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Christian Revival Crusade v Taviviya [1999] PNGLR 263 (28 May 1999)

[1999] PNGLR 263

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHRISTIAN REVIVAL CRUSADE

V

EYO TAVIVIYA (FOR THE BENEFIT OF HIMSELF AND ALL PERSONS FOR WHOSE BENEFIT LIABILITY IS ENFORCEABLE UNDER SECTION 31OF CIVIL AVIATION (AIRCRAFT OPERATOR’S LIABILITY) ACT OR ACTIONABLE UNDER ANY OTHER LAW))

WAIGANI: KAPI DCJ; JALINA AND INJIA JJ
22 March; 28 May 1999

Facts

The appellant is appealing against the trial judge’s finding on liability and award of damages in the sum of K150,000 in favour of the respondent under Part III of the Civil Aviation (Aircraft Operator’s Liability) Act Ch 292.

On 17/11/92, a small Cessna light aircraft privately owned and operated by the appellant and piloted by one Peter Anthony McGil crashed into the mountains between Port Moresby and Kosipe in the Central Province whilst en route to Port Moresby. All five passengers plus the pilot were killed on impact. The five passengers were all part of one nucleus family. They had boarded the plane at Kira airstrip after paying K500 in airfares to the pilot.

However, the aircraft was not a licensed commercial operator because the appellant was not the holder of an airline or charter licence, which would have entitled the appellant to operate commercial transport operations in respect of this aircraft.

Under s 196 and s 197 of the Civil Aviation Regulation Ch 239, the appellant was not permitted to use the aircraft to carry passengers for hire or reward. It was permitted to use the aircraft for private use only.

As a result of the death of the five passengers, the respondent, in his capacity as the customary representative of all the deceaseds’ estate, instituted an action in the National Court claiming damages in respect of the deaths.

The writ of summons pleaded three alternative causes of action: (1) pursuant to the provisions of the Civil Aviation (Aircraft Operators Liability) Act in conjunction with the Wrongs (Miscellaneous Provisions) Act; (2) breach of the Civil Aviation Act (Ch 239); and (3) under the common law. Although the plaintiff did not abandon his claim under the second and third causes of action, he advanced his claim under Part III only and was so determined by the trial judge.

Held

1. The meaning of s 23 is not in issue in this appeal. Part III only applies to the holder of an airline licence or charter licence engaged in carrying passengers in the normal course of commercial transport operations for hire or reward. The application of Part III to private operators is excluded by necessary implication by s 23. As s 31(9) comes within Part III, that section also has no application to private operators of aircraft. Therefore, the construction of s 31(9) is not an issue in this appeal.
   
2. That s 31 (9) of the Act is a procedural provision designed to ensure the fair, just and equitable disposition of actions arising from the use of aircraft in the normal course of commercial transport operations. It cannot be interpreted to permit the making of an order which offend the limitations on liability and damages prescribed by statute under Part III of the Act under the disguise of fair, liberal and purposive approach to statutory construction.
   

Counsel

P Payne, for appellant.
J Wal, for the respondent.

28 May 1999

BY THE COURT. This is an appeal against the trial judge’s finding on liability and award of damages in the sum of K150,000 in favour of the respondent under Part III of the Civil Aviation (Aircraft Operator’s Liability) Act Ch 292 (hereinafter referred to as "the Act").

The grounds of appeal are:

"(a) His Honour, having made the following findings:

(i) Part III of the Act only applied to aircraft operators by the holder of an airline licence or a charter licence in the course of commercial transport operations; and

(ii) the Appellant’s aircraft, P2-UIF, was, on 7 November 1992, not operated by the holder of an airline licence or charter licence. His Honour then erred in law in treating or deeming the Appellant to fall within the application or operation of Part III of the Act.

(b) His Honour erred in law in finding that, whilst the Appellant was not licensed as an airline or charter operator, it held itself out as being licensed as an airline or charter operator and, as a result, was liable to the Respondent under Part III of the Act.

(c) His Honour erred in law in finding the Appellant liable to the Respondent when His Honour made no findings of negligence or fault against the Appellant.

(d) His Honour erred in law and fact in awarding the Respondent damages when there was no evidence or no reliable evidence of the Respondent’s dependency upon the passengers referred to in the statement of claim.

(e) His Honour erred in law and fact in awarding the Respondent damages of K150,000 when there was no evidence to support that quantum of damages.

