COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
SCCivApp No. 307 of 2014
BETWEEN
MESSIER-DOWTY INC.
Appellant
AND
BAHAMASAIR HOLDINGS LIMITED
Respondent
BEFORE: The Honourable Mrs. Justice Allen, P
The Honourable Mr. Justice Conteh, JA
The Honourable Mr. Justice Isaacs, JA
APPEARANCES: Mr. Thomas Evans, QC with Mr. Mario Gray, Counsel for the
Appellant
Mrs. Krystal Rolle, Counsel for the Respondent
DATES: 13 April 2015; 6 October 2015; 14 December 2015
Civil appeal – Negligence – Contributory negligence – Approach of an appellate court – Interference with a trial judge’s findings of fact – Defect in chattel- Defect in quality On 18 January 2008 a Dash 8 aircraft of the respondent’s fleet departed New Providence destined for Governor’s Harbour, Eleuthera. Upon landing, almost immediately, the aircraft began to vibrate violently. As the aircraft continued down the runway the vibrations intensified making it difficult for the pilot to maintain control of the aircraft. Five to ten seconds thereafter the left main landing gear collapsed resulting in extensive damage to the aircraft.
In the court below. the responden plaintiff filed an action alleging that the left main landing gear collapsed as a result of the appellant’s negligence. The appeliant defendant denied the negligence alleged and claimed that any damage which occurred to the aircraft was caused by or contributed by the negligence of the responden plaintiff. As a result of the Chief Justice’s finding that the appeliant respondent was negligent this appeal was launched.
Held: appeal allowed. Decision of the Chief Justice set aside in its entirety; the appellant is awarded is awarded its costs both here and in the court below, to be taxed if not agreed. The Chief Justice did not take proper advantage of his having seen and heard the witnesses, and the matter is now at large for the appellate court; as it is only in those circumstances that an appellate court can interfere with findings of fact made by a lower court.
A manufacturer is entitled to assume that the end user will not so abuse or misuse his product that it wears down sooner than it ought to if maintained properly. Excessive wear does not translate into defective products. The failure of the respondent to install the new damper ring and upper bearing was not due to the negligence of the appellant in advising it of the new product but from the respondent’s decision to continue using a ring it ought to have known was no longer being produced since 1998. We conclude, therefore, the Chief Justice fell into error when he found the appellant was negligent in the manufacturing of the damper rings and he erred also in finding there was a “damper ring fragmentation problem” about which the appellant failed to notify the respondent. As such, the finding of the Chief Justice is unreasonable and cannot be supported by the evidence.
Beulah Rahming v The Mai/boat Company Ltd. SCCivApp No. 54 of 2015 considered Carroll et al v Fearon et af 20 January 1998 Smith Bernal Transcript considered D & F Estates Ltd. v Church Commissioners for Eng/and (1989) AC 177 applied Donoghue v Stevenson [1932) AC 562 applied Jerred & Others v T. Roddam Dent & Son Ltd. (Glen Line Ltd. Third Party) [1948)2 All ER 104 considered Murphy v Brentwood District Council [1991)1 AC 398 considered Watt v Thomas [1947)1 All ER 582 applied
JUDGMENT
Judgment delivered by the Honourable Mr. Justice Isaacs. JA:
1. The appellants have challenged the decision by Chief Justice Sir Michael Barnett, (as he then was) (the Chief Justice) that their negligence in the manufacturing of damper rings and failure to advise the respondent of same
2• led to the crash of the respondent’s aircraft. On 6 October 2015, at the close of Counsel’s submissions, we reserved our decision. We render it now.
The Parties
2. The appellant is a Canadian company described by the Office of the Commissioner of Lobbying of Canada as follows:
“Messier-Dowty Inc. (MDI) is the Canadian component of Messier-Bugatti-Dowty with core competencies pertaining to the design, testing, qualification, fabrication and product support of landing gear systems for the regional and business aircraft market segment, landing gear for military aircraft applications and the manufacture of landing gear components for large aircraft. MOl’s customer base expands all international borders, as airframe manufacturers from around the world have contracted MOl to provide landing gear and/or landing gear systems for their aircraft, and include Bombardier, Boeing, and Airbus to name a few.”
3. The respondent is based in the Commonwealth of The Bahamas; and is the national airline of The Bahamas. It operates scheduled services to destinations within The Bahamas and internationally. It had a fleet of aircraft which, at the material time, included two Dash 8-301 s (Dash 8) manufactured by Bombardier, a Canadian multinational aerospace and transportation company (Bombardier). The two Dash 8s were DHC-8_301, registration C6_BFN, Serial No. 159 (the aircraft) and DHC-8_301, registration C6_BFN, Serial No. 164 (the sister aircraft). The left main landing gear (the LMLG) of
the aircraft bore the Serial No. DCL3026/89/97.
Background
4. The aircraft was manufactured by Bombardier in 1989 and purchased by the respondent in 1990. It thereafter was engaged as one of the respondent’s fleet of airplanes. This fact was known to Bombardier; and ought to have been known by the appellant because they serviced the landing gear of the aircraft. The importance of such knowledge will emerge later in this judgment.
5. On 18 January 2008 the aircraft departed New Providence for a flight to Governor’s Harbour, Eleuthera. The takeoff and flight were uneventful. When the aircraft landed on the runway at the Governor’s Harbour Airport, almost immediately it began to vibrate violently. As the aircraft continued down the runway the vibrations increased in intensity making it difficult for the pilot to maintain directional control of the aircraft. About five to ten seconds after landing the LMLG collapsed, causing the aircraft’s fuselage, the number one propeller and left wingtip to come into contact with the ground for approximately 150 feet before the aircraft came to a stop. This resulted in extensive damage to the aircraft.
6. An investigation into the cause of the crash was undertaken by a number of entities including Charles Taylor Aviation (CTA), a company which provides investigative, adjusting and surveying services in all areas pertaining to aviation. eTA was retained by the respondent or its insurers. The Department of Civil Aviation of The Bahamas (DCAB) carried out an investigation into the incident and issued a report on 3 September 2007. Also participating in the investigative exercise were representatives of the appellant and Bombardier. In the DCAB report styled as a “final report” dated 9 September 2007 four possible causes for the crash were advanced. They were:
I. Under serviced shock strut (low hydraulic fluid volume);
ii. A broken damper ring;
iii. No damper ring; and
IV. Disengaged damper ring
7. There does not seem to be any challenge of the possible causes for the incident identified by the Flight Inspectorate but the respondent contests the conclusions that they did not perform the May 2006 repairs in accordance with industry standards and that their maintenance programme was not up to industry standards.
