Ripper v Gobel Aviation Pty Ltd (in liq)
[2024] VCC 1907
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-06041
| EDWARD NICHOLAS RIPPER | Plaintiff | |
| v | ||
| GOBEL AVIATION PTY LTD (in liquidation) (ACN 006 160 658) | Defendant | |
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JUDGE: | HER HONOUR JUDGE ROBERTSON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13, 14, 15, 16, 17, 22, 23, 24, 28 February and 1, 2 and 10 March 2023 |
DATE OF JUDGMENT: | 19 December 2024 |
CASE MAY BE CITED AS: | Ripper v Gobel Aviation Pty Ltd (in liq) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1907 |
REASONS FOR JUDGMENT
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Subject:TORTS
Catchwords: Negligence – aviation – aircraft collision – control of aircraft – handover and takeover procedures – duty of care – breach – causation – psychiatric and physical injuries – voluntary assumption of risk – materialisation of inherent risk – obvious risk – contributory negligence – double compensation – damages
Legislation Cited: Wrongs Act 1958 (Vic), s28, s48, s51, s52, s53, s54, s55, s63
Cases Cited:Neindorf v Junkovic (2005) 80 ALJR 341; Vairy v Wyong Shire Council (2005) 223 CLR 422; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Erickson v Bagley [2015] VSCA 220; Erickson v Bagley & Anor [2014] VCC 2126; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Allied Pumps Pty Ltd v Hooker [2020] WASCA 72; Wyong Shire Council v Shirt (1980) 146 CLR 40; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431; Strong v Woolworths Ltd (2012) 246 CLR 182; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Chappel v Hart (1998) 195 CLR 232; Hooper v Citywide Service Solutions [2022] VSC 239; Brandon v Osborne, Garrett & Company Ltd [1924] 1 KB 548; United Uranium NL v Fisher [1965] ALR 99; US Shipping Board v Laird Line Limited [1924] AC 286; National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117; Northern Sydney Local Health District v Amaca Pty Ltd (under NSW administered winding up) [2017] NSWCA 251; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission [2016] VSCA 182; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Filipovic & 3 Ors v Heli-Australia Pty Ltd & 4 Ors [2001] NSWSC 195; Zeppelin v Commonwealth of Australia [2002] NSWSC 228; Peter Jeffs v Capiteq Pty Ltd & Ors [2006] NTSC 2; Towers v Hevilift Ltd (No 2) [2020] QSC 77; West v Rosenlis [2021] VSC 41; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL and Others (1994) 179 CLR 332; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447; Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority (2007) 18 VR 146
Judgment: Defendant’s negligence was a cause of the accident and injuries sustained by the plaintiff – assessment of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Winneke KC with Mr A TJ Baker | Shine Lawyers |
| For the Defendant | Mr M D Stanton SC | Norton White |
Table of Contents
Introduction
The claim
Issues
Summary
Lay witnesses – credit
Liability evidence
Background
Plaintiff’s flight training and experience
Layout of Bendigo Airport
The aircraft
Solo assessment flight
Pre-flight safety briefing
Control of the aircraft
Pilot-in-command and responsibility for control, operation and safety of the aircraft during take-off
Appropriate handover/takeover procedures when more than one pilot
Appropriate policy or procedure for taking over control generally including when an instructor taking over from student pilot
Circumstances of the collision
Deviation from centreline
Application of right rudder/taking over control
Application of control stick by Plaintiff and rotation
Rotation of the aircraft
Where was the aircraft when rotation occurred?
Did the horizontal stabiliser strike the runway light at rotation?
Did Mr Nguyen take control of the control stick after rotation and take-off?
The collision
Aircraft following collision
Events following the collision
Airport
Bendigo Hospital
Discharge from Bendigo Hospital
Consultation with Dr Joseph Sous
Conversation between the Plaintiff and Mr Nguyen
Report of collision to RAAus and the RAAus Incident Report
Conversation with Ms Jill Bailey, RAAus – 20 December 2017
RAAus reports
Streaky Bay
Plaintiff’s consultation with Mr Tony Trevitt
Plaintiff’s counselling through Box Hill Institute
Plaintiff’s return to study and ceasing classes at Box Hill Institute following the collision
Plaintiff’s claim for compensation against Box Hill Institute
Medical Panel Opinion
Plaintiff’s relationship with Rebecca Stokie
Plaintiff’s return to flying
Employment
Duty of care
Breach of duty
What was the risk of harm?
