Sally Thirkell v. Trans World Airlines Corp

DCCJ004856/1968

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4856 OF 1968.

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Coram: J.T. Williams, D.J. in Court.

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JUDGMENT

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1. The plaintiff, a female fashion model, was a passenger of the defendant airline travelling from Athens to Hong Kong via Bombay. She was carrying a suitcase containing some rather expensive clothes, wigs, make up, cosmetics etc. which she alleges was worth $9,173.42.

2. On arrival at Bombay she decided to break her journey and the defendant airline agreed to retain her luggage and carry it to Hong Kong where it would be handed to her on her arrival here. She arrived in Hong Kong one day after her luggage but when she presented her luggage receipt it appears that the defendants were unable to hand her luggage to her. She claims its full value.

3. Both parties agree that "The Carriage By Air (Overseas Territories) Order 1967" applies to the contract of carriage covering the plaintiff's said journey. The portions of that Order which affect these proceedings are as follows:-

"Art. 18.

4. Since the plaintiff claims full compensation for the loss of her luggage it is necessary to allege and substantiate wilful mis-conduct of the kind defined by Art. 25. Her writ alleges that the defendants handed her luggage to some third party without requiring surrender of the luggage receipt. However, that allegation has not been substantiated by any direct evidence to that effect. Presumably, the plaintiff leaves it to be inferred from the facts, which as pleaded and admitted are simply that the defendants have not handed over or accounted in any way for the plaintiff's luggage. The suitcase having arrived in Hong Kong on a flight of which the plaintiff was not a passenger it is possible that it was wrongly handed to some passenger of that flight.

5. The defendants deny wilful misconduct of the kind contemplated by Art. 25, but admit negligence and claim that their liability is confined to the limits set out in Art. 22.

6. Mr. Gregory, for the plaintiff, submits that the defendant's failure to account for the luggage in the circumstances described is sufficient to raise a presumption of the wilful misconduct contemplated by Art. 25.

7. The defendants gave no evidence. Their counsel, Mr. Martin Lee, likened the wrongful conduct set out in Art.25 to wilful misconduct as defined Horabin v. B.O.A.C.⁽¹⁾ In that case the Court was concerned with an aeroplane crash in which the plaintiff's goods had been damaged; the plaintiff was claiming the full amount of damage suffered and the defendants argued that their liability was limited under The Carriage By Air Act 1932. The said Act contained provisions very similar to Arts. 18, 20, 22 and 25 which I have quoted above, except that in the place of the wrongful conduct specifically described in Art.25 (above) the Act made reference to "wilful misconduct". Under the Act the defendants would enjoy a limited liability for negligence unless it were proved that they had been guilty of wilful misconduct. In those proceedings the plaintiff proved that the plane had been turned away from the airport it was heading for and then proceeded to other airports before eventually crashing. They argued that the facts proved displayed wilful misconduct on the pilot's part. Barry J. at p.1019(F) said:

"Wilful misconduct is misconduct to which the will is a party, and it is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be ......... To establish wilful misconduct ........ it must be shown, not only that he knowingly (and in that sense wilfully) did the wrongful act, but also that, when he did it, he was aware that it was a wilful act."

and at p. 1020(B):-

"......... the plaintiff must satisfy you that the person who did the act knew at the time that he was doing something wrong and yet did it notwithstanding, or, alternatively 'that he did it quite recklessly not caring whether he was doing the right thing or the wrong thing, regardless of the effects of what he was doing."

8. Mr. Martin Lee stated that he relied heavily on the Horabin case (above) and argued that although the doctrine of "res ipsa loquitur" applied to ordinary cases of negligence where intent was not a necessary ingredient it could not apply to wilful misconduct where the will was a party to the negligence. He submitted that it was necessary for the plaintiff to prove the specific act which amounted to wilful misconduct. With respect I cannot see that such a meticulous degree of proof is shown to be necessary from the Horabin case. The pilot had been killed in the crash and the learned judge explained to the jury that although there was no direct evidence as to the pilot's state of mind they were not confined to direct evidence. He said at p. 1021(A):-

"You are not, however, confined to direct evidence. You are entitled to look at the whole of the facts and to draw an inference from those facts as to the state of mind and intentions of the person who does some particular act."

9. The decided cases show that doctrine of "res ipsa loquitur" only applies when there is no evidence which the plaintiff can adduce in order to establish negligence. In Barkway v. S. W. Transport⁽²⁾ Lord Normand said at p.399:

"................. if the cause of the accident is proved, the maxim res ipsa loquitur is of little moment. ........... The maxim is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant."

