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Sally Thirkell v Trans World Airlines Corp

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgement NumberDCCJ4856/1968
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ004856/1968 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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BETWEEN
Sally Thirkell Plaintiff
AND
Trans World Airlines Corp. Defendants

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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.

(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air."
Art. 20.
The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was 'impossible for him or them to take such measures.'
Art 22.
(2)(a) In the carriage of registered baggage and of cargo the liability of the carrier is limited to a sum of 250 francs per kilo, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in the delivery at the destination and has paid a supplementary sum if the case so requires. .............
Art. 25.
The limits of liability specified in Art. 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that in the case of such act or omission of a servant or agent it is also proved that he was acting within the scope of his employment."

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...

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