| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AIRWAVES GOLDCOAST PTY LTD -v- CANEFLIGHT ENTERPRISES PTY LTD [No 3] [2013] WADC 196 CORAM : BOWDEN DCJ HEARD : 23-27 SEPTEMBER 2013 DELIVERED : 20 DECEMBER 2013 FILE NO/S : CIV 1409 of 2010 BETWEEN : AIRWAVES GOLDCOAST PTY LTD Plaintiff
AND
CANEFLIGHT ENTERPRISES PTY LTD
First Defendant
ADRIAN GOULD
Second Defendant
Catchwords: Tort - Negligence - Crash of aircraft - Pilot error - No contributory negligence by the plaintiff - No failure to mitigate damages
Damages for loss of income whilst aircraft being repaired assessed
Bailment - Second defendant piloting a seaplane in the course of his employment with the first defendant is not bailee or sub-bailee of the seaplane Legislation: Nil Result: Judgment for the plaintiff against the first and second defendants in the sum of $52,976 together with interest
Judgment for the plaintiff against first defendant for the further sum of $53,844 together with interest
Claim for breach of bailment against the second defendant dismissed
Representation: Counsel:
Plaintiff : Mr J Lo Schiavo
First Defendant : No appearance
Second Defendant : Mr J Ribbans
Solicitors:
Plaintiff : SRB Legal
First Defendant : Equitas Lawyers
Second Defendant : Maitland Lawyers
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316
Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
Fisher v Firkins [2004] WASCA 26
Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kamidian v Holt [2008] EWHC 1483
La Rosa v Nudrill Pty Ltd [2013] WASCA 18
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Ray Teese Pty Ltd v Syntex Australia Ltd [1998] 1 Qd R 104
Rogers v Whitaker (1992) 175 CLR 479
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23
Wyong Shire Council v Shirt (1980) 146 CLR 40
1 BOWDEN DCJ: On 9 August 2009 a De Havilland DHC-2 Seaplane (VH-IDO) (the seaplane) crashed whilst landing on the water at Talbot Bay in the north-west of Western Australia.
2 The seaplane is owned by the plaintiff, and at the time of the crash, was leased to the first defendant whose employee, the second defendant, was its pilot. 3 The seaplane was an amphibian, meaning it was equipped with floats and its landing gear was capable of retracting into the floats when landing on water or extending from them when landing on land. It is not disputed that it landed on Talbot Bay with its landing gear extended and flipped onto its back. 4 Fortunately, neither the pilot nor the passengers suffered serious injury. The seaplane was extensively damaged and was repaired in Canada. 5 Judgment has been given by default against the first defendant and the trial against it proceeded as an assessment of damages. 6 As to the second defendant, the trial proceeds both on liability and quantum. The plaintiff's claim is based on breach of contract of bailment and negligence and they seek $525,910 for lost earnings whilst the plane was being repaired and unable to be used. 7 It is appropriate to first determine the negligence claim, and then if necessary, deal with the bailment claim: La Rosa v Nudrill Pty Ltd [2013] WASCA 18. 8 Insofar as the negligence claim is concerned, the plaintiff says the second defendant negligently caused the seaplane to land on water with its landing gear fully extended, effectively by either failing to retract that gear after take-off from Derby or if the gear was retracted after take-off, by extending it prior to landing. 9 The second defendant denies any negligence and says the crash was caused by a mechanical/electrical failure which caused the landing gear indicator lights to erroneously indicate the landing gear was up when in fact it was down and caused an uncommanded extension of that gear. 10 Further they say that if the second defendant's negligence caused any damage, the claim fails because the plaintiff: The evidence 11 The following witnesses were called by the plaintiff:
Todd Douglas Green 12 A director of the plaintiff who has been a pilot since 1994 and is currently a rescue helicopter pilot. He has flown the seaplane since approximately 2007.
Bryan Edward John Carpenter 13 An airline transport pilot, flight instructor and holder of a chief pilot rating. He has flown approximately 18,200 hours, holds numerous flight ratings and endorsements, and has extensive float plane and amphibious experience.
Steven Kenneth Stackhouse 14 A pilot who has flown over 18,500 hours. He has been a training captain, chief pilot, flight operations manager and test pilot, and has flown numerous hours in De Havilland aircraft including those equipped with floats. He is currently a contract test, training and delivery pilot for a Canadian equipment manufacturer specialising in De Havilland aircraft products. He was previously employed by that company as their flight operations manager performing certification and supplementary type certificate test flying including on the DHC-2.
Simon Whitehead 15 A director and chief engineer of a CASA Approved Aircraft Maintenance Company. He is a licensed aircraft maintenance engineer (LAME) qualified to perform and certify maintenance on DHC-2 Beaver aircraft. He has maintained several Beaver and similar float planes for 25 years. He has been a CASA weight control authority holder since 1984 and has owned float planes for about 10 years.
Donald Scott McWatters 16 A director of the plaintiff and a professional pilot for the last 27 years. Has over 10,000 flying hours, with about 5,000 hours in sea or float planes and about 2,000 hours on Beaver type aircraft with amphibious landing gear similar to the seaplane in question. He is currently the base manager and chief pilot of flight operations for ExxonMobil in Cameroon. 17 The second defendant submits that as some time ago, Mr McWatters had been the pilot in charge of a Cessna aircraft which crashed into Lake Eyre, he had an unprofessional approach to flying, and therefore any of his criticisms of Mr Gould should carry little weight. I rejected this submission. The circumstances of his crash do not affect my findings on Mr McWatters credibility. 18 The witnesses called by the defence were:
Adrian Robert Gould 19 The pilot in command of the seaplane at the time of the crash. Mr Gould obtained his commercial pilot's licence in 1997 and had about 3,000 flying hours at the time of the accident. Before that regrettable incident, he had not been involved in any aviation safety related incident. He has endorsements on a number of different types of aircraft and holds numerous instrument ratings. He is a LAME, having obtained that qualification after the crash. 20 At the time of the accident, Mr Gould had flown about 199 seaplane hours and 347 seaplane landings. Mr Gould did not dispute his log books showed that he had flown about 30 hours in command of the seaplane.
Barry Alan Foster 21 A chief pilot, chief flying instructor, chief LAME, air operator and air maintenance provider. He is a CASA approved test officer for the issue of pilot's licence and ratings. He has been a commercial pilot since 1975 and has in excess of 32,000 flight hours experience and is endorsed to fly single and multi-engine and turbine powered aircraft and float planes. He is the owner of a business operating 12 aircraft and which holds an air operator's certificate. He has flight tested in excess of 600 candidates and has been a LAME for 33 years and has operated his own aviation business for 38 years.
Walter Karl Thompson 22 Holds a bachelor of engineering degree with first class honours in aerospace from the Royal Melbourne Institute of Technology. He is also a qualified LAME, a CASA weight control authority holder and has a CASA aircraft design authority, enabling him to approve modifications and prepare designs on various aircraft structures, systems and equipment. He has extensive employment in the aviation history, and in aircraft structure and design. He has been employed as an engineer, design engineer, engineering manager, contract design engineer and currently operates his own aircraft design business having previously operated an aircraft maintenance facility.
Objections to the admissibility of evidence 23 The second defendant argued that Mr Carpenter and Mr Whiteheads' first expert reports were inadmissible because they did not comply with Order 48 of the District Court Rules 2005. 24 Order 48(3) provides: Except with the leave of the Court, a report that has not been certified as required under subrule (2) is not admissible at trial. 25 Sub rule (2) provides: (2) The author of the report must certify in the report that he or she has read and complied with the practice direction made by the Court for the purposes of this rule. 26 Neither Mr Carpenter nor Mr Whitehead's first report contains any such certification and notwithstanding Mr Whitehead's familiarity with the code of conduct applying in other jurisdictions and prior experience as an expert witness I rule both Mr Carpenter and Mr Whitehead's first reports inadmissible. The rules should have been complied with. That ruling does not affect the admissibility of their second reports (which contains the certification) or their evidence at trial. 27 Next the second defendant says that whilst Mr Carpenter is an experienced pilot, his evidence was inadmissible because he was neither impartial nor independent. I reject this contention and adopt the approach taken by Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 where his Honour stated: The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to take into account by a court when deciding what weight to give to the expert's evidence, but it is not a ground for the Court rejecting evidence that may be of assistance to the Court in reaching the correct result … Any bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility [7] 28 It is further pointed out that Mr Carpenter had contact with Mr Green both before and after the preparation of his two expert reports. 29 The fact that Mr Carpenter and Mr Whitehead were asked by Mr Green to provide expert reports does not detract from their evidence. 30 I bear in mind the commercial relationship and the manner in which Mr Carpenter and Mr Whitehead were approached to provide expert evidence in assessing the weight to attach to their evidence; however, it does not affect its admissibility.
The evidence 31 As the second defendant suggests there was an electrical/mechanical malfunction resulting in the four landing gear indicator lights displaying blue and the gear selection lever being in the up position when the landing gear was extended (down), it is necessary to examine how the seaplanes landing gear operates.
How the landing gear operates 32 The seaplane was equipped with two amphibious floats. 33 The landing gear is incorporated within those floats. There are four independent landing gear systems consisting of two retractable nose wheels, one situated at the front of the port float and one at the front of the starboard float, and two sets of dual retractable main wheels, one set situated about the middle of the port float and the other about the middle of the starboard float. 34 Within the cockpit is a landing gear lever which has an up and down position. The pilot selects up (to retract the wheels for a water landing) or down (to extend the wheels for an on land landing). The pilot moves the landing gear lever by pulling it up out of a 'detent' and repositioning it in the up or down position. 35 Moving the landing gear lever causes two electrically driven hydraulic pumps to operate. When the hydraulic pumps are operating, red indicator lights (one for each pump) are activated within the cockpit. 36 The pumps activate the gear actuators for each of the four independent landing gear systems sending each of the systems into the fully retracted or fully extended position depending on which setting the pilot has selected. It takes approximately 8 to 20 seconds for the landing gear to reach the desired position. 37 When the pumps are activated, according to some witnesses, (Mr McWatters, Mr Whitehead) a pilot can hear the noise of the pumps. 38 When the landing gear reaches the fully extended or retracted position, it is mechanically locked and the pump shuts off resulting in the red pump indicator lights extinguishing and any noise emitting from the pumps ceasing (exhibit 13). 39 When the landing gear is locked in the fully extended (down) or fully retracted (up) position magnetic sensors activate the landing gear indicator lights in the cockpit by illuminating them. There are a total of eight such lights. 40 Each set of landing gear activates one green light when the landing gear is fully retracted or one blue light when the landing gear is fully extended so as an individual landing gear system reaches the fully extended position , one green light will be illuminated but ultimately when all four landing gear systems are fully extended all four green lights will be illuminated and when one landing gear system is fully retracted one blue light will be illuminated and when all four landing gear systems are fully retracted four blue lights will illuminate. 41 The eight magnetic sensors are independent of each other and each circuit for the four individual gear landing lights which illuminate blue is independent of each circuit for the four individual lights which illuminate green. 42 Whilst each of the landing gear light circuits are independent, they all run through a common terminal block. 43 The appropriate landing gear display lights remain on whilst the gear is fully retracted or fully extended. Whilst in transit from the fully extended or fully retracted position the lights are not illuminated. 44 Therefore when four green landing gear lights are illuminated the landing gear is in the extended position and the plane configured for an on ground landing and when the four blue lights are illuminated the landing gear is in the retracted position and the plane configured for an on water landing.
The events leading to the landing at Talbot Bay
Mr Gould's evidence 45 Mr Gould said that on the day of the crash he had a later start than usual because he was called in to command an extra flight and take passengers to Talbot Bay, drop them off and return to Derby. 46 He said that prior to take off he completed his daily inspection of the seaplane but did not sign the maintenance release confirming that he had carried out the inspection because he intended to sign it upon his return from Talbot Bay. 47 He said he observed the maintenance release and went through each items on it and assessed them and concluded that none of them affected the airworthiness of the flight and that the flight could be conducted safely (ts 665). The issue is not whether he is required by regulation to sign the daily inspection section of the maintenance release before flying, but whether he satisfied himself that the seaplane was safe for flight in all respects as required by the Civil Aviation Regulations 1988 (Cth) (CAR) 233(1) and I accept his evidence that he did so. 48 Mr Gould said that he completed his checks, did his final run ups and took the passengers on board and took off in the seaplane. 49 Shortly after take-off, he took hold of the gear selection lever, raised it and moved it to the retracted position and observed that the blue landing gear indicator lights illuminated. In cross-examination he said he believed that he felt the bump as the wheels locked in the up position. 50 The seaplane continued to climb to 1,000 ft and at the top of the climb; he took his lap sash off as it was safe to do so because he was flying across fairly level terrain. He said that he and all the passengers had headphones on and they were talking. Mr Gould said that part of his duty was to act like a tour guide. 51 In cross-examination he said, for the first time, that after he took his seat belt sash off, he moved forward in the pilot's seat and looked out the window at the left front float, and saw that the left front wheel was in the fully retracted position. In cross-examination, Mr Gould also said he checked the gear landing indicator lights on the climb and at the top of the climb. 52 Mr Gould said he was in the cruise section for 7 to 10 minutes and then as the terrain began to rise he put his seat belt sash back on. He said he did not perform another visual check because there was nothing to indicate a check was necessary as the gear landing indicator lights had not changed, the gear selection lever position had not changed and there was no indication that the wheels had moved. 53 Mr Gould said he had absolutely no indication that the wheels were down and as he approached Talbot Bay, he orbited over the horizontal waterfalls and set himself up to land. He said he checked and the gear selection lever was in the up position and the landing gear lights were blue. 54 He noticed another aircraft, IMU, flying to the same destination and warned them about some large sea eagles. 55 He stated he then conducted his checks and commenced the downward leg of his landing circuit, then went onto the base leg and turned onto the final leg. He said that whilst the aircraft was on its final approach to landing, the gear lever was in the up position and the gear landing lights were blue. 56 Mr Gould said his memory of what occurred after lining up on the final approach was patchy, but he recalled that on touch down, the touch on the floats were completely wrong, and he had a sensation of white water coming on to him then running out of air, and his next recollection was surfacing next to the floats and seeing the wheels sticking straight out and the seaplane completely submerged. 57 He said there must have been a hydraulic as well as an electrical failure to cause the landing gear to go into the extended position whilst the blue landing gear lights were illuminated and the gear selection lever was in the up position. 58 Mr Gould said he suffered some injuries in the crash having a bent and bloodied nose, and pain in his abdomen. 59 After the crash, he flew some passengers back to Derby in IMU. 60 He said he was taken to hospital overnight and Mr Johnson asked him to make some notes of what happened so he prepared and sent exhibit 48, an email dated 10 August 2009, but sent on 15 August 2009. 61 Mr Gould said that when he prepared exhibit 48, he could not reconcile what had taken place, because the landing gear lever showed that the landing gear was in the retracted position and he had observed the four blue lights and yet, when he surfaced from the aircraft after the crash, the wheels were sticking out of the floats. He said he was baffled and confused and still trying to grasp what had occurred and genuinely trying to reconcile what he knew with what he saw and said that the explanation he gave in the email was, at that time, the only one he could come up with (ts 778). 62 He said he now had absolutely no doubt that at the time of the accident the landing gear lever was in the retracted (up) position and the gear landing lights were blue, that is, that the plane was configured for a sea landing. 63 This evidence is contrary to the contents of exhibit 48, the email sent by Mr Gould only days after the crash. Mr Gould said he could not remember what day he wrote it but he prepared it because his employer Mr Johnston wanted some 'quick notes' of what happened as he needed to report the accident. 64 Exhibit 48 states: From: Adrian Gould [mailto:[email protected]]
Sent: 15 August 2009 08:56
To: [email protected]
Subject: accident report
Sunday August 10 2009
VH-IDO
Accident at horizontal Falls/Talbot Bay
Adrian Gould
The flight was my first of the day and proceeded perfectly as normal until overhead the Horizontal Falls. While completing passes in front of the falls to show the falls to both sides of the aircraft I almost hit two large sea-eagles. When I heard IMUs inbound calls I warned him of the two birds. I have started my pre-landing checks and flown across the range to the cyclone creek end of the Talbot bay to take advantage of a light westerly. I did this to achieve a left hand circuit instead of my normal approach which would have been to enter the bay heading north and doing a right hand circuit. During this northerly heading which was effectively my base leg I have looked at the landing gear lights after extending flap and failed to recognize they were green and not blue. My memory is very patchy after lining up on finals. I can remember feeling the wrong feel on touch down and attempting to pull back. I remember a white wall coming at me up the windscreen, struggling for air, and being trapped by something across my chest. I remember being unable to get a door or window open and running out of air. And then being on the surface trying to count how many passengers there was above the surface. I cannot recall how I got out of the aircraft. It is currently my belief that I have failed to retract the gear after take-off from Derby and that they were never retracted therefore the lights I thought were blue were in fact green .There was no weather pressures or stresses as the day was cloudless blue with a light sea breeze. There was no time pressures as this is a standard flight for this time of year and I had an empty return where I could make up time if need be. I was less familiar with IDO than IMU but had done some flying in it and was feeling more comfortable each flight. 65 As can be seen, there is a significant difference between Mr Gould's email of 15 August 2009 and the position he now takes. 66 The email also discloses a number of matters that may have distracted Mr Gould's attention just before the landing, including the presence of two large sea eagles, which he almost struck and taking a left hand landing circuit instead of his normal approach, a right hand landing circuit. 67 In any event, in the email Mr Gould significantly states that during his 'base leg' he looked at the landing gear lights and failed to recognise that they were green and says 'It is currently my belief that I have failed to retract the gear after take-off from Derby and that they were never retracted therefore the lights I thought were blue were in fact green.' 68 Mr Gould agreed in cross-examination that the failure of the two independent systems, that is, the electrical system and the hydraulic system was very unlikely. 69 I do not accept Mr Gould's current explanation as to the events in question. There are a number of inconsistencies in his evidence. 70 He said in one part of his evidence (his statement) that 'Shortly after the accident, while I was recovering from the trauma, I was told that the wheels were extended at the time the Beaver alighted on the water.' In another part of his evidence he said when he surfaced from the aircraft, immediately after the crash, he observed that the wheels were sticking out of the floats. 71 He also says in one part of his evidence (exhibit 47, his statement of 6 September 2013) that he raised the undercarriage after take-off and observed on his 'final' landing approach that the landing gear indicators lights were blue and safe for a water landing. He does not refer to this in exhibit 48. 72 He made no mention in exhibit 47 or 48 that he took his seat belt off, lent forward, looked out the window and saw that the front left wheel had retracted nor did he mention this in his evidence-in-chief, it emerging only in cross-examination. 73 Mr Gould also said in one part of his evidence (exhibit 47) that he did not recall the seaplane having an external mirror, in another part of his evidence he says it had an external mirror bracket, however, there was no glass in it. 74 In exhibit 48, Mr Gould says he mistook the colour of the illuminated gear landing lights, he now says he did not do so. 75 The email is clearly an admission against interest. I do not accept that Mr Gould was confused or disoriented when he composed and sent it. I accept he received some injuries in the crash, which were relatively minor and was hospitalised and I have no doubt that was shaken up as a result of the incident. 76 However, he clearly had his wits about him shortly after the incident as he flew a plane (IMU) with passengers back to Derby and signed off as the pilot in command. I found implausible his explanation that he was not really the pilot in command as Mr Johnson, also a pilot, was sitting next to him in the front seat and even though Mr Johnson did not take command of the plane, he considers he was under Mr Johnson's supervision and Mr Johnson was in command. 77 When he composed exhibit 48, Mr Gould knew he was providing information to his employer so the accident could be reported to the appropriate authorities. Mr Gould's relatively contemporaneous recollection, contained in exhibit 48, in my opinion, reflects the more probable scenario of what occurred, that is, for whatever reason, he mistook the colour of the gear landing lights and believed it was safe to land. 78 I reject Mr Gould's evidence that the gear selection lever was in the up position, and the gear landing lights were illuminated blue. For this to occur and the landing gear to be in the extended position, would require a hydraulic and electrical failure which, for reasons explained later, was highly unlikely. 79 The more probable explanation is that on this one occasion, Mr Gould, after many years and hours of safe flying, made an error and mistook the colour of the landing gear indicator lights and thought the landing gear was retracted when it was not. 80 However, the question of whether the landing gear was extended as a result of pilot error or electrical/mechanical malfunction needs to be addressed.
Was the landing gear extended as a result of pilot action or mechanical/electrical malfunction? 81 Mr Gould was adamant that the landing gear lights were blue and the landing gear lever was in the up position yet the landing gear was extended. Mr Gould agreed that this required a failure of two independent systems, the electrical and mechanical (hydraulic) systems', which he conceded was very unlikely. However, in support of the assertions that this is what occurred he relied on his own evidence and that of Mr Foster. 82 Mr Gould qualified as a LAME after the accident and said his experience as a LAME shows that the electric circuitry associated with landing gear lights is vulnerable to malfunctions as a result of salt corrosion occurring because of the operational environment of seaplanes. 83 Mr Gould and Mr Foster both drew attention to the entry in the airframe log book dated 26 August 2011 saying 'gear light terminal blocks in floats bypassed due excessive corrosion'. 84 Mr Gould says this clearly indicates that there been a corrosion problem with the electrical system that had been present for a considerable time. He pointed out that the LAME making that entry saw fit to bypass the wiring in the very area which Mr Gould says suffered a malfunction at the time of the crash. 85 Further, Mr Gould and Mr Foster both said they had not seen any certification in log books or maintenance release records, showing that the Wipline 6100 floats (which contain the landing gear) and its associated electrical systems were installed as required by aviation regulations in accordance with the approved Supplemental Type Certificate (STC) by a LAME. 86 Whilst I consider Mr Gould was at every stage of his evidence, looking for ways to deflect responsibility for his own errors, Mr Foster has impressive qualifications and is an experienced pilot and LAME. 87 Mr Foster said in his reports it was 'highly likely', and he could not 'reasonably excluded' the likelihood that there was an intermittent defect in existence, which emerged during the flight and caused the landing gear indicator lights to provide a false indication of the true state of the landing gear. I do not agree with that conclusion. 88 Mr Foster, who did not inspect the seaplane, said that corrosion could develop slowly and will constantly attack the electrical system of a seaplane and result in defects occurring in the electrical system including the landing gear indicator system. He said the seaplane records contained numerous entries for the rectification of evident corrosion and that corrosion issues would first become evident as an intermittent problem before they result in a total failure, and in his opinion, that probably happened with the gear indicator lights in the seaplane. 89 Mr Foster said there appeared to be a long history of recurring maintenance problems including problems with the gear indication lights and the operation of the undercarriage and this indicated that the aircraft had been left in salt water for long periods of time or had not been washed down on a daily basis. He agreed that if a seaplane was involved in an incident where it was submerged and it was not washed down, you would expect corrosion to occur. The evidence established the seaplane crashed and was inverted in Talbot Bay, although it is not known for how long it remained inverted. This inversion clearly could have contributed to any corrosion seen after the crash. 90 Mr Foster said the seaplane had flown in excess of 16,500 hours and the current maintenance release (exhibit 7) contained 10 maintenance endorsements including an endorsement regarding an intermittent electrical problem with the landing gear light indicators. 91 He said electrics do funny things and things that people do not expect and gave an example of a tractor which malfunctioned to the extent that one of the lights meant to come on when a switch was turned did not, but another light that was not meant to come on did. 92 Mr Foster originally agreed with the proposition that eight independent landing gear lights would need to malfunction for the lights to indicate that the landing gear was up when it was down, however, under further questioning, he resiled slightly from that statement. 93 He pointed out that there was a common terminal block and even though each of the landing gear light circuits were independent, they all ran through that common terminal block and therefore a short across the block could reflect in each of the independent circuits. Mr Foster said all eight wires could be shorted out meaning that all eight lights would come on or only four. He said if the short went right across the terminal bar it could also cause the two red pump lights to come on. Simply put, he said it depended on how far the short went across the common terminal block as to the number of lights that were affected. 94 He agreed that whilst it was technically possible for two shorts to occur, one affecting the green lights and stopping them from illuminating and the other causing the blue lights to illuminate, it was highly unlikely (ts 395). 95 He agreed that there was no evidence in this case of where the short occurred. 96 Mr Whitehead is also a LAME with extensive experience. He agreed that the landing gear lights shared a common terminal block. He said that after studying the wiring diagram for the seaplane, he believed it was nearly impossible for a short circuit of the common terminal block to result in the gear indicator lights showing blue when in fact the wheels were in the down position. He said it would require not a single short but several shorts. 97 Mr Carpenter, an experienced pilot and flight instructor said it was 'unlikely in the extreme' for an erroneous indication by way of illumination of the landing gear lights to reflect that the landing gear was up when it was down and said that if this scenario were considered, the four independent up lights would need to fail simultaneously and the four independent down lights would need to self-illuminate with no magnetic initiator, simultaneously. 98 Mr Carpenter also said that any suggestion that the landing gear fell out on its own due to a hydraulic failure or other failure, is not entertained as it is not possible for the forward nose gear to extend whilst airborne because it retracts into the float structure and the airflow alone would hold it in place and said that hydraulic pressure of 1,000 PSI is required to drive the gear out of its recess to the fully down and locked position. 99 Mr Carpenter is not a LAME and his opinions about the technical operation of the hydraulic and electric circuitry of the seaplane and the causes of, or mechanisms of, any failure of those systems is inadmissible as expert evidence as to the causes of those failures because it exceed his area of expertises and I ignore those opinions. 100 However, his observations as an experienced pilot on the frequency of landing gear indicator lights indicating that the landing gear is up when it is down are admissible and relevant to the likelihood of landing gear indicator lights and/or landing gear malfunctioning (but not the causes for such failure). However, my findings are not based on Mr Carpenter's observations, but my own assessment of the probabilities.
Conclusions on electrical/mechanical failure 101 The second defendant accepts that no specific maintenance issues can be identified, but relies on the probability of a malfunction occurring due to what it says is the seaplanes' recurring history of maintenance problems. 102 I accept the evidence that seaplanes operate in a hostile environment and that saltwater can cause corrosion which can affect electrical wires and circuitry and that the eight independent landing gear lights all shared a common terminal block, and that electrics can on occasions, do things that people do not expect. 103 I accept Mr Foster's conclusion that it is possible for corrosion to cause a short circuit across the common terminal block with one effect being that the landing gear lights would show the landing gear was up when it was down, however, I do not accept that this is what occurred on 9 August 2009. 104 In the scenario put by Mr Gould, not only did the gear landing lights malfunction but the completely independent hydraulic system malfunctioned and caused an uncommanded extension of the landing gear. Although I accept the hydraulic system is electrically activated, I agree with Mr Gould's evidence that it is very unlikely for the two systems to malfunction. 105 I consider that a short occurring in the manner Mr Foster describes, and Mr Gould adopts, that is, affecting the independent landing gear light circuits such that it would cause the four blue lights to illuminate when the wheels were down and the green lights that should illuminate when the wheels were down to not illuminate, whilst technically and theoretically possible to be improbable. It is even more improbable that at the same time the landing gear lever is up, the landing gear is fully extended. 106 There is nothing in the evidence of Mr Gould or Mr Foster, individually or collectively, that persuades me that the gear landing lights and/or the hydraulics malfunctioned in the way alleged as a result of corrosion or any other cause. The more probable explanation is that the landing gear was extended due to the actions of Mr Gould. 107 Mr Gould and Mr Foster's reference to the log book entry dated 26 August 2011 saying 'gear light terminal blocks in floats bypassed due excessive corrosion' does not assist the second defendant. 108 That entry was made after the seaplane crashed into Talbot Bay and inverted and after it had been packed in a container, taken to Canada, repaired and returned to Australia and then reassembled. In those circumstances, the condition of the terminal blocks on 26 August 2011 does not enable me to draw an inference either alone or in combination with other factors that in August 2009 the terminal blocks were affected by excessive corrosion. 109 There is nothing to indicate this seaplane was in anything other than sound mechanical condition and there is nothing noted on the maintenance release of 19 July 2009 (exhibit 7) about corrosion. It is of course possible for the sudden onset of corrosion to occur and affect the electrical circuitry; however, I reject that as the probable explanation for the crash. 110 Mr Foster's evidence that the landing gear electrical system needed to be overhauled and any corroded or worn out components replaced and that the seaplane had a long history of maintenance and intermittent electrical problems, including problems with the landing gear indication lights and undercarriage and there were numerous maintenance entries for the rectification of evident corrosion must be considered in the context of the 'maintenance release' system. 111 Whilst I accept there have been reoccurring maintenance issues over the 47 year lifetime of the plane, the whole system of aircraft maintenance, including requiring periodic maintenance is such that an aircraft can only receive a maintenance release if the required maintenance has been carried out (CAR 43(7)(a)) and all previous defects attended to so that the plane in essence has a 'clean slate' from the issue of the new maintenance release. The conclusions drawn by Mr Foster in his report do not sufficiently recognise the effect of the maintenance releases issued for this seaplane. 