Grif-Air Helicopters Pty Ltd v Winkel

[1995] QCA 407

IN THE COURT OF APPEAL	[1995] QCA 407
SUPREME COURT OF QUEENSLAND

Appeal No. 188 of 1994

Brisbane

[Grif-Air Helicopters v. Winkel]

BETWEEN:

GRIF-AIR HELICOPTERS PTY LTD

(Plaintiff) Respondent

AND:

HARRY WINKEL

(Defendant) Appellant

Davies JA Moynihan J Ambrose J

Judgment delivered 01/09/1995

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	CIVIL LAW - NEGLIGENCE - whether it was open to the trial judge to find that the fuel warning light was defective.
CIVIL LAW - CONTRIBUTORY NEGLIGENCE - whether it was reasonable for the appellant to rely on the respondent's fuel consumption estimate - appellant's own experience with helicopter indicated the respondent's estimate was incorrect.
Counsel:	Mr P. Applegarth for the appellant Mr I. Malloy for the respondent
Solicitors:	Corrs Chambers Westgarth for the appellant S.R. Wallace and Wallace for the respondent

Hearing date:2 May 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 188 of 1994

Brisbane

Before Davies JA Moynihan J Ambrose J

[Grif-Air Helicopters v. Winkel]

BETWEEN:

GRIF-AIR HELICOPTERS PTY LTD

(Plaintiff) Respondent

AND:

HARRY WINKEL

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 01/09/1995

This is an appeal against the judgment of a District Court in favour of the

respondent for damage caused to the respondent's helicopter while it was under the control

of the appellant.

The learned trial judge found that at the time damage was caused to the

helicopter the appellant was in possession of it as bailee from the respondent and was

therefore obliged to take reasonable care of it. He found that the cause of the damage was

the fact that it crash landed because it ran out of fuel about half way between Cockenzie

Station and Hay Point as the appellant was flying it from Peak Downs to Hay Point near

Mackay.

The learned trial judge found that the appellant was negligent in failing to put

sufficient fuel in the helicopter while at Cockenzie Station to permit it to travel from there to

Hay Point.

The appellant contends that upon the evidence the learned trial judge should have

found that a low fuel warning light in the helicopter was defective and that was the cause

of the helicopter crash. It is contended that it was a condition of the contract of

hiring/bailment that the fuel warning light was in operative condition and that had it not been

defective it would have indicated to the appellant that the fuel was running low and he would

have then been able to land the helicopter safely.

The second ground of appeal argued was that the respondent should have been

found guilty of contributory negligence. The respondent's agent told the appellant that the

fuel consumption rate of the helicopter hired to him was 35 litres per hour. It is contended

that the actual fuel consumption was significantly greater than 35 litres per hour and that in

the circumstances the respondent's agent ought to have foreseen that the appellant would

rely upon that statement (which he did) - even if in the circumstances of the case it was

negligent for him to do so.

It was conceded on behalf of the appellant that he had been negligent, indeed,

grossly negligent in failing to put sufficient fuel in the helicopter at Cockenzie Station to

permit it to travel safely to Hay Point, but it was said that the respondent ought to have

foreseen such gross negligence which consequently did not "break the line of causation"

linking the negligent misstatement by the respondent's agent with the damage caused to

the helicopter when it crashed because it ran out of fuel.

The only evidence of the number of hours flown by the appellant on the day of the crash was his evidence. According to him before leaving Peak Downs to return to Hay Point, he had flown for a total of 2 hours 35 minutes from the time he left Hay Point upon his

trip. It was in the course of travel from Peak Downs back to Hay Point that the appellant

noticed that the low fuel warning light in the helicopter was flickering. He was then near

Cockenzie Station and immediately landed to investigate the warning light. In the course

of that investigation he discovered that there was very little fuel left in the fuel tank. He

thought that there may have been up to 5 litres left.

The learned trial judge found that by the time the appellant reached Cockenzie

Station he had on his own evidence been flying for just on 3 hours (180 minutes) since

leaving Hay Point that morning. The evidence disclosed that when the helicopter

commenced its journey it had a full fuel tank of 184 litres. The learned trial judge deduced

from this that accepting the appellant's evidence it was apparent to him when he landed at

Cockenzie Station that it had averaged a fuel consumption of about 1 litre per minute.

Upon his evidence the appellant did not attempt to measure the distance between

Cockenzie Station and Hay Point. His Honour concluded on the evidence (and this was

not challenged) that it would have taken about 43 minutes to fly from Cockenzie Station to

Hay Point if the helicopter was flown at the speed and in the manner in which it had been

flown earlier that day and had a petrol consumption demonstrated by the appellant's

evidence. His Honour found that it should have been obvious to a man with the appellant's

experience that he would need to add at the very least 43 litres of fuel "to the minuscule

amount still in the tank" before he attempted to take off from Cockenzie Station to fly to Hay

Point. His Honour commented:

"Indeed he ought to have added more to allow for the higher rate of consumption during ascent, any warming up necessary, and any deviation from a straight line route. In other words, for any reasonably foreseeable emergency, some 'reserve' fuel was also required."

It emerged from the evidence that at the most the appellant put 30 litres of fuel

into the helicopter fuel tank. His Honour then concluded:

"It then becomes readily apparent that when he took off from Cockenzie Station after warming up for, as he said, about a minute and a half, the helicopter was not carrying sufficient fuel to cover the distance the defendant was proposing to fly."

