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Bates & Lloyd Aviation (Pty) Ltd. and Another v Aviation Insurance Company; Bates & Lloyd Aviation (Pty) Ltd. and Another v Aviation Insurance Company (80/85) [1985] ZASCA 62; [1985] 2 All SA 428 (A) (30 May 1985)

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IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the appeal of :-

Case A

BATES & LLOYD AVIATION (PTY) LTD 1st appellant

and GORDON LANG & RICHARD ANTHONY LYONS.. 2nd appellant

versus
THE AVIATION INSURANCE COMPANY respondent

and

Case B

BATES & LLOYD AVIATION (PTY) LTD.... appellant

versus

THE AVIATION INSURANCE COMPANY respondent.

Coram: Trengove, Nicholas, Hefer JJA, Galgut et Smalberger AJJA.
Appeal heard: 4 March 1985. Date of Judgment: 30May 1985

JUDGMENT /

JUDGMENT

GALGUT AJA:
On the 4th April 1978 and at 09h05 a Beechcraft Baron aircraft, while being piloted by one George Edward Bates, crashed into the Soutpansberg near Louis Trichardt. The pilot and his two passengers were killed and the aircraft was destroyed.

Arising out of the crash two actions were instituted. The one under case number 3465/81 was instituted in March 1981 in the Transvaal Provincial Division. The other under case number 5584/81 was instituted in April 1981 in the Witwatersrand Local Division. By Order of Court dated 20 April 1982 the two cases were consolidated in terms of Rule 11 of the Uniform Rules of Court.

/ The

The action under number 3465/81 has at all relevant times been referred to as case A and the action under number 5564/81 as case B. I shall refer to them as case A and case B respectively. The actions arose out of the following facts.
(i) In December 1977 Beechcraft Sales SA (Pty) Ltd ("Beechcraft") were the owners of the aircraft.

(ii) On 21 December 1977 Beechcraft sold the aircraft on hire-purchase to Bates and Lloyd Aviation (Pty) Limited ("Bates & Co"). (This company is the first appellant
in case A and the appellant in case B.)

(iii) On 21 December Beechcraft assigned its rights and interests in the hire-purchase agreement to a finance company, Beech Acceptance Corporation Inc. (Beech Inc.").

(iv) On 21 December 1977 the Aviation Insurance Company Limited ("the Insurer") issued, at the instance of Bates & Co, a policy of insurance covering loss or damage

/ to

4
to the aircraft. The insured in terms of the policy was Bates & Co. The policy also covered any loss suffered by Beechcraft and Beech Inc. The policy also provided that the Insurer would indemnify a pilot of the aircraft in

respect of claims by dependants of any passengers.

(v) On 4 April 1978, as already stated, and at
09h05 while being piloted by George Bates ("the Pilot"),
the aircraft crashed into the Soutpansberg.

(vi) At the time the Pilot and his two passengers were on a trip with the object of obtaining a hunting con-cession in the Louis Trichardt area. This trip was a private trip and had nothing to do with the business of Bates & Co. The company allowed the Pilot to use the aircraft for his own purposes whenever he wished to do so.

(vii) The Insurer in terms of the policy paid Beechcraft and/or Beech Inc. the sum of R131 650,40, being the outstanding balance under the hire-purchase agreement. This sum was
paid in May 1978.

/ (viii) The
5 (viii) "The Insurer obtained a cession of action from Beech Inc. and Beechcraft in May 1978. This cession included such rights as the cedents had against Bates & Co and the Pilot's deceased estate.

(ix) Gordon Lang and Richard Anthony Lyons were duly appointed as joint executors of the deceased estate of the Pilot. I shall refer to them as "the Estate". The Estate is the second appellant in case A.

(x) The widows of the two passengers have each made a claim against the Estate for loss of support for herself and her children. The total of these claims is R269 290,00.

(xi) After the crash the Insurer contended that the aircraft was on the relevant date flown in contravention of certain statutory air and navigation rules; that this was in breach of the conditions of the insurance policy; that the Pilot had been negligent; that it was not obliged to indemnify Bates & Co for any loss it had suffered due to the crash; that it was not obliged to indemnify the

/ Pilot

Pilot against claims by the dependants of the passengers; that it was entitled to recover from Bates & Co and the Pilot the above sum of R131 650,40 which it was in terms of the policy obliged to pay.

(xii) The above contentions were denied by Bates & Co and by the Estate.

(xiii) The Court a quo, in the two cases before it, upheld the contentions of the Insurer and granted relief pursuant to his findings. The appeals are against the findings and the relief granted.

Before setting out the issues before this Court it is necessary to give some detail in respect of the contracts mentioned in paras. (ii), (iii), (iv) and (viii) above.

The hire-purchase agreement (see para (ii) above) contained the following clauses:

/ "1 ALL

"1. ALL RISKS attaching to the Aircraft shall pass to the Purchaser forthwith upon his signing of this agreement but the ownership and dominium therein shall remain vested in the Seller until all sums payable hereunder shall have been fully paid, when the ownership of the Aircraft shall pass to the Purchaser.

2. The Aircraft shall forthwith be insured and shall be kept insured during the currency of this agreement by and at the expense of the Purchaser (Bates & Co.) with an Insurance Company to be nominated by the Seller against Loss or Damage to the Aircraft, third party liability and legal liability to passengers and against fire, theft, accident risks, Breach of Warranty of Air Navigation Regulations and such other risks as the seller may from time to time direct. Such insurance policy or policies shall hold covered the respective insurable interests of the Purchaser and the Seller and the said policy or policies shall specifically cover full flights and ground risks in respect of the aircraft to an amount not less than the full balance outstanding by the Purchaser under this agreement from time to time."

In the contract mentioned in para (iii) above Beechcraft assigned all its rights and interests in the above hire-purchase agreement to Beech Inc. and received from the latter the amount due to it under the hire-purchase agreement.

/ The...

The insurance contract, see para, (iv) above, contained the following important provisions (the lettering is mine):

(a)"Section I - Loss of or Damage to Aircraft

the Company (the Insurer) will at their

option pay for or make good accidental loss of
or damage to the aircraft as described in
the Schedule hereto ..."

