Mickelberg v Aerodata Holdings Ltd
[2002] WASCA 80
•10 APRIL 2002
MICKELBERG -v- AERODATA HOLDINGS LTD & ANOR [2002] WASCA 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 80 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:8/2001 | 7 FEBRUARY 2002 | |
| Coram: | MALCOLM CJ ANDERSON J STEYTLER J | 10/04/02 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | FAYE SUSANNE KIMM MICKELBERG AERODATA HOLDINGS LTD AGRICULTURAL & GENERAL AVIATION PTY LTD |
Catchwords: | Aviation Aircraft accident Fault in fuel indicating system Claim for damages under Fatal Accidents Act 1959 Negligence Breach of statutory duty Whether maintenance release should have been issued Whether reliance on accuracy of clear maintenance release was reasonably foreseeable Duty of care Contributory negligence Apportionment of responsibility for accident Turns on own facts |
Legislation: | Fatal Accidents Act 1959 Air Navigation Act 1920 |
Case References: | March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McLean v Tedman (1984) 155 CLR 306 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Blyth v Birmingham Waterworks Co (1856) 11 Exch 781; (1856) 156 ER 1047 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Commonwealth v Introvigne (1982) 150 CLR 258 Dominion Airlines Ltd v Strand [1933] NZLR 1 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Hesketh v Liverpool Corporation (1940) 4 All ER 429 Kondis v State Transport Authority (1984) 154 CLR 672 Martin v Queensland Airlines Pty Ltd [1956] QSR 362 O'Connor v S P Bray Ltd (1937) 56 CLR 464 Public Trustee v The Commonwealth of Australia, unreported; FCt SCt NSW; BC 9506816; 20 December 1995 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stoneman v Lyons (1975) 133 CLR 550 Sutherland Shire Council v Heyman (1985) 157 CLR 424 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MICKELBERG -v- AERODATA HOLDINGS LTD & ANOR [2002] WASCA 80 CORAM : MALCOLM CJ
- ANDERSON J
STEYTLER J
- Appellant (Plaintiff)
AND
AERODATA HOLDINGS LTD
First Respondent (First Defendant)
AGRICULTURAL & GENERAL AVIATION PTY LTD
Second Respondent (Second Defendant)
Catchwords:
Aviation - Aircraft accident - Fault in fuel indicating system - Claim for damages under Fatal Accidents Act 1959 - Negligence - Breach of statutory duty - Whether maintenance release should have been issued - Whether reliance on accuracy of clear maintenance release was reasonably foreseeable - Duty of care - Contributory negligence - Apportionment of responsibility for accident - Turns on own facts
(Page 2)
Legislation:
Fatal Accidents Act 1959
Air Navigation Act 1920
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr M J McCusker QC &
Mr G H Lawton
First Respondent (First Defendant) : Mr M W Schwikkard
Second Respondent (Second Defendant) : Mr R J L McCormack
Solicitors:
Appellant (Plaintiff) : Lawton Gillon
First Respondent (First Defendant) : McAuliffe Williams &
Partners
Second Respondent (Second Defendant) : Andrew Maughan
Case(s) referred to in judgment(s):
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
(Page 3)
Case(s) also cited:
Blyth v Birmingham Waterworks Co (1856) 11 Exch 781; (1856) 156 ER 1047
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Commonwealth v Introvigne (1982) 150 CLR 258
Dominion Airlines Ltd v Strand [1933] NZLR 1
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hesketh v Liverpool Corporation (1940) 4 All ER 429
Kondis v State Transport Authority (1984) 154 CLR 672
Martin v Queensland Airlines Pty Ltd [1956] QSR 362
O'Connor v S P Bray Ltd (1937) 56 CLR 464
Public Trustee v The Commonwealth of Australia, unreported; FCt SCt NSW; BC 9506816; 20 December 1995
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Stoneman v Lyons (1975) 133 CLR 550
Sutherland Shire Council v Heyman (1985) 157 CLR 424
(Page 4)
1 MALCOLM CJ: I have had the advantage of reading in draft the reasons for judgment to be published by Steytler J. I agree with those reasons. I also agree that the appeal should be allowed, the judgment of the learned trial Judge dismissing the action set aside and, in lieu thereof, there should be judgment for the appellant against the second respondent for an amount of damages equal to 40 per cent of the damages suffered by the appellant to be assessed with an order remitting the matter to the learned trial Judge to assess the damages accordingly.