112 Whatever maintenance issues may have arisen in the past, the issue of a current maintenance release means the person issuing that release has inspected and found the aircraft airworthy. The log books show that all required maintenance was performed. 113 The seaplane commenced its 'dry hire' to the first defendant on 1 June 2009 and in May 2009 it underwent a periodic inspection to CASA maintenance schedule 5 standard and all applicable air worthiness inspections were carried out (exhibit 4.1, 4.2) and the fact that it obtained maintenance certification (exhibit 39.3) shows that it satisfied a LAME that it was airworthy. Any corrosion noted was endorsed as repaired. 114 The seaplane's latest maintenance release (exhibit 7) was issued on the 19 July 2009, shortly before the crash, when it underwent its 100 hourly schedule 5 maintenance at 16,588.6 total time in-service hours, that release expired on the sooner of 19 July 2010 or 16,688.6 TTIS hours. It was well within both of those parameters at the time of the crash. 115 Whatever defects it had in the past had been rectified. This was not sufficiently recognised in Mr Foster's evidence. The very fact that the seaplane received a maintenance release on 19 July 2009 is evidence that the LAME issuing the maintenance release was satisfied that as of that date the seaplane was airworthy with no impediments to its safe operation. 116 After 19 July 2009 maintenance release, a number of endorsements (1 - 10) were made. Of those endorsements, two (1 and 4) were cleared before the crash indicating that those items were no impediment to the safe operation of the aeroplane. 117 Item 10 the entry stating 'mirrors are required to check gear up or down', is not accompanied by the date of its entry nor the licence number of the person who made it nor that persons signature all of which are required for the entry to be a valid maintenance endorsement. Mr Gould said it was not his handwriting. I am not prepared to accept that entry was made prior to the cash. On the contrary, the inference is that it was made after the crash by a person unknown and as such, this entry does not assist my task. 118 Of the remaining endorsements (2, 3, 5 - 9) all were present prior to Mr Gould commencing his flight. Mr Gould was aware of them, he inspected the seaplane and concluded that they did not affect the safety, flight or operating characteristics or the aircraft and that basically the plane was safe to fly. Both Mr Carpenter and Mr Foster say that it was within Mr Gould's discretion to make such a decision. 119 Endorsements 2, 3, 5 - 9 relate to the left passenger door, the right tank gauge, the left spray rail, intermittent rough running of the left magneto plug, breaking down of the plug on the right magneto, and an air speed indicator under reading in certain circumstances and there is no evidence that any of those issues contributed in any way to the crash or losses claimed by the plaintiff. 120 The other defect, being the reference to the 'left rear main gear light intermittent – retract' was endorsement onto the maintenance release on 24 July 2009 and left unexplained. We do not know the nature of the difficulty. Was the light, for example, flashing on and off, was it on for an extended period of time, then off, then on again, did it only occur on retraction? The terms of the entry refer to a 'light' not 'lights' and there is no indication that the light was malfunctioning such that it gave a false indication as to whether the landing gear was extended or retracted. 121 I add, purely for the sake of completeness, that it is of no consequence to any of my findings whether or not the maintenance release was in the aircraft at the time of the crash. 122 Whilst there is no evidence to show that the Wipline 6001 floats were fitted by a LAME, there is no evidence to establish that the manner in which the floats were fitted contributed to the crash or the damage sustained in the crash. The CARprovide that the existence of an earlier maintenance release may, in the absence of evidence to the contrary, be accepted as proof that all the maintenance required be carried out before the issue of that release has been completed as required (CAR 43(8)). 123 The May 2009 maintenance log (exhibit 39.3) specifically refers to the Wipline 6000/6001 float service manual in the context of maintenance being performed and the existence of many maintenance releases issued after the floats were fitted is capable of leading to an inference that their presence on the seaplane at the time of those earlier maintenance releases represented no impediment to the safe operation of the seaplane. As I have found there is no evidence to show that the manner in which the floats were fitted has contributed in any way to this crash or the losses claimed. 124 The plaintiff points out, and Mr Gould does not dispute, that allegations of corrosion causing an electrical/mechanical defect were not raised in Mr Gould's original defence or in any other document until 8 March 2012, when it was raised in an affidavit filed by his current solicitors. 125 I do not draw any inference against Mr Gould as a result of this. I have determined the issue irrespective of when it was raised. I reject Mr Gould's contentions that there has been an electrical/mechanical failure. I consider all the circumstances point to the absence of any mechanical (hydraulic) or electrical failure and to pilot error as the cause of the crash. Mr Gould is attempting to search for a cause for the accident which does not entail his negligence. 126 I am satisfied on the balance of probabilities that the accident occurred because Mr Gould did not ensure that the landing gear was retracted before he landed on Talbot Bay. That accords with what he said in exhibit 48 and is the most plausible explanation for what occurred. 127 Mr Gould should have been aware of the landing gear's position before he landed on Talbot Bay. Even if the landing gear was extended due to an electrical/mechanical failure, Mr Gould for reasons explained later, had the means to ascertain that fact and should never have landed with the landing gear extended. 128 I find as a matter of fact that there was no mechanical (hydraulic) or electrical failure of equipment and Mr Gould either failed to retract the landing gear after take-off from Derby or extended it in error shortly before landing in Talbot Bay and failed to ensure that the landing gear was retracted before making an on water landing. 129 The next issue is whether a reasonably competent seaplane pilot would land on water with the landing gear extended.
Would a reasonably competent seaplane pilot land a seaplane on water with its landing gear extended? 130 The evidence in this regard is overwhelming. 131 The seaplane had inside the cockpit at the pilot's station, a placard reading 'Check wheels up, water landings' which is pictured in exhibit 8. 132 The flight manual (exhibit 11) states: If the landing is to be made: (a) On water, the wheels and water rudder, must be retracted (up). (b) On land, the wheels must be selected down and locked and the water rudders retracted. 133 The flight manual supplement for seaplanes fitted with the Wipline 6,000 and 6,100 model amphibious floats (exhibit 12) states that if the landing gear is confirmed up, a water landing is approved but if the pilot is unable to confirm the landing gear position, landing on a runway should be made and if one or more of the landing gears is down the landing should occur on a runway not water. 134 A handbook produced by the Federal Aviation Administration of the United States (exhibit 18) dealing with procedures when operating amphibian planes states: … it is extremely important to make certain that the wheels are retracted when landing on water. Where ever possible make a visual check of the wheels themselves in addition to checking the landing gear position indicators. A wheels down landing on water is almost certain to capsize the seaplane and is more serious than landing a seaplane on land with the wheels up (6.2). 135 Mr Green's evidence, which I accept on this point, was that he would be surprised if there was a seaplane pilot in Australia who was not aware of that document, which was available online. 136 Mr Green, Mr McWatters, Mr Carpenter (relying on his evidence at ts 436 and not his inadmissible first report) and Mr Stackhouse all experienced pilots effectively said the usual outcome for a 'gear down water landing' is for the aircraft to invert into the water and fatalities are often associated with such landings and it is essential for safe operation of a seaplane to avoid such scenarios. I accept their evidence on this point. 137 The first defendant's operational manual states in the section relating to undercarriage malfunctions (7.8) that 'Under no circumstances is the aircraft to be landed on water under conditions of partial retraction'. The only two airplanes specifically described as amphibians for which a pilot's checklist is reproduced in the operations manual, are the C208 amphibian and the DHC-3T amphibian. Insofar as each of those planes are concerned reference is made to the undercarriage being down when landing on land and up for water and in the DHC-3T amphibian checklist the instruction given is 'Do not land on water unless gear is fully retracted'. Whilst I accept that the first defendant's manual does not specifically refer to the same type of seaplane (DHC-2) involved in this incident, Mr Gould's evidence was that he was endorsed to fly seaplanes with amphibious floats by the chief pilot and director of the first defendant, Mr Rod Johnson, and described his training as very thorough. I find it inconceivable that his training would not have included instructions similar to those contained in the first defendants operations manual (exhibit 29). 138 Mr Gould's said that although he could not remember exactly what was said during his training, there was discussion about the consequences of landing an amphibious float plane on water with the wheels down and said those discussions would have been about the damage and injury that would occur. 139 Mr Gould's' evidence was not that he was trying to land with the landing gear down rather it was that he thought the landing gear was retracted. His counsel accepts that it is unwise to endeavour to land a seaplane on water with the landing gear extended. 140 I find that a reasonably competent seaplane pilot would be aware from his training, the literature, the flight and operational manuals that landing a seaplane on water with the landing gear extended is an act that carries a reasonably foreseeable and not insignificant risk, one which is more than a far-fetched or fanciful risk, of damage to the seaplane and injury to its occupants. 141 That being so the next step is to examine the steps a competent pilot can take to ensure the landing gear is retracted prior to landing on water.
How can a pilot ascertain whether the landing gear is retracted? 142 Mr Gould accepts that a pilot must check by whatever means available, the position of the wheels (second defendant's submissions in reply par 70). 143 The steps Mr Gould could have taken to ensure the seaplane did not land on water with its landing gear extended were neither difficult, inconvenient nor expensive and simply involved following standard procedure. 144 Absent mechanical/electrical failure he had the following means at his disposal to establish that the landing gear had been retracted. 145 Firstly, check the gear selection lever to ensure that it was in the up position. I have rejected the electrical/mechanical failure scenario and the evidence shows that when the landing gear is extended the lever must be in the down position. Mr Gould does not dispute that the landing gear was extended when he landed. I reject Mr Gould's evidence that he checked the levers position and it was in the up position. 146 Although exhibit 32 is a photograph showing the landing gear lever in the 'down position', there is no evidence establishing when that photograph was taken and it has no evidentiary value. 147 I am satisfied that the gear selection lever was in the down position because Mr Gould either failed to retract the landing gear after take-off from Derby or if he did, he extended the gear before landing on Talbot Bay. 148 Secondly, check that the four blue landing gear indicator lights in the cockpit were illuminated. I reject Mr Gould's evidence that the blue lights were illuminated. I find that the green lights were illuminating and Mr Gould, as he stated, in exhibit 48 mistook the colour of those lights. 149 Thirdly, check the position of the landing gear by looking out the cockpit window to a mirror attached to the underside of the left hand wing, and by looking in that mirror, observe whether the left front landing gear and main landing gear was retracted. 150 Mr McWatters said the mirror was attached on the last occasion he flew the seaplane albeit a significant amount of time before the crash and said that by looking in the mirror you could see that the left main and left nose gear was retracted and if the gear was extended you could see the left and right nose landing gear and the left main gear. 151 Mr McWatters also said he could tell whether the landing gear was extended 'in flight' because of the effect it had on the performance of the aircraft. Although other witness gave similar evidence and I accept that some experienced seaplane pilots' may be able to make such a judgment based on the feel of the seaplane I do not accept that all experienced seaplane pilots would be able to make such a determination. 152 Mr Carpenter, who has flown this seaplane, took photographs of the seaplane a few weeks before it departed Queensland for Western Australia (exhibit 32) and said the mirror was in place. He said that you can see via the mirror the left landing front gear and the left main landing gear (ts 458). 153 Mr Green said that when he delivered the seaplane to the first defendant in late May 2009, the mirror was intact and said that via the mirror you could see whether the left front landing gear and left main gear was retracted (ts 107). 154 Mr Stackhouse said that 'A mirror's provided under the underside of the left wing to allow the pilot to visually confirm the position of the left main gear'. I attach no weight to this evidence, as Mr Stackhouse had not flown nor seen this seaplane and was speaking generically. I ignore Mr Whitehead comments in the first inadmissible report. 155 Exhibit 8 appears to show glass in the mirror bracket, however, the photograph lacks the clarity required to say it definitely shows the glass. 156 Mr Foster's evidence was that he had been advised the aircraft had no externally mounted mirror. Clearly, this is hearsay and ignored by me. 157 Mr Gould said in court that although the seaplane had a mirror bracket on the portside wing, there was no glass in that bracket. Mr Gould said he discussed this with Mr Green and later spoke to one of the engineers who refused to replace the glass because it was a non-standard item and there was nothing in the log book to show approval had been given for that mirror to be fitted. Mr Gould's evidence that the mirror glass was missing is not supported by any other witness. 158 The second defendant argued that the presence of the wing mirror on the seaplane is not a mandatory requirement but an 'optional extra' and that the absence of glass from the bracket is not a matter that would render the aircraft unairworthy and therefore, its absence is not required to be endorsed on the maintenance release. 159 I reject this submission, CAR 50 requires, inter alia, a flight crew member upon becoming aware of the existence of a defect in an aircraft to enter on the maintenance release or other approved document an endorsement signed by him setting out the particulars of the defect. 160 Although there is no definition of 'defect' in the Civil Aviation Act or Regulations it has been defined as a flaw or fault with the actual or potential capacity to cause deterioration in the safe operation of the aircraft, in ordinary circumstances or in an emergency, including a diminution in the inbuilt safety margins of the various operational parts and systems of the aircraft which warrants specific attention by a qualified inspector or examiner not immediately, but on the next occasion the aircraft is compulsorily inspected or its maintenance release renewed when the inspector or examiners opinion can be given about what, if any, remedial work is required: Fisher v Firkins [2004] WASCA 26 EM Heenan J [30] – [36]. 161 In that case, his Honour said that a defect involving the potential that some helpful or necessary apparatus may not function immediately when required to do so, would be a defect of the kind referred to in reg 50 [30] – [36] and found, inter alia, that a landing gear warning horn which was sounding sooner than necessary and may distract the pilot, was a defect within the meaning of reg 50. 162 The absence of glass in the mirror as alleged by Mr Gould is a defect that should have been noted in the maintenance release. Mr Gould did not give a specific date when he first noticed the missing glass. The seaplane undergoes a daily inspection every time it is flown. The mirror may not be mandatory but at the very least it is a helpful aid to safe landings. The absence, before the crash, of an endorsement referring to the missing glass, by any person who flew or maintained the seaplane only reinforces the conclusion that I had already reached that Mr Gould's' evidence that the glass was missing was simply not true and he is tailoring his evidence to try to avoid responsibility for the crash. 163 In his statement made before the trial (exhibit 47) Mr Gould said '… I recall that the Beaver did not have an external mirror…' During the trial exhibit 8 was produced and you cannot see definitively whether there is glass in the bracket and at trial Mr Gould's evidence was that there was a mirror bracket but no glass. 164 Mr Gould did not mention the missing glass in the email of 15 August (exhibit 48), however, I place no significance on this as I agree with his submissions that you wouldn't expect that matter to be referred to. 165 I reject Mr Gould's evidence that he raised this issue with Mr Green and the engineer. I note this was not put to Mr Green in cross-examination and the engineer did not give evidence. Resort to Browne v Dunn and Jones v Dunkel are unnecessary because I do not accept Mr Gould's evidence on this point. 166 I consider Mr Gould is attempting to explain away his failure to check the position of the landing gear via the mirror and this is consistent with his efforts to avoid responsibility for the crash. 167 The fact that I reject Mr Gould's evidence on this point, does not establish that there was glass in the mirror. 168 However, I am satisfied that the seaplane was fitted with a mirror bracket which contained glass, as glass was in the bracket when the seaplane was flown by Mr McWatters, admittedly at some unknown time before the accident and when the seaplane was photographed by Mr Carpenter, a few weeks before it came to Western Australia and when Mr Green flew it to Western Australia in May 2009 and from these facts and the absence of any reference to the missing glass in any maintenance release or log made before the crash, I draw the inference that at the time of the crash, glass was in the mirror bracket. 169 I accept the evidence of Mr McWatters, Mr Carpenter and Mr Green that by looking in that mirror it is possible to physically observe whether the left front landing gear and left main landing gear was retracted. 170 Fourthly, check by looking out the cockpit window and physically observe whether the left front landing gear was retracted. I reject Mr Gould's evidence that due to his body shape he could not do so with the seat belt on. 171 Mr Green's evidence was that from the pilot's seat you could literally look out the front left-hand window to the front left gear and watch that gear either extend or retract (ts 106 – 107). 