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Error in Judgment Not Negligence

Error in Judgment Not Negligence
Nov 1, 2011 gnuworld

In the matter of Charter Hi (Pty) Ltd & 2 Others v The Minister of Transport a full bench of the Supreme Court of Appeal dealt with an appeal from the North Gauteng High Court (Pretoria) relating to a damages claim which arose as a result of an aircraft accident that occurred north of Cape Town on 13 December 1996.

The accident occurred during the course of an examination during which a twin-engine turbo-prop Beechcraft King Air C90 (in which the Appellants shared a financial interest) was being piloted by Mr Jonathan Grant, who was accompanied by Mr Ray Grinstead, an official flight examiner.  In the course of the flight the aircraft tumbled to the ground from an altitude of about 2 500 feet above ground level and was destroyed.  Mr Grant, Mr Grinstead and a passenger who was also aboard the aircraft were killed.  The Appellants sued the Minister of Transport for the loss sustained in consequence of the destruction of the aircraft, alleging that the accident was caused by the negligence of the examiner, Mr Grinstead, for which the State was alleged to be vicariously liable.  The claim was dismissed in the Court below.  The issues that arose in the Appeal were whether the Appellants had proved that Mr Grinstead had acted negligently and, if so, whether his negligence had caused the accident; and whether the Minister was vicariously liable for Mr Grinstead’s conduct.

After an extensive analysis of the expert evidence presented in the Court below and an analysis of how it was presumed that the accident occurred, the Court turned to the issues of negligence and causation and re-iterated that it is not every act or omission that causes harm that is actionable.  The Court then turned to the standard of diligence against which Mr Grinstead’s conduct as an official flight examiner must be judged.  The Court held that in cases in which specialized skill is involved, the general standard of the reasonable person is adjusted upwards to that of the reasonable expert in the field involved: the person possessed (or professing to be possessed) of specialized skills is required to display not the “highest possible degree of professional skill” but “the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs”. The Court noted that in the field of aviation, this same, stricter, standard had been applied to the “reasonable pilot” and “the reasonable aerodrome operator”.  The Court held further therefore that in this case the standard of diligence that applied to Mr Grinstead was that of the reasonable official flying examiner placed in the “exact position” in which he found himself.

The Court held that the Appellant’s case on negligence was two-fold, the first being founded on res ipsa loquitur.  The submission was that a reasonable official flight examiner in the position of Mr Grinstead, having jeopardized the flight by simulating engine failure could and would have intervened to ensure that the simulated failure did not progress to endangering the aircraft and the fact alone that the aircraft crashed established that he negligently failed to do so.  The Court disposed of this argument however on the basis that no inference of negligence could be drawn from the mere fact that, after Mr Grinstead simulated engine failure, the aircraft went into a spin and crashed.

After dealing with various theories as to what precipitated the crash the Court noted that the law does not call for perfection – not even on the part of official flight examiners, and noted further that what it calls for is “reasonable conduct”.  The Court further held that aviation examining called for the exercise of fine judgment and held, on the best construction of events for the Appellants, Mr Grinstead might on this occasion have erred in his judgment but that does not amount to negligence.  It was consequently held that whereas the Appellants bore the onus of establishing that Mr Grinstead negligently failed to intervene, they were of the view that the onus was not discharged.

With regard to Appellant’s alternative argument that the manoeuvre in question had been performed without sufficient altitude, the Court held that it remained for the Appellants to show that but for this negligent act the damage would not have occurred.  The Court re-iterated that in civil matters a Plaintiff “is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what could be expected to occur in the ordinary course of human affairs rather than an exercise of metaphysics”.  On the basis of the evidence which was presented and that which was not canvassed with the relevant expert witnesses, the Court found that there was no basis for finding that the aircraft would probably have recovered had it had the additional distance to fall.  The Court therefore held that even if there was negligence on the part of Mr Grinstead, the Appellants had not acquitted themselves of the onus of establishing that such negligence was the cause of the accident.

The Court also went on the comment on the issue of vicarious liability and in this regard held that even had the Appellants proved that a negligent act or omission on the part of Mr Grinstead had caused the destruction of the aircraft, there was no merit in the argument that the Minister was vicariously liable for the damage, as there was no contractual relationship between Mr Grinstead and the Department of Transport, whether in the nature of an employment contract or one of principal and agent, as he was simply designated as a  person whose expert judgment the Commissioner for Civil Aviation would accept for purposes of determining the competence of pilots.

For a full copy of the judgment of the Supreme Court of Appeal click here.

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