Date: 19990412
Docket: T-2434-91
BETWEEN:
AIR CANADA
Plaintiff
- and -
HER MAJESTY THE QUEEN, in Right of Canada,
as represented by the MINISTER OF TRANSPORT
Defendant
REASONS FOR ORDER
GIBSON J.:
| 1) INTRODUCTION |
[1] On the night of the 8th of July, 1989, Air Canada"s flight 034, a Boeing 747-100 charter destined for Rome, Italy, was preparing for departure at Gate 101, Terminal 2, Lester B. Pearson International Airport. By shortly after 10:30 p.m., the aircraft was fully loaded with 510 persons, including crew, on board. The aircraft was carrying some 220,000 pounds of jet fuel. The captain, together with the first officer and second officer, was on the flight deck. In his testimony, the captain indicated that his eye-level from his seat on the flight deck was some thirty-two feet above ground level.
[2] The captain received clearance from ramp control for push-back of the aircraft from the gate. This was accomplished by means of a tractor connected to the nose wheel of the aircraft. During the course of push-back, the aircraft was accompanied by a team of Air Canada station attendants on the ground. The team was made up of a lead station attendant and two others, one close by each wing tip to ensure that the push-back and commencement of taxiing of the aircraft under its own power proceeded without incident. During the course of push-back the captain and the rest of the flight crew went through the process of engine startup.
[3] Engine No. 1, the outboard engine on the left side of the aircraft, started without incident. Engine No. 2, the inboard engine on the left side of the aircraft, failed to ignite on the first startup attempt. In the result, some raw jet fuel accumulated in the combustion chamber of the engine. A second startup attempt on Engine No. 2 also was unsuccessful with the result that there was a further accumulation of the jet fuel in the combustion chamber. In accordance with prescribed procedures, the captain allowed Engine No. 2 to cool down.
[4] By the time the aircraft was fully pushed back and aligned with the taxi-way of the apron outside Terminal 2, the captain elected to attempt a third start of Engine No. 2. In his report of the incident that followed,1 the captain wrote:
Aircraft 303 [the aircraft being used for flight 034 that night] has a long history of pending hot starts on the No. 2 engine, recorded in the defect log.
On the first start attempt on No. 2 engine on C034, there was "no EGT rise within twenty seconds". The pedestal checklist was followed and a second start attempt was made. During this period, the Second Officer made a cursory check of the C/B"s [circuit breakers] and all appeared set. Again, there was no EGT rise.
The pedestal checklist was again consulted. The "Second starting attempt unsuccessful" instructions were carried out. These instructions refer you to Chapter 3, Section 21 in the A.O.M. which permits a third start attempt, if the conditions are met.
A third attempt was decided upon, but alternating the ground start switch. As the third start was initiated, the Second Officer reported that he had found two ignition C/B"s out and he was instructed to reset them. The engine lit [started or ignited] almost instantaneously and the EGT began to climb toward 500o C. At this point the Lead Attendant advised me that we had all indications of a tail pipe fire and we carried out the appropriate drill.
I instructed the Lead Attendant to advise me when the fire had blown out but for the next 3 to 5 minutes his visual reports remained the same -- engine torching and raw fuel rolling from the tailpipe onto the ramp and igniting.
I instructed him to have Ramp personnel use a portable extinguisher on the puddled fuel area on the Ramp but not to direct it at the engine.
Ground control was instructed to send the fire equipment as a precaution. They apparently had seen the glow and already dispatched them.
....
[5] EGT rise refers to a temperature rise indicative of an engine "lighting" or starting or igniting. The rate of rise could also be indicative of a "wet start" or "hot start" characterized by a much exaggerated noise like that produced by a backyard barbecue when it is ignited in the presence of raw fuel vapour. A wet start or hot start is often also characterized by a cloud of smoke or a torch of flame out the tailpipe of the engine. Wet starts or hot starts are not unusual. Apparently, in normal circumstances, they are easily controlled from the flight deck, by being "blown out" by the intense flow of air through the engine, and any related cloud of smoke or torching is of very short duration.
