Cifuentes v Fugro Spatial Solutions Pty Ltd
[2009] WASC 316
•11 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CIFUENTES -v- FUGRO SPATIAL SOLUTIONS PTY LTD [2009] WASC 316
CORAM: MURRAY J
HEARD: 3 - 7, 10 - 14, 24 AND 25 AUGUST 2009
DELIVERED : 11 NOVEMBER 2009
FILE NO/S: CIV 1312 of 2008
BETWEEN: MALCOLM ANTHONY CIFUENTES
First Plaintiff
MICHAEL BRIAN KNUBLEY
Second PlaintiffJULIE ANNE WARRINER
Third PlaintiffJANET GRAHAM
Fourth PlaintiffOZAN PERINCEK
Fifth PlaintiffNAUTRONIX (HOLDINGS) PTY LTD (ACN 009 067 099)
L-3 COMMUNICATIONS NAUTRONIX LIMITED (ACN 009 019 603)
Sixth PlaintiffsALEC PENBERTHY
Seventh PlaintiffAND
FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916)
First DefendantAARON BARCLAY
Second DefendantALEC PENBERTHY
Third Defendant
FILE NO/S :CIV 2279 of 2009
BETWEEN :FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916)
Plaintiff
AND
AARON BARCLAY
First DefendantCIVIL AVIATION SAFETY AUTHORITY
Second DefendantALEC PENBERTHY
Third Party
Catchwords:
Tort - Negligence - Crash of aircraft following failure of fuel pump - Crash caused by negligent design of part of pump and by negligence of pilot - Standard of care required of experts - Causation - No intervening cause
Negligence - Duty of care as to economic loss - Action includes claim for loss of services
Negligence - Apportionment of liability between tortfeasors
Contract - Incorporation of terms by reference - Course of dealing - Incorporation of terms by implication - Warranties under the Trade Practices Act 1974 (Cth), s 74
Legislation:
Trade Practices Act 1974 (Cth), s 74
Result:
In both actions -
Judgment for plaintiffs in claim for negligence
Liability apportioned 2/3 against first and third defendants, 1/3 against second defendant
Claim for breach of contract dismissed
Category: A
Representation:
CIV 1312 of 2008
Counsel:
First Plaintiff : Mr M J McCusker QC, Mr B G Bradley & Mr A Golem
Second Plaintiff : Mr M J McCusker QC, Mr B G Bradley & Mr A Golem
Third Plaintiff : Mr M J McCusker QC, Mr B G Bradley & Mr A Golem
Fourth Plaintiff : Mr M J McCusker QC, Mr B G Bradley & Mr A Golem
Fifth Plaintiff : Mr M J McCusker QC, Mr B G Bradley & Mr A Golem
Sixth Plaintiffs : Mr M J McCusker QC, Mr B G Bradley & Mr A Golem
Seventh Plaintiff : Mr A A Nolan
First Defendant : Mr P C S van Hattem SC & Ms K J Levy
Second Defendant : Mr H J Langmead SC & Mr B J Morgan
Third Defendant : Mr P C S van Hattem SC & Ms K J Levy
Solicitors:
First Plaintiff : Bradley Bayly Legal
Second Plaintiff : Bradley Bayly Legal
Third Plaintiff : Bradley Bayly Legal
Fourth Plaintiff : Bradley Bayly Legal
Fifth Plaintiff : Dwyer Durack
Sixth Plaintiffs : Freehills
Seventh Plaintiff : Trewin Norman & Co
First Defendant : SRB Legal
Second Defendant : DLA Phillips Fox
Third Defendant : SRB Legal
CIV 2279 of 2009
Counsel:
Plaintiff: Mr P C S van Hattem SC & Ms K J Levy
First Defendant : Mr H J Langmead SC & Mr B J Morgan
Second Defendant : Mr H J Langmead SC & Mr B J Morgan
Third Party : Mr P C S van Hattem SC & Ms K J Levy
Solicitors:
Plaintiff: SRB Legal
First Defendant : DLA Phillips Fox
Second Defendant : DLA Phillips Fox
Third Party : SRB Legal
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10; [2009] 2 All ER 1127
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Barrymores Pty Ltd v Harris Scarfe Ltd [2001] WASC 210; (2001) 25 WAR 187
Bennett v Minister of Community Welfare (1992) 176 CLR 408
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Breen v Williams (1996) 186 CLR 71
Caltex Oil (Aust) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
E v Australian Red Cross Society (1991) 27 FCR 310
Fortuna Seafoods Pty Ltd v The Ship 'Eternal Wind' [2005] QCA 405; (2008) 1 Qd R 429
Hawkins v Clayton (1988) 164 CLR 539
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Jones v Dunkel (1959) 101 CLR 298
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1
Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Wallis v Downard‑Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
Introduction
The occurrence of the accident
Air traffic controllers were observers
There were other observers
The behaviour of the aircraft between roll up and the crash
The evidence of the pilot
The assessment of the pilot's conduct
An investigation is conducted
The replacement of the sleeve bearing
The consideration of expert evidence
Metallurgical investigation of the failure of the fuel pump
My conclusion as to the cause of the emergency
Negligence: the claims
Negligence: duty of care
Barclay's duty of care
Negligence: breach of duty
Barclay was in breach of his duty of care
Penberthy was in breach of his duty of care
Negligence: causation
Negligence: economic loss
My conclusion as to this claim
Loss of services
Apportionment of liability
The charter contract: the claim
The charter contract: the facts
The law as to the terms of the contract
Trade Practices Act 1974 (Cth), s 74
My conclusions as to the contractual claim
My final conclusions
MURRAY J:
Introduction
On 11 August 2003, a Cessna 404C Titan twin‑engine aircraft piloted by Mr Penberthy, crashed and burst into flames, in bushland just east of Jandakot Airport. Mr Penberthy was employed by Fugro Spatial Solutions Pty Ltd (FSS). If I should hold that Penberthy was negligent in causing the aircraft to crash, it is admitted that FSS would be vicariously liable for his negligence.
There were five passengers on board the aircraft. They were Mr Cifuentes, Mr Knubley, Mr Warriner, Mr Protoolis and Mr Perincek. All of those persons were employees of the sixth plaintiffs which, for present purposes it is sufficient to describe as Nautronix.
When the aircraft crashed and immediately was engulfed in fire, all the occupants except Mr Protoolis were able to make their escape through an emergency door. Mr Protoolis was trapped in the aircraft and died there. All of the other occupants of the aircraft suffered significant physical injuries by burns. Mr Warriner died as a result of his burns at Royal Perth Hospital on 4 November 2003. His widow and Ms Graham, the widow of Mr Protoolis, sue pursuant to the provisions of the Fatal Accidents Act 1959 (WA). Mr Cifuentes, Mr Knubley and Mr Perincek sue for damages for their personal injuries. Their cause of action is in negligence, against all the defendants.
Their employer, Nautronix (Holdings) Pty Ltd (Nautronix), pursues a separate cause of action (by assignment), not only in negligence against all the defendants, but for breach of contract against FSS. I shall return to that in more detail. The pilot, Mr Penberthy, pursues a claim against Mr Barclay in negligence. So far as that claim is concerned, by consent on 3 August 2009, I adjourned it sine die. By consent, orders were later made to deal with that claim, to which I need not refer in these reasons.
FSS sues Barclay in respect of damage sustained as a result of the loss of the aircraft and pursues a similar cause of action in negligence against the Commercial Air Safety Authority (CASA). The claim against CASA is not to be tried by me. I am otherwise to try as preliminary issues the various questions of liability to which I have referred, including claims for contribution as between the various defendants.
The occurrence of the accident
I heard evidence from two air traffic controllers working at Jandakot Airport in the control tower at the relevant time. They were Mr Schraven, who was the surface movement coordinator at the time and Mr Murray, who was controlling aircraft movement, their takeoffs and landings. He was in direct radio contact with the aircraft piloted by Mr Penberthy, the designation of which was VH‑ANV. I had the benefit of a photomap of Jandakot Airport and its immediate surrounds (exhibit 135A). On a version of that map reduced in size (exhibit 135B) Mr Schraven and Mr Murray recorded their estimates of the position of the aircraft at significant points of its passage from its takeoff to its crash landing in the adjacent bushland. I also had available the benefit of Mr Murray's observations about a control tower transmission audio record (exhibit 103A) and the transcript (exhibit 103) the accuracy of which was generally established, although subject to some qualifications.
Their evidence was valuable because they were able to see what the aircraft was doing. That was not the position for those who were passengers who gave evidence before me. As I have mentioned, apart from the pilot Mr Penberthy, the other occupants of the plane were all employees of Nautronix. Mr Knubley was a project manager, in charge of the particular project which was the subject of the flight. He was seated on the right‑hand side of the aircraft, immediately behind the seat of a co‑pilot, but he could not see out because the windows had been closed so that light did not shine in and interfere with the use of computers and other electronic equipment which Nautronix had installed in the aircraft to be used in the work which constituted the purpose of the flight, which was to test communication systems for submarines and other underwater uses, which Nautronix proposed to sell to the Australian and American navies and to otherwise exploit in the oil and gas industries.
The other men who were passengers were all experts and specialists of various kinds. Mr Cifuentes was a computer software consultant for Nautronix and Mr Perincek was an electronics engineer. Mr Protoolis was an engineering director of Nautronix, a co‑inventor of the technology being tested, and Mr Warriner was a project manager contributing particular skills and contacts derived from his military background.
Mr Knubley was used to flying in this or a like aircraft. During the preceding months he had been on a number of similar flights out of Port Lincoln in South Australia. There appeared to be nothing out of the ordinary in the preparation for or the takeoff of this flight, but after the aircraft had been airborne for about five to 10 seconds, he said, 'I heard a loud bang out of the right engine and the plane shuddered a bit.' (ts 166) The plane then commenced a left turn and banked to do so. Mr Knubley's sense of it was that it was a relatively gentle turn but he could not see where they were or what the plane was doing until he saw the trees and the ground coming up shortly before the crash.
He said that he had not previously encountered a noise of the kind that he heard from the right engine. It was not like the noise made by the retraction of the landing wheels. If his recollection is accurate, it must have been quite loud because Mr Knubley was, as were the other passengers, wearing noise‑cancelling headsets which were designed to reduce the background noise made by the aircraft so as to better permit communication between those aboard.
The evidence given by Mr Cifuentes was not dissimilar in respect of the normality of the preparations for, and the takeoff. He was seated on the left‑hand side of the aircraft behind the pilot, whereas Mr Knubley was seated opposite him, immediately behind Mr Warriner who was in the co‑pilot's seat.
However, Mr Cifuentes' description of a noise he heard from the right engine about 10 seconds after takeoff was different from the evidence given by Mr Knubley, but not necessarily inconsistent with that evidence. Mr Cifuentes said he heard the engine, 'making a missing sort of noise as though it wasn't running properly.' (ts 175) To me he explained that the engine was 'sputtering' as if it was not firing on all cylinders.
Mr Cifuentes was uncertain, but thought the sound he heard occurred after the aircraft commenced to make one gradual left‑hand turn or what was perhaps a series of left‑hand turns. It is clear that he did not hear the noise of which Mr Knubley spoke. He thought that the noise he heard came from the right engine, not the left. There is nothing to suggest that it had anything to do with the feathering of the right engine after it failed. Mr Cifuentes could see no more of what was happening to the aircraft by looking out of it than could Mr Knubley.
It can be seen then that these witnesses were able to say little about how Mr Penberthy reacted to the emergency which arose and, as I say, Mr Schraven and Mr Murray, the air traffic controllers, were at least able to observe the behaviour of the aircraft after it became airborne, from their position in the control tower. The evidence of Mr Knubley and Mr Cifuentes provides no basis for a conclusion about what happened to the aircraft, having regard to what they heard.
Air traffic controllers were observers
Mr Schraven's account was incomplete. As the surface movement coordinator at the time he was not in direct radio contact with the aircraft VH‑ANV. He was required to look away from the aircraft. He did not see the aircraft take off, but shortly afterwards he became aware that there was something wrong, when he heard a sudden change in the engine noise from the aircraft when it was about 10 to 15 feet above the ground.
The sound he heard was just like that made when one engine is throttled back as in a training exercise, leaving the aircraft to be flown by the use of the remaining engine, a process known as 'asymmetry'. When he looked back, the aircraft was well away from the airfield, making a slow left turn at a height above the ground of roughly 100 feet, with the right propeller virtually stopped. He could not say that the aircraft was then losing height, but it appeared to lose speed when the nose of the aircraft came up slightly. He then saw it disappear behind trees and immediately saw the fireball which resulted from the crash. He was able with some confidence to indicate the position where that crash occurred, but he was not otherwise able with any confidence to indicate on the photomap what the course of the aircraft was.
Mr Murray's evidence was a more complete account of what occurred to the aircraft from the point of view of an external observer. I accept his evidence as being generally accurate. He gave his evidence clearly and was firm in his recollection, at the same time making no attempt to state as fact more than he could honestly recall. The accuracy of his recollection is supported in particular by evidence, to which I shall shortly refer, given by a witness, Mr Steven Roberts. And so far as the exchanges between the control tower and the pilot of the aircraft VH‑ANV are concerned, as I have said, the control tower transmission audio record and the transcript made is, I am satisfied, accurate, as to what was said, at least so far as the transmissions are decipherable.
The records give times of the various transmissions and there is no reason to suppose that those times are not accurately recorded. An issue arose as to the accuracy of the times recorded, but in my view the evidence provided no cause for concern about the reliability of the evidence concerning the transmission.
Evidence was given by a Mr Harvey, an air traffic control manager employed by Air Services Australia. He explained that transmissions between pilots and air traffic controllers are recorded in audio form. Exhibit 103A is an example. A transcript may be made. The various versions of the transcript in this case are exhibits 103, 103C and 103D.
The person responsible for doing that, in relation to any relevant series of communications, is given a start time, described as GPS time, which I understand to refer to the global positioning system available by satellite. How that time is recorded seems to me to matter not at all. But, for aviation purposes, it is converted to what is described as UTC time. UTC stands for coordinated universal time. It is the foundation of all time zones, and was formerly expressed as GMT, Greenwich Mean Time. I note in passing that the evidence of the physicist, Mr Roberts, to whose evidence I will shortly refer, was that the radar data he used was similarly expressed in UTC time.
To fix the time of various transmissions, the transcriber simply counts on from the start time by the use of a computer which records the lapse of time. The time then ascribed to particular transmissions in the transcript made will be that elapsed time from the starting point, accurate to the second, and there is no suggestion that the computer count of elapsed time was significantly inaccurate. It is a simple process then to convert the UTC times into western standard time (WST) and to so express them, as was done in this case.
A document entitled 'Leap Seconds' became exhibit 142. Its content was proved by an astronomer, Associate Professor Dodson of the University of Western Australia, and its content was put to Mr Harvey. He knew nothing of the discussion contained in the document, which may have originated from the Time Service Department of the US Naval Observatory in Washington DC, USA. Using that document, Professor Dodson explained that UTC time is adjusted, from time to time, by very small amounts, to make allowance for the fact that the earth is slowing in its daily rotation. GPS time, which dates from 1980, was then synchronised to UTC time, but is not similarly adjusted. The result would be that as at 11 August 2003, it would strictly be wrong to directly translate GPS time into the equivalent UTC time. It would appear that by that date GPS time was ahead of UTC time by 13 seconds, given that according to Professor Dodson's evidence, which I accept, UTC time was last so adjusted on 1 January 1999.
On the whole of the evidence, it seems likely that the times were appropriately adjusted on their conversion from GPS time to UTC time, in the radio transmission data and the radar surveillance data, but if the times are 13 seconds too fast, then they are all wrong to the same extent, and the error is immaterial for my purposes.
The aircraft took off on runway 24R which runs in a broadly north‑east/south‑west direction. The runway has that designation for aircraft taking off or landing from the north‑east. That particular runway is designated as runway 06L for aircraft taking off or landing from the south‑west. There is a parallel runway designated runway 24L for aircraft taking off or landing from the north‑east and, unsurprisingly, designated runway 06R for aircraft taking off and landing from the south‑west.
I received in evidence the report of the Bureau of Meteorology for the weather conditions at Jandakot Airport on 11 August 2003 between the hours of 3 pm and 4 pm. The records are maintained in the computer archives of the Bureau. They show that for the time period which is relevant, between 3.33 pm and 3.37 pm, the wind direction was generally from the south‑west on a bearing of between 219º and 232º from true north. Conditions were relatively calm. The wind speed, averaged from minute to minute, was generally 9 knots, gusting between 8 knots and about 11 knots. The variation in wind speed would therefore have been barely noticeable.
Of course, I appreciate that the weather conditions recorded are those at the weather station on the ground at the airport. The point was made that both wind speed and direction might be different above ground level, but there is no evidence that that was the case, relevantly for this aircraft, which did not achieve a height above the ground of more than about 100 feet. At least there is no suggestion that the weather made a material contribution to the behaviour of the aircraft.
Across the south‑west termination of the two runways to which I have referred, Jandakot airport provides a third runway at an angle to the two previously mentioned, so that this runway is aligned broadly east‑west. For aircraft taking off and landing from the west it is designated runway 12. For aircraft taking off and landing from the east it is designated runway 30.
At about 3.33 pm VH‑ANV was on taxiway Delta. That is the next one on from taxiway Charlie, which would give the maximum length of runway available. But taxiway Delta is, I was told, often used to provide access to runway 24R for an aircraft proposing to take off in the south‑west direction. The pilot, Mr Penberthy, signalled to the control tower that he was ready to take off on runway 24R, proposing after the flight to return to Jandakot. Mr Murray told him to 'hold short'. He was not to enter the runway and he was not authorised to do so until about a minute later at 3.34 pm. Mr Murray told him to 'line up' - an instruction to position the aircraft at the start of its takeoff run on the runway. That instruction was acknowledged.
Shortly afterwards, at about half a minute past 3.34 pm, Murray told the aircraft it was cleared for takeoff and cleared to climb to 3,000 feet. This transmission was also acknowledged and Mr Murray watched the aircraft take off from the control tower about 400 m away. I would think it became airborne just after 3.35 pm. The aircraft took off near taxiway Golf, or between there and the next taxiway, which is designated Sierra. Immediately after takeoff, when the aircraft was about 10 to 15 feet above the runway, Mr Murray heard what he described as a distinct change in the pitch of the engine noise of the aircraft. To him, as to Mr Schraven, it sounded as if one engine had been throttled back to simulate an engine failure. He could not tell at that time which engine it was that had dramatically slowed in that way. Mr Murray watched for a short time, but he also had to divert his attention away from the aircraft VH‑ANV because he had approved another aircraft to land on runway 24R from the north‑east.
Having watched that aircraft land, Mr Murray returned his attention to the aircraft VH‑ANV. When he looked, he said the aircraft was about a quarter of a mile off the end of the runway. Almost immediately Mr Penberthy, the pilot, made a transmission timed at about half a minute past 3.35 pm. He said, 'I've got an emergency thanks. I'm going to have to come around'. Mr Murray acknowledged that transmission by saying, 'Roger'.
Mr Murray said that at that time the aircraft was probably about 100 feet above the ground and it was commencing a left‑hand turn, a shallow bank with the left wing tip down and the right wing tip up by about 15º to 20º. By then the right‑hand engine appeared to have been feathered. The turn upon which the aircraft embarked appeared to Mr Murray to be a continuous one. Prior to that, when he heard the change in the engine noise, Mr Murray said that the undercarriage was down. It was not up and it was not in transit (ts 231).
At 3.36 pm Mr Penberthy said, 'I'd like to land on the other one thanks.' Mr Murray responded, 'Which runway?' Mr Penberthy replied 'Ah, the 12 there thanks.' Mr Murray took this to be a reference to the runway to which I have referred as running broadly east‑west. He understood that the pilot wished to land from the east, the direction in which his left‑hand turn was taking him. To do that was to land on the runway, designated from that direction runway 30. Mr Murray said, just after 3.36 pm, 'Approved. Cleared to land.' About 40 seconds later, at about 3.37 pm Mr Murray saw the plane level out and lose altitude. The nose began to pitch up, more altitude was lost, there was a gradual descent, it disappeared behind the trees and then he saw the fireball, signalling that the aircraft had crashed after a total flying time of about two minutes.
Mr Murray said that the aircraft maintained a height of about 100 feet above ground throughout the time of its turn until shortly before it crashed. After the aircraft straightened out from the turn and commenced to fly roughly parallel to the runway 24R in a north‑easterly direction, 'It began to lose altitude and pitched its nose up and then slowly what I call stalled in towards the ground' (ts 235).
There were other observers
Four people were called to give evidence about the behaviour of the aircraft from the time when it commenced its roll‑up until it crashed. They were all positioned in hangars or other commercial premises at the airport, and it will be appropriate to deal with their evidence working from the north‑east to the south‑west, the direction of the take‑off roll‑up of the aircraft.
Mr Stevenson is a licensed aircraft maintenance engineer. He runs a business for the maintenance and repair of aircraft such as the C404 Titan. He is also an aircraft charter operator. He is used to hearing engines run, and to detecting anything which, the sound tells him, appears to be amiss. He has often heard C404 aircraft take off. The engines have a distinctive note. The best position relative to an aircraft to hear if there is something amiss by the sound of the engine or engines, is in front of it or to one side or the other, but in front of the engines. As the aircraft goes past you and heads away from you, it is more difficult to hear how the engine or engines are operating. It is also more difficult to hear how the engines are performing from inside the cockpit.
The evidence of this witness and the others who gave evidence about their observations on the afternoon in question, 11 August 2003, made it clear that this was a typically busy afternoon, with frequent aircraft movements and regularly competing sounds of aircraft engines. The hangar and associated offices which are Mr Stevenson's business premises are positioned between the taxiways Delta and Echo. As VH‑ANV lined up on the runway and prepared for its take‑off run, Mr Stevenson would have been about 350 metres away, using the scale on exhibit 135B. He would have been just forward of the right wing tip, but as the aircraft commenced its take‑off run, it would soon pass him and commence to move away from his position in the doorway of his hangar, where he was speaking on the telephone.
He had been idly watching as the aircraft moved out along the taxiway, held there, and lined up on the runway. The engines 'came up to power', and his attention was attracted to the aircraft because, although the engines were brought up to full power for the take‑off roll, 'it didn't sound correct' (ts 993). Mr Stevenson described how the engines of the C404, when they come up to full power, have a 'harmonic noise' - a distinctive resonance. His thought was that one engine appeared to be developing full power and the other seemed to him not to be making full power.
As Mr Stevenson watched the aircraft on its take‑off run, until after a couple of hundred metres it disappeared behind buildings as it moved away from him, he thought it did not appear to be accelerating appropriately. The aircraft was still performing its take‑off run when it went out of his sight at about taxiway Foxtrot.
Mr Stevenson thought there was a problem, 'of a serious nature' in that one engine, 'was probably making significantly less horsepower to the one that was serviceable' (ts 995). Although he said that he was concerned that the aircraft might not be able to take off, after it passed from his sight he paid no more attention to it and 'went back to other priorities' (ts 996). He continued with his telephone conversation. However, his evidence was that it struck him that the aircraft was having a problem of such severity that, had it sounded that way in his workshop, he would not have allowed it to leave without finding out what was wrong. It did appear to him, he said, that the aircraft was probably not in a safe condition to fly (ts 1004).
However, there is simply no evidence capable of confirming that as the aircraft performed its take‑off run, there was any problem which emerged upon investigation, and it seems to me that it may well be that Mr Stevenson has revisited what he thought about the aircraft when he discovered that it had crashed. He then thought, and he now genuinely thinks, that the aircraft exhibited a problem as he saw it commence and perform the first part of its take‑off run. But had his impression been that there was a problem of the severity which he now describes, I think it strange that, after the aircraft laboured out of sight, he would not have run out to see whether it did take off, but he simply returned to his telephone conversation.
Mr Firman is also a qualified aircraft mechanical engineer of some considerable experience. He is familiar with the engines of the C404 aircraft. On 11 August 2003, he was working in the workshop of his employer, which is a little further to the south‑west from where Mr Stevenson was. It is just short of taxiway Foxtrot for aircraft taking off in the south‑westerly direction, and from his vantage point in the workshop, he too could see the runway from about taxiway Delta almost to Taxiway Golf. As the aircraft passed his position, it would be about 250 metres away.
It appears that it was the sound made by VH‑ANV as it passed that attracted his attention, and he did not know where the take‑off run had originated. He thought the aircraft must have been at about its maximum weight. As it continued its roll‑up past his position, he could hear the engines and, 'To me they did not sound as if they were running at full power.' He said there was a distinctive sound which can be heard when they are at full power and, 'I don’t' recall hearing it' (ts 1011 ‑ 1012).
Mr Tull is a licensed aircraft maintenance engineer. He had never worked on a Cessna 404, but he said that he had often heard that type of aircraft take off, and was familiar with the sound that it made. Mr Tull was standing at the front of a hangar which is between taxiway Golf and taxiway Sierra. It is virtually opposite taxiway Sierra, and he could see the runway from about halfway down its length, at taxiway Echo, until it ended. He saw the final part of the take‑off run by VH‑ANV. His attention was attracted to it when it was at about taxiway Foxtrot, and he confirmed that it became airborne roughly halfway between Golf and Sierra.
His attention was attracted to the aircraft by its sound, which was not the normal high‑pitched noise made by the engines when developing full power. It sounded 'flat', as if the propellers were out of synchronisation, but he could not say whether it was one or both of the engines which were not making full power. He watched the take‑off. The rate of climb of the aircraft once it became airborne was 'very low' (ts 1020) compared to the rate of climb which he had previously observed after take‑off in that type of aircraft. Then one engine stopped, the propeller stopped, the undercarriage completed its retraction, the aircraft 'climbed out marginally' and then commenced a left turn. He watched it complete that turn until it was heading in approximately the opposite direction to that in which it had been travelling when it took off. The angle of attack increased, and the aircraft descended, with an increasing angle of attack, into the bush.
When cross‑examined, Mr Tull said that he could hear the sound of the engines quite clearly while the aircraft was on the tarmac. He attributed what had attracted his attention to the propellers being out of synchronisation (ts 1023). He was reluctant to estimate the height above ground achieved by the aircraft after take‑off and after the engine stopped, but before the aircraft commenced its turn. Nonetheless, when pressed, he said that his best rough estimate, of which he was not sure, would have been 250 feet to 300 feet above the ground, a much greater height than the aircraft in fact achieved.
A further difficulty in relation to accepting Mr Tull as an accurate witness is the fact that, having described the sound he heard, to which I have referred, and having given evidence that he saw one of the engines stop and the propeller stop, Mr Tull said that he could not recall any change of sound in the aircraft engine noise at that point. He heard nothing like the sound of an engine failure or an engine being shut down as the aeroplane went past him and took off (ts 1034). And yet, of course, that is what he saw happen.
Finally in this category of witness there is Mr Chambers, again a licensed aircraft maintenance engineer with some considerable experience, including work on Cessna 404 aircraft, which he described as having a very distinctive engine noise, and which he had often seen taking off and landing at Jandakot airport where he worked.
On 11 August 2003, he was at the doorway of the hangar which was his workplace, very close to the position where Mr Tull was. He saw the aircraft ANV as it became airborne. He watched it take off. Mr Chambers thought that the aircraft was probably airborne by the time it passed Foxtrot, certainly before Golf. That, I think, is not right, and Mr Chambers said it was difficult for him to fix the point of take-off with any certainty, although he was in the hangar doorway at the time. He had actually been working on the sister aircraft to ANV, owned by FSS, the C404 designated VH‑WGS.
Mr Chambers' attention was attracted to the aircraft, VH‑ANV, because he thought there was something unusual about the right‑hand engine. He thought possibly it was slowing. There was something different about the noise, perhaps a little quieter than he would have expected (ts 1039 ‑ 1040), but he could not, beyond that, identify the difference. When the aircraft took off, Mr Chambers did not notice an unusually slow rate of climb. He said the aircraft has a relatively slow rate of climb after take‑off, in any event.
Shortly after the aircraft became airborne, it commenced to turn to the left, and as it turned he noticed, above the fuselage, that the propeller on the right engine appeared to have been feathered. As I understand Mr Chambers' evidence, he did not notice any change in sound as the right‑hand engine shut down, and he did not see the process of feathering the right propeller commence. Before that, he had simply noticed that the aircraft appeared to climb slowly until it achieved a height above the ground of somewhere between 100 feet and 150 feet. Later, when cross‑examined, he suggested that the aircraft may have achieved a height of between 150 and 200 feet, but he readily conceded that it was difficult for him to make an estimate of the height achieved by the aircraft with any degree of accuracy.
When saying that he had heard no sudden change in the engine sound, as if one engine shut down, Mr Chambers said there was a lot of other noise around where he was; aircraft taxiing, noise from the workshop, radios and the like. Not only did he not hear a change in the engine noise of that kind, the engines of the aircraft did not appear to him to be running rough, and the sound was not that of an aircraft whose propellers were out of synchronisation.
There are clear differences between the accounts offered by these four witnesses; from that of Mr Stevenson at one extreme, to that of Mr Chambers at the other. To my mind, Mr Chambers' evidence is not inconsistent with the description of what was seen and heard, given by the witnesses Schraven and Murray, the air traffic controllers, although he heard nothing at the time of take‑off which was reminiscent of one engine being shut down. Each of these witnesses was quite obviously doing his honest best to describe what occurred, and their observations were made over a very short space of time.
I do not find it surprising that there were substantial differences between their accounts, but to my mind, of the witnesses on the ground, the most reliable was Mr Murray, supported in part by the account of Mr Schraven, and also by Mr Chambers. I am not prepared to rely otherwise on this evidence to support a finding that the emergency which occurred to the aircraft was of some unexplained kind adversely affecting its performance, which the pilot ought to have noticed before it took off, and which ought to have been evident upon his instrumentation, so that the error he made was in persisting with the take‑off, and in failing to abort the flight in a timely manner, before take‑off.
The behaviour of the aircraft between roll up and the crash
Apart from the evidence of eyewitnesses and that given by the pilot, Mr Penberthy, I had the advantage of expert evidence given by Mr Steven Roberts, a physicist, with degrees in physics and geophysics. I need not detail his qualifications and expertise. His specialty is radar and flight data and cockpit voice recorder analysis and he uses an interactive computer program to assist in the presentation of his reconstructions of flight paths taken by aircraft and of their behaviour. He is a Canadian. I received his evidence by video‑link from Ottawa and he presented a substantial report which, together with its annexures, I received in evidence as exhibit G. His expertise in his particular field was unchallenged.
He presented his final analysis and reconstruction of the flight path of the aircraft and its behaviour plotted onto a Google map which was figure 4 in his report, but in enlarged more readable form was received in evidence as exhibit 136. Incorporated in that reconstruction is the radar data received from the surveillance radar at Mount Kalamunda, as the radar survey institution in Kalamunda is known. Mr Roberts also received radar track data generated by Air Services Australia with respect to the particular flight. He plotted the path of the aircraft, having regard to both sets of data. He determined that the Mount Kalamunda radar data was 'the most appropriate'.
By that, as I understand it from his evidence, he means that in his expert opinion, the Mount Kalamunda data provides the most accurate reconstruction of the probable flight path of the aircraft. Indeed, there is not a great difference between the aircraft flight paths recorded by applying the program to both sets of data until at the very end of the flight, just before the crash, when the Air Services Australia data shows what would appear to be an attempt to turn the aircraft further to the left to align it with runway 30 for a landing on that runway from the east. On the other hand, the Mount Kalamunda radar data suggests that immediately before the crash the aircraft was flying roughly parallel to the original runway 24R/06L and its companion 24L/06R. For present purposes therefore, that divergence in the flight path has relatively little significance in respect of the decision of the issues which arise in this litigation, but the Mount Kalamunda data appears to be more consistent with where the aircraft crashed.
Nor is there much significance in the fact that the true path of the aircraft at any given point would be located in what are shown on the map as radar confidence blocks. In his report, Mr Roberts describes these as radar tolerance boxes drawn at plus or minus a single azimuth code pulse, the measurement of which is 1 over 4,096 of a 360º field or just under .09 of a degree. That is a high degree of accuracy, although of course the actual distance on the ground will differ according to how far away from the object being sensed by radar the tracking station is located. Further, so far as the range is concerned, the accuracy was plus or minus 0.05 of a nautical mile, about 90 m. As I understand it, the range accuracy parameter will apply to each of the radar tracking points uniformly, and so whatever the degree of error is in fact, that would not distort the plotted flight path.
Quite how precisely accurate the plotted flight path is, seems to me to be of relatively little moment. The important thing is to be able to see depicted, in terms which I am satisfied are sufficiently accurate, the flight path of the aircraft. As to that, I have mentioned that it is plotted on a Google map. There is some debate about the accuracy of that depiction which is by way of aerial photograph, but I am satisfied that it is sufficiently accurate. Indeed, I agree with senior counsel for Mr Barclay, that some comfort may be taken in that regard from seeing that, during what is evidently the roll up of the aircraft immediately prior to takeoff, the flight path has been located over the depiction of runway 24R, after some adjustment, with the result that shortly before the crash the aircraft is shown to be heading for the place where that occurred.
The computer software incorporates a process of 'smoothing' the flight path. The concept is explained in detail in Mr Roberts' report. I need not discuss it at length here. It involves a process of eliminating extremes of possible aircraft positions so as to result in the achievement of the most probable flight path. A further point should be made about the smoothing process. The radar data provided to Mr Roberts records positions at timed intervals. Mr Roberts' report explains the process. I need not repeat that information here, but as he says, the result is to give the aircraft, at various points, a three‑dimensional position in space, along with the identification of the aircraft and the time of the determination, subject to the limits of the accuracy of the process to which I have referred.
But the raw data itself does not provide a clear picture of the aircraft's flight path because the aircraft does not proceed in a straight line from one point to the next, and then change direction instantly to proceed in a straight line to the next point of information. As I understand the smoothing process applied by the computer program devised by Mr Roberts and others, the computer models the flight path by predicting the nature of the curve which encompasses the points of information provided by the radar sensor at the known time intervals. Of course, if the aircraft is in fact flying in a straight line, one would expect the radar tracking process to enable a visual depiction of that fact, and the smoothed flight path depicted on exhibit 136 shows both when the aircraft was flying straight and when it turned to the left.
When the aircraft is at particular points along its flight path they are recorded in the data supplied and noted on exhibit 136, together with the computed air speed of the aircraft at those points and the recorded height in feet above mean sea level. The computed air speed I was told, would not be materially different from that able to be observed by the pilot on his altimeter in the cockpit of the aircraft. A calculation has been done which shows what difference there would probably be, having regard to prevailing weather conditions, particularly wind force and direction, during the short flight. In addition, Mr Roberts was supplied with the transcript of relevant recorded transmissions between Mr Murray in the control tower and Mr Penberthy in the aircraft. Their times are given and Mr Roberts has plotted them on exhibit 136.
The aerodrome at Jandakot Airport is generally given as almost exactly 100 feet above mean sea level, although at the 06L end of runway 24R it may be about 5 feet less. I accept the evidence that the areas immediately surrounding the airport and particularly those traversed by the aircraft in this case, would vary little in height from the airport itself. As I have mentioned, the airport provides three runways. That designated 24R/06L is 1,392 m in length. That designated 24L/06R is 1,150 m in length and that designated as 12/30 is the shortest, being 990 m in length. But all offered ample length for this particular aircraft to take off and land with safety.
The radar plot confirms that the aircraft commenced its takeoff roll up at the taxiway designated Delta, having lined up there at about 3.34 pm. As I have mentioned, Mr Murray cleared the aircraft for takeoff about half a minute later. The aircraft is said to be at a height of 109 feet above mean sea level while it was evidently still on the ground, performing the roll up prior to becoming airborne. Again, exhibit 136 would appear to confirm that the aircraft became airborne after passing the taxiway Golf and before reaching the next taxiway, Sierra.
The radar data shows that the aircraft was probably then travelling at a computed air speed of about 100 knots. This is consistent with Mr Penberthy's evidence about how the aircraft typically behaved during take‑off (ts 806). It does not appear to have materially exceeded that air speed during the initial takeoff and certainly not after it commenced to turn to the left.
Initially the aircraft seems to have gained height normally. By the time it left the formal boundary of the airfield, a distance of about 300 m from the point of takeoff, it had achieved a height of about 100 feet off the ground, 209 feet above mean sea level. By the formal boundary of the airfield, I mean that part of the airfield which is cleared adjacent to the runways, and is vegetated by cut grass. There appears to be a section of airport land immediately surrounding this area which I was told, and which appears from the aerial photo maps, exhibits 135A and B and 136, to be vegetated by trees.
Shortly afterwards, perhaps another 150 m on into the flight, and about 10 seconds later, while the aircraft was maintaining straight flight, Mr Penberthy made his transmission indicating that he had an emergency and would need to 'come around'. A matter of about 10 seconds after that the aircraft commenced to turn left.
Thereafter it achieved no more height, although according to the computer modelling presented by Mr Roberts, it was able to maintain a height of about 100 feet above the ground or 212 feet above mean sea level. However, during the left‑hand turn, which was not, even according to the smoothed track, entirely uniform, but which saw the aircraft turn about 180º, the computed air speed fluctuated marginally between about 96 knots and 90 knots, sometimes increasing a little, only to marginally fall away, until by the time the turn was generally completed, by making a somewhat more pronounced turn to the left, and the aircraft appears to have endeavoured to straighten up, its air speed decayed to the dangerously low level of about 85 ‑ 87 knots.
Of course at this point, nearly at the end of the flight, the aircraft would be experiencing a relatively gentle tail wind, but a tail wind nonetheless. It is no doubt for that reason that the ground speed calculated by Mr Roberts increases and commences to exceed the air speed, a circumstance which would help not at all to prevent the air speed of the aircraft decaying to a stall speed, leading to the behaviour of the aircraft witnessed by observers when the nose came up and the aircraft lost height more quickly until it disappeared behind the trees and crashed. The final stage of the flight is not depicted on exhibit 136, no doubt because of the interference of the trees with the radar sensor.
It is possible, having regard to the smaller version of the photo map exhibit 135B, to make a rough calculation of how far ahead of the aircraft the major obstruction of the powerline to the south of the airport would have been from the aircraft at the point when it commenced the left‑hand turn. Had it not done so, but had it maintained the line of flight following the takeoff, the distance is about 1,900 m to a pylon numbered 199, the height of which is given as 227 feet above mean sea level.
Had the pilot turned onto a heading to the pylon numbered 198, the height of which is given as 231 feet, the change of direction involving a turn to the left of about 10º, the distance to the pylon would reduce to a little over 1,700 m. Pylons further to the left, or to the east, would be marginally closer to the point where the turn was commenced. But in any event, as can be seen, the distance involved is considerable.
At an air speed of 100 knots, on the heading of the aircraft immediately before the left turn commenced, Mr Roberts calculates that, before the left turn commenced, having regard to the headwind then affecting the aircraft, the 'smoothed' ground speed was a little over 90 knots. At that speed, if it was maintained and conditions remained the same, it would take about 40 seconds to cover 1,800 m. If the air speed increased to give a ground speed of 100 knots it would take about 35 seconds to travel that distance. I note that the witness Lovegrove, to whose evidence I will shortly refer, made similar calculations.
I have said that the turn was commenced a matter of seconds after Mr Penberthy made the transmission that he was confronted with an emergency. I calculate that the turn was commenced about 15 seconds after the aircraft took off. At no point after the turn was commenced, on my calculations, did the aircraft get closer to the powerlines than about 750 m. The closest pylon would probably have been that numbered 195, the height of which is given as 240 feet above mean sea level, but by that time the aircraft had been brought around to a heading virtually aligned with the east‑west alignment of the powerline.
Referring to exhibit 136, the turn to the left appears to have been commenced at about the boundary of the airfield depicted between the radar confidence blocks 6 and 7. The left‑hand turn then appears to me to be almost a complete semicircle until, between the radar confidence blocks 17 and 18, the aircraft appears to have turned about 180 degrees. There then appears to be a straightening up, which would take the aircraft more to the east, and further to the east of the end of runway 30. Then, at the point where the radar confidence blocks 20 and 21 are depicted, there is a sharper turn to the left, consistent with the aircraft being caused to turn more towards the cut grass areas of the airfield.
I note that when the flight path straightens, the computed air speed appears to increase by, perhaps, five knots, before falling off sharply as the aircraft again turns left.
The relationship between this part of the flight path and the evidence of the pilot, Mr Penberthy, will become clear when I discuss his evidence. But it is at this point, where a more pronounced left turn is involved, that the radar detected that the speed of the aircraft through the air decayed dangerously, although the height of the aircraft above the ground appears to have been maintained, at least until the point where the radar data ceases to be available, a matter of no more than 10 seconds, I would judge, from the point where the aircraft finally came to rest.
The evidence of the pilot
Mr Penberthy's evidence was, of course, of crucial importance. His evidence was tested by putting to him statements which he had made in January and May 2004, during the course of the investigations into the crash of the aircraft and the deaths of, and injuries to, the occupants. Mr Penberthy had himself been seriously injured in the crash. He had spent some time in intensive care. I am not at all satisfied that what he said in the statements put to him, to the extent that there were inconsistencies and to the extent that he adopted what he had previously said, would provide a more accurate and reliable account of what occurred than his evidence given to me.
As to that, I think he genuinely attempted to give to the court his best recollection of what had occurred. He was an honest witness, but one would have to have some reservations, as I do, about the reliability of his account. He conceded that apart from his participation in the investigations conducted, he has, over the intervening years, thought about what occurred almost daily. He conceded that there had been some things which he thought had occurred, but which he accepted he had been wrong about when it had been put to him that the evidence was to the contrary. He conceded that he now cannot separate in his mind what are genuine recollections of what happened from what may be reconstructions of events, where imperfect recollection has been supplemented by information provided by others. In what follows I will endeavour to state what, in my view, may be accepted as a genuine recollection, particularly having regard to the extent to which Mr Penberthy's evidence was supported or contradicted by other evidence.
When I put to Mr Penberthy what seemed to me to be the core of his evidence about his decision‑making process when the emergency of which he spoke arose, he said that the evidence he had given about those matters was recollection rather than reconstruction. He did not, however, resile from the proposition previously exposed in cross‑examination that he was unsure now how much of what happened was 'honest reconstruction', as distinct from an actual memory of what went through his mind.
Mr Penberthy was born on 10 February 1943. As at the date of the accident he was therefore 60 years of age, but he was fully fit to fly and highly qualified. He had been involved with aircraft since he joined the Navy in April 1962. This accident, some 40 years later, marked the end of his career. He has never flown again. In the early 1970s, having left the Navy, he became a commercial pilot in a variety of different roles, including passenger commuter work and freight carriage. He became a flying instructor, and a chief flying instructor. He tested others for their competence. He was a licence issuing authority for the Commercial Air Safety Authority. His logbook showed that his total flying time over his whole career as a pilot was the incredible amount of some 16,700 hours.
Mr Penberthy was very experienced in and knowledgeable about the Cessna 404 Titan, and twin‑engined aircraft generally. But for commercial pilots, no matter how experienced, no matter how eminent, there is no grandfather clause. They are tested regularly, two or three times a year, by another senior pilot, for their knowledge and for their capacity to deal with an emergency which may arise. For a twin‑engined aircraft, that involves testing for unexpected engine failure. Prior to the accident with which these proceedings are concerned, the last occasion upon which Mr Penberthy was tested was on 6 May 2003, some three months earlier.
The testing officer was effectively Mr Penberthy's senior officer with FSS, Mr Hillier. It goes without saying that he also was a very experienced commercial pilot, and he was responsible, in this case, for checking Mr Penberthy's current qualifications and capacities as a pilot. His evidence was that Mr Penberthy's performance was 'near perfect', and the currency of his qualifications was therefore maintained.
In fact, Mr Hillier was originally proposed to be the pilot who would carry out the flight in question here, but his commitments changed and it was he who asked Mr Penberthy to step into the breach. In my opinion, there can be no suggestion that that was not an entirely appropriate decision, and there can be no suggestion that Mr Penberthy was other than fully qualified to carry out the purpose of the flight and to deal with any eventuality which might arise.
Mr Penberthy gave evidence of a variety of incidents, which I would describe as emergencies, which had occurred over the 30‑year period between the mid 1970s and the date of this accident. His evidence that he coped effectively with all of those incidents was unchallenged. Prior to this incident, he had not had an accident with an aircraft which involved any damage to property, or loss of life, or injury to any person. As I have said, in this accident, not only was Mr Penberthy himself injured, together with the injuries and deaths which occurred to his passengers, but it ended his career.
Having been informed that he was to be the pilot on the fateful flight, well before the plane was due to depart Mr Penberthy made the usual checks. He was in a position to undertake the flight personally, and the aircraft was established to be fit to fly. Prior to the flight, Mr Penberthy carried out what is described as a 'self‑brief'. By this is meant that the pilot must run through a checklist of matters to be planned for as occurrences which will or might affect the flight. For example, one of the decisions to be made is to determine a 'decision speed'. If an engine malfunction occurs before the aircraft attains that speed during the take‑off process, the flight must be aborted unless the process of take‑off has been completed, by which is meant that the aircraft is airborne and the landing gear is retracted or in the process of retraction.
The decision speed for this type of aircraft is stipulated in the aircraft operating manual to be 91 knots. Mr Penberthy said that because the aircraft, with the passengers and their equipment, was very close to its maximum all‑up flying weight, he chose a decision speed of 109 knots. Of course, that is air speed, not ground speed, and in fact, as has been seen, the aircraft never got close to this speed throughout the whole of the flight, and its take‑off speed was about 100 knots.
Having completed the self‑brief, which appears to me to have been carried out in appropriate terms, the pilot, before taxiing out to commence the flight, undertook the usual checks of the aircraft according to the checklist in the cockpit. Those checks included bringing the engines up to the 1,500 rpm required, checking that the engines were running smoothly, and checking that the magnetos were operating correctly according to the instruments. There is no suggestion that Mr Penberthy did not carry out the appropriate checks or that they did not establish, as he says they did, that the aircraft was fit to fly.
He taxied to the runway, using taxiway Delta. He appreciated that if taxiway Charlie was used, that would enable the aircraft to be positioned at the commencement of the runway. That would have added 145 m to the available runway length. But I accept Mr Penberthy's evidence that many used taxiway Delta, from which there was ample runway to enable the aircraft to take off safely, and to enable a flight to be aborted safely if a problem requiring that to be done occurred before takeoff.
Delta was used frequently and the evidence was that the extra length had been added to the runway to accommodate jet aircraft. In my opinion, the evidence does not establish that an operative cause of the crash was a decision that the take‑off had to be pursued, although the appropriate course would have been to abort the flight, because at the point where the difficulty with the aircraft arose there was insufficient acceptable ground ahead of the aircraft to enable the flight to be aborted safely.
Mr Penberthy positioned the aircraft on the runway when he was told by Mr Murray, in the tower, to line up. When he was cleared for take‑off he commenced the roll‑up, increasing the engine revolutions, releasing the brakes and smoothly applying power to both engines. I do not think he recalls precisely what happened during the take‑off roll up, because he often used the phrase, 'I would …' to describe his actions. But I am equally satisfied that nothing untoward occurred, and that power built adequately in both engines, despite the impression of some observers on the ground, to whose evidence I have referred.
Finally, in relation to take‑off, Mr Penberthy firmly rejected the proposition that one engine was running rough and that power was not developing normally in the engines before take‑off. He denied that the aircraft took longer to achieve take‑off than it ought to have done. He said there was nothing wrong with the aircraft on the take‑off roll. Had there been, I accept that he would have aborted the take‑off.
As the air speed increases, the first step towards becoming airborne is described as 'rotation', by which is meant simply that the nose wheel comes off the ground shortly before the other wheels come off the ground and the aircraft becomes airborne. Mr Penberthy said that he would guess that he became airborne at 100 knots. The radar surveillance data would support the view that that was a good guess. Lift off having been achieved, the speed continued to build. At about 105 knots on the air speed indicator, Mr Penberthy reached for the undercarriage selector to bring the undercarriage up, or at least to commence that process, which takes a few seconds to complete.
I accept Mr Penberthy's evidence that to that point there was no noticeable difficulty in the performance of either engine, and by then, of course, although the air speed does not appear to have achieved the selected decision speed, the point had passed at which the take‑off would be required to be aborted, and the time had arrived when the pilot was required to undertake a different set of procedures, upon the failure or other difficulty arising in respect of one or both engines.
In his evidence‑in‑chief at ts 806 ‑ 807, Mr Penberthy described what then occurred. Without referring to hearing anything different in the note of either engine, he said that he felt a pressure on his left foot on the rudder pedal. That would indicate some difficulty with the right engine, because there would be a corresponding decrease in pressure on the right rudder pedal. Pilots have a phrase which describes the difficulty: 'dead foot, dead engine'. It is not necessary to completely describe the phenomenon which occurs. It is sufficient to say that when the right engine fails, the aircraft will immediately yaw to that side.
It will tend to move to that side because, the right engine having lost power, the drag on that side of the aircraft is increased, and increases quite quickly. The pressure on the left rudder pedal has to be increased to counteract that drag and maintain, as best the pilot is able, the heading of the aircraft. As I understand the evidence of the expert pilots who were called by the parties, on an aircraft of the type of VH‑ANV, a failure of one engine would be expected to be immediately signalled by substantial increased foot pressure on the opposite rudder pedal.
One would expect then that the description of what Mr Penberthy felt and experienced would be consistent with that process, but he said that he felt a 'slight' pressure. He surmised that 'it appeared to be a slow, not an instantaneous, loss of power' (ts 806). Initially, he said, it was not a strong pressure (ts 807). But as I understand his evidence, the pressure very quickly became substantial and he said that the sensation was one which he had experienced many times when he was tested by one engine being shut down, and in a previous incident which had occurred by accident. The only difference, he said, was that, 'This one appeared to be slower than normal.'
When cross‑examined he confirmed that the loss of power appeared to be slower than normal. It took perhaps a couple of seconds (ts 842). In that way, unlike a simulated engine failure, it was not an instantaneous engine failure occurring in 'zero seconds', but 'close enough to it' over a period of a couple of seconds (ts 845). Mr Penberthy would not accept that what he experienced was a reduction in engine power, but not a total engine failure.
The observation is, of course, a subjective recollection of a sensation, and I am not prepared to conclude, on the basis of that description, that what occurred was other than the failure of the right engine, particularly when one has regard to what was heard and seen by the air traffic controllers, Messrs Schraven and Murray, and others. Certainly, it is clear that Mr Penberthy commenced immediately, as he was obliged to do, to follow the procedure laid down in the manual to enable a pilot to cope with a loss of engine power on one side.
The procedure is invariably applied. It is designed to be an automatic response. In this aircraft it was to be followed, provided the air speed indicated on the dial was above 91 knots. I accept that it was about 100 knots. In addition, at the time of the engine failure, the landing gear must be up or in transition to up, and that was the case. The selector had been put in that position. For take‑off, the propeller pitch levers will be fully forward, as will the throttles, and the fuel mixture levers will also be fully forward, as rich as possible.
The engine in difficulty being identified by the dead foot, dead engine indication, that throttle is immediately closed, the mixture is selected to the idle, or cut‑off position, and the particular propeller is feathered so as to reduce the drag created by an inoperative propeller which is simply 'windmilling' in the air. The feathering process equalises the forces on the various surfaces of the propeller to reduce the drag.
Then, immediately, the aircraft is banked five degrees towards the operative engine, ie, in this case the left wing is dropped and the right wing raised. The air speed of the aircraft is set to what is regarded as the best single engine rate of climb, with the flaps in the take‑off and approach position. For this aircraft, it would be sought to achieve an air speed of 109 knots, with the flaps up. This was never achieved.
The aircraft having been positioned correctly, and the inoperative engine having been identified correctly, the fuel to that engine is cut off, both in respect of the engine‑driven fuel pump and the auxiliary fuel pump. The magneto is switched off and the alternator is switched off. The process is designed to deprive the engine of fuel and electricity, and to prevent fire. The manual concludes the process by advising the pilot to land, 'as soon as practical'.
The evidence supports the conclusion that Mr Penberthy quickly carried out these procedures designed to give the aircraft the best chance of climbing to a safe altitude of between 500 feet and 1,000 feet above the ground, to enable it to be manoeuvred so as to improve its capacity to return to the airfield and land safely, or to land on some other suitable open ground.
The process of coping immediately with the loss of power in one engine which I have described above is referred to as 'cleaning up' the aircraft. I am satisfied that the procedure was appropriately carried out by Mr Penberthy. As to what he did then and why, it is instructive to refer to his evidence‑in‑chief. He said:
I'm looking outside, and inside the cockpit the vertical speed indicator is showing nothing much at all. I'm looking outside. I see the powerlines and I have to make a decision. The aircraft is not climbing and I think to myself, 'I've got to make a decision quickly. What am I going to do?' On the self‑brief it's to continue straight ahead, but under these circumstances I considered that that wasn't an option and I had to make a decision, a very quick decision in a matter of seconds, or fractions of a second, to pick an alternative. I can't turn to the right because of the build‑up of houses in Leeming, so the option was to turn to the left (ts 808).
Having made the decision and, in my view almost exactly at the time when the turn was commenced, Mr Penberthy made the transmission, 'I've got an emergency, thanks. I'm going to have to come around.' As I have said, in my view the evidence is that the turn was commenced about five seconds after that transmission, and at about the time when it was acknowledged by Mr Murray in the tower. Mr Penberthy gave evidence that he said he had an emergency and commenced to turn to the left. He added:
If I left it any later, I would have been too close to the powerlines which would have meant that I would have had to increase the bank angle, which then would increase the G‑loading, which would then lose part of the lift on the aircraft (ts 808).
It is certainly correct, as I understand the evidence, that the sharper the turn the more the aircraft's capacity to climb, using the power of the one remaining engine, is compromised. Mr Penberthy said that despite making his turn a gentle one, he could not achieve any appreciable rate of climb, and it was then that he told the tower that he needed to land. When he came to the point that he would need to turn more sharply to the left to line up with runway 30, it was clear to him that the consequence would be such a loss of altitude that it was unlikely that he would reach the runway. He therefore aimed for a grassy area near the weather station and, as I have said, there is a sharper left turn plotted between the radar confidence blocks 20 and 21, which is consistent with that effort, unsuccessful though it was.
In the very last seconds of the flight, at about the time when the second turn was completed and the aircraft was straightened up again in an attempt to combat the loss of height, Mr Penberthy thought the left engine was running rough. If that was so, he attributed it to an ignition problem, probably a lead or a spark plug breaking down because the engine was overheating as the airspeed was low. If that was so, it is clear that it was not detected by Mr Penberthy at any time before the terminal stage of the flight. It was no part of the emergency which initially arose.
At the end of the flight, Mr Penberthy effectively lost the capacity to fly the aircraft out of trouble, even maintaining the straight heading. He agreed that the loss of power and the loss of speed meant that altitude could not be maintained. The aircraft was so low to the ground that he could not lower its nose to increase speed and he could not reduce power, on the good engine, to assist the rate of climb.
When cross‑examined, Mr Penberthy accepted that, having cleaned up the aircraft and reduced the drag at the point where it had achieved a height of about 100 feet above the ground, at which time the aircraft was achieving a rate of climb, if that was maintained, then, if the aircraft was flown straight ahead 'theoretically' it may have achieved a height of 300 feet above the ground, a height sufficient to enable it easily to clear the powerlines. He did not agree that he had turned left prematurely before a reasonable attempt had been made to see if that could be achieved. He emphasised that the time to make the decision was very short, and he added that under the stress of the moment a pilot's brain might 'turn to glue' (ts 828). There was no time for calm and orderly thought. It was an emergency.
Mr Penberthy said that he was not familiar with the use of parallax to aid a judgment about whether the aircraft might clear the powerlines. As I understand it, that refers to the fact that, the powerlines being closer to the pilot than the horizon, if, as the aircraft flew towards them they remained in the same position relative to the horizon, the likelihood was that the aircraft would hit them. If, on the other hand, as the aircraft flew towards the powerlines, they dropped below the horizon, the obstacle would be cleared. Finally, if, as the aircraft flew towards them, the powerlines projected further above the horizon, then it would be certain that the aircraft would hit the powerlines or have to fly under them.
When cross‑examined by Mr McCusker QC, Mr Penberthy relied upon the speed with which he had to make the decision to fly on or turn left. He considered that his rate of climb, if any, was inadequate to clear the lines. He therefore turned left and, he said, although he did not have 'gethomeitis', he tended to agree that he did not think, at the time, that he might fly parallel to the lines, even if for 20 kilometres or so, to achieve a safe height, but his split‑second decision was to endeavour to return to the airfield and land on a runway (ts 875 ‑ 876).
The assessment of the pilot's conduct
Four pilots were called and asked questions about the handling of the aircraft when confronted with an emergency of the kind with which Mr Penberthy was faced. I have mentioned one of them, Mr Penberthy's senior pilot, Mr Hillier. He confirmed that Mr Penberthy had behaved correctly to clean up the aircraft. He then agreed that the climbing performance of the aircraft at about maximum take‑off weight, with one engine feathered, would be marginal, but he also agreed that by executing a turn there would be a substantial loss of the rate of climb. He accepted that the turn to the left was a high‑risk manoeuvre, but he made the obvious point that whether it was a necessary manoeuvre depended upon what other options the pilot had.
But Mr Hillier did agree that the aim was to achieve a safe height of about 500 feet above the ground, or more. Only then would it be regarded as practical to endeavour to turn the aircraft to return to the airport because to turn the aircraft would inevitably involve a loss of speed and would compromise the rate of climb. He was prepared to accept that if a turn was necessary to avoid an obstacle, the pilot should turn to the least extent possible. When it was put to him that the best option would then be to fly parallel to the powerlines in an endeavour to gain height, Mr Hillier said that this would be 'an option' but, he said, the pilot could not assume that the good engine would continue to operate at full power.
For my part, it would seem to me that the pilot should take the safest course to deal with the emergency on the basis that one engine was continuing to operate properly. Of course, that response might have to be abandoned if, indeed, the remaining engine did fail, an event which, as I understand it, would leave the pilot no option but to glide to a landing on the clearest ground which was immediately available. But I cannot see the justification for taking a course which inevitably compromised the aircraft's capacity to fly and gain height on the basis that some further emergency might occur by the loss of the remaining engine, on top of the emergency with which the pilot was already confronted.
The plaintiffs called a Mr MacGillivray. He was both a very experienced pilot, fully familiar with the Cessna 404 aircraft, and an aeronautical engineer. I shall return to this witness later in respect of his engineering expertise, but for the moment it is sufficient to refer to his evidence as an expert pilot. As he was the first such witness, some considerable time was spent with him in adducing evidence which was designed to give me an understanding of the processes involved in flying an aircraft, and how the performance of a twin‑engine aircraft is affected when one engine fails. I have drawn on that evidence already.
He also gave evidence about what must be done, quickly and effectively, to clean up the aircraft and compensate for the failure of one engine. I need not discuss those matters here. I have already said that, having regard to this evidence and the evidence of other like witnesses, Mr Penberthy behaved completely correctly as soon as he was confronted with an engine failure at and about the time of take‑off, with the aircraft exceeding the decision speed of 91 knots, and the landing gear retracted or in the process of retraction at the time of the engine failure.
Mr MacGillivray confirmed that, having cleaned up the aircraft, the object was to maximise the rate of climb, so far as that was possible, because the failure of one engine severely limited the aircraft's capacity in that regard. He agreed that a 'safe altitude' at which it might be regarded as practical to endeavour to turn the aircraft and return to the airfield was no less than 500 feet above the ground.
He explained that the reason for that was that, as the aircraft was turned, the rate of climb and the capacity to maintain airspeed was inevitably compromised, and so one needed some margin, by the time the aircraft was lined up for a landing, to regain some lost speed and hold height, to ensure that the landing was achieved safely. Loaded as it was, Mr MacGillivray said this aircraft would not climb unless the air speed was about 100 knots or more. The aircraft's stall speed would be 83 knots. At 105 knots, the aircraft would be enabled to achieve its best angle of climb in the circumstances, in an effort to clear any obstacle ahead of it.
For reasons I have already given, I do not propose to discuss the views of this witness or other witnesses about whether Mr Penberthy was prudent to commence the take‑off run opposite the taxiway Delta, rather than at the downwind end of the runway, at taxiway Charlie. As I have said, it is not a material consideration, in my view, in relation to the issues before me.
Mr MacGillivray was of the view that having taken off, having encountered the problem, and having cleaned up the aircraft by the time he achieved a height of about 100 feet above the ground, Mr Penberthy's best option was to fly straight on and, in all probability, Mr MacGillivray thought he would comfortably clear the powerlines. Mr MacGillivray took a helicopter flight around the area which broadly encompassed the supposed track of the aircraft. He said that, having now performed that visual inspection, although he wisely did not attempt to reconstruct the flight of VH‑ANV, he thought that, at about the point where the aircraft would have been cleaned up, at 100 feet above the ground, the pylons did look 'fairly high'.
My impression was that at that point, Mr MacGillivray conceded, the powerlines might present as a rather daunting obstacle in front of the aircraft. Mr MacGillivray made the valuable point that it is, after all, a matter for the judgment of an experienced pilot. The decision needs to be made relatively quickly, and although the accepted practice, for reasons which I have already mentioned, is to eliminate all unnecessary manoeuvring following an engine failure, if an obstacle must be avoided, in the judgment of the pilot, then a turn will be required. In that event, the manoeuvring of the aircraft should be kept to a minimum, at least until the relatively safe height of 500 feet about the ground is reached, because of the inevitability that the turn would reduce the rate of climb.
Mr MacGillivray suggested that a minor turn to the left would have enabled the pilot to clear the powerlines at the midpoint between two towers, where the powerline would be at its lowest. But he also said that the pilot should work on the basis that the obstacle should be cleared by a minimum of 50 feet, to give an acceptable margin of safety. Mr MacGillivray seemed to be more confident about the capacity of the aircraft to fly safely on a course parallel to the powerlines. He detected no significant obstacles if the flight path was extended out to 15 kilometres, by which time, Mr MacGillivray thought, the aircraft should have achieved a safe altitude and a shallow turn could have been commenced to position the aircraft for a return to Jandakot airport and, no doubt, a landing on runway 30.
All of that was, however, predicated upon the proposition that the aircraft could be trimmed appropriately and, as Mr MacGillivray thought possible, at an air speed of 105 knots, the best single‑engine angle of climb speed was achieved. Indeed, Mr MacGillivray thought that an airspeed of 96 knots, which was certainly, at one point, achieved by the aircraft even during its left turn, would have enabled a slow, but steady, rate of climb.
Mr MacGillivray agreed with Mr Langmead SC that in the circumstances which confronted Mr Penberthy, a positive rate of climb was a very precious commodity, easily squandered by a turn, which was therefore something of a last resort. The parallax process was discussed with him. Mr MacGillivray thought that was something which all experienced pilots would use. Specifically so far as this case was concerned, Mr MacGillivray thought Mr Penberthy's decision to turn was made too early, when the probability was that if he continued in a straight line, the obstacle of the powerlines would have been cleared comfortably (ts 489).
I do not understand otherwise why par 9 of the statement of claim contained the allegations to which I have referred. However, I am told that it is not the case that that was the purpose of the pleading, and the admission of those facts by the first defendant was not intended to convey an acceptance that the flight was conducted pursuant to such an authorisation.
There being no objection, I accepted in evidence an affidavit sworn by Mr Bradley, the solicitor for the first to fourth plaintiffs. He annexes the first defendant's air operator's certificate, effective from 20 March 2002 until 31 July 2004, for a number of aircraft, including Cessna 404 aircraft. The certificate, issued by the Civil Aviation Safety Authority under the Civil Aviation Act 1988 (Cth), authorises the first defendant to conduct what are described as aerial work operations, not charter operations. The aerial work operations authorised are aerial photography, aerial survey work, dropping incendiaries for bushfire control, aerial baiting, dropping seeds and fertiliser for forestry purposes, and search and rescue work.
It is put to me, and no submission is made to the contrary, that this particular flight by this aircraft was not caught by the Civil Aviation (Carriers' Liability) Act1961 (WA) as the air operator's certificate was not an airline licence, as defined, because it did not authorise 'airline operations', and nor was it a charter licence as defined, because it did not authorise 'charter operations'. In the circumstances, I am prepared to accept that argument.
I make no finding, because it is irrelevant that I should do so, as to whether the flight undertaken in the circumstances and for the purposes that it was, was a flight authorised by the first defendant's air operator's certificate. However, in light of the terms of that certificate, and the reservation from its authorisation of 'charter operations', it does seem to be clear that this was not a flight to which the Civil Aviation (Carriers' Liability) Act1961 applied, despite the fact that the plaintiffs pleaded, and the first defendant admitted, that the flight was part of the business of the first defendant, which included, 'the provision of air charter services for commercial purposes'.
Costs orders: CIV 1312 of 2008
The Legal Profession Act 2008 (WA) was proclaimed to come into operation on 1 March 2009 (Government Gazette 27 February 2009, page 511). By s 616(1) the current provisions in relation to costs, contained in Pt 10 of the Act, only apply where the client first instructs the law practice on or after the commencement day. Otherwise, as in this case, Pt 13 of the Legal Practice Act 2003 (WA) will continue to apply, as will the provisions of legal costs determinations made under s 210 of that Act. In relation to contentious business it would seem that the relevant determinations for the purpose of taxation of costs in relation to this litigation are the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 which operated from 1 July 2006 to 30 June 2008 and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 which came into operation on 1 July 2008. The determinations apply to the remuneration of practitioners based on costs incurred during the period of their operation.
The two determinations are similarly constructed. They fix maximum hourly and daily rates of remuneration. Rates are fixed for senior practitioners of more than five years standing, junior practitioners and senior counsel. There is no longer a need to certify for the involvement of senior counsel, or, as was traditionally done, second counsel. The determinations provide a table and generally speaking no distinction is made between solicitor/client costs and party/party costs. The scale describes various types of legal work. The maximum allowance is a combination of a period of time supposed to be the maximum required to perform the particular task, multiplied by the rate applicable to the particular fee earner hypothetically involved in the performance of the work.
Of course I am not involved in the taxation of costs in this case, but broad familiarity with what is involved in the scale assists in this case because the plaintiffs seek special costs orders under s 215(2) of the Legal Practice Act. Section 215(1) provides that the taxation of costs is regulated by the relevant legal costs determination in force under s 210. Section 215(2) provides:
(2)Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed.
Generally speaking the judicial discretion in relation to costs orders is very wide (Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516, 526 [38] ‑ [39] (Steytler P, Pullin JA & Murray AJA agreeing)), but the exercise of the discretion to make a special costs order under s 215(2) is guided. In the first place it is evident that the party seeking the order must persuade the judge to the opinion that the amount of costs allowable under the relevant legal costs determination is inadequate. That will be established if the unusual difficulty of the matter, its complexity and/or its importance lead to the conclusion that reasonable remuneration for the successful party will not be provided simply by ordering the payment of costs to be taxed and therefore by limiting that process of taxation by the application of the relevant provisions of the applicable legal costs determination.
In that regard I think that some of the older cases continue to have application. The inadequacy of the legal costs determination may be demonstrated by consideration of the amount of work involved in the preparation and presentation of the case. That consideration of itself may sufficiently relate to the complexity of the matter to demonstrate the inadequacy of the scale: Schmidt v Gilmour [1988] WAR 219, 220. The consideration of the issue by the judge should not descend into the taxation process, but the judgment to be made is essentially preliminary and provisional: Collins v Westralian Sands Ltd (1993) 9 WAR 56, 64, 68.
It is to be remembered that a special order which fixes higher limits than those derived from the relevant determination, or which increases the amounts for specific items of work, or removes limits on costs derived from the determination, does no more than that. It is for the taxing officer to consider the reasonableness and the necessity for the work and to make a judgment about the remuneration reasonably required: Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 404.
Against the background of those statements of general principle I turn to some of the specific issues raised by the parties in respect of costs in this matter. In the first place it seems to me to be perfectly obvious that the costs of all the plaintiffs should be taxed as in an action. The originating summonses by which these matters were consolidated in this court was a convenient device to enable the issues of liability to be tried out in one proceeding. The pleadings were consolidated and it is clear that the process of preparation and the trial process itself was indistinguishable from the conduct of an action. Further, it seems to me that reference to the 2008 scale shows that taxation as for an originating summons would provide entirely inadequate remuneration.
I also think that what I know, particularly from the presentation of the case, about the process of preparation makes it convenient that the costs of the first to sixth plaintiffs in the proceedings before me and in the relevant District Court actions, should be taxed as one set of costs. The position of the seventh plaintiff will be conveniently handled separately in view of the different process involved in that instance.
Special costs orders
In relation to the taxation process generally there are particular matters in respect of which the plaintiffs seek orders which would remove limits imposed on the taxation process by relevant items in the scale. Speaking generally, it seems to me that although there is no specific evidence before me in relation to some of the items concerned with matters of preparation, in relation to which special orders are sought, as a general proposition there is in my view sufficient to ground the proposition that items of central importance under the scale ought to have the limits removed on the ground of the unusual difficulty and complexity of the case, both factually and in relation to the questions of law which arose.
Factually I have in mind particularly the need to marshal and present a significant body of expert evidence from pilots, from the physicist Mr Steven Roberts, and in relation to matters of an engineering character concerned with the operation of the engine driven fuel pump. In addition, there was of course a significant body of expert evidence in relation to metallurgical investigation and the investigation of the cause of the failure of the fuel pump generally.
So far as matters of law are concerned the parties had to prepare and present matters of some difficulty in relation to the sixth plaintiffs' claim in negligence, particularly in relation to economic loss, and issues concerned with the imposition of a duty of care in that regard. Further, the contractual claim involved some issues of real substance in relation to the incorporation of terms in contracts by reference to other documents, the incorporation of terms as a result of a course of dealing between contracting parties and the question of implication of terms, as well as the need to consider the warranties provided by s 74 of the Trade Practices Act 1974 (Cth).
As to specific matters, I commence with the observation that although there is not, and has not been for some time, a requirement under the scale to certify for second counsel, it is very evident to me that this was a case where the involvement of senior counsel for all parties was well justified at all substantial stages, including during a mediation process.
As to the items of the scale specifically addressed as being the subject of special costs orders and the submissions made to me, I am satisfied that on the general grounds to which I have referred above it would be appropriate to remove the limit in relation to the preparation of the statement of claim and in particular the consolidation of that pleading. The coordination of the work of consolidation between the solicitors for the plaintiffs and the involvement of Queen's Counsel would suggest that the limit of $3,960 would be inadequate.
Mention of the mediation process prompts me to refer to the claim that the mediation conference held in this case was a major effort, although concerned only with issues of liability. It was listed for three days and I am told that it took some time. Position papers were exchanged and counsel attended the conference. Item 23 of the scale allows for remuneration at a maximum of the hourly rate for a senior practitioner, $396. There is no limit to the number of hours which may be allowed for, but that will not help where others, and indeed senior counsel, were necessarily involved. In my view the limiting factor of the rate at which remuneration may be allowed should be removed to enable proper consideration to be given on taxation to the attendance of solicitors and counsel to provide necessary advice at the mediation conference in a matter of this potential complexity: Tranchita v Danehill Nominees Pty Ltd [No 3] [2009] WASC 49 [5] ‑ [6] (Martin CJ).
As to the trial itself, I note that item 19 of the scale is prepared on the basis of an allowance for three days of preparation, the first day of the trial and unlimited refreshers to the daily limit of counsel and senior counsel on the basis of a 10 hour day. There is evidence before me of the hourly rate charged by senior and junior counsel engaged by the first and third defendants, but no other evidence. The principal complaint of the plaintiffs stems from the fact that when the respective parties had closed their cases I adjourned the trial for one week for the preparation and exchange of closing submissions, and to give me the opportunity to read those documents, before I resumed the hearing for a further two days to allow counsel to speak to their written submissions and make oral presentations designed to focus my attention upon particular matters which required resolution. The process was an efficient one.
The complaint is that there is no allowance specially made for the involvement of counsel in such preparatory work. In my opinion the costs involved would be taxed as part of getting the case up for trial, albeit, the trial process was suspended while this work was done. As to that, the plaintiffs also apply to remove the limit upon getting‑up for trial.
In relation to getting up, particular reference is made to the solicitor, a senior practitioner, acting specifically for the first to fourth plaintiffs, but in effect acting for all attending the inquest, which was held in April, May and June 2005. The solicitor is said to have limited his attendance to days when it appeared the evidence might relate to matters of fact and law which would be in issue in respect of liability in proceedings such as those ultimately held before me.
I have no difficulty with the proposition that the taxing officer would be able to make a judgment as to the reasonableness of attendance. Nor do I have any difficulty with the broad proposition that to attend in that way, and subsequently obtain transcript of the evidence given at the inquest so far as it was thought to be helpful, would enable informed decisions to be made relative to the process of getting up for trial and would be likely to save costs incurred in the process of investigation of the facts which is a central part of getting‑up the case for trial. I am content to observe that in my view it would be proper for the taxing officer to make an allowance under that head for the costs reasonably incurred in relation to the inquest.
Having regard to that matter, to the costs incurred in the process of preparing written closing submissions, to which I have referred, and to the unusual difficulty and complexity of the case in the aspects to which I have also referred above, I am persuaded that it would be appropriate to remove the limit involved in the scale allowance for getting‑up for trial which is based on 100 hours of the time of a senior practitioner charged at the scale rate, and an order should be made to achieve that result in respect of item 16 of the scale.
