Page, E.M. v Byrne, J.W

ELAINE MARGARET PAGE v. JOHN WILLIAM BYRNE and FEDERAL AIRPORTS CORPORATION
LIMITED
No. G197 of 1992
RHONDA SCAMMELL v. JOHN WILLIAM BYRNE and FEDERAL AIRPORTS CORPORATION
LIMITED
No. G198 of 1992
FED No. 754/94
Number of pages - 33
Tort - Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
EINFELD J

CATCHWORDS

Tort - negligence - airplane crash - respective liability of pilot and airport operator for damages of passengers

Damages - apportionment between joint tortfeasors - principles

Wyong Shire Council v Shirt and Ors (1980) 146 CLR 40
March v E H Stramare Pty Ltd and Anor (1990) 171 CLR 506
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Franklin v The Gramophone Company Ltd (1948) 1 KB 542

Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld) ss. 5, 6.

Fleming: The Law of Torts (8th Ed) pp. 216, 262-3

HEARING

SYDNEY, 9 March 1993; 22, 23 April 1993; 5, 6, 7 October 1993; 8, 9 November 1993; 14, 15, 16, 30 March 1994; 21 July 1994
#DATE 12:9:1994

Counsel and solicitors C. Waterstreet instructed
for the first respondent by Lane and Lane

Counsel and solicitors P. Graham QC and J. Anderson
for the second respondent instructed by Corrs Chambers Westgarth

ORDER

The Court orders that:

1. in G 197 of 1992 the second respondent pay to the first respondent the sum of $23,100

2. in G 198 of 1992 the second respondent pay to the first respondent the sum of $9,545.04

3. liberty to apply be reserved for further or different orders for 7 days

4. the parties submit a minute of agreed orders as to costs or in the absence of agreement to make written submissions on costs by not later than 5pm on Monday September 26 1994

Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

INTRODUCTION
EINFELD J On Friday 13 April 1990 a Beechcraft Baron B55 aircraft VH-TSM (the plane) under the command of the first respondent, Dr John William Byrne, hit a lightpole and crashed onto a decommissioned runway at Brisbane International Airport. All three passengers were injured, and two of them, Elaine Page and Rhonda Scammell (the applicants), sought damages in this Court. At my urging earlier in the proceedings, their claims were settled out of court some time ago, leaving for determination the cross claims filed by each of Dr Byrne and the second respondent, the Federal Airports Corporation (FAC), against the other seeking contribution towards the applicants' damages. The third claim for damages is awaiting a hearing in the Queensland Supreme Court.

THE AIRPORT
2. In March 1988 Brisbane Airport (Eagle Farm), containing runways 04/22 and 13/31, was decommissioned and a new Brisbane Airport with runways 01/19 and 14/32 was opened. Parts of Eagle Farm lay within the boundaries of the new Brisbane Airport including a section of former runway 04/22.

The Federal Airports Corporation Act 1986 established the FAC which, pursuant to section 6(a), is to operate federal airports in Australia in a manner that, inter alia, ensures the safety of persons using them: s.7(2)(b). The land on which federal airports are constructed, including Brisbane Airport, is vested in the FAC by section 28(1). The FAC has no responsibility for air traffic control: s.8(2)(a).
The Civil Aviation Authority (CAA), established by section 8 of the Civil Aviation Act, has the functions set out in section 9 that include safety, air traffic control services, and the provision of an aeronautical information service. Regulations are made under section 98 of the CAA Act. Regulation 5(1) provides for directions to be given by the CAA in writing in certain circumstances. Its terms at the relevant time were:

5.(1) Wherever the Authority is empowered or required under these Regulations to issue any direction, instruction or notification or to give any permission, approval or authority, the Authority may, unless the contrary intention appears in the regulation conferring the power or function or imposing the obligation or duty, issue the direction or notification or give the permission, approval or authority in Civil Aviation Orders or otherwise in writing.

On 10 February 1989 the Chief Executive of the CAA issued directions, purporting to be under regulation 5, known as Rules and Practices for Aerodromes (RPAs). As will be seen, these directions were of considerable importance to the argument if not the resolution of this case. Hence their legal status is also important. Although the parties appeared to accept the CAA's assertion that regulation 5 was the legal justification for the RPAs, it seems to me that due to its very terms, it may not have been the appropriate enabling provision. The RPAs were not, as I understand them, "Civil Aviation Orders" although they certainly were "otherwise" in writing. But regulation 5 did not authorise the making of the RPAs. It merely permitted their issue in writing. At the time of the crash a regulation 92(2) was in effect as follows:

(2) The Authority may, in relation to:

(a) any aerodrome established under the Air Navigation Regulations or licensed or authorised under this Part; or

(b) any air route, airway or air route or airway facility established or designated under this Part;

issue such directions as the Authority considers necessary to ensure the safety of aircraft and compliance with standards, recommended practices and procedures adopted from time to time in pursuance of the Convention.

The Convention referred to is the International Convention on Civil Aviation known as the Chicago Convention. I shall return to it later. As I read the regulations, it seems to have been this regulation rather than regulation 5 which provided the statutory backing for the RPAs.
For the purposes of this case, the RPAs relevantly provided (Chap.11 p.1):

Visual Ground Aids (VGAs) are cues for pilots, marshallers and ground vehicle drivers to help them in ensuring safe aircraft operations. VGAs assist pilots to locate an aerodrome, determine the areas upon which it is safe and permissible to land (by providing visual information for safe landing and take off) and move aircraft safely on the aerodrome movement area .....

VGAs comprise markings and markers, lights and beacons, and indicators. The following requirements are mandatory provisions so that pilots can be confident that a visual aid has the same meaning wherever it appears, thus minimising confusion and enhancing safety.

Aerodrome operators are responsible for the provision, installation and maintenance of VGAs at their aerodromes. Before an aerodrome operator will be permitted to close an aerodrome permanently, all VGAs visible from the air are to be removed or obscured...

To prevent the introduction of new VGAs which could be confusing to pilots, aerodrome operators are to employ only VGAs included in the RPAs.

The relevant RPAs continue (Chap.11 p.48):

An unserviceability marking is used to indicate any part of an aerodrome movement area which is not to be used by aircraft. It is to comprise a white cross painted on any unserviceable portion of a runway.....

The unserviceability marking is to consist of two white lines 1m wide by 6m long, intersecting at right angles, and forming an equilateral cross... one cross is to be located at each end of the unserviceable area, with intermediate crosses spaced at intervals not greater than 300m.

As part of the decommissioning of Eagle Farm, the FAC undertook several steps, in observance of these guidelines, to reduce the likelihood of the two runways in the decommissioned aerodrome being mistaken for active runways. The evidence established, most significantly for this case, that the FAC painted over the identifying markings at the ends of each strip and, apparently, the two sets of centreline and edge or shoulder markings. It also painted some white crosses on the runways as unserviceability markers. In the case of former runway 13/31 the crosses were placed along the entire length of the paved surface as provided by the RPAs and were still visible at the time of the crash.
However, this process was only partly completed in the case of 04/22 where a north/south division was effected by an FAC roadway called Lomandra Drive, which ran roughly east/west intersecting 04/22 at right angles. The white crosses painted on this former runway were placed only on the portion south of Lomandra Drive (the southern section), almost all of which was subsequently ripped up and grassed over, removing virtually all traces of the landing strip and the white crosses. About 63 metres of paved surface remaining at the northern end of this southern section adjacent to Lomandra Drive contained no white crosses.
The part of 04/22 north of Lomandra Drive (the northern section) was a paved surface about 1,320 metres in length which also contained no white crosses at all. This area was within the boundaries of the new airport and was in use in various ways to service it. The northernmost part of the northern section, marked with a continuous yellow centreline, functioned as a taxiway, Taxiway Papa. The rest was used as an overflow parking area for aircraft and, later, as a designated compass swing area. The whole of the northern section of 04/22 was therefore not "part of an aerodrome movement area which is not to be used by aircraft": RPAs Chap.11 p.48.
Along the southern side of Lomandra Drive the FAC built several lightpoles 15 metres high at 60 metre intervals, the one hit by the plane (the lightpole) being 2 metres to the right of the centre of the southern section of 04/22. The FAC also built a low fence along the northern side of the road. Neither the fence nor the lightpole was clearly visible from the air against the background of the runway surface.
At some time during 1989, for reasons that are not presently relevant, some of the original runway markings on the last 63 metres of the southern section and along most of the northern section of 04/22 were either not or not properly blackened over originally or started to reappear through the asphalt. Specifically the centreline markings had re-emerged or remained so that by the day of the crash the first four centreline marks stretching for some 240 metres were clearly apparent. For the next 450 metres about 7 or 8 centreline marks were still partly blackened out but were visible from the air. The remainder of the northern section was Taxiway Papa, the centreline of which from the air was difficult to distinguish from a runway centreline. The edge or shoulder markings were also clearly apparent along everything that remained of 04/22. Also noteworthy, although not directly relevant to the crash, was the reappearance on the original southern threshold of 04/22 of the runway identification numbers and threshold markings ("piano keys"). A white cross was also visible at that site.
Thus, on the day of the crash, all the northern section and the remaining 63 paved metres of the southern section of 04/22 retained some of the features of a serviceable runway -- the same width as an international runway, the same distinctive shoulders that distinguish runways from other movement areas in an airport, and markings that could be observed from a distance including line markings in both sections going right up to the northern end of the northern section close to the new airport runways. Most importantly, the absence of any large, clearly visible white crosses placed at regular intervals along its length or any other unserviceability markings, meant that there was no clear sign that this area was out of use or unsafe for landing aircraft.
On the other hand, some key identifying features of a runway were missing. It was far too short to be runway 01/19, the main landing strip at an international airport, as the paved and marked area (the northern and southern paved sections combined) was at most only 1390 metres in all rather than the usual 3500 metres (ex.R27). It did not have the threshold markers, runway identification numbers, touchdown markers, fixed distance indicators or lights of any kind that, according to the evidence, invariably accompany a major international landing strip. 04/22 also had a different bearing to both new runways at Brisbane Airport.

