article 25 of the Warsaw Convention as amended at The Hague 1955 on which the Plaintiffs
rely in this action. If they can persuade the court that the pilot acted recklessly and with knowledge that damage would probably
result from his action they are entitled to damages at large. If they fail in that attempt they will still be entitled to some damages
under Article 22 of the Convention. In Fiji by paragraph 2 of the Carriage By Air Overseas Territory Order 1967 on a domestic flight
these are limited to $48,369.28 for personal injury and $276.40 for loss of property in the absence of any agreement between the
carrier and the passenger to a higher limit to liability. No such agreement was entered into by the parties in this case.
THE CLARKE REPORT, THE PILOT'S STATEMENT AND
THE CLARKE PRELIMINARY REPORT
Nothing was said by either side in their submissions on the Clarke Preliminary Report. It was, as I said at the beginning, referred
to in an article of the Fiji Times of the 9th of December 1981 which was part of a number of other newspaper reports, correspondence
and medical accounts including the Clarke Final Report which was tendered by the Plaintiffs as part of their cases.
In view of the volume of evidence relating to the pilot's conduct and the view I have formed about such conduct I shall quote relevant
paragraphs of the Preliminary Report from the Fiji Times article of 9th December 1981 later.
To understand the trenchant criticisms Mr. Matthews levelled at the pilot's conduct and because of certain comments which I make later
on such conduct, the Clarke Report and Mr. Matthews' evidence, I set out the pilot's statement in full as follows:
"RAVINDER SINGH MINHAS aged 27 of Turtle Airways, Nadi states:
I am employed by Turtle Airways Limited of Nadi Airport as Chief Engineer and Pilot.
On 23rd November 1981 I was told by the operations office that there was a flight to go to Suva and they asked me if I would do it
and I said I would. I asked them why the passengers would not go by Air Pacific and the office said the flight was full. The office
said they had five people and baggage. I replied that I could take either three people and baggage or three people and child and
no baggage. Finally it was decided to take three people and some baggage. Some baggage was left behind. I took off I believe at 1000
hours (local) tower called up to say I was airborne at 0957 or 0958. I told the tower I would be calling them at the Mike India beacon
and that I would be climbing up to 3500 feet as there was a Twin Otter taking-off behind me. I figured that climbing to 3500 feet
the Twin Otter would have passed ahead of me when I got to Sigatoka so I could descend to 500 feet to show my passengers the Coral
Coast which they wished to see. On the way the Twin Otter called me up for my position. I reported I was three miles south of Mike
India and he said he was overhead the Fijian Hotel. The Nadi tower called me at some point then to give me the latest Nausori weather
which I believe was at 1000 FT 7/10 coverage of sky and 5-6 miles visibility in light rain. I called the Fiji Air Twin and asked
him what the weather was ahead and he said it looked good. Then I was about three miles south of Pacific Harbour when I heard Charlie
Yankee call me up asking for my position as he was about to taxi out for takeoff, and he asked me to say when I had passed the centre
line of the runway of Pacific Harbour. I told the Twin Otter (Charlie Yankee) that I was climbing to 1000 feet and he could takeoff
and go at 500 feet, but he said he would wait till I had passed the airport. I called Nausori tower to say I had passed the centre
line of Pacific Harbour at 1000 feet. I also called Charlie Yankee at the same time, to which Charlie Yankee replied to say he had
me in sight. I then asked Nausori tower for the latest weather. The tower said I was cleared in for a special VFR - call them over
Suva. Then the tower asked me if I had a D.M.E. aboard to which I said negative. About this time the voice of the Twin Otter pilot
broke in to say that if I followed the coast the weather would be clear. I continued my flight and came over what I believe to be
Mosquito Island having descended to 850 to 900 feet to avoid cloud. I could see outlines of buildings in Suva and a big white cruise
ship. By then I had reached the north end of the island and I could not see Suva's outlines or the boat because it began raining
heavily, so I came down to 500 feet and turned through 180?. This was around 1100 hours and I called Nausori tower to say I was diverting
to Pacific Harbour due to bad weather. Then I told the passengers it would be better to land at Pacific Harbour otherwise it meant
returning to Nadi. This they agreed to.
I proceeded along and just before I reached the Island in front of Mau, I could see nothing ahead because of heavy rain so turned
right through 180° back towards Suva and started following the road - about 1112 hours (local time) I did not call Nausori tower at this point as I
was preoccupied, and expected to run out of the bad visibility in a minute or so believing these conditions were from a local thunder
cell I was still flying at about 300 feet. Here I made a complete 360° turn to check what the weather was like and found the weather was moving up behind me - this was at about 1115 approximately local
time.
The passenger next to me drew my attention indicated by one of the others that the direction we were flying in was towards Suva again
when they wanted to go to Pacific Harbour. I indicated by signs that I was circling to allow the weather system to pass before making
for Pacific Harbour. In the meanwhile the heavy rain kept moving up behind - I saw "Tradewinds" and came out towards the
sea. I continued past Tradewinds and made a right turn over Mosquito Island. I lost some height in the turn and it also started to
rain a bit harder at this time. I could still see Tradewinds when I straightened out of my turn and headed to the Suva side of Tradewinds
so as to keep Tradewinds to my left. When I had just got past the road or was still crossing it I felt somebody grip or grab my right
shoulder momentarily and I looked round and the aircraft seemed to wander. I looked to the front and saw a hill. The aircraft was
losing height and heading towards this hill. First I thought I could fly between this hill on the seaward side and the hill on the
other side of the Queens Road but then thought I saw a truck coming between them, so I was forced to turn right for at this time
I had lost height down to 50 to 70 feet and believe this was caused by a severe down draught during very heavy rain. I saw wires
in front and knew I could not go over them and all I could do was to pull power off and dive under them. When I flew under the wires
I thought the tail was struck as I felt a jolt. Because then the aircraft was steeply nose down, I gave the engine full power to
bring the nose up so I would not go nose first into the water which I believe I managed to do, striking the water with the left wing
first. The aircraft settled evenly in the water, and inside the cabin the water level was up to my waist when sitting in my seat.
I pushed the remnants of the windscreen out and climbed from the aircraft. The passenger next to me was outside the aircraft already,
and a young Fijian man helped me and the Chinese passenger out and the baggage as well.
Question: Why did you not go IFR?
Answer: Because I did not know what height the thunder cell tops were, how severe was the thunder cell. If it was a strong cell it
had the potential to destroy the small C172. At 500 feet my A.D.F. was showing me a red light - saying it was not receiving a proper
signal. My V.O.R. was giving me intermittent reception. I had no D.M.E. and I had no IFR rating even though I have had some experience.
I did not go out to sea because I had to be in gliding distance to shore in case of engine failure. Due to the exceptionally heavy
rain the engine might ingest water and quit. I would also lose my orientation.
