KWOK KAM MING v. CHINA AIRLINES LTD

CACV 412/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 412 OF 2007

(ON APPEAL FROM HCPI NO. 660 OF 2001)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Saunders J given on 7 November 2007.  The judge had before him applications in respect of two actions which had been brought against the defendant following the crash of an airliner.  The applications were applications to strike out various paragraphs of the amended statements of claim.  The judge struck out the allegations in respect of the defendant itself but did not strike out the allegations which had been made in respect of the pilot and other members of the flight crew for which it was alleged that the defendant was vicariously liable.  Although the judge had before him applications in respect of two separate actions, the appeal in respect of the other action was dismissed by consent.

2.  On this appeal the defendant appealed against the finding that the application to strike out the cause of action in so far as it related to the complaints in respect of the pilot and flight crew were dismissed.  

3.  There was also an appeal in respect of the order made by the judge on appeal from the master that the defendant should give discovery of the following documents namely (A) full records of cockpit resource management annual training of the commander and the co-pilot for the years 1997 to 1999 from 1989 to 1999 respectively; (B) MD-11 training syllabuses and (C) the CV of the commander and the co-pilot.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

4.  On 22 August 1999 a Boeing MD-11 aircraft belonging to the defendant crashed on landing at Chek Lap Kok Airport when it was en route from Bangkok to Taipei with the intermediate stop in Hong Kong.  At the time the number 8 typhoon signal was still hoisted.  There was what was described as an extremely hard impact with the runway when the aircraft landed in a slightly right wing-down attitude.  This was followed by collapse of the right main landing gear and separation of the right wing.  There was an outbreak of fire.  The aircraft ended up in an inverted, reversed position on a grass area just to the right of the runway.

5.  Regrettably two passengers were certified dead on arrival at the hospital and one other passenger died five days later.  A total of 219 persons including crew members were admitted to hospital and 50 were seriously injured and 153sustained minor injuries.  The plaintiff in the present case suffered whiplash injury and also psychological trauma.

6.  The carriage of passengers on commercial aircraft is governed by the Warsaw Convention as amended by the Hague Protocol (“the Convention”).  Article 22 of the Convention provides a limit of liability of the carrier in respect of each passenger who is able to claim without proof of negligence.  Article 25 provides:

“The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.”

7.  Thus if a plaintiff wishes to maintain an action in respect of a claim which exceeds the limit in Article 22 it is necessary to establish facts which would bring the matter within the provisions of Article 25.  It seems clear on the wording of Article 25 that either it must be shown that there was an intent to cause damage or that the person charged with responsibility for having committed the act or omission had acted recklessly as well as with knowledge that damage would probably result.

8.  What is said on behalf of the defendant in this case is that the allegations in the amended statement of claim in respect of the pilot and other crew members do not allege either an intent to cause damage nor do they amount to recklessness with knowledge that damage would probably result.  In so far as it is necessary in this case it was the defendant’s case that any suggestion of recklessness and acts done with knowledge that damage would probably result was not made out on the pleadings and was, in any event, unsustainable in view of the facts of the case.  The acts pleaded in the statement of claim were:

“PARTICULARS OF NEGLIGENCE OF THE DEFENDANT’S AGENTS AND/OR SERVANTS FOR WHICH THE DEFENDANT IS VICARIOUSLY LIABLE 

    (a)    Failure on the part of the commander to assess the accurate quantity of fuel prior to departure from Bangkok;

    (b)    Failure on the part of the commander, prior to departure from Bangkok or at all, to give a briefing meeting the Defendant’s Operations Manual requirements in respect of either timing or contents;

    (c)    Failure on the part of the co-pilot to provide correct information to the commander during the descent and approach;

    (d)    Failure on the part of the co-pilot to perceive the increasing rate of descent and decreasing indicated airspeed as the Aircraft approached the landing flare;

    (e)    Inability of the commander to arrest the high rate of descent;

    (f) Failure on the part of the commander to appreciate the combination of a reducing airspeed, increasing rate of descent, and with the thrust decreasing to flight idle;

    (g)    Failure on the part of the commander to apply power to counteract the high rate of descent prior to touchdown;

    (h)    Failure on the part of the commander to override the autothrottle system and apply power;

    (i) Failure on the part of the flight crew to pay any or any proper attention to the runway condition;

    (j) Failure on the part of the flight crew to exercise or maintain any or any proper or effective control of the Aircraft;

    (k)    Failure on the part of the flight crew to take appropriate steps to avoid the hard impact of the Aircraft with the runway;

    (l) Permitting or causing the Aircraft to have hard impact with the runway;

    (m)   Failure on the part of the flight crew to exercise due care and/or attention when landing;

    (n)    Failure on the part of the flight crew to control the Aircraft in a safe and careful manner…

    10A. The acts or omissions particularised in paragraph 10 above were done recklessly and with knowledge that damage would probably result.”

The judgment below

9.  The judge considered the test to be applied under the Convention and he said that even taking the most favourable analysis from the plaintiff’s point of view it was “simply not possible to draw an inference that, at the time at which each of the particular allegations made against China Airlines might have occurred it could be argued that China Airlines knew that damage would probably result from their conduct.”  He therefore struck out that part of the action against the defendant on the basis that the allegations against the defendant itself did not disclose a reasonable cause of action and were vexatious.

10.  In respect of the case brought against the defendant on the basis of vicarious liability he said at paragraph 22:

“22.  I am satisfied that it is arguable that it was within the actual contemplation of the crew of the aircraft, that the anticipated landing in the course of the typhoon in Hong Kong, of an aircraft at maximum landing weight or thereabouts, would be such as to probably cause damage.  That is particularly so in the light of the acknowledgement, in his witness statement, by the commander of the aircraft that he believed there may be difficulties with the MD-11 aircraft which may become particularly manifest in difficult landing conditions, and that he had discussed that matter with many pilots all over the world.