BEFORE THE FLIGHT
16. Dr Byrne had obtained his restricted pilot's licence in 1976 and a commercial licence in 1981, although that licence was obtained purely to improve his standard of flying and he has never flown on a commercial basis. By April 1990 he had just under 700 hours of flying experience of which 7 hours was on a Beechcraft Baron. Dr Byrne had a command instrument rating, allowing him to fly his aircraft solely by reference to the instruments and radio navigation aids for which his licence was endorsed, viz. ADF (automatic direction finding) and VOR (Very High Frequency Omni-Directional Radio Range). He was not currently licensed to use the ILS (Instrument Landing System), but the expert evidence was that despite not being 'current', he was entitled to make use of the ILS in visual conditions as needed (ex.A19 p.5), though presumably not when the conditions required a landing by instruments alone. Also at Dr Byrne's disposal in the plane was the DME (Distance Measuring Equipment).

These instruments have some importance to the circumstances of this case. The DME uses radio signals to determine the distance of the aircraft from a particular radio beacon and its speed over the ground. In the case of Brisbane Airport the DME beacon is located at the northern end of the 01/19 runway, so that for aircraft approaching 01/19 from the south directly towards and along its centreline, the distance from touchdown is DME minus the length of 01/19 (almost 2 miles). The VOR and ADF provide tracking guidance by use of a fixed beacon and radio signals. The VOR is the more accurate and allows a pilot to track on a line from the beacon, called a radial, calculated by reference to degrees magnetic. The VOR beacon is located together with the DME beacon. The ILS is a precision instrument for approach and landing which also relies on radio signals and a beacon. It provides altitude guidance and track guidance on an axis from the centreline of the runway. Thus it will tell a pilot the position of the aircraft relative to an imaginary line extending indefinitely down the centreline of the runway. This imaginary extension of the centreline is often referred to simply as the centreline or, sometimes, the localiser. At Brisbane Airport, runway 01/19, and therefore the localiser, has a bearing of 16 degrees.
The flight in question was Dr Byrne's first to Brisbane Airport so, according to the evidence, he went to some lengths in preparation for the flight, which was to be an IFR (Instrument Flight Rules) and not a VFR (Visual Flight Rules) flight. He studied the Instrument Approach and Landing Charts (IALs) for Brisbane Airport, which provide diagrams and other relevant information for instrument landings. He also studied en route charts for the flight, showing tracks, lowest safe altitudes, distances from point to point, and the whereabouts of radio beacons. He obtained the appropriate weather forecasts by telephoning Brisbane Airport in advance and obtaining the current notices to airmen (NOTAMS) which he studied immediately prior to departing Albury. Dr Byrne also took the precaution of discussing his flight and Brisbane Airport with two more experienced colleagues in Albury. At some stage he presumably filed his flight plan, meaning that he informed the relevant authorities of his flight and proposed route.
He did not, however, study the en route supplement (ERSA) which specifically placed a decommissioned aerodrome to the south west of Brisbane Airport. Nor did he look at the Visual Terminal Chart (VTC) for Brisbane Airport, which clearly showed the existence and precise location of the decommissioned airport. The result of these omissions was that, although Dr Byrne was vaguely aware that there was a decommissioned airport near the new Brisbane Airport, he was unaware of their proximity or geographical relationship.

THE FLIGHT
20. By profession a medical practitioner, Dr Byrne was also a softball umpire and on 13 April 1990 was flying two other umpires and a friend from Albury to Brisbane for the National Club Softball Championships. The aircraft departed from Albury at 6.10am and flew to Tamworth, arriving at 8.20am. It left Tamworth for Brisbane at 9.10am and proceeded normally to Brisbane as an IFR Flight, that is, on instruments. On the final leg of his journey, Dr Byrne was authorised by the ATC to navigate into Brisbane on the 183 radial of the Brisbane VOR. This is a direct line running from the VOR beacon at Brisbane Airport at 183 degrees magnetic. On this line, Dr Byrne had a heading of 03 degrees, and so was to the right of the extension of the centreline of 01/19 with its bearing of 16 degrees.

As an aircraft approaches a major airport, conversations take place between the pilot and what is commonly known as air traffic control (ATC). There seem to have been three separate elements of ATC at Brisbane Airport at the time in question here. The first in point of time is apparently known as Control which conducts the conversations with pilots up to about 30 nautical miles from the airport. The second is called Approach which operates until just before landing. The third is Tower which gives permission to land and supervises the landing and what follows. All these conversations with pilots are tape recorded by ATC for later use if necessary.
However, the original tape recordings of Dr Byrne's conversations with ATC on the occasion in question could not be located for these proceedings and are presumed to have been lost or destroyed. What was produced therefore was a transcript prepared by Michael Cavanagh, the investigator appointed by the Bureau of Air Safety Investigation (BASI) to investigate the accident. Mr Cavanagh had listened to the tapes and made rough written summaries of what he heard. When these summaries were later typed, the actual conversations were further paraphrased. In fact two typed versions of the conversations were produced at different stages of the hearing which, although mostly consistent, contain some differences. As Mr Cavanagh's handwritten notes have also been lost, the result is that while the typed transcripts can provide a general indication of what was said, they require careful consideration on contentious matters including a search for other facts or reasonable inferences by way of corroboration. From this point in the flight on, the only evidence of events concerning the flight is Dr Byrne's memory and Mr Cavanagh's recollections of taped transmissions between ATC and the plane.
Mr Cavanagh's report, known as the BASI report, was in evidence, as was a radar plot prepared by him. The plot was made manually by a process that virtually guaranteed its inaccuracy (T218-222). Accordingly it does little more than provide one possible scenario for the course of the plane as it approached Brisbane Airport.

APPROACHING BRISBANE AIRPORT
24. The evidence, much of it uncontested, supports the following version of events. As Dr Byrne approached Brisbane Airport he was handed from Control to Approach probably about 30 nautical miles from the intended landing runway. Dr Byrne gave evidence that he told Approach soon after the transfer that he would be landing on runway 01/19 and that conditions were CAVOK (Cloud and Visibility OK). In fact the evidence suggests that this was not quite accurate, and that visibility was somewhat reduced. He switched from the VOR, which was keeping him on the 183 radial, to the ILS which indicated that the imaginary extension to the runway centreline was to his left.

At 10.36.22 (that is, just after 10.36am), Approach instructed Dr Byrne to descend to 1800 feet and to report runway 01/19 in sight. Dr Byrne asked the controller to confirm that his aircraft was then to the right of the centreline (meaning the imaginary extension). In reply, according to Mr Cavanagh's transcripts of this communication (ex.R15):

The Brisbane Approach Control advised that the aircraft was about 1 mile right of centreline and about 9 miles to touchdown.

Dr Byrne then adjusted his heading to intersect the centreline.
His distance from the airport when he changed his heading was the subject of a great deal of conflicting evidence. The FAC contended that at the time of the deviation the plane was about 11 miles DME (which is the approximate equivalent of 9 miles from touchdown on the 01/19). Mr Cavanagh's radar plot also suggested that 9 miles was approximately correct. Dr Byrne accepted that the plane was about 1 mile from the centreline extension at the time of the deviation. However, he denied this communication from the Approach controller and suggested that the correct figure at the time of the deviation was closer to 6-7 miles DME or about 4 miles from touchdown. This single point was the most hotly contested fact in the case and took up a considerable proportion of the hearing time as well as, presumably, of its preparation. Despite the fact that this contest greatly increased the costs of this litigation, the FAC in written submissions after the conclusion of the oral and documentary evidence conceded

that at the end of the day, it is not relevant to the assessment of Capt. Byrne's airmanship if his aircraft was about 9 miles from the threshold of the 01 Runway at Brisbane International Airport or 3 1/2 - 4 1/2 miles from that threshold (ie 6 or 7 miles DME).

Similarly, Dr Byrne conceded in written submissions that

ultimately it is not relevant to the assessment of his airmanship whether (the plane) was nine miles from touchdown or six or seven miles DME.