(b)"Section II - Third Party Liability

the Company will indemnify the

Insured in respect of all sums which the

Insured shall become liable to pay

as compensation in respect of bodily

injury (fatal or non-fatal) of third

parties caused directly by the aircraft "

(c)"Section III - Legal Liability to Passengers

Subject to the terms conditions and limits. hereof the Company will indemnify the Insured in respect of all sums which the Insured shall become liable to pay and shall

pay as compensation in respect of

accidental bodily injury (fatal or non-fatal)
to passengers while on board the aircraft "

(d)"Legal Liability of Pilots

It is hereby declared and agreed that the indemnity granted under Section II - Third Party Liability, and Section III—Legal Liability to Passengers, shall extend to include the Legal

/ Liability

Liability of any pilot who flies the

aircraft with the express knowledge and

consent of the Insured. "
(It was accepted that this clause was intended to cover a pilot, who was flying the aircraft with the consent of Bates & Co, against liability to passengers in the aircraft.) I shall refer to this clause as the extension clause. The proviso to this clause reads:

"Provided always that:-

the said pilot

(a)

(b) shall, as though he were the Insured,
observe, fulfil and be subject to the
terms, conditions, warranties

contained in the policy."

(e) "WARRANTED THAT -

The Insured will comply with all air navi
gation and airworthiness orders and require
ments issued by any competent authority
and will take all reasonable steps to
ensure that such orders and requirements
are complied with by the Insured's agent(s)
and employees "

I shall refer to this clause as the Warranty clause.

/ (f) "BREACH

10

(f )"BREACH OF WARRANTY ENDORSEMENT

In consideration of an additional premium of R136,00 IT IS UNDERSTOOD AND AGREED THAT: The insurance afforded by the Policy shall not be invalidated as regards the interest of Beech Acceptance Corporation of Wichita, Kansas USA and Beechcraft Sales S.A. (Pty) Ltd (hereinafter referred to as "The Owners") by any act or neglect of the Insured........"

I shall refer to this clause as the Breach of Warranty
endorsement.

(g)"BREACH OF AIR NAVIGATION REGULATIONS

It is agreed that any breach of Air Navigation directions and/or regulations or contravention of the Insured's flying instructions and regulations without the Insured's knowledge and consent shall not invalidate a claim by the Insured under this insurance but the individual causing such breach or contravention shall not be entitled to indemnity hereunder."

(h)"GENERAL CONDITIONS

The due observance and fulfilment of the terms provisions conditions and endorsements of this Policy shall be conditions precedent to any liability of the Company to make any payment under this Policy".

(i) The insurance policy also contained a clause

which provided that upon payment by the Insurer, pursuant to the policy, of any sum to the "owners" of the

/ aircraft

aircraft the Insurer would be subrogated to all the

rights of the "owners".

The schedule attached to the insurance policy

contains the following paragraph:

"Purposes for which Aircraft USED:- Private, business, pleasure, industrial aid flights and charter by National Airways Corp. (Pty) Ltd and/or Air Lowveld (Pty) Ltd and/or Southern Sphere Mining (Pty) Ltd."

The contract of cession mentioned in para. (viii) above is dated 16 May 1978. It refers to the hire-purchase agreement and records that Beechcraft and Beech Inc: have claims against Bates & Co and the Estate arising out of the destruction of the aircraft; that the Insurer has agreed to make payment to them of the sum of R131 650,40 in terms of the "Breach of Warranty Endorsement"; that in consideration of such payment they each cede to the insurer -

"all our respective rights, title and interest in and to -

(a) the said claims ;
(b) the said Agreement and the said Aircraft "

/ I turn

I turn now to summarise the pleadings. In case A the Insurer in its main claim claimed R131 650,40 from Bates & Co and the Estate jointly and severally; in the alternative it claimed the amount from Bates & Co only. In the particulars of claim, as amplified by further particulars, the hire-purchase agreement and cession are set out. Thereafter it is alleged that the Pilot was a director and employee of Bates & Co; that he was acting in the course of his employment; that the crash was due to his negligence; that the aircraft was destroyed; that Beechcraft,alternatively Beech Inc, suffered damage in the sum of R131 650,40. Included in the acts of negligence were allegations that the Pilot failed to divert from adverse weather conditions; attempted a navigational flight when under the prevailing conditions it was dangerous and/or reckless and contrary to flying regulations for a pilot of his qualifications so to do;

/ entered

entered instrument flying conditions when he was not qualified or competent so to do. I pause to say this claim is based on delict.

Alternatively to the above the Insurer claimed the above sum from Bates & Co alleging that in breach of the policy it had violated the air navigation regulations by allowing the Pilot, in his aforesaid capacities, to enter instrument flying conditions when he was not qualified so to do and to fly below the prescribed minimum altitude above ground level. The particulars then go on to allege that consequent upon the said breach of the terms of the policy it, the Insurer, had suffered damage and that, when the contract of insurance was concluded, it was within the contemplation of Insurer and Bates & Co that the Insurer would suffer damage if Bates & Co should breach the terms of the policy in the manner alleged. This claim is based on breach of contract.

/In

In the plea to the main claim both appellants deny that the Pilot was acting as the servant of Bates & Co; that he was negligent; that the air navigation regulations had been contravened; that the Insurer suffered damage; that it was contemplated that it would suffer damage if Bates & Co breached the policy in the manner alleged. In the plea to the alternative claim Bates & Co pleaded that in taking cession of the rights of Beechcraft and Beech Inc. the Insurer was "effectively exercising its purported rights of subrogation under the policy"; that as Beechcraft and Beech Inc. were insured parties under the policy, the Insurer could not be subrogated to any claim by Beechcraft or Beech Inc.

In case B Bates,& Co sued the Insurer. In its amended particulars of claim it alleged that in terms

of the policy the Insurer had undertaken to indemnify it

against accidental loss of the aircraft and against all sums

/up

up to Rl 000 000 which it, Bates & Co, became legally liable to pay in respect of accidental bodily injury, fatal or non-fatal, to passengers; that the latter indemnity extended to include the legal liability of any pilot. who flew the aircraft with its knowledge and consent; that the Insurer had contracted to pay the value of the aircraft if it was accidentally destroyed; that the Insurer was obliged to pay it such value; that the Pilot was flying the aircraft with its knowledge and consent; that claims had been made against the Estate; that the Insurer disputed that it was obliged to indemnify the Estate against such claims; that Bates & Co was entitled to ask, and did ask, for an order declaring that the Insurer was obliged to indemnify the Estate in respect of the said claims.