Was the risk of harm reasonably foreseeable?
Did the Defendant fail to take reasonable precautions in response to the reasonably foreseeable risk of harm?
What was the obligation to provide a pre-flight safety briefing?
Was a detailed threat and error management-based pre-flight safety briefing conducted?
Was there a failure to implement a detailed threat and error management-based pre-take-off safety briefing?
Was there a failure to exercise reasonable care?
Did the aircraft deviate from centreline of runway?
Was there an accepted tolerance for maintenance of the centreline of the runway on take-off?
Was the deviation within “accepted tolerances”?
Was there a duty on the Defendant to maintain runway alignment and to not allow the aircraft to drift too far from the centreline of the runway before taking corrective action or action to take control of the aircraft?
Was there a failure to ensure runway alignment during take-off?
Was there a failure by the Defendant to take control of the aircraft earlier?
Was there a failure by the Defendant to ensure the aircraft did not drift too far away from the centreline of the runway before corrective action was taken?
Did Mr Nguyen fail to communicate to the Plaintiff as to who was pilot-in-command?
Did Mr Nguyen apply right rudder?
Did Mr Nguyen communicate to the Plaintiff his intention to apply right rudder?
Did the Defendant fail to have a policy for the procedure for an instructor taking over control of an aircraft from a student pilot?
In applying right rudder, did Mr Nguyen take over control of the aircraft?
In taking over control of the aircraft, did Mr Nguyen fail to follow procedures regarding takeover measures between an instructor and student? Did he fail to communicate to the Plaintiff that he was taking over control of the aircraft and that he was pilot-in-command?
Was the application of right rudder by Mr Nguyen to correct the path of the aircraft at the point in time it was applied, reasonable and appropriate or dangerous?
Were there uncoordinated control inputs on the aircraft? When did the Plaintiff and Mr Nguyen each apply right rudder?
If there were uncoordinated control inputs on the aircraft, what caused that situation?
Did the Defendant fail to ensure there was no possible over rotation on initial point of take-off?
Conclusion on breach
Causation
Voluntary assumption of risk
No liability for materialisation of inherent risk
Contributory negligence
By reference to what he knew or ought to have known, did the Plaintiff fail to take reasonable care for his own safety?
Was there a failure by the Plaintiff to appreciate the aircraft was veering to the left due to the slipstream effect?
Was there a failure to correct the aircraft which had veered to the left?
Did the Plaintiff take action to correct the path of the aircraft? Did the Plaintiff apply right rudder?
Did the Plaintiff apply full back pressure on the control stick in circumstances where the aircraft was not correctly aligned on the runway?
Did the application of full back pressure by the Plaintiff place the aircraft in a high nose-up attitude?
Did the Plaintiff fail to move the control stick to the correct position for a safe take-off?
Did the Plaintiff fail to follow procedures in relation to the control of the aircraft during a training flight?
Did the Plaintiff fail to act conformably with previous training?
Did the Plaintiff fail to cease applying full back pressure on the control stick in circumstances where continuing to apply full back pressure on the control stick would cause the aircraft to stall?
Did the Plaintiff fail to relinquish control of the aircraft such that the instructor was compelled to take hold of the control stick?
Did the Plaintiff act instinctively so that by reference to what he knew or ought to have known, he did not fail to exercise reasonable care for his own safety?
Relevant authorities on contributory negligence
Conclusion on contributory negligence
Double compensation
Injuries
What, if any, physical injuries did the Plaintiff sustain?
Injury to the left elbow
Injury to the left leg
Injury to the cervical spine
Injury to right hand and fingers
Conclusion on physical injuries
What, if any, psychological injury did the Plaintiff suffer?
