COURT OF APPEAL

Otago Daily Times, Issue 21774, 13 October 1932, Page 10

COURT OF APPEAL

AWARD OF COMPENSATION

SEQUEL TO EATAL AIR CRASH,

(Per United Press Association.) WELLINGTON, October 12.

The Court of Appeal is hearing the case of Dominion Airlines, Ltd., v. Strand. This case on appeal was atgued before the Court of Appeal in July last. It presents considerable legal difficulties and the Court of Appeal asked for argument to be represented to another Bench of judges consisting of the members of both divisions of the court and that was done to-day. On the Bench were the Chief Justice (Sir Michael Myers), Mr Justice MacGregor, Mr Justice Ostler, Mr Justice Smith and-Mr Justiqe Kennedy. The facts leading, to the appeal are that on February 18, 1931, shortly after the Hawke’s Bay earthquake, a De Scatter monoplane belonging to the Dominion Airlines, Ltd., now in, liquidation, while flying between Gisborne and Hastings, crashed in a field near Wairoii, the pilot, Ivan Louis Kight, and two passengers' being killed. An action was subsequently commenced in the Supreme Court by William Thomas Strand, father of William Charles Strand, one of the passengers who was killed, claiming under the Death by Accident Compensation Act the sum of £SOOO for the death of his son. He alleged that the company had been guilty of a breach of its statutory duty in failing to provide-for an aeroplane pilot holding a B pilot’s flying certificate issued under the Aviation Regulations of 1921. He also alleged that the pilot had been negligent in flying at too low an altitude and at too greatly a reduced speed, and in endeavouring to perform a turn into the wind while flying at too low an altitude and at too greatly a reduced speed. The company denied liability, contending that it- was a term of the contract of' carriage that it would not be placed under any liability in the event of. an accident. -

The action was originally heard ~in Wellington in September, 1931; before Mr Justice Ree*d, who held there was a casual connection between the breach of statutory duty which he found the company to have committed in failing to provide a pilot holding a B license and the accident. He held that the terms' of the contract of carriage did not exonerate the company and awarded Strand £3OOO damages. Mr Ct. G. Watson, for the appellant, submitted that the plaintiff had to prove affirmatively that a breach of the regulation regarding B licenses was the immediate effective cause of Strand’s death and that failure to have a B license either caused or contributed to the accident. It had to be established that the accident was brought about by a cause associated with Right’s medical history. The balance of probabilities was in favour of the theory that the crash was caused by engine failure, which rendered a forced landing inevitable. There was no evidence, medical or expert, to show that the accident was caused by the physical or temperamental disability of the pilot. The evidence showed that a similar accident might have happened to a pilot who was perfect , physically. Finally, counsel contended that ns the pilot knew that his life depended upon the carefulness of his flying it was unlikely that he would be negligent.

Mr P. B. Cooke, second counsel for the appellant, submitted certain proposals of law which he contended barred the respondent from recovering damages. The Aviation Act, 1919, he said, gave no power to the Governor-General to confer by Order-in-Council on entirely new right of action. The creation of such right of action, unless power were expressly given by the Act, would be ultra vires of the regulations. The aviation regulations of 1918 were imposed purely for the protection of the public in general and did not by a breach of them purport to give any special cause of action to anybody. They were a police measure and were not intended to create liability. The hearing was adjourned.

APPEAL TO PRIVY COUNCIL. —V ' (Peb United Press Association.) • WELLINGTON,. October 12, In the ease of Borthwick add Co. v. Kyan and others the court granted; final leave for an appeal to the Privy Council in certain compensation cases which arose out of the Napier earthquake.