Proceedings in the Supreme Court
8. In the court below the respondent – as plaintiff – filed a writ; and on 20 March 2012 filed a statement of claim alleging that the collapse of the LMLG resulted from the appellant’s negligence. Paragraphs 44 and 45 of that Statement of Claim are set out below:
1144….The nature of the case against the Defendants is as follows:
i. Both the First Defendant and the Second Defendant knew that the Aircraft which was fitted with the landing gear manufactured by the First Defendant was being used by the Plaintiff for its commercial passenger airline operations in the (sic) Bahamas.
ii. The First Defendant and the Second Defendant as the manufacturers of the landing gear and the
Aircraft respectively owed a duty of care to the Plaintiff, the ultimate user of the Aircraft and the landing gear.
iii. The First Defendant and the Second Defendant published their Component Maintenance Manual and Maintenance Manual respectively, which contained instructions and recommendations for the usage of the Aircraft, its landing gear, and its constituent parts, and both the First and Second Defendant knew, or ought to have known, that the Plaintiff relied upon the instructions and recommendations contained in the Maintenance Manual and Component Maintenance Manual.
iv. Both the First Defendant and the Second Defendant knew or ought to have known that a lack of reasonable care in the manufacture of the Aircraft and its landing gear would likely result in injury to the Plaintiff.
v. That the First Defendant performed the overhaul of the landing gear in 199B and knew that the landing gear was fitted with the Existing Upper Bearing and Damper Ring.
vi. Both the First and Second Defendant knew or ought to have known that there had been at least six (6) prior incidents involving overextension of the main landing gear shock strut on other DHC 8
Model aircraft and landing gear and that these incidents had been disclosed in the Transport Canada Airworthiness Directive CF-2006-14.
vii. Both the First Defendant knew or ought to have known that investigations into these six (6)
5• prior incidents had revealed among other things. damage to the upper bearing and damper ring in
the landing gear of the involved aircrafts.
viii. Both the First Defendant knew or ought to have known that that overextension of the landing
gear shock strut, loss of shock absorption and landing gear collapse could result from a damaged damper ring and upper bearing such that any loss resulting from such damage was foreseeable and ought to have been foreseen by them.
ix. Both the First Defendant knew or ought to have known that the collapse of the landing gear could result in damage to the gear itself and to the aircraft such that any such loss was foreseeable and ought to have been foreseen by them.
x. Both the First Defendant knew or ought to have known that the landing gear on the Aircraft was
fitted with an upper bearing and damper ring which was defective and/or had latent defects and/or were incapable of tolerating the usage which had been recommended by the Defendants.
xi. Given the Defendants’ knowledge of the prior incidents disclosed in Transport Canada Airworthiness Directive CF-2006-14, among other prior similar incidents, and their knowledge of the results of the respective investigations into each, the First Defendant and the Second Defendant each had independent duties to take some or more effective preventative measures or steps as it related to the continued use of the Existing Upper Bearing and Damper Ring in landing gear in the Aircraft.
xii. Both the First Defendant knew or ought to have known that if they became aware of a defect in the landing gear and failed to take sufficient steps to remedy the defect or to warn the Plaintiff of the defect that this would likely result in injury to the Plaintiff.
xiii. The duty of care that the Defendants owed to the Plaintiff as, respectively, the manufacture or holder of the type certificate for the Aircraft and as the manufacturer of the landing gear fitted to the Aircraft, required them to take more preventative and proactive steps regarding the Existing Upper Bearing and Damper Ring than was prescribed by Transport Canada’s Airworthiness Directive CF·2006-14. The Defendants and each of them, their servants and/or agents were therefore negligent and/or breached the duty of care owed to the Plaintiff by:
i. Failing to take any or any adequate care in the design, development or manufacture of the Existing Upper Bearing and Damper Ring.
Ii. Causing and/or allowing the defective and dangerous Existing Upper Bearing and Damper Ring to be used in the Aircraft.
iii. Failing to adequately or at all to inspect, check or test the Existing Upper Bearing and Damper Ring before dispatching the same.
iv. Failing to have in force any or any adequate system of quality control before dispatching the Existing Upper Bearing and Damper Ring.
v. Failing to carry out sufficient hardness or related testing to ascertain the defect in and the tolerances of the Existing Upper Bearing and Damper Ring having regard to the known expected use of the Aircraft and the recommended maintenance.
vi. Failing to make any adjustments or alterations to the maintenance procedures as contained in their Maintenance Manual and the Component
7 Maintenance Manual to take into account the defect andlor lack of tolerance of the Existing Upper Bearing and Damper Ring.
vii. Failing to issue any Service Bulletins and/to Alert Service Bulletins to take into account the defect and/or lack of tolerance of the Existing Upper Bearing and Damper Ring.
viii. Failing to make recommendation for the recall or immediate replacement of the Existing Upper
Bearing and Damper Ring an/or to otherwise warn the Plaintiff of the defect.
45. Further, the Plaintiff relies upon the doctrine of res ipsa loquitur and avers that that collapse of the Aircraft’s left main landing gear would not have occurred without the negligence of the Defendants.”
9. The appellant filed a Defence in answer to the respondent’s claim on 11 April 2012; and on 13 November 2013 filed an amended Defence which, inter alia, denied the allegation of negligence and introduced a claim of contributory negligence. Paragraph 10 is set out below:
“10. The Defendant denies that their servants and or agents were negligent as alleged in paragraph 44 of the Statement of claim or at all or that the collapse of the Aircrafts left main landing gear was a result from any negligence on the part of the First Defendant their servants and or agents and the Plaintiff is required to prove the matter stated herein. Further, the Defendant avers that any damage which may have been caused to the aircraft in question was caused by, our contributed to by, the negligence of the Plaintiff and or its agents or servants.
Particulars of Contributory Negligence
i) The Plaintiff and or its agents or servants failed to maintain and or repair the aircraft, prior to the
incident, which allowed the landing gear to be exposed to a possible and eventual failure and collapse.
8. ii) The Plaintiff and or its agents or servants failed, refused or neglected properly maintain the appropriate proficiency levels and documentation for the qualifications of its maintenance personnel.
iii) The Plaintiff through its agents or servants failed, refused or neglected to properly service and maintain adequate and proper hydraulic fluid levels of the landing gear of the aircraft.
iv) The Plaintiff through its agents or servants failed to carry out the replacement of a shock strut cylinder, on the aircraft, in accordance with the aircraft Component Maintenance Manual (CMM) and industry standards. Also by failing, refusing or neglecting to check and cross check the work that was supposedly carried out.
v) The Plaintiff and its servants and/or agents failed, refused or neglected to carry out and or document the mandatory piston extension checks and examination as soon as possible after 5 cycles or landings, after the replacement of the shock strut cylinder.
vi) The Plaintiff and its servants and/or agents failed, refused or neglected to properly investigate and inspect the claim in accordance with the CMM, of one of the pilots who flew and operated the aircraft 12 days prior to the incident, when he indicated that upon landing the aircraft, he noted heavy vibrations and believed it to be as a result of the landing gear torque links.
vii) The Plaintiff and its servants and/or agents failed, refused or neglected to inspect all components of the landing gear in accordance with the CMM after a tire blew out on the aircraft, 2 days prior to the incident.
viii) In the premises, any damage sustained to the aircraft in question was caused and or materially
9. contributed to by the plaintiff and or its servants or agents, failure, refusal, or neglect to properly service or maintain the said aircraft.”
10. The suit had initially included Bombardier as the second defendant but the respondent, by consent, withdrew their claim against Bombardier on or about 10 September 2013. We reproduce the presentation of Counsel, Mrs. Rolle, as she outlined the respondent’s case against the appellant. Beginning at page 1748. line 14 of vol. 5 of the record of appeal she says: “MS. ROLLE: As the pleadings indicate, my Lord, what we are dealing with here is a claim by the plaintiff in which it alleges that certain components of the landing gear of the subject aircraft are defective. Now the nature of the defect, my Lord, as the evidence comes out would be made clearer to His Lordship. What is material, my Lord, is the fact that the Plaintiff asserts that the relevant parts, the parts we say – –
THE COURT: The damper ring.