Plaintiff’s evidence about psychological injury of the Plaintiff
Medical Panel Opinion
Expert psychiatric evidence
Opinion of Dr Brendan Hayman, consultant psychiatrist
Opinion of Dr Leonard Lee, consultant forensic psychiatrist
Submissions in relation to existence of Plaintiff’s psychological injury
Plaintiff’s description of height and speed of aircraft prior to collision
Plaintiff’s description of the aftermath of the collision
Photographs of the wreckage
Inability to walk
Struggling emotionally while working at Brighton Renault/Motors
Ceasing flying
Flying subsequent to the collision
The Plaintiff’s weight
Alcohol consumption
Relationship with Ms Stokie
The CASA medical
Additional reasons to reject Dr Lee’s opinion
Conclusion on psychiatric injury
Damages
Non-economic loss
Past economic loss
Future economic loss – loss of earning capacity
Past out-of-pocket expenses
Future out-of-pocket expenses
Past gratuitous care
Conclusion on damages
HER HONOUR:
Introduction
1On 17 December 2017, the plaintiff, then a student pilot aged twenty-seven years, was injured while undergoing an assessment flight at the Bendigo Airport. The aircraft being flown, an A22LS Foxbat ultralight two-seat, crashed onto the runway (“the collision”) during or soon after take-off. At the time of the collision the plaintiff was a student of the defendant, Gobel Aviation Pty Ltd, which conducted a business known as SOAR Aviation. SOAR Aviation operated under the auspices of Recreational Aviation Australia (“RAAus”), the peak body in Australia responsible for administering ultralight recreational sport aircraft. Mr Bao Nguyen, a qualified pilot and deputy chief flying instructor for the defendant, was the flight instructor flying with the plaintiff when the collision occurred.
2The plaintiff claimed damages from the defendant in respect of alleged physical and mental injuries sustained during the collision.[1]
[1]The procedural history is not relevant other than to note on the third day of the trial (15 February 2023), the plaintiff sought leave to amend the Writ, and the Amended Statement of Claim dated 8 February 2023. Leave was granted to file and serve an Amended Writ and a Further Amended Statement of Claim. These documents were filed on 16 February 2023 and a Defence to Further Amended Statement of Claim dated 16 February 2023 was filed and served in response.
The claim
3The plaintiff alleged the defendant owed him a duty of care to operate the aircraft safely during the flight.
4He further alleged that the defendant’s employees, servants or agents were negligent, by:
(a) failing to implement a detailed threat and error management-based pre-take-off safety briefing;
(b) failing to exercise reasonable care and skill;
(c) failing to take control of the aircraft earlier upon deviation from accepted tolerances;
(d) failing to ensure runway alignment during take-off;
(e) failing to ensure the aircraft did not drift too far away from the centreline of the runway before corrective action was taken;
(f) failing to take control of the aircraft earlier;
(g) failing to ensure there was no possible over rotation on initial point of take-off;
(h) failing to communicate to the plaintiff as to who was pilot-in-command;
(i) failing to communicate to the plaintiff that the flight instructor was taking over control of the plane;
(j) failing to follow procedures regarding takeover measures between an instructor and student;
(k) failing to take adequate precautions for the safety of the plaintiff;
(l) exposing the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care;
(m) failing to have a policy for the procedure for an instructor taking over control of an aircraft from a student pilot;
(n) applying right rudder in circumstances in which it was not necessary and dangerous to do so, and
(o) failing to announce that he was applying right rudder during the take-off roll.
5Further, the plaintiff alleged the negligence of the defendant’s employees, servants or agents caused his injuries, loss and damage.
6A pleaded claim of breach of statutory duty was abandoned at trial.[2]
[2]Further Amended Statement of Claim
7The defendant denied it owed the plaintiff a duty of care to operate the aircraft safely during the flight; denied the circumstances of the collision as alleged by the plaintiff, and denied that it, or any of its employees, servants or agents were negligent, or that any negligence on their part caused the plaintiff’s injury, loss and damage. The defendant denied the plaintiff suffered the injuries alleged. The defendant maintained the plaintiff’s failure to adequately operate the aircraft safely during the flight and his refusal to relinquish control of the control stick, also known as the yoke, caused his injury, loss and damage.
