Bahamasair Holdings Ltd v Messier Dowty Inc

An appellate court must exercise great caution before disturbing a trial judge’s primary findings of fact, particularly where they depend on oral evidence. It must consider the trial judge’s advantage in hearing and seeing witnesses and the insight gained from hearing the whole case. Intervention may be justified where the judge failed to use that advantage properly, misunderstood the issues or evidence, or reached a conclusion that was plainly wrong. Mere disagreement is insufficient. An appellate court should not conduct a de novo analysis simply because it would draw different inferences. Findings supported by material evidence and properly open inferences should ordinarily stand.

Bahamasair claimed damages from Messier after an aircraft landing-gear failure caused the aircraft to be destroyed. The Chief Justice found that the landing gear design was inadequate, that Messier had failed to warn Bahamasair of the danger, and that the alleged maintenance failures had not been established. He awarded damages.

The Court of Appeal of the Commonwealth of the Bahamas reversed after reconsidering the evidence and treating the matter as at large for appellate determination. The central issue before the Privy Council was whether that approach was permissible when reviewing the Chief Justice’s factual findings and inferences.

Appeal allowed. Lord Kerr delivered the judgment of the Board. The Court of Appeal had adopted a fundamentally wrong approach by treating disagreement with the Chief Justice’s findings as sufficient reason to reconsider the evidence afresh.

1. An appellate court has power to review factual findings but must be extremely cautious before upsetting a conclusion of primary fact. It must give careful consideration to the weight attached to the trial judge’s findings and to the advantage gained from hearing and seeing the witnesses. The greater that advantage, the more reluctant the appellate court should be to interfere.
2. The rationale for restraint is not limited to credibility. The trial judge has experience in determining facts and a comprehensive familiarity with the evidence. Duplication of the trial judge’s work in the appellate court is likely to contribute little to accuracy. The restraint principle assumes that the trial judge properly used the advantage of hearing and seeing the witnesses and assessed the evidence against the issues, available material and inherent probabilities. If those features are absent, the case for restraint is reduced.
3. On the evidence, the Chief Justice was entitled to accept Mr Moss’s evidence despite the blank task card and to draw an inference that the witness statement reflected a misunderstanding. The evidence also entitled him to find that the 1998 design changes indicated a defect in the original design. He had not relied on a principle akin to res ipsa loquitur; the issue concerned design rather than manufacturing. The Court of Appeal’s conclusion on the warning issue was inconsistent with its own finding that the fragmentation problem had not been brought directly to Bahamasair’s attention.
4. A representation that aircraft landing gear would be safe for a stipulated number of cycles was materially different from a car manufacturer’s estimate of travel distance per gallon. It could not properly be treated as merely a guide on that analogy.

Because there was material supporting the Chief Justice’s findings and none was plainly wrong, the Court of Appeal should not have conducted its own analysis. Its order was set aside and the Chief Justice’s order restored. The parties were invited to make submissions on costs within 21 days.

• Privy Council. In [2018] UKPC 25, the appeal was allowed, the Court of Appeal’s order was set aside and the Chief Justice’s order was restored.
• Court of Appeal of the Commonwealth of the Bahamas. The Court reversed the Chief Justice’s decision after treating the evidence as at large and analysing it afresh.
• First instance. The Chief Justice found the landing-gear design inadequate, held that Messier owed a duty to warn, awarded damages to Bahamasair and rejected Messier’s maintenance defence.