MS. ROLLE: The damper ring and the upper bearing that contributed to the collapse that transpired.
THE COURT: Do I take it that the damper ring and the upper bearing were manufactured by the defendant?
MS. ROLLE: Correct.
THE COURT: And you’re saying it was a defective manufacture?
MS. ROLLE: We say, my Lord, Ihal Ihere was defecl insofar as the manner in which the old design was manufactured. And the reason why I make that distinction, my Lord, that distinction is going to be maleriallo the claim. The defendanl had – –
THE COURT: Allhe time of Ihe lasl …
MS. ROLLE: Service.
THE COURT: Service, yes, where I Ihink a new – the damper ring was replaced.
MS. ROLLE: It was not replaced. The gear was stripped to carry out certain repairs and the gear was serviced. That would have been on the 191h of May 2006.
THE COURT: And the old design damper ring was put back.
MS. ROLLE: Yes.
THE COURT: Notwithstanding, you say, that they knew or ought to have known that it was defective?
MS. ROLLE: Correct. And the reason why it was put back, my Lord. is because it was not open to the plaintiff to utilize the new design because the new design had not been made available to them by the defendant even though it had been manufactured and was available for other models.
THE COURT: I thought you were saying that you did not know though that the old design was defective?
MS. ROLLE: We did not know that the old design was defective at that point.
THE COURT: At that point.
MS. ROLLE: Yes. We know now.
THE COURT: Because you discovered that when —
MS. ROLLE: Subsequent to the collapse.
THE COURT: — transport Canada gave its airworthiness directive or something.
MS. ROLLE: Well, my Lord, even when Transport Canada gave their airworthiness directive in 2006, the nature and content of that directive was still not sufficient to alert us to the problems that we ultimately encountered with the damper ring and the upper bearing. That airworthiness directive only referenced over centre conditions. And it indicated that on the next overhaul you should utilize these new parts. That would have been when we would have been made aware of the existence of the new parts. That’s number one.
THE COURT: Is it your case that they ought to have told you about the defective design earlier?
MS. ROLLE: They ought to have told us about the defective design, number one; and given that they had recognized that there was a defective design and they had remedied that design, they should have made us aware of the new parts at the time when they made the redesign. and they should have made them applicable to the 301 series. So we are saying that the new parts, not only were they available, not only had that redesign transpired. they made them available for the other series which would be the 311 ‘s, but they did not make them available for the 301 series which is the subject aircraft. So by the time we got to the point where we were doing service in 2006. not being aware, number one, of the existence of the availability or the applicability of this new design for the 301 given the fact that the defendant had not made them available for that series. we continued with the use of old design. And it is the old design that we say is defective. And we say that regardless of what is asserted by the defendant, had we had available to us on the 19th May the new design-
THE COURT: Of May what?
MS. ROLLE: ’06, 2006. The collapse, of course, would have been the 20’h of April, 2007, the following year. But we say the redesign, the new components. were available as of August 1997. some ten years prior. And had we had them in May of ’06 when we did our service. we would have utilized them. And our evidence, we say, would actually demonstrate that this incident would not have occurred.” [Emphasis added)
11. Following the trial where witnesses were called and examined and witness statements stood as evidence the Chief Justice delivered a written judgment on 29 October 2014 wherein he concluded that the appellant was negligent in the manufacture and design of its damper ring. He adjudged that:
“(i) The Defendant Messier-Dowty Inc do pay to the Plaintiff Bahamasair Holdings Limited damages for negligence in the amount of U5$3,484,459.00.
(ii) That the Defendant Messier-Dowty Inc do pay to the Plaintiff Bahamasair Holdings Limited the costs of and occasioned by this action to be taxed if not agreed such costs being hereby certified fit for two (2) Counsel.”
12. The appellant filed a Notice of Appeal Motion on 1 December 2014 seeking Orders that the decision of the Chief Justice be set aside in its entirety, and that included the award of costs. They also asked for their costs.
13. The appellant filed numerous grounds of appeal and went so far as to amend those grounds to add two additional grounds when the hearing of the appeal was about to begin. The amended grounds are set out below:
“1. lhat the learned Chief Justice erred aod misdirected himself in law, in failing to the full legaLelte.cLoUb.e,
und.i:; QJJtten .’its wi
e ad 9.9.8. he ie.s
experienced by some OR-erators with tbJLoJd design of thlUDainjilD.ding ge.ar whe.DJlO1..pLQ~ services (§iG1
~a[ticular he failed to consider the a . licabiljty of the principle that “If a dangerous defect in a chattel ;§ discoyere!l..before it ~us.e.s..anY–P.eLs.onaLIin.iUIYIor
d.amage to prop,eJ:ly, because the dange’ n.o.w nd the cballel cannot safely be used unless the defect is repairecLthe defect becomes merely a defect in qualitY; Murphy y Brentwood District Council.
2. Ihe..J.eame.d-Cbiel,Justice erre!ljn fact amlinJaw in conclu!ling in parngraplL2.9….oLtb.U.u.dgment tbat “tbere
C_a.nJJ..U1Q..d.Q.ubt that Messier had an obligation to warn !he ~ioliff of.!be danger tbal Ibe !lesign of,tbe upper
bearing and, damper rjog may nQt be robusLeJ1O..USh to,
·th.s.tao.d Ib.e e.c.o.mme.rrtte
bearing and damper ring. It was..ins_ulfi.clent t~p1Y.
advise them oLttle existence of the modifjgd-=bearing
and ringJhey had an o,bljgatjon to adyise them of th~
dangers of the risk of using the existing….ringJp.rJh.e,
recommended cycle of us.aa.e,” Haying regard to th@
p.rinc.iple accepted by the Court of Appeal in England in
ttle-c_as_e of !:joJme~ v Ashford that “These precautions
b_e _ulfilte_ e_DttUs_tin -Uo c_om .etenLp-eL~on
easonabl ~_of its…dang,eLo-lts…cnat,,-cier, if
that danger is nQt obvious” and haYing further regard to
the foregoing facts namely; since 1998 Bombardier the
manuIak1urer of the aircraft ha.d issued All OAAtJlto ‘
M~~-ge No, 218 warning all users of the situation with
I
,Qperator’s MessaSie No, 794 on July 25, and finally the
ItaM _0 CJIJ1O! irwoLthine_s_ . e_ciOO Q
0_0_6 aD. C_Qns_e_ .uenc_e ttle atte_ dke.c.tiYe
EQrnhardier advised that Task Card No 3210-15 which
introduced a regime to correct the problem wjth seeping
:!,a. The Learned judge erred andlor was wrong in finding that the creation and development of the “new design” of the upper bearing and damper ring were as a result of the “old design” being inadequate for the recommended cycles.
2~. The Learned judge erred andloe was wrong in finding that the “old design” of the upper bearing and damper ring were inadequate when there was no evidence of the “old design” being defective.
3~. The Learned judge erred and/or was wrong in law when he found that the Appellants were negligent, and breached its duty of care to the Respondents by failing to warn the Respondents of the inadequacy of the upper bearing and damper ring made from the “old design.”