8The defendant contended that if it was negligent, the collision was caused or contributed to by the plaintiff by:
(a) failing to appreciate the aircraft was veering to the left during the take-off roll due to the slipstream effect;
(b) failing to take any step to correct the aircraft which had veered to the left;
(c) failing to take any step to avoid the aircraft veering off the edge of the runway;
(d) applying full back pressure on the control stick in circumstances where the aircraft was not correctly aligned on the runway;
(e) failing to move the control stick to the correct position for a safe take-off;
(f) applying full back pressure on the control stick, placing the aircraft in an extreme and dangerous nose-up attitude;
(g) failing to relinquish control of the aircraft when the instructor was compelled to take hold of the control stick;
(h) failing to follow procedures in relation to the control of the aircraft during a training flight;
(i) failing to act conformably with previous training; and
(j) failing to cease applying full back pressure on the control stick in circumstances where continuing to apply full back pressure on the control stick would cause the aircraft to stall.
9Alternatively, the defendant contended that when choosing to undergo flight training, the plaintiff voluntarily assumed the risk of the flight instructor being unable to correct an error made by the plaintiff in time to avoid a forced landing and that the risk assumed by the plaintiff included the risk that injury or death might result, in accordance with s54 of the Wrongs Act 1958 (Vic) (“the Act”).
10Further, or in the alternative, the defendant argued the risk of an instructor being unable to correct an error made by the student pilot in time to avoid a forced landing was the materialisation of an “inherent risk” within the meaning of s55 of the Act which could not have been avoided by the exercise of reasonable care.
11Further, or in the alternative, the defendant alleged the risk of harm occurring during flight training was an obvious risk within the meaning of s53 of the Act and the plaintiff voluntarily assumed all risks arising from participation in flight training.
12The defendant contended if liability was established, and it was necessary to determine the damages to which the plaintiff was entitled for pain and suffering and loss of earning capacity, the plaintiff had been fully or partially compensated for any alleged loss or damage through a claim for compensation made by the plaintiff against the Box Hill Institute and or its servants and agents.
Issues
13The most significant issues in the proceeding were:
(a) how the collision occurred;
(b) whether, as a result of the collision, the plaintiff suffered injury and, if so, the nature and extent of the injury;
(c) whether there was any negligence on part of the defendant;
(d) if there was any negligence on the part of the defendant, whether the plaintiff, in accordance with s54 of the Act, voluntarily assumed the risk of the flight instructor being unable to correct an error made by the plaintiff in time to avoid a forced landing including the risk that injury or death might result. Such risk being an alleged “obvious risk” within the meaning of s53 of the Act;
(e) whether the risk of an instructor being unable to correct an error made by the student pilot (plaintiff) in time to avoid a forced landing was the materialisation of an “inherent risk” within the meaning of s55 of the Act which could not have been avoided by the exercise of reasonable care such that the defendant was not liable in negligence for harm suffered by the plaintiff;
(f) if there was any negligence on the part of the defendant, whether it was a cause of the plaintiff’s injuries;
(g) whether there was any contributory negligence on the part of the plaintiff;
(h) if liability was established, whether it was necessary to determine the damages to which the plaintiff was entitled for pain and suffering and loss of earning capacity, because the plaintiff had already been fully or partially compensated for any alleged loss or damage, through a claim for compensation made by the plaintiff against the Box Hill Institute and or its servants and agents; and
(i) if it was necessary to award damages, what damages should be awarded to the plaintiff.
Summary
14For the reasons that follow, I find:
(a) the defendant owed a duty of care to the plaintiff to take reasonable care in the provision of its training services and flight instruction so as to avoid a risk of a student pilot suffering personal injury if the instructor failed to adopt proper handover and takeover procedures and did not inform the student pilot the instructor was taking over control of the aircraft;
(b) the defendant breached the duty of care it owed to the plaintiff with respect to particulars (o), (i), (j), (k), (l), (n), (g) of the Further Amended Statement of Claim;
(c) the defendant’s breaches of duty caused the plaintiff to suffer injury, loss and damage. Namely, lacerations and grazes to the back of his left leg, his right distal calf tendo-Achilles, the back of his left thigh and his left elbow which resulted in some scarring on his left shin; a linear marrow stress in association with the radial head, with a small to moderate adjacent effusion soft tissue injury to his left elbow, and an injury to his cervical spine which resulted in degenerative changes at C4-5 and C5-6 levels. The injury precipitated restricted movement, a reduction in rotation and lateral flexion to the right as well as headaches; a soft tissue injury to his right hand and to his ring and little fingers, and a psychiatric injury, namely Post-Traumatic Stress Disorder (PTSD), as a result of the collision. He also suffers from an Alcohol Use Disorder which is in remission;
(d) the plaintiff bears no contributory responsibility for the collision, and the other defences raised are not established.
