KAN MIU WAH, PAULINE v. AEROFLOT RUSSIAN INTERNATIONAL AIRLINES

HCPI 313/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 313 OF 1996

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REASONS FOR JUDGMENT

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1. On 23 January 2002 I allowed the defendant's appeal against the order of Master Lung made on 12 October 2001 whereby he ordered the defendant to file and serve an affidavit stating whether the original cockpit voice recording ("the cvr") is or has at any time been in the defendant's possession, custody or power and if not then in its possession, custody or power when it parted with it and what has become of it. I indicated at that time that I would give my reasons in writing. This I now do.

The claim

2. The plaintiff is the widow and the personal representative of the estate of Wong Wai Ming, David ("the deceased"). This action is brought for her own benefit and for the benefit of the dependants of the deceased and for the benefit of the deceased's estate. The deceased died as a result of a fatal accident.

3. On or about 22 March 1994 the deceased was a passenger for reward on board an Airbus aircraft leased to and/or operated by and/or managed by the defendant on a flight from Moscow to Hong Kong. At about 5.58 p.m. local time on 22 March 1994 when the aircraft was in Siberia in the course of the flight it crashed to the ground and the deceased and other passengers and crew were killed.

4. The plaintiff's statement of damages shows that the damages claimed are about HK$8,900,000. By art 17 of the Amended Warsaw Convention ("the Convention") the carrier is liable for damages sustained as a result of the death of the deceased. This is admitted in the defence. However, by its defence the defendant relies on the limits of liability set out in art 22(1) of the Convention in respect of any such damage. I understand that the limits of liability are about US$70,000.

5. By para. 8 of the statement of claim the plaintiff has pleaded that the accident and death of the deceased resulted from an act or omission or acts and/or omissions of the defendant, its servant or agents done recklessly and with knowledge that damage would probably result. By this plea the plaintiff relies on art 25 of the Convention and seeks to show that the defendant is not entitled to limit its liability under art 22 of the Convention. Particulars are provided under para. 8.

The accident

6. The brief facts which gave rise to the fatal accident were outlined by Mr. Barretto SC for the defendant. As I understand the position the aeroplane was on automatic pilot mode before the accident. The pilot let his young daughter handle the controls in the pilot seat. After that he let his young son, a 15 year old, get into the pilot's seat whilst the aircraft was on automatic pilot. The pilot demonstrated to his son how the aeroplane could turn and bank and gave a simulation by turning the heading selector switch to the left and the plane turned and banked to the left. The boy was holding the controls. To get back to a straight course the father turned the heading selector switch to the right and the boy and the plane started turning and banking to the right. At a certain point the father reset the heading selector switch back to the original heading i.e. back to its original course. The boy, however, continued to hold the controls in the turning right position. It appeared that the automatic pilot was trying to bring the plane from the right back to the left but the boy was turning the controls to keep it going right. The investigation report into the crash concluded that this caused the automatic pilot to disconnect or declutch. A distinction is drawn between the disconnection and the full disengagement of the automatic pilot. As there was a disconnection or partial disengagement rather that a full disengagement of the automatic pilot unfortunately, in the aircraft's design, there was no warning or alarm sound given when this happened. This is to be contrasted with a total disengagement of the automatic pilot when an audible warning signal would go off. It was not until later that the full disengagement of the automatic pilot took place with warning sounds going off. The crew did not know of this situation where the automatic pilot could be declutched or disconnected without a warning sound going off. It appeared that the aeroplane was no longer in automatic pilot mode for the lateral or sideway movement of the aeroplane. The boy held the plane in a right turn until it got to a banking angle to such a degree that the crew realised something was wrong. At about that time there was a full disengagement of the automatic pilot with warning sounds going off. The measures taken by the crew proved to be ineffective and the aeroplane crashed.

