KWOK KAM MING v. CHINA AIRLINES LTD

HCPI 660/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 660 OF 2001

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HCPI 715/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 715 OF 2005

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(Heard together)

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R U L I N G

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The circumstances of the proceedings:

1.  These two personal injury actions arise from an accident occurring on 22 August 1999, when the plaintiffs were passengers on board a China Airlines flight No. CI 642, a Boeing MD-11 aircraft, between Bangkok and Taipei, with an intermediate stop at Hong Kong.

2.  The aircraft crash landed at Hong Kong International Airport on landing for the intermediate stop.  At the time of the landing, the number 8 typhoon signal was hoisted.

The Warsaw Convention:

3.  Passengers on commercial aircraft contract with the airline subject to the provisions of the Warsaw Convention, as amended by the Hague Protocol, (the Convention), to which the Hong Kong Special Administrative Region is a High Contracting Party, and which applies in Hong Kong pursuant to the provisions of the Carriage by Air Ordinance Cap 500, (the Ordinance).

4.  The consequence of the Convention and the Ordinance is that in the event of an accident to an aircraft involving death or bodily injury, a form of no fault liability is established on the part of the air carrier, and with that, a correlated entitlement in passengers to damages without the need to prove fault.  The only way in which a claim may be brought is under the provisions of the Ordinance and the Convention, all other common-law rights being displaced.

5.  An essential element of the no fault liability on the part of the air carrier is a limitation on the damages that may be recovered.  That limit, contained in Article 22 of the Convention, presently stands at HK$200,000.  In modern terms that sum may be thought to be derisorily low, particularly in respect of death or serious injury, but the amount of damages recoverable under the Convention is beyond the scope of the courts.  It is a matter however to which, in my view, the Legislature ought to give urgent attention.

The plaintiffs’ claims:

6.  Both of the plaintiffs contend that the injuries that they have suffered entitle them to damages well in excess of the limitation.  In order to escape the limitation the plaintiffs seek to invoke Article 25 which 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.”

7.  In the present case the plaintiffs rely upon the second limb of Article 25, and say that the damage resulted from acts or omissions of China Airlines, its servants or agents, done recklessly and with knowledge that damage would probably result.

8.  The allegations of negligence, (as amended by plaintiffs with consent), are in the following terms.

“	10.	The Accident was caused solely by the negligence and/or breach of implied terms of the contract of carriage and/or breach of statutory duty to the Defendant its agents and/or servants.
	PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
	(a)	failing to remind its MD-11 pilots of the need for an early and complete approach briefing, and emphasise the rationale for this in both its Cockpit Resource Management (CRM) training and in the MD-11 Standard Operational Procedure (SOP);
	(b)	failing to review the contents of its CRM training course so as to ensure that contributions made by the monitoring pilot, in operational situations, are both accurate and appropriate;
	(c)	failing to review its MD-11 training syllabuses to ensure that the crew monitor the automated systems on the flight deck, so as to be ready to intervene, or override manually, whenever necessary;
	(d)	failing to consider the introduction of a Flight Instructor Guide of a type used by other MD-11 operators and which includes advice to training staff on techniques to be followed during crosswind landings;
	(e)	failing, to be in association with the Boeing Company, amend the recommended landing procedures in the MD-11 SOP to include procedures for approaches and landings in more demanding weather condition; (sic)
	(f)	failing to ensure that crosswind landing limitations noted in its publications are consistent throughout;
	(g)	failing to re-emphasise to flight crews the need on instrument approaches, to continue to monitor the flight instruments in the final stages of the approach as prescribed in its Flight Operations Manual;
	(h)	exposing the Plaintiff to a risk of damage or injury of which the Defendant its servants or agents knew or ought to have known.
	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 on 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 auto-throttle 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.”

China Airlines applies to strike out the claim:

9.  China Airlines now applies pursuant to Order 18 r 19(1)(a) and (b) to strike out the statement of claim on the ground first, that it discloses no reasonable cause of action and second, that the action is frivolous or vexatious.  In simple terms the contention is that none of the allegations of negligence are sufficient to satisfy the requirement of Article 25 that the acts or omissions pleaded were carried out either recklessly, or with knowledge that damage would probably result.

10.  Mr Sarony, without objection from Mr Harris, took me carefully through various aspects of the Civil Aviation Department’s Accident Investigation Report, (the Report), and related aspects of that report to the allegations of negligence, in order to substantiate his submission that, as the expression “recklessly and with knowledge that damage would probably result” has been interpreted, the plaintiffs were bound to fail. 