[6] This wet start was not "normal". According to documentary evidence before me, the incident commenced at 10:38 p.m.2 As indicated in the captain"s report, visual reports relayed to him indicated that engine No. 2 continued to torch or eject flame for some 3 to 5 minutes. Raw fuel was rolling from the tailpipe onto the ramp and igniting.
[7] Five firefighting vehicles were dispatched from the defendant"s airport fire hall at 22:413 and the first of those vehicles arrived some two minutes later. Firefighters from the municipality of Mississauga also attended at the scene, as did the Royal Canadian Mounted Police. The RCMP reported the fire out at 22:46.4 The airport firefighting vehicles returned to their station at 23:15.5
| 2) THE PARTIES |
[8] The pleadings allege that the plaintiff ["Air Canada"] is a corporation created by a Special Act of the Parliament of Canada and carries on business as a common carrier of passengers and cargo. The pleadings also allege that the defendant ["Transport Canada"] at all material times, but not today, was responsible for airport services at Lester B. Pearson International Airport and, more particularly, was responsible for providing firefighting services at that airport.
| 3) RELIEF SOUGHT |
[9] By its statement of claim filed the 24th of September, 1991, the plaintiff claimed the sum of $77,298 together with post-judgment interest and its costs of this action. It based its claim on the alleged negligence of Transport Canada"s firefighters in extinguishing the fire in and around Engine No. 2 on flight 034 following their arrival at the scene on the night of the 8th of July, 1989.
[10] At the opening of trial, counsel for Air Canada amended its claim to include additional amounts of $60,000 Canadian and $49,000 in US funds by reason of further costs allegedly incurred by Air Canada as a result of the negligence of Transport Canada"s fire fighters. In closing argument, counsel for Air Canada again amended its claim, with regard to the amount of $49,000. US, to an unspecified amount in US dollars which counsel left to the Court to calculate on the basis of evidence before it and without the benefit of any evidence regarding an appropriate conversion rate to Canadian dollars.
| 4) THE EVIDENCE |
| a) As to Liability |
[11] Counsel for Air Canada called five witnesses on the issue of liability, the captain of flight 034 on the night in question, the three station attendants attending that flight and their supervisor and the then training and development manager for Air Canada at Pearson International Airport.
[12] As indicated earlier in these reasons, the captain and his flight crew were situated on the flight deck, well above what was going on on the ground. Captain Clarke testified that he could see none of what was transpiring. He was connected by headset to the lead station attendant who took instructions from Captain Clarke and kept the captain advised of what was happening on the ground. At the onset of the incident, the two station attendants other than the lead attendant were dispatched to the gate and returned on a tractor pulling a 350 pound dry chemical fire extinguisher with associated hose and high pressure nozzle. Testimony before me indicated that this equipment was capable of emitting a stream of fine powder dry chemical extinguishant to a range of up to seventy-five feet.
[13] The lead station attendant remained at the nose wheel of the aircraft where he could communicate with the captain. The other two attendants, joined by their supervisor, utilized the extinguisher to extinguish the fire on the ground behind engine No. 2, to extinguish burning fuel that continued to be ejected from the tailpipe as that fuel hit the ground, to attempt to deal, unsuccessfully, with the torch of flame that was continuing to be emitted from the tailpipe and stood prepared to do whatever they could to deal with flash-back which the supervisor feared might occur from raw fuel remaining on the tarmac behind engine No. 2 and, at least in the testimony of some witnesses, under the wing of the aircraft where jet fuel was stored.
[14] The first of the Transport Canada firefighting vehicles to arrive on the scene was a three-quarter ton pickup with very limited firefighting equipment on board and two occupants. One of the two, Mr. Ireland, was, for a very brief period, acting fire officer in charge until his superior arrived at which time Mr. Ireland became deputy fire officer in charge. The other fire fighter was Mr. McWatters ("McWatters"). The two had, during the course of their transit from the fire hall, been in touch with the airport control tower in order to obtain clearance by the quickest possible route to the fire site. They had been able to observe the fire site. They had had no contact with the flight crew of the aircraft or with the station attendants and their supervisor who were already on scene.