Discovery of documents

7. The plaintiff and the defendant filed their lists of documents in August 1997. The defendant disclosed as item 8 in part I in its list a copy of the official accident report in its Russian text. Item 9 was the copy cvr in Russian. This was in fact a transcript in Russian of the cvr. Item 10 was the copy summary of analysis of the cvr. Other documents were also disclosed including the operation manuals of the aircraft in 3 volumes.

8. The plaintiff also made discovery in its list of the air accident investigation report. This is the translation of the Russian text.

The plaintiff's summons

9. By summons issued on 6 April 2001 over 3 years later the plaintiff sought an order under O.24, r.7 RHC for an order that the defendant do discover and produce to the plaintiff for inspection the original cvr of which the transcript attached to the summons, said to consist of 15 pages, was a record. In fact only the first 9 pages of the attachment to the summons consisted of the English translation of the cvr and the other pages consisted of other attachments. The summons, in seeking discovery as well as production, was much too wide in scope and this was accepted by the plaintiff's solicitors at the hearing before the master and before me. Mr. Laracy submitted that as a first step the plaintiff wanted to obtain an order that the defendant file an affidavit deposing to the whereabouts of the original cvr and that the plaintiff was not asking for production at this stage. There is no doubt that the plaintiff's application was under r.7 of O.24 and not under r.13 and that part of the summons which also asked for production was misconceived.

10. On 12 October 2001 the master after hearing arguments made an order that the defendant should within 42 days :

“ file and serve an affidavit stating whether the original cockpit tape recording the Plaintiff's English translation of the transcript of which is attached to as pages 1 to 9 of the attachment to the said Summons is, or has at any time been, in its possession, custody or power, and if not then in its possession, custody or power when it parted with it and what has become of it".

11. On 22 November 2001, on the undertaking of the solicitors of the defendant to write forthwith to the Russian Civil Aviation Authority ("RCAA") to ascertain the current whereabouts of the cvr, I ordered that there be a stay of execution of the master's order pending the determination of the appeal.

12. O.24 r7(1) provides as follows :

“ Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application ............. is, or has at any time been in his possession, custody or power and if not then in his possession, custody or power when he parted with it and what has become of it."

There is no dispute that the cvr is a "document" under this rule.

13. By r 7(3) it is provided that :

“ An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document ..................... specified or described in the application and that it relates to one or more of the matters in question in the cause or matter."

14. Rule 8 of O.24 provides as follows :

“ On the hearing of an application for an order under rule 3, 7 or 7A the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs."

15. There is no dispute that the applicable principles for an application for specific discovery under O.24 r.7 are as set out in Lee Nui Foon v. Ocean Park Corp (No 1) [1995] 2 HKC 390 and Full Range Electronics Co. Ltd. v. General-Tech Industrial Ltd. & another [1997] 1 HKC 541 both of which applied the Court of Appeal's decision in Deak & Co. (Far East ) Ltd. v. NM Rothschild & Sons Ltd & Others [1981] HKC 78. The party seeking the order had to make out a prima facie case that, first, there was in existence a specific document or class of documents; second, that the party against whom the order was sought has or had the document in his possession, custody or power; third, that the document or class of documents related to a matter in question in the action; and fourth, that discovery was necessary either for disposing fairly of the cause or matter or for saving costs. It is, of course, for the party seeking an order to establish a prima facie case of all four matters.

16. The affidavit of Mr. Laracy in support of the plaintiff's application stated at para. 10 that the plaintiff's case is that the conduct of the defendant and its flight crew at material times was so reckless and/or culpable that the defendant should be denied the right to limit its liability under art 25 of the Convention. He stated at para. 11 :

“ In order to establish the intentional, reckless or negligent behaviour of the flight crew (as required by Article 25 of the amended Warsaw Convention), the Plaintiff intends to rely upon the cockpit tape/voice recording, a translated transcript of which is attached to the Summons filed herein and dated 4 April 2001. It is therefore respectfully submitted that that tape/voice recording is clearly relevant to the matters in dispute in these proceedings."

