Clarke Beryl Claire (as personal representative of the estate of Eugene Francis Clarke) and Others v SilkAir (Singapore) Pte Ltd

CourtCourt of Appeal (Singapore)
JudgeChao Hick Tin JA
Judgment Date15 May 2002
Neutral Citation[2002] SGCA 26
Citation[2002] SGCA 26
Defendant CounselLok Vi Ming, Ng Hwee Chong and Chan Hoe (Rodyk & Davidson)
Plaintiff CounselMichael Khoo SC, Josephine Low and Andy Chiok (Michael Khoo & Partners)
Published date19 September 2003
Docket NumberCivil Appeal No 600146 of 2001
Date15 May 2002
Subject MatterStandard of proof -- Nature of standard of proof,Limitation of carrier's liability,art 25 Warsaw Convention,Limitation,Damages,O 22A r 9(3) Rules of Court,arts 25 Warsaw Convention and Warsaw Convention as amended by the Hague Protocol,Drawing inferences from facts,Recklessness and wilful misconduct of pilots,Applicable test,Indemnity basis,'Within the scope of his employment',Relevance of human factors to cause of crash,Principles,Whether crash deliberate,Crash of aircraft resulting in loss of lives,Proof of evidence,Civil Procedure,Whether carrier can limit liability for passengers' deaths,Expert opinion,Burden of proof,Words and Phrases,Evidence,Admissibility of evidence,When inferences can be drawn -- Doctrine of res ipsa loquitur -- Whether doctrine applicable,Whether relevant and acceptable,Costs

(6) As the appellants had failed to obtain a judgment more favourable than the terms of the respondent’s offer to settle, the court awarded indemnity costs pursuant to O 22A r9(3) of the Rules of Court (see 64).

Case(s) referred to

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Goldman v Thai Airways International Ltd [1983] 3 All ER 693
Horabin v British Overseas Airways Corporation [1952] 2 QBD 1016
Johnson v American Airlines 20 Avi 18,248
Lloyde v West Midlands Gas Board [1971] 2 All ER 1240
Muhammad Jeffry v PP [1997] 1 SLR 197
Nugent and Killick v Michael Goss Aviation Ltd & Ors [2000] 2 Lloyds’ Rep 222
Singapore Airlines Ltd & Anor v Fujitsu Microelectronics (Malaysia) Sdn Bhd & Ors [2001] 1 SLR 241
Singapore Finance Ltd v Kim Kah Ngam (Spore) Pte Ltd [1984-1985] SLR 381
SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd [1991] 1 Lloyds Rep 288
The Popi M [1985] 2 All ER 712
Thomas Cook Group Ltd & Ors v Air Malta Co Ltd [1997] 2 Lloyds Rep 399

Legislation referred to

Carriage by Air Act (Cap 32A) s 3(2); Schedule 1 aa 22, 25; Schedule 2, aa 22, 25
Evidence Act (Cap 97) s 47
Rules of Court O 22A r 9(3), O 59 r 19



This is an appeal from the decision of the learned Justice Tan Lee Meng ("the judge"), in which he held that the respondent could limit its liability for the carriage of passengers under a 25 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 ("the Warsaw Convention") and under a 25 of the Warsaw Convention as amended by the Hague Protocol 1955 ("the Warsaw (Hague) Convention"). Both Conventions have been given the force of law by the Carriage by Air Act (Cap 32A).

The facts

2 On 19 December 1997 at 08:37:13 Coordinated Universal Time, SilkAir Flight MI 185 departed from Jakarta, bound for Singapore. It proceeded without incident to Palembang while maintaining a cruising altitude of 35,000 feet. The last voice transmission from the crew was at 09:10:26, to Jakarta Air Traffic Control ("ATC"). It was not a distress call. The last radar recording from Jakarta ATC which showed that the aircraft was at 35,000 feet was at 09:12:09. The last data recording, at 09:12:41, showed the aircraft to be at 19,500 feet. The aircraft crashed into the Musi River at about 09:13. This occurred in daylight and in good weather. All 97 passengers, five crew, pilot Captain Tsu Way Ming ("Capt Tsu") and First Officer Duncan Ward ("FO Ward") perished. The personal representatives and dependants of all but six of the persons on board came to a settlement with the respondent regarding compensation. The appellants – the personal representatives and dependants of the remaining six persons – sued the respondents. According to the judgment below, some or all of the appellants were also suing the manufacturers of the aircraft (Boeing) and the manufacturers of the aircraft parts in the United States ("the US proceedings"). Mr Khoo SC had denied this at trial, but did not clarify the matter on appeal.

3 The Indonesian National Transportation Safety Committee ("NTSC") carried out a thorough investigation into the cause of the crash. In its Final Report (dated 14 December 2000) ("the NTSC report"), it concluded that the cause was unascertainable due to a lack of evidence. Only 73 percent of the wreckage had been recovered, and not all of it could be used for investigative purposes. The parts of the aircraft which were recovered included the cockpit voice recorder ("CVR"), the flight data recorder ("FDR"), the horizontal stabiliser, the throttle box and some oxygen generators. The data from the FDR was corrected by the manufacturers of the radar, Hughes Raytheon, and further corrected by Boeing and the NTSB. This will be referred to as the "corrected radar data". Simulation tests were conducted by Boeing, the NTSC and Captain John Laming, one of the appellants’ expert witnesses.

