DAMAGES CLAIM

Southland Times, Issue 21836, 13 October 1932, Page 5

DAMAGES CLAIM

AVIATION FATALITY APPEAL BEFORE COURT CONSIDERABLE LEGAL DIFFICULTIES (Per United Press Association.) Wellington, October 12. The Court of Appeal is hearing the action Dominion Airlines Ltd. v. Strand. This case on appeal was argued before the Court of Appeal in July last. The case presents considerable legal difficulties and the Court of Appeal asked for argument to be represented to another Bench of Judges consisting of members of both divisions of the Court. That is being done to-day. There were on the Bench the Chief Justice, Sir Michael Myers, and Justices McGregor, Ostler, Smith, and Kennedy. The facts leading to the appeal are that on February 18, 1931, shortly after the Hawkes Bay earthquake, a de Soutter monoplane, belonging to Dominion Airlines Ltd., now in liquidation, flying between Gisborne and Hastings, crashed in a field near Wairoa, the pilot, Ivan Louis Kight, and two passengers being killed. Action was subsequently commenced in the Supreme Court by William Thomas Strand, the father of William Charles Strand, one of the passengers who were killed, claiming under the Death by Accident Compensation Act the sum of £5OOO for the death of his son. He alleged that the company had been guilty of a breach of statutory duty in failing to provide an aeroplane pilot holding a “B” pilot’s flying certificate issued under the aviation regulations of 1921. It was also alleged that the pilot had been negligent in flying at too low an altitude and at too greatly reduced speed and in endeavouring to perform a turn into wind while flying at too low an altitude and too greatly reduced speed. The company denied liability, contending it was a term of the contract of carriage that it was not to be placed under any liability in event of accident. The action was originally heard in Wellington in September, 1931, before Mr Justice Reid, who held there was a cas-al 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 contract of carriage did not exonerate the company and awarded Strand £3OOO damages. Mr G. G. Watson, for appellant, submitted that plaintiff had to prove affirmatively that the breach of regulation regarding a “B” licence was the immediate effective cause of Strand’s death and that failure to have a “B” licence either caused or contributed to the accident. It must be established that the accident was brought about, by cause associated with Kight’s medical history. The balance of probabilities were 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 the accident was caused by physical or temperamental disability of the pilot. The evidence showed that the same accident might have happeped to a pilot who was perfect physically. He finally contended that as the pilot knew his life depended upon carefulness in flying, it was unlikely he would be negligent. Mr P. B. Cooke, second counsel for appellant, submitted certain proposals of law which he contended barred respondent from recovering damages. The Aviation Act 1919, he said, gave no power to the Governor to confer, by Order-in-Council an entirely new right of action. The creation of such right of action, unless power was expressly given by the Act, would be ultra vires of the regulations. The Aviation Regulations 1918 were imposed purely for the protection of the public in general and did not by their breach of purport give any special cause of. action to anybody. They were a police measure and not intended to create liability. The case was adjourned.