Nevertheless both parties pressed the point as going to the worth and weight of their respective cases.
The centreline and the 183 radial, differing in direction by 13 degrees, converge as they approach the runway threshold where they meet. Therefore, assuming Dr Byrne was on or near the 183 radial, the closer the plane was to the centreline, the closer it was to the threshold of 01/19. The difficulty for the FAC's submission was that the point on the 183 radial that is one mile from the centreline is just over two miles from the threshold of 01/19 or about 4 1/2 miles DME. Even if Dr Byrne was on the 183 radial as much as 1 1/2 miles from the centreline, he would still have only been a maximum of 7 miles DME, or about 5 miles from touchdown on the 01/19.
In order to support its hypothesis, the FAC therefore had to place Dr Byrne a mile off the 183, almost two miles off the centreline, and even then Dr Byrne would only have been 7, rather than 9, miles from touchdown on the 01/19. The FAC addressed the problem that its calculation put the plane so far off the 183 radial, despite Dr Byrne's evidence to the contrary, by suggesting that he unknowingly drifted off that radial in the short time (about 1 minute) between changing from the VOR to the ILS and changing course. The FAC also had to argue that the controller's 1 mile estimate, as recollected by Mr Cavanagh, was only a rough indication, and it drew complex mathematical inferences from other details in the Cavanagh transcripts that tended to support a position somewhere between 7 and 9 miles DME.
The FAC said that the fact that the crash occurred at 4 DME some 3 minutes 21 seconds after Dr Byrne claimed to have been at 6-7 DME, necessarily means that he would only have travelled 2-3 nautical miles in that time, at a ridiculously slow average speed of 35-53 knots. Although this submission ignored the fact that during this period the plane was not travelling directly toward the DME beacon but tangentially to it and not necessarily in a straight line, it is still difficult for Dr Byrne to account fully for the time between this communication and the crash if the plane merely travelled during that period from a point on the 183 radial at 7 DME (to take the position most favourable to him) to the crash site. The speed of the plane, generally agreed to be between 110 and 120 knots during the period, supports the inference that it must have been more than 7 DME at or just after the 10.36.22 communication with ATC. Though not by themselves determinative, both Cavanagh transcripts and his radar plot reinforce and support this conclusion.
Both parties attempted to justify their respective propositions by calling in aid what is known as the "one in sixty rule". This rule expresses the mathematical principle that an aircraft which is one degree off track will, in sixty miles, be one mile from where it should be. In the circumstances of this case it amounted to no more than a complicated way of expressing the calculations outlined earlier. But as it seemed to me, all this geometry was really theory and hindsight designed to address and assess the accuracy of the controller's statement that Dr Byrne was 9 miles from the runway when he deviated. It is certainly possible that one of the suggested hypotheses was true but without specific expert evidence to establish or convincingly imply that one of them was or probably was the position, each of the explanations was, to me as a person with no prior or independent knowledge of this area of human endeavour at all, too speculative to find as a fact. The fact that neither scenario is neatly supported by the evidence is also an indication of how inexact and unreliable was the evidence of the movements of and communications with the plane.
I have not reached any firm conclusion regarding the precise position of the plane before the deviation, as the parties' attitude to the matter at the end of the case which I have earlier quoted, and my own assessment of the legal principles involved, make it unnecessary. Certainly from such an evidentiary conflict there can be no adverse inference against the credit of the witnesses of either side; differing opinions may be expected and must be accepted in the circumstances.
What can be found with some certainty is that however far he was from runway 01/19 when informed that he was 1 mile to the right of the centreline, Dr Byrne adjusted his heading by between 20 and 30 degrees to the left, to allow the plane to intersect it. There is no evidence that Dr Byrne was ever instructed to change his flight path from the 183 radial in this way, as required by regulations then in force, but ATC was clearly aware that he had done so when, according to an undisputed entry in the Cavanagh transcripts at 10.36.54, about 20 seconds after the deviation, he was advised by Approach that he was on or crossing the centreline. However, instead of turning to align with it for a straight in approach and landing, Dr Byrne continued on his then current heading, passing through and across the centreline.
There is also no evidence that ATC indicated to Dr Byrne at any time thereafter that he was proceeding in an inappropriate manner or that he change course again. The evidence simply does not support the rather odd contention of the FAC that Approach was giving Dr Byrne "subtle hints" to redress his situation. Whilst perfection in all respects is usually reserved for the ethereal or the divine, I cannot imagine that movements of aircraft around major airports, with all their potential for disaster, are or could be left to subtleties or inferences. The evidence has not in any event permitted me to detect the so-called "hints", subtle or otherwise.
During the 10.36.54 communication Dr Byrne indicated that inflight visibility was reduced and that he did not have the runway in sight. At this point it would appear that had Dr Byrne looked down the correct heading, 016 degrees, or between 35 and 45 degrees to the right of his then current heading, he would have seen runway 01/19. Almost one minute later, at 10.37.50, Approach asked Dr Byrne again if he had the runway sighted. Upon his negative response the controller told him that he was to the left of the centreline and that permission for further descent would be given in two miles. The expert evidence was unable to pinpoint his precise distance from the runway threshold at that time. Shortly after, Dr Byrne spotted the northern section of decommissioned runway 04/22 and, mistaking it for runway 01/19, indicated at 10.38.05 to Approach that he had sighted the runway. The controller cleared Dr Byrne for a straight in visual approach and told him to call Brisbane Tower. It seems that this communication was the first time Dr Byrne had been cleared to change his course from his original heading on the 183 radial.

THE LANDING
38. On contacting Tower, Dr Byrne was instructed to continue his approach. He agreed with Mr Cavanagh's transcripts that at about 10.39.15 there was an exchange between him and Tower in which he asked whether he was sighted and Tower replied in the negative. Dr Byrne stated that he had been growing increasingly concerned about the runway and that, upon receiving this communication, he commenced to 'go around', meaning that he aborted his approach and proposed landing with a view to trying again.

However, Mr Cavanagh's transcripts recorded a further communication at 10.39.43 in which Dr Byrne confirmed he was visual, meaning that he could see the landing runway. If this communication took place, and it is categorically denied by Dr Byrne, then it must have occurred merely seconds, even fractions of a second, before impact. It would raise a doubt whether Dr Byrne had in fact been earlier concerned about his location, and would rebut his assertion that he commenced to go around immediately after being told that he was not sighted. Yet Dr Byrne was quite definite that this communication did not occur and his lawyers submitted that the crash had already happened by this time. It is certainly capable of creating a mysterious juxtaposition with the communication at 10.38.05 where Dr Byrne's first sighting of the runway is noted. It is true that the earlier communication was with Approach and the later one with Tower and there was no evidence as to whether these controllers communicated at all at the time of the change from one to the other or whether the Tower controller would have overheard the earlier communication. No doubt Tower would have been more than a little perturbed that a plane supposedly about to land on the main airport runway was not in its sight so that a further inquiry about Dr Byrne's positional capacity to land might not be exactly surprising. However, it seemed to me odd that there was evidence neither as to why being visual would have needed confirmation nor that it was unusual that it be confirmed.
One of the two versions of Mr Cavanagh's paraphrase of the 10.39.43 communication reads (ex.R16):

The pilot was asked by Tower to confrim (sic) that he was visual. The pilot confirmed this.

The other transcript records (ex.R15):

The pilot confirmed to the Tower that he had visual contact with the runway.

It is certainly possible that there was some communication from Tower at that time, but that Mr Cavanagh was mistaken in recording the pilot's confirmation. Perhaps the crash was occurring or had occurred, or for some other reason Dr Byrne did not hear or respond to the communication, but Mr Cavanagh gleaned, deduced or believed that he heard a response. I believe these possibilities to be unlikely. If there was a response at that time, it would not have been a simple conversational "yes" to a simple request for confirmation that he could see the landing runway. The request would have been something like "Control (or Tower) to Tango Sierra Mike: are you visual?" The confirmation would be likely to have taken a form something like "Tango Sierra Mike: affirmative". An experienced investigator like Mr Cavanagh is unlikely to have mistaken hearing such an exchange. He certainly had no interest in inventing it, nor was it suggested that he did. His job was to listen to the tape and record what he heard in the circumstance that he was investigating a serious accident that could have been a major tragedy. Both sides considered Mr Cavanagh a reliable and impartial witness, as was also my unmistakable impression. There is no reason to believe that he would have done his job other than competently and recollected the cockpit conversations as honestly as possible, to the extent not only of recording what he heard, but of admitting, if it be the case, that he was not sure about any particular part of what he recorded.
Another possibility which I have considered is that the summarised statement that he was "visual" was not Dr Byrne stating that he could see the runway but a conversation about whether the plane was "visible" to the Tower controller or even whether the Tower itself was "visible" to Dr Byrne. Such a communication would be more consistent with what had been taking place immediately before this suggested exchange and with Dr Byrne's earlier satisfaction at 10.38.05 that he had at last caught sight of what he believed was his landing runway.
One major problem with a possible mix-up over what was talked about at 10.39.43 is that Dr Byrne did not assert a mistranslation by Mr Cavanagh from what was actually said to what was recorded. To the contrary, he denied any conversation at that time at all and in fact alleged through his lawyers that the crash had by then already occurred. As a consequence this thesis was not put to Mr Cavanagh in cross examination and his attitude to the proposition is thus unknown.
This is not merely a matter of legal technicality. In a case where every possible point was exhaustively made, either in evidence or submissions or both, it must be assumed that the omission to raise and investigate this matter was deliberate and for good reason. Moreover, Mr Cavanagh's testimonial credibility was such that a denial cannot be assumed merely because he was called as a witness by the FAC. It is true that inaccuracies were conceded to exist in the Cavanagh transcripts but they were generally small errors explained by the mishearing or misrecording of a detail or a slight misunderstanding of a communication when paraphrasing it. But there is a difference between that kind of error and the recording of a conversation that did not take place at all or a misrecording of a matter of such importance as whether a runway or a plane or the airport tower was being sighted. The matter must simply be dismissed as mere speculation.
On the other hand, Dr Byrne's evidence in general was manifestly and inherently credible. In other places he was reasonable about making concessions even when it was not always in his interest to do so, and he was generally willing to accept that his memory of each and every communication with ATC may not have been complete. Moreover, in itself his denial of this particular communication was quite convincing, and an admission of its occurrence would not have done serious damage to his overall case although it would have required some adjustments including as to when precisely he decided and commenced to go around. After all, as will be seen, there was expert evidence that it was safe and good practice for pilots even of large aircraft to continue an approved approach to as low as 10 feet off the ground without permission to land.
However, this conflict must be resolved and, after some concerned contemplation of the kind I have earlier outlined, I have come to prefer the evidence of the Cavanagh transcripts on the point. In my opinion Dr Byrne was mistaken in denying that the 10.39.43 communication occurred. The most likely scenario is that Dr Byrne continued to descend after being told, at 10.39.15, that he was not sighted. Either aware of what had passed between Dr Byrne and Approach, or assuming that he would not have been handed over to them if he was still looking for his landing runway, Tower was no doubt worried that he was apparently quite close to a landing and yet could not be seen, so it requested confirmation at 10.39.43 that he could still see the runway. Continuing to mistake 04/22 for 01/19, Dr Byrne gave confirmation. However, he quickly realised that this communication demonstrated that although he had descended to almost 50 feet above the ground, he was still not sighted, or at least that Tower had doubts about his location. Coupled with the inadequate appearance of 04/22 as an international runway, this communication caused Dr Byrne to realise finally that he was or probably was in the wrong place and he commenced, or had already begun, to go around. Thus it was the 10.39.43 communication rather than the one at 10.39.15 that Dr Byrne remembered as triggering his immediate reaction to abort the landing. Almost immediately, the aircraft struck the lightpole near the middle of old runway 04/22 and crashed onto the tarmac.