To the best of my belief this is a true statement of the facts."
As Mr. Clarke was not called by either side I consider it important for the record to have what I consider the relevant parts of the
report stated in this judgment.
"The brief circumstances were that the aircraft left Nadi Airport with three passengers for Nausori at 2159z hours. The aircraft
flew via the South Coast of Viti Levu into severely limited visual conditions and exceptionally heavy precipitation, and eventually
struck an electric cable at 2319z hours which resulted in the aircraft falling into the sea close to the Tradewinds Hotel.
1. FACTUAL INFORMATION
1.1 HISTORY OF THE FLIGHT
At about 2100z hours on 23rd November 1981, Turtle Airways Limited Cessna 172, Reg. Mark DQ-FDI was chartered by three persons for
a flight from Nadi Airport to Nausori Airport.
After loading passengers and their baggages at gate 13 the Aircraft, with fuel endurance for four hours took off from runway 21 at
2159z.
The pilot had informed Nadi Tower that he would be calling when he reached the MIKE INDIA beacon and be climbing to 4,500 feet as
there would be a Twin Otter of Fiji Air - Call Sign CHARLIE YANKEE, taking off behind him, and by climbing to that height the Twin
Otter would pass beneath and ahead of him by the time he - Cessna DI was overhead Sigatoka. This was so that the passengers might
see the Coral Coast which they had evidently asked to do.
According to Nadi Tower, Cessna DI advised them at 2206z he was one mile East of the MIKE INDIA beacon and would contact Nausori Tower
at 2245z.
At 2207z Nadi Tower called Nausori Tower who gave an actual weather report as follows:
"Wind light and variable, visibility six kilometres and slight rain, drizzle at the moment, and six eighths cloud at one thousand
feet, patches lower, temperature 23?C QNH 1010."
At the same time Cessna DI called Nadi Tower advising he would be descending to 500 feet after passing the Sigatoka River. At 2208z
Nadi Tower advised Nausori of the departure of Cessna DI for Nausori, VFR via the South Coast, ETA 2300z with four hours fuel on
board at departure and four persons on board; also the Twin Otter had departed 2201z for Deuba, ETA 2230z, at 1000 feet with two
hours thirty minutes fuel on board with sixteen persons aboard. At 2210z Nadi Tower passed the Nausori weather report (above to Cessna
DI which was acknowledged). At 2211z Twin Otter CY called Cessna DI, asking him to speak on frequency 123.4. Cessna DI requested
confirmation of that frequency but the answer was unreadable. There is no record of Cessna DI reporting his position at Sigatoka
(VFR reporting point DELTA), nor does Nadi Tower appear to have realised this.
There were no further recordings made at Nadi Tower until 2341z. From 2247z to 2255.40z recordings were missed due to time injection
failure during the tape change over.
At 2231.34z Twin Otter CY reported to Nausori Tower that he was landing at Deuba, and Nausori requested him to call Cessna DI on 119.1
and ask him for an ops. normal call or his whereabouts. At 2233.54z Twin Otter CY reported Cessna DI was approaching Korolevu, and
Cessna DI was asked to inform Twin Otter CY when he passed the extended runway centre line at Deuba. According to Twin Otter CY this
occurred.
Twin Otter CY continued on to land at Deuba. Some 12 minutes later, at 2245.20z Cessna DI called Nausori Tower and reported being
at 1000 feet coming up abeam of Pacific Harbour. Nausori requested him to report passing Suva Runway 10, QNH 1010 millibars and confirm
maintaining 1000 feet. Cessna DI acknowledged and requested the latest weather. Nausori Tower replied that he was "cleared to
Nausori Circuit Special VFR, the surface wind is 060 at 6 Knots, visibility is 5000 meters in rain to the South West of the airfield,
7 eighths cloud at 1000 feet, patches down to 800 feet, the QNH 1010".
At 2246.37z - after confirmation he did not have DME, Cessna DI was requested to report over Suva City. At about this time, 2247z,
Twin Otter CY told Cessna DI he had seen him (from the ground at Deuba), and advised him to go out over the reef, where the weather
was better. According to Twin Otter CY, Cessna DI would be at that stage half a mile inland. Cessna DI replied he had passed over
Deuba. At 2259.21z (about 12 minutes later) - Cessna DI called Nausori Tower and said he would be returning to Pacific Harbour (Deuba),
and would call on landing there. Nausori requested his ETA which Cessna DI gave at twenty minutes past the hour (2320z). Nausori
also requested him to report arrival which was acknowledged.
(There is positive evidence that the accident occurred at 2319z, consequently there were no replies from Cessna DI to Nausori Tower
from that time onwards.)
According to the Pilot's statement from 2247z he continued the flight from Deuba arriving at about 2300z over what he believed to
be Mosquito Island, having descended to between 900 to 850 feet to avoid cloud. He said he could see outlines of buildings in Suva
and a big white Cruise Ship. (This was probably the Cable laying Ship.) By the time he had reached the Northern end of Mosquito Island,
he could not see Suva's outlines or the Ship as rain had started to fall heavily. The Pilot said he then descended to 500 feet, turned
through 180° and called Nausori Tower to say he was diverting to Deuba (Pacific Harbour) due to bad weather.
At this point he told his passengers that it would be better to land at Pacific Harbour, otherwise it meant returning to Nadi, and
they agreed to this. The flight continued in a westernly direction and just before reaching the island off MAU, the Pilot could see
nothing ahead because of heavy rain, so turned right again through 180? back towards Suva and started following the road. This was
about 2312z, and he said he did not call Nausori Tower at this point as he was preoccupied and expected to run out of the bad visibility
in a minute or so, believing these conditions were from a local thunder cell. He thought he was still flying at about 500 feet, but
the passenger next to the pilot thought they were down to less than 100 feet. The passenger next to him then drew the pilot's attention
by touching him on the shoulder, that one of the others had indicated that the direction of the flight was towards Suva again, when
they wanted to go to Pacific Harbour. The passenger said the Pilot did not acknowledge this. However, the pilot said in his statement
that he indicated by signs that he was circling to allow the weather system to pass before making for Pacific Harbour. In the meanwhile
the heavy rain kept moving up behind (i.e from the west). The Pilot said he then saw "Tradewinds Hotel" and flew out towards
the sea, and made a right turn over Mosquito Island where he lost some height in the turn and it started raining harder. The Pilot
went on to say in his statement that he could still see Tradewinds when he straightened out of his turn heading to the Suva side
of Tradewinds so as to keep it on his left. Eye witnesses confirm these manoeuvres from the time the Aircraft appeared from the west
and add that the Aircraft seemed to be below mast height of the larger vessels in the bay after the turn over Mosquito Island. (Witnesses'
statements are Appendix F.) Just after this or whilst flying over the road the Pilot said he felt someone grab his shoulder from
behind, which distracted his attention and the Aircraft started to wander. He then looked to his front and saw a hill. The Aircraft
was losing height and heading towards this hill. At first the Pilot thought he could fly between the hill on the seaward side and
the hill on the other side of Queens Road but then thought he saw a truck coming between them, so was forced to turn right, as at
the time he had lost height down to 50 to 70 feet. He believes this was caused by severe down draught during very heavy rain. The
Pilot saw wires in front and knowing he could not fly over them, said he pulled power off and dived under them. When under the wires
he thought the tail was struck as he felt a jolt. Because the Aircraft was steeply nose down, the Pilot gave the engine full power
to bring the nose up so that the Aircraft would not enter the water nose first. He said the Aircraft struck the water with the left
wing first and settled evenly into the water. The water level was low as the tide was half an hour after low water, and depth around
the aircraft was about 3 feet 6 inches.
