Beharry v Bwia International Airways Ltd (No. 1)

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: John, J.A.,Mendonca, J.A.,Kangaloo, J.A
• Judgment Date: 07 November 2006
• Neutral Citation: TT 2006 CA 31
• Docket Number: Civil Appeal No. 27 of 2003; High Court Action No. 2726 of 1998
• Date: 07 November 2006

Court of Appeal

Kangaloo, J.A.; John, J.A.; Mendonca, J.A.

Civil Appeal No. 27 of 2003; High Court Action No. 2726 of 1998

Beharry

and

Bwia International Airways Limited (No. 1)

Appearances:

Mr. S. Maharaj, S.C. & Mr. D. Maharaj for the appellant.

Mr. R. Nanga for the respondent.

Negligence - Personal injury — Breach of duty — Whether risk of personal injury was reasonably foreseeable — Respondent was under a duty of care to the appellant — Duty of care was to warn of unknown risk — Appellant was not fully aware of the danger — No contributory negligence — Appeal allowed.

John, J.A.

I agree with the judgment of Mendonca, J.A. and have nothing to add.

Mendonca, J.A.

1 (1) This is an appeal from the judgment of the trial judge dismissing the appellant's claim. The gist of the appellant's claim is that he suffered injury to his eye when hydraulic fluid from the respondent's aircraft entered his eye when he was under the aircraft.

2 (2) The appellant's claim was made in negligence and/or breach of duty and/or breach of his contract of employment. At the trial of the action the appellant and three (3) witnesses called by him gave evidence. The respondent opted not to call any evidence.

3 (3) The facts in this matter are really not complicated. On March 7, 1994 the appellant was the flight engineer or third pilot on the respondent's Tri Star L1011 aircraft on flight 981 from Frankfurt, Germany to St. Lucia. On the way to St. Lucia the appellant discovered what he described as a “snag”. He observed that the hydraulic fluid reservoir gauge showed depletion in the hydraulic fluid in the “C” hydraulic system of the aircraft. The C hydraulic system is one of four hydraulic systems in the aircraft and is considered the most important.

4 (4) It was policy that in the event of such an occurrence, if the aircraft is in range of its destination, that ground engineers at its destination should be informed of the problem. The appellant in accordance with this policy notified the ground engineers in St. Lucia of the snag and recorded it in the aircraft's technical log.

5 (5) When a mechanical default is recorded in the aircraft's technical log that entry has to be cleared by ground engineers before the aircraft becomes airborne again.

6 (6) The aircraft landed safely in St. Lucia and parked at its ramp. According to the appellant the normal procedure was for the ground engineers to board the aircraft to be briefed. This they did not do and so the appellant accompanied by co-pilot Mr. Emmy Nathaniel came off the aircraft.

7 (7) The appellant in examination in chief said that he came off the aircraft to look for the engineers in order to brief them about the snag. The appellant also testified that he was concerned as to where the leak was because of certain notices to pilots that the respondent had sent out. According to the appellant the notices warned that hydraulic fluid leaking on a “hot component” such as a pump could cause a fire. His major concern, he said, was to find out where the leak was and if there were any “burns” or damage to the aircraft and to see the engineers. In cross-examination, however, the appellant agreed with counsel that while in transit he had briefed the engineers and that there was nothing further for him to tell them. He agreed with a suggestion put to him by counsel that he had gone under the aircraft out of curiosity.

8 (8) The judge, however, accepted that the appellant was not a busy body. The judge stated:

“I do not interpret that “curiosity” to mean that the [appellant] was being a busybody. The [appellant] made it plain in his evidence that he was concerned about a fire hazard as a result of a warning previously issued by the [respondent] about hydraulic fluid leaking onto hot surfaces.”

9 (9) When the appellant came off the aircraft he went under it in the vicinity of the hydraulic bay. There are two access panels or doors to the hydraulic bay and the appellant observed both doors opened and a ladder was under one of them. The appellant went under one of the doors to see what he could see. As soon as he got there he heard a “hum” and a “jet stream” of hydraulic fluid went straight into his right eye. The appellant then re-entered the aircraft and washed his eye in accordance with the respondent's standard procedure for dealing with such an occurrence.