/In

In its plea the Insurer alleged that Bates & Co had not complied with the terms of the policy in that, inter alia, there had been a breach of the Air Navigation Regulations and Rules of the Air; that it was not liable to indemnify Bates & Co in the sum claimed or any amount; that it was not obliged to indemnify the Estate as alleged. In the alternative the Insurer pleaded that in the event of the Court finding that it had any liability to Bates & Co it was limited to R46 549,60 by virtue of the fact that it had in terms of the Breach of Warranty Endorsement paid the sum of R131 650,40 which fell to be deducted from the value of the aircraft. I pause to say that Bates & Co has accepted that if it succeeds, the above sum must be deducted from the agreed value of the aircraft (R178 200) and now claims only R46 549,60, plus interest thereon a tempore morae.

It remains only to say that the onus to prove

/ negligence

negligence and/or a breach of a condition of the policy was on the Insurer. See in the latter regard Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) at 644 D and 645 A.

Counsel for the Insurer conceded that it had not been established that the Pilot was an employee of Bates & Co. He submitted that on the evidence it was shown that Bates & Co was, as it were, the alter ego of the Pilot and that he was acting qua Bates & Co at the time of the crash. He said if the Court deemed it necessary he would ask for an amendment of the pleadings to this effect. 1 shall deal with the relevant issue as if such an amendment had been granted. On this aspect it must be remembered, where the relationship of master and servant is absent, liability for the negligent driving of a vehicle will arise when the vehicle is being driven on behalf of

/ the

the owner and subject to his control; see the cases cited in Braamfontein Food Centre v Blake 1982 (3) SA 248 (T) at p 249.

The issues which arise from the pleadings and the submissions by counsel in this Court are the following:

A. Did the Pilot act qua Bates & Co?

B. Was Bates & Co entitled to indemnity under the
policy even if the Pilot was negligent or breached
the Warranty clause?
C. Did the Pilot breach Air Navigation Regulations
or Rules of the Air?

D. Was the Pilot negligent?
E. Did the owner Beechcraft suffer damage?

AD A AND B ABOVE
Mrs Bates testified that the shareholders and directors of Bates & Co were the Pilot, Mr Lloyd and herself. She stated that the Pilot was entitled to use the aircraft

/ whenever
19 whenever he chose and for whatever purpose he chose; that consent so to do had been given verbally; that a few days before the flight of 4 April 1978 he informed the directors that he intended to undertake the flight in question; that "in so far as it was necessary the said three directors consented to such flight". In cross-examination she explained that Bates & Co owned the aircraft (i.e. the Beechcraft Baron) and a Beech King 200; that Bates & Co were paying the instalments due under the hire-purchase contract; that Bates & Co did not have a charter licence but was doing aircraft charter under the umbrella of National Airways and a couple of other companies; that the aircraft was only 4 months old when it crashed; that it had been used for such charter work; that on the occasions it was flown under the umbrella of National Airways, Bates & Co made a profit. Mrs Bates was asked whether the Pilot was "the controlling director" for that aircraft and

/ she

she answered: "Probably, yes". She also said that he did expect income from Bates & Co - "but not in enormous amounts". It will be remembered, that in the schedule to the insurance policy it was stated that the aircraft would be used inter alia for private business, pleasure and for charter work for National Airways Corp. (Pty) Ltd and certain other named airways.

Counsel for the Insurer urged that even though the evidence did not prove that the Pilot was an employee, it did show that he controlled the activities of this aircraft; that this was not a case of vicarious responsibility but a case in which he was the directing mind of Bates & Co in regard to the aircraft; that it followed that he was acting qua Bates & Co when he was flying the aircraft; that his conduct should be attributed to Bates & Co. In support of this submission he quoted Levy v Central Mining and Investment Corporation Ltd 1955 (1) SA 141
A at p 149 H where CENTLIVRES CJ referred to what was said

/ in

Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd (1915) A C 705 by Viscount HALDANE L C at p 713 to the effect that a corporation can be guilty of actual fault only where there is fault of its board of directors or of some person who "is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation". See also The Lady Gwendolen (1965) 2 All ER 283 (CA) at p 302 H.

The evidence of Mrs Bates shows that Bates & Co was the "owner" of the aircraft in the sense that it had acquired the aircraft by way of a hire-purchase agreement; that Bates & Co acquired and used it to do charter work from which it made a profit; that the Pilot was entitled to use the aircraft whenever he so wished. This evidence does not prove that the Pilot was the directing mind of Bates & Co. It is perhaps necessary to be reminded that a director and shareholder of a company and the company are

/ separate

separate and distinct legal entities which can enter into valid contractual relationships with each other; see Lee v Lee's Air Farming Ltd (1961) A C at p 13. In the present case Bates & Co had contracted to allow the Pilot to use the aircraft whenever he wished so to do. In this regard Mrs Bates said: "He was a very correct person in the fact that he had great respect for myself and Mr Lloyd as directors and he would always have mentioned to us" that he intended using the plane.

In respect of these two issues in the appeal the

interpretation of the Warranty Clause is important. A
similarly worded clause was interpreted in Aviation Insurance

Co of Africa Ltd v Burton Construction (Pty) Ltd 1976 (4)

SA 769 (A) at p 775 B where the following is said:

"It will be noted that the warranty has two distinct parts. The subject of navigational orders and requirements is common to both parts; but the obligation of compliance therewith differs in the two parts. The first obligation is absolute:

/ the

In respect of these two issues in the appeal the

interpretation of the Warranty Clause is important. A

similarly worded clause was interpreted in Aviation Insurance
Co of Africa Ltd v Burton Construction (Pty) Ltd 1976 (4)

SA 769 (A) at p 775 B where the following is said:

/ the

the second requires only the taking of 'all reasonable steps'. The two are as different as chalk is from cheese. What is the reason for this difference? When does the first part apply and when the second? If the insured were a natural person, the position would be clear: if he were acting alone, whether as pilot or otherwise, he would personally have to comply with all navigational orders and requirements: an absolute obligation. But if he employed an agent or servant, whether as pilot or otherwise, he would merely have to take all reasonable steps to ensure that he complied with the navigational orders and requirements. Knowing this, the insurer used the same printed form for the insurance of the respondent company's helicopter. Is there any reason to suppose that the warranty should be interpreted differently on that account? Why should the insurer be in a better position merely because the insured is a company? In particular, if the company employs a pilot to fly the helicopter, why cannot the second part of the warranty be applicable, namely that the company must take all reasonable steps to ensure the pilot's compliance with the air navigational regulations? How does it do this? Basically by employing a qualified and responsible pilot".

It was not, nor, as will be seen later, could it have been, suggested that the Pilot was not a qualified and responsible pilot.