1.5 PERSONNEL INFORMATION
Pilot, RAVINDER SINGH MINHAS aged 26, a Canadian Citizen has a valid Canadian Commercial Pilots Licence No. YZC-168013 for all types of Class 1 Aeroplanes of 12,500
lbs or less issued on 7th March 1980 without an Instrument Rating. This was extended to cover all Class 7 Aeroplanes on 19th May
1981 and to Class 9 Aeroplanes on 20th July 1981.
He holds a Canadian Radiotelephone Operators Certificate on the strength of which a C.A.A. of Fiji Certificate was granted.
He also passed the Air Crew Air Law written examination at Nadi on 18th August, 1981.
The C.A.A. of Fiji issued a Certificate of Validation No. 147 on the strength of his Canadian Commercial Pilots Licence in order to
fly C172 Aircraft for a period of 30 days from 27th July 1981, and after being found medically fit granted a Fijian Commercial Pilots
Licence No. 185 without Instrument Rating.
Total hours flown as Pilot up to the time of the accident were:
Total Experience 372.00
Total on type 80.30
INSTRUMENT FLYING
From a qualified instructor in the air 21.8
In approved devices on ground (e.g. simulated flight Instrument training) 23.9
Recent Instrument or ground training during the last 6 months 13.5
CROSS COUNTRY & SEA FLYING
As Pilot in command (actual) 59.1
NIGHT FLYING
As Pilot in Command (actual) 35.1
As Pilot under training by Qualified Instructor in a dual controlled flying machine 3.8
Number of unassisted take offs 250
Number of unassisted landings 250
Dates of qualifying night cross-country flights 9th October; 1978
RECENT FLYING EXPERIENCE DURING LAST 30 DAYS
As Pilot in Command 15.50
On type 14.60
DURING LAST SEVEN DAYS
As Pilot in Command 7.30
The Pilot was medically examined and passed as fit on 31st August, 1981.
1.6 AIRCRAFT INFORMATION
This Aircraft had flown for a total of 1594.1 hours up to the time of the accident. According to the records the Aircraft was properly
certificated and had been maintained in accordance with the Manufacturer's Approval Maintenance Schedules and Airworthiness Requirements.
The Certificate of Maintenance was valid and there were no outstanding deficiencies.
1.7 METEOROLOGICAL INFORMATION
On 23rd November 1981, Cessna DI was given Nausori's weather by Nadi Tower at 2110z on frequency 119.1 as - "the wind light and
variable, visibility 6 Kilometres in rain, six eighths cloud at 1,000 feet, patches lower and QNH 1010".
At 2245.45z approximately, Cessna DI requested Nausori Tower for the latest weather, which was passed as follows: "DI you cleared
to Nausori Circuit Special VFR, the Surface wind is 060 at 6 Knots, visibility is 5000 metres in rain, to the South and South West
of the Airfield, 7/8 at 1000 feet patches down to 800 feet, the QNH 1010".
Observed conditions reported as Special Weather Report at Nausori at midday (230000z) were - Wind 120?/07 Knots, visibility 5000 metres,
rain showers, cloud 4/8 at 800 feet, 6/8 at 1800 feet, 8/8 at 10000 feet. Temperature 24?C - Dew point 23, QNH 1009.0.
Natural light conditions at the time and place of the accident were very poor, with heavy overcast and exceptionally heavy torrential
rain. A report on the weather in the Suva and Nausori areas on 23rd November issued by the Director of Meteorology is attached at
Appendix D.
1.8 AID TO NAVIGATION
The Aircraft was fitted with two VHF VOR Sets and one ADF: DME was not fitted. The Aircraft was not equipped or permitted to be operated
under IFR.
1.9 COMMUNICATIONS
The Aircraft had two VHF only, no HF was carried.
1.10 AERODROME INFORMATION
Nausori Airfield is equipped with VOR/DME and NDB. There were no difficulties in communicating with Cessna DI.
1.11 FLIGHT RECORDER
None required or fitted.
2. ANALYSIS AND OBSERVATIONS
2.1 ANALYSIS
Study of the Nausori weather reports and special Met. reports for 23rd November shows thunderstorm activity in the 2100z period, Special
Reports being issued at 2100z and 2300z. At the latter time Special Met. conditions ceased; which was some fifteen minutes after
Cessna DI had been cleared to Nausori Circuit under Special V.F.R.
However, the Meteorological Observations from which the actual reports were compiled were limited to the visible distance from Nausori
Control Tower to known objects, and in that case it was 5000 metres in rain. Therefore, the Met. reports would be of little use to
Cessna DI in flight from Pacific Harbour until arrival within the Nausori Circuit area. It is possible that Cessna DI was lulled
into a false sense of security when 17 minutes before reaching Deuba, he asked Twin Otter CY (on the ground then) what the weather
was like at Deuba and received the reply that it was "OK with visibility up to 20 KM". It must be emphasised that Cessna
DI's Pilot would have had no way of knowing the actual weather conditions between Deuba and Nausori Airfield. It was considered the
Pilot was correct in deciding to divert back to Deuba when he reached Mosquito Island the first time, but he could not know or even
guess if or to what extent the weather had deteriorated behind him.
Again it is considered he acted correctly during his return to Deuba to turn around and attempt to fly towards Nausori when he ran
into almost nil visibility near MAU, but he should have informed Nausori Tower that he was doing so. Being compelled to continue
in visual flight following the Queens Road, he was sensible in making a 360? turn to check on the weather behind him. It seems he
had no alternative to losing height in order to keep visual reference when over Mosquito Island this second time where he flew into
heavy rain again. In his statement the Pilot has said that just as he passed over the road by the Tradewinds Hotel he felt someone
grip or grab his right shoulder, which distracted him. Neither surviving passengers admits having done this or saw the other passenger
make such a move. However, it is felt that instinctive reaching out by one of the passengers to steady himself as the Aircraft levelled
out from banking to the right cannot be ruled out. It is possible that the Pilot was thus distracted and then when suddenly seeing
rising ground immediately ahead of him, executed a steep turn to the right in which more height was lost; the Aircraft was probably
being subjected to down draught as well as very heavy rain. When faced by the electric power lines, the pilot took what action he
could by attempting to fly beneath them, but at the point of rupture the cable was only 18 feet from the ground. Had the Pilot turned
to his left as he said he originally intended so as to keep "Tradewinds" in sight, there is every possibility that Aircraft
would have flown into the hillside immediately behind the Hotel on the North side of the Queens Road.
When the Aircraft struck the water, it seems that the Pilot was knocked insensible for a very short time as on regaining his wits
found that the passenger in the seat alongside was already out of the Aircraft. Although suffering from a deep wound in his forehead
the Pilot attended to his passengers and then, with assistance, retrieved their baggage.
2.2 OBSERVATIONS
It should be borne in mind that this Aircraft, under the Air Operation Certificate of Competency, is permitted to operate under VFR
only, so that even if the Pilot had an I.F.R. rating he would still only be permitted to fly this Aircraft under Visual Flight Rules.
On this flight Cessna DI's Pilot does not appear to have contravened the Air Navigation Regulations regarding V.F.R., Rules for Flights
over or near water, Special VFR or Nausori Tower Instructions. He did, however, commit two minor infringements in omitting to report to Nadi his arrival over Sigatoka (point DELTA) and also omitted to report turning near MAU to
fly towards Nausori.
It is now obvious in retrospect that the Pilot of Cessna DI should have terminated this flight at Deuba when he overflew the Airfield,
or returned when given a Special V.F.R. clearance, which was only a few seconds after he had reported his position.
A Pilot with experience of flying in tropical thunderstorm activity and limited to V.F.R. in deteriorating weather conditions which
can develop very rapidly, might well have decided to land at Deuba in the same circumstances.
3. CONCLUSIONS
3.1 (a) The Aircraft was properly certificated and maintained.
(b) The Pilot - RAVINDER SINGH MINHAS possessed a Current Commercial Pilot Licence to fly under Visual Flight Rules.
3.2 PROBABLE CAUSE
(a) CAUSE - The probable cause of the accident was exceptionally severe limited visibility brought about by unusual meteorological conditions.
(b) The Pilot inexperience of the route in foul weather in particular and flying in tropical meteorological conditions of this nature
in general, together with lack of an I.F.R. Rating were major contributing factors."
THE EVIDENCE OF GREGORY MATTHEWS
Mr. Matthews in his report of the 25th of June 1997 made the following comments on the Clarke Report:
"1. The Cessna was registered under the air Navigation Regulations 1981 (Rule 6) made pursuant to the Civil Aviation Act 1976.
Under Regulation 13, the aircraft was issued with a Certificate of Airworthiness in the Transport Category (Passenger) which permits
use for any purpose including carriage of passengers. Under the Air Operation Certificate of Competency issued in respect of this
aircraft, it was only permitted to operate under Visual Flight Rules (VFR) and not under Instrument Flight Rules (IFR). Also, the
Pilot was not rated as competent to fly under (IFR).
The VFR rules are set out in Regulations 111 to 117. Whereas the Clarke Report clears the Pilot of breach of these rules and the rules
for flight over or near water, special VFR or Nausori Tower instructions, nevertheless, there were a number of breaches of regulations.
These include:- (a) the aircraft was not flown in conditions of visibility and distance from cloud at the minimum altitudes above
sea level or terrain (Regulations 111 and 114); (b) failure to report to Nadi his arrival over Sigatoka and turning near Mau to fly
towards Nausori (Regulation 116); and (c) failure to either file or adhere to a flight plan if filed and advise when changes were
made.
2. The Pilot did not obtain the en route weather and had only obtained the Suva area weather just prior to take-off.
3. It was common knowledge that the weather at Suva has been "pissing down" (as described by Potter that morning). The Pilot
and the Operator were presumably aware of this.
4. The Twin Otter was travelling in the same direction as the Cessna but at 1,000 feet. The Twin Otter crew would presumably be more
experienced than the Pilot.
5. The Pilot probably intended to fly direct from Nadi to Suva, climbing to 3,500 feet but at 2207 hours (GMT) he started to encounter
towering clouds and descended and diverted to the coast.
6. The actual weather for Suva was passed to him at 2210 hours and indicated that the flight could not be conducted under VFR flight
conditions in the Suva area. It was at this point that the Pilot should have turned back. He was later cleared special VFR to Nadi.
I consider that a competent and experienced pilot with a VFR only and flying a VFR aircraft only, would have turned back at Pacific
Harbour (Deuba) and indeed, that it was his duty and responsibility to do so.
7. The Pilot showed no concern regarding likely weather en route or at Suva. There were no radio transmissions from him enquiring
of the weather en route.
8. At 2211 hours the Cessna had trouble communicating with the Twin Otter and there was no report of his position at Sigatoka river.
It is significant that there were no other transmission problems during the rest of the flight.
9. The Twin Otter was faster and could have given the Pilot an account of the actual weather. The Pilot made no attempt to contact
the Twin Otter flight crew. It was the Twin Otter which contacted the Pilot and advised him of the weather.
10. At 2245 hours the Pilot contacted Nausori Tower and reported that he was at 1,000 feet. He also enquired of the latest weather
and was cleared for a special VFR circuit. This was the second attempt by ATC to advise the Pilot of the inclement weather at Suva.
11. The weather at Pacific Harbour (Deuba) was OK. The Pilot could have landed there without any problems.
12. At 2246 hours the Cessna was approximately half a mile inland. This is inconsistent with the Pilot's statement "I figured
that climbing to 3,500 feet the Twin Otter would have passed ahead of me when I got to Sigatoka so I could descend to 500 feet to
show my passengers the Coral Coast which they wished to see". The Pilot reported his position (that he had passed over Deuba)
only after confirmation from the Twin Otter. My opinion is that at this stage the Pilot was flying blind and did not know his position.
He had become completely disoriented and was in a hopeless state of confusion and panic.
13. From Pacific Harbour to Mosquito Island (2259 hours) from the statements of Potter and Thomas the aircraft was flown at heights
less than 500 feet in heavy rain and poor visibility.
14. At 2259 hours (Mosquito Island) the Pilot reported that he was returning to Deuba due to weather. This was the last transmission
from the aircraft.
15. The Pilot never made an emergency call for help.
16. The Pilot claims that he lost visibility in the proximity of Mosquito Island while maintaining 1,000 feet. He claims that he descended
to 500 feet whilst turning through 180 degrees in an attempt to turn back to Deuba. It is my opinion that he was already at 500 feet
or less or he would have just descended down to these levels while tracking directly for Nausori.