THE TWO CROSS CLAIMS
48. In paragraph three of its cross claim filed on 17 September 1992, the FAC claims that Dr Byrne's negligence was such that he should bear full responsibility for the losses and damage suffered by the applicants. It made several allegations of negligence to support this submission:

(a) his inadequate pre-flight preparation

(b) his less than competent use of electronic aids in flight

(c) his failure to visually locate the correct runway

(d) his failure to identify and act on visual cues indicating that he was not lined up on runway 01/19

(e) his decision to descend to 50 feet on approach to old runway 04/22 without a final clearance to land

That there was no assertion in the cross claim itself that Dr Byrne was negligent in deviating from the 183 radial or in failing to turn onto the centreline when he reached it after the deviation was the subject of some argument at various stages in the case and during submissions at the end. In my opinion the matter was well telegraphed in evidence and outlines of argument before the case, fully canvassed at all stages of the evidence, and comprehensively covered in submissions. No prejudice was identified or caused by the litigation of this issue. I therefore overruled these objections.
Dr Byrne made two major assertions as to the FAC's negligence in his amended cross claim dated 21 April 1993:

(a) its failure to ensure that 04/22 no longer had the appearance of a runway

(b) its placement of the lightpole so that it could, without being able to be seen from the air, obstruct aircraft approaching what could be mistaken for a runway, or at least a strip that still appeared to be a safe place to land in an emergency

THE LEGAL PRINCIPLES
51. Sections 5 and 6 of the Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld) relevantly provide:

5. Where damage is suffered by any person as a result of a tort...

.....

(c) Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is ... liable in respect of the same damage, whether as a joint tortfeasor or otherwise...

.....

6. In any proceedings for contribution under this Part of this Act the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

The process under this and similar legislation elsewhere involves much the same kind of apportionment as occurs between a plaintiff and defendant when a degree of contributory negligence is established: Fleming, The Law of Torts (8th Ed) pp. 262-3. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, the High Court described apportionment in this context at 494 as follows:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

The task in this case is therefore to ascertain any negligent acts of each of the respondents that contributed to the accident, and then to assess relatively the degree to which each should be accorded responsibility for the applicants' damages based upon the degree of departure from the standard of the reasonable person in the particular circumstances, and the importance of each party's acts in causing the damage.

THE EVIDENCE 54. Before considering the specific allegations of negligence against each of the parties, it is appropriate to outline in brief the expert evidence upon which my conclusions are based. Apart from Dr Byrne himself, called primarily as a witness of fact, the first respondent called three experts. John Wilson described himself as a "Consulting Engineer - Airports" to a firm in Victoria. Since 1979 he has specialised in airport planning and design, and has been engaged in technical work relating to some sixteen airports. His evidence related principally to the condition of runway 04/22 at the time of the accident and was generally to the effect that the precautions taken by the FAC in relation to 04/22 fell below what could be considered a normal or acceptable standard. Raymond Clamback was a pilot with 20 years experience as a flying instructor. I found him to be an honest and reliable witness. His evidence related to the reasonableness of Dr Byrne's behaviour before and during the flight, and to the likely effects on a pilot of the markings on 04/22. Victor Walton was another very experienced pilot whose evidence I found similarly credible and useful. He testified to the standard of Dr Byrne's airmanship and the likely causes of the accident. Since giving evidence, Captain Walton has died.

The FAC called five experts. Michael Cavanagh, to whom I have already referred, was the author of the BASI report which was in evidence. I have previously recorded his acceptance by both sides and by me as an impartial and fair witness. The Senior Technical Officer, Ground Operations, of the FAC at Brisbane, Richard Hall, gave technical and substantially uncontested evidence of the status of the old and new airports at Brisbane and of their history and precise status at the time of the accident. Gregory Richardson is another experienced pilot with over 35 years flying experience, who has held numerous positions in the RAAF and CAA. At the time of the crash, and for some time prior to it, he had responsibility, as Senior Flying Operations Inspector, for inspecting air routes and aerodromes in Queensland for the CAA. He gave evidence about Dr Byrne's airmanship and competence, and the sufficiency of the markings on 04/22. Much of his principal statement, exhibit R29, which formed most of his evidence in chief, was legal conclusion and argument, and thus provided no real assistance, but his evidence under cross examination was instructive. Ronald Anderson, a commercial pilot with what used to be Australian Airlines, was called both as an expert pilot and to evidence a personal experience at the same airport at about the same time when he had temporarily mistaken 04/22 for 01/19. Kevin Dollery, a pilot and instructor for 36 years, was also employed by the CAA. He gave evidence about the adequacy of Dr Byrne's airmanship both before and during the flight, and the adequacy of the markings on 04/22. Like most of the other expert pilots, he was cross examined at great length, but to little practical effect, on the plane's location at the time of the divergence from the 183 radial.
I also had the benefit of a substantial amount of non-verbal evidence in the form of documents, plans, maps, a video film and some photographs. The photographs (exs.A1, R6, A13, A14, R24, R31) were of considerable assistance in the reconstruction of the appearance and condition of 04/22 and its environs. So was the videotape reproduction or re-enactment of aspects of the flight of the Beechcraft Baron (ex.R8). Similarly the airport diagrams (exs.A1.2, A14 A17, R26) provided general assistance on uncontroversial points, although I derived little from the charts provided for other airports around the country (ex.A3) and those produced purely for the purpose of allowing witnesses to engage in geometric computations (exs.A36, R37, A38). The Visual Terminal Chart for Brisbane Airport was also in evidence (ex.R4). Of the documentary evidence the most important items were the BASI report, a draft report (ex.R9), Mr Cavanagh's transcripts (exs.R15, R16) and radar plot (ex.R11), and the relevant extracts from ERSA (exs.A18, R21.8). Otherwise the documents largely took the form of reproductions of relevant regulations and rules.

THE CASE AGAINST DR. BYRNE
57. It is convenient to deal firstly with the allegations of negligence made against Dr Byrne. They broadly fell under two headings:

1. that he departed from his approved flight path without authorisation, and then failed to turn onto the localiser when he reached it, and

2. that he descended to within 50 feet of 04/22 without a final clearance to land.

Deviation from flight path
58. The FAC submitted that had Dr Byrne behaved with all reasonable care, and in accordance with his authorisations from ATC, he would either have stayed on the 183 radial or, at the very least, turned again when both the air traffic controller and his own instruments told him that he was on and crossing the centreline. He would at least have looked to the right at the centreline when he would have seen 01/19 ahead. This was the opinion of both Captains Richardson and Dollery. Captain Richardson went so far as to say that the deviation from the 183 "was a gross and serious deviation from the correct procedure which should have been followed" (ex.R29 p.4. See also Capt. Dollery ex.R35A p.5). In reply, Dr Byrne's experts barely addressed the issue, although Captain Walton did comment in his statement, which was his evidence in chief, that "I see nothing wrong in this decision (to deviate from the 183)" (ex.A33 p.4). He adhered to this conclusion in cross examination (T736, T755), but conceded that on reaching the centreline, a reasonably competent pilot would have turned to the right (T743). The FAC submitted that had Dr Byrne followed the proper and prudent course he would never have come anywhere near 04/22.
I accept that this deviation and the failure to make a second turn after the first was made or to look to the right when on the centreline, did not constitute reasonable conduct in the circumstances, but am not persuaded that they were relevantly causes of the accident. In March v E H Stramare Pty Ltd and Anor (1990) 171 CLR 506 Chief Justice Mason held at 512 that, despite the operation of apportionment legislation,

... there will be some cases in which a court concludes that a precondition does not play such a part in the consequence that it deserves to be characterized as a cause.

Thus just because an act is or may be a necessary precondition to an event does not necessarily mean that, at law, it is a cause of that event. His Honour continued at 516:

The commentators acknowledge that the "but for" test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater.

In my opinion the negligent diversion of Dr Byrne, his failure to turn once he had deviated or his failure to look to the right when reaching the centreline, although necessary preconditions of the accident, were such factors. The case is like that postulated by Fleming (ibid) at page 216:

Suppose once more that, while speeding, a car is hit by a falling tree... The specious argument that the speeding was causally relevant because the victim would not otherwise have reached the cause of the accident when he did, is most effectively met by pointing out that the purpose of the speed rule is to guard against the risks flowing from lessened control over the vehicle, not to ensure that a driver reaches a given spot at any particular time.

The logic of this statement applies equally where the final cause of the accident is some further negligence of the driver or some intervening force or event.
It was accepted by all the experts that the role of the air traffic controllers, and the rules they administer, are primarily "the separation of aircraft" (see for example Capt. Richardson ex.R29 p.9). Thus the rule against deviating from an approved flight path is primarily designed to prevent planes colliding in the air, not to prevent pilots being distracted or confused by what they might see on the ground. Perhaps a more appropriate analogy than Professor Fleming's example would be where a speeding driver gets lost and as a result is going too fast on a dangerous piece of road and causes or suffers injury. Even if the eventual accident is a result of both the nature of the road and the fast driving, the earlier negligence of getting lost is not a relevant cause.
Mr Cavanagh did not list in the BASI report the deviation and failure to turn onto or to look down the localiser as causes of the accident. Nor was there any evidence in this case to suggest that the deviation and failure to turn again or look put Dr Byrne in an inherently dangerous position in the sky or increased the risk of injury to the applicants. Crashing into a lightpole at or near the centre of former runway 04/22 was not within the risk taken by a pilot in the position of Dr Byrne deviating from his approved path, and failing to turn again or look. Thus these acts of negligence were not at law causes of the crash: see March at 535 per McHugh J.
Indeed it is not at all impossible that pilots of aircraft on approach to runway 01/19 from a slightly different direction could find themselves approaching and overflying 04/22 while following their allotted flight paths and making no negligent deviation at all. The evidence of Captain Anderson supports this conclusion. Two days after Dr Byrne's crash Captain Anderson, flying a Boeing 737 on a regular Australian Airlines flight from Melbourne to Brisbane, also mistook 04/22 for 01/19, although he soon realised his mistake and landed safely on 01/19. He was called as a witness by the FAC to demonstrate how Dr Byrne should have behaved once the initial misidentification had occurred. In cross examination on the point, he insisted (T598) that he had exercised good airmanship until he misidentified runway 04/22. This evidence would seem to determine conclusively that a pilot approaching 01/19, despite exercising all reasonable care, could be in substantially the same situation as Dr Byrne at the point where he misidentified runway 04/22.
Another way of putting this conclusion is that a deviation from an approved flight path, even so close to landing, does not create or appreciably increase a foreseeable risk that a plane will collide with a lightpole and crash to the ground. In fact, as I understood the evidence, because a deviating plane will have to spend some time getting back on track, it may be more likely to collide with another plane than a lightpole, although no evidence was led to suggest that this alternative risk was anything but slight. I believe that the conduct of Dr Byrne in deviating from his approved flight path and failing to turn again or look to the right are not relevant to and ought not to be considered in the apportionment of blame between the parties.
Descent towards 04/22
67. Quite separate is Dr Byrne's descent towards 04/22 in error for runway 01/19. In my opinion this error was a true cause of the accident. The FAC alleged that several aspects of Dr Byrne's conduct contributed to this mistake but they may conveniently be summarised under three headings:

(a) Inadequate preparation and documentation
68. First, the FAC said that had Dr Byrne's preparation for the flight been adequate, the descent and therefore the accident would never have occurred. The suggestion was that with better preparation, Dr Byrne would have had a more complete mental picture of what he could expect to find at Brisbane Airport, including the whereabouts of the decommissioned runway. In this event the misidentification would not have been possible.

In this regard, although the FAC's cross claim listed six publications or types of document that Dr Byrne failed to study before the flight, it was only seriously suggested in fact that he should have consulted the VTC for Brisbane and the ERSA. The VTC is actually a colour chart showing in detail all the landmarks observable from the air surrounding Brisbane Airport. It includes a warning "CAUTION ABANDONED RUNWAYS" indicating runways to the south-west of 01/19. The diagram shows quite accurately the position of the entire 04/22 as it would have been before the grassing over of half of it and the construction of Lomandra Drive. It is not, however, an accurate representation of its current appearance.
It was submitted on behalf of Dr Byrne that even a careful examination of the VTC would not have alerted him to the condition of 04/22. The suggestion was that the expression "abandoned runways" would most likely prepare a pilot for strips marked with white crosses, as was the case with old runway 13/31. Moreover, 04/22 was no longer connected to 13/31 as depicted in the VTC and was not otherwise marked in any way as an abandoned runway. It seems to me that had Dr Byrne studied the VTC, he would have been aware of the possibility of being confronted with at least one abandoned runway, especially on approach from the south. So warned, it is possible that he would have paid more attention to 04/22 to determine whether it was serviceable, although the higher possibility is that he would have thought the VTC reference was to former runway 13/31.
There was some disagreement between the experts as to whether a pilot conducting an IFR flight should have regard to the VTC which is primarily designed for visual flights. In cross examination Captain Anderson revealed that he did not carry the VTC, but relied instead on approach plates similar to those in fact studied by Dr Byrne (T577). Both Captains Clamback (ex.A19 p.4) and Walton (ex.A33 p.3) agreed that inspection of the VTC was neither necessary nor usual for an IFR flight. Although challenged, these conclusions were not impugned by cross examination. Captain Richardson, on the other hand, was quite certain that the VTC should have been consulted. He stated his belief that in every flight there is a visual component just before landing, and that the best device in preparation for this stage is the VTC (ex.R29 p.3). Captain Dollery stated that a pilot with Dr Byrne's limited experience should have consulted the VTC (ex.R35 p.4).
Based largely upon my assessments of the various witnesses' approach to this issue and the inferences I drew from their evidence on the subject, my conclusion is that the VTC could be useful as an extra aid to navigation, especially for a pilot inexperienced in the particular airport, but that a reasonably competent pilot in Dr Byrne's position would not have felt compelled to consider it. All the relevant information was contained in other documents. I find that failing to consult this map was not a breach of the pilot's duty of care.
I have reached a different conclusion with respect to ERSA. This is the basic document containing all pertinent information concerning aerodromes. It too would have alerted Dr Byrne to the general location of 04/22. Under the heading "Special Procedures", ERSA had an entry:

a. Decommissioned aerodrome 4 km SW of airport.

Whilst hardly an accurate description of the precise danger, an awareness of this warning would have made a pilot approaching from the south-west more vigilant to identify the correct strip. Furthermore, the weight of the expert evidence was that ERSA would have been consulted by a reasonably competent pilot in the circumstances. Clearly Captains Dollery and Richardson were of this opinion. Captain Anderson gave evidence that he does not carry ERSA, but he does carry a comparable set of documents known as Jeppersen which, according to him (T578):

are a copy of the AIP documents. They have a section called aerodrome ground aids which is similar if not identical to the ERSA.

The countervailing evidence led for Dr Byrne was inconclusive. Although both Captains Clamback and Walton stated (exs.A19 p.4 and A33 p.3 respectively) that consultation with ERSA was not necessary, they were unable to explain adequately how all relevant information is otherwise obtained. In my opinion, a reasonable pilot in Dr Byrne's position who did not see or carry the VTC should and would have consulted ERSA. His failure to do so was one factor which led to his misidentification of 04/22 as a functioning runway.

(b) Identification of 04/22 as international runway 01/19
76. The second aspect of Dr Byrne's conduct suggested by the FAC to have helped to cause his mistaken identification of the landing runway was his failure to realise that what he saw before him was not the principal Brisbane airport runway 01/19. The FAC led a great deal of evidence about the features of 04/22 itself that should have warned Dr Byrne that he was approaching the wrong strip, none of which was or could have been seriously contested. It was not in the position indicated by Dr Byrne's instruments for runway 01/19. As he approached 04/22 the ILS showed that the extended centreline of 01/19 was to his right and the DME showed that the runway itself was another 1 1/2 miles away. There were as well visual differences between 04/22 and what Dr Byrne could reasonably have expected to be the appearance of 01/19. In addition to its minimal markings and length mentioned earlier, 04/22 also did not have approach lights, T-VASIS lights (indicating to pilots the correct angle of approach), or touchdown lights, all of which would normally be switched on in low visibility, and were in fact illuminated on runway 01/19 on the day in question. 04/22 also had none of the terminal or other buildings that a pilot would expect to see and recognise on an approach to an international airport and which Dr Byrne might have anticipated based on the terminal charts he had studied. Nor were any other aircraft in the vicinity as might also be expected at a major city airport.

At the same time, it is important to establish barriers to or checks on the possibility of hindsight. Captain Clamback gave evidence (T409) that:

Once you're told to carry out a visual approach and the pilot has what he believes is the runway in front of him most other things are ignored and it is practice - at that stage of the flight a pilot would ignore anything else, wouldn't even be looking at it.

This inherently believable explanation, repeated by other witnesses and in submissions to explain why Dr Byrne, presumably relieved to have found a runway at all, did not pick up the warning signs that it was the wrong runway, must be given significant credence. Against its ultimate acceptance must be weighed the fact that many of the features that would have alerted Dr Byrne to the fact that 04/22 was not runway 01/19 should have been identified before he started his approach. The ILS and his heading, two key indicators that he was lining up with the wrong strip, should have been checked before descent, particularly since he was still not sighted by Tower and had been having trouble finding the landing runway to which he was supposed to be heading.
The evidence of Captain Anderson, which I found compelling, supported this view. In his expert opinion (ex.R30 p.4), even after final approach has commenced,

it is essential to engage in a process of confirmation of one's initial identification made at an altitude and distance well removed from the runway in question when all that you can usually see is a rectangular-shaped section of sealed bitumen.

On the whole, the evidence satisfied me that a prudent pilot approaching Brisbane airport should have been aware of the possibility of being confronted with another, perhaps 'wrong', landing strip. Despite all the features which demonstrated that 04/22 was such a strip, the final decision to abort was delayed until the plane was a mere 50 feet above 04/22, when Tower indicated to Dr Byrne that he was still not sighted, when he had not received a final clearance to land, and when he saw that the ILS did not have him on the centreline.

(c) Approaching to within 50 feet of a non-runway
81. The FAC alleged that at least in a general sense, there is an additional risk in continued descent over an area that is not intended for landing at all. I was pressed to find that in continuing to descend under the circumstances, Dr Byrne engaged in 'indiscriminate descent', increasing the risk to the people in the plane with every foot he descended. This risk was not specified by the FAC's witnesses or submissions but I presumed that it takes the form for this case of a general possibility that approaching low over an area not currently in service as an approach to a landing strip might result in an encounter with an invisible obstruction, such as the lightpole actually hit by Dr Byrne, that would not be expected on approach to a genuine runway.

In my view it is not possible or necessary to go that far. The experts called by the FAC merely stated that no pilot should descend to within 50 feet of the ground without final clearance to land or with any doubts about the strip they were approaching. Captain Anderson expressed the opinion that (ex.R30 p.6):

..... no reasonably competent pilot bringing to bear reasonable skill and care, could continue a descent below 500', whether flying a Boeing 737 aircraft or a Beechcraft Baron aircraft on approach to the Brisbane International Airport in the absence of a clearance to land or advice as to the expectation of a late clearance ...

Captain Richardson also gave evidence that unless a pilot is told to expect late clearance, he should not descend as low as 50 feet (T854; ex.R29.3 p.6).
The reasoning I drew from their evidence was that as the approach continued without permission to land, the increasing visual and instrumental signs would have alerted a reasonably competent pilot to the fact that 04/22 was not a runway at all even without the assistance of communications with ATC. Well before reaching 50 feet, it should have become clear from such signs as the existence of the road, the absence of lights and the inadequacy of markings that 04/22 was not a functioning runway at all. The unstated danger in proceeding was that the plane might encounter problems on the landing strip itself such as that it may be too short or have potholes or other ground-based hazards. I accept that evidence.
However, even these conclusions are not sufficient to establish any liability in Dr Byrne to contribute to the applicants' damages. Even if a reasonably competent pilot had determined that 04/22 was neither 01/19 nor a functioning and available runway at all, it does not necessarily follow that the earlier the plane went around, the safer for the passengers. 04/22 appeared to be a safe place to approach. There was no visible danger in continuing descent to allow further time to determine the correctness of the pilot's runway identification. Captain Richardson conceded that there was nothing, even late in the descent, that might have triggered an emergency in the pilot's mind (T850). The evidence did not establish that in normal circumstances a pilot approaching a landing strip who descends to 50 feet in a Beechcraft Baron without final clearance necessarily takes any significant or additional risk by doing so. Indeed there was support in the evidence for the proposition that a pilot can safely descend to 50 feet while awaiting confirmation of his identification of the strip as the correct one, before making a final decision whether to land or go around.
Further, the evidence was strong that a pilot in Dr Byrne's position could have expected to be able to go around safely at a very low altitude. Captain Clamback's view (ex.A19 p.5) was that it is quite usual for pilots to

be as low as several feet off the ground before the clear to land instruction is given.

This was an opinion which he strenuously defended under cross examination (T337). One example of Captain Clamback's position was (T361-2):

..... to go on below an altitude of 400 feet in an aeroplane such as a King Air or these Barons or Bonanzas or things, doesn't really mean anything. We teach people every day to go round from the go round point of about 10 feet, five feet above the runway .....

This was also the evidence of Captain Anderson whose opinion (T551) was that:

.... any reasonably competent pilot, no matter what aeroplane he's flying, could go round from any altitude.

Captain Walton said much the same (T739). His evidence included (T698) that a pilot approaching what he thought to be the correct landing strip would go around in the following circumstances:

Being told by the Tower that he had to go around, a visual sighting of something on the runway, some mechanical misfunction in the aircraft, an undercarriage light malfunction, any of those items would be sufficient to go around.

He later added a fourth item (T699):

Or observing something that is not right as far as the location is concerned, of course.

Even in this circumstance he would not go around without first informing Tower. Having conceded that a pilot should start thinking about going around at a greater altitude than 50 feet, Captain Walton explained (T716):

There is always the hope that you can get your late clearance, I would imagine. I see nothing wrong with a descent to 50 feet. If there's nothing in front of you and you are quite clear to go ahead I see nothing that would dictate that you should do it sooner, ... if you thought that there was a possibility of getting that clearance.

He confirmed that such a pilot would feel no need to act immediately (T713):

..... you would have time not to panic, throw the throttles on and go around because you still have what is a visibly what you believe to be a runway in front of you.

These findings permit a number of conclusions to be drawn:

1. A reasonably competent pilot would have made sufficient observations both within and outside the plane as to have permitted identification of 04/22 as the wrong runway considerably earlier than Dr Byrne made his decision to go around. Even after the initial mistake had been made, a prudent pilot would have discerned from the plane's instruments, the conversations with Tower, and the visual cues, that 04/22 was not the main Brisbane international runway 01/19 on which he was meant to be landing. Like Captain Anderson, most pilots who initially confused 04/22 for 01/19 would have realised that they were not lined up with the correct runway early enough to adjust their heading to land on 01/19 without needing to actually abort a landing on 04/22.

2. As long as the aircraft is approaching a functioning runway, 50 feet is not a more dangerous place from which to abort a landing than 200 or even 500 feet.

3. A pilot who continues to descend to 50 feet on what ought reasonably to have been discerned as other than a functioning runway breaches a duty of care to the plane's passengers by subjecting them to the risk that because the proposed landing has not been provided for by the airport authorities, there may be dangers that cannot be anticipated.

4. At a significantly higher altitude than 50 feet, a reasonably competent pilot in Dr Byrne's situation would have realised that the plane was approaching a place that was not a runway at all and have gone around. At the very latest this action would have immediately followed the penultimate communication from Tower at 10.39.15, indicating that although he was on the verge of landing, it had still not sighted the plane.

The relevant negligence of Dr Byrne therefore resides in the fact that he failed to realise that 04/22 was not a functioning runway at all, not that it was the wrong or a different runway to the one on which he was supposed to be landing. It was this error that made dangerous his subsequent descent to within 50 feet of its surface and placed his passengers at a greater risk of harm than ought reasonably to have been expected of a competent pilot in the circumstances.

THE CASE AGAINST THE FAC
95. Not a single witness suggested that a reasonably prudent pilot should or would be on the lookout for a lightpole in or near the middle of a landing strip being approached. Thus my findings so far do not dispose of this case because the immediate cause of the accident was the existence and placement of the lightpole. It being common ground and well proved by the evidence that the lightpole could not be seen from the air, the conduct of the FAC is thus also relevant. In March Justice Deane said at 521:

The case is one in which there was fault on both sides and in which, in the context of apportionment legislation, the accident must be seen as the result not only of the negligence of the appellant in driving his own vehicle but also of the negligence of the second respondent in parking the truck in breach of the duty of care which he owed a class of persons of which the appellant was a member. Expressed in terms of causative fault, the effective causes of the appellant's injuries were the negligence of the second respondent in creating a hazard for a careless and inattentive driver and the negligence of the appellant in being such a driver.

In Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431 the High Court confirmed that a defendant may be liable for a risk even where it is unlikely to occur, as long as it is not far-fetched or fanciful, and even where the risk is that someone else will behave negligently.
In his cross claim Dr Byrne alleged that his misidentification of 04/22 was the FAC's fault and that as a result the FAC breached its duty of care to users of the airport to minimise the risk that a pilot, albeit a careless one, would mistake 04/22 for a serviceable runway and attempt to land on it. Three specific acts or omissions of negligence by the FAC were alleged:

1. its failure to paint and maintain white crosses at some part or parts of the paved tarmac of 04/22 to indicate unserviceability, disuse or abandonment

2. its failure to completely obliterate, and to ensure the continued invisibility of, the centreline and shoulder or edge markings on 04/22, as clearly required by the RPAs

3. the building and placement of the lightpole at a dangerous site proximate to what could be mistaken for a functioning runway

Whilst still urging that all financial responsibility for the applicants' damages fall on Dr Byrne, the FAC very properly agreed during argument that it was at fault for not preventing the reappearance of the white centreline markings. Subject to considerations of causation, it would follow that the FAC was not totally free of responsibility for the crash. But for the purposes of apportionment, its culpability must be further examined. Notwithstanding Dr Byrne's carelessness in descending on 04/22, liability of the FAC for its custodianship of the airport must be considered on the basis that it ought to have included within its purview and regulation of safety what might reasonably be anticipated to be the actions of a careless pilot. Although no evidence is strictly required on this point, there was some evidence that this principle is already a part of prudent airport construction and management. Mr Wilson gave evidence (ex.A12 p.4) that:

One of the fundamental objectives of airport design and operation is to ensure that every step, including the application of warning markings, which can reasonably be taken is taken to obviate the risk to safety which may be caused by error, including pilot error.

Once again it is, however, not primary fact-finding which is needed but the categorisation of and conclusions to be drawn from wholly or largely admitted facts. As I see the matter, all the conduct of the FAC in relation to former runway 04/22 can only be properly assessed together. The questions to be answered are:

1. Was it foreseeable on 13 April 1990 that 04/22 could have been mistaken for an active runway and therefore considered a safe place to land?

2. If so, was it foreseeable that the lightpole would create actual or potential danger to an aircraft attempting to land on 04/22 on that day, as well as a risk of injury to its crew and passengers?

3. If foreseeability is established, what duties devolved upon the FAC to remedy the situation it had created?

4. In what way(s) and to what extent was the FAC in breach of any such duties?

Because of the conclusions which I have formed on these questions, I need only deal with this aspect of the case as necessary to make a fair apportionment of the respective culpabilities.
Forseeability
(a) Mistaking 04/22 for a functioning runway
101. As earlier mentioned, the evidence established that 04/22 was a flat strip of tarmac with the apparently distinctive appearance, shoulders, centreline and width of many runways such as distinguish them from taxiways and other trafficked areas of airports (T165, T170). It was certainly not clearly marked as being unserviceable, disused or dangerous. Mr Wilson stated as his opinion (ex.A12 p.4) that:

... any area of pavement which by its dimensions and/or markings is capable of being identified by pilots of aircraft in flight as a runway is likely to attract aircraft which will approach as if to land or even attempt to land.