In para 12 of his affidavit Mr. Laracy stated :

“ I am instructed by Ms Christina Hadiwibawa of the Legal Aid Department (Hong Kong) that there has never been any independent verification of the accuracy of the translated transcript and the Plaintiff therefore requests that the original tape/voice recording should now be produced in order that an independent translator can authenticate its contents and verify that the translated transcript attached to the Summons dated 4 April 2001 is accurate."

Thus the purpose of the application as deposed to is to obtain production of the cvr so that an independent translator can authenticate its contents and verify that the translated transcript attached to the summons is accurate.

17. As Mr. Barretto has pointed out it is important to bear in mind that it was not the defendant who has prepared, disclosed or produced the English translation of the transcript of the cvr. This has been obtained and produced by the plaintiff and its provenance is not entirely clear.

18. On the material before the Court it appears that after the crash of 22 March 1994 the cvr was recovered by the RCAA. The investigation report shows that about 2 hours after the crash at 8 p.m. the Russian military arrived at the crash site and encircled it. The investigation into the crash was carried out by a committee appointed by an instruction of the Air Transport of Russia dated the following day, 23 March 1994. The investigation involved representatives of the Ministry of Transport of the Russian Federation and other ministries and departments as well as representatives of the European Airbus Industry and General Electric Co. of the USA. The investigation report shows that extensive work was undertaken in the investigation involving people from different departments and industries as well as experts. As is stated in the investigation report, the analysis was made on the basis of a wide spectrum. This included investigations of the parameters and sound information of the air-borne recorders, i.e both the data flight recorder and the cvr, crash flight simulation on the piloting test bed and European Airbus Industry Consortium flight simulator in the city of Toulouse, the actual flying of an Airbus A310 aeroplane according to a specially devised programme, examination of parts, units and systems of the crashed aircraft as well as the crew's actions under the conditions of a rapidly developing in-flight emergency situation. As was submitted by Mr. Barretto the investigation committee took into account a large number of matters, not just the cvr, in arriving at its investigation report. This is apparent from the report.

19. I was also referred to the English translation of the cvr attached to the plaintiff's summons. It is not just a transcript of the cvr. It is, as was submitted by Mr. Barretto, a far more informative document than a mere transcript of speech. It goes further with an analysis and identification of the actual speakers and identifies the time when each utterance is made and ends. It also describes as 'inaudible' the inaudible parts of the conversations and sounds. It seems highly likely that the experts spent a great deal of time working on this analysis of the cvr.

20. Although the affidavit in support stated that the purpose of the application was to seek production of the cvr in order that an independent translator could authenticate its contents and verify the English translation of the transcript, on the hearing of the appeal before me Mr. Laracy submitted that the plaintiff was not seeking to challenge the contents of the English translation at this stage. He submitted that the transcript assisted the plaintiff's case in many ways. He also submitted that the plaintiff was not challenging the contents of the transcript at this stage but that she would like the opportunity to do so as she wanted the best possible opportunity to put her strongest case to meet the limitation of liability defence. It was submitted that the plaintiff should be given an opportunity to take her own steps or at least to be in a position to take her own steps to clarify the precise dialogue in the cvr as there were certain parts of the dialogue which were described as 'inaudible' in the cvr. It is, however, in my view important to bear in mind that no suggestion is made that the transcript or the English translation thereof is inaccurate in any respect.

21. It is necessary to consider if the plaintiff has established a prima facie case on all the four matters.

The existence of the cvr

22. The plaintiff must first show that the original cvr is in existence.

23. Mr. Barretto submitted that there cannot be any assumption that the tape which was in existence in 1994 when the investigation was conducted is still in existence 7 years later when the plaintiff took out its application. The plaintiff, however, relied on the affidavit of the Head of Flight Safety in the defendant, Captain Mokrinsky, of 23 April 2001 which was provided to her solicitors by the defendant's solicitors but which was not relied on by them in the application. It seems to me that since the plaintiff relied on this affidavit she is bound by it for the purpose of the application. In para. 3 of the affidavit of Captain Mokrinsky he stated that the cvr was removed from the wreckage by the RCAA and that he believed that the cvr was still in the possession of the RCAA. That being so and in the absence of any contrary evidence to the effect that the cvr is no longer in existence, I consider that the court can and should infer that the original cvr is still in existence. I am satisfied that a prima facie case is shown that the cvr is still in existence.