[15] On arrival at the scene, the acting fire officer in charge immediately directed his attention to ensuring the proper deployment of the other fire fighting vehicles as they arrived. He gave no direction whatsoever to McWatters. McWatters took no firefighting equipment from his truck but immediately went to the rear of engine No. 2 to assess the situation and, to the extent that he could, to assist the station attendants and their supervisor. He approached the station supervisor who was controlling the nozzle of the dry chemical extinguisher. One of the station attendants had been dispatched to get another dry chemical extinguisher. McWatters assessed the situation as dangerous and requiring urgent action. He leaned close to the station supervisor and, over the noise of at least engines Nos. 3 and 4 which were apparently running, he instructed him to move the extinguisher to the front of engine No. 2 and to direct a stream of extinguishant into the intake of the engine. This was directly contrary to the orders of the captain of the aircraft which had been relayed to the station supervisor by the lead station attendant. Nonetheless, the station supervisor reluctantly moved with the equipment, and with the aid of McWatters, to the front of the engine where, once again with the aid and direction of McWatters, he directed extinguishant into the intake of the engine.
[16] The fire within the engine or in the engine tailpipe immediately went out.
[17] The fact the fire went out and the fact that extinguishant had been directed into the intake of the engine were immediately reported by the lead station attendant to the aircraft captain. Captain Clarke testified that, at that moment, he knew it was "game over". Flight 034 was not going anywhere that night. The engine was rendered unserviceable.
[18] The aircraft was returned to the gate, passengers disembarked, were apparently accommodated in local hotels overnight and, only the next day, resumed their travels on a different aircraft.
[19] Engine No. 2 was removed from aircraft 303 and sent to Air Canada shops in the Montreal region for servicing.
[20] At no time during the incident had any of the firefighters communicated, directly or indirectly with the flight deck of the aircraft.
[21] The following are extracts from documentary evidence that was before me:
An Air Canada Manual6, under the heading, "Principles of Fire Extinguishment" provides:
It is strongly recommended that the fire department be notified as soon as a fire is discovered. This alarm should not be delayed awaiting results of application of portable fire extinguishers and hoses.
This instruction was complied with by the captain of the aircraft, albeit that airport tower personnel had observed the fire or been advised by others of the fire and had notified the firefighters before the captain requested that fire fighters be summoned.
A Transport Canada document entitled "Aircraft Incident on Ground - Transport Canada Airport Emergency Response Services" 7 provides:
| 5. If the emergency involves an aircraft fire and/or the possibility of fire hazard, the Fire Officer In-Charge will assume the initial Command Authority of the occurrence, directing fire fighting activities, supervising the evacuation and/or rescue of victims, assisting in aircraft fuelling and containment procedures, etc. |
[22] As indicated earlier, in the absence of the fire officer in charge when the first two firefighters arrived, the senior of those two firefighters directed his attention solely to the positioning of other fire fighting vehicles as they arrived. McWatters, with some sixteen (16) months experience as a firefighter, during which time he had received training but had not had experience with an engine or tailpipe fire, decisively took control of the firefighting operations. By the time the fire officer in charge arrived, the engine or tailpipe fire was out.
[23] The following extracts are taken from a Transport Canada manual,8 the purpose of
the first part of which is stated to be:
...for the use and guidance of those charged with providing and maintaining airport rescue and fire fighting services.
...
1-3.1. Survival of aircraft occupants takes precedents over all other operations and fire control is frequently an essential condition to assure such survival.
...
3-3.5. Engine Fires. It is reasonable for airport firefighters responding to aircraft emergency [sic] originating within a power plant to expect that the following actions have probably been accomplished by the flight crew:
| 1) Engine shut down. |
| 2) Engine fire extinguishing system (if any) utilized. |
| 3) Electrical power to the affected engine (s) turned off. |
| 4) Fuel and hydraulic fluid supply to the affected engine(s) turned off. |
These conditions should be orally or visually verified as conditions permit.
...
9-5 Tailpipe fires
5.1 Tailpipe fires often occur during engine start due to wind conditions or malfunctions of the ignition or fuel systems. Most of these fires do not cause damage and are rapidly extinguished by the flight crew. If, however, the fire persists, firefighters should, if time permits, consult with the flight crew before taking any action.
9-5.2 If discharge of an extinguishing agent is required, the aircraft operator should be advised of the type of agent used so that appropriate inspections for damage can be made.