10. In that case an omnibus had gone over an embarkment killing and injuring passengers. The plaintiff had relied upon res ipsa loquitur and the defendants adduced evidence showing that the accident had been caused by a tyre bursting which in turn had affected the steering. At p.394 Lord Porter observed:-

"In these circumstances the appellant claims that the doctrine of res ipsa loquitur applies. Omnibuses, it is said, which are properly serviced, do not burst their tyres without cause, nor do they leave the road along which they are being driven. ........... The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one "where the facts speak for themselves" and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not."

11. In the foregoing cases the Courts were concerned with the application of "res ipsa loquitur" where damage had been caused to goods and injuries to passengers resulting from accidents about which some facts could be proved.

12. It seems that when there has been no accident and a bailee for reward loses the goods he has contracted to carry, the loss is in itself prima facie evidence of negligence. Thus in Morris v. Martin⁽³⁾, some dry cleaners had lost a valuable for which had been sent to them for dry cleaning. It transpired that the servant detailed to clean the fur stole it. At p.731, Lord Denning said of a bailee for reward:

"If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show .......... and the burden is on him to show .......... that the loss or damage occurred without any neglect or default or misconduct of any of the servants to whom he delegated the duty."

13. He rejected the suggestion that it was for the bailor to prove that the loss was caused by negligence.

14. It frequently happens that carriers have two sets of freightage rates with differing conditions. The lower rate usually imposes a condition that the carrier's liablility for negligence shall be limited unless it is proved that he has been guilty of wilful misconduct. In Hartstoke Fruiterers v. L.M.S.R.⁽⁴⁾ the plaintiffs despatched bananas by the defendant railway and paid the lower rates and accepted the above conditions. Under the contract it was the duty of the railway to notify the plaintiff when the goods arrived. In breach of that duty the railway delayed in notifying the plaintiff of the arrival of his bananas, and they were consequently badly damaged by the time the plaintiff went to collect them. The railway claimed that their liability was limited under the contract and it was so held, judgment being awarded for limited damages only. It seems that the delay in notifying the arrival of the bananas could not be regarded as wilful misconduct.

15. Whether complete disappearance of the cargo would have been evidence of wilful misconduct may be a matter for conjecture. However, it seems that wilful misconduct will not easily be inferred as is illustrated by Haynes v. G.W.R.⁽⁵⁾. That case concerned the carriage of farm machinery in the form of iron rakes mounted on axles between wheels. The freight was paid at the lower rate, i.e. owner's risk conditions so that the defendant's liability was limited unless guilty of wilful misconduct. No doubt the plaintiffs had thought that nothing short of deliberate destruction could damage such substantial machinery. Nevertheless the rakes were badly damaged in that an iron axle 1-3/4" thick was broken; wheel shafts were bent, and the metal teeth of the rakes were bent and twisted. The rakes had in fact been placed on trucks shorter than the rakes. That was the plaintiff's case and he argued that it raised a presumption of wilful misconduct. Grove J. at p.437 observed that the packing of the rakes on short trucks could have caused the damage, and it was possible that that form of packing arose from wilful misconduct, but he pointed out that articles longer than the trucks in use were frequently loaded on to them and carried on them without suffering damage - referring to the damage and use of short trucks he said:-

"But evidence sufficient to support the plaintiff's case and to call upon the defendant's for an answer, must go further than that. It must point out such circumstances that a jury might reasonably infer that the damage arose from the cause alleged, and not from any other cause."

16. It was held that although one is prepared to concede that the facts are consistent with wilful misconduct that is not enough. They must be reasonably inconsistent with the absence of wilful misconduct.

17. If I accept Mr. Gegory's argument that the loss of his client's suitcase raises a reasonable inference that it was wrongly handed to a passenger on the same flight as the luggage and who had not handed over the proper luggage receipt, does that entitle me to infer wilful misconduct of the kind in Art. 25. It would seem from the judgments in Stevens v. G.W.R.⁽⁶⁾ that misdelivery of a customer's goods does not raise a presumption of wilful misconduct. In that case goods were carried on condition that the railway's liability would be limited except for wilful misconduct. The railway misdelivered the goods but eventually traced and recovered them but by the time that was done the consignee refused to accept them. The plaintiff consignor sued for the full damage he had sustained and Smith J. at p.326 stated:-

"......... it seems to me that those facts are perfectly consistent with the goods having been mis-delivered either from pure inadvertence or in consequence of the negligence or by the wilful default of any one of the company's servants. .......... Then how is the judge to say 'you have satisfied me the delay occurred by wilful misconduct', when it may have occurred from inadvertence or mere negligence."