172 Mr McWatters said that even with the pilot's seat in the fully back position all he had to do was re-position his head to look out the side window and confirm the position of the left nose gear at the front of the float because if the landing gear has been extended, you are able to observe the gap at the front of the float where the left nose gear leg had been and if the left front nose landing gear has been retracted you can see part of the nose gear leg at the front of the float (ts 629 – 631). 173 Mr Carpenter said you could see from the pilot's seat the front left float and confirm whether the landing gear was up or not because if it was up the front knuckle of the gear is visible; if it is not, then the gap is visible (ts 437). He said to do this, a pilot simply needed to move his head and lean forward. 174 Mr Stackhouse's evidence was that you could visually confirm through the pilot door window that the left nose wheel was extended or retracted. Mr Stackhouse had not flown nor seen this seaplane and was speaking generically. 175 I accept the evidence on this point of those witnesses. 176 Mr Foster's and Mr Thompson gave no relevant evidence on this issue. 177 I ignore Mr Whitehead's comments in his inadmissible first report. 178 Contrary to this body of evidence, Mr Gould said when he was sitting in the cockpit he was unable to see the portside nose wheel because of his body shape. Mr Gould said that the seat belts were an old design with a fixed bracket rather than retractable one and, taken in context, his evidence consistently was that the only way he was able to see the portside nose wheel was to take the seat belt sash off and lean or move forward and up in his seat and look thru the window. He said that he was not able to take his sash off, for safety reasons when the seaplane was below 1,000 ft. 179 Civil Aviation Order (Cth) 20.16.3 and 20.16.4 provides that a crew member should occupy a seat and wear a seat belt when the aircraft is flying at height less than 1,000 ft above the terrain. 180 Mr Gould said he removed his seat belt and looked thru the cockpit window at the top of the climb and saw that the wheels were retracted but when he was below 1,000 ft and making his approach for landing he had his seat belt on and could not look through the window and see the front of the float (ts 743 and 746). The plaintiff's reliance on his answer that 'I don't need to take my sash off, I need to move forward in the seat' as some form of inconsistency is misconceived when considering Mr Gould's evidence as a whole on this matter. 181 I reject Mr Gould's evidence that he was unable to check the front left nose wheel without taking his seat belt off. He made no mention of this limitation in exhibit 47 and it seems his body shape does not affect his ability to use the seaplane's controls or assess landing attitude even with his seat belt on. I think it is another example of Mr Gould doing his best to avoid responsibility for the crash. 182 The rejection of Mr Gould's evidence on this point does not, of itself, establish that he could look out of the window and check the front left nose wheel without taking his seat belt off. 183 However Mr Carpenter who Mr Gould accepted was shorter and Mr McWatters and Mr Green who Mr Gould accepted were taller, all said they could ascertain the position of the front left nose wheel by looking out the cockpit window. They did not add any qualification that they needed to take off their seat belt to do so. 184 Even if he was not able to see part of the front left nose with his seat belt on, Mr Gould should have removed his seat belt before the plane descended to 1,000 ft and observed whether the front left nose wheel was retracted in light of the fact that he was shortly going to be landing on Talbot Bay. I reject his evidence that he did so. 185 I find as a fact that Mr Gould could look through the front left-hand side window, even if it required some adjustment to his seating position, and see the position of the left nose gear without removing his seat belt. 186 I find as a fact that Mr Gould who was about to make a water landing had four means at his disposal to establish the landing gear has been retracted, they being the position of the gear selection lever, the illumination of the four blue indicator lights, use of the mirror and by physically looking out the front side window. 187 Having made that finding, the question becomes what steps would a reasonably competent pilot take to ensure the landing gear was retracted prior to landing on water.
What steps would a reasonably competent pilot take to ensure the landing gear was retracted prior to landing on water? 188 Although the procedure adopted by each pilot was slightly different, Mr Green, Mr McWatters, Mr Stackhouse, and Mr Carpenter (ignoring his inadmissible first report and taking his evidence at ts 436, 437, 441 and 442) effectively said that before they land on water they would, during their pre-landing checks, look at the position of the landing gear lever to ensure it was in the 'up' position, observe that the four blue gear landing lights were illuminated, look in the mirror to ensure that the landing gear able to be seen was fully retracted and look out the window at the front float and see that the front left landing gear was retracted. I accept the evidence of each of those witnesses on that point. 189 In view of the consequences of wheels down landing these are the steps or checks that a reasonably competent pilot would undertake during his pre-landing checks conducted on, or shortly before, his approach to landing. 190 Although a reasonably competent pilot would carry out all four checks the correct performance of any one of those checks would have revealed the position of the landing gear and avoided this crash. 191 I ignore Mr Whitehead's evidence on this point as it was contained in his inadmissible first report.
The second defendants other contentions 192 The second defendant says he was not negligent or if he was, the damages should be reduced because the seaplane was 193 As to the allegation that the seaplane was not in sound mechanical condition, I reject the suggestion of any electrical/mechanical defect for the reasons expressed above [81] – [128]. Further, any suggestion that the number of splices in the tailplane or the fitting of the wing mirror contributed to the crash or damage sustained are unsupported by the evidence. 194 As to the 'excess' weight allegation the only evidence showing the seaplane exceeded its maximum landing weight came from Mr Thompson and if correct means the seaplane's weight has been wrongly calculated since the certification by an approved weight control authority holder in August 2003. 195 Clearly, the seaplane has taken off and landed on hundreds of occasions since that date and there is no admissible evidence of any difficulties experienced in any take-off or landing (the crash excluded) other than from Mr Gould. 196 Mr Gould said the seaplane was slower than the first defendant's other seaplane (IMU) and required more power getting on the 'stick' (being the first stage of the take-off roll when the seaplane moves from the ploughing position with the hulls deep in the water to the planning position with the hulls sitting on top of the water). 197 Mr Gould says his observation that the seaplane appeared to have less power than IMU accords with Mr Thompson report, that the weight of the seaplane was in excess of its permissible weight with the result that the damage suffered by the seaplane when it crashed was likely to be far more severe than if it was lighter. 198 Mr Thompson is an extremely well qualified expert, he is a qualified LAME and holds a bachelor of engineering (first class honours) in aerospace from the Royal Melbourne Institute of Technology. He provided two reports dated 2 May 2013 and 7 June 2013. Mr Thompson agreed that although he had been involved in several accident investigations, he had no formal qualification in that area. 199 He was an impressive witness and was measured in his responses and his conclusions were supported by logical reasoning. The criticisms of his general methodology by Mr Carpenter and others does not lead me to doubt his conclusions, however the number of critical variables which effect his conclusions, such as the wind speed and the pilot's ability to land at the assumed touchdown speed mean those conclusions, whilst scientifically calculated are so variable that they are of little assistance. 200 Although Mr Thompson has never seen the seaplane and had worked with Mr Johnson, the director of the first defendant, in 1998 on a flight test program these matters do not affect his credibility or the weight I attach to his evidence. 201 Mr Thompson was criticised because his reports refer to the seaplane being equipped with a Wipline 6,100 series float when it was fitted with a 6,000 series float. Mr Thompson's evidence, which I accept on this point, is that there were only minor differences between the two series, noting that one supplementary type certificate and flight manual supplement covered both float types. 202 Mr Thompson's evidence dealt with the likely weight of the seaplane at the time of the accident, how that weight would have affected the landing speed and how the speed affected the damage caused on impact. 203 Mr Thompson conclusion was that a heavier aeroplane will land faster than a lighter aeroplane and the weight of an aircraft affects the damage it sustains in a crash. 