Mickelberg v Aerodata Holdings Ltd - [2000] WADC 324

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MICKELBERG -v- AERODATA HOLDINGS LTD & ANOR [2000] WADC 324

CORAM: O'BRIEN DCJ

HEARD: 20 OCTOBER-3 NOVEMBER 2000

DELIVERED : 12 DECEMBER 2000

FILE NO/S: CIV 931 of 1987

BETWEEN: FAYE SUSANNE KIMM MICKELBERG
Plaintiff
AND
AERODATA HOLDINGS LTD
First Defendant
AGRICULTURAL & GENERAL AVIATION PTY LTD
Second Defendant

Catchwords:

Aircraft accident - Insufficient fuel was cause of accident - Fault in the fuel indicating system - Claim by wife of deceased pilot under Fatal Accidents Act 1959 - Claim in negligence against deceased's employer, inter alia, for failure to ensure safe system of work - Alternative claim in negligence against maintenance organisation which serviced the aircraft for certifying aircraft was serviceable - Alternative claim against each respondent for breach of statutory duty under Air Navigation Act 1920 and Air Navigation Regulations - Whether breach of statutory duty as claimed a valid cause of action - Whether contributory negligence on part of deceased

Legislation:

Fatal Accidents Act 1959

Air Navigation Act 1920

Air Navigation Regulations

Result:

Claim against each respondent dismissed

Representation:

Counsel:

Plaintiff:     Mr G H Lawton
First Defendant             :     Mr M W Schwikkard
Second Defendant         :     Mr R J L McCormack

Solicitors:

Plaintiff:     Lawton Gillon
First Defendant             :     McAuliffe Schwikkard
Second Defendant         :     Andrew Maughan

Case(s) referred to in judgment(s):

Badham v Lambs Ltd [1946] 1 KB 45
Biddle v Truvox Engineering Co Ltd [1952] 1 KB 101
Clarke v Brims [1947] 1 KB 497
Cutler v Wadsworth Stadium Ltd [1949] AC 398
Darling Island Stevedoring & Litterage Company Ltd v Long (1956‑1957) 97 CLR 36
Dominion Airlines Ltd (in liq) v Strand [1933] NZLR 1
Hamilton v Nuroof (WA) Pty Ltd 96 CLR 18
Hesketh v Liverpool Corporation (1940) 4 All ER 429
Kondis v State Transport Authority (1984) 58 ALJR 531
Martin v Queensland Airlines Pty Ltd [1956] StRQd 362
O'Connor v SP Bray Ltd (1937) 56 CLR 464
Phillips v Britannia Laundry Co Ltd [1923] 2 KB 832
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Square v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365
Stevens v Brodribb Sawmilling Co Pty Ltd 160 CLR 16

Case(s) also cited:

Australia's New Regime of Aviation Regulation (1996) 3 AJAdminL 215
Davis & Anor v Scott & Ors (1998) 71 SASR 361
Dominion Airlines Ltd v Strand [1933] GLR 22
Dromorne Linen Co Ltd v Ward [1963] NZLR 614
Maceachern & Ors v Pukekohe Borough [1965] NZLR 330
Paris v Stepney Council (1951) AC 367
Scott v Davis & Davis (1997) 194 LSJS 338
The Public Trustee & Ors v The Commonwealth of Australia, unreported; SCt of NSW; 10962/85; BC9402634; 8 June 1994
The Public Trustee & Ors v The Commonwealth of Australia, unreported; NSWCA; 40397/94; BC9506816; 20 December 1995

O'BRIEN DCJ:

Introduction

On 27 February 1986, at approximately 9.37 am, a Rockwell Aero Commander Shrike aircraft VH‑SDO ("SDO") crashed near the Canning Dam. It had taken off from Jandakot Airport earlier that morning. The pilot, Brian Mickelberg and a passenger were killed. Another passenger was injured. Mr Mickelberg ("the deceased") was employed by Aerodata Holdings Pty Ltd ("Aerodata"). SDO was leased to Aerodata.
The deceased's widow, Faye Susanne Kimm Mickelberg ("the plaintiff") seeks damages for herself and her daughter as the deceased's dependants pursuant to the Fatal Accidents Act 1959. The plaintiff alleges negligence and breach of statutory duty against Aerodata and Agricultural & General Aviation Pty Ltd ("AGA"), a company which serviced SDO. In their defence, both Aerodata and AGA allege contributory negligence on the part of Mr Mickelberg.
After the accident, the Coroner conducted an enquiry and found that the crash occurred after the engines had stopped because all useable fuel on board SDO had been exhausted. There is no dispute this was the cause of the accident.
Following the accident, an investigation was carried out by Mr Theodore, a safety investigator, from the Bureau of Air Safety Investigation ("BASI"). This investigation revealed, inter alia, that SDO's main fuel gauge suffered an intermittent fault which could cause the gauge to read higher than it should. Mr Theodore's report to the coroner referred to two faults in the sender unit. He was of the view that the problem encountered with the gauge readings was intermittent and the gauge could have been working normally on occasions. SDO's computerised fuel flow system ("the Hoskins system") was also unserviceable.
Essentially, the plaintiff's claim against AGA in negligence alleges that AGA issued a maintenance release on or about 21 February 1986 which stated that SDO was fully serviceable (in fact, the maintenance release did not so state but that was the effect of it). It is claimed that "contrary to the maintenance release [SDO] was not serviceable in that the main fuel gauging system and the computerised fuel management system were unserviceable". The particulars of negligence are numerous and include claims that Aerodata breached its duty of care as the deceased's employer to ensure that the aircraft was in serviceable condition and that there was sufficient fuel in the aircraft; failed to employ competent contractors to properly maintain and repair the aircraft; failed to have a system in place to ensure proper maintenance releases were issued with certain information; failed to warn the deceased not to fly if the aircraft was unairworthy or defective.
In the alternative, the plaintiff alleges that the deceased's death was caused by the negligence of AGA. The plaintiff's claim in negligence against AGA relates essentially to the issue of the maintenance release which in effect certified that aircraft was in serviceable condition when it was not.
Essentially, the plaintiff's claim in negligence boiled down to the claim that the maintenance release issued on 21 February 1986 should not have been issued because the fault in the fuel gauge had not been rectified and that the deceased flew SDO relying on the effect of the maintenance release that the aircraft was in serviceable condition. In other words, and as the case was argued, that he flew the aircraft in the belief that the faulty fuel gauge had been repaired and relied on the fuel gauge to ascertain the amount of useable fuel in the aircraft.
In the alternative to the claim in negligence against Aerodata and AGA, the plaintiff claims that each was in breach of its statutory duty. The relevant legislation is the Air Navigation Act 1920 ("the Act), the Air Navigation Regulations ("ANR") and the Air Navigation Orders of the Director General of Civil Aviation of the Commonwealth of Australia ("ANO"). The breach of statutory duty alleged against Aerodata relates to its failure to ensure that the aircraft was safe to operate (ANO 82) and that it had sufficient fuel for the intended flight (ANO 226). The breach of statutory duty claimed against AGA relates to the breach of its duty "not to sign a maintenance release relating to the aircraft if it considered that the aircraft was in a damaged condition or defective and that he (sic) considered that the defect was major and not a permissible serviceability" (ANR 48(12)).
The plaintiff, who was born on 29 October 1947, claims that she was fully dependent on the deceased at the time of his death. Her daughter, Paula Mickelberg, was born on 8 March 1969 and was a minor at the time of the deceased's death and it is claimed that she was also fully dependent upon him at the time of his death.

The legal principles

The parties are in agreement as to the legal principles to be applied in this case, apart from those applicable to breach of statutory duty. The burden is on the plaintiff to prove both negligence and breach of statutory duty. The defendants bear the burden of proving contributory negligence. The standard of proof in each case is proof on the balance of probabilities.
I shall briefly outline the law in relation to the duty of care. The High Court has set out a model for determining claims of negligence (Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 per Kirby J at 475 ‑ 476). The relevant standard questions which a court must pose and answer are these:
1.Is a duty of care established?
2.If so, what is the measure or scope of that duty in the circumstances?
3.Has it been proved that the defendant is in breach of the duty so defined?
4.If so, was the breach the cause for the plaintiff's damage?
5.Has contributory negligence on the part of the plaintiff been proved and, if so, with what consequences?
There is no dispute that Aerodata, as the deceased's employer, owed him a duty to take reasonable care for his safety (Hamilton v Nuroof (WA) Pty Ltd 96 CLR 18). "The most important example is probably the duty of care of an employer at common law to provide adequate plant and equipment, a safe place of work and a safe system of work for [its] employees" (Stevens v Brodribb Sawmilling Co Pty Ltd 160 CLR 16 per Wilson and Dawson JJ at 44).
The duty of care is ordinarily of a non-delegable nature (Kondis v State Transport Authority (1984) 58 ALJR 531). However, an employer is entitled to delegate certain functions or tasks, which it either cannot do because it falls outside the sphere of expertise or nature of business conducted by the employer, or as in the present case, the employer is under a statutory or regulatory duty to engage a LMO under the Act and ANRs. The duty is delegable to the extent that the employer has no control over the activities of the independent contractor and has no knowledge or cannot be expected to have any knowledge of such work that is delegated to the independent contractor (Kondis; Stevens v Brodribb (supra)). However, if an employee is injured by an unsafe system of work, it matters not whether the unsafety of the system is immediately due to the conduct of an employee or to the conduct of an independent contractor engaged by the employer. The liability of the employer is a direct and personal one. An exception is where the employee who is injured has been wholly responsible for the unsafe system and there is no independent fault whatsoever on the part of the employer. It is submitted on behalf of the plaintiff that this is not the case in the plaintiff's action because:
(a)The deceased was not the person wholly responsible for the system either as a matter of fact, or as a matter of law; and
(b)There was independent fault on the part of the employer's sub‑contractor, both by virtue of its general negligence and also by virtue of its breach of statutory duty.
AGA does not dispute that it owed a duty of care to Aerodata (and therefore to its pilots) to carry out its maintenance on Aerodata's aircraft in a competent manner. Nor does it dispute that in issuing a maintenance release (through its chief engineer) that it owed a duty of care to ensure that the maintenance items, or any faults noted thereon, had been carried out or rectified.

Breach of statutory duty

The plaintiff pleads that Aerodata had a non delegable statutory duty to ensure that SDO was safe to operate (ANO 82) and to ensure that SDO had sufficient fuel for the intended flight (ANR 226) and that it was in breach of those duties.
ANO 82 appendix 1.1.1 provides as follows:
"The Chief Pilot and the operator shall be jointly responsible to the Secretary for the safety of all commercial operations carried out by the operator."
ANR 226 provides:
"An aircraft shall not commence a flight within Australian territory or to or from Australian territory if the quantity of fuel and oil on board is less than the quantity which the Secretary, having regard to the circumstances of the proposed flight and the safety of the aircraft, considers necessary and directs."
For reasons outlined below, I find that Aerodata took all reasonable steps to ensure that SDO was safe to operate. In the context of this case those steps related to the repair of the fuel gauge. Further, I find that the obligation to ensure that there was sufficient fuel in SDO was that of the pilot in command, namely the deceased. Factually, therefore, there is no merit in respect of this aspect of the claim.
Insofar as AGA is concerned, the plaintiff pleads that by virtue of the Act and ANR 48(12), AGA had a statutory duty not to sign a maintenance release relating to SDO if it considered that it was in a damaged condition or defective and that it considered that the defect was major and was not a permissible "serviceability" (sic). The breach is alleged to be the signing of the maintenance release.
By ANR 48(12), a person shall not sign a maintenance release to be issued in respect of an aircraft if he considers the aircraft is in damaged condition or defective and he considers that the defect is a major defect and the defect is not a permissible unserviceability. It is claimed that Mr Truscott, as an employee of AGA, signed a maintenance release on 22 February 1986 in breach of ANR 48(12).
Again for reasons outlined below, I find that Mr Truscott did not consider SDO to be in a damaged condition or to have a major defect. In other words, he did not know that the fuel gauge was faulty when he signed the maintenance release.
The Act authorises the making of regulations. Section 26(1) provides:
"The Governor General may make regulations, not inconsistent with this Act:
(a)Prescribing all matters which by this Act are required or permitted to be prescribed but which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Section 26(2) of the Act outlines a non-exhaustive list relating to the type of regulations that may be made. These include -
(i)requiring persons performing specified functions in relation to the operation or maintenance of aircraft to be the holders of licences or certificates of specified kinds, and providing for the grant, cancellation, suspension or variation of such licences and certificates (Section 26(2)(b));
(ii)empowering the Secretary, or an officer thereunto authorised by the Secretary, to give or issue directions or instructions to all or any of the persons holding licences or certificates under the Act or the regulations, being directions or instructions with respect to matters affecting the safe navigation and operation, or the maintenance, of aircraft, and providing for the manner in which such directions and instructions are to be noted by (Section 26(2)(h));
(iii)the formal proof and authentication of instruments made or issued under the Act or regulations (Section 26(2)(i))."
The regulations authorise the making of orders (ANR 8(1)).
Darling Island Stevedoring & Litterage Company Ltd v Long (1956 ‑ 1957) 97 CLR 36 is authority for the proposition that breach of a regulation, if the regulation is within the ambit of the Act, is a breach of statutory duty:
"It is impossible to limit this principle to duties created by statutes. It must apply equally to regulations made under the authority of statutes where the delegate is authorised to make regulations relating to such a subject matter. The regulation if valid must create the same correlative civil right as the same provision in the statute would create unless the delegate is expressly confined by the statute to make regulations which can only be enforced and in a particular manner." (per Williams J at pp 49 ‑ 50).
Each of Aerodata and AGA submits that no cause of action lies the breach of statutory duty under the Act. They rely on the decision of Martin v Queensland Airlines Pty Ltd [1956] StRQd 362. My findings of fact in relation to the actions of Aerodata or AGA do not support the claims of breach of statutory duty even if such a cause of action were open. It is, therefore, not strictly necessary for me to consider whether there is, as a matter of law, a cause of action against each of the defendants for breach of statutory duty.
Counsel were unable to point to any recent decisions involving breach of the Act. Counsel for the plaintiff submits that Martin is distinguishable in that the Act and the ANRs, as they now exist, have "little in common" as those which existed when Martin was decided.
The question posed by the Full Court of Queensland in Martin was this:
"Has the Legislature in creating statutory duties by the provisions of the Air Navigation Regulations given to any person who suffers damage in consequence of the breach of the Regulations, a right of action against a person guilty of the breach of duty to recover compensation for the damage resulting from the breach, or is the recovery of the statutory penalty provided for the breach of the Regulations the only remedy available?" (at pp 370 ‑ 371).
The judgment of the Full Court delivered by Macrossan CJ decided the question in the negative. The court considered and applied a number of English cases including Phillips v Britannia Laundry Co Ltd [1923] 2 KB 832; Badham v Lambs Ltd [1946] 1 KB 45; Biddle v Truvox Engineering Co Ltd [1952] 1 KB 101; Clarke v Brims [1947] 1 KB 497; Square v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365; Cutler v Wadsworth Stadium Ltd [1949] AC 398.
The court also considered the cases of Dominion Airlines Ltd (in liq) v Strand [1933] NZLR 1 and Hesketh v Liverpool Corporation (1940) 4 All ER 429 that but distinguished them.
The plaintiff cites the High Court decisions of O'Connor v SP Bray Ltd (1937) 56 CLR 464; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; and Darling Island Stevedoring (supra) as outlining the principles relevant to statutory liability. The defendants did not challenge those general principles but relied squarely on the decision of Martin. These High Court cases make it clear that the Act under consideration must be considered on its merits and that criminal sanctions do not mean that there is no civil liability for breach of the Act.
The plaintiff relies on the changed nature of the Act and ANRs which it is said are now pre-occupied with issues of safety. The Act, ANRs and ANOs provide for the provision of safety and the use of aerodromes, the licensing of air service operations, the maintenance of aircraft, accident and incident enquiry and aviation security. I accept the submission by the plaintiff that the Act, ANRs and ANOs are clearly designed to ensure, as far as possible, the safety of aircraft users.
The general principle which emerges from these cases is that where a statute (or subordinate legislation) provides for a criminal sanction for breach of its provisions, the breach is a public wrong and there is no individual right of action. A criminal sanction emphasises the statutory obligation is imposed for the benefit of the public and that breach of it is a public and not a private wrong (Cutler v Wadsworth Stadium Ltd[1949] AC 398 per Lord Simonds at 408). The fact that since that decision there had been a huge increase in air traffic and safety considerations are even more prescribed serves to emphasise the public duty element. In my view, this diminishes the force of an argument that a particular individual whether that person is a pilot or a passenger has an individual cause of action. In the absence of any recent authoritative decision to the contrary, I hold myself to be bound by the Martin decision.

