Aviation Insurance Company of Africa Ltd. v Smit (152/84) [1984] ZASCA 143 (27 November 1984)

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the appeal of :

THE AVIATION INSURANCE COMPANY

OF AFRICA LIMITED 1st appellant

and

J H SMIT 2nd appellant

versus

MAURICE ANTHONY JOSEPH AZZIE ... respondent

Coram: MILLER, VAN HEERDEN, JJA, WESSELS, GALGUT etVIVIER, AJJA.

Date of hearing: 8 November 1984

Date of judgment: 27 November 1984

JUDGMENT GALGUT AJA:

First appellant carries on business as an insurer. On 8 January 1974 it issued an insurance policy,

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to the owners of a Mooney Super 21 aircraft, in terms whereof it undertook to make good accidental loss of or damage to the aircraft. The aircraft was damaged beyond repair in an accident at Baragwanath Airfield on 21November 1974. The insured (and agreed) value of theaircraft was R9 000. The respondent, to whom I shallrefer as the plaintiff, and a Dr Smit, who is the above-named second appellant, were the joint owners of the aircraft. Plaintiff sued first appellant, citing it as first defendant, in the Witwatersrand Local Division for the sum of R4 500 being the value of his half share in the aircraft. He joined Dr Smit in the action, as second defendant, because of the latter's interest in the aircraft but no relief was sought against him. The first appellant repudiated liability on grounds which will be set out later. It also filed a counterclaim for R4 500. The counterclaim was based on the fact that it had acquired, by way of cession, such claims as Dr Smit had against the plaintiff.

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The plaintiff succeeded in his action and the counterclaim was dismissed. The appeal is against those findings. Dr Smit was not affected by the finding of the trial Court and has no interest in this appeal. 1 shall accordingly refer to first appellant as the defendant.

The insurance policy contained the following relevant clauses:

"WARRANTIES

WARRANTED THAT

1. The Insured will comply with all air navigation and airworthiness orders and requirements by any competent authority and will take all reasonable steps to ensure that such orders and requirements are complied with by the Insured's agent(s) and employees and that the" aircraft shall be airworthy at the commencement of each flight.

GENERAL CONDITIONS

1. The due observance and fulfilment of the terms provisions conditions and endorsements of this Policy shall be conditions precedent to any liability of the Company to make any payment under this Policy.

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3. The Insured shall use duediligence and do and concur in doing everything reasonably practicable to avoid ordiminish any loss hereon "

At the time of the collision there were navigation and airworthiness orders and requirements, issued by the Minister of Transport (a competent authority), in force. The relevant regulations applicable in the present case were set out in Chapters 14 and 15 of the Air Navigation Regulations 1963 (A N R). It was common cause that plaintiff was not qualified to pilot an aircraft under "Instrument Flight Rules" (IFR). He was qualified to pilot an aircraft under "Visual Flight Rules"(V F R). Chapter 14 of the A N R is headed "Visual Flight Rules" and provides that -

"A VFR flight shall be conducted so that the aircraft is flown with visual reference

to the ground by day in conditions

of visibility and distance from cloud equal to or greater than those specified in the following table."

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Baragwanath was an "uncontrolled" airfield and the table applicable to plaintiff laid down that :-

(a) in flight, the flight visibility was to be not less than "three nautical miles (5 km)"; (b) the horizontal distance from cloud was not to be less than "2.000 feet (600 m)". (c) a pilot was not permitted to take off from, or land at an airfield when the ground visibility at the airfield was less than "three nautical miles (5 km)" and the ceiling was less than "1 500 feet (450 m)".

In his particulars of claim plaintiff alleged that at or about 7.24- on 21 November 1974 the aircraft was damaged beyond repair "on final approach of a forced landing due to engine failure".

In its plea defendant denied liability

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alleging that :

A plaintiff had breached the above warranty

clause in that on the occasion in question he, not being rated as a pilot who could pilot an aircraft under Instrument Flying Rules, did fly in conditions to which these rules applied;

B plaintiff in breach of the said warranty did not ensure, before the commencement of the flight, that the aircraft was airworthy;

C plaintiff had breached the general condition

which placed upon him the duty to use due

diligence and do and concur in doing everything reasonably practical to avoid or diminish any loss.