Whether the defendant has or had the cvr in its possession, custody or power

24. The plaintiff must show a prima facie case that the defendant has or had the cvr in its possession, custody or power. This is neither asserted in the summons nor in the affidavit in support. The plaintiff accepts that the cvr is not in the possession or custody of the defendant. But it is submitted that it is in their power to obtain the cvr. It must be borne in mind that about 2 hours after the crash the Russian military went to the crash site and encircled it. The plaintiff relied on the said affidavit of Captain Mokrinsky. Captain Mokrinsky in his said affidavit said that the cvr was removed from the wreckage by the RCAA and that he believed that it was still in their possession. The plaintiff therefore knows what happened to the original cvr and where it is.

25. It is for the plaintiff to show that the cvr is or was in the possession custody or power of the defendant. In my view the plaintiff has failed to show that it was in the possession or custody of the defendant. As to "power", the plaintiff must show that the defendant has the power to get hold of the cvr. As Lord Diplock said in Lonrho Ltd & another v. Shell Petroleun Co. Ltd. and another [1980] 1 WLR 627 at 635 :

“ .... and in the context of the phrase "possession, custody or power" the expression "power" must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future."

26. It is, of course, for the plaintiff to show that the defendant has a presently enforceable right to obtain the cvr from the RCAA. The evidence falls far short of this. On the contrary, the said affidavit of Captain Mokrinsky makes it plain that the defendant does not believe that the RCAA will release the cvr to any party to this action and that the defendant did not have the power or authority to request the release of the cvr from the R CAA. As I have said the plaintiff by relying on the said affidavit of Captain Mokrinsky is bound by it. It must be remembered that about 2 hours after the crash, the crash site was surrounded by the Russian military. It is highly likely that the cvr together with other material were in the possession custody or power of the RCAA shortly thereafter. There is, in my view, considerable force in Mr. Barretto's submissions that the reality of the situation is that the debris of the plane on the mountainside in Siberia was not in anybody's possession, custody or power at that time. Once the aircrash happened it seems highly likely that the cvr together with all the material obtained from the debris for the investigation passed into the jurisdiction of the State investigating the crash. It seems to me that it is highly likely that the RCAA had the real possession, custody and power of the cvr at all material times.

27. The plaintiff has not, in my view, shown a prima facie case that after the crash the completed cvr is or was in the possession, custody or power of the defendant.

Relating to a matter in question

28. Mr. Barretto submitted that the cvr is not relevant as it does not relate to any matter in question in the action. Mr. Laracy submitted that the plaintiff's case is that the conduct of the defendant and its flight crew was so reckless and/or culpable that the defendant should be denied the right to limit its liability under the Convention. He also submitted that the cvr is the single most important piece of evidence in these proceedings recording as it does the final moment of dialogue in the cockpit prior to the fatal impact. According to him, the cvr was the only piece of contemporaneous evidence available. There was, however, no evidence to support this.

29. I am not convinced that the cvr is the single most important piece of evidence available in these proceedings. Without a detailed analysis by experts of the cvr with voice and sound identification and access to other material, for instance, the data flight recorder, it would not have been possible to prepare and produce the transcript in the Russian text. It must, however, be recognised that the cvr is one of the source materials used to prepare the transcript in the Russian text. In my view the cvr is a document which would be admissible in evidence. That being so, I am satisfied that there is a prime facie case that the cvr relates to a matter in question in the action. Whether discovery of the cvr is necessary for disposing fairly of the proceedings or for saving costs is quite another matter.