4- §. The Learned judge erred and/or was wrong in finding that the new design was not applicable and available for the subject aircraft at the time that the strut cylinder was replaced in May 2006_
5 The Learned judge failed to appreciate andlor have any or any proper regard to the fact that the Respondent, failed to maintain complete and proper records which were necessary for the proper maintenance and servicing of the subject aircraft and also the impact of the missing/partial records on the appellants ability to prove comparative fault.
6~. The Learned judge failed to appreciate andlor have any or any proper regard to the fact that the Respondent, failed to retain the service manuals it used and were applicable at the time of the incident involving the subject aircraft. This included inter alia the relevant Maintenance Control Manual.
1- JI. The Learned judge failed to appreciate andlor have any or any proper regard to the fact that the Respondent failed to ensure that its personnel who carried out service and work on the subject aircraft were duly certified to carry out such service and work.
8 O. The Learned judge failed to appreciate andlor have any or any proper regard to the effect of the Transport Canada, Airworthiness Directive which became effective on the 21″ July, 2006.
9 .11. The Learned judge failed to appreciate andlor have any or any proper regard to the estimated value of the aircraft submitted to the court on behalf of the Appellant.
.w 1~. The learned JUdge failed to appreciate and/or have any or any proper regard to the fact that the Respondent’s claim was based on subrogation but no evidence of the same was presented at trial to show how much was paid by insurers.
15• :J.-1. ~. The said ruling in all the circumstances was perverse and cannot be supported by the evidence.”
14. We opine that the appeal may be disposed of within a narrow compass. Before entering into the pith and substance of the appeal we wish to express our disquiet at the non-production of the Bahamasair Maintenance Control Manual (MCM) used by the respondent’s workers during the replacement of the cylinder on 19 May 2006. This document would have been crucial in assisting a tribunal to determine whether or not the respondent was carrying out the requisite maintenance properly. The appellant was unduly hamstrung by the failure of the respondent to produce the MCM and ultimately, an omission which may have proven fatal to their counterclaim. The MCM should have been in the possession of the respondent and it should have been produced during discovery. Its non-production has not been adequately explained. Still, its absence is not crucial to our deliberations.
15. The appellant took issue with the Chief Justice’s statement that “many facts are not in dispute”, but then goes on to outline a great many facts which are agreed by the parties. We conclude the parties agree as to what comprises the landing gear of the aircraft, the makeup of the shock strut and the explanation of the phrase “over-center”. What is disputed is the cause of the collapse of the LMLG, to wit whether it was due to a defective damper ring or an absent damper ring or poor maintenance or a combination of those factors.
16. Before going further it may be helpful to provide something of a glossary for the terms which will feature prominently throughout this decision. They are as follows:
“a) The Airworthiness Directive: “An airworthiness directive (commonly abbreviated as AD) is a notification to owners and operators of certified aircraft that a known safety deficiency with a particular model of aircraft, engine, avionics or other system exists and must be corrected. ADs usually result from service difficulty reporting by operators or from the results of aircraft accident investigations. They are issued either by the national civil aviation authority of the country of aircraft manufacture or of aircraft registration.” (Wikipedia).
b) Task Card: A task card is information being sent from the other technical department stating a certain job that we should do because there is a time limit on it. (per Winslow Moss at page 1889 of 12 November 2013 transcript).
c) The Landing Gear: The landing gear is the part of the aircraft which supports its weight and provides mobility when the aircraft is on the ground and not in flight. The landing gear is comprised of the wheels as well as the shock strut assembly.
d) The Shock Strut: The shock strut is made up of two cylinders commonly called the cylinder and the piston. The shock strut has a component of its own called the torque link. This consists of two sections which are joined together by a hinge which creates a “V” shape. The torque link is attached to the cylinder and stabilises the wheel.
e) The Damper Ring aka Rebound Ring: The damper ring is located at the top of the cylinder and works with the upper bearing as a unit. The ring is as its name suggests a spherical device. It sits in a groove on the upper bearing. It is kept in place by lugs aka “ears or “scallops”. The damper ring has a series of metering holes through which hydraulic fluid flows.” The damper ring installed in the aircraft at the time was made of aluminum. However, steel was used as a replacement for the aluminum in a later manufacturing process.
f) The Upper Bearing: The lower portion of the upper bearing is connected to the piston. The lower end of the upper bearing makes contact with the seal carrier inside the cylinder. The contact between the upper bearing and the seal carrier provides the mechanical stop which retains the piston in the cylinder when the aircraft is in flight.
g) The Cylinder: The cylinder contains hydraulic fluid and pressurised nitrogen which provides a cushioning effect on the piston. This prevents the upper bearing and the seal carrier from contacting each other with too much force
h) The Piston: The piston assists in reducing the rate of shock experienced in the landing gear of the aircraft Shock absorption is achieved through the travel of the pressurised piston in and out of the cylinder.
i) The Seal Carrier: The seal carrier is located just below the upper bearing and is in contact between the upper bearing and the damper ring which provide the mechanical stop to keep the piston in the cylinder.
j) Flight Cycle: A flight cycle is comprised of a taking off and landing of an aircraft. That equals one flight cycle.
k) The Damper System: This system comprises of the damper ring and the upper bearing. They control the flow of hydraulic fluid during the extension and retraction of the piston in the cylinder and soften the bumps of a landing much like the shock absorbers in a car while operating on a road. The movement of the hydraulic fluid about the damper ring combined with the nitrogen pressure inside the cylinder reduces the force of the impact between the upper bearing and the seal carrier as the piston moves outward into an uncompressed position.
If there is insufficient hydraulic fluid in the cylinder then the upper bearing and the seal carrier would come together with a greater degree of force on the outstroke and cause damage to those two components. Over time this will cause excessive wear to the components and could lead to an over centre condition on the main landing gear (the MLG).
I) Over Center: Over center refers to a condition where the torque link fUlly extends and then folds the wrong way ultimately resting on the piston. This results in a landing where there is no shock absorption and as a consequence, the full weight of the aircraft is borne by the torque link which cannot support this weight. Thus, the landing gear may fail and collapse.
As indicated above, both parties agree the collapse of the aircraft resulted from an over center condition.”
The Appeal
17. The appellant invited us to enter into consideration of the facts of the case contrary to the usual approach of an appellate court not to interfere with a trial jUdge’s findings of facts. Mr. Evans, QC submitted that the Chief Justice had failed to utilize the opportunity he had to hear and observe the witnesses as they gave their evidence and thereby arrived at wrong conclusions on the facts. He referred us to the dictum of Lord Thankerton in Watt v. Thomas [1947]1 All ER 582 at 587 where the learned Judge stated:
“The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence. may be satisfied that the court has not taken advantage of his having seen and heard the witness, and the matter will then become at large for the appellate court.”
18. As Conteh, JA stated recently in Beulah Rahming v The Mailboat Company
Limited SCCivApp & CAIS No. 54 of 2015: “…as an appellate Court, we do not easily or readily interfere with the findings of facts of a trial judge, unless he went plainly wrong or arrived at a conclusion not warranted by the facts and the applicable law.” At paragraph 56 of Rahming supra Conteh, JA referred to: “…Beacon Insurance Company ltd v. Maharaj Bookstore ltd. [2014] UKPC 21; 84 WIR (2014), 478, where the Privy Council stated generally for guidance on the role of an appellate court and its interference with findings of facts by judge at first instance” and Lord Thankerton’s dicta in Watt v. Thomas supra.