In addition to the previously detailed personal experience of Captain Anderson, there was some evidence that the kind of error made by Dr Byrne is not unusual. Captain Clamback stated (ex.A19 p.6) that the fact that:

... Dr Byrne lined up with the taxiway which was formerly runway 04 rather than the runway, is not exceptional nor outside the usual range of occurrences.

Captain Walton (ex.A33 p.6) gave evidence of other occurrences where aircraft have lined up with and landed on the wrong landing strip. Although this evidence was subject to an objection for hearsay, I admitted it as going to the general state of knowledge in the industry of the likelihood of this kind of pilot error. Under cross examination, Captain Walton gave evidence that he himself had once landed in difficult conditions at the wrong airport (T685). There was also some evidence that a strip such as 04/22 might be expected to provide a suitable alternative landing strip in an emergency, even to a pilot who was aware of its status. Captain Clamback said (ex.A19 p.6):

..... a stretch of taxiway or former runway like this will always be a suitable emergency landing area and a pilot in distress would have no hesitation in attempting to land on this section of taxiway in an emergency situation .....

Captain Richardson rejected that proposition (T853):

It was a taxiway and a parking area for 747 aircraft. You could never consider that as an emergency landing area...

(747s) carry 400 people. You would never in your right mind consider landing there. You might, well, land on top of a

747. There are other areas.

His penultimate observation was, hopefully, a rhetorical flourish. Certainly it assumes that the incoming pilot knows the function of the area and cannot ascertain whether there is in fact another aircraft parked on the area at the time. Indeed Captain Richardson indicated that the CAA held "grave concerns" (T505) that someone might approach 04/22 when it was first decommissioned. Later he gave evidence (T841) that there were in fact several incidents where a pilot lined up on 04/22 for a short period of time, much as Captain Anderson had done. Nevertheless it was Captain Richardson's opinion that the likelihood of such an occurrence decreased greatly after the pulling up and grassing over of the southern section of 04/22. He said (ex.R29.2 p.3):

For a short period of time after decommissioning of the old runways it was anticipated that occasionally an aircraft may well line up on one of the old runways notwithstanding the efforts made by the Department of Aviation ... to avoid such an incident occurring. As time passed by, though, and as the old runways became more derelict looking from the air, and indeed once old 04 runway was ripped up and grassed over along about half its length, it was confidently felt that no pilot could possibly continue an approach to a low level ...

It was also the opinion of Captain Dollery (ex.R35A p.7) that after the ripping up of most of the southern section of 04/22 its appearance was so much changed that

it was in no way foreseeable as at 13 April 1990 that a pilot would line up to approach disused runway 04 and fail to abort the landing until 50 feet above ground.

I am unable to accept that point of view. In my opinion, if the FAC decided that the ripping up and grassing of most of the southern section of 04/22 ended its legal obligations with respect to the last 63 metres of the southern section and to the whole of the northern section, it was mistaken. On the day of the crash, 04/22 remained, in the words of Mr Cavanagh, "a safety hazard" (T271). It still had the basic elements of a runway. Indeed, as I see it, the ripping up of most of the southern section and the passage of time, if anything, actually increased the likelihood of a mistake in relation to the northern section. The white crosses that had existed on the southern section were removed. The new appearance of the grassed area distinguished the southern from the northern section where there were no indications of unserviceability at all and where the re-emergence of edge and centrelines further and perhaps crucially increased the likelihood of 04/22 being confused for an active runway. The 63 metres of paved surface in the southern section with its reappeared surface markings appeared to lengthen the available landing area so as to add to the possibility of error.

I am quite satisfied on the evidence that the FAC was or should have been aware that 04/22 posed a real and considerable danger. The videotape and pictorial evidence, explained and supplemented by the written and oral testimony, left little room for doubt that 04/22 could quite easily have been confused for a runway by a pilot who was not familiar with Brisbane Airport or was not particularly experienced or paying close attention. It was foreseeable that such a pilot might have wished to land at the airport and might have used 04/22 when seeking to do so. It was also foreseeable that any pilot might have landed on it in an emergency or by mistake. At a busy airport, visited by pilots of varying levels of skill and familiarity with the scene, it should have been considered only a matter of time before someone approached to within 50 feet of 04/22.

(b) The lightpole danger
109. The potential consequences of someone mistaking the northern section of 04/22 for a functioning serviceable runway were catastrophic, especially as it was part of a major international airport regularly receiving large passenger planes and because of its close proximity to the main airport runways. Any plane that did attempt to land on 04/22, or that approached as close as this one did, was virtually guaranteed to hit the lightpole and crash. The placing of the lightpole close to the centre of the paved area and without clear marking so as to make it visible from a distance by a descending plane meant that an accident of this nature was manifestly predictable. A competent airport management would have foreseen the chance of an approach to 04/22 and have acted to eliminate or minimise the results if someone actually did attempt to land. That only a small number of people might be only injured must be considered one of the least serious of the foreseeable consequences of the FAC's negligence in these respects.

The specific duties and breaches
110. On the evidence the steps that should have been taken to ensure that the last 63 metres of the southern section and the whole of the northern section of 04/22 would not be mistaken for a runway included the following:

(a) Centreline and other markings
111. The existence of a centreline significantly increased the chance that 04/22 would be mistaken for a runway. Captain Clamback said (T393) that a centreline

is actually the major thing, for a light aircraft pilot. Once he sees that he uses it for a lot of things - firstly, to align the aircraft along the centreline of the runway, to pick up any drift, but it's a major thing to a general aviation pilot.

Dr Byrne clearly recorded the existence of centreline markings as a factor in his own misidentification and continued descent (ex.A2 p.7).
Apart altogether from its own concession in this regard, the FAC had a quite clear obligation under the RPAs to obliterate the markings of an unused runway such as the centreline of 04/22. Mr Hall, an officer of the FAC, conceded this simple duty under cross examination (T469-70):

Did you see it as part of your duty to further obliterate signs which reappeared, runway markings which reappeared? -- - Yes, we would, we would.

...

Well, you made a mistake? --- Yes, I guess we have, but I mean, it's not an active area.

In retrospect it should have been done? --- Probably. I'd say yes, yes.

Captain Richardson also believed that they should have been obliterated (T509), and said that had he noticed them on his inspections, he would have ensured that the FAC obliterated them (T512). There was no explanation as to why he did not notice them.
I have no doubt that the centreline markings, once they had reappeared, should have been noticed and obliterated again by the FAC. The fact that they were not contributed markedly to the accident.

(b) White crosses
116. To a large extent the debate over the white crosses revolved around the precise requirements of the RPAs and the Chicago Convention, the relevant provisions of which are largely identical. Section 11 of the CAA Act requires the CAA to carry out its mandate in accordance with the Chicago Convention. The RPAs themselves are made pursuant to regulations under the CAA Act. Although really industry rules, they were the Australian statute law on the subject matters covered. The FAC said that in terms the RPAs did not require the placement of white crosses on most of the northern section of 04/22 because they only mandate white crosses on "an aerodrome movement area" which is not to be used by aircraft. As the northern section was currently being used by aircraft as a taxiway, parking area and compass swing area, it was not strictly unserviceable or unused.

There are a number of points that need to be made about these contentions. First, there were two parts of 04/22 that were unserviceable within the terms of the RPAs. Of course all except 63 metres of the southern section was completely unusable because it was grassed over. But the 63 metres remained, complete with paved tarmac and shoulder and centrelines. In addition, immediately to the north of Lomandra Drive a short portion of the northern section had been set apart by some small white cones. According to the FAC itself, these cones, not visible from the air, were intended to prevent on-ground aircraft movement towards Lomandra Drive or its immediate environs. Again this area was replete with reappearing or unremoved ground markings. Neither of these areas had a white cross on it.
I am not persuaded by the argument of the FAC that no white crosses or other danger markers were required on these two small areas because, although in fact unusable, they were not parts of "an aerodrome movement area which is not to be used by aircraft" within the meaning of the RPAs. Like former runway 13/31 and for that matter all the now grassed over southern section of 04/22 itself, where the FAC had no trouble deciding to place white crosses, the 63 metres immediately to the south of Lomandra Drive was not in the "aerodrome" at all. The small area to the north of Lomandra Drive was in the aerodrome but was obviously intended as an aircraft-free area. At the time of this crash these two paved areas were both manifestly unserviceable yet had recently been so much a movement area that they were part of the main Brisbane Airport runway. They were still closely adjacent to a movement area. To an unsuspecting observer from the air they could still appear to be parts of a functioning runway. It is in my view a legal quibble quite outside the spirit and purpose of the RPAs to suggest that both these sections were not required to have been adequately marked as abandoned, unserviceable and dangerous.
Nor am I able to accept the FAC's second contention that the rest of the northern section of 04/22 did not need, and was not required to have, unserviceability markers because it was in fact in use for aircraft traffic on the ground. The RPAs are clearly intended to protect the safety of all aircraft and their passengers and crew, whether already on the ground or coming from the air. Those dealing with ground markings are expressly directed towards the safety of actually or potentially landing aircraft. One of the RPAs makes it mandatory to remove all ground markings visible from the air before an aerodrome can be closed permanently, but this requirement had not been complied with or not adequately so in this instance. This area used to be a runway and still resembled a runway. It was close to the main airport runways which replaced it. If it was closed to landing aircraft, it should have been marked accordingly.
In any event, the literal words of the RPAs cannot and do not purport to define the beginning and the end of the FAC's responsibilities to ensure the safety of their airports for the public and aircraft operators as the airport users. In other words, the duty is not limited to compliance with the minima required by the RPAs or the Chicago Convention. As a matter of general principle, the imposition of statutory obligations does not necessarily absolve a person of a corresponding common law duty that may be broader in scope: Franklin v The Gramophone Company Ltd (1948) 1 KB 542 per Evershed LJ at 561. If, as the FAC contended, the statutory provisions did not apply in this case at all, the common law would, a fortiori, certainly impose its own duties. I do not think that the statutory scheme in this instance was intended to displace the FAC's common law duty as occupier and operator of the airport "to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting" the airport: Nagle at 429.
Third. It was the consistent position of the FAC that the absence of white crosses was not a factor in the accident, since a pilot cannot see them on a normal approach. It contended that such crosses are designed solely for taxiing aircraft and for aircraft that overfly a landing strip and so look directly down on them. The FAC's contention in this regard was supported by the evidence of Captain Richardson (T843), although he did concede that in some circumstances white crosses would be visible to an incoming pilot (T877). For his part Captain Walton was quite definite that white crosses can be seen by a pilot on a normal approach (T750/1).
Although no doubt the FAC's formulation provides two of the purposes of the crosses, I have some difficulty accepting that such warnings are not also designed to warn approaching aircraft, which might otherwise contemplate landing there, that the safety of their passengers and crew will be at risk if they proceed. Mr Cavanagh's opinion, in the BASI report, was that (ex.A1 p.26):