In the main counterclaim the allegations in A, B and C were repeated. In an alternative counterclaim it was alleged that plaintiff had been negligent. The

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allegations in A, B and C above were repeated and it was said that his conduct in taking off and piloting the aircraft in misty and cloudy conditions was negligent and that such negligence caused the accident.

The aircraft was based at Baragwanath Airfield. The runway is tarred, is approximately 1 100 metres long and bears roughly north - south. The exact bearing is 0030 , indicating that the runway points 300 east of north as seen from its southern end. Standing at the northern end, the bearing is, obviously, 2100 , which, interpreted into a layman's language means that one is looking in a direction 30 west of south. In flying circles the northern end of the runway is called "210" (two one zero) and the southern end "030" (zero three zero).

An inspection in loco was held during the trial. It appears that the airfield lies on the crest of a gently rising hill, with the runway almost on the crest.

8.The flying club's club—house is some 200 to 300 metres southeast of the 030 end. It is somewhat higher than the runway. Except for the view to the south-east, the pilot of an aircraft standing at either end has a long view over the surrounding country. To the north and north-east there are several con-spicuous landmarks. Almost in line with the runway, to the north and clearly visible, are a prominent church steeple, about 10 to 15 km away, and the Northcliff Water Tower, about 16 km away. Towards the north-east the Hertzog Tower, about 11 km distant, is clearly visible. To the west lies Soweto, with the Orlando Power Station cooling tower about 3,5 km away.

Coming closer infield, the observable features are: a clump of trees directly north of the runway and reasonably close to the 021 end; immediately west of that end, also fairly close to the runway, is a mine dump; south of the airfield, some 3 km away, are a few low hills, but to the west there is a clear sight of the country into the far

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distance; between these southerly hills and the 030 end of the runway are power cables running east-west, about 1,5 km away, and between these cables and the airfield are buildings and closer still, some trees. The open veld between the 030 end and the nearest trees is only about 150 to 200 metres; coming round to the east are hangars and, a little distance away, the club-house; along the eastern side of the runway there are several rows of hangars running parallel to the runway; many of these were erected subsequent to 1974. It was specially noted that as these hangars are now, an aircraft taking off from the 030 end only becomes visible to anyone in the vicinity of the club-house after it is well up in the air.

Plaintiff is a veterinary surgeon; he refers to the animals as his patients; he used the aircraft in his practice; he had had over 900 hours solo flying. On 25 November 1974, as part of his claim form submitted to defendant, he included a detailed report of the accident. A summary

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of his evidence, which closely followed that report,follows. On the morning of 21 November at 5h30 he telephoned the meteorological station at Jan Smuts Airport and was told that the weather was clear and that it would be a good day for flying. He left home shortly after 6h00 going first to Germiston to see a patient and then drove toBaragwanath. It was a clear day with a beautiful blue sky. As he passed the Rand Airport he saw several aircraft taking off. When he arrived at Baragwanath, he found a local mist or fog, caused apparently by the coal fires in Soweto. From experience he knew this to be a local and temporary condition, and decided to get ready to take off as soon as he could. The aircraft was refuelled and this gave three hours flying time. He had had a report that the aircraft had "cut out" a few days earlier causing the pilot, Dr Smit, to carry out a forced landing at Baragwanath. Despite the fact that the aircraft had, thereafter, been

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thoroughly checked and had been declared to be in order, he nevertheless drained off more petrol than usual to ensure that no water had collected in the bottom of the tanks. By this time the fog was running out and he proceeded to the "holding area" at the 030 end of the runway. From there he could clearly see the landmarks to the west and south-west. There was a westerly wind of about 4 km and cloud cover was about 3/8, meaning three eights of the sky was occupied by clouds. By 7hl0 the fog had lifted to the north and he could clearly see the Hertzog Tower and other landmarks. He was fully aware of V F R and was adamant that he ensured that he was not in breach of them when taking off. He carried out the usual preflight checks and everything was in order. . He had been given the barometric pressure by Jan Smuts as 1019 millibars. He set his altimeter accordingly. He intended flying to Viljoenskroon which was on a 260 bearing, ie almost due west. There was still some fog to the north. He decided on and executed