204 He said it was impossible to calculate the true weight of the seaplane at the time of the crash and agreed that the calculations he prepared would not be sufficient to enable him to write a Load Data Sheet and neither he nor any other weight control authority would commit to legal documents based on the material upon which he based his calculations. 205 Leaving aside the questions of whether his conclusions are based on material which has not been established by admissible evidence and is therefore hearsay and taking the report at its highest for the second defendant, Mr Thompson calculated the probable empty weight of the seaplane at the time of the accident as 1,974.9 kg some 215.5 kg over the approved weight in the Load Data Sheets (exhibit 15, 16). 206 Mr Thompson reaches this conclusion by taking the weight as recorded on the load data sheet by an approved weight control authority holder, AEA, when they weighed the seaplane as a land plane in August 2003. He then added 419 kg being the changeover weight for the conversion of a land plane to a seaplane. 207 To establish the changeover weight, Mr Thompson relied on brochures issued by Wipair (the manufacture of the Wipline 6,100 floats). The difficulty was that Wipair produced two separate brochures, one giving a changeover weight of 343 kg, the other giving a changeover weight of 419 kg. Whilst in court Mr Thompson examined the Wipair website which gave the float set changeover weight as 419 kg. 208 Mr Thompson concluded that 419 kg was the correct changeover weight. He then made an allowance for equipment changes and calculated the probable empty weight of the seaplane as 1,974.9 kg. 209 He acknowledged AEA had calculated the seaplane as weighing 1,759.4 kg by taking its landplane weight and then adding 230 kg as the changeover weight. Mr Thompson said was no Wipline amphibious float set weighing 230 kg and said AEA was in error as the correct changeover weight was 419 kg and not 230 kg. 210 The load data sheet issued in August 2005 and current at the time of the crash (exhibit 16) specified the seaplanes weight when configured as a Floatplane as 1759 kg, the same as the disputed AEA weight. Mr Thompson said that the plane was not reweighed in 2005 when that load data sheet was issued and the figures were just bought forward from AEAs certificate. 211 In any event, having calculated the probable empty weight he then calculated the weight of the fuel, persons and baggage and fuel burn for the flight to arrive at the likely weight of the seaplane at the time of the crash of 2,583 kg which was higher than the maximum approved Take-off weight of 2435.8 kg calculated by AEA (exhibit 15). 212 He said that the likely weight of the aircraft as calculated by him, actually increased the touch down speed by 2.05 knots, and this could have a significant effect on landing energy. 213 Mr Thompson then calculated how the extra speed at which the seaplane landed affected the impact damage to the airframe and concluded that the destructive energy applied to the aircraft structure would be 19% higher and said that even if the pilot landed at exactly the speed required for the lower approved weight (that is landed 2.05 knots slower) the impact energy would be increased by direct proportionate to the weight change, that is, by some 9%. 214 Mr Thompson accepted that a pilot does not fly an aircraft accurately enough to define touch down speed within 2 knots; however he maintained that although individual landings will vary the average landing speed over multiple landings for a seaplane of the weight he had calculated would be 2.05 knots higher than one having the approved weight calculated by AEA. 215 He agreed his calculations would be affected by such variables as the baggage weight and the wind speed, so that a 20 knot head wind would reduce the landing speed by 20 knots and a 10 knot wind by 10 knots etc. He used a 7.5 knot head wind in his calculations as he, relying on hearsay material not established in evidence, said the meteorological conditions were 'westerly breeze at 5 to 10 knots'. 216 Mr Thompson then commented on the cost of repair due to the greater weight/increased landing speed/greater damage scenario and stated: In a crash into water, all the kinetic energy of the aircraft is dissipated in deforming the metal structures and hydrodynamic turbulence of the water surface. As these will stay in proportion, the energy deforming the structure will be in accordance with the above percentages. 10% more energy damaging the aircraft is a substantial cost-of-repair factor, 20% even more so. 217 When cross-examined about this conclusion, Mr Thompson said it was just a qualitative statement that if the aeroplane hits the water, whatever energy it has, has to be dissipated and 10% more kinetic energy on crashing would do more damage and 20% more will do even more damage and said that it was not necessary to base that on any calculation 'it was just a statement' (ts 726). 218 He agreed that there was no way to define how a crash at two extra knots related to the cost of repair and that there was no formula saying that every extra knot would increase the damage bill by a specified amount of money (ts 727). 219 Mr Thompson's conclusions is essentially that the extra weight of the seaplane would increase the touch down speed by 2.05 knots and would mean that the destructive energy applied to the aircraft structure would be 19% higher and that even if the pilot landed at exactly the speed required for the lower approved weight, the destructive energy applied to the aircraft structure would be 9% higher, however he is unable to quantify by how much that extra destructive energy would increase the cost of repair or the time taken to repair the seaplane. 220 The damages claimed are for the economic loss suffered by the plaintiff whilst the plane was being repaired. Mr Thompson's evidence fails to establish any link between increased destructive energy and increased repair costs or increased repair time. 221 Clearly, you can apply more destructive energy to a particular object and not increase the costs of its replacement. If for example an item is damaged and requires replacement, applying more destructive energy to it may damage it more but it will not increase the cost because the part had to be replaced in any event. 222 Mr Thompson's evidence even taken at its highest for the second defendant does not establish that any increased weight of the seaplane or increased touchdown speed was in any way causative or a 'factor in the accident sequence' or has resulted in any increase in repair time or repair costs for the seaplane. 223 In any event, the weight that attaches to Mr Thompson's conclusions relating to the increased touchdown speed is minimal because he relied on matters not established by admissible evidence particularly that it was a westerly breeze blowing at 5 to 10 knots. The latter is significant because of the breezes effect on the touchdown speed. The strength of the breeze was not established by admissible evidence, the only admissible evidence being that a light sea breeze was blowing (Mr Gould, exhibit 48). 224 Mr Carpenter's evidence was that Mr Thompson's calculation that the changeover weight was 419 kg should not be relied upon. Mr Carpenter said that the AEA seaplane weight (landplane weight plus 230 kg) may have been arrived at by AEA weighing the aircraft as a landplane with all the seaplanes struts and fittings in place and then adding the 'bare weight' of the two floats to obtain the seaplane weight. 225 The fact is that we have the weight and load data certificates signed by AEA; we do not know anything other than what is indicated in those certificates. I reject as speculation, Mr Carpenter's theory, that the struts were included when the plane was weighed as a land plane. 226 Mr Carpenter also gave his own calculations as to the likely weight of the seaplane at the time of the crash. Although, the second defendant objected to that evidence as Mr Carpenter is not a qualified weight control officer, I consider the evidence admissible. As an experienced pilot he is able, and required to, read load data sheets and calculate take-off loads and the like. However, it is unnecessary for me to examine those details for the same reasons that I have concluded that Mr Thompson's evidence on the weight of the seaplane does not assist in determining the issues. 227 Any extra weight of the plane did not contribute to the crash or the losses the plaintiff claims. Even assuming the weight of the plane is as calculated by Mr Thompson there is no evidence to establish that the extra two knots of speed, which at the end of the day, was as high as Mr Thompson could put it, which created extra kinetic force and extra damage, increased either the cost of repair or, crucially, the time taken to repair the seaplane and there is no relationship or casual connection between those matters, or indeed the mechanical condition of the seaplane and the crash or any increased repair time or costs or losses claimed by the plaintiff. There is nothing to indicate any excess weight caused the seaplane to invert when it crashed. The crash was caused solely by the acts of Mr Gould landing the seaplane on water with the landing gear extended. 228 There is no basis to reduce or apportion damages at common law or pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).
Summary of findings of fact 229 I find the following facts proven on the balance of probabilities: |