Bahamasair Holdings Ltd v Messier Dowty Inc.
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 08 October 2018 |
| Neutral Citation | [2018] UKPC 25 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0053 of 2017 |
| Date | 08 October 2018 |
[2018] UKPC 25
Lord Kerr
Lord Wilson
Lord Hughes
Lady Black
Lord Lloyd-Jones
Privy Council Appeal No 0053 of 2017
Michaelmas Term
From the Court of Appeal of the Commonwealth of the Bahamas
Negligence - Causation — Damage to aircraft — Whether failure of landing gear was due to appellant's negligence — Res ipsa loquitur — Proper approach to be taken by appellate court to review findings made by judge in first instance — McGraddie v. McGraddie [2013] UKSC 58 — Thomas v. Thomas [1947] AC 484 — Yuill v. Yuill [1945] P 15 — Anderson v. City of Bessemer (1985) 470 US 564 — Housen v. Nikolaisen [2002] 2 SCR 235.
Appellant
Krystal D Rolle
Wallace I Rolle
(Instructed by ASB Law LLP)
Respondent
Tim Marland
Koye Akoni
(Instructed by Holman Fenwick Willan LLP)
Heard on 15 March 2018
Bahamasair Holdings Ltd (Bahamasair) is the national airline of the Bahamas. Among its fleet was a DHC-8–301 aircraft, known as a Dash-8. It had been bought by Bahamasair in 1990. Messier Dowty Inc (Messier) is a manufacturer of aircraft landing gear. The Dash-8 aircraft which is the subject of these proceedings was fitted with landing gear which Messier had manufactured and supplied.
On 20 April 2007, the aircraft took off from New Providence, Bahamas on a flight to Governor's Harbour, Eleuthera, Bahamas. On touchdown, the left main landing gear collapsed. Fortunately, no-one was seriously injured but the aircraft was damaged beyond repair. Bahamasair claimed damages against Messier for the loss of the aircraft and the cost of investigating the cause of the accident.
At first instance the Chief Justice, Sir Michael Barnett, found that the landing gear was inadequate for the number of times that it was required to perform (referred to in the evidence as “cycles”). He found further that Messier, despite knowing that the landing gear was inadequate, had failed to warn Bahamasair of that inadequacy. He awarded Bahamasair the sums which they had claimed for the loss of the aircraft and the cost of the investigation. The Chief Justice also rejected a claim by Messier that the failure of the landing gear was due to the negligence of Bahamasair in relation to its maintenance.
The Court of Appeal reversed the Chief Justice's decision. It concluded that there was no warrant for his finding that Messier had failed to warn Bahamasair of the inadequacy of the landing gear. In any event, there was “no requirement for [Messier] to specifically send out notices or bulletins to individual operators specifically relating to [the mechanism which failed at the time of the accident]” — para 48 of the Court of Appeal judgment. As to the avowed inadequacy of the landing gear, the Court of Appeal considered that the respondent had “merely sought to improve on an already solid design” — para 29 of the judgment.
The Chief Justice found that Messier regularly issued a component maintenance manual which provided guidance and instructions on the maintenance of landing gear. It also provided service bulletins. These made specific recommendations in relation to maintenance and repairs of products. In 1996 a Dash-8 aircraft operated by Air Ontario had crashed. This, the Chief Justice found, was due to what was described by Messier as “the over-centring of the landing gear”.
The landing gear comprises not only the wheels which support the aircraft's weight when it lands and is taxiing but also a shock strut assembly. Broadly speaking, the shock strut is made up of two parts referred to as the cylinder and the piston. It also has a component known as a torque link. It is attached to the cylinder and it stabilises the wheel. A damper or rebound ring is located at the top of the cylinder. It operates with an upper bearing. The damper ring sits on a groove in the upper bearing. The Chief Justice found that the over-centring of the landing gear in the aircraft operated by Air Ontario which crashed in 1996 had been caused by excessive wear of the cylinder bore. This, in turn, had brought about the failure of the damper ring and that had caused “extensive scoring” to the cylinder.
