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Kuri v Trans Niugini Airways Ltd [2006] PGNC 78; N3084 (8 May 2006)

N3084

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 1212 OF 1997

BETWEEN:

ESTHER KURI
Plaintiff

AND:

TRANS NIUGINI AIRWAYS LTD
Defendant

Waigani: Manuhu, J.
2005: November 18 & 19
2006: May 8

DECISION

TORT - Master and servant - Common law duty of care - Duty to provide safe system of work - Breach of duty of care.

TORT - Master and Servant - Aviation industry - Liability of Master - Duty to ensure aircraft was mechanically safe, sound and operational - Duty to comply with aviation safety standards - Breach of aviation safety standards - Aircraft mechanically defective and non-operational - Aircraft not airworthy.

Case cited:
Karawari Lodge Pty Ltd v Bernard Luck (1998) SC553.

Counsel:
Mr. K. Kua, with Ms. L. Gari, for the Plaintiff.
No appearance for the Defendant.

8 May 2006.

1. MANUHU, J: This is an undefended dependency claim under Parts V and VI of the Wrongs (Miscellaneous Provisions) Act, Chapter No. 297, for and on behalf of the dependents of the deceased and for the benefit of the estate of the deceased. The court has found for the Plaintiff. The brief reasons are in Schedule One at the end of the judgment. This then is the expansion of the brief reasons, or the decision in full.

2. The proceeding concerns an aviation fatality on 25 July 1995 when a Britten-Norman Islander (BN2 A-21) carrying 13 bags of coffee weighing over 700 kg crashed in fine weather during take off from Karamui airstrip in Simbu Province. It is undisputed that the aircraft was owned and operated by the Defendant, Trans Niugini Airways Ltd, which is a company owned by a Gerard Philip. The deceased, John Kale Dima, was the pilot and one of two persons on board the aircraft. The Plaintiff is the widow of the deceased pilot. Their marriage was formalized by custom in 1994, a year before the fatal crash in 1995. Such marriages are legally recognized marriages in Papua New Guinea. Gabriel, who is about 13 years old, is the only child from the marriage. The deceased pilot used to be the employee of the Defendant. He then left for another aviation company and was away for about six months. The fatal flight was his first day of flight following his re-engagement by the Defendant.

3. The law on liability for breach of duty of care in a master and servant relationship is well established. The Supreme Court left no doubt when it declared in the case of Karawari Lodge Pty Ltd v Bernard Luck (1998) SC553, per Kapi, DCJ (as he then was), Injia and Sawong JJ, thus:

"The principles are clear. There is a general duty of care owed by an employer to its employees to provide a safe system of work. This duty is imposed by the common law. It is the employer's duty to take reasonable steps to ensure or protect the safety of an employee from unnecessary risk of injury intentionally caused or otherwise. This includes risk of injury intentionally caused by a third party which includes criminals. It is the duty of the employer to provide adequate and readily available security measures to protect the employee at the employee's workplace. There is no perfect system of work which is free from any risk and there is no such absolute obligation on the employer to provide such a system. It all depends on the circumstances of each case. The test is whether the employer has taken reasonable care, paying proper attention to the risk and paying reasonable attention to the other relevant circumstances. The necessary questions of fact which falls to be decided by the trial judge are: 1. That the defendant's operations involved a risk of injury which was reasonably foreseeable. 2. That there was a reasonably practicable means of obviating such risk. 3. That the plaintiff's injuries were caused by the risk in question. 4. That the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff's safety.

....

These principles are settled at common law and they have been adopted and applied here in cases such as Lubbering -v- Bougainville Copper Ltd. [1977] P.N.G.L.R. 183 at 190; and Colbert -v- PNG [1988-89] P.N.G.L.R. 590 at 594-596; and Edwards -v- Jordan Lighting and Anor [1978] P.N.G.L.R. 273. For the position in Australia, see the High Court decision in Turner -v- South Australia [1982] 56 ALJR 839 at 840 adopted and applied in Colbert at 597-596."

