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Estate of Lydia Keith and Windy Keith v Vanuatu Internak Air Services Ltd (Vanair) [2006] VUSC 61; Civil Case 199 of 2004 (17 August 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No.199 of 2004

BETWEEN:

ESTATE OF LYDIA KEITH and WINDY KEITH
C/- Ray, Erakor Village, Efate
Claimant

AND:

VANUATU INTERNAL AIR SERVICES LTD (VANAIR)
PMB 9069, Port-Vila
Defendant

Mr George Boar of Pacific Lawyers, counsel for the Claimant
Mr Abel Kalmet of G. Vasaris & Co., counsel for the Defendant

JUDGMENT

This is an application by the Defendant dated 23 February 2005 by which the Defendant applies for Orders that:-

1. The Amended Supreme Court Claim filed 14 February 2004 be struck out in whole or in part;
   
2. The proceedings be otherwise dismissed;
   
3. The Claimant pay the Defendant’s costs of and incidental to those proceedings and their application on an indemnity basis or on such other basis as the Court may consider appropriate;
   
4. Such further or other Orders as this Honourable Court may consider necessary.
   

A short description of the events shows that on or about 9 May 1999, a Lydia Keith purchased a Vanair’s ticket to enable her to board a Defendant’s aircraft to come to Port-Vila, Efate. On the same day, Lydia Keith boarded the Defendant’s aircraft R.V.9. Before arriving at Port-Vila Airport, the aircraft R.V.9 crushed off the West costs of Port-Vila. Lydia Keith died on the aircraft.

On 28 October 2004, a Supreme Court claim was filed by Mr George Boar of counsel on behalf of the Estate of Lydia Keith, Claimant. It was pleaded, among other matters, that:-

"3. It was the condition of the Agreement that in the event of death, the Defendant would pay AUD$75,000 as full and final death benefit to the estate and or relative of the deceased.

4. Despite the Agreement, the Defendant has failed and refused to pay the said AUD75,000.
5. As a consequence of the Defendant’s action, the Claimant continues to suffer."
   

The Claimant claims for an Order that the Defendant pay AUD$75,000 as per the Agreement and costs.

On 14 February 2005, the Claimant amended her claim. The claim as amended is still for an Order that the Defendant pay AUD$ 75,000.00 as per the Agreement and costs of and incidental to this action. The following paragraphs could be read in the pleadings of the Amended claim:-

"1. THE Claimant... bring this action under Fatal Accident Act (1846-1959).

4. SINCE paying the ticket, the Deceased has agreed to terms and conditions of the ticket (herein after called "Agreement").

PARTICULARS OF TERMS AND CONDITIONS

"VANAIR PASSENGER PLEASE READ:

1. When you buy a Vanair ticket you then agree to our conditions.

5. For conditions of travel see inside of ticker cover".
   

5. FURTHER it was the express terms and conditions of the Agreement that in the event of death, the Defendant would be solely responsible for any death or injury sustained by the passenger.
   
6. ...
   

PARTICULARS

"PASSENGER INFORMATION & TERMS AND CONDITIONS OF CONTRACT"

1. ...
2. ...
3. ...
4. ...
5. ...
6. ...
7. ...
8. Liability of the carrier in respect of the death of or injury to any passenger is limited to the sum of 75.000 Australian dollars (in respect of one passenger) or 300,000 Australian dollars (in respect of any one accident or series of accidents arising out of one event). The liability of the carrier in respect of destruction, loss or damage of registered luggage or goods is limited to 20 Australian dollars per kilogram. This clause applies to all carriage by air within Vanuatu. International carriage "as defined by the Warsaw Convention is subject to the rules and limitations relating to liability established by the Warsaw Convention."
   
7. In breach of the said term and agreement, the Defendant has failed to pay the Claimant the sum of AUS$75,000 and or any part thereof."
   

It is on the basis of the above pleadings that the Defendant applies to have the amended claim struck out in part or have the action be dismissed. The Defendant applies on 2 grounds:-

First, the Defendant contended that negligence is the right cause of action but not the contract. Further the Defendant says that even if negligence is the right cause of action, any action in negligence under the Fatal Accident Act or otherwise, is statute barred as a result of the Limitation Act No.4 of 1991.

The Defendant relies on section 3(1)(i) of the Limitation Act No.4 of 1991 which reads:-

"LIMITATION OF ACTIONS OF CONTRACT AND TORT AND CERTAIN ACTIONS

3. (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) actions founded on simple contract or on tort;

(b) actions to enforce a recognizance;

(c) actions to enforce an award, where the submission is not by an instrument under seal;

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture:

Provided that-

(i) in case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and

(ii) nothing in this subsection shall be taken to refer to any action to which section 5 applies." [Emphasis added].

It is submitted for the Defendant that in this case, the Claimant filed her action out of the appropriate period of 3 years. The plane crash which was fatal to Lydia Keith occurred on 9 May 1999. The cause of action started from that date to 22 May 2002 which was 3 years period in accordance with the provisions of section 3(1)(i) of the Limitation Act of 1991. The claim was first filed on 28 October 2004 and then amended on 14 February 2005. It was filed outside the legal period of 3 years.

Mr George Boar on behalf of the Claimant, filed a response submission to the effect that the Defendant is not entitled to obtain the orders sought in the application. He also submitted that the claim is not based on negligence but it is a contractual claim. In any event, section 3(1)(i) of the Limitation Act provides that for an action based on contract, the period on which the cause of action occurred is six (6 years).

The relevant parts of the pleadings are set out at the earliest part of this judgment for ease of reference. The first paragraph of the Amended Supreme Court claim states that:-

"1. The Claimants are the Estate and surviving daughter of late Lydia Keith (hereinafter "the deceased") and bring this action under Fatal Accident Act (1846 – 1959).

The Fatal Accident Act 1976 (English) consolidates the Fatal Accidents Act of 1846 -1959 and the Law Reform (Miscellaneous Provisions) Act 1934, 1945 and 1971. It is an act of general application applicable in Vanuatu under Article 95(1), (2) of the Constitution. Section 1 of the Act provides for a right of action for a wrongful act causing death; section 3 relates to the assessment of damages; section 4 provides for the disregard of certain benefits in the assessment of damage; section 5 relates to contributory negligence; section 6 contains repeals; section 7 contains the short titles.

The Fatal Accidents Acts 1976 creates a right of action for wrongful act, neglect or default causing death.

The Claimant’s amended claim brought under the Fatal Accidents Act 1846 -1959 which are consolidated in the Fatal Accidents Act 1976, is misconceived. The Claimant seeks damages for breach of a contractual agreement. It is contrary to law, good pleading practice and common sense to bring an action under the Fatal Accidents Act on the basis of a breach of a contractual agreement. I do accept the submission of the Defendant to that effect and reject the Claimant’s. In the present case, there is no finding of negligence on the part of the Defendant. The relevant period to file a claim for negligence is 3 years.

In any event, any action in negligence under the Fatal Accidents Act or otherwise, is statute barred as a result of section 3(1)(i) of the Limitation Act No.4 of 1991. The action arose out of the plane crash causing the death of the deceased on 9 May 1999. The claim was filed on 28 October 2004. It was then amended on 14 February 2005. The 3 years period provided under section 3(1)(i) for action in negligence has already been expired. The claim was filed outside that period. It is statute barred.

The second ground of the application is that the claim should be otherwise struck out under the Court’s inherent jurisdiction as:-

(a) it fails to disclose any reasonable cause of actions; and

(b) it constitutes an abuse of process.

The Defendant submitted in essence that in so far as the Claimant relies on contract, it is clear from the pleading itself that any such contract did not contain express term that a passenger would be entitled to receive an amount of AUD$75,000.00 on death or injury. Rather the contract contained a limitation of the carrier’s liability to a maximum of AUD$75,000.00.

This limitation is a limitation which applies to any action in negligence and does not bestow upon a passenger any contractual right to claim that amount absent a finding of negligence.

The Claimant by counsel submitted that they bring this claim on the basis of a contractual agreement that was entered into between the deceased, Lydia Keith and the Defendant Company. They say the claim discloses a reasonable cause of action and it is proper in law. In his oral submission, Mr Boar on behalf of the Claimant concedes that Clause 8 of Paragraph 5 of the claim which refers to AUD$75,000.00, is a limitation provision.

Yet the Claimant claims for an Order that the Defendant pay AUD$75,000.00 as per the Agreement.

I have perused the pleading. The terms and conditions of the contract as pleaded did not contain an express term that a passenger would be entitled to receive an amount of AUD$75,000.00 on death or injury. However, clause 8 of paragraph 5 of the amended claim contained a limitation of the carrier’s liability to a maximum of AUD$75,000.00.

I agree and accept the Defendant’s submission that this limitation is a limitation which applies to any action in negligence and does not bestow upon a passenger any contractual right to claim that amount absent a finding of negligence.

In the present case, the Court faces with two (2) problems. First, is the Court to find there is a contract between the deceased person and the Defendant Company as alleged?

Second, what sort of contract can be spelled out of the claim as pleaded?

The answers to both questions are in the negative. There is no express contractual term and conditions that a passenger would be entitled to receive an amount of AUD$75,000.00 on death or injury due to a plane crash. The claim did not disclose the sort of the contract as alleged.

The claim fails to disclose a reasonable cause of action. It constitutes an abuse of process. The amended claim must be struck out in toto. The Defendant is entitled to its costs against the Claimant. The costs are to be assessed and determined on indemnity basis failing agreement. I feel that the Claimant’s counsel misapprehends the right cause of action in the present case. Justice requires that he be liable personally for costs. I consider and order that the Claimant’s counsel shall be personally liable for half (½) of the total costs of the Defendant on indemnity basis.

ORDER

1. The Amended Supreme Court Claim in CC 199 of 2004 filed on 14 February 2005 is struck out in toto (in whole).
   
2. The proceedings are otherwise dismissed as they arise out of an abuse of the process.
   
3. The Defendant is entitled to its costs and incidental to these proceedings and this application on an indemnity basis against the Claimant and her lawyer personally on equal share basis.
   
4. The costs on indemnity basis are to be agreed if not assessed and determined.
   
5. The next day for conference on costs is Friday 8 September 2006 at 8.45AM o’clock.
   

Dated at Port-Vila this 17th day of August 2006

BY THE COURT

Vincent LUNABEK
Chief Justice