Rutair Ltd v Jamaica Civil Aviation Authority
| Jurisdiction | Jamaica |
| Judge | Batts J |
| Judgment Date | 04 November 2022 |
| Neutral Citation | [2022] JMSC Civ 192 |
| Docket Number | CLAIM NO. 2005HCV01748 |
| Court | Supreme Court (Jamaica) |
| Year | 2022 |
JM 2022 SC 176
[2022] JMSC Civ 192
CLAIM NO. 2005HCV01748
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Tort-Breach of Statutory Duty — Negligence — Whether oral permission granted for aircraft to be serviced outside jurisdiction-Whether certificate of airworthiness ought to be renewed-Whether delay in renewing result of negligence or malice-Whether claim for breach of statutory duty possible.
Captain Paul Beswick, Jerrisa Brown, Koyode Smith instructed by Ballantyne Beswick & Co. for the Claimant.
Althea Jarrett KC, Richard Jones and Lisa Whyte instructed by the Director of State Proceedings for the Defendants.
In Open Court
COR: Batts J
. The trial of this matter took place over an extended period as it has been plagued by delays due mostly to unfortunate circumstances. Sadly, the Claimant's principal lost his son in a tragic event which occurred outside our shores. This understandably prevented resumption of trial for a considerable time. Then there was the “ COVID 19” pandemic which took the life of Captain Paul Beswick the Claimant's lead counsel. This court records its profound regret at the passing of Captain Beswick whose awesome presence in these courts will be sadly missed. His usual indomitable representation of clients was admirably displayed in the course of this trial. On a cheerier note lead counsel for the Defendants became a judge of the Supreme Court but this too necessitated a further delay. These delays, being unavoidable, I endeavoured to deliver this decision at the earliest possible time.
. The Claimant is a registered company which operates an air transport business. Its Claim, filed on the 2 nd June 2005, is for:
“…damages for loss of revenue money caused by breach of statutory duty and negligence committed by the defendants. The defendants without justification and/or reasonable cause, deliberately and capriciously refused to effect an airworthiness inspection of the claimant's aircraft when so requested for a period of 6 days. Subsequently when the said aircraft was inspected, the defendants without justification refused to renew the certificate of airworthiness of the claimant's aircraft for a further period of 6 days”.
The Particulars of Claim, filed on the same date, particularise the loss of revenue as being U$7,500.00 per day from 12 th to 23 rd March 2005 making a total of U$90,000.00. General damages, for loss of goodwill, is also claimed. Interest on special damages is claimed at a rate of 25% per annum.
. The 1 st Defendant is a regulatory body, established by statute, and the 2 nd Defendant was its acting director-general at the material time. The Defendants deny liability and assert that the Claimant had, in breach of the relevant regulations, effected repairs on its aircraft outside the jurisdiction and at a facility which had not been approved. This necessitated an investigation. The inspection, which accompanied the investigation, revealed certain irregularities. The result was a delay in the renewal of the relevant Certificate of Airworthiness (referred to as C-of-A).
. On the first morning of trial counsel indicated that documents, contained in certain bundles, were agreed. They were each, by consent, admitted as: Exhibit 1, the Claimant's Bundle of documents filed on the 5 th December 2014; Exhibit 2, Defendant's Bundle of documents filed on 3 rd December 2014; Exhibit 3, A Bundle of seventeen Statements of Account; and, Exhibit 4, A letter from HBG & Associates (chartered accountants) dated 14 th November 2014.
. The Claimant, also on the first morning, applied to substitute a new witness for Colonel Oscar Darby. The circumstances being that the Colonel was unable to give evidence. Counsel affirmed that the new witness, Captain Christopher Read, would give “effectively the same evidence” as contained in the witness summary of Colonel Darby. This application was opposed. I allowed the substitution on the basis that there could be no discernible prejudice to the Defendants. Several witnesses gave evidence and each was fulsomely cross-examined. In this judgment I shall outline the evidence, and will reference details, only where necessary to explain my decision.
. The Claimant's first witness was Mr Gilbert Gunn a licenced aircraft engineer with considerable experience in aircraft maintenance and, in particular, the maintenance of turbo prop engines. He had been in aviation for 56 years. He was the Claimant's director of maintenance (DOM) at the material time. A witness summary, but no witness statement, was filed for this witness who therefore gave his evidence in chief orally. He deponed to the Claimant's system and to the repairs and inspections done to the particular aircraft. With respect to its inspection and repair at the relevant time and place he said:
“Q: Were you in charge
A: No, Director of Quality Assurance
Q: Were you present
A: I made up the worksheet. I went up when the job was completed to do duplicate inspection.