4. In this case, the Plaintiff is required, on the balance of probabilities, to prove the claim against the Defendant; and, in the process, is, simultaneously required to overcome a formal investigations report sanctioned by the Civil Aviation Authority ("Flanagan Report") and, inferentially, the State, which concluded that pilot error was the cause of the crash.

5. Relevantly, the aircraft in question, as alluded to, is a Britten-Norman Islander (BN2 A-21). It has wing tip tanks, which means that, in addition to the two main fuel tanks, there are two auxiliary fuel tanks located on the wing tips of the aircraft. The pilot chooses the fuel tanks to use but the auxiliary fuel tanks may only be used for take offs and landings. If there is enough auxiliary fuel, the pilot may switch to those tanks. The Flanagan Report blames the deceased, who was a qualified pilot but was, to an extent, inexperienced, for mismanaging the aircraft fuel system, which resulted in the crash.

6. The deceased pilot commenced his flying training in January 1988 in Australia. His first solo flight was on 12 January 1988. The deceased pilot obtained a British Commercial Pilot Licence on 6 June 1989 and commenced training as a cadet pilot with Air Niugini on 19 November 1989. He left Air Niugini at the end of April 1990 after being given the full privileges of a Commercial Pilot Licence. The deceased pilot then worked with various aviation companies including the Defendant when he was exposed to BN2 aircraft and BN2 tip-tank aircraft. He passed his BN2 engineering examination on 9 December 1993 and obtained a BN2 endorsement on 12 February 1994. He was then rostered to fly BN2 aircraft P2-TNT, with wing-tip tank configurations, on 16 February 1994. The deceased pilot may have been inexperienced but he had received adequate training on BN2 aircraft with wing tip tanks.

7. The Flanagan Report was compiled by an investigation team of former pilots headed by Bernard Flanagan, who is also a former air traffic controller. The report was concluded on 10 July 1997. The conclusions of the Flanagan Report are as follows:

"Findings

• The aircraft was operated within weight and centre-of-gravity limits.
• No defects that were likely to have contributed to the occurrence were found with the aircraft.
• The aircraft’s wing tip tanks were selected to feed fuel to the engines.
• The right engine was producing considerable power at impact.
• The left engine had stopped before ground impact and the propeller was not feathered.
• The pilot did not operate the aircraft fuel system in accordance with flight manual instructions.
• Both engines were starved of fuel during the initial climb after takeoff.
• The pilot had probably operated the aircraft exclusively on fuel from wing tip tanks, which were near empty at takeoff.
• A suitable forced landing option was available.
• There was no warning in the aircraft flight manual to alert the pilot to the danger of operating with near empty wing tip tanks.
• Following the entry into the spiral there was insufficient height available for a recovery to controlled flight.
  

Significant factors

• The pilot mismanaged the aircraft fuel system.
• Both engines suffered a total loss due to fuel starvation.
• The right engine regained power probably as a result of a change in aircraft attitude.
• The pilot lost control of the aircraft.
• Recovery was not possible in the height available."
  

8. The Plaintiff proceeded to undermine the Flanagan Report and, at the same time, establish her claim by placing all the evidence in one basket. Such a course is understandable because the persuasive value of the Plaintiff’s case is obviously maximized by viewing the evidence in its entirety. However, the court will, without substantially departing from the opted course, attempt to separate the evidence so that, fundamentally, the justification for undermining the Flanagan Report is properly appreciated. The same course would also be taken in relation to the claim for breach of duty of care.

9. For the purpose of discrediting the Flanagan Report, the Plaintiff appropriately compelled Bernard Flanagan, the Consultant Investigator in charge of the investigation into the crash, into the witness box and confronted him with the flaws and anomalies in the report.

10. The first flaw in the Flanagan Report is the apparent indifference or lack of interest demonstrated by the investigation team in relation to the mysterious disappearance of the Aircraft Maintenance Log Book ("Log Book)" shortly after the crash. The Log Book holds the history of the aircraft and its timed controlled engines including its components. The Log Book would have shed light on whether proper maintenance procedures and rectifications were followed in relation to any faults and defects with the aircraft. It was the duty of the Defendant to keep custody of the Log Book and to surrender the same to the authorities and any investigation team following a fatality. The investigation team, in this case, was aware of the missing Log Book but did not seriously deal with the Defendant and the mystery of the disappearance of the Log Book. Consequently, without the Log Book, the investigation team could not possibly arrive at the findings and conclusions it has reached.