23.   I accordingly conclude that even having regard to the very high test established to meet Article 25 of the Warsaw Convention, the plaintiffs case, in respect of China Airline’s vicarious liability for the acts of the commander and co-pilot, is not unarguably bad.”

This appeal

11.  This court was taken through the material parts of the Aircraft Accident Report 1/2002 prepared by the Civil Aviation Department of Hong Kong in April 2002 in respect of this accident.  It is correct to say that that report, compiled in accordance with the Hong Kong Civil Aviation (Investigation of Accidents) Regulations, was not directed to apportion blame or liability.  Regulation 4 of those Regulations provides:

“4.    Purpose of Accident Investigation

The fundamental purpose of investigating accidents under these regulations shall be to determine the circumstances and causes of the accident with a view to the preservation of life and the avoidance of accidents in the future; it is not the purpose to apportion blame or liability.”

12.  Whilst bearing the foregoing in mind, it is nonetheless clear that the investigator had access to all relevant information whether it be from the airline, those involved including the pilot and co-pilot, relevant persons at the airport, or relevant weather information and information from the manufacturers of the aircraft and its equipment.  In those circumstances it is unlikely in the extreme that any further information would be forthcoming or be available to the plaintiff now some 9 years after the accident.

13.  Some of the allegations made in the amended statement of claim would appear strained, to say the least.  The first ground put forward would, on first reading, give the impression that the complaint was that the pilot had not taken on sufficient fuel knowing that there was a storm in Hong Kong and that there might be need to divert.  In argument, however, Mr Harris SC, who appeared on behalf of the plaintiff, said that the complaint was that the pilot had taken on too much fuel.  It is quite clear from the report that the pilot had taken on sufficient fuel to be able to divert from Hong Kong should it be necessary.  That, in itself, far from showing recklessness, demonstrates a particularly cautious attitude.  The argument was that the amount of fuel made the aircraft too heavy.  It is clear however that the landing weight of the aircraft when it reached Hong Kong was high but it was within the recommended limit for the aircraft.

14.  Although there was an instance when the co-pilot provided wrong information as to the runway that was to be used, that information was corrected by the pilot and was not considered in the report to have been a cause of the accident.  The primary cause of the accident according to the investigation report was the pilot’s inability to arrest the high rate of descent which existed at 50 feet RA (Radio Altitude).  The report describes how the pilot had attempted to flare the aircraft by initiating a small increase in pitch attitude, as prescribed in the MD-11 Standard Operation Procedure Manual, but that, in the circumstances, had been ineffective.  The pilot had elected to use the autothrottle system, the report stated:

“The MD11 is designed to be operated most efficiently through its automatic flight system.  This system is comprised of multiple autopilots and an autothrottle system which together direct and control the aircraft in virtually all regimes of flight as required either by the pilot when utilising basic autoflight modes, or by the Flight Management System (FMS) when using computer controlled modes.”

“… full-time use of the system is known to have been encouraged by the manufacturer in the operation of MD-11 aircraft, and also in that of its predecessor, the DC 10.”

15.  It is thus clear from the report that the pilot was using the recommended procedures both in respect of flaring the aircraft and in using the autothrottle system.  In those circumstances, without more, it is clearly impossible to say that the pilot or any of the crew were acting recklessly.  Indeed, one has to bear in mind that any act of recklessness by a person in control of an aircraft would have a direct impact on that person’s own safety.

16.  The argument effectively came down to one that the pilot should never have attempted to land the aircraft during a number 8 typhoon signal.  As will be noted above, that appears to have been the approach of the judge.  It is significant however, that it has not been pleaded that no attempt should have been made to land the aircraft at the time.  That would have been a difficult allegation in any event when one considers that aircraft, including an MD-11, had landed at the airport until 7:21 AM; thereafter, apart from two aircraft, there had been no other landings until 9:47 AM but after that time there had been 9 landings over the course of the next hour until the accident occurred and no aircraft had been diverted.

17.  As noted above, the judge referred to what was said in part of the pilot’s witness statement:

“The go around called by the First Officer came when the aircraft was not recoverable.  I believe there may be difficulties with the MD11- these difficulties become particularly manifest in difficult landing conditions.  This is something I have discussed with many pilots all over the world who have all formed the view that there is a problem with this aircraft in difficult conditions-it simply does not react to certain commands and in this case it did not react to the attempt to “flare” the aircraft, which would have decreased the angle of descent.”

18.  That alone would not be sufficient to show any recklessness on the part of the pilot.  It was the pilot’s ex post facto attempt to rationalise the cause of the accident.  It would be neither fair nor right to take that out of the context of the whole of the pilot’s witness statement, nor to concentrate on any particular line or phrase.  It is clear on a fair reading of that witness statement that the pilot considered that it was in order to land the aircraft.  On this appeal the defendant sought to introduce an affirmation made by the pilot in June of this year in which he explained that his discussions with the pilots around the world had taken place after the accident had occurred.  I consider that it is right that such affirmation should the admitted but, of course, the explanation of his statement has to be a considered with due caution.  In that respect, I would simply say that the affirmation is supportive of the conclusion to which I had otherwise come.

19.  I would therefore allow this appeal and order that the remaining parts of paragraph 10 of the amended statement of claim be struck out.  In view thereof, the application for discovery must fail and the order in respect thereof must be set aside.  I would make an order nisi of costs in favour of the defendant.

Hon Le Pichon JA:

20.  I agree.