/ The

The result of all the above is that it has not been shown that Bates & Co (the insured corporation) was negligent or was vicariously responsible for any act of the Pilot or had breached the warranty clause. It follows that the main claim against Bates & Co (i.e. the claim based on delict) and the alternative claim (i.e. the claim based on breach of contract) in case A should both have been dismissed and that in Case B, Bates & Go's claim to be indemnified in the sum of R46 549,60 should have been allowed in the Court a quo.

The above findings do not assist the Estate in regard to the claim against it in case A nor do they assist in deciding the issue of the declaratory order sought by Bates & Co in case B. These aspects fall to be considered in the issues C, D and E stated above.

Before dealing with issues C and D it is necessary to establish the facts within which they are to be decided.

/ These

These include the qualifications and competence of the Pilot, the relevant Air Navigation Rules and Rules of the Air, the weather conditions and the topographical features as they were and as shown on the official map.

The Pilot

He had 1347 hours of flying experience. He held an American commercial pilot's licence and a commercial licence from the Republic of Botswana. These licences included an instrument rating. His flying experience included 180 hours of instrument flying. I will later set out the importance of an instrument rating. His American licence had been validated by the Republic of South Africa's authorities. In the Court a quo it was contended on behalf of Bates & Co and the Estate that this meant that he held a South African licence which included an instrument rating. Reliance for this contention was based on Air Navigation Regulation 2.17.1. Counsel (he did not appear in the Court a quo) who appeared in this Court rightly conceded

/ that

that his South African licence did not include an instrument rating. One has only to read the validating document to realise this.

Mr Langenegger was the sales manager of Beechcraft Sales South Africa (Pty) Ltd, a company which sold American aircraft in the Republic. He is himself a pilot and he knew the Pilot and had flown with him frequently. The following extract from his evidence is significant.

"En dra u - het u al ooit die oorledene, mnr Bates, gesien voordat hy uitgaan op 'n vlug, die ag wat hy slaan op die vliegtuig, sy beplanning?— Ek het/ en ek kan miskien tyd bespaar deur 'n paar antwoorde te gee. Hy was 'n man wat altyd pligsgetrou sy

vliegtuig nagesien het voordat hy opgestyg het, en hy het versigtig te werk gegaan, dieselfde met sy vriend en kollega en vennoot, mnr James Lloyd. Hulle was voorbeeldig in dié verband."

/ The Air

The Air Navigation Regulations, 1976, and Rules of the Air Regulations, 1975.

I shall refer to these Regulations as ANR and Rules
respectively. They were both proclaimed in terms of sec

22 of the Aviation Act, 1962 (Act 74 of 1962). There
is a great deal of duplication. I will avoid repetition.
The Insurer set out a list of the ANR and Rules which it
alleged had been breached. Only the following are relevant
to the issues.

ANR 1. "'Flight visibility' means the visibility

forward from the cockpit of an aircraft

in flight."

Rule 1. 'IFR' means instrument flight rules (IFR)."

"'IMC' means instrument meteorological conditions (IMC).

'instrument meteorological conditions' means, atmospheric conditions expressed in terms of visibility, distance from cloud, or ceiling, less than the minima prescribed for VFR flight in Chapter 4 of these regulations.

/'VFR'

28 'VFR' means visual flight rules (VFR)."

Rule 2.4(1). "The pilot-in-command of an aircraft shall

be responsible for the operation of the aircraft in accordance with the provisions of these regulations, except that he may depart from these regulations in circumstances that render such departure absolutely necessary in the interest of safety."

Rule 2.5 requires a pilot to familiarise himself with

all available information for the proposed operation.

Rule 3.1 "An aircraft shall not be operated in a

negligent or reckless manner so as to endanger life or property of others."

Rule 3.2(1). "Except when necessary for taking off or

landing, or except by individual permission from the Commissioner for Civil Aviation aircraft shall be flown -

(a)

(b) at a height not less than 500

feet above the ground or water unless. the flight can be made without hazard or nuisance to persons or property on the ground or water."

/ Rule 4.1

Rule 4.1. "A VFR flight shall be conducted so that

the aircraft is flown with visual reference to ground by day and to identifiable landmarks by night and in conditions of visibility and distance from cloud equal to or greater than those specified in the following table:

Airspace Flight Distance

visibility from Cloud.

At or be- one and Clear of low 1 000 half km. cloud. feet above the surface.

(These distances and conditions apply to airfields such as the one at Louis Trichardt, i.e. airfields which are uncontrolled and have no radar or radio facilities.)

Chapter 5 of the Rules is headed: "Instrument

Flight Rules". Rule 5.3 reads:

"Pilots shall be licensed for flight under the instrument flight rules."

ANR 2.4(10) and 2.6 set out inter alia that no person

shall act as pilot in command of an aircraft flying in IMC,

/ unless

unless he is the holder of a valid instrument rating.

The weather conditions.
All the evidence set out hereunder was given by witnesses called by the Insurer.

The aircraft left Lanseria airport at 07h48. At 08h45 it flew over the Pietersburg navigation beacon. There was radio communication between the air controller of the Pietersburg aerodrome, a Major Venter, and the Pilot. The Pilot reported his height as 9 500 feet above sea level. He asked for leave to fly over the beacon. Major Venter testified that the aerodrome was 4 100 feet above sea level. At that time the cloud cover was 8/Bths. He estimated the cloud base to be between 600 and 1 000 feet above ground level. He conceded that the fact that he could see only cloud above him did not mean that the pilot of the aircraft could not see the ground to the left or right or ahead of him (the pilot). A passage in his evidence reads:

/ "Hy kan..

"Hy kan tien teen een sien waar die goed (the cloud) ophou waar ek nie kan sien nie."

Major Venter was quite sure that the pilot knew exactly

where he was.

Mr Keyworth was the chief meteorologist in the Weather Bureau of the Department of Transport. He detailed his qualifications. He had a satellite photograph which showed the cloud coverage between Louis Trichardt and Pieters-burg at 09hl5 on 4 April 1978. He was able to pinpoint where Pietersburg and Louis Trichardt were under the cloud. He testified that the photograph showed that "on the straight line" it was mainly cloudy between Pietersburg and Louis
Trichardt; that there were holes in the cloud; that there was "almost a tongue of thin cloud or no cloud" approximately midway between Pietersburg and Louis Trichardt but "more to the east of the straight line"; that a pilot above the cloud would have been able to see the ground.