Witnesses

In this judgment, I refer to the evidence of expert witnesses called by the respective parties. I do not refer to their evidence in any detail as there was little variation in their opinions as to the fundamentally relevant issues in this case. However, I shall briefly identify those expert witnesses and outline their respective qualifications.
The plaintiff called Mr Timothy Boase as an expert witness. Mr Boase is the chief pilot and aviation manager at Channel 7. He has held that position for 16 years. He has a fixed wing and helicopter license and has accumulated 3900 flying hours. The plaintiff also called Mr Paul Douglas Lyons. Mr Lyons is the managing director of his own aviation company. He has been flying since 1966 and has accumulated 8000 hours flying time and is familiar with aero commander aircraft. Mr Michael Robert Macaulay also testified on behalf of the plaintiff. He has had extensive flying experience both with the United States and Australian navy and has flown commercially since 1975. He was a foundation director of Aerodata, has run his own charter company and has been employed in the role of chief pilot.

Mr David Frederick Gibson testified on behalf of Aerodata. Mr Gibson has in excess of 35 years flying experience. He obtained his commercial pilot's license in 1966. He has over 20,000 recorded flying hours and has held the position of chief pilot on a number of occasions with a number of operators.
AGA's witnesses included Hilton Richard Wilson who has been a qualified LAME since 1960. He has had experience with fixed wing aircraft since 1955 and is familiar with the aero commander.
Many of the witnesses had provided a statement to the police investigating on behalf of the coroner and had testified at the inquest. Those statements and the transcripts of their evidence at the inquest were tendered in evidence at this trial.
Mr Theodore is deceased but his accident reports and transcript of coronial evidence were in evidence.

Brian Mickelberg

The deceased was employed by Aerodata as its chief pilot. Aerodata had a fleet of aircraft and was in the business supplying airborne geophysical services to mining and oil companies and to government.
The deceased was appointed by Aerodata's managing director, Mr Cunneen, on 1 July 1985. Final approval was advised by the then Department of Aviation ("the department") under ONO 82 on 16 September 1985. The deceased was appointed initially on a casual basis to give Aerodata international flight experience of a higher order than was present in the available staff. At the time Aerodata was beginning to expand its operations off shore. The deceased provided a report to Mr Cunneen about the deficiencies in the company and he was asked to become chief pilot to remedy those deficiencies. Thereafter, the deceased was engaged to perform the statutory duties of chief pilot, flight testing and checking and to direct the operational procedures of the more junior pilots. He was also to operate as a survey pilot himself.
As well as chief pilot, the deceased was the maintenance coordinator for Aerodata. His duties in this regard were to maintain quality control of the maintenance of Aerodata's fleet. The deceased had authority to source parts and to rebuild SDO. He also had the authority to check the cost of parts installed by AGA in the aircraft on an audit basis. He did not have the right nor the authority to interfere with the process of AGA's maintenance of the aircraft.
The deceased was a qualified helicopter pilot. When he accepted the position of chief pilot with Aerodata, it was understood that he wanted to obtain a position flying helicopters. Ironically, the day before the fatal accident, the deceased had been offered a position flying helicopters in Papua New Guinea and had resigned from Aerodata.
The witnesses asked about their personal knowledge of his ability as a pilot or of his reputation all testified as to his competence and experience. He was described professional, competent and careful in matters of safety and this seemed to be his general reputation. Mr Cunneen stated that the deceased's "universally held" reputation was as a "professional and meticulous pilot".

The relevant statutory regime

Findings of fact in this matter must be made in the context of the relevant statutory regime applicable to the role of the chief pilot, pilots in command, air operations, aircraft flights and maintenance.
A person nominated by an operator to be chief pilot must be approved by the department and meet the requirements specified in the ANRs. These requirements include minimum flying hours in certain aircraft, specified instrument ratings and passing certain examinations conducted by the department. The chief pilot has mandatory statutory duties and responsibilities as prescribed by ANO 82.0, specifically in appendix 1 of that order. The chief pilot and the operator shall be jointly responsible to the secretary for the safety of all commercial operations carried out by the operator (appendix 1.1). As well, the chief pilot shall have the control of all flight crew training and operational matters affecting the safety of flying operations (appendix 1.2). The responsibilities of the chief pilot include "ensuring that all company air operations are conducted in compliance with the ANRs and ANOs" (appendix 1.3(a)).
An aircraft shall not commence a flight unless evidence has been furnished to the pilot in command and he has taken such action as is necessary to ensure that "the fuel supplies are adequate for the particular trip and the required reserves of fuel are carried" (ANR 225(d)). Further, an aircraft shall not commence a flight if the quantity of fuel is less that the quantity which the secretary of the department ("secretary") has directed, having regard to the circumstances of proposed flight and safety of the aircraft (ANR 226). The statutory reserve applicable for SDO at the relevant time was fuel sufficient for 45 minutes flight time. The operations manual of the operator must include specific instructions for the computation of the quantities of fuel to be carried on each route, having regard to all the circumstances of the operation including the possibility of engine failure (ANR 216(1)). ANR 216(2) requires the operator to maintain a record of fuel remaining in the tanks at the end of each scheduled flight and shall review continuously the adequacy of the instructions in respect of the fuel to be carried in light of that record.
Aerodata's fuel record was a weekly flight log which recorded details of the flights made on a daily basis including details of the "on line" or survey hours, all other flight hours, the line kilometres flown on survey and the useable fuel at take off. As well, pilots had their individual flight logs which recorded their own flight hours and details of the routes taken. A document described as a "scratch pad" was also used to record flight details and fuel consumption. As well, the maintenance release (see below) recorded the daily total of flying hours. The evidence was to the effect that the maintenance release was not a useful document to calculate useable fuel as a great deal of cross checking would need to be done to get an accurate estimate. Ground running, take off and taxi times were not noted on the maintenance release. This appeared to have been routine and unremarkable. Only one witness considered that noting ground running time on the maintenance release was "the most sensible and logical thing to do". There was no evidence that these times were noted on any other document.
Aerodata's operation manual specified the minimum documentation to be carried in the aircraft to include the flight manual, the operations manual, current maintenance release and the aircraft weekly log.
The pilot in command "means the pilot responsible for the operation or safety of the aircraft during" flight (s 3 of the Act).

The aircraft - SDO

SDO was a twin engine aircraft. The main fuel indication instrument on SDO was a fuel gauge which indicated the amount of fuel in the tanks by reference to 20 gallon markers. References are to US gallons. The conversion rate according to Aerodata's operation manual is 3.78541 litres to each gallon. This is the measure I have used for the calculations made later in this judgment. The maximum reading on the fuel gauge was 135 gallons. The main fuel tank actually held 156 gallons. That meant that the fuel gauge would register as full until such time as the fuel dropped below 135 gallons.
There was also a computerised fuel indication system ("the Hoskins system"). This was dependent on data programmed into it. The Hoskins system was unserviceable in that it only related to one engine. As the trial progressed, it was conceded that there was no evidence that any pilot including the deceased relied on it to calculate useable fuel. However, it is submitted on behalf of the plaintiff that as the fuel gauge was faulty when the deceased flew SDO on 27 February and assuming that he miscalculated useable fuel in the aircraft, the Hoskins system was the only back up fuel checking system available. All the evidence pointed to the Hoskins system being a non-essential instrument (an "add on" instrument) and all Aerodata pilots knew that it was unserviceable. There was no evidence which indicated that, given those circumstances, there had been any delay or failing to make it serviceable.
In any event, the usefulness and accuracy of the Hoskins system as a fuel indicator was dependent on the accuracy of the data entry. It is conceded that the deceased must have miscalculated the amount of useable fuel which is done by reference to previous flying time and fuel consumption. For reasons outlined later in this decision, I find that either the deceased miscalculated the amount of useable fuel or did not perform any calculation. Therefore, even if the Hoskins system had been working and even if the deceased had used it, it is highly likely that any data entered by him would have given an inaccurate indication of the useable fuel. I therefore do not consider that the unserviceability of the Hoskins system is relevant to the plaintiff's claim and do not intend to consider in any more detail the deal of evidence relating to it.
The main fuel tank system was located on the right hand side of SDO between the right engine and the fuselage. A reserve tank was located on each wing about 2 metres from each engine. The reserve or auxiliary tanks held a total of 67 gallons (253.7 litres). In Aerodata's operations manual there is reference to a "boot tank" which is said to hold 35 gallons. There was no evidence as to this tank during the trial.
A visual inspection of the contents of the fuel tank would enable fuel to be sighted if the tank was filled to within 14 litres of capacity. Otherwise, due to the configuration of the tank, fuel could not be seen. Again, because of the design of the fuel tank, it could not be "dipped" to ascertain the fuel content of the tank.

Maintenance

Maintenance on SDO was carried out by a licensed aircraft maintenance engineer ("LAME") employed by a licensed maintenance organisation ("LMO"). The licensing was done by the department. For all relevant purposes in this case, Mr Truscott, an employee of AGA, was the chief engineer. Aerodata's operations manual directed that the "decision of the Chief Engineer regarding serviceability of the Company's aircraft shall be final and binding." (3.3.1).
SDO underwent maintenance after every 120 hours flying time. Dispensation had been given to extend the flying time from 100 to 120 hours before the mandatory service. Pursuant to the ANR 48(6)(a), a maintenance release was required in every aircraft. This document is issued by the chief engineer and has an expiry date which is set by reference to either a date or the number of flying hours the aircraft does, whichever comes earlier. It is a very important document. It is illegal to fly an aircraft after the 120 hour service without a clear maintenance release. A maintenance release can only be issued by the chief engineer. The chief engineer notes what is required by way of maintenance on the maintenance release; for example, the time when an oil change is due. Each of the pilot in command of the aircraft, the chief pilot and the chief engineer can note faults or potential faults on the maintenance release. These are referred to as "snags" and are noted in the "endorsements" section of the maintenance release.
ANR 49F requires the owner, operator or flight crew member aware of the existence of a defect in the aircraft to enter and sign an endorsement on the maintenance release setting out the particulars of the defect. Pursuant to ANR 49C1(a)(ii), where a "major defect" (non‑permissible unserviceability) exists, it must be entered on the maintenance release, stating that the aircraft is unairworthy, whereupon the maintenance release ceases to be in force. The maintenance release is re-instituted if maintenance of the defect occurs, that is, if the defect is rectified (ANR 49D).
Some faults are classified as "permissible unserviceabilities". That is, the fault is of a nature that does not require it to be rectified before the aircraft is flown again. The secretary can specify time limits and other conditions which apply to particular faults of this kind within which the fault must be rectified or otherwise dealt with (ANR 42). Other faults are referred to as "non-permissible unserviceabilities". A list of permissible unserviceabilities can be lodged with the department. The manufacturer, the engineer, the maintenance organisation can list non‑permissible unserviceabilities which, if they exist, ground the aircraft.
It is not in dispute that a faulty fuel gauge was a non‑permissible unserviceability. Thus the aircraft should not be flown with a faulty fuel gauge until the fault is rectified by a LAME qualified to deal with that type of fault. Once the non-permissible unserviceability is fixed, the LAME must "clear" it by signing next to the noted fault in the "certification clearing endorsement" section of the maintenance release. When this is done, pilots are entitled to assume that the fault has been rectified and that it is legal to fly the aircraft, that is, that the aircraft is serviceable. Only engineers who are licensed to work on the particular category of fault can certify the endorsement as cleared (ANR 44(2)).
The maintenance release is a direct communication between the chief engineer and the pilot and from one pilot to another. It alerts pilots to any fault or potential faults in the aircraft. This is especially important if there is no verbal hand over of the aircraft from one pilot to another.
All the relevant maintenance releases in this matter were issued by Mr Truscott who was the chief engineer at the time.
After the 120 hour service, the chief engineer issues the clear maintenance release. The first pilot to fly the aircraft on a particular day does a daily inspection of the aircraft before take off. This includes ascertaining the useable fuel. The pilot then dates and signs the maintenance release indicating that the daily inspection has been done. The chief engineer can also certify the daily inspection if he has done it but it seems that the usual practice was for it to be done by the first pilot to fly the aircraft on a particular day. At the end of the day, the total flying time of the aircraft is noted in the "aircraft time in service" section alongside the pilot's signature. A running total of hours remaining before the next 120 hour service is kept alongside the hours flown for the day. It is illegal to fly the aircraft if 120 hours flying time has expired and the 120 hour service is not done.
If an aircraft is serviced before the expiration of 120 hours, say at 100 hours, the maintenance release expires and a new, clear maintenance release must be issued. The unflown hours are not carried forward to the new maintenance release which still records its expiry as being a particular date or 120 hours, whichever is earlier.
When the aircraft undergoes its 120 hour service, the maintenance log in the aircraft's Log Book is completed by a LAME. A stamp records "the whole inspection and maintenance required has been completely performed and properly certified pursuant to ANR 39" and records the number of the maintenance release which applied before the service. The maintenance log is signed by a LAME. The maintenance log also records the total time in service of the aircraft. By signing the stamp on the maintenance log, the engineer certifies that the 120 hour service has been completed and that all snags noted on the maintenance release have been rectified.
According to Mr Boase, there is another document which is filled in by the engineer who has particular expertise in fixing the fault and that document satisfies the chief engineer that the fault has been fixed and the chief engineer can then sign the maintenance release. This document was not produced.

How useable fuel was calculated

The pilot in command has a legal obligation to ensure that there is sufficient fuel in the aircraft before flying it (ANR 225(1)(d); operations manual 3.6.2). The deceased left the method of fuel calculation to the discretion of Aerodata pilots in command. However, all the evidence points to there being accepted methods of calculating useable fuel which I discuss later.
There were numerous witnesses called by the parties in this matter including experienced pilots and expert witnesses who testified as to the calculation of useable fuel. Although there were minor variations in their evidence, overall there was no fundamental dispute as to the appropriate methods. The preponderance of evidence from the individual pilots and the expert witnesses was to the effect that very early in their training pilots are taught that the fuel gauge is unreliable and should not be relied upon as the sole basis of fuel calculation. Mr Wilson testified that fuel quantity indicating systems are unreliable as they are akin to automotive systems. He said that it was never intended to put anything better in aircraft because it was never intended that the fuel gauge was to be the primary information base for useable fuel. Further, he said that a fuel gauge had to be calibrated every 3 years and no one wanted to trust an indicator to such an important function for 3 years.
A visual inspection of the fuel tank would reveal if the tank was full to within 14 litres. If more than about 14 litres of fuel had been used, it was not possible to see the fuel on visual inspection. If the fuel could not be seen on inspection, another method of ascertaining the useable fuel would have to be employed.
The bulk of the evidence is to the effect that the most reliable method of ensuring that there is sufficient fuel for a particular flight was to fill the fuel tank before the flight. An acceptable alternative would be to fuel the tank with sufficient fuel for the duration of the intended flight plus the statutory reserve. If a pilot was aware of a known quantity of fuel in the aircraft at a certain time, it would be possible to calculate the useable fuel by ascertaining the flying time since that time by reference to the known consumption or burn rate of the fuel. This would be dependent on the accuracy of the flight time records and a reasonable knowledge of the type of flights undertaken. There is a huge variation in consumption rates according to factors such as engine type and age, ground running time, the prevailing winds and power setting by the pilot. The maintenance release was not a preferred method of calculating useable fuel as ground running, take off and taxi times were not noted on it nor was the nature of the flight. Mr Boase considered the maintenance release to be "the last port of call" in ascertaining useable fuel.
To ensure that SDO's fuel tank was completely full, it was necessary to let the fuel settle and then top up the tank. One method would be to refuel at the end of the day and let the settling occur over night and then top up the tank. Another would be to wait 15 minutes or so for the settling to occur.

