Felicia Andrina George Administratrix of the Estate of Hughes Williams (Deceased) v Eagle Air Services Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] UKPC 21 |
| Court | Privy Council |
| Docket Number | Appeal No 1 of 2007 |
| Date | 15 July 2009 |
[2009] UKPC 21
Present at the hearing:-
Lord Mance
Lord Neuberger of Abbotsbury
Sir Jonathan Parker
Privy Council
[Delivered by Lord Mance]
The appellant, Mrs Felicia Andrina George, appeals by special leave granted on 3 rd May 2007 against decisions of d'Auvergne J dated 11 th December 2001 and the Court of Appeal dated 1 st November 2004, in each case dismissing her claim for damages against Eagle Air Services Ltd. The claim was brought by writ issued on 6 th July 1993, and relates to the death in an air crash on 12 th July 1990 of Mr Hughes Williams. Mr Williams was Mrs George's common law husband and the father of her five children, the first four born in respectively 1978, 1984, 1986 and 1987 and the last born on 28 th July 1990 after Mr Williams's death.
The title of the action identifies Mrs George, correctly, as "Administratrix of the Estate of Hughes Williams deceased", but the statement of claim, as endorsed on the writ and as subsequently amended, makes clear that she was also appointed tutrix of her five children on 7 th October 1992. The action is brought for the benefit both of the estate and, under the Fatal Accidents Acts, of herself and the five dependent children.
Mr Williams was a mechanic working for the respondents in St Lucia and his duties included servicing and repairing their aircraft. The statement of claim alleged and the defence served by the respondents admitted that Mr Williams and the pilot, Mr Allan Clavier, were killed in an air crash at Union Island involving the respondents' aircraft J6-Sl-W on 12 th July 1990. The claim alleged that Mr Williams was travelling on the aircraft in the course of his employment and that his death was caused by pilot negligence, and it went on to give some particulars relating to mishandling of the aircraft as it was about to land at Union Island. (These particulars can now be seen to have been derived from an accident investigation report dated 5 th September 1990 made by Mr E. A. Phillips, Director of Aviation and Inspector of Accidents).
The defence alleged that the aircraft had been serviced by Mr Williams and was airworthy for the flight; it alleged that Mr Williams was travelling "outside the scope of his employment, [and] was on a gratuitous ride which was never sanctioned or authorised by the Defendant"; and it further alleged that the respondents had "never authorised the Pilot to mishandle or carry out any activities which was [sic] not consistent with normal and safe landing procedure" and that "in the event such mishandling occurred, it was outside the scope of the Pilot's employment". Otherwise, the defence simply denied the allegations of negligence, and advanced no positive case to explain the crash.
The matter came first before d'Auvergne J on 2 nd May 1996, when Mr Larcher, representing the respondents, recorded that he had just been served with the "comprehensive" report to which the Board has already made reference, and that Mr Montplaisir QC, representing Mrs George, had informed him that it was intended to put this into evidence. Mr Montplaisir conceded that there should be an adjournment, and the matter went off to 13 th January 1997 when both Mrs George and Mr Williams' mother (Mrs Agatha Henry), who at that stage had also brought her own dependency action, gave evidence. The matter was again adjourned, firstly because of the absence of an original death certificate (although why this was necessary in the light of the defence is unclear) and, secondly, because the accident report "needs to be produced in court but [the respondents] wish … this to be done in a formal way" and were "not disposed to allow it to be put in evidence by consent". Notice was on 20 th January 1997 given on behalf of the appellant of intent to produce the report as documentary evidence at the adjourned hearing on 27 th January 1997. What happened is unclear, save that there was a long period of unexplained delay, at the end of which Mr Larcher sought and obtained a formal order dated 12 th July 1999 that the report "be served on the Defendant" (though what that added to the previous provision to him of a copy is unclear) and for a general exchange of documents on or before 20 th July 1999.
On 25 th September 2000 the trial resumed, with Mrs George being recalled and repeating and amplifying her previous evidence. Asked about her case on negligence, she said that, not having been there, she did not know what caused the aircraft to crash or what the pilot did but that "I say the pilot was negligent because I had a dead body back". Mr Ewart Hinkson, part owner and manager of the respondents, also gave evidence, saying inter alia that the aircraft had no need for any repairs when it left St Lucia and "had to be airworthy or it would not have left St Lucia airport for Union Island". He denied that he had authorised Mr Williams to fly, or that Mr Williams's employment required him to fly, on the aircraft, but accepted that Mr Williams did not like flying.
The matter was adjourned for written addresses to be submitted by 10 th October 2000, after which final oral submissions were made on 6 th November 2000. In his written address, under the heading "Negligence", Mr Montplaisir relied heavily on the accident report. However, in his oral submissions on 6 th November Mr Larcher submitted that there was no evidence of negligence, and, when Mr Montplaisir sought in reply to refer to the report, Mr Larcher objected that it "was never submitted as an exhibit", to which Mr Montplaisir submitted that it "was intended to be an exhibit". The matter was adjourned for this issue to be researched until 30 th November 2000. Mr Montplaisir then applied for leave for the report to be admitted. Mr Larcher successfully resisted the application on the ground that its admission would have required it to be tendered through someone who could have been cross-examined and the application was too late and prejudicial after all the evidence.
On that basis, though over a year later, d'Auvergne J gave judgment dismissing the action for want of "any evidence …. as to how the accident which caused the death of the Deceased, together with Pilot Clavier occurred". In paragraph 16 of her judgment, she succinctly summarised the way in which the claim was put:
"Learned Counsel submitted that on the admission of the Managing Director of the Defendant's Company, that pilot Clavier was in control of the plane and was carrying out the work he was employed to do; and that the accident occurred in the course of the Pilot's employment, therefore, the Defendant is liable for injury sustained by the Deceased and consequently has the responsibility to pay damages to the Deceased's estate and dependants."
Mrs George, by now acting in person, appealed and in her skeleton raised three issues: "1. Whether the death of Hughes Williams was caused by the negligence of the pilot and employee of [the respondents]. 2. Since the aircraft was airworthy when it took off at Vigie Airport St Lucia, whether the Doctrine RES IPSA LOQUITUR applies to his [sic] claim? 3. Whether the learned trial judge was right to refuse to admit the report of the Director of Civil Aviation, Eastern Caribbean State of [sic] Evidence Contrary to Article 32 of code of Civil Procedure". The Court of Appeal recited the course of events at trial relating to the report, concluded that "the report could not have been admitted into evidence at that eleventh hour" and in these circumstances saw no reason to fault the judge's reasoning, since "in the absence of the report there simply was no evidence of negligence to support the particulars contained in the pleadings". The Court of Appeal did not address the second issue raised in Mrs George's skeleton. Like the judge, it declined to award costs against Mrs George.
This is a sad case, and one in which Mrs George has reason to believe that the legal system has not operated either with the speed or with the efficacy that would be hoped. It was on any view regrettable that the position regarding the report was not brought to a head and clarified at an early stage of the trial. The Board has had some doubt whether the proper inference to be drawn from the course of procedural events at trial may not have been that the report was effectively accepted as part of...
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