J.r. De Beijer Vs W.a.a.c. Nigeria Ltd & Other (1969) LLJR-SC

J.r. De Beijer Vs W.a.a.c. Nigeria Ltd & Other (1969)

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ADEMOLA, C.J.N.

The appellants who were the defendants in the High Court of the Benin Judicial Division have appealed against the judgment of that court on 10th March, 1966, awarding damages of £1,737.11s.4d., to the plaintiff in a claim for £5,824.13s.0d., against (1) the two defendants for loss of use of and damage to the plaintiff’s Piper aircraft sustained by reason of the negligence of the 2nd defendant (Hayes) in the management and control of a twin engined turbo-propelled aircraft at Benin airport on or about 28th August, 1963 and for the cost of survey of the damage sustained and (2) against the defendant Company for the damage to the plaintiff’s said aircraft on the date and the place aforesaid pursuant to the provisions of section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952.

It will be observed that the claim for negligence is against the two defendants whilst the claim under the Colonial Civil Aviation (Application of Act) Order 1952 is against the 1st defendant only. As stated above, judgment was entered for a sum of £1,737.11s.4d., on the ground of negligence. The learned Chief Justice also held that the Order of 1952 did apply and 1st defendant was liable. The defendants have appealed against this judgment and filed three grounds of appeal as follows:-

“1. The learned trial judge having retired from the Bench and a new Chief Justice having been appointed to succeed him he was functus officio when he delivered the judgment on the 10th March, 1966.

2. The learned trial judge misdirected himself in law when he held the defendants/appellants liable by virtue of section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952.

3. The judgment is against the weight of evidence.”

The plaintiff has filed a cross-appeal and the three grounds read:-

“l. The learned judge mis-directed himself in law when he deducted from the damages that he found proved the sum of £893.0s.0d., being monies received by the plaintiff/appellant from his insurers since such sums are immaterial so far as a third party is concerned and cannot be pleaded by him in reduction of damages and neither should they be taken cognizance of by the court.”

2. The learned judge was incorrect in fact when he refused to accept certain items claimed and proved by the plaintiff/respondent (and not challenged by the defendants/appellants) by reason of the fact that they were not supported by documentary evidence.

3. The damages awarded were too low in view of the evidence tendered and unchallenged at the trial.”

The facts as argued before the learned Chief Justice show that on 28th August, 1963, three planes arrived at different times and parked at the Benin airport. The plaintiff’s plane was a Piper PA18 Super Cub. The defendants’ plane which arrived last was a Fokker Friendship F27 which was a large plane. The 2nd defendant who piloted this plane parked beside the Piper plane with its nose pointing in the same direction as the other planes but in front of the nose of the Piper, and its tail about 60-80 feet from the nose and its right engine in front of the left wing of the Piper from the latter’s cockpit seat. The Fokker Friendship took off first and in doing so instead of taxi-ing out cautiously by applying power to his left engine only as the right engine was so near the small plane, he applied power to both engines of his plane.

As a result the propeller thrust or the slip-stream from the right engine of the larger plane (the Fokker Friendship) lifted the left wing of the Piper high resulting in the right wing tipping over and crashing on to the tarmac. At that time, to the knowledge of the 2nd defendant, there were no lashing facilities at Benin Airport otherwise the plaintiff could have lashed down his plane which would have made it more secure. In consequence of this act by the 2nd defendant, the right wing of the Piper plane was bent upwards and the control surface on the right wing also bent upwards. The right tip of the tail had thereby touched the ground and the fabric was slightly dam-aged. It therefore was unfit to fly.

The learned Chief Justice accepted the opinion of witnesses that the 2nd defendant had failed to observe the presence of the other aircraft before starting his two engines or failed to appreciate the effect of his slip stream, a duty which a pilot must observe. Of the three grounds of appeal filed, ground one was abandoned. Mr. Sowemimo arguing the second ground of appeal refers to Schedule I, Part IV, section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952 which, apart from the proviso, reads:-

“(2) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.”

And submitted that the words “whilst in flight, taking off or landing” in the sub-section are of importance to his case; that since the aircraft in the instant case was not in flight or taking off or landing, liability cannot be attached to the 1st defendant. The aeroplane, he argued, was taxiing at the time of the accident and was not taking off. That was the moment, counsel stated, when the Fokker Friendship plane was about to overcome the moment to get moving, that is, to start taxiing: it had not, he stressed further, even started taxiing.

Taking off, he finally argued, starts after the taxiing. Mr. Sowemimo relies on the case of Blankley v. Godley and another [1952] 1 All E.R. 436 where in circumstances not unlike the instant case Byrne J., seems to confine the definition of “taking off” to the period after the pilot has come to the take-off position, and does not include taxiing. In that case he held that the pilot of the plane was liable for negligence and the owners are not liable under section 9 (1) of the Air Navigation Act 1920, which provisions are similar to our section 10 (2) of the Colonial Civil Aviation (Application of Act) Order 1952.