Q: To best of your knowledge Rutair engineer pulled it apart and inspection done you then did duplicate inspection
A: He asked for additional inspection of wing bolts because in my view although not a requirement I felt it was so critical. I made entry for duplicate inspection. Means two individuals, one not associated with the job doing second one
Q: Non Destructive Testing (NDT) completed and aircraft put back together and inspected then flew back to Jamaica
A: Yes”
. This witness explained the difference between the “Air Operating Certificate” (AOC) and the Certificate of Airworthiness” (COA). The former, approximated or was similar to a motor vehicle registration, the latter was like a certificate of fitness and required that a physical inspection be done. With respect to the aircraft in question he said:
“Q: Prior to 2005 any issues in relation to renewal of COA
A: Normally the JCAA investigator raise certain minor matters.
Most times pass it on. Normally minor.”
The witness was referred to Exhibit 2 page 15 being a letter dated 18 th March 2005 which he said he had not seen before. That letter was from the 1 st Defendant to the Claimant and referred to several “ discrepancies”. The examination in chief continued:
“Q: “Discrepancies noted” letter states seven of them. You did not see letter
A: No, Mr Bryan would have seen and if necessary forward to me
Q: Do you recall the seven items submitted to you for correction
A: Yes by Mr Bryan. Most corrected and some allowed to carry forward. These are minor as in Jamaica always corrosion. The cracked antennae needed replacement but the others can be carried forward.
Q: Placard attached?
A: Tell you type of …fuel”
. Mr. Gunn when cross-examined had this to say about the repair of the aircraft overseas:
“Q: In fact you needed an approved repair station
A: Yes, depends on situation normally Jamaica Civil Aviation Authority (JCAA) approve FAA approved stations
Q: Given the example put to you you would have had to have JCAA approval for that repair station.
A: Yes”
Later the following:
“Q: Plane Exhaust is corporation in Fort Lauderdale that did the welding on assembly
A: Yes
Q: They would also have had to have approval
A: Yes, that is not my area of responsibility.
Q: You were Director of Maintenance
A: Yes and aware of responsibility…
Q: So as Director of Maintenance you not concerned to find out whether repair station had been approved
A: Responsibility of Quality Control Manager. He arranged with JCAA. He went with plane. When job completed I reviewed the documentation. Director of Quality Assurance ensure quality of work.
Q: Before you sign off on work done at a repair station overseas is it that you assume the Director of Quality Assurance would first obtain approval
A: No I always check
Q: Did you check whether there was approval
A: That is not my responsibility
Q: When you sign entry for Plane Exhaust did you know whether they had approval
A: I was advised by Quality Assurance Manager Mr Anthony Bryan that they had approval
Q: When did he so advise you
A: Sure there is correspondence
Q: Was it before you signed off
A: Before aircraft went up”
. On this question, of whether Plane Exhaust had been approved by the Claimant regulator (JCAA), to do repairs, the witness was shown exhibit 2 pages 133–135 and asked:
“Q: Your signature on it
A: Yes
Q: That statement was given 16th March 2005
A: Yes
Q: Look at page 134, 2nd page of statement
A: It is difficult to read
Q: It says “who is Plane Exhaust”
A: Yes
Q: See answer you gave
A: Yes
Q: Was approval sought to use them
A: At time I said I have to check with Mr Bryan
Q: You did not know in March 2005 whether approval had been obtained
A: I told you Mr Bryan advised me
Q: On 16th March based on your answer did you not know
A: I did not know of my own knowledge. When asked I would have to check
Q: This is Plane Exhaust
A: Yes the repair station
Q: If approval had not been obtained from JCAA would you have signed off on that work
A: No, I would query it and find out why”
. Mr. Howard Levy, the Managing Director of the Claimant company, was the second witness called. His witness statement dated 30 th September 2014 stood as his evidence in chief. The statement was amplified by oral evidence. He explained that the aircraft in question, a 208B Grand Caravan which seated 9 persons and had registration number 6Y-JRG, carried passengers and cargo. In January 2005 it became due for a manufacturer's design inspection which included Non Destructive Testing (NDT). Engineering and Inspections Unlimited Inc (EIU), a company based in Florida, was used to do the testing because it...
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