10 (10) After he washed his eye the appellant stated that it was burning a lot and he had blurred vision. The next day however the burning subsided but the eye was still a little sore. The appellant as a consequence saw a doctor and he was advised that his eye would be okay. However, the condition of the eye did not improve but on the contrary it deteriorated. It turned out that as a consequence of the incident the appellant suffered a detachment of the retina of the right eye leading to permanent diminished vision in that eye. Dr. Mahabir, an ophthalmologist, testified that the loss of vision in the appellant's eye is to the extent of 6/18. The appellant has lost binocular function and has difficulty in judging height, length, distance and speed. As a result of his injury the appellant has lost his pilot's licence.

11 (11) The judge held that the respondent was not liable, gave judgment for the respondent and dismissed the appellant's claim. He stated that there was no evidence of negligence in the maintenance of the hydraulic system. He found that at the time of the incident that the C hydraulic system was pressurized, but that there was no evidence to indicate that the system was pressurised when it ought not to have been pressurised. He also held that the appellant did not use ordinary reasonable care for his own safety. He reasoned that the appellant was aware of the danger of hydraulic fluid coming into contact with his body. The appellant was aware that the problem with the hydraulic system was being attended to when he went under the aircraft, yet without regard for his own safety he proceeded to the hydraulic bay area and looked up into it. Further the appellant had the opportunity of using smoke goggles that were in the cockpit at the material time but did not do so. Also the appellant, by coming off the aircraft when he did, deprived himself of the benefit of the system that the respondent had in place to warn the flight crew of the maintenance work that was being undertaken.

12 (12) The appellant now appeals to this Court. He contends that the judge was wrong and that the judgment ought to be set aside and the respondent held liable in negligence. The respondent has also cross-appealed with respect to the finding of the judge that at the time of the injury the C hydraulic system was pressurised. Given what I perceive to be the importance of that finding to this appeal, I shall first refer to the respondent's cross-appeal.

13 (13) The respondent contends that the judge erred in coming to that finding. There is not sufficient evidence from which a reasonable conclusion could be drawn that at the material time the hydraulic system was pressurised. I however do not agree that the judge fell into error in coming to that finding.

14 (14) It is clear on the evidence that the C hydraulic system of the aircraft is pressurised when the engines of the aircraft are on. Conversely, when the engines are off the system depressurizes in a matter of seconds. It is not in dispute that at the material time the engines were off. But the system may be pressurised from an external point described as the ground pressure attachment point by electrical or mechanical means and a ground engineer has access to this. So the C hydraulic system could have been pressurised by the maintenance crew attending to the snag.

15 (15) According to the evidence of the appellant, as he looked up into the hydraulic bay he heard a “hum” and a “jet stream” of the hydraulic fluid entered his eye. In other words the fluid did not simply fall into his eye but came at some speed and force suggesting that it was under pressure. The hum that the appellant heard is consistent with the start of an apparatus necessary to pressurise the system. But as the judge noted the appellant's evidence did not stand by itself.

16 (16) There was first of all the evidence of Nikera Seepersad. He described himself as an aircraft engineer and gave evidence to the effect that when one is checking for leaks or replenishing the fluid in the hydraulic reservoir the system must be pressurised. There was, however, a twofold attack on his evidence by the respondent. First the respondent sought to say that Mr. Seepersad was not competent to give such evidence. He simply lacked the necessary qualifications. There was, however, no real challenge at the trial to the quality of his qualifications to give the evidence he did. According to his evidence he has an F.A.A. certificate “which is what every engineer in the [United] States [of America] has”. He worked as an aircraft mechanic for a number of years and did a course in fluid lines and fittings and troubleshooting where there are hydraulic leaks. He also said that he was familiar with the maintenance manual for the L1011 aircraft. I see nothing on the face of that evidence that suggests that he could not give the evidence he did of the C hydraulic system. In fact the evidence suggests the contrary. The second line of attack was that the respondent did not do a leak check on the system. Counsel submitted that the Court should come to this conclusion because there is no entry in the technical log of the aircraft that a leak check was done. There is, however, no evidence, nor does the evidence point to the fact, that every analysis of the problem is recorded in the log. The absence of such an entry therefore does not mean that it was not done. The submission also flies in the face of the stipulated procedure in the maintenance manual for the aircraft. The...