In the case of Dunn v. Campbell 4 Lloyd L.R. 36 however, the decision on this point is different. It would seem from the decision in the latter case that “taking-off” commences when the pilot starts to taxi across the aerodrome towards the position from which the actual take-off is made, and is not restricted to the start of that run from the position (at which there is usually a halt) as in Blankley v. Godley & another.

The decision in Dunn v. Campbell seems to be in accord with our views and we hold that under section 10 (2) of Schedule 1, Part 1V to the Order, the process of taking-off commences from the time the aircraft leaves its stationary position for the purpose of moving to the runway from which it departs on a flight. We therefore agree with the learned trial judge that the 1st defendant is liable. On the third ground of appeal, counsel stressed the weight to be attached to the report of Mr. O’Neil on the situation and argued that no negligence was established. Finally he argued that the respondent’s plane being so light must necessarily be affected by slip-stream and it was not the respondent’s fault that there were no lashing down facilities at that time, at Benin aerodrome. On the matter of negligence, this is what the learned Chief Justice had to say in his judgment:-

“After listening to the evidence of the witnesses for the plaintiff and the defendants and reading the report exhibit ‘D3’ tendered by Mr. O’Neil p/w 4, the Airport Commandant, I am satisfied that the Piper Cub plane belonging to the plaintiff was damaged and that such dam-age was caused by the adverse effect of the slip-stream of the F.27 piloted by the 2nd defendant. The 2nd defendant is a trained and experienced pilot. He saw the planes when he arrived and saw them all parked in the normal position at the airport and should have foreseen the possibility of likely danger to other lighter craft from the slip-stream of his plane especially as he had precision instruments in the cockpit of the plane.” All we can usefully add to this is that the 2nd defendant himself in his evidence under cross-examination admitted that if the plaintiff’s aircraft was within effective range of slip-stream, he would expect it to behave the way it did. And he added that he would not challenge any witness that his (2nd defendant) aircraft was not within effective range to give slip-stream to the plaintiff’s aircraft. We now come to the cross-appeal. Mr. Bentley has attacked the judge’s findings as to damages awarded as being too low and that the learned judge failed to itemise the damages. In the penultimate paragraph of his judgment the learned judge said:-

“I find the defendants liable for damages to the plaintiff in the sum of £1,737.11s.4d. The other items of claim have not been proved to my satisfaction. But as the insurance company has paid the plaintiff the sum of £893, the defendants will now pay the sum of £834.11s.4d. to the plaintiff.” It is argued on all sides that the learned judge has gone wrong with his figures. The sum of £1,737.11s.4d. should have been £1,767.11s.4d., amount paid by Insurance should be £923.8s.0d., and not £893 and the balance which the learned judge recorded as £834.11s.0d. should be £844.11s.0d. PAGE| 5 In the first place, we agree with Mr. Bentley that there is no right of sub-rogation and the learned judge is in error in deducting any amount paid by the insurance company. The claim in the court below as we stated earlier was for £5,824.13s.0d., of which items of special damages are as follows:-

(i) Cost of repairs to aircraft & spare part as agreed£923.8s.0d.

(ii) Survey fees 55. 2s.8d.

(iii) Items of Expenses as enumerated £1,846.10s.4d. Apart from going wrong with the figures, it is difficult to see how the learned judge arrived at the figures he awarded since they are not itemised.

We therefore find ourselves in the unenviable position of making the awards of damages.

Item (1) of the special damage has been admitted by the defendants, under notice to admit, and there can be no further question about this

Item (11) Survey fees, to our mind, cannot be claimed and Mr. Bentley for the respondent did not press this claim.

Item (111): this item of expenditure was enumerated in the statement of claim as well as in the amended statement of claim.

They were not specifically but generally denied in the statement of defence and no questions were asked about them in cross-examination. Mr. Sowemimo himself agreed before us that the learned judge has clearly gone wrong on the matter of assessing of damages, but he offered no argument on the actual award of damages. Mr. Bentley on the other hand did not ask us to examine the proof of each item of special damages but said that he was entitled at least to the amount of £1,846.10s.4d. which includes £923.8s.0d., thus accepting half of the amount covering items of expenditure. In the circumstances, since both sides appear reasonably satisfied on this arrangement, we award the sum of £923.2s.4d. on item (111) above. In the net result, we dismiss the appeal of the appellants and allow the respondents cross-appeal and set aside the award made by the learned Chief Justice.

The following order will be made:- Judgment will therefore be entered for the plaintiff in Suit No. B/42/1964 in the High Court of the Benin Judicial Division for the sum of £1,846.10s.4d., and 120 guineas costs and this will be the judgment of the Court.

Costs of this appeal in favour of the respondent are assessed at 50 guineas.

Other Citation: (1969) LCN/1621(SC)