11. Secondly, the investigation team did not engage the service, advice and guidance of a reputable engineer in the investigations. Mr. Flanagan is a former pilot and air traffic controller. He insisted during his testimony that he was qualified to conduct the investigation into the cause of the crash but conceded eventually that the Flanagan Report did not consider and eliminate all the possible causes of the crash. This is a decisive admission against the credibility of the Flanagan Report.

12. The absence of a reputable engineer is apparent from how the investigation was carried out. For instance, at the time of the investigation, witnesses at Karamui airstrip heard a bang. Then the left propellers stopped rotating. They concluded that there was a left engine failure which led to the fatal crash. Whatever it was, Mr. Flanagan and his team of former pilots were never in a position to explain or eliminate the failure of the left engine as a cause of the crash. The investigation team ignored the left engine most probably because none of the members knew how to carry out any engineering fault diagnosis. Mr. Flanagan admitted that the team was not adequately financed to carry out all the necessary tests, which is a lame excuse.

13. The absence of an engineer is further highlighted in the evidence of Nat Koleala, one of the country’s first pilots, and Reygil Sobejana, a very experienced engineer who was called as an expert witness, who testified that the Flanagan Report did not cover all the possible causes of the crash. While the aircraft in question had a recorded history of faulty fuel gauge readings, the investigation team did not consider and determine if all fuel equipments and components were operational. For instance, the investigation team did not determine if the aircraft’s fuel selector was manual or electrical, and whether the selector was operational; whether water was in the fuel tanks, which could have led to engine failure, and, ultimately, the crash; whether the fuel booster pump or auxiliary pump, fuel control unit, fuel distributor valve or fuel injection lines or nozzles, and, fuel switch wirings, were in good order. Without eliminating these possible causes, the Flanagan Report’s conclusion that the pilot mismanaged the aircraft fuel system, in the face of recorded history of faulty gauge readings and faulty left engine, is seriously flawed.

14. Thirdly, the court is of the impression that Mr. Flanagan was evasive and, therefore, an unimpressive witness. He was defensive of the Flanagan Report in a manner that, with no disrespect, lawyers, who are not expected to understand aircraft mechanical systems, would have given up pursuing their clients’ cases. Eventually, however, when confronted and cornered with the relevant evidence by Mr. Kua, Mr. Flanagan conceded that a number of very important aspects of the aircraft and possible causes of the crash were not carefully considered and eliminated. Witnesses Koleala and Sobeyana, who were impressive witnesses, agree that other possible causes of the crash were not considered and eliminated.

15. In the circumstances, the court is satisfied that the Flanagan Report is inclusive and seriously flawed. The court does not accept the finding that there were no defects found in the aircraft. Such a finding is contradicted by the evidence on left engine failure; failure to examine the left engine; failure to examine the fuel gauges; and, failure to investigate the disappearance of the Log Book. Accordingly, the court rejects the conclusion reached in the Flanagan Report which attributed the cause of the crash to pilot error. The court is of the impression that it was too easy, and probably aviation fatality investigation culture - an unacceptable culture, to blame the pilot who is not alive to defend himself.

16. To prove her principle claim, from the aircraft history file, there is overwhelming evidence which, apart from further undermining the Flanagan Report, points to the aircraft being mechanically defective and not airworthy.

17. The first of such evidence relates to the left engine. As already mentioned, witnesses at Karamui airstrip heard a bang and saw the left engine stopped. The aircraft appeared to be turning back for the airstrip when it crashed. According to Sobejana, the bang could not have been caused by fuel starvation as concluded by the investigation team. As is the case with vehicles, in times of fuel starvation, the engine would just stop operating without a bang.