19. We have taken up the appellant’s invitation to consider the facts as they emerged during the trial because we find that the Chief Justice “has not taken proper advantage of his having seen and heard the witnesses, and the matter [is now] at large for the appellate court”.
20. Mr. Winslow Moss was cross-examined by Mr. Gray, counsel for the then defendant now appellant on the contents of his witness statement. Mr. Moss had made reference to task card 3210/15 which was attached to the Transport Canada Airworthiness Directive No. CF-2006-14 (TCAD14) and had exhibited the task card as “WBM 10″. Mr. Moss could not explain why the task card he said should be complied with was blank (pg. 1889 at line 13). It oU9ht to have had on it information such as, e.g., the names of the mechanic and inspector and the date. The description on the task card was: ‘Service the main landing gear shock struts”.
21. TCAD14 was referred to by Mr. Moss in a number of paragraphs in his witness statement, to wit, paragraphs 47 through 54 as if the work he said he did in May 2006 was guided by TCAD14 which was issued in June 2006. The Chief Justice asked Mr. Moss, “Why were you referring to the Airworthiness Directive that took place a month later?” Mr. Moss did not respond. The Chief Justice then said, “If you can’t explain it.” Mr. Moss responded, “No”. The Chief Justice then goes on to create an explanation: “I know that, unfortunately, lawyers prepare witness statements, and we tend, unfortunately, to sign things because the lawyers tell us to do so.” (p. 1896, lines 18 to 25).
22. With respect, this is not a proper inference for the Chief Justice to draw. Witness statements are just that, statements emanating from witnesses as to their individual recollections of the events. They are prepared based on the information provided by the witness. Done any other way would amount in our view to suborning perjury. In the absence of an explanation for the apparent discrepancy by Mr. Moss, the Chief Justice was left with the state of the evidence being Mr. Moss was aware of TCAD14 and performed the work pursuant to task card 3210/15 but did not change the upper bearing and damper ring as mandated by TCAD14. Further, the extension check of the MLG shock strut was to have been done as soon as possible after five landings. There was no evidence that was done.
23. In those circumstances it was not open for the Chief Justice to conclude the appellant had failed to give the respondent notice of the damper ring problem.
Ground 3 and 4
24. It is convenient to address grounds 3 and 4 together. The Chief Justice found at paragraph11 of his decision: “11. Although that modification was made to the upper bearing and damper ring, the Defendant did not advise the plaintiff or any other user of the landing gear similar to that used in the Aircraft that the upper bearing and damper ring should be changed.”
25. There was evidence adduced through Tom Fischer that the old damper rings were unchanged in design since the initial design in the early 1980s. This would have been until the modifications to the design around 1998. As of February 2013 there were 578 Dash 8 aircraft in service with 96 operators.
All of the aircraft were manufactured with the same basic design of the appellant’s landing gear.
26. Mr. Fischer’s evidence revealed that this fleet of aircraft had by February 2013 accumulated 21.646.889 hours of operation and 26,180,995 flight cycles. The fleet average per aircraft at that time was 6.48 cycles per day. With two MLGs per aircraft as of February 2013 there had been 52,361,990 MLG landing and takeoff cycles. Mr. Fischer opined that the long history of this design with a total of six over center conditions before the incident and the limited number of operators reporting or experiencing problems belies any suggestion of a design flaw in the landing gear or that over center was a common occurrence.
27. It is readily accepted that there was a change in design in 1998 but does that translate into a flaw in the old design? In cross-examination Mr. Fischer was asked:
“Q. I am dealing specifically now with the reasons for the modifications. And my suggestion to you now is, having encountered specifically the Air Ontario scenario, and recognizing that even with sufficient
hydraulic fluid, you were getting an overextension situation as a result of the damage to the upper bearing and the damage to the damper ring. You modified those parts with a view to providing better support for that damper ring, is that correct?
A. Correct.”
28. The Chief Justice then sought further clarification:
“THE COURT: The reason you had to improve on it was you found as a result of those instances that there was a problem. That it didn’t do what you wanted it to do. I mean, that’s what I read from the Air Ontario report. As a result of that, these were the production changes that you undertook as a result of what you found.
THE WITNESS: Yes, my Lord.” [Emphasis added)
29. We opine that the appellant merely sought to improve on an already solid design. Expending the effort to make your product better does not mean that the original is bad. An example of that fallacy in thinking is the introduction of a new Coca Cola recipe. The resulting negative backlash to the new product led to the re-introduction of Classic Coke, the original formula, which consumers seemed to think was better than the “improved” recipe.
30. We agree with the appellant’s assertion that the defectiveness of the old damper ring ought not to be determined by the improved robustness of the new design. Our view would be quite different had there been evidence of numerous failures in the damper rings due to a poor manufacturing process or design. However, such failures as there may have been were not said to have been due to either cause directly. The incidents mentioned during the trial save for the Air Ontario incident, were all said to be caused by poor maintenance which led to the failure of the components.
31. In giving credence to the existence of a “damper ring fragmentation problem” the Chief Justice appears to have relieved the respondent of its duty to prove there was a defect in the manufacturing process and to rely instead on a principle akin to res ipsa loquitur. Lord Macmillan enunciated his view on the duty of care owed to another in negligence in Donoghue v Stevenson [1932] AC 562, “the snail in the ginger beer case”. He opined at page 622: “The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues, that the defect was occasioned by the carelessness of that party, and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maximum res ipsa loquitur. Negligence must be both averred and proved.” “In the premises, we are unable to agree with the finding of the Chief Justice that the old design was inadequate.
Grounds 5, 8 and 9
32. Grounds 5, 8 and 9 do not relate to the cause of the crash directly. A failure to keep records does not mean a party has not adequately maintained a piece of equipment. Further, merely because a person lacks “paper” qualifications such as degrees, diplomas or certificates does not mean he is incapable of properly effecting repairs to or maintaining an aircraft. The evidence adduced at the trial does not support the allegations. Without more, these grounds must fail.
Failure to Give Notice or Adequate Notice
33. The Chief Justice found at paragraph 15 of his jUdgment that:
“15. It should be noted that at no time prior to the Airworthiness Directive did the Defendant make any change or amendment to its CMM which mandated or recommended that the Plaintiff or any other user of the Dahs-8s immediately replace (sic) the Old Upper Bearing and Damper Ring with the New Upper Bearing and Damper Ring. The Plaintiff was not notified or advised by the Defendant of the specific reason for its decision to redesign the Upper Bearing and Damper Ring. Prior to the accident the Plaintiff had received no warning from the Defendant about the encountered problem of over extension of the shock strut and damage to the upper bearing and seal carrier. Nor did it issue a Service Bulletin or an Alert Service Bulletin addressing the problem of over extension of the shock strut or addressing the problem of damage to the upper bearing and seal carrier. The Plaintiff did not implement any additional maintenance inspections or procedures to determine the potential existence of the referenced damage to the upper bearing or seal carrier nor did it warn the Plaintiff of the potential for such damage.”
