In the High Court of Kiribati
Civil Jurisdiction
Held at Betio

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 Birimaka Tekanene

Dates of Hearing: 30 September &1 October 2010

JUDGMENT

Last 19 January about half past eight in the morning (the pilot said half past nine but the records shew half past eight – the precise time is not relevant) the "Islander" aircraft TR-VIN owned by the plaintiff, the pilot being Mr Yooichi Tomizuka, was on a flight from Bonriki to Nonouti and TabNorth. About 35 miles out Yooichi noticed a problem with the right fuel gauge. He decided to turn back to Bonriki:-

About 32 miles out reported to Control Tower – 15 mins flight time. Control Tower responded – acknowledged: told me to continue approach and give a call at 10m (5mins before landing). Final call. I made a short approach (because of problem) and during it made my landing base call – acknowledged and advised me to call on final approach. I did call on final approach: no acknowledgment. 10 seconds before touching down. Struck dog.

Yooichi saw the dog 300 to 400 metres ahead of him on the runway:-

Visibility clear. Dog lying to left of my centre line of approach. Saw it on touch down – 300-400 metres ahead. Air speed at touch down approximately 65 knots. I tried to avoid striking dog by slowly turning to right. Dog stood up and began walking to right. Right main landing gear struck dog.

The dog was killed and the plane seriously damaged. The plaintiff blames the defendant for the accident.

It has been agreed that I should first decide liability and later, if necessary, assess damages.

Since 1997, on being notified of the approach of an aircraft to land at Bonriki the Control Tower sends out a mobile patrol – on this occasion a minibus – to clear the runway of obstacles – human, animal or inanimate – or if not possible to clear, to report any obstacle to the Control Tower so that the Control Tower may warn the pilot. No patrol was done for this landing:-

The minibus patrol two or three minutes after landing came. This was after engineers had come. I asked where he had been. Replied, scratching head, apologized that they were late to patrol. "Sorry. I was late".

That evidence is uncontradicted. I accept it as an admission that no patrol was carried out.

Some months later the minibus driver made a written statement in which he amplified his earlier admission, giving the reason why he did not do the patrol. Without having disclosed the statement to Mr Tekanene beforehand, Mr Berina proved the statement through Yooichi and applied to tender it. Mr Tekanene opposed the application. I allowed it (Exhibit P1) as an admission, evidence of which, had it been oral, could have been given by Yooichi. However, it would have been a courtesy for Mr Berina to have given Mr Tekanene notice beforehand. For that reason I several times offered Mr Tekanene the opportunity of an adjournment to consider his position but he did not make any application. I may add that the earlier oral admission to Yooichi of failure to patrol, being unchallenged, was in any case a quite sufficient admission. The written statement merely amplifies it and gives the reason why the patrol was not made.

Had the patrol been made, either the dog would have been cleared off the runway or the Control Tower notified of its being in the way. A warning then could have been given to the pilot as a factor to be taken into account when coming to his decision whether or not to land where he did. Whichever the accident would probably have been avoided.

By a late amendment to the Defence, the Attorney General pleaded that as a matter of law the defendant owed no duty of care to the plaintiff: the Civil Aviation Authority is merely a regulatory body. I reject the argument. Kiribati Civil Aviation Act, section 8 (under the heading "Function of Authority"):-

(1)	The principal function of the Authority shall be to undertake activities which promote safety in civil aviation at a reasonable cost.

No doubt the provision of patrols is made to "promote safety in civil aviation".

Mr Benitera Tabokai, Director of Civil Aviation, gave evidence. He acknowledged that the Airport Manager is responsible for Bonriki airport – and it follows for the Control Tower and patrolling of the runway - and the Airport Manager is answerable to the Director of Civil Aviation. The Authority has final responsibility and its first duty is to ensure safety. 

In summary, a dog was on the runway. No patrol made which could either have cleared the dog or have reported its presence to the Control Tower and the pilot notified. The pilot landed and could not avoid the dog.

The Authority, because of the failure of its servants to carry out the patrol is on the balance of probabilities responsible for the happening of the accident.

The plaintiff succeeds on liability.

Dated the 6th day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice