Markey v Wansey

[2002] NSWCA 221

CITATION:	Markey v Wansey & Ors [2002] NSWCA 221
FILE NUMBER(S):	CA 40457/01
HEARING DATE(S):	28 May 2002
JUDGMENT DATE:	11 July 2002
PARTIES :	George Markey - Appellant Michael Berkeley Wansey - First Responent William Spence & Stephen Spence t/as Fixed & Rotary Wing Engineering - Second Respondents
JUDGMENT OF:	Sheller JA at 1; Stein JA at 2; Giles JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7736/97
LOWER COURT JUDICIAL OFFICER :	Phegan DCJ

COUNSEL:	S L Ferrier (Solr) - Appellant A M Gruzman - First Respondent
SOLICITORS:	Gayle Meredith Associates - Appellant Meyer Clapham, Canberra - First Respondent
CATCHWORDS:	NEGLIGENCE - aircraft suffered partial power failure - pilot able to regain airfield - lowered undercarriage for landing - whether negligent in doing so - whether doing so caused crash landing - depends on facts. ND.
DECISION:	(1) Appeal allowed; (2) Set aside the verdict and judgment for the first respondent against the appellant and in lieu thereof order that there be verdict and judgment for the appellant; (3) Set aside the order that the appellant pay the first respondent's costs of the action including reserved costs and in lieu thereof order that the first respondent pay those costs: (4) First respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified.

CA 40457/01
DC 7736/97

SHELLER JA
STEIN JA
GILES JA

Thursday 11 July 2002

MARKEY v WANSEY & ORS

Judgment

1 SHELLER JA: I agree with Giles JA.

2 STEIN JA: I agree with Giles JA.

3 GILES JA: Mr Michael Wansey owned a Fairey Firefly aircraft. Over some months in late 1987 Messrs William and Stephen Spence, who traded as Fixed & Rotary Wing Engineering, carried out engine repairs to the aircraft. On 5 December 1987 the aircraft suffered engine failure and crashed while being flown on a test flight by Mr George Markey. The aircraft was damaged beyond repair. Mr Wansey sued the Messrs Spence and Mr Markey, claiming the value of the aircraft.

4 The cause of the engine failure was disputed. It was found that it was because an oil supply to the valve trains and camshafts had been wrongly modified in the course of the 1987 repairs, so that the camshaft gears were starved of oil and overheated. One of the camshaft gears became sufficiently distorted that the camshaft serving one of the two banks of cylinders ceased to function. That rendered the bank of cylinders inoperative, bringing severe loss of power and, by automatic adjustments, over-rich fuel mixture in the other bank of cylinders. The over-rich fuel mixture in turn inhibited the other bank of cylinders from developing significant power. There was reference in the evidence to further distortion whereby the camshaft serving the other bank of cylinders then ceased to function. No finding was made that that occurred, but in the hearing of the appeal the respondent accepted that it did.

5 The Messrs Spence were held liable in contract and in negligence in relation to carrying out the engine repairs. They did not appeal. Mr Markey was held liable in negligence in relation to his flying of the aircraft after the engine failure. He appealed. The Messrs Spence were named as respondents in the appeal, but did not appear.

6 The engine failure occurred shortly after take-off from the airfield. After take-off Mr Markey made a 180 degree loop to the left in two 90 degree turns. He climbed to approximately 1500 feet. After he completed the second turn there was a partial loss of power. He immediately turned towards the airfield. He assessed that with partial power he could reach the runway. He lowered the aircraft’s undercarriage. There was what Mr Markey described as a further loss of power, the reason for what he experienced being disputed. He assessed that he could no longer reach the runway. He turned away from the airfield and crash landed in a cabbage patch.

7 The negligence found was that in lowering the undercarriage Mr Markey acted contrary to good practice and in contravention of the Pilot’s Notes for the aircraft. The lowering of the undercarriage was found to have been a contributing cause to the crash landing in the cabbage patch.

8 In my respectful opinion, neither the finding of negligence nor the finding as to causation can be supported.

Negligence

9 Mr Markey said that after he completed the second turn “[t]he engine started to run rough and I had a partial loss of power”. The power loss was manifested by a lessening in the climb performance of the aircraft, although all gauges in the cockpit remained in order and the engine revolutions remained about the same. (There would be a loss of power although the engine revolutions remained the same because the automatic adjustments included adjusting the pitch of the propeller to maintain revolutions with less drag.) Mr Markey immediately pushed the throttle wide open to see if he could get more power from the engine, but “[t]here was no result, the aircraft continued as it was”.

10 Mr Markey turned towards the airfield, because -

“I’ve got an engine, a possible engine failure here, I don’t know what I’ve got and the only seriously flat decent piece of ground to get this aeroplane back down safely is the airport”.

11 Mr Markey said that at that point that he “could get the aircraft back down”. At various times in his evidence he explained that he still had partial power, and that his assessment was that with the partial power he would be able to reach the far side of the airfield. He said that where he was going to land was nearer than the other side of the airfield, and that he had an “excess of availability” and could by appropriate action either turn and land on the main runway or, if he could not turn onto the main runway, land on the grass on the other side of it. He said, “[i]f I sustained the power that I still had and everything remained as it was I would easily be able to make the runway, so I lowered the undercarriage”.

12 Mr Markey’s evidence continued -

“Q. At the point where the wheels went down did something happen at that stage?
A. Yes.
Q. What was that?
A. The moment the wheels went down I got a further loss of power to where the power was not sustaining any – I had no useable power left and the aircraft started to descend rapidly now that’s --
Q. When you say you had no useable power – I’m sorry, did you say you had a full power loss?
A. No, well complete useable power loss, yes. The engine may – it was still turning, it may have been idling but an idling engine in an aeroplane is a stopped engine, it has the same effect.
Q. When you say it was still turning what was still turning, could you hear the engine?
A. The propeller, the propeller was still turning.
Q. But could you hear the engine turning?
A. I can’t remember. I was a bit busy.
Q. At that point, at the point in time where you’ve lowered the undercarriage and at the same time you’ve got the power loss, what did you then do?
A. I turned away from the airport because it was obvious I was not going to make it, I turned right.”

13 Mr Markey said that the loss of useable power and the lowering of the undercarriage occurred “almost simultaneously”. At other times in his evidence he said that there was “a partial loss of power, followed by a full loss of power”; that “the propellor was still turning but it was not producing the correct amount of power in the first instance and any useable power in the second instance”; and that there was “a partial engine failure” and when he lowered the undercarriage “seconds later the engine fully failed”. He described the further loss of power as “[t]he aircraft lost its forward momentum. It did what aeroplanes do when you shut the power down”, and said that the tachometer fell to a low reading.

14 When he turned away from the airfield Mr Markey raised the undercarriage, because “the aircraft is not going to make the runway so I can’t do a safe landing and all landings on terrain other than correct or decent landing fields must be made with the undercarriage up …”. The terrain to which he turned was slightly better than that in front of him.

15 The trial judge appears to have accepted Mr Markey’s account of the partial loss of power, and his assessment that with partial power he could still reach the runway. He nonetheless found that Mr Markey was negligent in lowering the undercarriage. His Honour said -

“In assessing the conduct of Mr Markey in his response to the emergency which he faced, I am acutely aware of the danger of judging with the benefit of hindsight errors made in the heat of the moment when allowance must be made for the acutely difficult situation facing the pilot. However, the decision to lower the undercarriage was not only contrary to good practice but in direct contravention of the procedures laid down in the Pilot’s Notes for Firefly 4, 5 and 6, AP2102 D, F and H (exhibit 2D8). Under Part IV ‘Emergencies’, paragraph 72 ‘Crash Landing Drill’, there is a section headed ‘Procedure’. Paragraph 3 of that section reads: ‘the undercarriage should be kept retracted’. When this section of the Pilot’s Notes was put to Mr Markey, he sought to discount its significance and defended his decision as one which was justified in the circumstances confronting him, notwithstanding the directed procedure.
Mr Holland in his submissions on behalf of the second defendant argued that the emergency crash landing drill did not need to be followed until there was a total power loss. This is not what the Pilot’s Notes say. The opening passage governing procedures, including the recommendation that the undercarriage should be kept retracted, are ‘in the event of engine failure necessitating crash landing’. There is no reference to total power loss and the words quoted apply to the situation facing Mr Markey when he made the decision to lower the undercarriage. His decision was therefore in contravention of the Pilot’s Notes which should have been followed in the absence of sufficiently extenuating circumstances to justify a failure to do so. It was an instance, to adopt Mr Gruzman’s words, of Mr Markey ‘making up his own rules and applying his own standards of airmanship’ to the operation of the aircraft. This was in defiance of directed procedures which could not be excused on the grounds of error under pressure … “.

