MacLeod v Flight West Airlines Pty Ltd
[2001] QCA 96
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- MacLeod v Flight West Airlines Pty Ltd[2001] QCA 96
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MacLeod v Flight West Airlines Pty Ltd[2001] QCA 96
MacLeod v Flight West Airlines Pty Ltd[2001] QCA 96
COURT OF APPEAL
McPHERSON JA
WILLIAMS JA
MOYNIHAN J
| Appeal No 11073 of 2000 | |
| SCOTT MACLEOD | Plaintiff (Applicant) |
| and | |
| FLIGHT WEST AIRLINES PTY LTD | |
| (ACN 010 718 975) | Defendant (Respondent) |
BRISBANE
DATE 14/03/2001
JUDGMENT
McPHERSON JA: This is an application for leave to appeal against a decision given in the District Court at Cairns refusing to extend time under s.31 of the Limitation of Actions Act 1974.
The application arises out of an incident that took place on 3 January 1993. The applicant, who was then employed by the respondent, was the pilot of a Beechcraft Baron aircraft flying to Weipa. Coming in to land at that place, he encountered a problem in lowering the nose wheel of the aircraft. In the result the aeroplane landed with its main landing gear fully retracted and it was badly damaged.
The respondent dismissed the applicant from its service for failing to lower the main wheels, which were admittedly operative at that time, before landing. There were proceedings in the Industrial Relations Commission for reinstatement of the applicant but those proceedings failed.
On 13 July 1999, and after speaking on the telephone to officers of the Bureau of Air Safety Investigation (BASI) and Civil Aviation Safety Authority (CASA), the applicant received a copy of what is described as a Submitter's report which is dated 8 January 1993. It explained that inspection of the aircraft had revealed that a shank forming part of the nose wheel gear was broken, and that it was of a type that was prone to failure. The report was prepared by Mr Kerwitz, who unfortunately died in March 2000 and so is not available to either side as a witness.
For the purposes of s.30(1)(a)(i) of the Act and of this application it may be accepted that this deficiency was "the fact of the occurrence of negligence", and that 13 July 1999 was the first occasion when the applicant acquired actual knowledge of negligence on the part of the respondent. He claims that since 1993 he has suffered a disability of a psychiatric or psychological kind as a result of his experience in the crash landing of the aircraft in 1993.
The learned Judge of District Court found, however, that although that fact was not within the actual knowledge of the applicant until mid 1999, it was, under s.30(1)(c), within his means of knowledge before then. Section 30(1)(c) says:
"A fact is not within the means of knowledge of a person at a particular time if, but only if -
(ii)as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time."
It is evident that what that provision is concerned with is a form of imputed knowledge, being knowledge that is imputed on an objective basis to the person concerned as a reasonable individual, taking account, however, of his intellectual standards, and no doubt his experience.
What her Honour said about that matter appears in her judgment at page 8, in which she said that an affidavit sworn by Alan Leslie Stray, the Deputy Director of Air Safety of the Australian Transport Safety Bureau, formerly BASI, details the documents that would have been available to the applicant through BASI following the accident, both by way of general request and pursuant to an application under the Freedom of Information legislation. On this aspect of the matter her Honour also made the following findings:
"It is clear that there is no requirement to take appropriate advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a plaintiff to have done so. However, in the applicant's particular circumstances it was, in my view, reasonable to expect that he do so. To put it another way, had the applicant sought advice from an appropriately qualified person within the aviation industry, such as an Airline Safety Adviser, or from a solicitor prior to 3 January 1995 he would in all probability have discovered the material fact of a decisive nature that is now relied on. It was reasonable for him to seek that advice during that relevant time."
She concluded her reasoning on this question with the following words:
"The applicant must show that negligence on the part of the respondent was not within the means of knowledge of a reasonable person knowing what he knew. That issue is to be determined on the footing that such a person had at the relevant times taken all reasonable steps to ascertain the fact. Accordingly I am not satisfied that the submitter's report was not within the means of knowledge of the applicant until after 3 January 1995."
I am not persuaded that her Honour's conclusion to that effect was wrong. Although the learned Judge was not impressed by the applicant as a witness, she considered him to be a relatively sophisticated and knowledgeable person who would have no difficulty in seeking appropriate advice and direction. He had many years of experience as a commercial pilot and was conversant with industry practices.