Sequence of events leading up to the accident

Mr Theodore compiled data on the engine running time including all flights, ground running, take off and taxi times. He prepared a table including the engine running times, the amount of fuel consumed in a particular engine run and a running total of the remaining fuel after each one. The parties agree that these calculations are correct. In this judgment, reference to amounts of fuel are either to Mr Theodore's calculations or are based on the data in his table.
On 24 December 1985 maintenance release 76863 was issued. It was a "clear" maintenance release. That is, no faults were noted on it. On 27 December 1985 Aerodata pilots McNamara and Doyle flew SDO to Balfour Downs for survey work. On 1 January 1986, Mr McNamara noted on the maintenance release that "fuel gauge (main) stuck on 130 gal". He explained that to mean that the indicator needle on the fuel gauge did not move from 130 gallons on the gauge. SDO was returned for its 120 hour service on either 6 or 7 January 1986. Mr Truscott testified that in early 1986 he became aware of the faulty fuel gauge through the deceased. Mr Truscott's evidence was that as AGA personnel were busy at the time and as AGA did not have the relevant authority to overhaul or effect maintenance to electrical equipment, he referred the maintenance of the fuel gauge to Ray Dickinson Electrics. Ray Dickinson had the necessary qualifications to repair the fuel gauge and associated instruments. He was a contractor. Mr Truscott noted on the maintenance release 76863 the words "RAY DICKO" beside Mr McNamara's notation of the faulty fuel gauge on maintenance release 76866. He said that was his way of dealing with the snag. He had fulfilled his duty by referring the fault to a LAME qualified to rectify it.