17. The Pilot claims that he encountered heavy rain reducing visibility to zero on his return flight to Deuba. It is my opinion that
the Pilot experienced these conditions while en route from Deuba to Mosquito Island. The wind conditions at both airports were light
and therefore the weather in the area would not have changed all that dramatically.
18. In his statement the Pilot says that just before he reached the Island of Mau he turned 180 degrees back towards Suva. He also
said that he could see nothing ahead because of heavy rain. I find it impossible to believe that he actually saw the Island of Mau.
19. The Island of Mau is some distance from the road and it would not have been a simple 180 degrees turn to see the road.
20. The Pilot claims that he thought he was still flying at about 500 feet. However, I prefer the accounts of Potter and Thomas that
he was in fact flying at about 100 feet. Potter says, "I sat in the co-pilot's seat from where I could clearly see the altimeter"
(paragraph 54 of his statement of 22 December 1981) and "he followed the road at altitudes of about 100 feet" (paragraph
68 of his statement of 22 December 1981) and Thomas says "I could see everything from where I sat especially the aircraft's
instruments which I could see clearly" (paragraph 37 of his statement) and "as the weather worsened the Pilot descended
at times to 100 feet and one occasion to 80 feet. I am absolutely positive about these heights because I could clearly see the altimeter
from where I was sitting and I was horrified that we were so close to the ground" (paragraph 45 of his statement). In my opinion
the Pilot's belief that he was flying at about 500 feet, as claimed, is further evidence of his inexperience and incompetence.
21. In his statement (page 2) the Pilot says "The passenger next to me drew my attention indicated by one of the others that
the direction we were flying in was towards Suva again when they wanted to go to Pacific Harbour". The fact is that the Pilot
was indeed trying to get to Pacific Harbour but was so disoriented that he was flying in the opposite direction. According to Potter
(paragraph 70 of his statement of 22 December 1981) the Pilot "did not acknowledge me and kept on flying".
22. I believe that the reason that the Pilot turned towards Suva instead of towards Pacific Harbour is further evidence of his disorientation
and confusion. In my opinion he wanted to keep the only visual sighting on his left which is the best side since pilots sit on the
lefthand side.
23. The Pilot does not explain why, he saw the Tradewinds Hotel, he flew out to sea and then made a right hand turn, losing height
in the turn. It is my opinion that the aircraft was in fact flying low prior to passing over Mosquito Island. Upon some visual sighting,
perhaps of the Tradewinds Hotel, he turned sharply to the right to avoid crashing. In my opinion, he went out to sea and descended
lower for better visibility and returned to the Tradewinds Hotel presumably to crash land.
24. The Pilot says in his statement (page 2) "When I had just got past the road and was still crossing it I felt somebody grip
or grab my right shoulder momentarily and I looked round and the aircraft seemed to wander".
I interpolate here that there is no reference to this in the statements of either Potter or Thomas and I prefer to believe it did
not take place. But if it did take place, it is perfectly understandable; whoever did it was in fear of his very life. And if it
did take place, it may well have been the deceased passenger Mr. HONG TONG who was sitting behind the Pilot.
25. The Pilot says in his statement (page 2) "I saw wires in front and knew I could not go over them and all I could do was to
pull power off and dive under them". I find it very difficult to believe that the pilot could see wires in poor visual conditions.
Even in good visual conditions, wires can be difficult to sight. His explanation that he was attempting to dive under them is unacceptable.
26. It is my opinion that since at least 2259 hours the pilot was, for lengthy periods, disoriented and in a hopeless state of confusion
and panic and the aircraft was out of control. The aircraft was never further west than 5-10 miles from the crash site. The Pilot
only regained orientation upon gaining visual flight conditions at very low altitude (less than 50 feet). It was only a matter of
time before the aircraft crashed.
CONCLUSIONS
In my opinion, having regard to the foregoing circumstances, both the Operator and the Pilot were guilty of gross negligence and conducted
the flight recklessly, and with knowledge that damage would probably result, in that:
1. Neither the Operator nor the Pilot should have undertaken this flight given the lack of experience and limitations of the Pilot
and the aircraft, in the weather conditions then prevailing and threatened;
2. Both the Operator and the Pilot should have aborted the flight when it was clear that it was unsafe to continue, that is, by no
later than 2210 hours at Pacific Harbour (Deuba);
3. The Pilot deliberately flew the aircraft in IFR conditions for which he was not qualified or competent, by training, experience
or rating, and for which the plane itself was not rated; and
4. The Pilot breached critical regulations and failed to demonstrate an acceptable level of skill in the management and control of
the aircraft."
In his sworn evidence Mr. Matthews stated that in his opinion the pilot was reckless in the sense required by Article 25 primarily
by taking off at all from Nadi knowing his inexperience as a pilot in tropical conditions and with the weather report he had of conditions
at Nausori; alternatively that he should have aborted the flight at Pacific Harbour on account of the extreme weather conditions
he then ran into after leaving Pacific Harbour.
Under cross-examination at page 72 of the transcript of 1st August 1997 he was asked this question:
Mr. Smith: I'm asking you, at what stage in your opinion did it dawn on him that the situation was beyond his control?
Mr. Matthews: Under the assumption here, I would say it was beyond his capabilities of handling the situation then sometime after
he passed Deuba.
Mr. Smith: You say that by the time it did dawn on him that the situation was beyond his control, it was already too late.
Mr. Matthews: Correct. Too late when he left the ground.
On page 73 he was asked this:
Mr. Smith: You've told us that it dawned on him in your opinion somewhere around Deuba that the situation was beyond his control I'm
only asking you this, whether it is your opinion that at that point it was already too late for him to recover the situation?
Mr. Matthews: Yes.
Then on page 74 counsel for the Defendant asked two final questions of Mr. Matthews which in my judgment provide the key to answering
the question whether or not the pilot was reckless in the sense required by Article 25.
Mr. Smith: Do you accept that until the pilot realised the situation to be beyond his ability to control that there could be no reason
for him to believe he would probably crash?
I then asked counsel to repeat his question which he did thus:
Mr. Smith: Do you accept that until the pilot realised the situation to be beyond his ability to control, there could be no reason
for him to believe that he would probably crash?
Mr. Matthews: Yes.
In re-examination counsel for the Plaintiffs asked two questions only and I set them out with Mr. Matthews' answers here:
Mr. Stanton: Yes My Lord. Just on that last question Mr. Matthews, does that in any way affect your opinion what he did was reckless?
As you describe in your report?
Mr. Matthews: No it doesn't affect my opinion. The fact is the pilot was reckless and he would have known that he had many deficiencies.
Mr. Stanton: With the probability of damaging the aircraft and all the passengers?
Mr. Matthews: Yes.
I shall come back to these questions and answers later but, as I have said, in my judgment the Plaintiffs' rights to verdicts under
Article 25 depend fairly and squarely on this evidence.