2 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Steytler J. I agree with his conclusions and his reasons, and there is nothing I can usefully add.
3 STEYTLER J: This is an appeal against the decision of a District Court judge in an action for damages brought by the appellant against each of the first and second respondents pursuant to the Fatal Accidents Act 1959. The action arose out of the crash of an aircraft on 27 February 1986. The pilot, Brian Mickelberg, and a passenger were killed in the crash. Another passenger was injured. The crash occurred near the Canning Dam, the aircraft having earlier taken off from Jandakot Airport. It occurred because the aircraft ran out of fuel. The appellant, being Mr Mickelberg's widow, alleged at the trial that the crash was caused by the negligence and breach of statutory duty of each of the first and second respondents ("Aerodata" and "AGA") respectively. Aerodata was the lessee of the aircraft and the employer of Mr Mickelberg, who was Aerodata's Chief Pilot. AGA was the company which serviced the aircraft. The trial Judge dismissed the appellant's claim against Aerodata and her claim against AGA. The appellant contended, by her notice of appeal, that she should not have done so.
4 During the course of argument on the appeal, orders were made, by consent, dismissing the appeal as against Aerodata. The appeal consequently continued only as regards the trial Judge's decision dismissing the appellant's claim against AGA. The appellant challenges the conclusions arrived at by the trial Judge in support of that decision, without attacking her primary findings of fact. It is consequently convenient to recite the primary facts, as found by her Honour, before moving to consider her conclusions.
(Page 5)
Aerodata's operations and the maintenance of its aircraft
5 Aerodata operated a fleet of aircraft. It used those aircraft to supply airborne geophysical services. On 1 July 1985 Mr Mickelberg was appointed as one of Aerodata's pilots. He was later appointed to the post of Chief Pilot. Pursuant to Appendix 1.1.1 of Part 82, s 82.0 of the Air Navigation Orders promulgated by the Commonwealth Department of Aviation pursuant to s 8 of the Air Navigation Regulations ("ANRs") in force under the Air Navigation Act 1920, the Chief Pilot and the operator of an aircraft operation are jointly responsible to the Secretary to the Department ("the Secretary") for the safety of all commercial operations carried out by the operator.
6 Mr Mickelberg was also Aerodata's maintenance coordinator. His duties in that regard were to maintain quality control of the maintenance of Aerodata's fleet. He had authority to order parts, if required, for any aircraft. However, he did not have the right or the authority to interfere in the process of AGA's maintenance of Aerodata's aircraft.
7 The aircraft which crashed was a Rockwell Aero Commander Shrike aircraft VH-SDO ("SDO"). It was a twin engine aircraft. The main fuel indication instrument on SDO was a fuel gauge. This indicated the amount of fuel in the tanks by reference to 20-gallon markers. The references are to US gallons. Each gallon converts to 3.78541 litres. The maximum reading on the fuel gauge was 135 gallons, although the main fuel tank in fact held 156 gallons. The fuel gauge registered full until such time as the fuel level dropped below 135 gallons. The aircraft was also fitted with a computerised fuel indication system known as the "Hoskins system". This depended on data programmed into it. That system was unserviceable in SDO and all of Aerodata's pilots knew it to be so. It was common cause that no pilot, including Mr Mickelberg, relied upon it in order to calculate useable fuel. The trial Judge found that all of the evidence pointed to the Hoskins system as being a non-essential instrument.
8 There are two other means of determining fuel levels in the aircraft. One is by visual inspection of the contents of the fuel tank. However, fuel can only be seen, in this way, if the tank is filled to within 14 litres of capacity. Because of the design of the fuel tank, it could not be "dipped" in order to ascertain its fuel content. The remaining means is by calculation of the amount of fuel used since the aircraft was last refuelled. This is done by determining when the aircraft was last refuelled, how
(Page 6)
- much fuel was then pumped into the aircraft and how much fuel has since been used by the aircraft, having regard to the number of hours flown and the rate of fuel consumption. ANR 216(2) requires an operator to maintain a record of the fuel remaining in the tanks at the end of each scheduled flight.
9 By ANR 226 an aircraft may not commence a flight within Australia if the quantity of fuel 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. It was common cause that the quantity directed by the Secretary is one equal to the amount of fuel necessary for the flight, plus sufficient reserve for 45 minutes' flying time. ANR 225(1) provides that 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 flight and the required reserves of fuel are carried.
10 SDO is fitted with two reserve or auxiliary tanks, each having a total capacity of 67 gallons or 253.7 litres. In the aircraft's operations manual there is also reference to a "boot tank" which is said to hold 35 gallons, although there was no evidence as regards this tank during the trial.
11 Each aircraft was required by ANR 46 to be maintained by a licensed aircraft maintenance engineer employed by a licensed maintenance organisation. The licensed maintenance organisation, in this case, was AGA and the licensed maintenance engineer was an employee of AGA, Mr George Truscott. Clause 3.3.1 of Aerodata's operations manual directed that the "decision of the Chief Engineer regarding serviceability of the Company's aircraft shall be final and binding". Mr Truscott was, for that purpose, Aerodata's Chief Engineer.
12 ANR 48(1) provides for maintenance releases to be issued by authorised persons in respect of Australian aircraft. Mr Truscott was an authorised person for that purpose. ANR 48(6)(a) provides that a maintenance release shall not be issued in respect of an aircraft unless all maintenance in respect of the aircraft required to be carried out to comply with any requirement or condition imposed under the ANRs has been certified to have been completed. ANR 48(12)(a) provides that:
"A person shall not sign a maintenance release to be issued by virtue of paragraph (a) of sub-regulation (6) of this regulation in respect of an aircraft if -
(Page 7)
- (a) he considers that -
(i) the aircraft is in a damaged condition or is defective;
(ii) the damage is major damage or the defect is a major defect, as the case may be; and
(iii) the damage or defect is not a permissible unserviceability."
14 SDO underwent a maintenance overhaul or service after each 120 hours of flying. If the aircraft was found to be in a satisfactory condition at the end of that service, a maintenance release was issued pursuant to ANR 48(6)(a). Each such release was issued by Mr Truscott, as Chief Engineer, and had an expiry date which was set by reference to either a date or a specified number of flying hours, usually, in this case, 120 hours. Only the Chief Engineer can issue a maintenance release. Any of the pilot in command of the aircraft, the Chief Pilot and the Chief Engineer is able to note faults or potential faults in the aircraft on the maintenance release. In fact Regulation 49F requires the owner, operator or any flight crew member of an Australian aircraft who becomes aware of the existence of a defect in the aircraft to enter and sign an endorsement on the maintenance release setting out particulars of that defect.
15 ANR 49C(1) requires (subject to an exception which is not presently relevant) that, where the owner or operator of an aircraft, or a flight crew member or authorised person engaged in the maintenance of an aircraft in respect of which a maintenance release is in force, considers that the aircraft has developed a major defect, other than a defect that is a permissible unserviceability, and that the aircraft is likely to be flown before the defect has been remedied, that person must make an endorsement accordingly on the maintenance release, stating that the aircraft is unairworthy, whereupon the maintenance release ceases to be in force until such time as the defect is rectified. An aircraft may not be flown without a current maintenance release.
(Page 8)
16 SDO had, as I shall mention below, an intermittent fault in its fuel gauge which caused it to give a higher reading for the main fuel tank than it should. It is common cause that this was a "major defect" which was not a "permissible unserviceability" for the purposes of the ANRs. Consequently, SDO should not have been flown with this defect. Before it could be flown the fault was required to be rectified by a licensed aircraft maintenance engineer qualified to deal with that type of fault.