A number of investigations into the accident took place. The first of these was by a company known as Charles Taylor Aviation ( CTA), which provides investigative, adjusting and surveying services in the field of aviation. CTA was retained by the insurers of Bahamasair. It issued its report on 11 May 2007. It suggested that it was “readily apparent” that the cause of the accident was the failure of the left main landing gear cylinder, which appeared to have cracked, allowing the torque links to go over the centre of and rest on the piston. Consequently, the shock strut housing cracked, allowing the piston and wheel assembly to detach from the landing gear assembly.
CTA stated in its report that an Airworthiness Directive No CF-2006–14, issued on 21 July 2006, had considered previous failures of the shock strut and stipulated that preventive inspection of this component should be carried out every 7,000 hours. Bahamasair maintenance records revealed that an inspection of this unit had taken place on 19 May 2006. At that time, there were 4,424 cycles remaining before the next scheduled inspection was due on 28 April 2008.
The Flight Inspectorate of the Department of Civil Aviation of the Bahamas (DCAB) carried out an investigation into the incident and issued a report in September 2007. Representatives of Messier and Bombardier (the manufacturer of the aircraft) participated in this investigation. The probable cause of the crash was found to be an over-centre torque link condition that culminated in a single cycle failure of the cylinder. Four possible causes for this were mooted. They were: (i) an under serviced shock strut (ie the level of hydraulic fluid necessary for the proper functioning of the strut was too low); (ii) a broken damper ring; (iii) there was no damper ring; and (iv) the damper ring had become disengaged.
Maintenance records examined by DCAB revealed that the left shock strut outer cylinder had been replaced by Bahamasair personnel on 19 May 2006. The unit that was installed was new. The shock strut piston assembly was removed from the outer cylinder that was being replaced and installed in the new outer cylinder. But no entry was found in the maintenance records that showed that, in replacing the shock strut outer cylinder, Bahamasair had followed the proper procedure and used the correct maintenance manual reference for the work that had been carried out. Various other deficiencies in the record-keeping of Bahamasair were identified.
A report commissioned by the lawyers for Bahamasair, dated 5 September 2013, was provided by David Hall, an expert in the investigation of “root cause failure analysis, especially in matters involving aviation”. Mr Hall quickly scotched the suggestion that the accident might have been caused by the absence of a damper ring, pointing out that a photograph taken in the immediate aftermath of the accident “clearly shows a piece of the fractured damper ring on the runway in the exact position where the strut begins to fail due to overload and pieces are starting to exit the aircraft”. Following a detailed examination of the evidence, Mr Hall concluded that “the damper ring was installed, installed properly and that the level of hydraulic oil in the strut was correct and per Messier-Dowty's specifications and procedures”. He also reviewed maintenance records and file materials and concluded that these testified to an appropriate standard of care by Bahamasair maintenance personnel for the work performed on the left main landing gear of the aircraft.
The Chief Justice found that, following the Air Ontario crash in 1996, Messier had modified the upper bearing and damper ring used in the landing gear. The bearing area was increased; the material used was changed from aluminium alloy to steel; the locating ring for the damper ring had been redesigned; and the radial thickness of the ring had been increased. In the engineering instruction given to its engineers, Messier said that these steps had been taken in order “to improve the support for the damper ring to prevent failure due to excessive wear”.
Despite this, so found the Chief Justice, the new damper ring (which became available in 1998 when production of the earlier upper bearing and damper ring used in the aircraft operated by Bahamasair was discontinued), Messier did not inform the appellant or any other user of the landing gear of the need to change the old upper bearing and damper ring.
In May 2006, after a crack and fluid leak in the left landing gear had been detected, Bahamasair replaced the strut cylinder. According to Winslow Moss, who was employed by Bahamasair to do this work, it was carried out on 19 May 2006 in accordance with instructions issued by Messier and the replacement cylinder was purchased from them. The existing upper bearing and damper ring were reinstalled in the landing gear.
Aaron Jones, a materials engineer, gave evidence on behalf of Bahamasair. He said that the design and materials of the original upper bearing were inadequate and lacked sufficient robustness for the damper ring support application. That lack of robustness resulted in damage to and fracture of the upper bearing and fracture and fragmentation of the damper ring. The redesigned upper bearing provided significantly more resistance to cracking and fracture of the bearing. That new design significantly decreased the likelihood of the damper ring separating or fracturing from the retaining groove on the upper bearing. Mr Jones further testified that the accident would have been avoided if the...
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