Necessary for disposing fairly of the cause or matter or for saving costs

30. The fourth requirement is that discovery is necessary for fairly disposing of the cause or matter or for saving costs.

31. As I have said, the purpose of the application as deposed to in the affidavit of Mr. Laracy in support is to obtain production of the cvr so that an independent translator can authenticate its contents and verify that the translated transcript is accurate. The deponent, however, is unable to point to any error or discrepancy in the English translation that has been disclosed by the plaintiff's solicitors. In para. 16 of his written submissions, Mr. Laracy went further. He submitted that production of the tape for inspection was necessary in order to (a) verify the accuracy of the transcript; and (b) to identify any relevant background noise or dialogue not recorded in the transcript. He submitted that it was fair and just that the plaintiff be permitted the opportunity to utilise the cvr to pursue her claim for damages which is far in excess of the limits of liability under the Convention.

32. As Mr. Barretto submitted, correctly in my view, the transcript in the Russian text of the cvr was produced as the result of expert analysis with voice and sound recognition. There is also inserted in the transcript at the appropriate places and times what was being done mechanically in the aircraft which would not be apparent to an ordinary translator of or listener to the cvr. The background noise is in fact already noted in the transcript and explained by experts with access not only to the cvr but also to the data flight recorder and a real airbus aircraft in flight. To obtain a proper and meaningful verification of the transcript now would mean engaging experts to carry out the same exercise as was done over 7 years ago with access to all the material the experts then had. There is no evidence that all this material is even available at this time. Far from saving costs it seems to me that costs in the action would be substantially increased. More importantly, the plaintiff is unable to point to any error or discrepancy in the transcript. As Mr. Barretto submitted, it seems to me that the real purpose of the plaintiff's application is to let experts whose expertise is not identified to listen to the cvr. The plaintiff's solicitors do not even assert that the transcript is inaccurate in any respect. It seems to me that is a fishing exercise in the hope of finding some inaccuracy or discrepancy. This should not be permitted. Moreover, the trial of this action which was commenced in March 1996 has already been delayed long enough and the order sought will undoubtedly delay the trial further. It is undesirable that there should be any further undue delay in the trial. I am satisfied that the application for discovery is unnecessary for fairly disposing of the cause or matter or for saving costs. I am satisfied that the application should have been dismissed.

33. When making his order the master appears to have overlooked the fourth requirement, namely, that there must be a prima facie case shown that discovery is necessary either for disposing fairly of the cause or matter or for saving costs. This is apparent from para. 11 of Mr. Barretto's notes of the reasons given by the master. According to the notes, the master said :

“ Having satisfied that existence, custody and power and relevance, I still can exercise my discretion as to whether or not to order the discovery to make an Affidavit as to the whereabouts of the tape now. It is submitted by the Defendant there is no evidence to challenge the authenticity and veracity of the Transcript. The Transcript is prepared by experts, an independent authority and so for the purposes of the Plaintiff's case the Transcript should be sufficient to support the case therefore the Application is just a fishing exercise and will not save costs and will certainly result in incurring more costs. However for the present application I am only concerned whether I should make an order to verify the possession of the tape and its whereabouts. It has not come to the stage to consider whether the tape should be produced to the plaintiff. I therefore consider on that basis I should exercise my discretion to make the order that the defence should do it".

Mr. Barretto submitted that the master did decide that the application was "just a fishing exercise and will not save costs and will certainly result in incurring more costs". However, it seems to me that he did not decide this but was merely setting out the defence submissions. With respect to the master, in my judgment, he was obliged to consider whether the cvr was necessary for disposing fairly of the cause or matter or for saving costs even at the stage of the plaintiff's application for discovery under O.24 r.7. He wrongly thought that this should only be considered at a subsequent stage when an application for production is made under O.24 r.13. Had the master considered this it seems to me that he would have come to the view that the application for discovery was not necessary for disposing fairly of the cause or matter or for saving costs and he would have dismissed the application.

34. For the above reasons, I allowed the defendant's appeal and set aside the master's order.