Mr Dickinson reported orally to Mr Truscott that he could not find a fault with the fuel gauge but that he had told Aerodata to order a sender unit as he suspected that the fault may have been in that instrument. This suspicion was based on his experience in examining fuel systems. When Mr Dickinson examined the fuel gauge the reading coincided with the amount of fuel in the tank. The tank was not completely full and the indicator needle on the fuel gauge was not reading hard full up.
A sender unit is an instrument which is located in the fuel tank which regulates the amount of fuel. The post accident investigation revealed an intermittent fault in the sender unit which caused the fuel gauge to provide inaccurate readings from time to time. At other times, the fuel gauge operated properly. It is not necessary to explain or explore the technical aspects of the fault as they are not in issue.
Mr Dickinson testified that he asked either the deceased and/or Mr Graeme Woolcock to remove the survey equipment in the aircraft so that he could check the sender unit. Mr Woolcock was not an employee of Aerodata but was an independent contractor. Mr Cunneen testified that Mr Woolcock was a freelance light aircraft mechanical engineer who was engaged by other licensed maintenance organisations as well as Aerodata. Aerodata engaged him for specialist sheet metal work. He submitted invoices for work done.
There was evidence that Mr Woolcock was not authorised to remove the survey equipment. He did not give evidence nor was his statement to the police or his evidence at the inquest in evidence at this trial. Mr Dickinson testified that he verbally reminded Mr Woolcock to order the sender unit. The equipment was not moved and the sender unit was never checked. There was no evidence why the equipment was not moved to allow inspection of the sender unit.
Around 8 January 1986, pilot McNamara spoke to the deceased and told him of the fault in the fuel gauge. On 8 January 1986, Mr Truscott issued a clear maintenance release 76866. He did this because Mr Dickinson had told him that he could not find a fault with the fuel gauge and had told him that he would recommend to Aerodata that a replacement sender unit be purchased. Mr Dickinson was definite that he told Mr Truscott to obtain a replacement sender unit. The evidence is that a replacement sender unit was available in another aircraft operated by Aerodata and could have been transferred to SDO. There was no evidence as to why this was not done.
The plaintiff does not allege that there was negligence in issuing maintenance release 76866 dated 8 January.
On 9 January 1986, pilot McNamara flew SDO on a search and rescue mission. He was operating under maintenance release 76866. During the flight he noticed that the fuel gauge problem re-emerged. Mr McNamara agreed that a faulty fuel gauge was a non-permissible unserviceability which should be noted on the maintenance release. Mr McNamara cannot recall if he did so. However, he agreed that as a faulty fuel gauge was a non-permissible unserviceability, he would have noted it. Maintenance release 76866 was not in evidence and appears to have been lost. No witness was able to shed any light on its whereabouts now or at the relevant time.
According to Mr McNamara, between 11 and 14 January 1986, the deceased told him that the fuel gauge was unserviceable, that the sender unit was at fault and that one was on order. If the deceased did tell Mr McNamara that a sender unit was on order, it could not have been true as there is evidence from Mr Elliott that the deceased and Mr Woolcock came to his parts supplies business on 7 February 1986 to enquire about the price and availability of the sender unit. I refer to this below in more detail.
On 14 January 1985 pilots McNamara and Doyle departed in SDO for Balfour Downs. There is an invoice dated 16 January 1986 pursuant to Aerodata order 7195 from Mr Dickinson to Aerodata which carries the notation "A/D to order sender". The deceased has signed the invoice to approve payment although there is no evidence as to when he signed it. However, the Aerodata stamp records the invoice as being received on 2 February 1986.
If the deceased knew, from whatever source, that the fuel gauge was unserviceable he should not have permitted SDO to be flown to Balfour Downs, or at all, as it was a non-permissible unserviceability. The maintenance release should have been noted with the defect and would then cease to authorise flights unless and until the defect had been rectified (ANRs 49C(1)(a)(ii); 49D). Further, Mr McNamara, knowing that the fuel gauge fault had re-emerged and knowing that it was a non-permissible unserviceability, should not have flown SDO.
On 30 January 1986 pilots McNamara and Doyle returned from Balfour Downs. The fault in the fuel gauge had re-emerged during the trip. McNamara testified that he noted the fault on maintenance release 76866. There was evidence from Mr Gibson that it was common practice to note such a fault at the end of a trip. This is because if the fault occurs away from base, then theoretically, the aircraft must be grounded until the fault is rectified. In this regard, Mr Gibson said that there is some "bending of the rules".
From 30 January until 21 February 1986 SDO was serviced. Maintenance release 76866 had expired and the 120 hour service was due and was carried out during that period. The aircraft also underwent an engine change, change of both propellers, repainting and replacement of a number of instruments including the re-organisation of the instrument panel. It was not under the control of AGA for the whole of this period.
Documentation relating to the service (the continuing work sheet) reveals that the service commenced on 3 February and was completed on 4 February 1986.
Mr Truscott testified that when the service started he did not have maintenance release 76866. He said that he queried its whereabouts and the deceased told him that he would investigate. There is no evidence that the deceased saw maintenance release 76866 with Mr McNamara's note of the snag nor that either Mr McNamara or Mr Doyle informed him that the fault in the fuel gauge had re-emerged either during the search and rescue mission or during the Balfour Downs trip. During the service a visual inspection of the fuel gauge was done. This is routine during a 120 hour service. Mr Truscott signed the maintenance log certifying that the 120 hour service had been completed and, in effect, that all snags noted on maintenance release 76866 had been cleared. Other work, part from what was required in the 120 hour service was also carried out and was noted in the maintenance log.
Mr Truscott was of the view that it was not necessary to have access to the relevant maintenance release during the 120 hour service as that service would pick up any fault, including a fault which had gone un‑noticed by a pilot.
Mr Truscott knew that the fault was suspected to be in the sender unit and he was aware that Mr Dickinson had recommended that a new sender unit be purchased. He knew that the fuel gauge and the sender unit could not be serviced by AGA and that during the 120 hour service, the fuel gauge would only be inspected visually. Given all that knowledge, which, if coupled with knowledge of a notation on the maintenance release that the fault had re‑occurred, some further investigation of the fault would have been warranted. However, Mr Truscott stated that he did not see the maintenance release. There is no evidence to the contrary. There is no evidence that Mr Truscott was otherwise aware of the re‑emerged fault.
On 7 February the deceased and Mr Woolcock approached Mr John Elliot who was the managing director of Western Airmotive Spares, a supplier of spare parts for aircraft. They inquired about the availability of gaskets and the sender unit. They returned on 12 February and were told that the sender unit would cost $4000. There was a discussion between the deceased and Mr Woolcock after which the deceased requested Mr Elliot to order the gaskets but not to worry about the sender unit as it was "too expensive". He told the deceased that a sender unit was not available in Australia and would have to be ordered from the United States. Mr Elliot's evidence was that the sender unit would take between 10 days and 3 months to arrive depending on it's availability in the United States. There was no evidence that he told the deceased of these times.
On 21 February the deceased asked Mr Truscott for a fresh maintenance release. Mr Truscott testified that he requested the previous maintenance release (76866) and as it was not available, he asked the deceased to verify the hours flown in the aircraft since the last maintenance release. This the deceased did. At this trial Mr Truscott testified that he also asked the deceased to verify that all defects had been rectified. He had not made mention of that request in his statement to the police nor in his evidence to the coroner and agreed that he did not mention it in a statement prepared two weeks before trial. Mr Truscott issued maintenance release 76877 on 21 February but did not sign it.
On 22 February when SDO returned from the paint shop, Mr Truscott wished to conduct ground running testing. He noticed that the fuel gauge was recording low fuel and asked the deceased to ensure that there was sufficient fuel in the aircraft as he did not want it to run out of fuel during testing at ground level. SDO was refuelled. The refueller made inquires as to how much fuel was required and was told that the deceased said not to fill it "chockers" (I infer this meant not up to the brim) and not to fill the auxiliary tanks. Three hundred and eighty nine litres of fuel was added bringing the total to 556 litres. SDO was ground run by Mr Truscott and the deceased and thereafter by the deceased using a total of 60 litres (496 litres remaining in the tank).
Mr Truscott stated that on 24 February he and the deceased tested SDO at ground level. Mr Truscott noticed that the fuel gauge was registering at the top of the scale. Thereafter Mr Truscott signed maintenance release 76877 and handed it to the deceased. It was a clear maintenance release. Mr Truscott testified that he issued the maintenance release because after the service and ground running tests, he was satisfied that the aircraft was serviceable. There was no indication that the fuel gauge was unserviceable. He had referred the note on maintenance release 76863 to Ray Dickinson who had informed that he could not find a fault.
The ground level testing on 24 February was not noted on a maintenance release and does not appear to have been taken into account by Mr Theodore in his fuel calculations.
On the evening of 24 February, pilot McCambridge was telephoned by the deceased and asked to report for work the next day. Mr McCambridge had been on leave. The deceased made no mention of any fault in the fuel gauge.
On 25 February the deceased took SDO on a test flight of approximately half an hour. When he returned he told Mr Cunneen that it "flew very sweetly" and that "all systems were A okay". He did not note this flight on the maintenance release or otherwise note the maintenance release before or after the flight. After this flight and after further ground running of .4 hour, there were 416 litres left in the tank.
On 25 February, the deceased passed pilot McCambridge as he was walking towards SDO to commence his flight and told him that there was "half an hour out of the main tank." Mr McCambridge believed that this implied that the deceased had flown with full tanks. The deceased made no mention of any problems with the fuel gauge.
Mr McCambridge testified that he had not flown SDO previously so he carried out a full visual inspection of the aircraft including of the fuel tank by removing the fuel cap. He testified that the fuel was visible approximately 3 to 4 inches below the fuel cap level. The fuel gauge when inspected read hard to the right at 135 gallons. Accepting Mr Theodore's fuel calculations as correct, namely that there were 416 litres (109.9 gallons) in the tank before Mr McCambridge started up the engine, and if it is accepted that it was not possible to see the fuel in the tank if more than about 14 litres had been used out a full tank, a proposition with which Mr McCambridge agreed, his evidence that the fuel was 3 to 4 inches below the fuel cap cannot be correct. Nor can Mr McCambridge's assumption that the fuel gauge was functioning properly be correct.
Mr McCambridge then flew SDO for 1.5 hours on 25 February (including taxi and take off time). Mr Theodore's calculations indicated that after that flight, there were 268 litres (70.8 gallons) of fuel in the tank. However, Mr McCambridge noted that the fuel gauge recorded 120 gallons (454.3 litres). Had he known the actual amount of fuel remaining, it would have been obvious that the fuel gauge was not functioning accurately. In any event, assuming that he believed that the fuel tanks were full when he commenced flying on 25 February save for half an hours flying time out of the main tanks (which used 40 litres or 10.6 gallons) and it is reasonable to infer that he would have known that his flight would have used roughly 90 litres (23.8 gallons), excluding take off and taxi time, then he ought to have known that the fuel gauge should not have indicated 120 gallons.
On 26 February, Mr McCambridge flew SDO again. As he was the last person to fly the aircraft the day before and the fuel gauge still registered 120 gallons, he did not visually inspect the fuel tank nor refuel the aircraft. It seems that he relied on his knowledge of the last refuelling (which he assumed filled the tank), SDO's flying time and the fuel gauge when deciding that there was sufficient fuel for his intended flight.
On 26 February the engine running time with Mr McCambridge in the aircraft, including taxi and take off, was 1 hour. After Mr McCambridge's flights on 25 and 26 February and the ground running time on 25 February (.4 hour), Mr Theodore calculated that there were 162 litres (42.8 gallons) left in the fuel tank.
On 26 February Mr McCambridge signed the maintenance release after completing his daily inspection. He testified that after the flight the fuel gauge read 80-90 gallons (303 - 340 litres). Thus, by reference to Mr McCambridge's evidence concerning the fuel gauge reading, he used 30‑40 gallons (113.6‑151.4 litres) on the trip on 26 February. In fact, according to Mr Theodore, there would have been only 162 litres (42.8 gallons) remaining. Accordingly, the fuel gauge could not have been functioning correctly, if Mr McCambridge's evidence that it read between 80 and 90 gallons is correct.
Given that Mr Theodore's calculations are correct, I cannot accept Mr McCambridge's evidence that on 25 February he inspected the fuel tank and sighted fuel approximately 3 to 4 inches below the fuel cap. He either did not conduct a visual inspection (possibly because he inferred that the deceased had only used half an hours fuel out of full tanks) or he did the visual inspection and was mistaken that he saw the fuel in the tank. The latter seems highly improbable.
On Mr McCambridge's evidence, he would not have relied on the fuel gauge. If he could not sight the fuel on visual inspection of the tank, he said he would have refuelled the tanks. The conclusion that I draw from the totality of the evidence is that Mr McCambridge did not conduct a visual inspection of the tanks. Had he done so, he would not have sighted the fuel and, according to him, would have topped up the tank to full. If that had been done and Mr McCambridge was aware of the amount of fuel added to the tank, it would have been obvious that the fuel gauge was not operating properly. Further, had he followed his usual practice of topping up the tank with fuel, then SDO would not have run out of fuel when it did. It would be speculating to conclude that the deceased could have returned to the airport safely as there is no evidence as to how much longer he intended to extend the flight on 27 February.
The evidence of Mr McCambridge is important because it indicates that notwithstanding the evidence of the pilots and the experts concerning the checks which are made pre-flight to ascertain the amount of fuel, Mr McCambridge did not conduct a visual check of the fuel tank and apparently relied on either the fuel gauge reading and/or a combination of his inference that the deceased had used half an hour's fuel out of a full tank, cross referenced with the fuel gauge reading. In either case, he relied on the fuel gauge to some extent. His evidence is to the effect that he would not rely on the fuel gauge alone.
On 27 February the deceased flew SDO on its last and fatal flight. If he had done a visual inspection of the fuel tank, he would not have sighted any fuel in the tank. There is no evidence about the reading on the fuel gauge when he started the engine. The deceased had access to the maintenance release signed by Mr McCambridge which indicated that SDO had flown a total of 3 hours on 25 and 26 February. The maintenance release was located in the wreckage of the aircraft. There was no evidence as to whether other documents recording flight times which were required to be in the aircraft by the operations manual were found in the wreckage. They were not in evidence. It is not known whether the deceased checked the maintenance release. He did not sign the maintenance release on 27 February in accordance with the established practice but it cannot be necessarily inferred that he did not see the maintenance release. There is no evidence that he conducted the daily inspection.

