IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION

HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 7 of 2011

BETWEEN

CIVIL AVIATION AUTHORITY
APPELLANT

AND

CORAL SUN AIRWAYS LTD
RESPONDENT

Before: Paterson JA
Williams JA
Barker JA 

Counsel: Birimaka Tekanene for appellant
Banuera Berina for respondent

Date of Hearing: 26 August 2011
Date of Judgment: 31 August 2011

JUDGMENT OF THE COURT

1.	The defendant Civil Aviation Authority has appealed against the decision of the High Court dated 6 October 2010 whereby it was held that the defendant was liable upon the claim of the plaintiff for loss and damage suffered by the plaintiff as the result of an aircraft accident.

2.	On 19 January 2010 the plaintiff's aircraft was on a flight from Bonriki to Nonouti when the pilot decided to turn back due to an instrument problem. He reported his intention to Bonriki control tower when 32 miles from the tower. This call was acknowledged and the pilot was instructed to make a further call at 10 miles. The pilot complied with this instruction and then during his final approach (about 10 seconds before touch-down) he made a further call – which was not acknowledged.

3.	As the aircraft was landing it collided with a black dog which wandered across the tarmac into the path of the aircraft. The pilot made an unsuccessful attempt to avoid the dog by veering. The aircraft suffered damage – principally in the area of the right undercarriage.

4.	It was the practice of the appellant before a landing to send out a mobile patrol to clear the Bonriki runway of obstacles or to report if clearance was not possible. In the present instance the mini bus patrol was late and did not arrive until after the accident had occurred.

5.	The appellant denied liability and claimed that it owed no duty of care to the plaintiff respondent. Although there was no statutory obligation upon the appellant to provide a patrol, it chose to do so as a matter of routine. The pilot was entitled to rely upon the Authority to carry out this routine in a timely and efficient manner. On this occasion the Authority failed to discharge the obligation which it had accepted and was thereby liable to those who relied upon the service in the course of operating an aircraft on approach to Bonriki.

6.	The appellant points to section 59 of the Civil Aviation Act as imposing responsibility upon the pilot for the operation of the aircraft. Although the pilot in command has full control of the aircraft, his liability (if any) must be assessed in light of the service which the Authority elects to provide.

7.	In the present case the pilot gave proper warning to the control tower of his approach. The control tower gave no warning to the pilot that the ground conditions at Bonriki were otherwise than normal. The pilot made proper efforts to avoid the dog.

8.	The Chief Justice was correct in his decision.

9.	There is no need to examine the difficult question whether any breach of the statutory duties of the Authority gave rise to a claim for damages in tort. It is quite possible that there was no such duty under the statute. However, the actions of the Authority in setting up this long-established procedure gave rise to a common law duty of care.

10.	The appeal will be dismissed. The appellant will pay the respondent's costs of the appeal to be fixed by the Registrar if the parties are unable to agree an amount.

Paterson JA

Williams JA

Barker JA