This area should have been marked with white unserviceability crosses. Had it been so marked, the pilot might have seen the crosses and become aware earlier that he was approaching the wrong runway.

I agree. If the white crosses had nothing to do with landing aircraft, they would not have been placed on former runway 13/31 and on the southern section of 04/22 before it was ripped up. As both of these areas were outside the new airport perimeter, they could not have been used by airport ground traffic. The suggestion that white crosses are also for overflying aircraft at large airports like Brisbane strikes me as almost absurd. According to the evidence, pilots do not generally overfly large airports, and the RPAs say and imply nothing about helping, guiding or protecting such aircraft in any event. It is anomalous that in the circumstances they are being prayed in aid by a party claiming that they are to be read and applied literally and conclusively.
The evidence satisfied me that had such markings been in place in the last 63 metres of the southern section and at various points along the northern section of 04/22, they would probably have been seen in the last stages of Dr Byrne's flight, in time for him to pull out of his descent before hitting the lightpole. They would have been an unambiguous sign to him not only that he was approaching the wrong landing strip, but that 04/22 was not an active runway at all.
Fourth. On the other hand, if, as the FAC contended, white crosses were not intended, because they are not effective, to warn an approaching pilot of the danger of continuing the current course, or if two crosses placed respectively on the unused portions of 04/22 immediately to the south and north of Lomandra Drive would not have been sufficient to avoid this type of error, there devolved upon the FAC a clear duty to take some definitive and dramatic warning measures to make clear to descending pilots that landing on the strip was unsafe and unavailable.
There is some evidence that such a course was adopted during the construction of the 01/19 runway. Captain Richardson stated (ex.R29.1 p.7):

... when the new runway was under construction, because of the vicinity of the rwy 19 threshold to the rwy 22 threshold (then in use) a white cross, three times the dimensions recommended was constructed on a gantry almost as large as a football stadium to give the cross a 45 degree elevation in an attempt to make it visible to an approaching aircraft.

Although introduced to demonstrate that normal white crosses as defined in the RPAs are not considered sufficient to alert pilots to unserviceable runways, this evidence also served to show that the RPAs were not definitive and that alternative adequate means of warning were readily available. It also showed that the FAC was quite capable of devising and instituting appropriate and efficient ways to warn approaching pilots of unsafe tarmac areas, because it had in fact done so to ensure that 04/22 and 01/19 were not confused when the former was operational and the latter was not.
Fifth. It is also well within the capacity of a large public corporation of experts in airport administration and management, with access to all the best practice in the world, to avoid any confusion to ground users of this section of tarmac by devising a system of markings which would distinguish areas unsafe and unsuitable for landing and takeoff from those safely useable for ancillary ground-only movements.
In my opinion the FAC was negligent in failing to take positive steps to identify 04/22 to Dr Byrne as being unserviceable as a landing runway.

(c) The lightpole
130. As long as there was a real chance that 04/22 could be mistaken for a functioning landing strip, the FAC should have ensured that there were no obstacles to a safe landing on it. This is particularly the case because the cost of making 04/22 relatively safe was so slight and, in the absence of any sufficient markings, the possibility of an attempted landing and the seriousness of the foreseeable consequences if there was an attempt, were so great. To recall the much quoted dictum of Sir Anthony Mason in Wyong Shire Council v Shirt and Ors (1980) 146 CLR 40 at 47:

The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

In the context of this case it is relevant to note how easy it would have been to make 04/22 safer by building or moving the lightpole to the side of 04/22 so that it could not have obstructed a plane on approach to the old runway. It could also have been clearly signalled by a flag or a sign or even by painting it a more distinctive easily visible colour. In these respects I cannot but again agree with the conclusion of Mr Wilson (ex. A12 p. 5):

The unexpected can occur anytime in aviation... and the ultimate backup to safety in the passive sense is to ensure that if a pavement can be mistaken for a runway it should not have a pole erected on the approach to it.

The breaches
132. It is not enough for the FAC to point to differences between 01/19 and 04/22. It failed to ensure that 04/22 did not look like a runway at all. For it was Dr Byrne's failure to realise that it was not a functioning runway at all that made his descent dangerous and negligent. As agreed, and as the RPAs provided, the FAC should have totally obliterated the edge and centrelines and ensured that they remained invisible. Large, perhaps elevated, white or coloured crosses or other clearly visible signs or letters, possibly even luminescent or illuminated, were the types of consideration required for installation and implementation to the south and the north of Lomandra Drive and at other spots on the northern section. In addition a substantial signalling of the lightpole was required so as to ensure its visibility to the pilot of a plane descending towards it. Any of these steps would have made Dr Byrne's original mistake much less likely and would also have ensured that well before he descended to 50 feet, he would have seen that 04/22 was not a functioning runway. He could then have aborted his landing long before he did. In the condition of 04/22 subsisting prior to and on the day of the crash, the FAC should have built the lightpole in, or moved it to, a safe position. If it had done so, Dr Byrne could have flown right down to 50 feet or even lower without incurring the risk of hitting it and crashing.
In other words, if the obliteration of the lines and the placing of crosses alone would not have been sufficient to alert an incoming pilot to the unserviceability of 04/22, the FAC failed to take other precautions to ensure that the strip was clearly marked as unavailable for landing. This omission was especially serious as long as the lightpole made a safe approach and landing impossible. The lightpole effectively operated as a hidden trap. If it had been erected or moved clear of 04/22, a safe landing for Dr Byrne's plane could and probably would have been effected. One course of action the FAC could not adopt, while remaining innocent of negligence, was to wash its hands of the whole problem and leave to chance the risk of a potentially fatal disaster. Yet this is precisely what it did.
I conclude therefore that both parties were in breach of duties of care owed to the applicants.

APPORTIONMENT
135. The final task to be performed is the apportionment of liability. The process called for is one of comparison and proportionality. To me the critical point here is that, even if both parties were responsible for Dr Byrne's misidentification of 04/22, the FAC's negligence converted what would otherwise have been a relatively minor deviation and too low an approach without a landing clearance into a serious accident. On any other decommissioned runway, even one that was quite unsafe for an actual landing, Dr Byrne's conduct would merely have resulted in a missed approach. After all, he did not actually attempt to land, but pulled out of the landing 50 feet above the ground. As earlier quoted, several of the experts said that in normal circumstances this was a perfectly safe, and in the circumstances was the proper, thing to do. Unfortunately it was not a high enough altitude to clear the lightpole. The FAC was responsible for the combination of a wholly unidentified decommissioned runway and the misplacement of a potentially lethal lightpole on it. In the terms used in Podrebersek, the conduct of the FAC both constituted a greater departure from the conduct of the reasonable person and contributed most to the accident. The FAC must therefore bear the greater proportion of liability for the resulting damage.

Any apportionment in circumstances such as this will necessarily be inexact and to an extent arbitrary and personal. The attitude of the parties being that all the liability should fall on the other, they were not able to be of any assistance in this task at all. Doing the best I can has led me to an assessment of the respective liability of the parties for the damage to the applicants at 20% to Dr Byrne and 80% to the FAC.
I therefore order in matter no. G197 of 1992 that Ms Page's damages of $77,000 be paid as to $61,600 by the FAC and $15,400 by Dr Byrne. I order in matter no. G198 of 1992 that Ms Scammell's damages of $31,816.80 be paid as to $25,453.44 by the FAC and as to $6,363.36 by Dr Byrne. At my suggestion earlier in the proceedings, each respondent has paid 50% of the applicants' damages pending this judgment. To give effect to the judgment, I therefore order the FAC in each matter to pay an amount equivalent to 30% of the damages to Dr Byrne, viz. in matter G 197 of 1992 the sum of $23,100 and in matter no. G 198 of 1992 the sum of $9,545.04. Liberty to apply within 7 days will be reserved in case the parties desire any further or other orders to be made in these regards. The parties should submit within the same period a minute of any agreed order as to costs. If there is no agreement, the parties may make submissions on costs in writing within 14 days.

[1994] FCA 754

12 SEPTEMBER 1994