The trial judge’s findings of fact pertinent to this appeal are not in issue. On 17/11/92, a small Cessna light aircraft, privately owned and operated by the appellant and piloted by one Peter Anthony McGil crashed into the mountains between Port Moresby and Kosipe in the Central Province whilst en route to Port Moresby. All five passengers plus the pilot were killed on impact. The five passengers were all part of one nucleus family. They had boarded the plane at Kira airstrip after paying K500 in airfares to the pilot. However, the aircraft was not a licensed commercial operator because the appellant was not the holder of an airline or charter licence, which would have entitled the appellant to operate commercial transport operations in respect of this aircraft. Under s 196 and s 197 of the Civil Aviation Regulation Ch 239, the appellant was not permitted to use the aircraft to carry passengers for hire or reward. It was permitted to use the aircraft for private use only.

As a result of the death of the five passengers, the respondent, in his capacity as the customary representative of all the deceaseds’ estate, instituted an action in the National Court claiming damages in respect of the deaths. The writ of summons pleaded three alternative causes of action: (1) pursuant to the provisions of the Civil Aviation (Aircraft Operators Liability) Act in conjunction with the Wrongs (Miscellaneous Provisions) Act; (2) breach of the Civil Aviation Act Ch 239 and (3) under the common law.

It appears from the transcript of proceedings of the court below that although the plaintiff did not abandon his claim under the second and third causes of action, the plaintiff advanced his claim under Part III only and was so determined by the trial judge. Part III entitled "Other Carriage to which this Act applies" covers ss 22-37 inclusive.

The appellant challenges the trial judge’s finding as to liability and award of damages in favour of the plaintiff under Part III. All the grounds of appeal except ground (c) relate to this cause of action. Counsel for the respondent who conducted the case for the respondents in the court below confirmed this position at the hearing of this appeal.

Section 23 of the Act limits the application of Part III of the Act to liability in respect of "the carriage of a passenger who is ... carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations". Under the Civil Aviation Regulation Ch 239, the only class of aircraft authorized to engage in commercial operations are the holder of an Aerial Work Licence, Charter Licence and Airline Licence: see ss 196, 197, 200, 201, 202, 203. The appellant concedes that it was not the holder of an airline licence or a charter licence and that it was not engaged in the normal course of commercial transport operations. But the respondent in the court below sought to invoke the provisions of s 31 (9) (a) to deem the appellant’s operations as coming within Part III on the basis that the appellant held out itself to the deceased and the public as being the holder of an airline licence or a charter licence engaged in the course of commercial transport operations by collecting air fares from the deceased. This argument was accepted by the trial judge.

The trial judge approached the construction and application of s 23 and s (31 (9) in this way:

"We have a situation here where the defendant holds itself out as an operator to which Section 23 of the Act applies when in fact it is not and the public upon it holding itself out to be such pay money for a reward and then some one gets killed as a result of an aircraft crash, the defendant turns around and says it is not an operator under which s 23 of the Act applies. This is in my view amounts to deceit of the public by the operator who is the defendant. I might add that the defendant is not any ordinary defendant. It is a church organisation which has been playing this game. In my view the public paying airfares to an operator who holds itself out to be an operator under s 23 of the Act are entitled to rely on their belief that the operator was covered under PART III of the Act because it had held itself out to be so. For that reason I will treat the defendant as if it were covered under PART III of the Act. I am mindful of the fact that the defendant was not licensed as an airline or charter operator but the fact that it had for a while held itself out to be one and the public such as Kaea Taviviya acted on it holding itself out to be one in my view is entitled to rely on PART III of the Act. To me that is equitable and just."

It is submitted by counsel for the appellants that there is no deeming provision in respect to the application of s 23 to private operators of aircraft to Part III of the Act. However, counsel for the respondent submits that a fair, liberal and purposive approach to the interpretation of s 31 (9) permitted the trial judge to reach the conclusion that he reached: see PLAR No. 1 of 1980 [1980] PNGLR 326.

It is convenient to set out s 23 and s 31 in full:

"23. Application of Part III

This Part applies to the carriage of a passenger who is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated between Papua New Guinea and another country, not being carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies.

31. Liability in respect of death

(1) This section applies in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death).

(2) Subject to s 33, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.

(3) Subject to subs (4), the liability is enforceable for the benefit of such of the members of the passenger’s family as a sustained damage by reason of this death, and for the purposes of this subs -

• (a) the passenger’s family shall be deemed to consist of the wife or husband, parents, step-parents, grandparents, brothers, sisters, half-brothers, half-sisters, children, step-children and grandchildren of the passenger; and
  
• (b) in ascertaining the members of the passenger’s family, an illegitimate person or an adopted person shall be treated as being, or as having been, the legitimate child of his mother and reputed father or, as the case may be, of his adopters.
  