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a short take off and then banked to the left and flew in a westerly direction. In evidence he stated the reason for this was "plain and simple (that) at the far end just beyond the airfield on the left side, over the mine dumps, there was some low smog and I intended to do a left-hand turn out which was also conventional for that runway and I was proceeding to Viljoenskroon which was also requiring a left-hand turn out". He went on to say that the engine was performing particularly well. After about 4 minutes flying he had reached 7 000 ft (ie, above sea level Baragwanath was 5 725 feet above sea level). He then set his altimeter to the standard barometric pressure of 1013.2 millibars which would ensure that he was at a flight level corresponding to other aircraft flying. He switched off the electric pump. The aircraft started jerking and misfiring. He tried various methods to rectify this but these failed. He realised that he was in trouble and decided to proceed back to Baragwanath. He did a left-hand turn, ie first

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to the south and then to the east. He had in the meantime heard a radio call from an aircraft preparing to take off from Baragwanath. The airfield was completely visible. He saw the aircraft standing near the 030 end of the runway. He requested that it give him the priority right to land. This it granted. The spluttering engine still gave power and he was not losing height. He continued travelling east and crossed over the runway at about the middle of the runway. He decided to make a landing from north to south. He turned left again travelling northwards. He then turned left again, travelling in a westerly direction. As he was approaching the 210 end of the runway he found that a patch of cloud had moved over and lay above that end. Instead, therefore, of turning left again to bring him into line with the 210 end, he continued on the westerly course and decided he would try the 030 end. As he was still maintaining height and as he did not wish to keep the other aircraft waiting he gave

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that pilot clearance to take off. He, plaintiff, then turned left again and flew from the north-west to the south-east, thereby again crossing over the runway but diagonally. When he was south and east of the 030 end he turned right in order to land at the 030 end. He, however, found "some cloud" between him and the runway. He nevertheless continued along the direction of the runway (ie in the 30 direction) staying above the cloud, intending, when he got beyond the cloud, to make his landing. When he reached the north end of the cloud he throttled back, lowered the aircraft flaps and wheels and commenced a rapid descent. He then realised that he would not be able to land and stop the aircraft on the runway. His altimeter showed 400 ft. He thought he would, by turning left and continuing to do a left hand circuit, be able to land at the 030 end of the runway. He turned left and pushed the throttle forward but the engine cut out completely..

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He continued his left-hand circuit and as he was approaching the 030 end the aircraft drifted to the east beyond the end of the runway and crashed into a fence some 75 metres east of the runway. The time was then 7h24. Plaintiff explained that he had in the stress of the events forgotten to set the barometer pressure back to 1019 millibars. This meant that he was 200 feet higher than 400 feet when the engine cut. out. It was also suggested that when he turned away from the runway he may, because of his speed, have increased his height by a further 100 feet, ie to an actual height of 700 feet.

Attached to plaintiff's report Was a sketch plan of his flight path after the engine started spluttering. Defendant did not dispute the flight path of the aircraft from take off to the final crash.

Six witnesses were called on behalf of the defendant. They were called to discredit the plaintiff ,

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as to the weather conditions, as to the alleged misfiringof the engine and as to the manoeuvres described by theplaintiff after the engine had cut out. As will be seen

later the real crux of defendant's case was that at alltimes from prior to take off right until the time of the crash,

the weather was misty, foggy or clouded and unsuitablefor flying according to V F R.

The learned trial Judge had regard to the evidence of the six witnesses. He, however, accepted the evidence of plaintiff as to the weather conditions, as to the behaviour of the engine and as to the manoeuvres carried out after the engine cut out. The learned Judge a quo said of plaintiff "that although somewhat pompous and stinted in his speech he is an honest man, not given to exaggeration. I had no hesitation in accepting his evidence as being true on all crucial matters". It must be remembered that four days after the accident plaintiff prepared the aforementioned

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report. His evidence, as already stated, corresponded to his report. In that report he stated that after four minutes flying the engine started spluttering and he decided to turn back. If one remembers that he had taken off safely, that he had reached a height of 7 000 ft., that he had fuel for three hours flying, that he had had a

meteorological report from Jan Smuts that the weather was clear and it would be a good day for flying, that there had been only three eights cloud cover at take off, that his destination, Viljoenskroon, was about one and a half hours' flying away on what was virtually a clear day, there could have been no reason for him to turn back unless it was engine trouble. Any suggestion that this was not true would be to brand him as being deliberately untruthful. It must also be remembered that in his report he said he had seen an aircraft at the holding area, ready to take off, and that he had spoken on the radio to that pilot. Only a

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deliberately untruthful person would have invented such a story. The importance of this evidence will apear later when discussing the evidence of the witnesses Dhlamini and Melissakis. There is a further aspect. The plaintiff says his engine cut out at a certain stage and he then had to carry out a forced landing. Whereas he might be mistaken as to where and at what height the engine cut out, a finding that it did not cut out and that he did not carry out a forced landing would be branding him as being deliberately untruthful.