34. He concluded at paragraph 29:
“29. In my judgment there can be no doubt that Messier had an obligation to warn the Plaintiff of the danger that the design of the upper bearing and damper ring may not be robust enough to withstand the recommended usage of that existing bearing and ring. It was insufficient to simply advise them of the existence of the modified bearing and ring. They had an obligation to advise them of the dangers and risk of using the existing ring for the recommended cycles of usage.”
35. The evidence of Mr. Fischer is illuminating in as much as he admitted that the damper ring manufacturing process was changed since 1998 due to the fragmentation problem but at no time was the particular issue brought to the attention of the respondent directly, notwithstanding the relationship between the respondent and the appellant.
36. Nevertheless, on 17 December 1998 Bombardier Aerospace issued All Operators’ Message (AOM) No. 518. This was to bring to the attention of all operators the discoveries made by the appellant following the Air Ontario incident. The “discoveries” were made while investigating the report of a landing gear failure made in the Air Ontario incident. Significantly, submitted Mrs. Rolle, there was no suggestion of insufficient hydraulic fluid in this instance yet it was found that the damper ring had fragmented. Subsequently, Bombardier issued an All Operators’ Message No. 794 on 25 July 2005 as a
follow up to No. 518.
37. It is accepted that No 518 did not appertain to “the damper ring fragmentation problem” nor was it in relation to the 301 Dash 8s. Thus, there can be no criticism of the Chief Justice for concluding that this Message could not amount to notice to the respondent of such problem. However, the Message while directed at DHC Model 311, 314 and 315, sought to address a problem discovered while performing overhaul and refurbishment tasks on the series 300’s MLG. The respondent’s fleet includes the 301 and 311 models hence it would have been the recipient of the message which advised:
UModsum 8Q100428 has been issued to introduce an improved upper bearing and new damper ring. This Modsum may be incorporated as a product improvement during overhaul at operator request.”
38. Bombardier issued All Operators’ Message No 794 relative to the over center incidents and addressed how maintenance deficiencies, e.g., improper servicing with insufficient hydraulic fluid, could lead to inadequate damping and an over center condition. The respondent quite correctly indicates this Message does not warn or advise of “the damper ring fragmentation problem”.
39. Service Bulletin 8-32-144 was issued by Bombardier before the incident. This Bulletin specifically directed that in re-assembling the MLG the upper bearing was to be examined for wear and tear and measurements taken to determine whether the diameter exceeded the minimum of 117.03mm; and if the examination revealed wear and tear or the measurement disclosed a diameter below the minimum then a new upper bearing and damper ring must be installed.
40. Mr. Winslow Moss was a contract employee of the respondent in May 2006. He had worked for some thirty-five years with the respondent. He testified that he had done all of the work on the subject aircraft on 1g May 2006 to install a new cylinder and while doing so, he had visually inspected the damper ring and upper bearing before re-installing them. Significantly, he did not testify to taking any measurements. It is significant because the respondent’s own expert, Mr. David Hall gave evidence to the effect that cracks in the damper ring may not be visible to the naked eye. It is also significant because by failing to follow Service Bulletin 8-32-144 faithfully, it lends some credence to the appellant’s assertion that the respondent’s poor maintenance caused the LMLG’s collapse.
41. In cross-examination Mr. Moss stated that in the sixteen years he worked with the Dash 8s he had never encountered damage to the upper bearing and the damper ring as he had seen on those shown to him in court which – it is accepted – came from the aircraft. It is unknown how many times the landing gear was inspected internally by the respondent. Although there was mention made of “daily inspections”, the extent of those inspections was limited to visual external inspections. It seems plain, however, that the respondent ought to have been aware of the contents and warnings contained in the All Operators’ Messages and the Service Bulletin 8-32-144 by the time Mr. Moss performed the work on the subject aircraft in May 2006.
42. The fact that he did not personally know of the communications does not mean the respondent’s knowledge of same may not be imputed to their personnel. These communications were how manufacturers of component parts of an aircraft passed on information relating to matters pertaining to
those parts to the airplane manufacturer; who in turn would notify purchasers or operators of the aircraft. In fact Mr. Moss knew of the new damper rings and of their applicability to the MLG at the time of his repairs. The question remains nevertheless, were the alerts sufficient notice of “the damper ring fragmentation problem”?
43. Mr. Moss testified that when he perfonmed the work on the cylinder in the LMLG he inspected the damper ring and, not seeing anything wrong with it, re-installed it. At the time he was aware of the existence of the newer version of the damper ring; but as he put it, it’s a stores issue. Mr. Cooper also testified that he knew of the newer damper rings at the time the repairs were done by Mr. Moss. Yet, neither man saw it necessary to use the newer damper rings.
44. This is of some moment because Mr. Aaron J. Jones, P.E., Vice President, Transportation and Materials Engineering at ITC Experts submitted a report which offered the conclusion at 4.0 on page 17 of his report: “As discussed above, the redesigned bearing and damper ring provide significantly more support for the damper ring and resistance to cracking of the bearing surface that contacts the seal carrier during extension of the strut. Had this component been approved for use on the subject aircraft at the time the strut cylinder was replaced in May of 2006, the accident would have beenavoided.”
45. Mr. Jones’ conclusion is ironic in view of the fact that Mr. Cooper testified initially that the redesigned damper rings could not be fitted on the aircraft as they were only “fitable” in the 311 model of the Dash 8s (See pages 1797-8 of the transcripts for 11 November 2013). He was constrained to retract that statement when he was shown a document – an IPC – dated 10 November 2005 that indicated the redesigned damper rings could be installed on the 301 model such as the aircraft. The inference therefore is that when the cylinder was replaced in May 2006 the respondent knew the new damper ring was available and could be installed in the LMLG.
46. The Airworthiness directive in question was dated June 2006 and issued one month after the repairs done by Mr. Moss to the cylinder of the LMLG. A clue as to why the old damper rings were not replaced in June 2006 or prior to April 2007, may be found in the responses of Mr. Cooper to questions posed by the Chief Justice. The questions and answers starting at line 18, page 1798 of the transcripts to line 14, page 1801 are set out below:
THE COURT: was there anything in the airworthiness directive that came about a month later – it was about a month later, wasn’t it?
THE WITNESS: Yes, sir.
THE COURT: That indicated that for works previously done, or something done the month before.
THE WITNESS: Right.
THE COURT: that the new ring should be fitted to that?
THE WITNESS: Yes, sir. What they said was that at the first opportunity that you take that gear apart then you could fit this new bearing and ring to —
THE COURT: You could or should?
THE WITNESS: You will have to.
THE COURT: You will have to.
THE WITNESS: You will have to. And that’s for any work that would have subseguently happened going into the future.
THE COURT: How much does it cost in terms of money, time, including lost opportunity. because the plane is not being used, would it have been to have put the ring on it? Let me give you a scenario so you can answer my question.
THE WITNESS: Sure.
THE COURT: If I just did something and a month later I get a directive that tells me that what I did a month before I couldn’t do anymore, I would have to put a new ring on
THE WITNESS: Yes.
THE COURT: If it wasn’t cost prohibitive
THE WITNESS: Right.
THE COURT: I probably would revisit what I did a month before. because I am not sure that I am going to wait for a period of time to do something they tell me I have to do if I take care of these matters, and they would give you timelines in which to take care of these matters. To do what you say, which is, to just every time one of these come out to just put the plane down, it would be very disruptive to an airline. But if they specify that we have to do it immediately, we wouldn’t have any choice.