There are three other small pieces of evidence on which the Plaintiffs rely. The first is the transcription of tape recording made
by the Air Traffic Control Officers at Nadi and Nausori Airports on 23rd November 1981. After the crash had been reported the operator
at Nadi Tower on the telephone to Nausori says, "I do not know why these fellows want to fly. He knew the weather was bad."
The other evidence is contained in the last affidavit by Owen Clive Potter where for the first time he refers to an alleged conversation
between himself and the pilot which I assume took place approximately a day after the accident. Mr. Minhas had also been admitted
to the hospital for injuries which he suffered but these were not serious and he was discharged on the 26th of November. According
to Mr. Potter, Minhas said, "I was coerced into making that flight. I was not employed as a pilot, I was employed as an engineer".
Mr. Potter says he did not reply as he was in pain and astounded by what he said. Mr. Potter just shrugged. Minhas then said, "I
am very sorry for what has happened. I hope you all recover and I have made up my mind that I won't do any more flying".
The third piece of evidence is an undated report from an unnamed newspaper tendered by the Plaintiffs as part of Exhibit P.11 which
follows the Fiji Times report of 26th November 1981 concerning the death of Mr. Hong. This report states so far as relevant:
"The contract of its present expatriate chief engineer, Mr. Ravinder Singh Minhas, was to expire yesterday.
The airline cannot operate without a qualified engineer.
The Fiji Times understands that the airline has been told to suspend its services if it does not find an engineer."
The foregoing evidence is in my judgment all that is directly relevant to the question of liability and damages. I pass now to the
submissions of counsel and a consideration of the relevant law.
SUBMISSIONS AND THE RELEVANT LAW
I have received most comprehensive submissions on all relevant aspects of these cases and I thank counsel for the great assistance
they have given to me.
Before dealing with what is undoubtedly the principal issue between the parties namely whether the Plaintiffs can recover under Article
25 I shall refer to a threshold issue raised by the Defendants concerning an alleged deficiency in the Plaintiffs' Statements of
Claim. The Defendants allege that neither Statement of Claim discloses a cause of action. It is submitted that each Order i.e. 1967
Nos. 809 and 810, referring to international and non-international carriage respectively imposes an obligation on the Plaintiffs
to plead facts and assert elements to establish each cause.
The Defendants submit that neither of the Statements of Claim (here "the Claims") assert facts which designate whether the
carriage was international or non-international; nor do the Claims identify by reason of inclusion of elements so that they can be
made under Article 29 (action must be brought within two years of date of accident).
Similarly it is alleged that the Plaintiffs have failed to identify the elements specified in Article 17 because no reference is made
to or pleaded to the fact that the Plaintiffs' injuries and damage took place on board an aircraft or in the course of the operations
of embarking or disembarking.
First as to the limitations point I say that the Writs were issued on the 11th of November 1983 and allege the accident occurred on
the 23rd of November 1981. The Writs were thus issued within the two year period required by Article 29 and there is therefore no
merit in this first submission.
As to the allegation that facts sufficient to satisfy Articles 17 and 29 are not pleaded, I refer to paragraphs 2, 3 and 5 of each
Statement of Claim which allege in that order:
(i) the Operator at all times was a commercial airline engaged in public transport by air for reward in and around the Fiji Islands
and was the owner and in control of the aircraft in which the Plaintiffs were passengers and which crashed;
(ii) the Pilot was at all such times employed by the Operator as an Aircraft Mechanic and to fly aircraft owned and operated by the
Operator in the course of its business;
(iii) by an agreement made between the Operator and the Plaintiffs on 23rd November 1981 the Operator agreed for reward to carry the
Plaintiffs by air from Nadi to Nausori, Fiji.
In Philip Morris Inc. & Another v. Adam P. Brown Male (1980-81) 148 CLR 457 at p.472 Barwick C.J. said:
"It is worth observing at this point that in what has come to be known as judicature or fact pleading, it is not necessary for the
pleader to set out or to limit himself to a cause or causes of action which he asserts as a basis for the relief he claims. Indeed,
he need not specify a cause of action (using that expression in the pre-judicature sense) at all: it is sufficient that he alleges
the facts he seeks to prove and the relief he claims. Of course, no pleading will be supportable if those facts cannot support a
right to relief and, in that sense, perhaps a lesser sense than the pre-judicature sense, support a cause of action. If it does not
it will be susceptible of being struck out, be demurrable in the language of more formal days."
I am satisfied that the Statements of Claim accord with these remarks of Barwick C.J. and that this is a judicature pleading which
states sufficient facts and information to bring the claims within the compass of the three Articles mentioned. I therefore reject
the Defendants submission on the threshold issue.
I come now to what I have no doubt is the real issue between the parties namely whether the Plaintiffs can recover under Article 25.
Article 25 is part of an international instrument and has been the subject of much litigation for it provides the only way by which
passengers and consignors of cargo can escape the general regime laid down by the Warsaw Convention. Generally speaking, if passengers
or consignors of cargo wish to secure full protection they must either make a special declaration of interest and pay a supplementary
charge or obtain private insurance. It is obvious reading Article 25 that it sets a rigorous standard in order to qualify for full
recovery from the air carrier. As Kirby P. said in S.S. Pharmaceutical Co. Ltd. v. Qantas Airways Ltd. (1991) 1 Lloyd's Law Reports 288 at 302:
"The phrase "recklessly and with knowledge that damage would probably result" therefore involves one composite concept. It
requires proof by the claimant seeking the exemption which art. 25 allows that the damage complained of was caused by something significantly
more than negligence and carelessness. Even proof of reckless conduct is itself, and alone, not enough. It must be shown that, at
the time of the reckless conduct, the servants or agents of the carrier concerned knew that such conduct would cause damage but went
ahead regardless."
In this case there is no dispute that the decision in Goldman v. Thai Airways International Ltd. (1983) 3 ALL E.R. 693 settled a number of questions arising under Article 25 which are relevant to this case. For example Eveleigh L.J. said at p.699:
"When conduct is stigmatised as reckless, it is because it engenders the risk of undesirable consequences. When a person acts recklessly
he acts in a manner which indicates a decision to run the risk or a mental attitude of indifference to its existence. This is the
ordinary meaning of the word as I understand it."
At p.700 he discussed the meaning of probable and said:
"An act may be reckless when it involves a risk, even though it cannot be said that the danger envisaged is a probable consequence.
It is enough that it is a possible consequence, although of course there comes a point where the risk is so remote that it would
not be considered reckless to take it. We look for an element of rashness which is perhaps more clearly indicated in the French text
'tèmèrairement'. Article 25 however refers not to possibility, but to the probability of resulting damage. Thus something more than
a possibility is required. The word 'probable' is a common enough word. I understand it to mean that something is likely to happen.