I turn now to consider the evidence of the witnesses for the defence. Samuel Dhlamini had been working at the airfield for some years. On this day he left home and went to a shop which is outside the airfield. There he bought bread and a pint of milk for his breakfast. He then proceeded to a tree where he sat down to have his breakfast. This tree is well south of the 030 end and to the east of

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the runway. At one stage he said he was at the tree at 7h10.At another stage he said he left the shop at 7hl0. At yetanother stage he said he was at the tree at 7h20. He said

it was a foggy morning. The fog was not on the ground. Therewas a tall tree some distance north of where he was sitting.

On arrival at his tree he heard the sound of an aircraft

engine and looked up and saw a Mooney aircraft standingat the 030 end of the runway "preparing to take off".He saw it taking off. It then disappeared into the fog. The

following extracts from his evidence are important.

"When you saw, you heard the plane and you saw it taking off, and then you heard it, did you keep on hearing that plane or did it go out of your sound, out of the range of your hearing?— No, I could still hear it. And hear the sound all the time?— All the time, the plane didn't go far away from

me .

Did you hear anything which made you think why the plane is coming back?— No. Nothing strange?— There was nothing strange.

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Mow it took off, made a turn and started coming back?--. That is correct.And when you saw it again, when it was coming down, in which direction was it flying?— It was flying from west to east.Yes and then, what did it do then?-- I could see it emerge from this big fog here.

It was flying west to east?— Correct.

And what did it do then?— It was supposed to turn and then land.But what did it do, not what was he supposed to do. I want to know what did he in fact do?— Then he went past. After it had gone past he realised he had passed the runway, he then turned.

Which way did he turn?— He turned left, towards the west again.

Yes, and then?— And then he went straight towards this tree.Now in which direction was he travelling when he went towards the tree?-- In the northerly direction.Did you see him make only one turn?-- It makes two turns, with the third time that I saw it coming down.Which two turns did it make? You tell me it came from the west; then it turned left?— Correct.

Made a circle and then you said it went straight to the tree, now how did it get to the tree?— When this plane took off from the ground it made two turns in the air and the third time it went down."

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Earlier in his evidence he said the Mooney aircraft was below the level of the tall tree as it was approaching the runway and it had to go up "like a frog jumps" to get over it. He did not see another aircraft in the holding area or taking off.

At the inspection in loco he pointed out the tall tree over which he said the Mooney aircraft had leapfrogged. The learned Judge a quo noted that having regard to where plaintiff's aircraft had crashed it could not possibly have flown over that tree. There are other criticisms of Dhlamini's evidence. His version that the aircraft took off, made a turn bo the left and again to the left and left again in the attempt to land, cannot be correct. Plaintiff's aircraft did not do a short circuit after taking off.

It follows that Dhlamini's evidence was correctly rejected by the learned Judge a quo.

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George Melissakis was at the time an engineer employed at the airfield. He arrived there at between 7hl0 and 7hl5. He testified that there was a strong mist. He could not see the hangar (which is on the east side of the runway). He had parked his car and was walking to the hangar when he heard an aircraft approaching. He then saw it through a gap in the mist. It was a Mooney aircraft. He was able to see the direction in which it was travelling. He sketched its path on a sheet of paper, exhibit C, clearly showing that it travelled, on the east side of the runway, in a straight line from north-east to south-west and well past the 030 end of the runway. His evidence reads:-

" I was standing there and I saw

it going in that direction I showed you. South-west.

I see, it was going south-west. Yes, and from the sound did you manage to trace the direction of the aircraft after that? Where did it go after that?— Yes.

Yes, just tell us more or less where was the aircraft going. Was it circling or was it flying away or what was the position? What was it doing?— It was still going straight.