17 The maintenance release is a direct communication between the Chief Engineer and the pilot and from one pilot to another. Pilots are thereby alerted to any fault or potential faults in the aircraft. I have already mentioned that all maintenance releases were, in this case, issued by Mr Truscott. Ordinarily, after the 120-hour service, Mr Truscott issued a clear maintenance release. Thereafter, the first pilot to fly the aircraft on any day performed an inspection of the aircraft before takeoff. This included ascertaining the useable fuel. That pilot then dated and signed the maintenance release indicating that the daily inspection had been done. This daily inspection could be performed by the Chief Engineer but this was not ordinarily done. At the end of each day, the total flying time of the aircraft was noted in the "aircraft time in service" section alongside the pilot's signature.
18 Whenever a fault was fixed by some person having particular expertise, other than the Chief Engineer, that person certified that this had been done and the Chief Engineer (Mr Truscott) was then able to sign the maintenance release.
19 The trial Judge found (without challenge) that the preponderance of evidence from pilots and expert witnesses who gave evidence at the trial was that pilots are taught that an aircraft's fuel gauge is unreliable and should not be relied upon as the sole basis of fuel calculation. One expert called at the trial, Mr Hilton Wilson, testified that fuel quantity indicating systems are unreliable as they are akin to automotive systems. He said that it was never intended that the fuel gauge was to be the primary information base in determining useable fuel. The most reliable means of ensuring that there was sufficient fuel for a particular flight is, of course, that of filling the fuel tank, although pilots can, as I have said, make a visual inspection (if no more than about 14 litres of fuel had been used) or perform a calculation. Of course, the accuracy of the calculation would be dependent upon the accuracy of the flight time records and a reasonable knowledge of what kinds of flights had been undertaken, there being a huge variation in consumption rates dependent upon such matters as ground running time, prevailing winds and power settings.
(Page 9)
Events leading up to the accident
20 On 24 December 1985 maintenance release 76863 was issued by Mr Truscott in respect of SDO, effectively certifying that the aircraft was airworthy. Three days later, on 27 December 1985, SDO was flown by Aerodata pilots Andrew McNamara and James Doyle. On 1 January 1986 Mr McNamara endorsed on the maintenance release the fact that the main fuel gauge was stuck on 130 gallons.
21 Mr Truscott was told of the problem by Mr Mickelberg, who was told of it by Mr McNamara. Because AGA was unable to effect the necessary repairs, Mr Truscott referred the problem to a business known as Ray Dickinson Electrics. Mr Ray Dickinson of that firm had the necessary qualifications to repair the fuel gauge and associated instruments. Mr Dickinson examined the aircraft. He told Mr Truscott that he could not find a fault with the fuel gauge and that he had told Aerodata to order a "sender unit". This is an instrument located in the fuel tank which regulates the amount of fuel. Mr Dickinson suspected, from his experience in examining fuel systems, that the fault may have existed in this unit. Post-accident investigations have revealed that he was right. There was 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. Post-accident investigations have also revealed that a new sender unit was not required and that the repair of the existing sender unit could have been undertaken. Mr Dickinson did, in fact, ask a representative of Aerodata, Mr Graeme Woolcock, to remove some of Aerodata's survey equipment from the aircraft in order to enable him to inspect the sender unit. However, this was never done.
22 Mr Dickinson was asked, at the trial, whether he told anyone that the fault had not been fixed. He said that he told Mr Graeme Woolcock and that he was "very confident" that he also told Mr Truscott. He said that he would not have "certified a clearing endorsement" on the maintenance release in respect of the fault.
23 On 8 January 1986, Mr Truscott issued maintenance release number 76866. He did so because Mr Dickinson had told him that he could not find a fault with the fuel gauge, although Mr Dickinson had also said, as I have mentioned, that he would recommend to Aerodata that a replacement sender unit be obtained. I should mention, in passing, that, while the trial Judge said that the appellant had not alleged negligence in issuing that release, she appears to have overlooked particulars of negligence which have been pleaded in the appellant's statement of claim
(Page 10)
- to the effect that the maintenance release which was issued on 8 January 1986 should have been endorsed with a statement of the unserviceability of both the fuel gauge and the Hoskins equipment and that the aircraft should have been classified as unairworthy on that date (pars 9(d) and (e) of the statement of claim).