/ Mr Keyworth

Mr Keyworth had also studied the official records of the weather station, made at 08h00 at Pietersburg and Mara. He stated that at that time the base of the cloud at Pietersburg was 600 feet and the visibility under the clouds was 25 kms in horizontal distance; that at Mara, some 25 kms west of Louis Trichardt, the base of the cloud was 2 000 ft. and the horizontal visibility was 10 kms. At the pre-trial conference the parties, who had had the benefit of Mr Keyworth's expert opinion, agreed that at 09h00 the cloud base at Pietersburg was 1 000 ft. above ground level and the horizontal visibility was 40 kms. As stated, this was agreed and Mr Keyworth was not asked to deviate from this. I shall, however, deal with the issues on the basis that the cloud base was between 600 and 1 000 ft above ground level.

Mr Du Plessis had previously been an air mechanic in the South African Air Force. He left Louis Trichardt

/ that

that morning at 07hOO hours and travelled on the main road (it is tarred) which runs from Louis Trichardt to Mara; he proceeded to a farm near Nebo; there he was repairing a water tank when he saw the aircraft. This place he estimated was about 1 km from Ottoshoogte. He testified that Louis Trichardt was clear of cloud or mist; that the

road up to Ottoshoogte was clear of cloud or mist; that it crossed Ottoshoogte and that Ottoshoogte was in cloud; that from Ottoshoogte the road to where he was working was

clear of cloud or mist; that this place was about 50 metres
north of the Mara main road; that he was looking east when he

heard and saw the aircraft which was south of him when he

first saw it; that it was about 200 ft above the ground;

that this estimate could be out by 50 ft; that the aircraft

passed between him and Ottoshoogte; that it was travelling

from south to north; that it must have passed directly

over the airfield or over its western boundary; that he

could see the aircraft clearly; that it was flying under

/ the

the cloud base; that it was flying slowly but under con-trol; that there was a high ridge running east to west just south of the road; that he only saw the aircraft as it came over the ridge; that although it was clearly visible from the air the pilot of the aircraft would not have been able to see the road until he had crossed the ridge; that he could see the foot of the Soutpansberg but above that it was covered in cloud; that shortly after the aircraft passed him the engines were opened up ("oopgemaak") and it started to climb; that it disappeared into the cloud on the Soutpansberg and he heard the crash. An aspect of his evidence on which some reliance was placed by the

Insurer was that in similar conditions there was usually

mist from Bandolierkop to the Soutpansberg. He does not

say whether this was so on that day. In fact he does not

suggest that one could not see under the clouds to the south
of the airfield. Had this been so this would have been

/ put

put to him, especially as he had testified that from Bandolierkop to Louis Trichardt the ground surface was level.

Gerald Murphy was employed by the Forestry

Department. When he left Louis Trichardt very early

that morning the sky was overcast but Louis Trichardt
was clear of mist. He proceeded to his place of work;

this was very much higher than Louis Trichardt; he heard

the aircraft but did not see it. His evidence does not
assist in regard to the cloud or mist conditions in the
vicinity of the airfield. An extract from his evidence

suggests that there was no mist south of Louis Trichardt.

It reads:

"En toe u nog op Louis Trichardt was, was die uitsig - kon u nog in die Pieters-burg rigting sien, ek neem aan daar was nie mis in daardie rigting nie?-- Nee, ek glo nie, maar jy kan nie van my plek af sien nie.

ja.-- Maar ek glo nie daar was mis nie.

U glo nie daar was mis in daardie area nie?-- Ja."

/Had

Had he observed mist after he left Louis Trichardt, in the area south of Louis Trichardt, he would probably have been asked to give that testimony.

Dinani is apparently the only employee at the airfield. He keeps the office buildings and surrounds clean. He was only asked "'n geruime tyd" after the events about the crash and the weather conditions. He did not know south from north or east from west. He did however know where places such as Messina and Mara were when he was at the airfield. He testified that he remembered the day of the crash; that he heard the aircraft but could not see it; that the sound of its engines never varied during the time that he heard it; that the aircraft flew over the airfield; that he could not see it because the mist was down to the ground at the airfield; that the sound of the engines suddenly stopped. In cross-examination he said that it was on the Messina side of the airfield

/ when

that he first heard the aircraft, and from the sound of the engines it was flying normally. From hand indications which he made in the Court a quo it appeared that he thought

it was flying from west to east.

Colonel Jandrell, a very experienced pilot with

11 000 flying hours and considerable instructional and
general flying time, was called by the Insurer to give expert evidence. His evidence will be discussed later. Having testified about the ability of someone in Dinani's position and the letter's inability to see because of the mist, he said in answer to the Judge a quo;

"Yes, he is talking about the pilot now?-- Yes, but he may see along the edge of the mist you see, Sir. Mist has a character of being in puddles or pools.

Yes, that is right.-- So, therefore, it is possible for the pilot to see beyond the edge of the mist whereas the man on the ground cannot see beyond the edge of the mist because he is in the cloud."

/ Captain

Captain Worthington, the expert called by

Bates & Co and the Estate, when testifying about the
mist at the airfield, said:

"What is there - is there any possibility of the... how far would you say that the mist which he (Dinani) observed could extend? Can one get any idea of how far it would extend or how localised it would be?— Mist, as Col Jandrell pointed out, is often quite local in its effect. It is low lying in marshy ground. I have on observation of this larger scale map observed that there is a stream on each side of the airfield which would be conducive to this and the puddle of mist... the mist could well have been a puddle, as have been suggested. The thickness probably might not have been more than 50 feet; it could be quite thin."

Col Jandrell, in another context, said:

"Very often a pilot can see a hole in the cloud which a man on the ground cannot see, but also the pilot has the other advantage; he can see bad weather further than the man on the ground can see. So my point is this, if I can give you two answers: the one answer is that he would have had a better view of the prevailing

/ bad

bad weather towards Louis Trichardt than anybody else on the ground. The second point is that I cannot say whether there were any holes or not through which he could see the ground.

Yes, we do not know how he came below the cloud?— We do not know that."