The deceased's knowledge of how much fuel was in the tank when he took off on 27 February.

The deceased knew that SDO had been refuelled on 22 February but that only the main tank had been filled and, on his instructions, not "chockers" Thereafter, he was aware of at least the following:
•22 February ground running (with AGA): .5 hour
•22 February ground running time (alone): .5 hour
•25 February test flight: .5 hour
•25 and 26 February a total of 3 hours engine use as per maintenance release 76877. He either knew or should have known this as the maintenance release was in the aircraft and should have been checked by him.
This information is tabulated as follows:
Date                  Activity  Time               Fuel used
22.2.86              ground running               .5 hr                30 lts
22.2.86              ground running               .5  30 lts
25.2.86              test flight  .5  56 lts
25.2.86              flight  1.5                   148 lts
26.2.86              flight  1.0                   106 lts
4.0                   370 lts
It may be that the deceased did not take part in the ground running on 25 February (.4 hour) but Mr Truscott was of the view that all pilots should make themselves aware of ground running time and in any event, he would have told the deceased about it. Therefore, in considering what the deceased knew about engine running time since the refuelling on 22 February up to and including his flight on 27 February, I will not take into account the .4 hour ground running time on 25 February.
Accordingly, since refuelling on 22 February, the deceased was aware that the aircraft's engine had run four hours, either in flight or on ground running. It seems that Mr McCambridge recorded 2 hours flight time for 25 February (taking in to account the .5 hour test flight and take off and taxi time) and 1 hour on 26 February.
Using Mr Theodore's calculations, the 4 hours running time would have consumed 326 litres of fuel (excluding taxi and take off fuel consumption). If it is assumed that the deceased assumed that on refuelling the fuel tank held 556 litres, then, if he had done a calculation of fuel, he would have known that on 27 February there was around 230 litres of fuel in the tank (556 less 326). This is not to say that a fuel calculation, if done, would have been exactly this amount.

According to Mr Theodore's calculations, local flights consume 100 litres of fuel per hour. Thus, if the deceased either knew or did a calculation of the fuel remaining in the fuel tank before he started the engine on 27 February and came up with around 230 litres remaining, there was enough fuel for a flight of 2 hours and 18 minutes. It is reasonable to infer that the deceased knew that requirement to have 45 minutes reserve fuel available. Thus when the 45 minutes reserve fuel time is deducted from the 2 hours 18 minutes, there was only sufficient fuel for flying time of 1 hour 33 minutes before having to access the reserve fuel.
It is not suggested that the deceased flew SDO on 27 February knowing that he had insufficient fuel for the flight. However, had he done a calculation of the fuel available, it would have been clear that there was insufficient for a flight of 1.5 hours plus take off time of .4 hour. It is therefore reasonable to infer that the deceased did not calculate the amount of fuel remaining or if he did, he made a fundamental error in his calculations. It is submitted on behalf of the plaintiff that the deceased made an error in his calculations of useable fuel before the flight or subsequently miscalculated the amount of fuel on board during the course of the flight. However, there is no evidence that he made such calculations.
If the deceased had done a visual inspection of the fuel tank, he could not have sighted the fuel therein. If he relied solely on the fuel gauge, it would seem that he contravened the prudent and safe practice of not doing so. The overwhelming evidence is that pilots are taught from the start that fuel gauges are notoriously unreliable and that it is not prudent or safe to rely solely on the fuel gauge to ascertain useable fuel in the aircraft. It is reasonable to infer that the deceased, as chief pilot, would also have held this view.
It is submitted on behalf of the plaintiff that "any error in calculation would have been either immediately obvious at some later time upon [the deceased] checking or cross checking the main fuel gauge had that gauge been reading correctly". There is no evidence that the deceased did cross check his calculations (had they been made) with the fuel gauge, nor that if he did cross check, at what stage. The survivor of the accident was not called as to what took place in the aircraft after take off. No explanation was given for this. It is reasonable to infer in the absence of an explanation as to the failure to call that person, that he would not have assisted the case of any of the parties. In my view it would be a finding based on speculation as to what the deceased did or did not do before the engine was started or in the aircraft. There is simply no evidence on this point.
Mr Theodore calculated that there were 162 litres in the fuel tank. Twenty four litres were used during taxi which took .4 hour due to fog. When the aircraft crashed it was out of fuel. There was 12 litres of fuel short for a flight of 1.5 hours.

Did the deceased know that the fuel gauge was faulty when he flew SDO on 27 February 1986?

It is clear the deceased knew of the faulty fuel gauge from early January when Mr McNamara informed him of it. On 12 February, he returned to Mr Elliott's premises to ascertain the price and availability of the sender unit. It does not necessarily follow that at that time he knew that there was still a fault in the fuel gauge. He had been told that the fault was suspected to be in the sender unit. The impact of this knowledge on him will never be known. There is no evidence that the deceased quizzed Mr Dickinson about the involvement of the sender unit nor as to the nature of the fault and the effect it might have on ascertaining the amount of fuel in the tanks. However, it is reasonable to infer that the deceased (along with the engineers and the other pilots who flew SDO at the relevant times) considered the fault to be intermittent.
On 21 February, Mr Truscott issued a clear maintenance release 76877. I do not accept that Mr Truscott requested the deceased to verify that all faults had been rectified. First, that is an unusual request coming from the chief engineer given his responsibility in signing off the 120 hour service as he would have to know himself whether all faults had been rectified. Secondly, he made no mention of this request until this trial, some 14 years after the conversation. Mr Truscott testified in a very defensive manner. He impressed me as a person who feared that he would somehow be held accountable for some oversight or another. In my view, it is more likely than not that he has reconstructed the conversation in his mind over the years to vindicate his own position.
It also seems apparent that Mr Truscott believed that there was no trouble with the fuel gauge as he made no inquiry about it and it was not a matter of which he took particular note when ground testing the aircraft (apart from noticing that it registered either low or full). Further, he had referred the fault to Ray Dickinson for repair and had been told that no fault could be found.
I am also of the view that had the deceased suspected that there might still be a problem with the fuel gauge, it is more likely than not that he would have paid particular attention to the instrument. I say this because all the evidence points to the deceased as a careful and safe pilot. Further, Mr Truscott testified that the deceased wanted any problem rectified before SDO "left Jandakot" and that "if he had been aware of the problem, [he] would have expected him to communicate that to me".
Further, one would expect Mr Truscott to assess the functioning of the fuel gauge had he believed that the fault had not been repaired. In any event, given that the fault was intermittent and given the clear maintenance release and that there is no evidence as to what the deceased observed, I certainly cannot make a finding that when he flew SDO on 27 February that he was then aware of any fault.
The deceased had been told that the sender unit may have been the cause of the problem. There is no doubt that it was recommended that he purchase a replacement sender unit. However, there is no evidence as to why he did not. There was some discussion about the price of the sender unit on 12 February according to Mr Elliott. However, it does not follow that the deceased did not order the sender unit simply because of the price. He had carte blanche to order whatever part he required as long as he worked through the maintenance organisation according to Mr Cunneen. Mr Cunneen testified that the deceased had his authority to order any part which would make the aircraft safer. Thus it is reasonable to infer that price would not have been an obstacle to ordering the sender unit. The fact that the sender unit was not ordered is not probative that the deceased knew that the fault still existed. No one could be sure that the fault in fact lay with the sender unit. Mr Dickinson agreed that although experience caused him to suspect that the fault was in the sender unit, he did not know whether or not there was in fact a fault in that instrument. He further agreed that he recommended that the sender unit be ordered as a matter of caution rather than as a "work directive". Thus, it would seem that the deceased did not consider that a replacement sender unit to be essential given his knowledge of the fuel gauge fault. All the evidence on point supports a finding that the deceased was entitled to rely on the clear maintenance release 76877 issued on 24 February as certification that all faults had been rectified.