4 The USA Accredited Representative, the National Transportation Safety Board ("NTSB"), disagreed with the NTSC’s conclusion. In a letter to the NTSC (dated 11 December 2000), the NTSB suggested that:

a The accident was not caused by mechanical failure.

b It was likely that the accident was caused by intentional pilot action, which probably included: sustained manual nose-down flight control inputs (more likely made by Capt Tsu than by FO Ward); intentional disconnection of the CVR; and a decision not to attempt recovery of the aircraft from its dive.

5 The Criminal Investigation Department in Singapore conducted an inquiry into the career history and personal circumstances of the pilots and crew ("the human factors"). In its report, "Investigation into Police Report Lodged by the Singapore-Accredited Representative to the NTSC on 25 August 1999" (dated 14 December 2000) ("the CID report"), it stated that it had found no evidence of suicidal tendencies or of motives to crash the aircraft.

The judge’s decision

6 The judge delivered his judgment on 24 October 2001. He described the incident and summarised the NTSC and CID reports. He then set out the relevant provisions of the Conventions and the gist of the parties’ cases. He went on to discuss the evidence recovered from the crash site and the parties’ respective interpretations of the evidence. He also explored the human factors, which he thought were relevant.

7 The judge made the following findings:

a The accuracy of the corrected radar data was doubtful.

b The value of the simulation tests was limited because: one, they were based on the corrected radar data; and two, they did not envisage a situation where the aircraft had exceeded its normal flight envelope (as was the case here).

c The final set position of the jackscrew of the horizontal stabiliser was unclear.

d It was not shown that the pilots did not attempt to recover the aircraft from its dive.

e It was not shown that the CVR and FDR had been intentionally disconnected.

f The evidence on the human factors did not show any suicidal or murderous intent on the part of the pilots.

g The aircraft was not intentionally crashed.

h The pilots were not guilty of wilful misconduct, hence the respondent could limit its liability under the Warsaw Convention. They also did not act recklessly and with knowledge that the damage would probably result, hence the respondent could limit its liability under the Warsaw (Hague) Convention.

The issues

8 The key issue is whether the respondent can limit its liability under a 25 of the Warsaw Convention and the Warsaw (Hague) Convention. The specific issues are:

(1) Whether the technical evidence revealed the cause of the crash, in particular:

(a) Whether the experts’ inferences from the facts are tenable.

(b) Whether the corrected radar data was accurate.

(c) Whether the simulation tests were useful.

(d) Whether the horizontal stabiliser showed that the aircraft had been placed in the maximum nose-down position.

(e) Whether the pilots had attempted to recover the aircraft from its dive.

(f) Whether the CVR and / or FDR had been intentionally disconnected.

(g) Whether there were other possible "causes" of the crash.

(2) Whether the human factors are relevant; and, if so, what they revealed in respect of the following:

(a) The NTSC and CID reports

(b) Capt Tsu

(c) FO Ward

(3) Whether the respondent can limit its liability under the Warsaw Convention.

(4) Whether the respondent can limit its liability under the Warsaw (Hague) Convention.

(5) How the concept of burden of proof applies in this case.

The first issue: the technical evidence

(1)(a) The experts’ opinions and other inferences

9 The opinions of experts are relevant under s 47 of the Evidence Act (Cap 97). An opinion will, however, only be accepted if it fulfils the criteria enunciated in Muhammad Jeffry v Public Prosecutor [1997] 1 SLR 197:

… the three criteria for the acceptance of expert opinion evidence, i.e. value, impressiveness and reliability.

If the opinion is purportedly based on facts, it must fulfil a further criterion set out in Singapore Finance Ltd v Kim Kah Ngam (Spore) Pte Ltd [1984-1985] SLR 381:

Where the opinion of an expert is based on reports of facts and empirical observations, I have endeavoured to satisfy myself, on a balance of probabilities, whether those facts did in truth exist and whether any inference or inferences drawn from those facts, taken individually and collectively, were sound or not.

Hence the court must consider whether the facts exist, and whether the expert’s inferences from those facts are tenable.

10 The appellants’ experts were Captain John Laming ("Capt Laming"), Captain Maurie Baston ("Capt Baston") and Mr Macarthur Job ("Mr Job"). The respondent’s experts were Professor Denis Howe ("Prof Howe") and Captain Robert Galan ("Capt Galan"). The judge generally preferred the view of the respondent’s experts. Capt Laming’s evidence was based largely on his simulation tests, which the judge did not find useful. Capt Baston had admitted that, if the corrected radar data was inaccurate, his opinion on the cause of the crash may well change. The judge thought that Mr Job’s evidence was "undermined from the very start by his failure to give sufficient attention to the human factors which he himself thought to be relevant". Mr Job also relied heavily on the NTSB’s comments on the NTSC report.

(1)(b) The accuracy of the corrected radar data

11 The appellants sought to rely on "Recorded Radar Study" by Cassandra Johnson (dated 2 November 1998), claiming that a copy thereof was not available at trial. This cannot be allowed. First, the judge had refused to admit the document as evidence on 5 September 2001. Secondly, the document had been considered in the NTSC report. Thirdly, if the appellants wanted to have the document admitted as fresh evidence, they should have done so by a motion to adduce fresh evidence. Such a motion would almost certainly have...

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