The topographical features.
These are to be gathered from the official aviation 1/1 000 000 map found in the aircraft and from the evidence of Du Plessis and Capt. Worthington. The map shows the main road from Pietersburg to Louis Trichardt. It passes through Bandolierkop. This road runs approximately from south to north. A railway line from Tzaneen, ie from an easterly direction, runs through Bandolierkop and then runs on to Louis Trichardt. This line lies well to the west of the road but also runs approximately south to north until it reaches a point which is "two to three miles" from the airfield, where it turns at an angle of nearly 35 in a north-easterly direction towards

/ Louis Trichardt

Louis Trichardt. From Louis Trichardt the railway line to Mara runs for a very short distance in a south-westerly direction at an angle of near 215 . These railway lines running at these angles of 35 and 215 are parallel and very close together. The railway line to Mara there-after runs almost due west. There is also a power line running from Pietersburg to Louis Trichardt. The air-field is shown on the map slightly north of the place where the two railway lines make their bends. It is just north of the Mara line. Further north of the line to Mara is the main tarred road to Mara. This is clearly demarcated and runs almost due west. The airfield is depicted as a circle situated between the Mara line and the Mara road. It appears clearly from the map that the airfield lies very close to the points where the two railway lines bend as detailed above. These roads, the railway lines, the power line and the area of the airfield

/ are

are all so clearly marked on the map that it needs no expert
to tell a court that a pilot to whom the ground is visible
could not avoid realising that the road from Pietersburg
to Louis Trichardt runs near the airfield; that the rail
way line to Louis Trichardt at the place where it bends,
is close to the airfield (it is in fact within "2 or 3
miles); that the railway line to Mara bends just south
of the airfield; that the airfield lies very close to
and, as it were, in this bend; that the road to Mara is
north of the airfield and almost parallel to the Mara
railway line. The ground south of the airfield is flat
for more than 40 kms and one would not have to be directly
over the road or railway line to see them, but they would be seen before one actually crosses them, The map clearly shows the Soutpansberg to the north of the Mara road, running from west to east and parallel to the Mara road. So much for what is shown on the map. What is

/ not

not shown on the map is a ridge which, so it was common cause at the trial, is 328 feet higher than the airfield and which is immediately south of the Mara road.

It is important to note that both Du Plessis and Capt Worthington testified that the pilot of a low-flying aircraft would not be able to see the road before crossing the ridge. The evidence does not indicate whether the ground rises gradually from the airfield to the top of this ridge or whether it is a steep or moderately steep rise. Photographs taken from ground level do not assist in ascertaining when the Pilot should have realised that there was such a ridge, nor was it shown that he should have realised that the Mara road was, as it were, "masked" by the ridge.

Another feature which is not shown on the map is a ridge to the west of where Du Plessis was standing. This ridge apparently rises quite steeply and runs from south to north. Du Plessis testified that this ridge and

/ Ottoshoogte

Ottoshoogte were covered in mist or cloud. Although Du
Plessis is no expert as to the turning radius of an aircraft,
it is interesting to note that he said -

"Regs kon hy nie (draai nie) want Ottoshoogte was toe.

Maar die vraag is nou toe u horn gesien het daar waar u was net oor die pad, wat

kon hy toe doen? Kon hy nog links draai?— Nee, dit was toe te laat gewees."

It appears from the evidence of Du Plessis and Worthington that the forward vision of the Pilot from where Du Plessis was, was 2 kms and that the vision to the Pilot's left and right was considerably less. The distance from Du Plessis to the airfield was approximately 1½ kms. The airfield consisted of two strips in the shape of a T. These were merely strips where the grass was cut and were not prepared bases. The building on the airfield is apparently only an office or two.

The importance of objects on the ground is well
/ illustrated

illustrated by the evidence given by Col Jandrell and Capt Worthington which will be set out later.

AD C AND D ABOVE

The expert witnesses called by the parties were Col Jandrell for the Insurer and Capt Worthington for Bates

& Co and the Estate. The evidence given by Col Jandrell takes up 170 pages of the record and the evidence given by Capt Worthington 97 pages. Col Jandrell was led at length on the interpretation of the ANR and Rules. He gave lengthy opinion evidence as to whether or not the Pilot had been negligent or had breached the ANR or the Rules. Capt Worthington was also asked to give evidence on the latter aspects. All this evidence was inadmissible in that it was for the Court a quo to interpret the ANR and Rules. The evidence of experts is admissible only whenever by reason of their special knowledge or skill they are better qualified to draw inferences than the judicial

/ officer

officer. In short, their evidence is admissible on subjects upon which the court is incapable of forming an opinion or would need assistance so to do; see Hoffman and Zeffert, South African Law of Evidence, 3rd ed at p 83.
The evidence of the two experts was thus admissible to

assist the Court a quo by telling it what all pilots would probably

do in the conditions present in this case. Once the facts
had been established and that evidence had been given, it
was the Court's function to decide whether there had been
negligence or the breach alleged.

It would be a task of supererogation to set out the evidence given by the two experts. I will set out the aspects of their evidence which are relevant.

There is no need to set out Capt Worthington's qualifications and flying history in detail. I merely wish to stress that he was a pilot with 16 700 flying

/ hours
46 hours of which 6 500 hours were instructional and which in turn included civil and military instruction. He would thus know what pilots would be expected to do in all circumstances . He would also know how visibility would be affected by cloud and mist conditions. He had flown to Louis Trichardt via Pietersburg on an inspection in loco and had been to the scene of the crash, the place where Du Plessis was at the time, the airfield and had also inspected the surrounding area. He had studied the aviation 1/1 000 000 map and other official maps of 1/500 000 and 1/50 000. He testified that the Pilot had filed a flight plan which he need not have done; that this indicated that the Pilot was a person who took considerable care in planning his journeys. This confirmed that what he had learned about him was correct, viz. that he was a careful and responsible pilot; that having regard to his qualifications the Pilot was experienced

/ and

and competent to fly in IMC (he did not suggest that the Pilot's licence qualified him to fly a South African registered aircraft in such conditions); that he accepted that there was 8/8ths cloud at Pietersburg; that he agreed with Mr Keyworth's evidence that there were gaps in the cloud; that a pilot of an aircraft would have flown with visual reference to the ground and would have been able to descend through a gap in the cloud and thereafter fly under the clouds and have a forward visibility of 25 kms. He said that this is what all pilots would have done. Although he went on to describe what the Pilot would have done, it is implicit in his evidence that this is what all pilots would probably have done. He testified that the Pilot would have studied the map; that he would have seen the roads, the railway lines, the power line, the circle denoting the airfield and the Soutpansberg. He also said that the railway line and power line formed a funnel and that this funnel and