THE WITNESS: No, sir.
THE COURT: It was something that could be done, or should be done, or must be done when next you do it, but it did not require you to do it immediately?
THE WITNESS: No.” [Emphasis added]
47. The above quoted passage may also explain why there is no evidence of the extension test being conducted after the five cycles, to wit, the test would have required the aircraft to be taken out of service for the duration of the test. This would have been down time the respondent would no doubt have wished to avoid. The Chief Justice seems to have elided over the requirement for this test and the reason for it to be done. There was evidence adduced by the respondent through Mr. Hall that the test was done; but Mr. Moss testified that the overnight test Mr. Hall said complied with the appellant’s requirements was not the required test. It is important to distinguish the extension test after the five cycles following the repair to the cylinder and the other extension checks done daily. The evidence of expert Mr. Hall, working from information supplied to him conflicted with that of Mr. Moss, the certified Aviation Maintenance Technician (AMT) who worked on the aircraft while referring to the appellant’s manual.
48. It must not be lost on the Court that the respondent was in the business of transporting people and goods commercially. They would be aware of incidents involving Dash 8s flown by other operators like themselves relating to landing gear manufactured by the appellant. The incidents investigated by the appellant and on which they met and produced a report, should have been known to the respondents. In any event, it must be noted that the results of the investigations while they culminated in the recommendation for a more robust damper ring, did not acknowledge any “damper ring fragmentation problem”. Such damage as there may have been was noticed in the main, as a by-product of the other listed causes for the incidents, e.g., insufficient hydraulic fluid. There was therefore no requirement for the appellant to specifically send out notices or bulletins to individual operators specifically relating to the damper rings breaking apart.
49. The notice to be sent is to be considered against the degree of alarm such notice may cause in view of the danger or peril being addressed. The authors of Clerk & Unsell at paragraph 11-30 to 32 was referred to for the following principle: “Whether a duty to warn arises will depend on the circumstances, including the level of danger and its obviousness to the reasonable user, though the necessity of avoiding undue alarm will also be taken into account. Where the duty applies the warning must be such as to make the user as safe as possible.”
50. In light of the notifications which were issued as mentioned in paragraphs 39 to 42 above and the fact that a defective damper ring had not been identified as the operative cause of the previous incidents, it would not be reasonable to conclude that the appellant had failed to warn the respondent.
Reliance on the 30,000 cycles Recommendation
51. The respondent had in the court below placed some emphasis on the fact that the appellant had represented that the MLG would last for 30,000 cycles. It is not in dispute that at the time Mr. Moss did the repairs to the cylinder in May 2007 the aircraft had undergone 25,000 cycles; and that another 2,500 cycles were completed following those repairs before the LMLG collapsed. Thus, the landing gear did not endure for the period the manufacturer represented it would.
52. We hold that this representation could act as no more than a mere guide in the same manner that car manufacturers’ representations as to their vehicles’ travel distance for each gallon of gas amounts to no more than an estimate of how far their vehicle could travel on a single gallon of gas. Other than the apparent damage to the damper rings of the right MLG of the aircraft and that of the sister aircraft’s MLG there is no evidence before the court that any of the damper rings failed and fragmented due to an inherent defect. Further, as stated before, such damage experienced by the appellant’s damper rings on six earlier occasions were not said to have been due to defects in the rings
themselves but due to other causes.
53. There could be no reasonable argument that if Mr. Moss did not comply with the procedure set out in the appellant’s manual and damper ring failure occurred all else being equal, that the damper ring was not suited for the purpose. A manufacturer is entitled to assume that the end user will not so abuse or misuse his product that it wears down sooner than it ought to if maintained properly. Excessive wear does not translate into defective products.
Grounds 1 and 2
54. Grounds 1 and 2 may conveniently be dealt with together. Mr. Thomas Evans, QC, Counsel for the appellant, submitted the Chief Justice fell into error when he failed to consider the applicability of the principle that “if a dangerous defect in a chattel is discovered before it causes any personal [injury] or damage to property, because the danger is known and the chattel cannot safely be used unless the defect is repaired the defect becomes merely a defect in quality”. He relied on the case of Murphy v Brentwood
District Council (1991)1 A.C. 398. It must be emphasised that Mr. Evans makes this as an alternative argument to be considered by us should we not find favour with his submission that there was no inherent defect in the damper rings and there was no failure by the appellant to warn the respondent of such a defect.
55. In Murphy Lord Bridge of Harwich reiterated his stated view in 0 & F Estates Ltd v Church Commissioners for England [1932J AC 562 when he observed at page 475:
“If a manufacturer negligently puts into circulation a chattel containing a latent defect which renders it dangerous to persons or property. the manufacturer, on the well known principles established by Donoghue v. Stevenson [1932] A.C. 562, will be liable in tort for injury to persons or damage to property which the chattel causes. But if a manufacturer produces and sells a chattel which is merely defective in quality, even to the extent that it is valueless for the purpose for which it is intended, the manufacturer’s liability at common law arises only under and by reference to the terms of any contract to which he is a party in relation to the chattel; the common law does not impose on him any liability in tort to persons to whom he owes no duty in contract but who, having acquired the chattel, suffer economic loss because the chattel is defective in quality. If a dangerous defect in a chattel is discovered before it causes any personal injury or damage to property. because the danger is now known and the chattel cannot safely be used unless the defect is repaired, the defect becomes merely a defect in quality. The chattel is either capable of repair at economic cost or it is worthless and must be scrapped. In either case the loss sustained by the owner or hirer of the chattel is purely economic. It is recoverable against any party who owes the loser a relevant contractual duty. But it is not recoverable in tort in the absence of a special relationship of proximity imposing on the tortfeasor a duty of care to safeguard the plaintiff from economic loss. There is no such special relationship between the manufacturer of a chattel and a remote owner or hirer.” [Emphasis added)
56. Lord Bridges statement probably remains the applicable law in England. We adopt his view of the law as it obtains in The Bahamas presently. Thus, if in the present circumstances there was a defect in the manufacture of the damper rings and this was known by the appellant who did not communicate
this information to the respondent with whom it had a “relevant contractual duty” or a ‘·special relationship of proximity” the appellant would indeed be liable in tort to the respondents.
57. In Jerred and Others v T. Roddam Dent & Son Ltd; (Glen Line Ltd Third Party) [1948) 2 All ER 104. a case decided under Ihe English Docks Regulations, 1934, where a third party sought to avoid liability for an accident which injured some stevedores by recourse to Donoghue v Stevenson supra Atkinson, J discussed the ratio of Donoghue’s case and opined at page 110 that such invocation was misplaced because Donoghue pertained to the relationship in law between a manufacturer and a purchaser of goods, not from the manufacturer, but from somebody else to whom the manufacturer has sold. In the opinion of Atkinson, J:
“It is said that the principle laid down was that there is no legal nexus, that is to say, there is no duty owed in such a case unless the manufacturer or repairer knew that in all probability there would be no examination of the article sold or work done before use, but the probability of examination prevented the necessary privity or relationship. Prima facie, in those circumstances there is no relationship-it was the absence of an intermediate examination which was held in those cases to create the relationship.”