24 On 9 January 1996 Mr McNamara once again flew SDO. He noticed that the problem with the fuel gauge had re-emerged. He said in evidence that he "would have" noted the fault on the maintenance release. Mr McNamara also said in evidence that, between 11 and 14 January 1986, Mr Mickelberg told him that the fuel gauge was unserviceable, that the sender unit was at fault and that a sender unit was on order.
25 It appears that a sender unit had not in fact been ordered. There was, in evidence, an invoice dated 16 January 1986 from Mr Dickinson to Aerodata which carries the notation "A/D to order sender". However, evidence was led to the effect that, on 12 February, Mr Mickelberg, having made inquiries about the availability and price of a sender unit, was told that it would cost $4000. After some discussion with Mr Woolcock, Mr Mickelberg told a representative of the supplier, Mr John Elliott of Western Automotive Spares, not to worry about the sender unit as it was too expensive. Seemingly, he did not tell Mr Truscott of his decision not to order the unit. The sender unit would, in any event, have taken between 10 days and three months to arrive, although there was no evidence that Mr Elliott told Mr Mickelberg of this.
26 On 30 January 1986 pilots McNamara and Doyle noticed, during a flight which they made in SDO, that the fault in the fuel gauge had re-emerged. Mr McNamara noted the fault on maintenance release 76866.
27 In February 1986, SDO underwent a major service. The aircraft underwent an engine change, change of both propellers, repainting and replacement of a number of instruments, including the re-organisation of the instrument panel. Mr Truscott testified that, when the service started (on about 3 February 1986), he did not have maintenance release 76866. He said that he asked about its whereabouts and was told by Mr Mickelberg that he would investigate. There is no evidence that Mr Truscott had seen maintenance release 76866 with Mr McNamara's note of the re-emergence of the problem with the fuel gauge or that either Mr McNamara or Mr Doyle had informed him of it. Mr Truscott said in evidence that it was unnecessary to have access to maintenance release 76866 during the service as that service would pick up any fault,
(Page 11)
- including one which might have gone unnoticed by a pilot. The service did not include flight testing by Mr Truscott as this was done by others. During the service a visual inspection of the fuel gauge was done.
28 After the service had been completed, Mr Truscott signed the maintenance log, certifying that the service had been completed and, as the trial Judge found, certifying, in effect, that all defects noted on maintenance release 76866 had been remedied.
29 On 21 February Mr Mickelberg asked Mr Truscott for a fresh maintenance release. Mr Truscott said in evidence that he asked for the previous maintenance release (76866) and, because it was still not available (and has never since been found), he asked Mr Mickelberg to verify the hours flown in the aircraft since the last maintenance release. Mr Mickelberg did so.
30 Mr Truscott also testified that he asked Mr Mickelberg to verify that all defects in SDO had been rectified. However, he had made no mention of that request in his statement to the police nor in earlier evidence given by him to a coroner. He had also not mentioned it in a statement prepared two weeks before the trial. The trial Judge consequently disbelieved his evidence in this respect. She said, in that regard:
"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."
31 On 22 February Mr Truscott wished to conduct ground running testing on SDO. The aircraft was refuelled under instructions from Mr Mickelberg who said that it was not to be filled "chockers" and that the auxiliary tanks were not to be filled. 389 litres of fuel were added to the tank, bringing the total to 556 litres. The aircraft was then run by Mr Truscott and Mr Mickelberg, using a total of 60 litres of fuel. The fuel gauge was then registering at the top of the scale.
(Page 12)
32 Thereafter Mr Truscott signed maintenance release 76877 and handed it to Mr Mickelberg. The release was clear. Mr Truscott testified that there was then no indication that the fuel gauge was unserviceable and that he had referred the note on maintenance release 76863 to Mr Dickinson, who had informed him that he could not find a fault.
33 On the evening of 24 February 1986, another pilot employed by Aerodata, Anthony McCambridge, was telephoned by Mr Mickelberg and asked to report for work after having been on leave. Mr Mickelberg made no mention to him of any fault in the fuel gauge of SDO.
34 On the following day Mr Mickelberg took SDO on a test flight. He reported that the aircraft "flew very sweetly" and that "all systems were A okay". Calculations (made by David Theodore, an independent expert called at the trial) reveal that, after the flight and further ground running of 24 minutes, there would have been 416 litres of fuel left in the tank.
35 On the same day Mr Mickelberg passed Mr McCambridge as he was walking towards SDO to commence a flight and told him that there was "half an hour out of the main tank". Mr Mickelberg did not mention any problems with the fuel gauge. Mr McCambridge then flew the aircraft for one and a half hours. It has been calculated that, after that flight, 268 litres or 70.8 gallons of fuel remained in the tank. However, Mr McCambridge noted that the fuel gauge recorded 120 gallons or 554.3 litres. It does not appear that he made any report in that respect.
36 Mr McCambridge flew the aircraft again on the following day. On that day Mr McCambridge signed the maintenance release after completing his daily inspection. He said at the trial that, after that flight, the fuel gauge read 80 to 90 gallons (303 to 340 litres). In fact, according to the calculations which have since been made, only 42.8 gallons or 162 litres of fuel remained.
37 The trial Judge considered the evidence of Mr McCambridge in this respect to be important. She said that it indicated that, notwithstanding the evidence of pilots and experts concerning the pre-flight checks which are made 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 as to remaining fuel from Mr Mickelberg's comment that half an hour's fuel had been used, cross-referenced with the fuel gauge reading. In either case, her Honour said, he relied on the fuel gauge to some extent.
(Page 13)
38 It also seems from the evidence that, on 25 February 1986, Aerodata received from Ray Dickinson Electrics an invoice, bearing that date, in respect of an attempt to repair a "fuel flow transducer", apparently being the Hoskins system. The invoice records that the transducer "failed on test" and that it was "u/s". Mr Mickelberg's signature appears on the invoice, apparently for the purpose of authorising payment of it.
39 On 27 February Mr Mickelberg flew SDO on its last flight. Had he carried out a visual inspection of the fuel tank he would not have seen any fuel. There is no evidence about the reading on the fuel gauge when he started the engine. The Hoskins system was, to his knowledge, useless. While he would have been able to calculate the remaining fuel from records of previous flights, there was no evidence whether or not he did so. There was also no evidence whether or not he checked the maintenance release, which was later located in the wreckage of the aircraft.
40 The trial Judge found that, if Mr Mickelberg assumed that, after refuelling the fuel tank on 22 February, it held 556 litres, then, if he had performed a calculation of remaining fuel on 27 February, he would have realised, from the available records, that only approximately 230 litres of fuel remained in the tank, although, as I have said, Mr Theodore's calculations reveal that there would then have been only 162 litres of fuel in the aircraft. If there had been 230 litres of fuel in the tank, this would have been enough for a flight of only one hour and thirty-three minutes (not including reserve time). Even this was insufficient for the flight in fact undertaken. Whatever else might have been the position, there is no doubt that the aircraft crashed only because it ran out of fuel.
The critical findings
41 Against this background the trial Judge made a number of critical findings.
42 She found, firstly, that Mr Mickelberg had been negligent. She said (pars 114 and 115):
"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
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- 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."
43 Her Honour went on to say (at par 122) that:
"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 … . [T]he deceased had … 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 … 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."
44 Still later (at par 133) her Honour said:
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- "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."
45 The trial Judge also made a number of findings of significance in relation to Mr Truscott. She said (par 89) that:
"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 reoccurred, 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."
46 Later, her Honour said (pars 119, 120 and 121):
"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.
(Page 16)
- 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."
47 At par 122 her Honour found that all the evidence supported 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.
48 Her Honour said (par 123) that she could not accept Mr Truscott's evidence that maintenance release 76866 which, Mr McNamara said, recorded his note of the reoccurrence of the fuel gauge fault, was not relevant when undertaking the 120-hour service. A visual inspection of the fuel gauge would not necessarily reveal an intermittent fault.