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Yes, and after that?— I didn't hearit again

Now the evidence of the Plaintiff is that when he returned to the airfield the aircraft was misfiring and spluttering?— I didn't hear any misfiring.

Well, what was the sound of the engine that you heard?— It was a normal running of the engine.

I heard the sound of the engine

before it came in front of me, I saw it in front of me and then as he continued down I continued to hear the....

At that stage there was nothing wrong with the engine?-- No.

Now can you estimate to us, when you saw the tail of that Mooney, what height was it above the ground level?— About 100 metres."

It needs no detailed analysis of the evidence to show that Melissakis's evidence was correctly rejected by the learned Judge a quo. At no stage did plaintiff travel from north-east to south-west on the east side of the runway; the only time that his aircraft was at a height of 100 metres was after his engine had cut out and he was on the west side of the runway manoeuvering to carry out his forced landing.

/ P J Godwin......

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P J Godwin is a qualified pilot. He was the airport manager. He lived in a bungalow at the airport. At about 7h00 he came out of his bungalow and went to the club-house dining-room to have breakfast.* The normal view from the dining-room toward the runway is "somewhat restricted" but when an aeroplane is 100 feet in the air it can be seen from the dining-room. On this day "there was a layer of either radiation or convection fog at the height of between 50 and 100 feet above the ground and was between 100 and 200 feet in thickness". He looked out from the dining-room from time to time and the fog was still there. He expressed the view that if a pilot did not have an instrument flying rating he should not have taken off. He went on to say that because of the fog he could see some clouds but nothing more. He also indicated that the fog could be patchy and "so you are quickly out of it and into fog and if you are out of a piece of fog in a minute, within a minute you are in another piece".

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B S Cheyne, an engineer, examined the engine of the aircraft after the crash. After giving full details of his examination he went on to say: "There was nothing evident from my investigation that would lead me to think that the engine had been misfiring in any way". He did, however,concede that it was not possible to do a bench test on the engine, that he did not test the fuel pumps themselves and that if there had been a problem with the fuel pumps he would not have discovered it. I pause to add that Dr Smit had had a similar problem to that of plaintiff and that it is implicit in the evidence read as a whole that no fault was then found with the engine. It was for that reason that plaintiff was extra cautious and drained off more than the usual amount of fuel, thereby seeking to ensure that there was no water in the fuel.

J R Olthoff, a pilot who owned a Mooney Super 21 aircraft, testified that he had carried out tests. He

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flew at a height of 700 feet and throttled back when in the middle (lengthwise) of the runway. He then attempted to turn left and left again in order to reach the 030 end of the runway. He was unable to do so. It is not clear how far he was from the end of the runway when he had to resort to the engine to avoid crashing. It is also not clear how wide his arc was in his efforts to reach the end of the runway.

A C Jahdrell, a very experienced pilot and instructor, had over 11 000 hours flying time. He had during the eighteen months prior to the trial been the chairman of all boards of inquiry, constituted by the Director of Civil Aviation, into flying accidents. His experience was not challenged. It was his view that plaintiff could not, with a Mooney aircraft having no power, have reached the 030 end of the runway from a height of 700 feet above the middle of the runway. It was his view that a pilot in plaintiff's position would have re-

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quired a height of about 1 000 feet to reach the end of that

runway.

The evidence of Olthoff and Jandrell cannot be faulted.

As stated earlier the above six witnesses were called to discredit the plaintiff.

In this Court it was urged that plaintiff'sevidence should not have been accepted in respect of the following issues:

(aa) the weather conditions;

(bb) the misfiring of the engine;

(cc) the manoeuvres after the engine failed completely.

Ad (aa): The Weather Conditions

The evidence of Dhlamini and Melissakis was rejected by the trial Judge. For the reasons set out I

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am of the view that finding cannot be faulted. This leaves only the evidence of Godwin and plaintiff. Godwin was in the club-house and looking westwards. From where he was the fog appeared to be thick. Plaintiff was at the 030 end. He was fully aware of the need to wait until the weather cleared to permit flying by V F R. This he said he did and he then took off. The visibility from the 030 end may well have been very different from the visibility from the club-house. It must also be remembered that even on Godwin's evidence the fog varied. One could be in the fog one minute and out of it the next minute. The learned Judge thus had before him the two versions. He had had the benefit of an inspection in loco. He accepted plaintiff's version. This does not mean that Godwin was untruthful. In any event there is no good reason why Godwin's evidence should be preferred to that of the plaintiff.