58. In Carroll et al v Fearon et al 20 January 1998 Smith Bernal transcript. a case where a manufacturing defect was disclosed on the evidence in the process used by Dunlop to manufacture car tires, Judge, LJ expounded on Lord Macmillan’s statement in Donoghue v Stevenson [1932J AC 562 at 622 that:
“There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maximum res ipsa loquitur. Negligence must be both averred and proved” when he said:
“To deal with this observation attention was drawn by counsel for the different parties to a large number of authorities. In my judgment however the relevant principles are clear. Taken out of context Lord Macmillan’s observation is liable to be misunderstood. In what was then perceived (and is still recognised) as a dramatic development of the tort of negligence Lord Macmillan was seeking to underline that his support for this development did not extend to the creation of a tort of strict liability. In a claim based on product liability negligence had to be proved by the plaintiff. Given that liability would not be established where there was “the reasonable possibility of intermediate examination” (in
the phrase used by Lord Atkin when the principle was first enunciated) he was warning against any
misapplication of res ipsa loquitur.”
59. He continued to consider whether had notice been given would the injured party have acted on the warning:
“Time was spent considering the precise nature of the powers of the Secretary of State. These included the possibility of issuing a warning notice under s 3(l)(c) of the Consumer Safety Act 1978. It was not known whether such a notice would have been issued in circumstances such as these. Regulation 27 of the Road Vehicles (Construction & Use) Regulations as well as reg 9 of the Motor Vehicles (Tests)(Amendment) No 2 Regulations 1983 were cited. There is an obvious problem with the enforcement in advance of either of these Regulations where, as here, there is no apparent sign of defect. Finally as part of the general submission attention was drawn to a number of decided cases about
warnings and causation in circumstances where a warning should be issued. These included Walton v British Leyland UK Limited [July 12, 1980] Product Liability International for August 1980 156, McWilliams v Sir William Arrol & Co Limited [1962)1 All ER 623, [1962) 1 WLR 295, E Hobbs (Farms) Limited v The Baxenden
Chemical Co Limited (1992) 1 L10yds Reports 54, Dow
Corning Corporation v Hollis 129 DLR 609, Nicholson v
John Deere 34 DLR (4th) 542, Buchan v Ortho
Pharmaceutical (Canada) Limited 25 DLR (4th) 658.
Without disrespect to the argument none of these cases serves to answer the question of fact which arises in this particular case, namely whether if Dunlop had provided accurate information to the Department the tire would or would not have been removed from Mr. Bent’s car before the accident.”
60. In as much as reports were submitted to the Canadian Civil Aviation Authority, Transport Canada, in respect of the six incidents reported about the appellant’s landing gear and that body did not see fit to issue an Airworthiness Directive until 14 June 2006, around one month after the May 2006 repairs this is significant for two reasons. First, unlike in Carroll’s case supra where there was clear evidence of a manufacturing defect which Dunlop attempted to conceal and failed to report, no lack of transparency can be leveled against the appellant in its dealings with the over center incidents.
61. Second, had the Canadian Civil Aviation authorities thought the breaking of the damper rings was a manufacturing defect no doubt a notice would have issued immediately to the appellant to recall the part or to provide a reliable replacement; and notice would have been given to the operators of aircrafts fitted with the appellant’s landing gear not to fly without first replacing the damper rings. Instead, the notice given merely stated that the damper rings ought to be changed at the next repair cycle. It seems therefore that the Canadian authorities were satisfied there was no damper ring defect as alleged by the respondent despite the change in the manufacturing process.
62. The respondent contends forcefully that Transport Canada merely reinforced ADM 794 and did not address “the damper ring fragmentation problem”. It must be recalled that two reasons were given as the cause of the failures in the earlier incidents; and none was a damper ring fragmentation problem.
We find therefore that it was not reasonable for the Chief Justice to conclude that the appellant failed to warn of the fragmentation problem in circumstances where the breakage manifested itself as a result of another operating cause in all of the earlier incidents save for one, to wit, the Air Ontario incident.
63. At paragraph 45 of his jUdgment the Chief Justice arrived at a conclusion based on a premise not tested by the evidence, i.e., if there was insufficient fluid in the strut it would have manifested itself long before the accident. The evidence of Mr. Hall, the respondent’s expert suggests the condition of overextension would have resulted over a period of time. (pg. 1969, line 25 of the 12 November 2013 transcript). Paragraph 45 states:
U45. The evidence of the Plaintiff is that the appropriate hydraulic fluid was installed and in my judgment the Defendant has not discharged its duty to show that there was no insufficient fluid in the strut. In my judgment if there was insufficient fluid it would have manifested itself long before the accident of 20th April 2007. The Defendant’s plea in this regard is rejected.”
64. No doubt there would have been warning signs that the over center condition was developing. Apparently, however, the warning signs present, namely the vibrations and blown tyre were considered to be symptoms of some other causes. As such, the respondent did not have cause to suspect the damper
ring was failing. It is likely that had the respondent conducted the extension test by jacking up the aircraft as recommended by the appellant’s manual as soon after five cycles as possible the emerging problem would have been discovered and rectified. Unlike Donoghue (supra) the respondent was afforded an opportunity to examine the product before it failed but declined to do so. Ultimately, therefore, the failure of the respondent to install the new damper ring and upper bearing was not due to the negligence of the appellant in advising it of the new product but from the respondent’s decision to continue using a ring it ought to have known was no longer being produced since 1998.
65. It is unclear whether the respondent investigated the cause of the cracked cylinder which was replaced by Mr. Moss. This may have been of some moment to the problem subsequently experienced in Eleuthera. A witness referred to this point but it does not appear to have made an impression on the Chief Justice.
66. Although not entirely necessary for our decision we think it prudent to address the Chief Justice’s summary dismissal of the report into the accident of the aircraft prepared by the Flight Standards Inspectorate, Bahamas Department of Civil Aviation (the Inspectorate). That report is created pursuant to the Civil Aviation (Air Navigation) Regulations, 2001 and was prepared with the participation of the appellant, respondent and Bombardier notwithstanding the protestations of Messrs. Moss and Cooper that they were not full participants in the investigation. It is worthy of note that after the report was published in September 2007 there is no evidence that the respondent lodged a complaint that they were denied an opportunity to adequately participate in the investigation; and it was not until the action was brought that such an allegation was made.
67. We do not think the Chief Justice was correct to conclude that the report was not final as it was intituled. There was no report issued subsequent to it hence it was the final report. If the views or the position of the respondent is not adequately represented in it that would be due to the lack of a response by the respondent to the enquiries of the Inspectorate, e.g., details of the qualifications or continuing training of Mr. Moss. Also, the report was put in evidence and there was no requirement that the maker of the report had to so do. By excluding consideration of the contents of the report we opine that the Chief Justice denied himself the opportunity to have regard to all of the relevant evidence in this case.
68. In the premises we conclude that the Chief Justice fell into error when he found the appellant was negligent in the manufacturing of the damper rings and he erred also in finding there was a “damper ring fragmentation problem” about which the appellant failed to notify the respondent. We are satisfied on grounds 3, 4, 5 and 6 of the amended grounds that the finding of the Chief Justice is unreasonable and cannot be supported by the evidence. The decision of the Chief Justice is set aside in its entirety, inclusive of the award of costs.
69. Thus, we allow the appeal with costs to the appellant both here and in the court below; such costs to be taxed if not agreed.
Honourable Mr. Justice Isaacs, JA