(4) To the extent that the damages recoverable include ¾

(a) loss of earnings or profits up to the date of death; or

(b) funeral, medical or hospital expenses paid or incurred by the passenger before his death or by his personal representative,

the liability is enforceable for the benefit of the personal representative of the passenger in capacity as personal representative.

(5) The action to enforce the liability may be brought by ¾

(a) the personal representative of the passenger; or

(b) a person for whose benefit the liability is, under the preceding provisions of this section, enforceable,

but only one action shall be brought in respect of the death of any one passenger, and the action is for the benefit of all persons for whose benefit the liability is so enforceable who ¾

(c) are resident in the country; or

(d) not being resident in this country, express the desire to benefit of the action.

(6) The damages recoverable in the action include ¾

(a) loss of earnings or profits up to the date of death; and

(b) the reasonable expenses of the funeral of the passenger; and

(c) medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of a passenger.

(7) In awarding damages, the court is not limited to the financial loss resulting from the death of the passenger.

(8) Subject to subs (7), the amount recovered in the action shall, after the deduction of any costs not recovered from the defendant, be divided amongst the persons entitled in such proportions as the court directs.

(9) At any state of the proceedings the court may make any such order as appears to it to be just and equitable in view of ¾

(a) the provisions of this Part limiting the liability of the carrier; and

(b) any proceedings that have been, or are likely to be, commenced against the carrier, whether in or outside the country."

It is trite principle of statutory interpretation that if "the words of a statute are themselves precise and unambiguous, then no more is necessary than to expound those words in their ordinary and natural sense." Wemay v Kepas Tumdual [1978] PNGLR 173 at 176 per Wilson J. adopted in SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31. Where the words in a statute are ambiguous or unclear, it is the duty of the Court to construct those words in a fair and liberal manner so as to achieve the purpose intended by the legislature: PLAR No. 1 of 1980, ante.

There is no decided case in PNG on the application of Part III to private operators who engage in authorised commercial transport operations. In Australia, the Australian Commonwealth Civil Aviation (Carrier’s Liability) Act 1959 Part IV contains provisions identical to Part III of our Act. But the Australian legislation also lacks precedent. Some assistance may be gained from an article in the Australian Law Journal by L. R. Edwards, referred to us by Mr Wal, entitled "The Liability of Air Carriers for Death and Personal Injury to Passenger", Vol. 56 March 1982, where he discusses the effect of Part IV (our Part III) at p 108 at 114-115 where he writes.

"The provisions of Part IV of the Carriers’ Liability Act are not directed to carriage being operated in the course of particular classes of operations as defined by the Air Navigation Regulations but to carriage in an aircraft which is being operated by the holder of an airline licence or a charter licence. Thus Part IV does not apply to carriage which would otherwise satisfy the requirements of s 27(1) when the aircraft is being operated by a person who is legally required to hold a licence under the Air Navigation Regulations, but does not in fact do so. This fact is important in cases where by means of leasing or other arrangements in relation to the aircraft operations which are essentially charter in character, are conducted in such a manner as to avoid the need to hold a charter licence and thus to avoid the necessity of complying with the operating standards required for charter operations."

The meaning of s 23 is not in issue in this appeal. Part III only applies to the holder of an airline licence or charter licence engaged in carrying passengers in the normal course of commercial transport operations for hire or reward. The application of Part III to private operators is excluded by necessary implication by s 23. As s 31(9) comes within Part III, that Section also has no application to private operators of aircraft. Therefore, the construction of s 31(9) is not an issue in this appeal.

In any case, s 31(9) is a procedural provision designed to ensure the fair, just and equitable disposition of actions arising from the use of aircraft in the normal course of commercial transport operations. It cannot be interpreted to permit the making of an order which offend the limitations on liability and damages prescribed by statute under Part III of the Act under the disguise of fair, liberal and purposive approach to statutory construction. Some of these prescribed limitations include the application of Part III (s 23), no fault liability provision (s 24), exclusion of civil liability under any other law (s 31(2)), time limit for bringing action (s 30), who may bring action for damages (s 31 (3)) and monetary limit on amount of damages (s 27).

For these reasons, we would allow the appeal. Having arrived at this conclusion, it is not necessary to consider the remaining ground of appeal in ground (c).

It appears to us to be pointless in remitting this matter back to the National Court to consider the respondent’s two remaining causes of action pleaded in the writ of summons, as the respondent did not lead any evidence in respect of them. By his conduct counsel for the respondent abandoned the other alternative claims at the trial.

We further order that the respondent pays the appellants costs of the appeal.

Lawyer for the appellant: Blake Dawson Waldron.
Lawyer for the respondent: Joe Wal Lawyers.