As to the trial itself and counsel's involvement in preparation as well as attendance at the trial together with the allowances available for solicitors and clerks reasonably attending trial, I think the allowances in item 19 are generally reasonable and should not be interfered with. However, in view of the unusual difficulty and complexity of the matter I think it is likely that taxation subject to the limits provided in item 19(a) and 19(b), would be likely to be inadequate in relation to preparation for and the first day of trial. I would remove those limits from item 19, but not the others.
In relation to the process of preparing for trial there are items in the scale dealing with costs incurred in requiring and giving discovery and inspection of discovered documents. The plaintiffs submit that the scale limit should be removed in relation to the process of giving discovery. Having regard to the documents, not all of which by any means ended up being tendered in evidence, which found their way into the book of documents, I am not persuaded that there is justification for removing or increasing the limit available under the scale in relation to this process.
The plaintiffs also seek a reasonable allowance for the cost of obtaining transcript of the inquest and for the costs incurred in proofing and generally qualifying expert witnesses to give evidence at trial. So far as the lawyers are concerned of course the process of perusing transcript and dealing with expert witnesses is centrally part of the getting‑up process. So far as the fees charged for the provision of transcript and by expert witnesses are concerned, no special order is required and I will make none. Item 33 of the scale provides that as between party and party, a party may be allowed on taxation disbursements necessarily or reasonably incurred.
In that way the taxation process may also make a reasonable allowance for the expense incurred by the sixth plaintiffs who bore the costs of the trial transcript obtained for the use of the plaintiffs generally. To do so was certainly reasonable and necessary, in fact, I expected that the submissions would refer to relevant evidence, they did so, and I was assisted by that.
A further disbursement which I would say was necessarily and reasonably incurred by the plaintiffs (without wishing to trespass upon the function of the taxing officer), was the cost incurred in relation to the process of obtaining the evidence of Mr Steven Roberts and Mr Barton by video‑link from Canada and America respectively. Again, no special order is required in relation to these costs.
A problem arises in relation to costs because the sixth plaintiffs' claim against the first defendant for damages for breach of contract is dismissed. In its minute of orders in CIV 1312 of 2008 the first defendant proposes that the sixth plaintiffs should pay its costs of that claim, including special orders of the kind proposed otherwise by the first to sixth plaintiffs. On the other hand in the minute of orders submitted by the plaintiffs no distinction is made between the costs sought generally by the sixth plaintiffs and those in relation to the contractual claim which failed.
In its written submission on costs the first defendant refers to the dismissal of the contractual claim and submits, not that it should have the costs of defending that claim, but that the costs to be awarded to the sixth plaintiffs should be reduced by 50% to reflect the proportion of the litigation between the sixth plaintiffs and the first defendant represented by the contractual claim.
Of course the general outcome of the action both in respect of the sixth plaintiffs' claim in tort, including the claim for economic loss, and the claim for breach of contract, was a judgment for the sixth plaintiffs and it is not clear to me that the damages for breach of contract would, when assessed, be substantially different from those pleaded in respect of economic loss arising out of the tortious claim.
In my view in those circumstances it would be inappropriate to order the sixth plaintiffs to pay the first defendant's costs of the contractual claim. Nor I think would it be appropriate to attempt some assessment of the time and significance of the issues upon which the sixth plaintiffs succeeded and those upon which they failed when overall they were successful, for the purpose of reducing their recoverable costs. And yet they brought the contractual claim, putting the first defendant to expense to defend it, and they lost. The best I can do I think in those circumstances is to allow the costs of the contractual claim to lie where they fall - to be borne by the respective parties who incurred them. I will make no order as to the costs of this claim.
Finally in relation to the matter CIV 1312 of 2008, the seventh plaintiff, whose action against the second defendant was settled by consent, needs to be considered. Orders were made disposing of that matter, including that the second defendant pay the seventh plaintiff's costs to be taxed. He seeks special costs orders pursuant to liberty reserved to him to make such an application. He does so on the ground that the claim against the second defendant was only settled immediately prior to the commencement of the trial.
However it is not otherwise sought to justify an application for special orders and, as the second defendant observes, the position of the seventh plaintiff was quite different from that of the remainder of the plaintiffs. His involvement in the trial was as the third defendant and as a third party and his preparation for the trial was no doubt substantially in that capacity. As a plaintiff he was separately represented and advances nothing out of the ordinary in relation to the taxation of costs. I do not make any special costs order in relation to this plaintiff but leave the question of his costs to the order made by consent at the outset of the trial.
Costs orders: CIV 2279 of 2009
I was provided with a minute which was discussed by counsel for the plaintiff and third party on the one side and counsel for the first defendant on the other. In my view the minute accurately presents the orders which would be appropriate. I sum up my views about this particular litigation at the end of the principal reasons in [435] ‑ [437], but I should express my reasons at a little more length and make my thinking clear.
I was not aware that originally the first five plaintiffs in CIV 1312 of 2008 commenced their actions in the District Court only against FSS and Mr Barclay. The sixth plaintiffs in CIV 1312 of 2008 sued the three parties who became the defendants in the consolidated proceedings, and as those proceedings were formulated before me and as the litigation was conducted, the question of contribution between the second and third defendants in those proceedings was, without regard to formality of the pleading process, raised generally.
I determined that the third defendant, for whose negligence the first defendant is admittedly vicariously liable, was two‑thirds responsible for the accident and its consequences in law, whereas the second defendant bore responsibility for one‑third of the legal consequences of the accident in relation to the claims made. That was the general position, except that the sixth plaintiffs succeeded in their claim for economic loss not incurred consequentially upon property damage, and therefore described as pure economic loss, only against the first and third defendants and not against the second defendant, Mr Barclay.
The action CIV 2279 of 2009 is a claim by FSS for damages for negligence, relevantly against Mr Barclay, who joins Mr Penberthy as a third party. The damages for which the plaintiff in CIV 2279 of 2009 sues are those directly suffered by reason of the loss of the aircraft and arising out of the economic consequences of the incapacity to use the aircraft for commercial purposes. Those damages are also said to include a component for the loss suffered by FSS as a result of its liability incurred vicariously for the negligence of Mr Penberthy to awards of damages in CIV 1312 of 2008.
Having regard to my views as to the apportionment of liability as between the third party, Mr Penberthy, and the first defendant, Mr Barclay, I have concluded that the damages recoverable by the plaintiff FSS in CIV 2279 of 2009 will be one‑third of the damages it has incurred as ultimately assessed because of the contribution to that loss by the negligence of Mr Penberthy for which FSS is vicariously responsible.
As to the damages by way of indemnity against the liability of FSS to pay damages for pure economic loss to the sixth plaintiffs in CIV 1312 of 2008, I found at [436] and earlier in the principal reasons that Mr Barclay owed FSS a duty of care in this regard. Because the loss suffered by FSS arises causally out of the occurrence of the accident for which, having regard to its vicarious liability for the negligence of Mr Penberthy, FSS is two‑thirds responsible, in my opinion the indemnity which the first defendant in CIV 2279 of 2009 is liable to provide to the plaintiff in that action FSS should again be one‑third of the damages recovered by the sixth plaintiffs from FSS. The orders I will make reflect that view.
As I think I explained in the principal reasons, in my opinion the proper view of the third party notice is that it raises on behalf of the first defendant a claim to be indemnified by the third party, which is not fully maintainable, and a claim for a contribution to the liability of the first defendant to FSS, which will result in the capacity of that plaintiff to recover from the first defendant the damages it must meet and the loss it sustained to the extent of the one‑third responsibility for the accident and its consequences which the first defendant Mr Barclay must bear.
Final orders
In the circumstances I think I have been able to resolve the matters which have an impact upon the terms of those orders in both CIV 1312 of 2008 and CIV 2279 of 2009. The convenient course is therefore to make the orders which I have determined are appropriate, and I set them out below.
CIV 1312 of 2008
1.Judgment be entered for the first to fifth plaintiffs against the first and second defendants.
2.Judgment be entered for the sixth plaintiffs against the first, second and third defendants.
3.The first and second defendants do pay to the first to fifth plaintiffs damages to be assessed.
4.The first, second and third defendants do pay to the sixth plaintiffs damages (save and except damages for pure economic loss) to be assessed.
5.The first and third defendants do pay to the sixth plaintiffs damages for pure economic loss to be assessed.
6.As between the first, second and third defendants, liability for the damages and costs payable to the first, second, third, fourth, fifth and sixth plaintiffs be apportioned as to two‑thirds to the first and third defendants and as to one‑third to the second defendant save and except for liability for the sixth plaintiffs' claim for damages for pure economic loss which is to be borne by the first and third defendants.
7.The sixth plaintiffs' claim against the first defendant for breach of contract be dismissed. Each party is to bear their own costs of that claim.
8.The first to seventh plaintiffs' costs be taxed as costs of an action.
9.The first to sixth plaintiffs' costs in these proceedings and in the District Court actions 400 of 2006, 402 of 2006, 2072 of 2006, 2073 of 2006, and 1592 of 2005 and Supreme Court action 1831 of 2006 be taxed as one set of costs.
10.Except as provided in order 7, the first, second and third defendants do pay the first to sixth plaintiffs' costs of the action, included reserved costs, to be taxed if not agreed, subject to the following:
10.1the relevant scale limits as to time be removed in relation to the statements of claim and consolidated statement of claim (item 1(b));
10.2the relevant scale limit as to amount be removed in relation to preparation and attendance at the mediation conferences (item 23(a));
10.3the relevant scale limits as to time and amount be removed in relation to getting up (item 16);
10.4the relevant scale limits as to time and amount be removed in relation to trial for items 19(a) and (b) only.
11.The actions identified in order 9 herein be deconsolidated.
12.Pursuant to s 17(2) of the Supreme Court Act 1935 (WA) the actions of the first to fifth plaintiffs, being District Court action numbers 400 of 2006, 402 of 2006, 2072 of 2006, 2073 of 2006, and 1592 of 2005, be transferred back to the District Court of Western Australia at Perth for assessment of damages.
13.Supreme Court action number 1831 of 2006 continue under that action number for assessment of damages.
CIV 2279 of 2009
1.Judgment be entered for the plaintiff against the first defendant for damages to be assessed if not agreed.
2.The first defendant do pay the plaintiff one‑third of the damages assessed or agreed.
3.A declaration be made that the first defendant is liable to indemnity the plaintiff as to one‑third, in respect of its liability to the sixth plaintiffs' claim for pure economic loss and the costs of that claim, in CIV 1312 of 2008.
4.The costs of the action be reserved.
5.The action be otherwise adjourned to a directions hearing on a date to be fixed by the court.
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