[24] McWatters testified that his principal concern when he arrived on the fire scene and assessed the situation was the survival of aircraft occupants whom he concluded were at risk by reason of the situation. In the result, he directed action without oral verification or consultation as contemplated in the foregoing quotations where "conditions permit" and "time permits". Air Canada station personnel, including a supervisor, were, of course, aware of the extinguishing agent that was used in this case.
[25] Finally, a number of exhibits before me addressed the issue of directing extinguishants into the intake of a jet engine. An Air Canada Manual9 provides:
CAUTION: DO NOT DIRECT EXTINGUISHANT OF ANY TYPE INTO THE INTAKE OR THE EXHAUST OF THE ENGINE. THE RESULTING CONTRACTION OF METAL AND SEALS AND THE CORRODING EFFECTS OF EXTINGUISHANT MAY LATER CAUSE FAILURE.
[26] A Transport Training Directorate Lesson Plan10 provides:
Avoid using foam in the intake or exhaust system unless control cannot be secured with other agents and the fire cannot be confined to the engine nacelle.
[27] Finally, an item of Air Canada internal correspondence relating to this incident
records :11
Our staff are also advised on our First Response Fire Fighting course that should dry chemical be necessary it should not be sprayed into engine inlets unless:
| a) The Captain is unable to extinguish the fire |
| b) It is more than a tailpipe fire |
| c) Passengers, crews lives are endangered |
| d) Severe damage to aircraft and equipment may result |
| e) Also full understanding of costs involved re aircraft off the line, inconvenience to passengers, etc. |
[28] McWatters testified that he was aware of the implications of directing dry chemical extinguishant into the intake of an engine. He further testified that it was his judgment that the Air Canada flight crew and station attendants had clearly not been able to extinguish the fire, more than a tailpipe fire was involved, passengers and crew members lives were potentially endangered and there was risk of severe damage to the aircraft if decisive action were not quickly taken.
| b) As to Damages |
[29] A propulsion engineer employed by Air Canada in the maintenance and repair of jet engines used on wide bodied aircraft, such as the aircraft involved in this incident, testified as to the steps taken to rehabilitate engine No. 2 following the incident at issue. As indicated earlier in these reasons, the engine, a JT9 D-7, turbofan engine manufactured by Pratt & Whitney, was taken off the aircraft and shipped to Montreal. A procedure called boroscoping was conducted to determine the extent of damage and penetration by the dry chemical extinguishant. The engine was wet-washed with jet fuel. It was test run. In all something over 1,000 hours of labour were devoted to the process. An extensive list of small "bits and pieces" were replaced. Fuel and oil was consumed. In the result, the sum of $77,298 identified in the Statement of Claim is claimed. In calculating this amount, the hourly rate applied to the hours of labour expended was not disputed by the defendant.
[30] During the rehabilitation process, apparently a debate developed as to whether the engine should be opened up and the first stage high pressure turbine blades either cleaned or replaced. The cleaning of the blades, one hundred and sixteen (116) in number, was apparently not a process that Air Canada was capable of conducting internally. The testimony before me was that the blades would have had to be sent out to an American specialty contractor. Air Canada engineers recommended that the more extensive job be done. Pratt & Whitney engineers advised that this additional step was not required. In the result, Air Canada management accepted the Pratt & Whitney advice and the engine was put back into service without the blades being removed and being cleaned or replaced.
[31] Something in the range of six hundred and ninety (690) flying hours later, the engine malfunctioned. Examination established that the first stage high pressure turbine blades were badly corroded and needed to be replaced. Professional advice provided to Air Canada attributed the cause of the corrosion to the dry chemical extinguishant directed into the intake of the engine during the incident at issue. Thus, the supplementary claim for the cost of replacement of the blades, including very extensive additional labour cost, was put forward at the beginning of trial and, as indicated earlier, modified late in the trial.
| c) Assessment of Evidence |
[32] The testimony of the pilot, Captain Clarke, was given professionally and, subject to the impact of the long lapse of time, confidently and forthrightly. I accept his evidence without question.
[33] Not surprisingly, once again by reason of lapse of time but also by reason of the circumstances and pressures under which Air Canada"s station attendants and their supervisor and the firefighters were working, there was substantial divergence in their testimony. The divergence extended to time intervals, to the length of the plume of flame out of the tailpipe of engine No. 2 and the length of time for which that fire persisted, the amount of jet fuel spilled or ejected onto the tarmac, the extent of fire on the tarmac, the continuing flow of raw jet fuel being ejected out of the engine, in flame, and falling onto the tarmac and the amount of raw fuel, if any, remaining on the tarmac when McWatters arrived.
[34] I rely heavily on the written report of Captain Clarke earlier quoted from with regard to some of these areas of difference, despite the fact that he had no sight-line to the scene and was relying on the lead station attendant for his information. Captain Clarke indicated that engine "torching" continued for some 3 to 5 minutes and I thus conclude that it was continuing when McWatters arrived on the scene and assessed the situation. In fact, I conclude that it did not go out until dry chemical extinguishant was directed into the intake of the engine. I conclude that, at an early stage, raw fuel was burning on the tarmac and it was extinguished by the application of dry chemical extinguishant by a station attendant aided by the station supervisor. I conclude, as reported by the captain, that raw fuel was being emitted from the tailpipe onto the tarmac and was igniting up to and including the time when McWatters was on site. I accept the evidence of some of the witnesses before me that when McWatters arrived there was raw fuel on the tarmac as well as the residue of dry chemical extinguishant. I also accept the testimony of certain of the witnesses that the raw fuel on the tarmac presented a risk of "flash-back". I do not accept the evidence of certain of the witnesses that, after the aircraft was returned to the gate, there was raw fuel in significant quantities in the nacelle or shroud of the engine. I accept the evidence of McWatters that he was aware of the implications in terms of damage to the engine of directing dry chemical extinguishant into the intake of the engine.
[35] There was some testimony and some documentary evidence before me regarding an extinguishant known as Halon. This extinguishant is apparently useful only in respect of confined fires such as fires internal to a jet engine and apparently can be directed into the intake of a jet engine without causing damage. I accept the evidence before me that the status of this extinguishant was very much in doubt at the relevant time by reason of its harmful environmental impact and that it was not available to the firefighters for use on the night in question.
[36] I do not wish my evaluation of the testimony, that clearly accepts some of that testimony and rejects other testimony, to be interpreted as a finding of want of credibility on the part of any witness who appeared before me. I have earlier referred to the pressures under which those who were on the tarmac that night were operating. Under such circumstances, I accept without question that recollections and interpretations will vary. That reality is multiplied by the fact that almost ten years had expired between the time of the incident and the time this matter came to trial. None of the witnesses before me bears any responsibility for that delay.
| 5) ISSUES |
[37] The issues arising in this action can be summarized as follows:
| a) Was there a private law duty of care owed by Transport Canada to Air Canada in the circumstances of this case? |
| b) If such a private law duty of care existed, were there any considerations applicable in the circumstances which would limit or negative the scope of that duty? |
| c) If there was in fact a private law duty of care owed by Transport Canada to Air Canada, was there a breach of that duty? |
| d) Assuming that there was a breach of a duty owed, did such breach "cause" any damages to Air Canada? |
| e) Assuming that there was a breach of a duty owed and that that breach caused damages to Air Canada, what is the assessment of the damages to Air Canada? |
| 6) ANALYSIS |
| 1) Liability |
| a) General Principles as to Liability of the Crown |
[38] Although the Crown, here, as represented by Transport Canada, was initially considered immune from liability -- "the King or Queen can do no wrong"-- an increase in "...government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens."12 These incidents led to the enactment of legislation imposing liability on the Crown for its acts as though it were a person. The relevant portion of section 3 of the Crown Liability and Proceedings Act13 reads as follows:
| 3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable (a) in respect of a tort committed by a servant of the Crown; or ... |
3. En matière de responsabilité civile délictuelle, l'État est assimilé à une personne physique, majeure et capable, pour_: a) les délits civils commis par ses préposés; ... |
The liability arising under paragraph 3(a) is qualified by section 10 of the Act, which provides:
| 10. No proceedings lie against the Crown by virtue of paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative. |