11.  In so far as the first ground, no reasonable cause of action, is relied upon, Mr Sarony was not entitled to argue the case on the basis of the evidence contained in the Report.  Order 18 r 19(2) is quite clear.  No evidence shall be admissible on an application to strike out on the ground that the proceedings do not disclose a reasonable cause of action.  The pleadings alone, and not affidavits or evidence, must be examined, and it is only in plain and obvious cases that the court should exercise summary powers to strike out.

12.  However, as to the second ground, that is that the action is scandalous or vexatious, or, as here, the inherent jurisdiction is invoked, the court is entitled to look at affidavit evidence, and that is ordinarily used on the consideration of such an application: see Hong Kong Civil Procedure 18/19/3(4), and Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 498.  On this ground also an action should not be struck out except in a plain and obvious case.  If there is no evidence, or the inferences sought to be drawn by a plaintiff from the available evidence are obviously unsustainable, then it is vexatious to put a defendant to trial to answer the allegations, and the claim should be struck out.  It was on this basis that Mr Harris was unable to take objection to Mr Sarony taking me through the terms of the Report.

The test to be applied in Warsaw Convention cases:

13.  The English courts, in a line of cases at culminating in Nugent & Killick v Michael Goss Aviation Ltd & Ors [2000] 2 Lloyd’s Rep 222, have established a test to meet the requirements of Article 25 that is very high.  It is necessary for a plaintiff to establish actual conscious knowledge, at the time the act or omission occurs, that damage would probably result.  There is an argument as to whether actual or imputed knowledge may be relied upon, but that issue does not arise here.

14.  Inevitably this test will be more difficult to meet, in respect of aircraft accidents, in relation to a company employer, may be somewhat removed from the immediate circumstances of an aircraft accident, than it will be in relation to an employee pilot in command of an aircraft that is involved in an accident.  That will be particularly so when there is no obvious immediately causal nexus with the act or omission alleged against the company, and the circumstances of the accident resulting in damage.  It will also be particularly so when the allegations made against the company are allegations of omission, rather than positive acts.

The liability of China Airlines itself:

15.  I have carefully considered the authorities put to me, and the Report.  I have come to the conclusion that, even having regard to the matters raised by the Report, and taking the most favourable of the facts view from the plaintiffs’ point of view, it is 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.

16.  It is not without significance that each of the allegations made against China Airlines is an allegation of a “failure”, or omission, to act, rather than an allegation of a positive act.  There is nothing in the evidence to indicate that any particular event occurred that has put any particular responsible officer in China Airlines on notice of the risk being taken, to the extent that at a particular point in time a question arose in which China Airlines would have had the opportunity to consider whether the particular step alleged to have been omitted, bringing the consequences of a failure to act would have been brought into conscious consideration a probability of damage. 

17.  In the absence of such circumstances I am satisfied that it is not possible to argue in relation to the omissions alleged against China Airlines that, at the time of those omissions, the requisite knowledge was present.

18.  In these circumstances of the allegations of negligence against China Airlines itself, (as against a vicarious liability), being quite unsupported by any evidence, disclose no reasonable cause of action and are vexatious.  They are accordingly struck out.

The vicarious liability of China Airlines for the acts and omissions of the pilots:

19.  The allegations against the pilots however, fall into a quite different category. 

20.  These allegations must be seen in the light of the fact, acknowledged by China Airlines, that, at the time of the departure of the flight from Bangkok both pilots were aware of the weather conditions in Hong Kong.  Inevitably a conscious consideration of the prospective landing circumstances in Hong Kong must have been part of the consideration of both pilots in their preparation for the departure from Bangkok, and all the more so on the steps they took to prepare the aircraft for landing in Hong Kong during the approach.

21.  It is necessary to remember that the power to strike out should only be exercised in plain and obvious cases, with disputed facts to be taken in favour of the party sought to be struck out.

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.

24.  The application to strike out the cause of election insofar as it relates to the vicarious liability of the pilots is dismissed.

The application for specific discovery:

25.  An application has been made for specific discovery of pilot training manuals, log books and the like.  Mr Sarony, while not conceding the point, did not argue against the proposition that if any of the allegations of negligence remained, it was inevitable that there must be an order in terms of the application for specific discovery.

Costs:

26.  In all the circumstances the appropriate order for costs is costs in the cause.