It emerged from the evidence that in fact just prior to the helicopter running out of

fuel and while flying over mountainous terrain it became clear that the appellant was running

out of daylight and would be unable to reach the airfield at Hay Point within the time he was

required to do so under relevant regulations. Therefore, some relatively short distance from

the site of the crash the appellant considered landing and indeed had discovered a

sugarcane field where he proposed to land when the helicopter ran out of fuel and crashed.

His Honour observed that:

"Coincidentally, the distance from Cockenzie Station to Inneston, where the helicopter crashed, is some 33 nautical miles in a direct line - so it may be said that consumption over that distance was consistent with the litre per minute for earlier that day if he had added 30 litres at the station."

Although the appellant gave evidence that he did not notice that the low fuel

warning light flickered prior to the helicopter running out of fuel, the learned trial judge said

that he was not persuaded that that warning light was defective or failed to function in the

vicinity of Inniston. Indeed, it seems clear that it had functioned half an hour earlier at

Cockenzie Station and this had led the appellant to procure an additional supply of fuel at

that station. It was open to the learned trial judge, in our view, to refuse to infer that the

warning light was defective merely because the appellant swore that he did not notice that

it was working. It is clear from his evidence that he was running out of daylight, and had

flown the helicopter over rough terrain looking for an area where he could safely land, when

he found the cane field where ultimately he crashed. He was in the course of landing the helicopter when it ran out of fuel. It was open to the learned trial judge to decline to infer

from a failure of the appellant to see the flickering fuel warning light operate that it was in

fact defective. In any event, it is clear from his evidence that until a very short time before

he observed a safe place to land he had been flying the helicopter over a range of

mountains and there is nothing to suggest that he could have safely landed the helicopter

at some suitable place in the period of five minutes or so that would have elapsed between

the first flickering of the warning light and the time when he reached the site of the crash,

during which time he would have had fuel left in the helicopter tank.

To the extent that the refusal of the learned trial judge to infer from the evidence

of the appellant that at any time material to the crash of the helicopter the fuel warning light

was defective involves making a finding of fact contrary to the appellant's evidence, we am

unpersuaded in the circumstances of this case that it is appropriate for this Court to

interfere. In this respect we refer to the observations of McHugh J in Abalos v. Australian

Postal Commission (1990) 171 CLR 167 at 178 where his Honour observed:

"Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v. Thomas [1947] AC 484 at 488."

In our view this is such a case and the first ground of appeal should fail.

The second point raised relates to alleged contributory negligence on the part of

the respondent's agent.

It emerged in the evidence that about 4 days prior to the day of the helicopter

crash in the course of "endorsement training" the respondent informed the appellant that

the helicopter which he later hired to him had a fuel consumption of 35 litres per hour.
Expert evidence was called to show that in fact the helicopter might consume up to 45 litres

per hour.

On the day the appellant hired the helicopter from the respondent he showed him

his flight plan for the use of the helicopter that day, although he did not ask him to check or

confirm its accuracy. The respondent said to the appellant "Yeah that's Okay. If you are

short of fuel you can always go to Moranbah" to which the appellant replied "Yeah well that's

a good idea".

It is quite clear on the material and indeed on the findings of the learned trial

judge that prior to the appellant taking off from Cockenzie Station to fly to Hay Point he was,

or ought to have been, well aware of what the fuel consumption of the helicopter was. It

may be that prior to discovering that the helicopter was almost out of fuel at Cockenzie

Station he could be regarded as still relying entirely on what the respondent's agent told

him about the fuel consumption of the helicopter - albeit on the whole of the evidence it

would have been negligent for him to do so. However that may be, it is abundantly clear

that from his experience with the helicopter on the day of the crash he was aware that on

average it had consumed fuel at the rate of about 1 litre per minute that day. It was, or

ought to have been clear to him that to fly from Cockenzie Station to Hay Point would take

him about 43 minutes. It is clear therefore that he needed more fuel than the maximum

amount he estimated he put in the fuel tank of the helicopter at Cockenzie Station before

he would have enough to fly from there to Hay Point. A great deal of evidence was called

to show that in fact the helicopter consumed fuel at a significantly greater rate than 35 litres

per hour. For whatever the reason it was, or ought to have been clear to the appellant that

he could not and certainly should not rely upon the statement of the respondent's agent some days before that the helicopter, at least the way it was being flown on the day of its

crash, consumed only 35 litres of fuel per hour.

Knowing the fuel consumption of the helicopter that day greatly exceeded 35

litres per hour from his experience with it that day, the appellant failed to put sufficient fuel

in it to travel from Cockenzie Station to Hay Point. In our view the action of the appellant

in the circumstances prevents the estimate of the respondent's agent given some days

before that the helicopter had a fuel consumption of 35 litres per hour from being an

operative cause of the crash which caused damage. We take this view without analysing

the detailed evidence on technical matters and assume for the purpose of its consideration

that the statement of the respondent's agent was negligent without finding it necessary to

make that determination.

In dealing with the matter of contributory negligence raised by the appellant, the

learned trial judge observed:

"But even were it a wilful or reckless misstatement, the fact remains that the defendant had the means of knowing at Cockenzie Station what the actual consumption had been in his hands and for his manner of flying and, on his evidence, he plainly gambled that he had taken on sufficient fuel to reach Hay Point which he foolishly thought was closer than it was, as a measurement of actual distance would have shown. There was no evidence to show that he could not have purchased as much fuel as he really needed at Cockenzie Station."

In our view the findings of the learned trial judge were open on the evidence if not

indeed unavoidable on it. The second ground of appeal based on the respondent's

contributory negligence should also fail.

We would dismiss the appeal.