/ the

the other physical features are what the Pilot would have had regard to; that the Pilot would have realised that the airfield was within the circle and just north of the Mara railway line and south of the Mara road; that he would have known that after he crossed the Mara railway line he should see the airfield before reaching the Mara road; I venture to again say that a court would not need an expert to tell it that a pilot would study a map before taking off and would see all the physical features thereon and have regard to them. Capt Worthington gave the distances from the airfield to where Du Plessis
was standing and to where the crash occurred. His distances were arrived at by measurements from the maps. The distance from the airfield to the Soutpansberg was 4 to 5 kms and from the Mara road to the mountain was 3 to 4 kms. However that may be, it is clear that even on Du Plessis's evidence the distance from the airfield to Du Plessis was more than 1½ kms and the distance he gave from there to the Soutpansberg varied from 1½ to 2 kms. Capt Worthington

/testified

testified further that the ground surface prior to reaching the airfield area was level for some 40 kms; that a pilot would have been able to see the ground; that having regard to Du Plessis's and Dinani's evidence, the reason why the Pilot did not see the airfield was because there was a local patch of mist over it. It will be remembered that Col Jandrell and Capt Worthington both testified as to such type of mist patches. Capt Worthington stressed that the map did not show the ridge south of the Mara road or the ridge to the west of where Du Plessis was and that the southern ridge is 328 feet higher than the airfield. This in fact was common cause.

Du Plessis said when the aircraft passed over him the aircraft was 200 feet (or possibly 250 feet) above him. There is no evidence to say how much higher than the ridge the aircraft was when it crossed the ridge. It is thus not possible to say how high the aircraft was

/ when

when it passed over the airfield. Capt Worthington also
gave evidence as to aircraft speeds. He said the cruising
speed of this aircraft was 160 kms per hour and that this
would probably be reduced to 120 kms per hour if the Pilot
was looking for the airfield to land; that the Pilot, if
he saw the Mara road timeously, would know that that was
his safety limit. He would probably have turned before reaching
the road; he did not (and could not) see the road timeously
because of the ridge (the existence of which he did not know);
that he was then in a critical situation and had to decide what
to do; that it was generally accepted in the aviation world
that the reaction time in such a situation would be 5
seconds; that the Pilot could not turn either right or

left because Ottoshoogte and the western ridge were covered

in cloud; that an aircraft gains height more rapidly ,
when flying straight than when turning; that in this
dilemma the Pilot, as testified by Du Plessis, in-

/ creased

creased the engine power and his speed and proceeded straight on to climb as rapidly as he could in an effort to get over the Soutpansberg which was 2 600 feet higher than the airfield; that he very nearly succeeded as he crashed only 400 feet from the top of the Soutpansberg. If one has regard to Du Plessis's evidence it will be seen that Capt Worthington's reconstruction is not conjecture but a proper inference from the physical facts and the facts proved by Du Plessis.

An important feature is that Capt Worthington stressed that it is most unlikely that the Pilot could
have been so accurate as to have arrived over the airfield by the use of instruments; that in order to so arrive he must have used the physical features already detailed. There is no doubt from Capt Worthington's evidence that the Pilot knew where he was. The following passage from Col Jandrell's evidence indicates that he too was of the

/ view

view that the Pilot knew where he was:

"The Pilot in the air has a larger area which he can see so it is possible that he saw the environment, he probably saw Louis Trichardt, he knew where the airfield was and so one presumes that he could see better than the man standing on the ground."

Col Jandrell, who was as fully qualified an

expert as was Capt Worthington, testified that, having

listened to the evidence, especially that of Venter, Du

Plessis and Dinani, in his view the weather was so bad

that the Pilot should not have proceeded beyond Pieters-
burg. Nor should he thereafter have attempted to find

the airfield and should not have proceeded beyond where

the airfield was and that by doing so he breached the ANR

and Rules. He did not, however, dispute the evidence
given by Keyworth; he conceded that if there were the

holes and the "funnel" in the clouds, a pilot would see

the ground and would not be in IMC; that there was no

/ evidence

evidence to establish where the Pilot descended; that this
could have been done by coming down through one of the
gaps in the cloud in VFR conditions; that thereafter the
Pilot could have flown at 500 feet and with full forward
visibility; that Dinani's evidence was consistent with a
pool of mist over the airfield; that on Du Plessis's

evidence the Pilot was still flying in VFR conditions.
He testified that the manoeuvring area around an airfield
was 2 kms and said :-

"And it would be in that area that you would carry out your landing approach?— That is correct.

And it would be in that area in which you would be justified in being below 500 ft?— That is correct.

If you wanted to land?.— That is correct."

He agreed that the reaction time for a pilot, in situations

such as the Pilot was in, would be 4 to 5 seconds but added

that if he was forewarned of the danger this would be much

/ less

less. He also testified that before taking off for an aerodrome which he, Jandrell, did not know, he would study the charts to see what the topography was like; that when a pilot was proceeding to an airfield which might be difficult to find, he would seek out some pro-
minent object to use as a guide. It was Col Jandrell's
view that the Pilot should have realised the dangers before he reached the Mara road; that he should have turned back before that stage; that because he had left it so late he had placed himself in a critical situation; that he was therefore negligent. Despite the concession which he had made, as appears from the above extract from his evidence, he was of the view that when the Pilot was over the Mara road he was in breach of ANR in that he was less than 500 feet above the ground. If one has regard to all the concessions made by Col Jandrell it will be seen that save for the latter two aspects his evidence does not conflict with Capt Worthington's evidence.

/I proceed

I proceed to sum up the evidence. It must be accepted that the Pilot studied the map before take-off; that he would have seen the roads, the railway lines, the power line and the situation of the aerodrome; that while above the clouds he probably had visual reference to the ground; that it is not known when he descended to a level below the clouds; that he was able to descend without breaching VFR; that once below the cloud he could proceed below the cloud at not less than 500 feet; that at all times until after he passed over Du Plessis he had "flight visibility" in excess of 1½ kms; that he arrived
at the airfield by visual reference to the physical features; that having crossed the Mara railway line at the correct place he failed to see the airfield because it was under a local patch of mist; that he knew where he was; that he had reduced his speed; that he was entitled to fly over the airfield as this was 4 kms from the Soutpansberg; that he justifiably believed that he would see the Mara

/ road

5.6

road timeously; that this would be his normal "cut off" limit; that the Mara road was masked by the east-west, ridge; that the map did not show the south-north ridge to the west; that he then found that he could not turn left or right; that emergency was created by the fact that he had not been able to see the Mara road timeously and the fact that he could not turn to his left because the south-north ridge was there and covered in cloud.