10. L'État ne peut être poursuivi, sur le fondement de l'alinéa 3a), pour les actes ou omissions de ses préposés que lorsqu'il y a lieu en l'occurrence, compte non tenu de la présente loi, à une action en responsabilité civile délictuelle contre leur auteur ou ses représentants. |
Thus, Crown liability is vicarious, not direct. In order for liability to fall upon the Crown, a plaintiff must show that a Crown servant or servants, acting within the scope of employment, breached a duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plaintiff injury of a sort that would attract personal liability against a private person.14
| b) On the Evidence on this Matter |
[39] That the Pearson International Airport firefighters who took part in fighting the fire here in issue were Crown servants was not disputed before me. Nor was it disputed that they were acting within the scope of their employment. Further, that the defendant Crown, as represented by Transport Canada, through the actions of those firefighters, owed Air Canada a private law duty of care was also not in dispute. In the Defendant"s Memorandum of Fact And Law received at the opening of trial, counsel for the defendant wrote:
It is clear that the defendant, in establishing and maintaining a fire service at Pearson International Airport, placed itself in a relationship to passengers on airplanes that carried with it a common law duty to take care. As well there is a duty of care to the aircraft owners who"s property may be damaged in the course of fighting an aircraft fire.
...
It is also clear that there is a professional standard of service expected from the defendant"s fire services, consistent with the resources that the defendant has made available for fire protection. It is acknowledged that airline passengers are entitled to receive the best performance that the fire service is capable of providing. The defendant admits that it owed a duty of care both to the passengers on flight 34 and to the owners of the aircraft to act in a reasonable manner in fighting the fire.
For the proposition, regarding standard of service or care expected of firefighters, counsel for the defendant cites Gallagher v. Burlington (City),15 where Crane J. wrote at paragraphs 65 to 68:
The Municipal Corporation of the City of Burlington, having acted upon its decision to establish and maintain a Fire Department, can be held liable, in law, for any damage caused to another through its fault and through that of its employees in the course of its duties; City of Kamloops v. Nielsen [1984] 2 S.C.R. 2; Anns v. Merton London Borough Council (1978) A.C. 728.
I find in law, that the defendant by establishing and maintaining a fire Department, in the exercise of a statuary [sic] power so to do, did place itself in a relationship to members of the public that carried with it a common law duty to take care.
I find that the citizens of the community of the City of Burlington are entitled to expect a high standard of service from their Fire Department, consistent with the resources the community has made available for fire protection. I find that the community is entitled to receive from the Fire Department the best performance that the Fire Department is capable of, given its resources. The City of Burlington owed a duty of care to the Gallaghers to ensure that its Fire Department carried out its responses to the fires at the Gallagher residence in a reasonable manner and without negligence. In the facts of this case, I find that there was no limitation in resources to condition the responses of the Fire Department.
What then is the standard to which the responses of the Burlington Fire Department are to be measured? I have found that the cause of the fire, on a balance of probability, was a rekindle. For there to be liability against the defendant, that rekindle must have been the result of fault. In this case, either of inadequate overhaul and/or an incompetent fire watch. As stated by the Supreme Court of Canada;
"...for fault to be a basis for civil liability it must have been the determining cause of the damage, that is, the damage must have been the direct and immediate consequence of the fault";
Laurentide Motels v. Beauport, (1989) 1 S.C.R. 705 at 807.
[40] While I was not referred to any statutory power under which Transport Canada established the Lester B. Pearson International Fighting Service and of course, a municipality such as Burlington is not an emanation of the Crown, I am satisfied that the foregoing is applicable to the Crown as represented by Transport Canada, on the evidence in the matter.
[41] It was further not in dispute before me that the Air Canada employee who directed the dry chemical extinguishant into the intake of engine No. 2 was acting on the direction of a Transport Canada firefighter and with the direct assistance of that firefighter. I am therefore satisfied that an exercise of authority by a Transport Canada firefighter was the cause of damage to Air Canada.
[42] The question remains, was there fault in the exercise of authority by the Transport Canada firefighter? Put another way, did the Lester B. Pearson Fire Service provide the best performance of which it was capable, given the resources available to it on the night in question?
