Coral Sun Airways Ltd v Civil Aviation Authority [2010] KIHC 124; High Court Civil Case 74 of 2010 (12 November 2010)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 74 of 2010

Between:

Coral Sun Airways Ltd
Plaintiff

And:

Civil Aviation Authority
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Monoo Mweretaka

Dates of Hearing: 10 November 2010

JUDGMENT

Judgment for the plaintiff on liability was given on 6 October. The present hearing concerned only damages. I heard evidence from Mr Jeff Jong, the principal of Coral Sun Airways and from Mr Benitera Tabokai, the Director of Civil Aviation.

The plaintiff and defendant have come up with estimates of damages which are quite different. Mr Berina has put the total at $396,558.37. Mr Mweretaka at $273,361.80.

I have found it difficult to follow the various calculations but finally, after Mr Mweretaka had produced to Mr Berina the flight service log book (kept by the Civil Aviation Authority) for the second half of 2009,

Mr Berina tendered, with Mr Mweretaka's consent, two sets of calculations, statement of profit and loss (Exhibit P3) and a summary of claim (Exhibit P4). Mr Mweretaka did not dispute the figures but only their interpretation, the conclusions to be drawn from them. The earlier calculations and exhibits were to be ignored.

The plaintiff has based the calculations in P3 and P4 on the period July to December 2009 when two aircraft were flying, with the average passenger load of 7.38 per flight. Mr Berina argued that the measure of loss must be based on a period of normal operations. The defendant on the other hand based its calculations on the period after the accident when only one aircraft was flying with an average passenger loading of six per flight. Mr Mweretaka, following Mr Tabokai's evidence, argued that as the schedules were the same for both periods the measure of loss should be based on the later period. Mr Berina's reply to the argument was that to base calculations on a crippled airline was not a valid basis. His calculations give a daily loss of $2,680.89. Loss continued for 133 days. Total loss is $356,558.37.

Having heard the evidence of both gentlemen and listened to counsel's argument I prefer the plaintiff's approach and shall use it.

Mr Mweretaka did not impugn the calculations in P3 and P4. The starting point is $356,558.37. I must discount substantially for contingencies. I shall allow $300,000.

Thankfully there is no dispute as to two other amounts to which the plaintiff is entitled: $10,000 being the excess under the policy of insurance and $30,000 being the Lease Payment for January to June 2010.

That makes the total assessment $340,000.

There will be judgment for the plaintiff for $340,000.

Dated the 12th day of November 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice