Charter Hi (Pty) Ltd and Others v The Minister of Transport

The appellants owned a Beechcraft King Air C90 aircraft. On 13 December 1996, Mr Jonathan Grant was being examined for an instrument rating by Mr Ray Grinstead, a designated official flight examiner (DOFE) appointed by the Commissioner for Civil Aviation. During the test flight near Cape Town, while executing a turn at 2,500 feet with undercarriage lowered and flaps extended, Mr Grinstead simulated an engine failure. Shortly thereafter the aircraft entered an uncontrolled spin and crashed, killing Mr Grant, Mr Grinstead, and a passenger. The wreckage showed the left propeller had been feathered and the left engine was producing little power on impact, while the right engine was producing power. The aircraft was rotating clockwise when it struck the ground. The appellants sued the Minister of Transport for the loss of the aircraft, alleging negligence on the part of Mr Grinstead and vicarious liability of the state.

• Whether Mr Grinstead acted negligently as an official flight examiner during the instrument rating test
• Whether any proven negligence by Mr Grinstead caused the accident
• Whether the Minister of Transport was vicariously liable for the conduct of Mr Grinstead as a designated official flight examiner
• What standard of care applies to official flight examiners conducting competency tests
• Whether the simulated engine failure at 2,500 feet constituted negligence when the operating manual recommended 5,000 feet for manoeuvres that could result in a spin

The appeal was dismissed with costs, including costs of two counsel.

The binding legal principles established are: (1) Official flight examiners conducting competency tests are judged by the standard of the reasonable official flight examiner placed in the exact same position, exercising the general level of skill and diligence possessed by members of that specialized profession. (2) It is not negligent for a flight examiner to allow an examinee time to recognize and correct errors during a competency test, even where this involves risk, as evaluating the examinee's ability to recognize and correct errors is the purpose of the examination. The difference between appropriate allowance of time and excessive delay may be measured in seconds and involves the exercise of professional judgment. (3) A plaintiff alleging negligence causing an aircraft accident must prove on a balance of probabilities both that the defendant's conduct fell below the required standard of care and that it caused the loss. Speculation as to what occurred is insufficient. (4) Vicarious liability requires a relationship in which one party exercises control and authority over another, typically arising from a contractual relationship of employment or agency. A statutory designation that merely authorizes acceptance of a person's expert judgment, without creating contractual ties or conferring control over how the designated person performs their functions, is insufficient to ground vicarious liability. (5) The principle that everyone must bear their own loss (skade rus waar dit val) unless all elements of delictual liability (wrongfulness, negligence, causation and harm) are proven, applies equally in specialized fields such as aviation.

The court made several non-binding observations: (1) In a right-hand turn pattern, it would be expected that the inner (right) engine would be selected for simulated failure as this is more critical and therefore more testing for the examinee. (2) The court indicated that the most plausible explanation for the accident was that Mr Grant feathered the wrong propeller after the right engine was failed, leaving the aircraft with no thrust, combined with the drag from lowered undercarriage, extended flaps, and the disking right propeller, causing rapid speed loss, stall and clockwise spin. However, the court expressly stated it was not called upon to decide what occurred and would not be justified in doing so on the scant evidence. (3) The court noted that Captain Levin's alternative explanation (that violent rudder application by the pilot caused a 'flick' to clockwise rotation) was improbable, as the expert witnesses had never heard of it occurring. (4) The court observed that aviation examining 'is clearly not for the faint-hearted: it calls for the exercise of fine judgment' and that 'the reasonable person ventures out into the world, engages in affairs and takes reasonable chances.' (5) The court noted that prior to the 1990s, flight examiners had generally been employees of the Department of Transport, but resource constraints led to adoption of the international model of designated examiners.

This case is significant for several reasons: (1) It clarifies the standard of care applicable to aviation professionals exercising specialized skills, particularly official flight examiners - they must exercise the general level of skill and diligence of members of their profession, not perfection. (2) It establishes important principles about the purpose of competency testing in aviation - examiners must allow examinees time to recognize and correct errors, as this tests their competence; premature intervention would defeat the purpose of the examination. (3) It provides guidance on causation in aviation accidents where the precise sequence of events cannot be determined with certainty - speculation is insufficient to discharge the onus of proving causation on a balance of probabilities. (4) It clarifies the limits of vicarious liability in the context of statutory designations - vicarious liability requires a relationship involving control and authority, typically contractual (employment or agency); mere statutory designation coupled with acceptance of expert judgment is insufficient. (5) It demonstrates the application of delictual principles in specialized contexts, reinforcing that liability is the exception and loss generally lies where it falls unless wrongfulness, negligence and causation are all proven.