18. Whatever the case may be, what the witnesses saw was a very familiar incident. The left engine of the aircraft in question had encountered several mechanical problems in the past. In 1992, the relevant air safety incident report shows that the pilot in command had made the following entry:

"On Monday 03.02.92 I departed Pom for Ononge at 09.57 about 15 minutes out of Pom. I noticed large amounts of smoke coming from the left engine. I crossed checked this with the engine instruments which indicated that I was indeed losing oil. I turned the aircraft back towards Pom and shout down the left engine. Approach cleared me for a straight in approach on RWY 14R an uneventful landing was made."(sic)

19. Also scribbled onto the same page is the following notation:

York Mendoza reported that oil filter adapter had "come loose" & caused the leak."

20. It appears that some repair work was done but the aircraft history file does not have any record of any repair work carried out by a qualified engineer on the left engine. Four months later, another air safety incident report was made in relation to the same left engine by Gerard Philip. The report reads:

"On the 22.6.92 I departed Port Moresby for Kamulai with a total fuel on board usable of 348 litres - 100 litres in each tip tank and 74 litres in each main tank - main tanks were in use for the flight to Kamulai. The next sector was Guari and one to Tapini. The aircraft was loaded at Tapini for a flight to Sopu with the next sector to be Sopu Tapini, refuel then Kerau, Ononge Moresby. The main tanks fuel gauges were indicating 5 gallons as I taxied at Tapini. I planned to change to tip tanks on departure. Soon after lift off a loss of power was experienced. I immediately closed the throttles, stopped the aircraft. All engine indications were normal. I turned around to go back to the parking bay. The left engine stopped as I applied power to go up the hill. I parked on the side of the strip. I then switched to tip tanks, restarted engines, taxied to the parking bay where the main tanks were refilled. I should have dipped the tanks instead of relying on fuel gauges. I now always." (sic)

21. Once again, the aircraft history file does not have any record of any repair work carried out by a qualified engineer on the left engine and the fuel gauge readings. It is more probable that the faulty fuel gauge was not repaired because Gerard Philip stopped relying on the fuel gauge readings. He was "always" dipping the tanks "instead of relying on the fuel gauges."

22. The aircraft’s problem with the left engine, most probably due to lack of proper maintenance, did not cease. There is yet a further air safety incident report, compiled again by Gerard Philip, which was received by the Air Safety Investigations Bureau on 28 September 1993. The report reads:

"The aircraft was loaded for a flight Chimbu - Port Moresby with 9 passengers and 100 kg of baggage. Total all up weight 2963 kg. Ground run and all indications were normal. Take off on runway [?] - nil wind. After take off I retracted the flaps and set climb power. As I started writing departure details and at about 5,400 feet a loud bang was heard from the left engine accompanied by a loss of power and total loss of oil pressure. I feathered the left propeller and executed a procedure turn whilst calling mayday and returned to the field for an uneventful landing. Upon inspection of the engine the conrond of number six cylinder had visibly separated from the crank shaft and exploaded the crank case."

23. Once again, the aircraft history file does not show if any proper maintenance and repair work was carried out by a qualified engineer on the left engine.

24. With all these reports, the investigation team should have been interested in the left engine. The left engine, according to Sobejana, should have been stripped by a qualified engineer at an appropriate facility to see if it was mechanically sound at the time of the crash, particularly when there had been three previous reports on incidents relating to the left engine. In all the circumstances, it is open to the court to find on the balance of probabilities that the faulty left engine was, at least, a cause of the fatal crash.

25. Secondly, the reported faulty fuel gauge could have also been a cause of the crash. The aircraft history file does not show if any proper maintenance and repair work was carried out on the faulty fuel gauge. Sobejana gave the obvious explanation that if the reported fault had not been rectified, unlike Gerard Philip, who used to dip the tanks, the deceased pilot could have been relying on faulty gauge readings on the day in question, particularly when he was flying for the first time since his reengagement.

26. Thirdly, to make matters worse, the aircraft checklist for the day in question, as reproduced in Schedule Two (A), did not have any information for the pilot in command on the usage of the main and auxiliary fuel tanks. The allocated spaces in the checklist had no entry. Relevantly, the take off checklist had a blank space. Consequently, the deceased pilot had no instruction on the use of the main and the auxiliary tanks during take off. Such an omission is a breach of standard aviation safety procedures, which renders the aircraft non-operational. But the aircraft in question was still defiantly flying.