49 Her Honour went on to say:
"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
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- 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 [an expert called at the trial] 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."
50 However, her Honour went on to say that she was 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. She went on to say:
"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
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- 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."
51 Her Honour went on to conclude (pars 130 and 131):
"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."
52 She consequently dismissed the appellant's claim against both Aerodata and AGA.
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53 I am, with due respect, unable to accept her Honour's conclusion that AGA, through Mr Truscott, was not negligent.
54 SDO was not airworthy. The fault with the fuel gauge was a major defect and not a "permissible unserviceability". That being so, no maintenance release should have been issued in respect of the aircraft until such time as the fault had been remedied. The issue of a maintenance release fell within the exclusive authority of Mr Truscott.
55 Mr Truscott should not have issued maintenance release number 76866 on 8 January 1986. He could not then have been satisfied that the fuel gauge was not defective. He knew of Mr Dickinson's concern that there might be a fault with the sender unit. More importantly, Mr Truscott should not have issued a maintenance release on 22 February 1986. While he had not seen the previous release, number 76866, because it was unavailable, the onus remained upon him to enquire what, if any, faults might have been noted upon it and, if any, whether they had been fixed. He knew of the earlier problem with the fuel gauge but made no inquiry of anyone as regards the question whether or not that fault had been satisfactorily attended to. As, indeed, the trial Judge found, it would have been prudent for him to have made such enquiries. That was so, in my opinion, even though he had not been told of the "re-emergence" of the problem. Knowing that the problem was intermittent, he had not been told that it had been remedied. He must have known that the aircraft would be flown in reliance upon the clear maintenance released issued on 24 February. I have earlier mentioned that her Honour said that all the evidence supported a finding that Mr Mickelberg was entitled to rely on the clear maintenance release issued on that day as certification that all faults had been rectified. Moreover, because Mr Truscott knew that the fault in the fuel gauge was intermittent, he should have known that it might not have been manifesting itself at the time of Mr Dickinson's inspection or, for that matter, at any other material time.
56 The risk that a pilot might rely upon the accuracy of the fuel gauge (even though this was not regarded as a prudent practice) in the light of the clear maintenance release was not far-fetched or fanciful. It was, in my opinion, a real risk which was reasonably foreseeable. Moreover, a person who owes a duty of care to others, as AGA, by Mr Truscott, plainly did (there having been no real dispute as to this), must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety. (See McLean v Tedman (1984) 155 CLR 306 at 311-312; March v
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- E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 519, 520, 536-537; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431; and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 454). In any event, even if Mr Mickelberg should not have relied exclusively upon the fuel gauge, the fact remains that he was denied this means of protecting against any error which he might have made in the course of calculating the amount of fuel remaining in the aircraft.
57 In all of the circumstances, Mr Truscott, and therefore AGA, was, in my respectful opinion, undoubtedly negligent in issuing and signing maintenance release 76877.
58 I am also unable to accept her Honour's conclusion that any negligence on the part of Mr Truscott did not cause or contribute to there being insufficient fuel for the flight on 27 February.
59 The trial Judge found that Mr Mickelberg did not know, on 27 February, that the fuel gauge was giving an inaccurate reading. While that finding has been challenged on behalf of the respondent, it was, in my opinion, reasonably open to her Honour. Mr Mickelberg knew of the service which had been carried out on the aircraft prior to that release and it seems to me to be probable that he assumed that any fault in the fuel gauge had been repaired or at least that the fuel gauge was then regarded as serviceable. While it is true that the discussion with Mr Elliott about the cost of a sender unit, and the decision not to order one, took place on 12 February 1986, after the major service had commenced, the fact remains that the clear maintenance release was issued 12 days later, on 24 February 1986.