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Ad (bb): The Misfiring of the Engine

There is the evidence of Dhlamini and Melissakis. They both said the sound made by the engine was normal, ie, there was no misfiring. I need only add that neither suggested that the engine had ceased to function. Their failure to notice that the engine had ceased to function is significant. In any event, as we have seen, their evidence was rejected. Moreover, had plaintiff's engine been functioning correctly, as testified by Dhlamini and Melissakis, he, being a pilot with 900 hours solo flying, would not have had any difficulty in carrying out a normal landing.

Cheyne the engineer examined the engine. He found nothing wrong. However, he did not examine the fuel pumps nor did he carry out a proper bench test of the engine. It must also be remembered, as stated earlier, that plaintiff was safely airborne; that there was no reason for

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him not to continue his journey to Viljoenskroon. On all the facts there was no reason other than the faulty engine for plaintiff's decision to return to the airfield.

The evidence of Dhlamini and Melissakis was clearly rightly rejected by the trial Court. Cheyne's evidence does not exclude the possibility of the aircraft behaving as testified to by plaintiff. Moreover, the probabilities strongly favour plaintiff's version and his evidence must be accepted on this aspect.

Ad (cc): The manoeuvres after the engine failed completely.

The evidence of Olthoff and Jandrell is quite definite. Plaintiff could not, from a height of 700 feet, without engine power have reached the 030 end. This conclusion does not mean that he was untruthful. For the reasons given in (bb) above it must be accepted that the engine started misfiring. This created an emergency and caused him to return to the airfield. He flew above

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and along the line of the runway from the 030 end. He was above the cloud and planned to land when the cloud ended by doing a rapid descent. He then realised that he would not be able to stop on the runway. He then turned and commenced a left-hand circuit in the belief that he could reach the 030 end safely. It must be accepted that, when he pushed the throttle forward, the engine failed completely. He was forced to proceed and land without engine power. He said this in his report (and in his evidence). There can be no mistake in this regard. He was either truthful or deliberately untruthful when he wrote his report and when he repeated this in evidence. Having regard to the findings of the learned trial Judge as to his credibility and to the fact that it must be accepted that he turned back due to the misfiring engine, it must be accepted that he was not untruthful when he said he was forced to carry out a landing without engine power. Had he had engine power

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he would not have been forced to carry out the landing. It would seem therefore that he was probably mistaken either as to his height when the engine failed or as to his exact position when it failed. Certainly it has not been shown that he was untruthful on this issue.

Defendant's counsel correctly accepted that the onus was on defendant to show that plaintiff breached either the warranty clause or clause 3 of the "General Conditions".

From what has been set out in (aa), (bb) and (cc) it is clear that defendant has failed in its attack on plaintiff's credibility. In the result defendant has not shown that plaintiff failed to comply with V F R at the time of take-off. It follows that he was "lawfully" (for lack of a better word) in the air. When the engine started misfiring he found himself in an emergency situation.

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It was not seriously submitted, if it were found that there was such an emergency, that plaintiff, when he returned to the airfield, did at that stage contravene V F R in carrying out his forced landing. More need not be said in regard to

the defence pleaded as set out in A above.

Plaintiff's evidence that he had made properinquiries as to whether the engine difficulties which Dr Smit had encountered had been rectified and that he, plaintiff, had carried out proper preflight checks and that he had drained off sufficient fuel to ensure that there was no water in the fuel, was not challenged. Accordingly no more need be said in regard to the defence in B above.

Very little need be said in regard to the defence pleaded in C above and in regard to the allegation of negligence in the counterclaim. The plaintiff, as we have seen, found himself in an emergency. He thereafter took such steps as he deemed necessary to land as soon

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as possible. It has not been shown that his decision was wrong or that he thereafter did not "use due diligence" and did not do "everything reasonably practical to avoid or diminish any loss". It follows that it has not been shown that he was negligent. In the result it cannot be said that the learned Judge a quo erred in upholding plaintiff's claim and dismissing defendant's counterclaim.

The appeal is dismissed with costs.

O. GALGUT.

MILLER JA) VAN HEERDEN JA) WESSELS AJA) CONCUR.

VIVIER AJA)