16 This focussed on the Pilot’s Notes, although referring to good practice apparently as a separate matter.

17 The Pilot’s Notes were in effect a handbook for flying the aircraft. “Part IV Emergencies” included paragraphs for “Crash landing drill”, “Ditching drill” and “Parachute drill”. The paragraphs set out action to be taken before crash landing, ditching or jumping, and in the cases of crash landing drill and ditching drill a procedure to be followed and in the case of parachute drill methods of jumping. The crashing landing drill was prefaced, “In the event of engine failure necessitating crash landing …”, and the procedure included that the undercarriage “should be kept retracted”.

18 The trial judge considered that the partial loss of power was engine failure necessitating crash landing for the purposes of the Pilot’s Notes. I respectfully disagree. Accepting for present purposes that to Mr Markey the partial loss of power meant engine failure of some kind, the engine failure had to necessitate crash landing. On the evidence of Mr Markey, to the point when he lowered the undercarriage it did not. He considered that he could regain the airfield and land safely, either on the main runway or on the adjacent grass, and the trial judge appears to have accepted him in this respect. The landing would not be a crash landing.

19 Going beyond the Pilot’s Notes, it is not obvious why the decision to lower the undercarriage was contrary to good practice. Mr Markey assessed that he could safely reach the airfield and land, albeit with only partial power, and there was nothing in the evidence suggesting that in that event good practice required that he land with the undercarriage retracted.

20 The evidence was against either basis of negligence.

21 It was perhaps not put as explicitly to Mr Markey as it could have been, but he did not accept that by the Pilot’s Notes or otherwise he should not have lowered the undercarriage. Until the loss of useable power he considered that he would be able to make a conventional landing with the undercarriage down, and that landing with the undercarriage up was for “terrain other than correct or decent landing fields”. Perhaps more significantly Mr Dafydd Llewellyn, a highly experienced aeronautical engineer and test pilot, said as to a power loss leaving “every possibility” of the aircraft that getting back to the airfield that he would turn towards the airfield and make preparations for landing, including lowering the undercarriage: he said that what Mr Markey did was normal procedure and “quite sound airmanship”. Both Mr Markey and Mr Llewellyn acknowledged that lowering the undercarriage would increase the drag and cause the aircraft to descend more rapidly. Mr Markey’s assessment was that he had enough in hand for that consequence, Mr Llewellyn’s calculated reconstruction came to that conclusion, and both said that it was appropriate to lower the undercarriage at the time Mr Markey did so that there was one less thing to do when approaching and landing at the airfield.

22 There was no aeronautical evidence to the contrary of Mr Markey’s conduct or Mr Llewellyn’s opinion. On behalf of Mr Wansey it was submitted that Mr Markey did not know whether the partial loss of power would become a loss of all useful power, as it in fact did, and so should have acted with a view to a crash landing. In my view, however, it was not shown that Mr Markey acted unreasonably in endeavouring to return to the airfield, with the power which remained after the partial loss of power, for a landing with the undercarriage down. On Mr Llewellyn’s evidence he acted properly in that respect, and there was effectively no contrary evidence. If there were a further loss of power, whereby a crash landing was necessitated, then further appropriate action could be taken. That is what happened.

(b) Causation

23 The alternative suggested cause of the engine failure was a rupture of the fuel injection pump diaphram. Mr Llewellyn initially favoured that alternative because he thought that the two stage loss of power described by Mr Markey was inconsistent with camshaft failure, but came to accept that there could be consistency – hence the reference to a second camshaft failure. When considering the cause of the engine failure the trial judge said -

“Apart from the possibility that a two stage power loss might be consistent with either of the hypotheses another, intervening factor which was independent of either mechanical cause was the decision of Mr Markey to lower the undercarriage after he had turned the aircraft towards the airfield following the initial loss of power. On both Mr Markey’s own oral evidence and from the observations of Mr Arnot in his statement taken by Ms Goodwin, it was immediately after the undercarriage had been lowered that the second power loss was experienced. The lowering of the undercarriage would itself have had the effect of slowing the aircraft down, particularly if the engine had already failed. If account is taken of the effect of the lowering of the undercarriage there may never have been a two stage loss of power attributable to the engine failure itself.
Mr Arnot’s observation of a faint trail of smoke before the aircraft turned, but which subsequently increased, has to be carefully weighed against both Mr Shipway’s evidence of the possible illusion created by continuing emission of smoke once the aircraft was heading towards the observer and Mr Dickinson’s much more acute observation of the combination of white trails and heavy black smoke on the left hand side of the aircraft. I am satisfied that at the very least the evidence of the progressive loss of power and the observations of smoke do not support the Llewellyn hypothesis any more than the Shipway hypothesis.”

24 When considering Mr Markey’s liability the trial judge returned to the relationship between the two stage loss of power and the lowering of the undercarriage. He said that Mr Llewelyn’s report accepted a version of events which included the failure of the second camshaft and a resulting substantial loss of power concurrent with, or immediately following, the lowering of the undercarriage. His Honour continued -

“This is an assumption which is not supported by the evidence. The only conclusion which can be confidently drawn from the evidence as a whole, including that from eye witnesses such as Mr Kruger and Mr Dickinson, is that the aircraft noticeably increased its rate of descent after the undercarriage had been lowered. Even Mr Markey in his description does not identify a separate cause of power loss when he says ‘the moment the wheels went down I got a further loss of power’. As noted earlier in the judgment there was ample evidence to support the conclusion that the lowering of the undercarriage itself would have directly contributed to a sense of power loss and caused the aircraft to increase its rate of dissent [sic: descent]. I am satisfied that this is what occurred and the lowering of the undercarriage, therefore, was a contributing factor in causing Mr Markey to decide that, at that point, he could no longer be confident of reaching the airfield, as he had been before the undercarriage was lowered.”

25 His Honour later said that Mr Markey’s negligence as found was “a contributing cause in the forced landing in the cabbage patch” because “Mr Markey’s decision to bring the aircraft down in the cabbage patch rather than continue with the original intention of getting the aircraft back to the airfield was a direct consequence of the effect of the lowering of the undercarriage”.

26 There had been what Mr Markey described as a further loss of power, with the other descriptions to which I have referred. It was necessary to find whether the reason for what Mr Markey experienced was at least in part a loss of all useful power, as he said, or was wholly the increased drag coming when the undercarriage was lowered. The finding was necessary because it had to be asked whether a crash landing would have occurred notwithstanding that the undercarriage had been lowered, so that while there was increased drag from the lowering of the undercarriage Mr Markey would not have been able to regain the airfield even if he had kept the undercarriage up.

27 With respect, the trial judge did not make the necessary finding. His Honour was alive to whether there was a second loss of power. He did not find whether there was or was not a second loss of power. He said that “the only conclusion which can confidently be drawn from the evidence as a whole” was “that the aircraft noticeably increased its rate of descent after the undercarriage had been lowered”. This was consistent with a second loss of power, and contrary to what his Honour then said Mr Markey had clearly identified a separate cause of power loss, in particular in the tachometer falling to a low reading. And his Honour said that the increased rate of descent of the aircraft was contributed to by the lowering of the undercarriage, as it no doubt was, without considering whether a second loss of power also brought the increased rate of descent and whether for that reason Mr Markey would not have been able to regain the airfield even if he had kept the undercarriage up.

28 It was for the respondent to establish causation, that is, that lowering the undercarriage on a common sense approach to causation caused the crash landing in the cabbage patch. I do not think that he did so.

Orders

29 I propose the orders -

1. Appeal allowed.

2. Set aside the verdict and judgment for the first respondent against the appellant and in lieu thereof order that there be verdict and judgment for the appellant.

3. Set aside the order that the appellant pay the first respondent’s costs of the action including reserved costs and in lieu thereof order that the first respondent pay those costs.

4. First respondent pay the appellant’s costs of the appeal and have a certificate under the Suitors Fund Act if qualified.

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