[43] I find that the Lester B. Pearson International Airport Fire Service provided the persons on board flight 034 and Air Canada with the best performance that it was capable of, given the resources available to it on the night in question. I find that the alternative extinguishant, Halon, was not a resource available to the firefighters on site at the incident. I further find that McWatters, the first firefighter to arrive on the scene and to assess the situation made no error of judgment in assessing the situation as one posing risk to persons and to property that required urgent action notwithstanding that such action would, to his knowledge, result in damage to property of a substantially lesser degree than the potential damage to property posed by the situation that he found. As indicated earlier in these reasons, he found a plume of flame continuing to emanate from the tailpipe of engine No. 2. That plume of flame had existed for substantially longer than would be the case for a normal "wet start". Raw fuel was continuing to spill from the tailpipe either in flame or igniting as it hit the ground. There was raw fuel on the ground and there was risk of flash-back.
[44] In summary then, I find no breach of the duty owed by Transport Canada to the Lester B. Pearson International Airport Fire Service to Air Canada, notwithstanding that damage was caused to Air Canada. This action will therefore be dismissed.
| b) Damages |
[45] In the event that my decision herein might be appealed and my decision to dismiss this action might be reversed, I turn briefly to the question of assessment of damages.
[46] As indicated earlier in these reasons, the claim for damages by Air Canada is in two parts: the first set out in the Statement of Claim and relating to the examination of engine No. 2 following the incident in question, the wet washing of the engine and the testing of the engine as cleaned-up; and the second relating to the replacement of the first stage turbine high pressure blades after the engine had been in service for something in excess of 690 hours following its return to service after the rehabilitation of the engine.
[47] I find the claim for damages in the amount of $77,298 relating to the rehabilitation of the engine to be reasonably well documented in the exhibits before me and supported by the testimony before me. If I were to find liability, which I have not, I would award damages in this amount to Air Canada.
[48] I find the claim for damages for the replacement of the first stage high pressure turbine blades either in the amount of the cost of the new turbine blades and of labour or in the cost that would have been incurred if the turbine blades had been removed and cleaned at the time of the original rehabilitation together with associated additional labour to be substantially less well documented and supported by the testimony before me. Further, as noted in the quotation from Laurentide Motel v. Beauport (City)16 that appears in the quotation from Gallagher v. Burlington (City) appearing earlier in these reasons17 for fault to be a basis for civil liability it must have been the determining cause of the damage, that is, the damage must have been the direct and immediate consequence of the fault.
[49] I cannot find that the damage to the first stage high pressure turbine blades was the direct and immediate consequence of the incident here at issue. Rather, it was the direct and immediate consequence of Air Canada accepting the advice of Pratt & Whitney not to remove the blades at the time of the original rehabilitation and have the blades themselves fully cleaned up at that time. I cannot conclude that Transport Canada should be held responsible for Air Canada"s decision to accept the advice which it received from Pratt & Whitney. In the result, once again if I were to find liability which I do not, I would dismiss this ill-defined element of the claim for damages. In any event, the evidence before me as to the additional costs Air Canada would have incurred if it had had the blades cleaned up at the time of the original rehabilitation was simply insufficient to support any such claim.
[50] No claim for pre-judgment interest was put forward in this action. No submissions with regard to post-judgment interest were put before me. In the circumstances, I would make no award as to interest.
| 7) COSTS |
[51] Counsel before me agreed that costs should follow the event.
| 8) CONCLUSION |
[52] This action will be dismissed with costs in favour of the defendant assessed in accordance with Tariff B to the Federal Court Rules, 1998.18.
_______________________________
Judge
Ottawa, Ontario
April 12, 1999
__________________12 Just v. British Columbia [1989] 2 S.C.R. 1228 at 1239 (not cited before me).
13 R.S.C., 1985, c. C-50 as amended by S.C. 1990, c. 8, s. 21.
14 Olympia Janitorial Supplies v.Minister of Public Works [1997] 1 F.C. 131 (F.C.T.D.) (not cited before me).
15 [1994] O.J. No. 255, (Ont. Gen. Div.)(Q.L.).; affirmed [1997] O.J. No. 4195 (O.C.A.)(Q.L.).