15I award the following damages to the plaintiff:
(a) $150,000.00 award of damages for non-economic loss;
(b) $75,619.78 for past economic loss;
(c) $561,412.50 for future loss of earning capacity;
(d) $1,370.78 for past out-of-pocket medical expenses;
(e) $8,508.00 for future out-of-pocket medical expenses;
(f) $462.00 for past gratuitous care.
16The total award of damages is $797,373.06.
Lay witnesses – credit
17Neither the plaintiff nor the flight instructor, Mr Bao Nguyen, were impressive witnesses. The plaintiff lacked a clear memory of the collision and tried to fill gaps in his memory in ways designed to best suit his case. Mr Nguyen obfuscated and failed to make sensible concessions when asked reasonable questions. At times his answers were evasive.
18Similarly, the evidence of the plaintiff’s mother, Ms Maria Curtis, did not provide much assistance. She was very much in “the camp” of the plaintiff.
19My overall assessment was it was difficult to ascribe much weight to the evidence of the plaintiff, Mr Nguyen or Ms Curtis. Aspects of the evidence of each of those witnesses was unreliable.
20The recollections of the plaintiff’s former partner, Ms Rebecca Stokie, were not always complete and at times appeared to have been clouded by the breakdown of her relationship with the plaintiff.
21Ms Chloe Wilkinson, the plaintiff’s wife, was a truthful witness; however, her evidence was of only minor significance.
22In the end, I have approached the evidence of all witnesses very cautiously and I have, wherever possible, tried to corroborate what each witness said with other objective evidence.
23Where relevant, I deal with the credit of particular witnesses on specific issues, as it arises below.
Liability evidence
Background
24The plaintiff was born in Queensland in February 1990 and at the date of trial he was thirty-three years old.
25He grew up in Toowoomba, where he lived until his family moved to Melbourne in 1996.
26As a child, the plaintiff developed a love of flying and often flew with his father. He wanted to become a pilot and studied aviation theory in Year 10.
27When he finished school, the plaintiff did not get good enough marks to begin an aviation course. He commenced, but did not finish, a commerce degree in 2008 while working full time as an assistant manager at Aussie Disposals. In 2008 and 2009, the plaintiff worked full time at PCI Contact Centres, a third-party supplier of Telstra accounts. He also worked in real estate.
28In mid-2010, the plaintiff moved to Perth and took up a position with a Telstra dealer for about twelve months. He moved to Tamworth in early 2012 and established a communications business with his father. The business did not prosper, and the plaintiff returned to Melbourne in 2013. He worked with STA Travel until 2016, and then with ANZ (Esanda).
29From about September 2013, the plaintiff was involved in a relationship with his former partner, Ms Stokie. That relationship ended in early 2019.
30Just after Christmas in 2019, the plaintiff met Ms Wilkinson. They moved to Warrnambool in 2020 and were married in 2022.
Plaintiff’s flight training and experience
31The plaintiff first flew with an instructor in February 2005 as a fifteenth birthday present. He flew again on 15 and 28 December 2005 and on 29 January and 5 February 2006.
32According to the plaintiff’s Professional Pilot Logbook, the next flight the plaintiff took was in 2013. He undertook some training with the Royal Victorian Aero Club, including training in relation to pre-start and take-off procedures. The plaintiff flew four times in July 2013, once in August 2013 and he undertook two further flights in December 2014. He did not fly again until October 2016, although he continued to want to become a commercial pilot.
33On 18 October 2016, the plaintiff enrolled in the Diploma of Aviation – Commercial Pilot Licence course, a VET-FEE-HELP course, offered by the Box Hill Institute (previously Box Hill TAFE) (hereinafter referred to as the “Box Hill Institute”) in conjunction with the defendant. When the plaintiff enrolled in the Diploma of Aviation, he had 12 hours’ flying experience.
34The Diploma of Aviation was taught by Mr Koushik Panchangam on behalf of the defendant. It involved bi-weekly theory lessons for ten to twelve weeks at the Box Hill Institute and practical instruction at Moorabbin Airport, or other airports as directed, including the Bendigo Airport. The aim of the diploma was for each student’s skills to progress to a point where they were ready to undertake a solo assessment flight to examine capability to fly an aircraft on their own.