18. It would seem from the authorities that The Carriage By Air Order 1967 protects a carrier against claims for full compensation although he admits negligence. It may be argued that the onus should be on the carrier to show an absence of wilful misconduct because the passenger can never be in a position to prove its existence. The passenger is compulsorily separated from his luggage at the airport on departure and does not even see it again until reaching his destination. In the intervening period it may be subject to the most malicious and wilful bad handling resulting in loss or serious damage, but he will not recover full compensation unless "res ipsa loquiture" to the extent of raising a presumption of wilful misconduct. It may be argued that the provisions being for the protection of the carrier the onus should be upon him. However, the wording of the relevant Arts. 18, 20, 22 and 25 seem to indicate that although the onus is upon the carrier to disprove negligence so as to avoid the limited liability which arises on the loss of luggage he does not have to go further and disprove wilful misconduct in order to escape full liability. Thus Art. 18 says the carrier is liable for damage; Art. 22 limits the extent of his liability, and Art. 20 provides that the carrier shall not be liable (to the limited extent) if he (the carrier) can show that he took the necessary precautions to try and avoid the damage concerning limited liability the wording of Art. 20 places on the carrier the onus of rebutting the presumption of negligence which arises when luggage is lost. The wording of Art. 25 is different from that of Art. 20, in that it does not say that the carrier will be liable for the whole damage unless he shows an absence of wilful misconduct, but that if it is shown to exist the carrier will be liable. The case of Smith v. G.W.R.⁽⁷⁾, considered a claim arising from the loss of goods in transit. The terms of carriage included a condition that the defendants would not be liable for loss without proof of wilful misconduct on their part. The plaintiffs endeavoured by letters to obtain some information about the disappearance of their goods but the railway ignored their requests; even when requests were made by way of interrogatories the railway supplied no information. It was held that the loss although quite unaccounted for and accompanied by what was almost a refusal to try and explain the loss did not an infer wilful misconduct Lord Buckmaster said at p.183:

".......... it is in my opinion a clause which throws upon the trader, before he can recover any of the goods, the burden of proving in the first instance that the loss sustained arose from the wilful misconduct of the company's servants. It is perfectly true that this results in holding that the apparant protection afforded to the trader is illusory; it practically gives him no protection at all, for it is often impossion for a trader to know what it is that has caused the loss of his goods between the time when he delivered them into the hands of the company's servants and the time when they ought to have been delivered at the other end of the journey. The explanation of the loss is often within the exclusive knowledge of the railway company, and for the trader to be compelled to prove that it was due to wilful misconduct on the part of the railway's servants, is to call upon him to establish something which it may be almost impossible for him to prove."

19. Regarding the railway's failure to supply any information relating to the goods he said at p.185:

"The materials disclosed by the letters and by the interrogatories are quite consistent with the position a litigant is entitled to adopt, of saying 'Whatever my position may be I decline to render you the least assistance. I am not going to pay your claim, and I am not going let you know any more than I am bound of the facts that will enable you to establish it.' But this does not afford the evidence which will enable the plaintiff to discharge the onus of proving what after all is a very serious fact, an act of wilful misconduct on the part of one of the company's servants."

20. It seems to me that in order to establish a claim against an airline for more than the limited damages allowed under the Order of 1967 (above), one present facts which raise a presumption that in the absence of wilful negligence the damage would not have occurred - Haynes v. G.W.R. (above). The fact that luggage is lost raises a presumption of negligence which the carrier must rebut in order to avoid limited liability, but the mere loss of luggage does not infer wilful misconduct.

21. The plaintiff's claim is dismissed, and the plaintiff will pay the defendant's costs.

Representation:

Gregory of J.S&M. for Plaintiff

Martin Lee instructed by Lo & Lo defendants.

(1) (1952) 2 A.E.R. 1016

(2) (1950) 1 A.E.R.

(3) (1965) 2 A.E.R. 725

(4) (1943) 1 A.E.R. 470

(5) 41 L.T.R. 1879-1880, 436

(6) 52 L.T.R. 1885, 324

(7) (1922) 1 App. Cases 178