I think that is what is meant in art 25. In other words, one anticipates damage from the act or omission."
In R. v. Lawrence (1981) 1 ALL E.R. 974, a case concerning reckless driving, the House of Lords held that the mens rea of the offence is driving in such a manner without
giving any thought to the risk or, having recognised that it exists, nevertheless taking the risk.
In the case I have just referred to S.S. Pharmaceutical Co. Ltd. v. Qantas Airways Ltd. the Court of Appeal of New South Wales, with Kirby P. dissenting on the facts, held that where a consignment of pharmaceuticals was
left on the tarmac at Sydney Airport on a day of extremely heavy rain and arrived at its destination Tokyo later badly damaged by
water the Plaintiff was allowed to recover under Article 25.
The Court held that on the evidence the Defendants' conduct was reckless; there was clear knowledge of the likelihood of damage to
specially vulnerable cargo in the weather conditions then obtaining.
It is submitted by the Defendant, and I agree, that where the risk is known to be limited to damage to property, it is easy to conclude
that an actor might decide to risk that damage even in the knowledge of the probability of its occurrence. I consider it is one thing
for the Court to come to such a conclusion in the circumstances of S.S. Pharmaceutical Co. Ltd. v. Qantas Airways Ltd. but quite another when the risk is to the life of the actor as in the instant case. In my view where the probability of which he
knows is that death will occur to him such a decision would not be reckless but rather simply perverse.
In short given that in the present case such knowledge as required by Article 25 could not have failed to carry with it knowledge
of the probability of the pilot's own serious injury or death I consider it so unlikely that the pilot had actual knowledge of the
probability of damage and so unnecessary to regard him as having had it that it would be quite unreasonable to infer that he did.
In my judgment the words of Mr. Clarke in his preliminary report quoted in the Fiji Times of 9th December 1981 are relevant to this
question. Mr. Clarke said:
"'Furthermore, although he had flown this route several times previously, he had not done so in unfavourable weather, having
been in the country only four months.' Mr. Clarke said in his report.
Consequently, his landmarks would probably be only those readily recognisable, of these the Tradewinds Hotel would be one.
Therefore, in steadily worsening conditions it is understandable that the pilot would elect to keep orbiting his familiar landmark,
until the weather improved.
'He had plenty of fuel, and this would be a prudent measure.
What he did not realise was that the diffused cloud base and steadily increasing volume of rain was the worst that had been experienced
locally for many years, so that in the end his only visual reference was vertically downward, and if he was to maintain this reference
he had to descend below a safe height.
There is little doubt that it was the sheer lack of visibility which led him to descend so low in his attempt to keep his landmark
in sight and was responsible for hiding the high ground on the landward side of the hotel until he had to take violent avoiding action.'
Mr. Clarke said."
In my opinion the actions of the pilot as described by Mr. Clarke in these paragraphs and as relied on by the Plaintiffs in tendering
the newspaper report containing them indicate no recklessness by the pilot but, if any thing, cool-headedness in attempting to deal
with the emergency in which he suddenly found himself.
When these remarks of Mr. Clarke are coupled with the extract from the transcript of 1st August 1997 on pages 72 to 74 which I have
previously quoted, in my judgment they constitute further evidence of a lack of recklessness by the pilot which is not ameliorated
by the answers from Mr. Matthews given to the two leading questions asked by counsel for the Plaintiffs at the beginning of his re-examination.
The inference I draw from this evidence alone is that it was not until the pilot discovered that his escape route to Deuba was shut
off by weather that had moved up behind him that the pilot had reason to conclude that the situation carried more than the possibility
of danger. That he was attempting to avoid trouble is in my view proven by the fact that he had already declined the risk of attempting
to reach Nausori to land under the special VFR clearance he had been granted. He thought he could safely go back to Deuba and in
attempting to do so in my judgment showed the direct opposite of recklessness but rather a reasoned decision to avoid any further
risks. I have little doubt that it must have been a terrible discovery for him to find that another thunder cell had closed off Deuba.
Again his decision was to avoid the risk of attempting a landing in adverse conditions even though he had been offered permission
to do so by the Nausori Tower.
Believing he was in a local thunder cell and knowing he had plenty of fuel he decided to try and circle until Deuba cleared. Mr. Clarke
says, "this would be a prudent measure," and in my view obviously not reckless.
To maintain a sense of direction the pilot followed Queens Road. Worsening weather and ever-diminishing visibility then dictated his
options until they ran out. This occurred at a time when witnesses say they had never seen heavier rain and when the records at Laucala
Bay indicate rainfall at a rate of 120mm an hour - an intensity it is said even in Suva can be expected only once in three to five
years.
The actions of the pilot have been described by the Plaintiffs as those of a man who had panicked. The Oxford Dictionary gives the
meaning of panic as "unreasoning, uncontrolled, quickly spreading fear".
In my view, far from being unreasoning, the pilot in this case displayed the reverse. Undoubtedly he and his passengers were taken
by fear which is not surprising in the circumstances and which must have been most frightening for all concerned. This however is
not to say that the pilot's actions were unreasoning.
In my judgment this is clearly shown by his refusal to proceed to Nausori when he was offered the opportunity; instead he made what
I can only regard as a reasoned decision to return to Deuba. Looked at objectively his actions in the minutes immediately preceding
the crash were probably those of an inexperienced pilot and possibly even negligent, but the fact that realising the dire emergency
which had overtaken him, the pilot then decided not to go out to sea because he had to be in gliding distance to shore in case of
engine failure again indicates to me clear thinking and not recklessness. When one adds to that his statement that "Due to the
exceptional heavy rain the engine might ingest water and quit. I would also lose my orientation", I am left with the clear conclusion
that this was not recklessness by the pilot.
Contrary to the opinion expressed by Mr. Matthews that the engine of a Cessna 172 would not ingest water in the circumstances prevailing
here, I remind myself that it is undisputed that Minhas was the Chief Engineer of the Defendant which owned three Cessna aircraft.
Accordingly in my judgment it is reasonable to assume that he had some knowledge of the characteristics of the engines of these aircraft
and that in taking the action he did he might be said to have behaved with that knowledge in mind.
Much has been made by the Plaintiffs in their submissions of the failure of the Defendant to call evidence and they relied on Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 and The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39 as indicating a fear by the Defendant that the facts of this case would thereby be elucidated and thus have exposed facts unfavourable
to the Defendant.
In The Insurance Commissioner v. Joyce where evidence was not called when it may have been expected to have been Rich J. said at p.49:
"But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers
the well of the court to the witness box a court is entitled to be bold."
I respectfully agree but point out, lest it be forgotten, that the onus is on the Plaintiffs and not the Defendants to satisfy the
Court that the facts bring themselves within Article 25. I have no evidence of attempts, if any were made by any of the parties,
to look for the pilot nor whether any person currently employed by the Defendant could assist the Plaintiffs. If such a person exists
then I would have thought the Plaintiffs would want to call him or her. There is no property in witnesses.