35In a solo assessment flight, a student undertook a series of take-offs and landings with the instructor. When ready to fly solo, the instructor stepped out of the aircraft and the student undertook their first solo circuit.
36Mr Nguyen commenced employment with the defendant as a Grade 3 Flight Instructor in October 2016, having attained that qualification through the Civil Aviation Safety Authority (“CASA”) in September 2016.
37Mr Nguyen taught both the practical and theoretical components of the Diploma of Aviation following the syllabuses of CASA and RAAus. As a flight instructor, he was required to have read, understood and followed the SOAR Operational Manual, the RAAus Operational Manual and the RAAus Flight Instructor Reference Manual.
38As part of the syllabus, students were trained on all aspects of the Box Hill Institute AV150215 Assessment number 3 dated February 2017. The plaintiff was aware of the information contained in that document when he undertook his assessment flight on 17 December 2017.
39The plaintiff’s first practical training flight with the defendant was on 18 October 2016. He undertook a series of further flights with different instructors in October, November and December 2016, and throughout 2017 up to the date of his assessment flight on 17 December 2017. Each flight was undertaken in a Foxbat aircraft.
40By 17 December 2017, the plaintiff had completed almost 40 flight hours. He was able to conduct take-offs, to handle flying an aircraft and he was ready for solo flight.
41On 17 December 2017, the plaintiff attended Bendigo Airport to undertake a solo assessment flight.
Layout of Bendigo Airport
42Bendigo Airport was an uncontrolled airport.
43There were two runways. One runway ran east to west. The other runway, runway 17, ran north to south.
44Runway 17 was about 30 metres wide with the centreline of the runway at the mid-point.
45On either side of each of the runways were dirt or gravel areas. There were runway lights located 1.5 metres off the edge of the paved runway surfaces on the dirt or gravel areas at intervals.
Exhibit F - Aerial photograph of the Bendigo Airport taken 7 June 2022 with path and direction of travel of plaintiff from fuel bowser to the run-up bay and then to the holding point
46Adjacent to, and on the right-hand side of the flight school buildings, was an area called the “apron” where aircraft could be parked. Very close to the apron there was a fuel bowser, where pilots had the option of refuelling their aircraft.
47About 100 meters north of the classroom and fuel bowser area was the run-up bay, a sealed area where pilots conducted take-off checks.
48A holding point, where pilots performed FAST checks, was located north of the run-up bay. FAST checks involved setting the aircraft flaps to the required position, ensuring the aircraft’s avionic system was set to the right radio frequency, verifying magneto switches were turned on, and transmitting the pilot’s intentions to other aircraft in the area.
49From the holding point, aircraft entered runway 17 and moved to the start of the runway, marked with a series of white lines known as the piano keys, to commence take-off.
The aircraft
50The aircraft used for the plaintiff’s solo assessment flight was a Foxbat A22LS, an ultralight two-seat aircraft. There was no dispute between the parties in relation to the layout and manner of operation of the aircraft.
51In the cockpit of the aircraft was a dashboard with instrument gauges and controls. On the instrument dashboard were an airspeed indicator, a revolutions per minute gauge, and a “balance ball” used to assess whether the aircraft was in balance.
52Facing the dashboard were two seats. In between the two seats was a ‘Y’ shaped control stick. If the control stick was moved left, the aircraft moved left. If the control stick was moved right, the aircraft moved right. If the control stick was pulled backwards, the height of the aircraft increased, or the nose moved upwards. If the control stick was pushed forward, the height of the aircraft decreased, or the nose moved downwards. Application of the control stick had no impact on the movement of the aircraft while the wheels were on the tarmac; however, slight input upon the controls in the air, had the potential to cause a significant impact upon the aircraft’s movement.
53Attached to the control stick was a brake lever. The brake was applied by pulling the brake lever towards the operator in a similar way to applying a handbrake on a pushbike.
54The throttle was located on the outside edge of each seat. It allowed the aircraft to increase or decrease speed. To abort a take-off, before leaving the ground, the throttle handle was pulled all the way back. This cut power to the engine and reduced the engine to an idle.