The result of all the above is that it has not been shown that he breached ANR or was negligent up to the time of passing the airfield. He knew that if he passed
it he would thereafter see the Mara road and this was his cut-off point. He would know that he could, if he saw the road timeously, turn round or turn left. He did not see the Mara road timeously, not because he breached ANR or was negligent but because it was masked by the ridge, the existence of which he did not know. He only saw the road when he was over it. At that stage

/he

he realised that he could not turn to his left because of the south-north ridge of which he did not know. That ridge and Ottoshoogte were covered with cloud. He needed the reaction time of 4 to 5 seconds to decide what to do. It has not been shown that he should have known or had time to realise that the east-west ridge would mask the road or that there would be a south-north ridge to his left. It has not been shown that up to the time he passed over Du Plessis he had breached ANR or was negligent. Furthermore, it has not been shown that his conduct thereafter was in breach of ANR or negligent. It follows that it has not been shown (the onus was on the Insurer) that he breached Rules 2.5 or 4.1.

As to Rule 3.2(1)

Firstly, it was not shown that, when it passed the airfield, the aircraft's height was less than 500 feet. The fact that it was less than 500 feet when it crossed the

/ ridge
58 ridge was not due to any fault of the Pilot. He had no reason to believe that there was such a ridge. Secondly, the evidence is that he was flying slowly; that he was within the airfield manoeuvring area. This suggests that he was preparing to land as soon as he saw the airfield.

All that need be said is that it has not been shown that he
was not preparing to land as soon as he located the airfield. Thirdly, it has not been shown that prior to his passing over the ridge and executing the climb, he was a "hazard or nuisance to persons or property". As has been shown above, once he was in the emergency situation he was forced
to take the action which he did in an effort to clear the

Soutpansberg. It follows that it has not been shown that he breached Rule 3.2(1).

As to Rule 3.1

I have earlier set out that it has not been shown that the pilot was negligent. I wish to add that, even if

/ it

it had been shown that he was negligent, Bates & Co is entitled in Case B to an order indemnifying the Estate against the claims by the dependants of the deceased passengers. The only indemnity which a pilot was given in terms of the extension clause was an indemnity arising
from his negligence. If a pilot were not negligent he
would have no need of an indemnity. The contention that a pilot was indemnified only if he was not negligent would negate the promise to indemnify a pilot of the aircraft. To read it that way would be tantamount to the Insurer
saying, "I will insure you against your liability for

negligence on condition that you are not negligent". See Woolfall and Rimmer Ltd v Moyle and Another (1941) 3 All ER 304 (C A) at p 311 A.

See also Gordon & Getz, The South African Law of Insurance 3rd ed at p 175; Nathan N 0 v Ocean Accident and Guarantee Corporation Ltd 1959 (1) SA 65 (N) at pp 72-74.

/ It

It follows that Rule 3.1 does not vitiate the promise made by the Insurer in terms of the extension clause.

As to Rule 5.3. and ANR 2.4(10) and 2.6

It has been found that the Pilot was not flying in IMC, hence these regulations do not apply.

As to Rule 2.4(1)
Having crossed the Mara road the Pilot found himself in an emergency situation not of his own making. The action which he took was in an effort to save the lives of himself and his two passengers. His conduct was,
therefore, not in breach of this Rule.

AS TO E ABOVE
In view of the above conclusions it is not necessary to deal with this issue.

To sum up. The Insurer failed to prove that
/ the

the Pilot was negligent or breached the ANR or, Rules, hence in case A its main claim, which was based on delict, should have been dismissed and its alternative claim, which was based on breach of contract, should also have been dismissed. It follows also that Bates & Co was entitled to the indemnity and the declaratory order sought in case B.

The parties were not agreed on the date from which interest should run in the event of Bates & Co succeeding in Case B. It would appear that no proper demand for payment of the amount due was made by Bates & Co prior to the date of the service of the summons. Interest will be allowed from that date.

There remains the question of costs in this Court. The record as originally filed in this Court was not in order. A petition was filed seeking condonation in this respect. The appellants are not entitled to the costs thereof and should pay the respondent any costs

/ occasioned

62
occasioned to it by the filing of the petition.

The record consists of 13 volumes. Included in the record were the Government Gazettes proclaiming the ANR and Rules. These run into 173 pages and are contained in volumes 11, 12 and 13. Of these at the very most 30 pages were relevant. Both parties handed in
"bundles" of documents in the Court a quo. These run into 217 pages and are contained in volumes 8, 9 and 10. Documents only become part of the record when referred to in the evidence or in the pleadings or if they are handed in, in the sense that their contents are admitted, by consent. If they have not become part of the record there is no need to make any reference to them. I have examined the 217 pages included in this record. Of these there was no need to include, again at the very most, more than 40 pages. Costs occasioned by the inclusion of

/ the

the unnecessary pages should not be paid by the Insurer. It is hoped that the attorneys for the appellants will not raise an attorney and client fee against the appellants in respect of these irrelevant pages.

The orders made are as follows:
A. The appeals in both cases succeed.

B. Save to the extent set out in para. C hereof
the respondent in both appeals is to pay the
costs of both appellants. Such costs are
to include the costs of two counsel.

C. The appellants are not entitled to the costs
occasioned by the inclusion of 177 pages
included in volumes 8, 9 and 10 and of

140 pages in volumes 11, 12 and 13,

D. The order of the Court , a quo in the case of
The Aviation Insurance Company of Africa Ltd
(plaintiff) versus Bates & Lloyd Aviation
(Pty) Ltd and Gordon Lang & Richard Anthony
Lyons (defendants) (case No 3465/81) is set
aside and there is substituted an order
reading:

/ "Plaintiff's

"Plaintiff's claim is dismissed with costs, which costs include the qualifying fee of the expert witness, Captain Worthington".

E. The order of the Court a quo in the case of Bates & Lloyd Aviation (Pty) Ltd (plaintiff) versus The Aviation Insurance Company of Africa
Ltd (defendant) (case No 5584/81) is set aside
and there is substituted an order reading:
"(a) Judgment for plaintiff in the sum

of R46 549,60 plus interest thereon at 11 per cent per annum from the date of service of the summons.

(b) It is declared that the Aviation

Insurance Company of Africa Ltd is

obliged to indemnify the estate of the late George Edward Bates in respect of all sums which the estate may become legally liable to pay as compensation (including any costs which may be awarded against the estate) up to an amount of Rl 000 000 to the dependants of Anthony Challis and Karel Gerhardus Dannhauser.

/ (c) The

Captain Worthington".

O GALGUT.

TRENGOVE, JA)

HEFER, JA) CONCUR.

SMALBERGER, AJA)

(a)	the said claims ;
(b)	the said Agreement and the said Aircraft "