60 While it might also be inferred that someone had, at some time in late February 1986, asked Ray Dickinson Electrics to attempt to repair the Hoskins system (and the precise timing of that request is not clear from the evidence), it does not follow from that, in my opinion, that Mr Mickelberg should be taken to have known, after the issue of the clear maintenance release on 24 February 1986, that the defect in the fuel gauge had not been repaired. There is no evidence that Mr Mickelberg made any such request. Mr Dickinson testified that it was "Mr Doig" ( presumably a reference to Mr Doyle) who brought the transducer in for him to check. However, even if the request originated with Mr Mickelberg, that does not establish that he knew, on 25 February 1996, that the fuel gauge was still defective. He may well have wanted both items repaired. Alternatively, he may have wanted the Hoskins
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- system repaired at a time when he knew the fuel gauge to be unserviceable but still assumed, on getting the clear maintenance release, that the fuel gauge had been repaired.
61 The finding as to Mr Mickelberg's lack of knowledge, on 27 February, that the fuel gauge was giving an inaccurate reading appears also to be supported by the fact that Mr Mickelberg did not tell Mr McCambridge, on either 24 February or 25 February, that there was any fault with the fuel gauge. Had he known that the fault was still present, it seems to me to be very probable that he would have told Mr McCambridge of it.
62 We were referred to some authority which, it was suggested, stood for the proposition that a pilot cannot abdicate responsibility for the safety of a flight of which he is in command. That proposition may very well be true. However, that does not mean that, in endeavouring to live up to that responsibility, a pilot can never rely upon what has been said or done by others, or that no other person can be jointly responsible, with the pilot, for some lack of safety.
63 There is, in the end, no escaping the fact that the aircraft crashed because of a lack of fuel and that, if the fuel gauge had been working, this would very probably not have happened. There is also no escape from the fact that if AGA, by Mr Truscott, had lived up to the responsibilities entrusted to it, the aircraft could not have been in the air until such time as the defect had been fixed.
64 I am consequently satisfied that her Honour erred in failing to find AGA liable, as a consequence of Mr Truscott's negligence, to pay to the plaintiff damages arising from the death of Mr Mickelberg.
65 That leaves the question of contributory negligence.
66 Mr Mickelberg was, as her Honour found, also negligent. He had plainly known of the defective fuel gauge. Despite this, he did not check, prior to flying the aircraft on 27 February 1986, that the fuel gauge had been repaired. This was so notwithstanding that he was, as her Honour found, responsible for ascertaining whether there was sufficient fuel for his intended flight. Indeed, the expert evidence accepted by her Honour demonstrated that this should not have been done merely by reference to the fuel gauge, even if the fuel gauge had been working. There is consequently an inescapable conclusion that he was negligent, not only in failing to check that the fuel gauge had been repaired, but also in either
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- failing to perform any calculations of the amount of fuel used or in failing to perform those calculations accurately or, for that matter, in failing to refuel the aircraft.
67 If Mr Mickelberg's negligence is compared to that of Mr Truscott, it seems to me that the principal responsibility for the accident must rest with Mr Mickelberg himself. While Mr Truscott's negligence in issuing the maintenance release led Mr Mickelberg to fly the aircraft when it should not have been flown and, very probably, to rely upon the fuel gauge when it could not be relied upon, the fact is, as I have said, that Mr Mickelberg should have taken other steps, or been more careful in taking other steps, to ensure that the aircraft had adequate fuel for his intended flight, that having been his personal responsibility. When regard is had to that omission, coupled with Mr Mickelberg's failure to inform Mr Truscott of the re-emergence of the defect in the fuel gauge or to make any enquiries, himself, as regards the question whether the defect had been repaired, it seems to me, as I have said, that he should bear the larger proportion of the responsibility for the accident.
68 In all of these circumstances an appropriate apportionment would, in my opinion, be one which ascribed 60 per cent of the responsibility for the crash on Mr Mickelberg himself and 40 per cent on AGA.
69 I would consequently allow the appeal, quash the decision of the Court below and substitute for the decision of her Honour a decision giving judgment in favour of the plaintiff against AGA for an amount equal to 40 per cent of the damages suffered by the plaintiff. The action will have to be returned to her Honour in order to assess the damages.
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