27. Interestingly, Koleala, who had been engaged to carry out further investigations, recalls that he initially discovered that spaces provided for fuel tanks pre-take off and pre-landing checks, as shown in Schedule Two (A), were blanks. However, when he did a review on 24 March 1999, he found that the checklist had been tampered with. As shown in Schedule Two (B), an amended checklist was stapled onto the old one with the blanks already filled.

28. This evidence clearly shows that somebody attempted to cover up the operational flaws of the aircraft even when the Flanagan Report had implicated the deceased pilot. Thus, somebody was also attempting to patch up the loopholes in the Flanagan Report. On the balance of probabilities, Gerard Philip and the Defendant are responsible for the tampering.

29. Fourthly, relevant to the issue of fuel management, the operational instruction unique to the aircraft was not appropriately displayed in the cockpit. The Flight Manual, which was, contrary to standard safety procedures, also not in the aircraft, required a placard containing the following cautionary reminder to be labelled on the instrument panel and within the view of the pilot in command:

THIS IS A TIP-TANK AIRCRAFT. TIP TANKS ARE TO BE FILLED FIRST - USED LAST. BEFORE TAKE-OFF CHECK BOTH MAIN AND TIP TANK CONTENTS. TAKE-OFFS AND LANDINGS ARE PROHIBITED ON MAIN TANKS WHEN GAUGE READS LESS THAN THREE GALLONS ABOVE ZERO.

30. The instruction reminds a pilot on when to use fuel in the main and auxiliary tanks, particularly during take offs and landings. The fatality in this case was during take off. There is no evidence that this instruction was displayed on the aircraft. Mr. Flanagan agrees that the investigation team did not consider this requirement. The standard practice is for the aircraft to be grounded if the reminder is not displayed. Quiet recklessly, however, the aircraft in question was still flying.

31. Furthermore, there is evidence that Gerard Philip had the general disposition of not having any regard for aviation safety regulations and standards. Koleala gave evidence of him personally witnessing a motor vehicle part, an exhaust pipe, being brought in by Gerard Philip to be used to repair an aircraft. A motor vehicle exhaust pipe cannot withstand the extreme heat generated by an aircraft engine and could easily melt.

32. Moreover, contrary to aviation safety procedures, Gerard Philip, who was not a qualified engineer, carried out his own maintenance on the aircraft on unlicensed premises. Maintenance of the aircraft was supposed to be carried out by a qualified engineer in a licensed facility at regular intervals. The nature of maintenance carried out is then recorded by the engineer in a maintenance release form. In this case, prior to the fatal crash, standard aviation maintenance procedures were not followed.

33. Witness Kuno is a former employee of the Defendant. He used to carry out a number of tasks, including preparing the load sheet, ticketing, driving and checking the fuel of the aircraft. Maintenance of the aircraft in question was supposed to be carried out by qualified engineers at Nadzab Airport which also has the appropriate maintenance facility. However, Gerard Philip used to carry out his own maintenance work on the aircraft at the terminal - in the open - in Kundiawa. In so doing, Gerard Philip was continuously in breach of the standard aviation safety procedures.

34. Relevant to the crash, Gerard Philip carried out some maintenance work on the aircraft several days before the fatal crash. On 22 or 23 July 1995, after Gerard Philip had worked on the aircraft, Kuno was given a maintenance release form to be taken to Nadzab for endorsement. The maintenance release form was subsequently endorsed by a Jim Kas, presumably of Wewak Aviation, on 24 July 1995 with the aircraft still in Kundiawa, and even when Jim Kas did not carry out any maintenance work on the aircraft. The fatal crash occurred on the very next day when the deceased pilot, who had no reason to commit suicide, was flying the aircraft for the first time following his re-engagement.

