AIR CRASH SEQUEL.

New Zealand Herald, Volume LXIX, Issue 21233, 13 July 1932, Page 10

AIR CRASH SEQUEL.

LOSS OP tfHREE LIVES.

damages award disputed.

APPEAL BY COMPANY. POINTS OF FACT AND LAW. [IIY TELEGRAPH.—-MIESS ASSOCIATION.] WELLINGTON, Tuesday. The Court of Appeal to-day commenced the hearing of an appeal by Dominion Airlines, Limited, in liquidation, from a judgment of Mr. Justice Reed, delivered last December, in an action for damages brought against the company by. William Thomas Strand, of Lower Hutt, retired farmer.

Following the Hawke's Bay earthquake in February, 1931, there was considerable activity in air transport between Hastings and Gisborne. On Fobruary 8 a machine belonging to Dominion Airlines, Limited, containing two passengers and piloted by Ivan Louis Right, managing director of the company, crashed near Wairoa on the way from Gisborne to Hastings. The crash resulted in the death of the pilot and tho two passengers. One of the passengers was William Charles Strand, an employee of A. &. Paterson and Company, Limited, whose father, William Thomas Strand, as administrator of his estate, brought an action against the company, alleging a breach of the aviation regulations and negligence on the part of Kight, and claiming £SOOO damages. Findings by the Judge. The action was heard before Mr. Justice Reed in September last. His Honor held that the accident was due to thejiegligenco of Kight in attempting to turn into the wind at too low ian altitude at a low rate of speed,' thereby causing the machine to loso flying speed and nosedive. His Honor also held that as Kight was not the holder of a "B" licence the company had been guilty of a breach of tho aviation regulations in allowing him to pilot the machine, and that tho deceased Strand belonged to tho class of persons in whoso favour tho regulations had been made. Plaintiff was awarded £3OOO and costs. Tho appeal was now brought from that decision. Counsel for appellant said the case was of importance, not only on account of the amount of tho claim, but also because another claim for a similar amount had been stayed, pending disposal of the appeal. Counsel recallod tho troubled conditions which arose-out of the Hawke's Bay earthquake, the difficulty of communication which then oxisted between Hawke's Bay and Gisborne, and tho great assistance rendered by air service between these two places. Ho submitted that the facts of the case must be looked at in the light of the emergency conditions then existing. Conditions of Ticket. For example, the aeroplane just prior to the crash dropped mail in a field near by, whidh. necessitated its flying at a very low altitude. Had it not been for the earthquake there would liavo been no necessity to drop mail. Plaintiff's claim was in law based entirely on a breach of statutory duty, said counsel. The conditions of the ticket issued to tho deceased Strand were a complete bar to a claim based on negligence alone. Dealing with the alleged breach of tho regulations, counsel said that according to those regulations a "B" pilot's certificate was necessary where passengers were carried, whether for hire or not. That apparently had been overloolced by the trial Judge. Kight had only an "A" licence, but it had been specially endorsed by the Director of Air Services to enable him to carry passengers, but .not for hire. Such an endorsement was un known to tho regulations and irregular, and Kight should be considered by the Court as in the position of holding a "B" licenco. Altitude of Aeroplane. Counsel for the appellant company submitted that tho trial Judge made three definite findings of fact, which were not supported by tho ovidence. His Honor found that tho aeroplane stalled through loss of flying speed, whereas counsel submitted that tho balance of/ ovidence clearly showed that the engine failed through no negligence on tho part of the pilot and no fault on Iho part of tho company. Secondly, His Honor found that the pilot Was endeavouring to turn into tho wind, whereas both eye-witnesses and expert witnesses were of tho Opinion that the pilot had to make a forced landing on a road. Finally, it was found as a fact that the aeroplane was being flown at too low an altitude, continued counsel. Experts had given their opnion that 100ft.-150ft. was, in the circumstances, a safe altitude. All witnesses agreed that the machine was being flown at this altitude until it dipped steeply, owing, counsel submitted, to engine failure. The balance of probabilities was clearly in favour of the theory that tho crash had been caused by engine failure. There was no evidence, medical or expert, to show that the accident had been caused by physical or temperamental disability of the pilot. Finally, counsel contended, that as the pilot know his life depended upon - tho carefulness of his flying, it was'vinlikely he would be negligent, as alleged. Submissions of Law. Counsel submitted certain propositions of law which, he contended, debarred the plaintiff from recovering damages., There could bo no liability upon the company for claims based purely upon negligence, as tho ticket signed lay deceased stated that passengers travelled entirely at their own risk, and the company would not bo liable for any loss or damage arising out of any cause or negligenco whatsoever. The only cause of action could thercforo be a breach of statutory duty -imposed by tho aviation regulations, 1918, which statod that pilots carrying passengers for hire must be holders of a "B" licence. Counsel submitted that the Aviation' Act, 1918, gave no power to the GovernorGeneral to confer by Order-in-Council an; entirely new right of action. The creation of such a right of action, unless expressly given- by tho Act, would be ultra vires of tho regulation. However, even if the words of the Act wero wido enough to' give tho Governor-General this power, he could do it only by proscribing tho condition, and this ho had not done. Finally, it was submitted that tho regulations were imposed purely for the protection of the public in general and did not by their' breach purport to give a special causo of action to anybody. | Tho Court adjourned until to-morrow, i