Should Mr Truscott have issued a clear maintenance release on 24 February?

I cannot accept Mr Truscott's evidence that maintenance release 76866 which Mr McNamara testified recorded his note of the re‑occurrence of the fuel gauge fault was not relevant when undertaking the 120 hour service. He testified that AGA only conducted a visual inspection of the fuel gauge. That would not necessarily reveal an intermittent fault. A snag noted on the maintenance release would alert the LAMEs to such a fault.
Mr Truscott testified that he did not see maintenance release 76866 after he issued it. The only evidence of his knowledge of the faulty fuel gauge was the notation on maintenance release 76863; that he referred it to Mr Dickinson to repair; that Mr Dickinson advised him that he could not find a fault in the fuel gauge but that if a fault existed it was possibly in the sender unit and that he had recommended to Aerodata to purchase a new sender unit. He was unaware that the deceased had decided against ordering the sender unit.
In my view, it would have been prudent, given Mr Truscott's state of knowledge and given that maintenance release 76866 was not available when the 120 hour service commenced to at least make some inquiries as to the serviceability of the fuel gauge and/or to pursue whether or not the sender unit was on order. However, Mr Wilson testified that given Mr Dickinson's verbal report to Mr Truscott concerning the fuel gauge, it would be appropriate to issue a new maintenance release. He was of this view because no fault could be found in the fuel gauge, that in any event the reported fault was intermittent and that every pilot would check the fuel before flight rather than rely on the fuel gauge. Further, given that no fault could be found, there would be a "reluctance" to start pulling parts out if the checking system had indicated no fault and only a possible fault in the sender unit.
Mr Wilson testified that if he had been chief engineer and had been aware that the fuel gauge fault had re-emerged after the issue of maintenance release 76866, he would have approached the department for dispensation to fly, informed the pilots of the fault and recommended to Aerodata to secure a replacement sender unit at the earliest opportunity. I accept this course of action as being prudent in the circumstances.
In my view, it would have been desirable if not prudent for Mr Truscott to make further inquiries given his state of knowledge about the faulty fuel gauge and given that maintenance release 76866 was missing. I accept as prudent and sensible the course of action referred to by Mr Wilson which should follow if there was knowledge of the re‑emergence of the fault.
I am not satisfied on the balance of probabilities that Mr Truscott (and therefore AGA) was negligent by issuing maintenance release 76877 on 21 February nor by signing it on 24 February. Mr Truscott had referred the faulty fuel gauge to Mr Dickinson. Mr Dickinson reported that he could not find a fault in the gauge but that if there was a fault it was possibly in the sender unit. Mr Dickinson recommended that Aerodata obtain a replacement sender unit. There is evidence from Mr Wilson which I accept that, given Mr Dickinson's assessment of the fault, it was appropriate to issue a clear maintenance release without conducting further investigations as to the sender unit itself. This view was given in the knowledge that no pilot relies solely on the fuel gauge to ascertain useable fuel and that other methods are employed to do so.
Even if Mr Truscott were negligent, in my view, I am not satisfied on the balance of probabilities that such negligence caused or contributed to there being insufficient fuel for Brian Mickelberg's flight on 27 February. This is because the evidence is overwhelmingly in support of a finding that whether or not the fuel gauge was functioning properly, the pilot in command has the sole responsibility for ensuring there is sufficient fuel for the intended flight and no pilot would rely solely on the fuel gauge for this purpose. Accordingly, even if the deceased relied on the maintenance release 76877 as certifying that the fuel gauge was serviceable, that did not excuse him from conducting further investigations to ascertain the useable fuel before the flight. It is more likely than not that had the deceased carried out those other investigations, that he would not have solely relied on the maintenance release as certifying the fuel gauge as serviceable. In any event, there is no evidence that he did so rely on the maintenance release.
For these reasons I am of the view that neither the deceased nor Mr Truscott knew or ought to have known that the fuel gauge gave inaccurate readings on 27 February. Further, given the state of the evidence as outlined above, I cannot make a finding as to what the deceased did by way of pre‑flight inspection, whether he made any calculations as to useable fuel and if so how and to what extent, if any, he relied upon the fuel gauge in ascertaining useable fuel before or during the flight.
For these reasons, I do not make a finding that Aerodata was in breach of its duty of care to the deceased, its employee. Further, even if it was in breach, on the state of the evidence, I cannot find that such breach caused or contributed to the aircraft running out of fuel.
I therefore dismiss the plaintiff's claim against both Aerodata and AGA.

Contributory negligence

As to the claim that the deceased was guilty of contributory negligence, it is not strictly necessary for me to decide this issue. However, for the sake of completeness on the issue of liability, I find as follows. As the pilot in command, the deceased was solely responsible for ascertaining whether there was sufficient fuel for the intended flight. There are accepted and established means of doing so. If he did a visual inspection of the fuel tank, he would not have sighted fuel and the prudent action would be to refuel. There is no evidence that he did refuel and given that the aircraft ran out of fuel in flight, I find that he did not. If he calculated the useable fuel by reference to a known quantity of fuel and known engine running time, he miscalculated. However, there is no evidence that he did such a calculation. If he relied solely on the fuel gauge, he did so against prudent and safe practice. In all the circumstances, without making a positive finding that the deceased was guilty of contributory negligence, it is my view that whatever the deceased did or did not do in terms of fuel calculation, he and he alone was responsible for flying the aircraft with insufficient fuel for the intended and extended flight.
The deceased contravened established and statutory procedures. For example, he allowed pilots Doyle and McNamara to fly to Balfour Downs in SDO on 14 February when he believed that the fuel gauge had not been rectified; he did not record test flight on the maintenance release on 25 February; he did not sign the maintenance release on 27 February as confirmation that the daily inspection had been completed; it is most unlikely that he conducted a visual inspection of the fuel tank. Whilst not making any finding that the deceased was generally a pilot who contravened procedures, these examples of contraventions indicate that he may not have been as meticulous and careful about safety as witnesses described him. Apart from the objective evidence supporting the findings that he did not visually inspect the fuel tanks prior to take off on 27 February nor calculate accurately or at all the useable fuel, the fact that he did not comply with his statutory and established procedures and requirements as mentioned above, reinforces that objective evidence.

Conclusion

This trial was conducted over 10 days. Only one witness, namely the plaintiff gave evidence on the issue of quantum. The primary issue in dispute was clearly liability. In the circumstances of this case, given the factual issues to be determined and my findings of fact, I do not propose to provisionally assess damages.
In summary, I dismiss the plaintiff's claim against Aerodata and AGA.