35. The findings of the court, therefore, are that, at the time of the fatal crash, the aircraft was mechanically defective and did not satisfy all the aviation safety procedures for it to be operational. It should have been grounded. The left engine was chronically problematic but no proper maintenance was carried out to rectify the fault. Secondly, the faulty fuel gauge, while reported, was never rectified by a qualified engineer. On the day in question, the deceased pilot was relying on faulty fuel gauge readings. Thirdly, the operator of the aircraft did not comply with aviation safety procedures by not having a complete pre landing and pre take off checklist in the aircraft at the relevant time. He also failed to have the Flight Manual in the aircraft. He failed to display in the cockpit the appropriate reminder in relation to alternating between the main and auxiliary fuel tanks during take offs. The court further finds that Gerard Philip breached aviation safety procedures when he carried out his own maintenance on the aircraft and collaborated with Wewak Aviation in falsifying a maintenance release form; and, interfered with the aircraft records by tampering with the checklist in question. The court also finds that the conclusion of the Flanagan Report on the cause of the crash is erroneous.

36. On the basis of the court’s findings, the cause of the crash, on the balance of probabilities, may be deducted as follows. At the very least, on the fatal day, the aircraft encountered the same problem it had encountered on three previous occasions. On 3 February 1992, the problem with the left engine was discovered after the aircraft was airborne for 15 minutes. There was sufficient altitude for the pilot in command to maintain control of the aircraft and to land safely. On 22 June 1992, the left engine stopped while the aircraft was already on the ground. In September 1992, there was a bang from the left engine after the aircraft was already airborne. The pilot in command managed to return for a safe landing.

37. On the day in question, the fatality occurred during take off. There was a bang and the left engine stopped. The deceased pilot attempted to return to the airstrip but there was "insufficient height available". The aircraft experienced loss of power following the left engine failure. The right engine also came to a stop as a result of fuel starvation due to inadequate in-flight fuel management readings and aids. All of these were aggravated by the general deteriorating mechanical state of the aircraft. Consequently, the deceased pilot, through no fault of his own, did not make a safe landing. Even if these deductions are wrong, the court is satisfied that the aircraft did not satisfy the standard aviation safety procedures for it to be in the air. It was not airworthy.

38. In all the circumstances, the court is satisfied that the Defendant failed its duty towards its pilots and customers in ensuring that the aircraft in question was mechanically safe and airworthy. The aviation industry and operations of small aircraft involve substantial risk of injury and death which was reasonably foreseeable. There was, accordingly, a standard aviation safety procedure in place which was designed to obviate the risks of air fatalities and personal injuries or deaths. The Defendant consistently and recklessly failed to observe the standard aviation safety procedures in place. The death of the deceased pilot was caused by the Defendant’s failure to take reasonable steps to obviate the risk of air fatality. The Defendant recklessly permitted the deceased pilot to fly an aircraft that was plagued with chronic engineering faults to be flown without due regard for the safety of the deceased pilot. The Defendant was in breach of its duty of care towards the deceased pilot. The Defendant is, therefore, liable for the death of the deceased pilot. A date will be set for assessment of damages.

Orders accordingly.

_________________________________________

Posman Kua Aisi: Lawyer for the Plaintiff
No Representation for the Defendant

Schedule One

Brief Reasons for Decision

This is a dependency claim under the Wrongs (Miscellaneous Provisions) Act on behalf of the dependents of the deceased.

The Plaintiff claims that the Defendant was negligent in permitting the deceased to fly an aircraft that was not mechanically safe and sound; or that the Defendant was negligent in providing the deceased with a safe and secure system of work.

I have considered the evidence and am satisfied that the Civil Aviation Report which attributed the cause of the crash to pilot error as unsatisfactory, inadequate, inconclusive and grossly flawed.

On the other hand, I am satisfied on the evidence that the Defendant breached aviation safety practices and standards; and, recklessly permitted an aircraft that was plagued with chronic engineering faults to be flown. In permitting the deceased to fly such an aircraft, the Defendant has acted without due regard for the safety of the deceased and is in breach of his duty of care.

I find ultimately that the Defendant is liable for causing the death of the deceased and is, therefore, liable under the Wrongs (Miscellaneous Provisions) Act."

Schedule Two (A)

TAKE OFF CHECKLIST

LANDING CHECKLIST

Schedule Two (B)

TAKE OFF CHECKLIST

LANDING CHECKLIST