As to the alleged admission by the pilot to Mr. Potter in the Colonial War Memorial Hospital which first sees the light of day in
his affidavit of the 25th of July 1997, I find it more than strange that this allegation should be made so late in the piece. But
even if it were made, and of course Mr. Potter was not cross-examined on this by counsel for the Defendant, I do not consider that
it carries significant weight. No secret has been made of the fact that Minhas was employed primarily as an Engineer and I therefore
find it unsurprising that he should express contrition for the accident and attempt to excuse himself by claiming pressure from an
unspecified source. Nothing is said of the nature of the alleged coercion and I do not propose to speculate as to this. However to
consider that one might infer from such an statement made in such circumstances, that Minhas was actually forced to commence and
continue what he believed to be a life-threatening flight is to my mind untenable. Had that been the case, the time for him to say
so was when the accident was being investigated by the Inspector. According to Mr. Clarke at that stage he said "I was told
by the Operations Office there was a flight to go to Suva and they asked me if I would do it and I said I would".
Wherever the truth of this question may lie, in the light of the clear view I have formed that the conduct of the pilot was not reckless
in the sense required by Article 25, I find it unnecessary to say any more about this question.
DAMAGES
In the result I find that the damages of each Plaintiff must be assessed under Article 22 and it is not disputed that in that event
each Plaintiff is entitled to an amount not exceeding $48,369.28 for personal injuries and $276.40 for property damage. I am satisfied
that each Plaintiff should recover these amounts. I observed them giving evidence and found them very objective and realistic about
the nature of the injuries they suffered and the current effects of them. Given the most harrowing experience they had and the injuries
they described in evidence and the medical reports on those injuries, if these actions fell to be decided on the ordinary principles
of common law negligence I would have no hesitation in awarding them damages for their injuries and the loss of enjoyment of life
these have entailed of a much higher order than that suggested by counsel for the Defendant in his submissions, but for the reasons
I have given I find myself unable to make any higher award in each case. Furthermore in contrast to an ordinary award of damages
for personal injuries in this Court where interest may be added in my view Article 22 precludes such an award.
The Plaintiffs have satisfied me that they are liable to make a refund of the workers' compensation payments they received following
the accident and I accept these as being in the case of the Plaintiff Thomas an amount of A$11,748.01 and in the case of the Plaintiff
Potter an amount of A$19,602.18. Converted to Fijian dollars these are respectively $14,525.23 for Mr. Thomas and $24,236.12 for
Mr. Potter.
I am not satisfied that the award should be paid in Australian dollars in the particular circumstances of these cases. The Plaintiffs
came to Fiji to sell their company's products to their representatives in Fiji where the amount of sales would be paid in Fijian
dollars. I therefore order the Defendant to pay the nett sums remaining to the Plaintiffs into Court pending the obtaining of the
Reserve Bank's permission to pay them to the Plaintiffs.
In the case of the Plaintiff Thomas these will be: $48,369.28 + $276.40 - $14,525.23 = F$34,120.45
In the case of the Plaintiff Potter these will be: $48,369.28 + $276.40 - $24,236.12 = F$24,409.56
I shall now hear argument on the question of costs.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgment:
Carriage By Air Act (Application of Provisions) (Overseas Territories) Order 1967 incorporated in Civil Aviation Act Cap. 174 of 1985.
Goldman v. Thai Airways International Ltd. (1983) 3 ALL E.R. 693.
The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39.
Philip Morris Inc. & Another v. Adam P. Brown Male (1980-81) 148 CLR 457.
R. v. Lawrence (1981) 1 ALL E.R. 974.
S.S. Pharmaceutical Co. Ltd. v. Qantas Airways Ltd. (1991) 1 Lloyd's Law Reports 288.
The following additional cases were referred to in submissions:
Dorney v. Sunflower Airlines Limited & CAAF CA No. 460/1989 - unreported judgment of Pathik J. of 25th November 1994.
Herd v. Clyde Helicopters [1997] UKHL 6; (1997) 1 ALL ER 775.
The Despina R (1997) AC 685.
Kirkstall Brewery Co. v. Furness Railway Co. (1874) LR 9 Q.B. 468.
Jones v. Dunkel [1959] HCA 8; (1958) 101 CLR 298.
Fraser v. Henleins Pty Ltd v. Cody [1945] HCA 49; (1945) 70 CLR 100.
Hubert Elliot v. Paul Praveen Sharma Civil Appeal 41/93.
Jefford v. Gee [1970] EWCA Civ 8; (1970) 2 Q.B. 130.
Trade Prctices Commission v. Allied Mills Industries Pty Ltd & Others [1981] FCA 103; (1981) 55 FLR 174.
Swiss Bank Corporation v. Brink's M.A.T. Ltd & Others (1986) 3 WLR 12,
Antwerp United Diamonds BVBA v. Air Europe (1995) 2 ALL E.R. 424.
Metropolitan Police Commissioner v. Caldwell [1982] UKHL 1; (1981) 1 ALL E.R. 961.
American Express Co. v. British Airways Board (1983) 1 ALL E.R. 557.
Proctor v. Jetway Aviation Pty Ltd (1982) 2 NSWLR 264.
Holmes v. Bangladesh Biman Corporation (1989) AC 1112.
Staples v. City and Country Helicopters Pty Ltd 119 FLR 291.
Sidhu v. British Airways [1996] UKHL 5; (1997) 1 ALL E.R. 193.
Wright & Sons v. Cassidy (1898) 17 NZLR 193.
Wright v. British Airways Board (1983) 2 ALL E.R. 698.
Singh v. Toong Fong Omnibus Co. Ltd. (1964) 3 ALL E.R. 925.
Anitra Kumar Singh v. Rentokil Civil Appeal No. 73/91.
Rothmans Pall Mall (Fiji) Ltd. v. Edward Narayan Civil Appeal ABU0065/1995 - unreported judgment of Court of Appeal of 28th February 1997.
Lautoka City Council v. Anare Robinson Civil Appeal ABU 0018/96 - unreported judgment of Court of Appeal dated 29th May 1997.
Metal Box v. Currys (1988) 1 WLR 175.
Kumar v. Vueti & Another HBC 0204/95L.
Trade Practices Commission v. Queensland Aggregates Pty Ltd 44 ALR 391.
Trade Practices Commission v. TNT Management Pty Limited & Others 58 ALR 432.
Miliangos v. George Frank (Textiles) Pty Ltd (1976) AC 443.
Nishina Trading Co. Ltd. v. C. Liyloda Fire and Marine Insurance Co. Ltd. (1968) 3 ALL E.R. 712.
Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638.
Workers Compensation Act (NSW) 1926.
Hbc1024j.83s
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