At the Industrial Relations Commission hearing he was represented by the Australian Federation of Air Pilots Association, who, it may fairly be assumed, have persons of expertise in fields of this kind, and, if not knowing the law themselves, would have access to those who could advise them and persons like the applicant, on proper courses of inquiry to pursue.
In 1994, the applicant had made inquiries of the Bureau and of CASA in an attempt to obtain information, but he does not recall what documents he had then read, or so he said. It appears that he had obtained a document which, if he had thought about it as he did later in 1999, would have led him to the very Submitter's report which it is now claimed was the first occasion on which he acquired actual knowledge of the negligence alleged.
He made no application under the Freedom of Information Act, and he did not consult a solicitor or anyone else about avenues of inquiry that were open to him in order to pursue a question in which he must have been interested, namely the cause of and responsibility for the accident that had occurred.
When, in 1999, he asked for a copy of the report from CASA, he received it straight away. The contrast with his earlier conduct in 1994 is striking, and to my mind largely determinative of the application.
My conclusion here is that her Honour did not err, either in her findings, or in the exercise of her discretion, in refusing to extend the time for bringing the action. It follows, in my view, that no such error has been demonstrated as would justify this Court in giving leave to appeal and, in effect, leaving it to another Court of Appeal to determine whether the applicant in his appeal in this case should fail.
I have reached a firm conclusion that the decision below is not wrong or, expressing it in another way, is not likely to be set aside if leave to appeal is given. The parties, I should add, invited this Court to treat this application as in the nature of an appeal, and I do so by deciding that the application should be dismissed.
WILLIAMS JA: On his application before the District Court Judge, the applicant relied primarily on paragraph 8 of his affidavit in order to establish the necessary matters which would entitle him to an extension of time in which to bring the action. That paragraph refers to a document obtained from the Bureau of Air Safety Investigation called "Brief Print (Public)".
According to paragraph 8 the applicant first saw that document on 24 June 1999. The paragraph expressly states, "Prior to 24 June 1999 I had not seen this document." The paragraph goes on to say that after viewing that document, and speaking with officers of the Bureau of Air Safety, he was advised to obtain from the Civil Aviation Safety Authority a copy of the submitter's report.
That was the case that went before the Judge. The applicant was cross-examined. In the course of cross-examination he was shown a document and ultimately agreed, though there may have been some differences in the layout, that the document accorded with the document described in paragraph 8 as Brief Print (Public).
The document to which he was referred in cross-examination was a two-page document he received from the Bureau of Air Safety Investigation in 1994. The document in question, in one of its forms, is included in the material and it contains the statement, "Subsequent inspection found that the nose gear actuator eye-end fitting broken. This failure resulted in the nose gear being unable to be extended or retracted."
Further, under cross-examination, the applicant admitted that in 1993 and 1994 he knew that CASA potentially held documents relevant to the incident, yet he made no attempt then, notwithstanding having knowledge of the content of the "Brief Print (Public)" to obtain any such document.
It seems clear that in 1993/1994 the applicant was aware that the reason why the nose landing gear could not be extended was the fact that a rod in its assembly had broken. He did not ask any engineer or expert or lawyer to make any inquiries as to the possible causes of that break or as to whether or not there may well be some negligence on the part of some person in connection with the break.
To my mind, in failing to take those reasonable steps, he was not acting as a reasonable person ought to have in the circumstances. He did not seek advice of the type which a reasonable person would ordinarily be expected to have taken.
In her reasons the learned District Court Judge made some reference to the fact that if the applicant was successful ultimately in a claim for damages he could expect a "modest award of damages at best".
I am by no means certain that her Honour was entitled to have regard to that consideration on this application, but it's not necessary to decide that question now. The applicant fails at the threshold point.
In all of the circumstances I agree with the reasons for judgment of the learned presiding judge and the orders proposed.
MOYNIHAN J: I agree with the reasons that have been given and with the orders proposed.
McPHERSON JA: I'm not sure I said anything about costs; are you asking for costs?
MR GRANT-TAYLOR: Your Honour did not say anything about costs, and I would ask for costs.
McPHERSON JA: Anything to say?
MR JENSEN: No, your Honour.
McPHERSON JA: The order is that the application for leave to appeal is dismissed with costs.
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