55In the footwell on each side of the aircraft was a set of stainless-steel rudder pedals, one for both the instructor and the student. They simultaneously controlled both the nose-wheel and the rudder – the steering mechanism which stood upright at the back of the stabiliser at the rear of the aircraft.
56The rudder pedals were connected so they could be operated from either side of the aircraft. If one pilot applied pressure to the pedal on their side of the aircraft, the pedal on the other side of the aircraft also moved.
57When the aircraft was moving on the ground, such as when it was taxiing prior to take-off, or after landing, the rudder pedals moved the front nose-wheel to steer the aircraft. Pushing the left rudder pedal caused the front nose-wheel and the steering mechanism on the stabiliser at the back of the aircraft to turn left. Pushing the right rudder pedal caused the rudder, the front nose-wheel and the steering mechanism on the stabiliser at the back of the aircraft to turn right. When in the air, application of the rudder pedal caused the aircraft to “yaw,” meaning to rotate left or right along the vertical axis.
58The flaperons were located on the wings of the aircraft. They were a combination of a flap and an aileron function. The flap created lift of the aircraft, and the aileron controlled the roll of the aircraft. The flaperon functioned to rotate the aircraft along the longitudinal axis (from nose to tail), to assist turning the aircraft whilst it was in the air. To manipulate the flaperons, the control stick was moved left or right.
59At the rear of the aircraft were the horizontal and vertical stabilisers.
60The horizontal stabiliser was a small, fixed wing panel across the tail which stabilised the aircraft when flying by preventing the aircraft nose pitching up or down excessively.
61The elevator was a small liftable surface attached to the rear of the horizontal stabiliser which was moved using the control stick. The elevator controlled the pitch of the aircraft. It moved the nose of the aircraft up and down along the lateral axis. The elevator was manipulated by pulling the control stick forward and back. To pitch the nose up, the control stick was moved back. To pitch the nose down, the control stick was moved forward.
62The vertical stabiliser, or the vertical upright section of the aircraft to which the rudder was attached, was connected to the vertical tailplane – a part of the tail of the aircraft.
Solo assessment flight
63The day of the plaintiff’s solo assessment flight was a good day for flying. The plaintiff did not recall wind or turbulence. Mr Nguyen’s recollection was that there were light winds, southerly in relation to the runway, which was north south.
64Upon his arrival at the Bendigo Airport, the plaintiff was paired up with Mr Nguyen. Mr Nguyen was the flight instructor allocated to conduct the solo assessment flight. It was the first time the plaintiff and Mr Nguyen had flown together.
65Mr Nguyen met the plaintiff in one of the cubicles in the briefing rooms at Bendigo Airport. Mr Nguyen completed the paperwork and obtained a missing medical certificate from the plaintiff. Mr Nguyen asked the plaintiff some general questions including how the plaintiff was feeling. The plaintiff explained he was a bit anxious, stressed and scared. Mr Nguyen considered that to be a normal reaction. He told the plaintiff to be safe and explained he was not looking for the plaintiff to be the best pilot in the world.
Pre-flight safety briefing
66The plaintiff’s solo assessment flight was undertaken in a Foxbat A22LS training aircraft with registration number 23-8769. The aircraft was the same type of aircraft in which the plaintiff had trained.
67The aircraft was located in the parking position on the apron at Bendigo Airport.
68Once all the paperwork was complete, Mr Nguyen instructed the plaintiff to undertake a pre-flight inspection of the aircraft. The pre-flight inspection involved a pre-flight briefing and a physical inspection of the aircraft.
69During the pre-flight inspection, Mr Nguyen stood in the background and observed the plaintiff conduct a series of external pre-flight checks of the aircraft. The plaintiff checked the essential components of the aircraft and removed the chocks and the external covers on the instruments. The weather was considered, and the plaintiff was able to ask any general questions.
70After completion of the pre-flight checks, the plaintiff and Mr Nguyen climbed into the aircraft. The plaintiff sat in the left-hand pilot seat and Mr Nguyen sat in the right-hand pilot seat.
71Once in the aircraft, the starter/pre-start checklist was undertaken. Mr Nguyen had no concerns or questions of the plaintiff. Mr Nguyen agreed the plaintiff had conducted a pre-flight check of the aircraft to his satisfaction.
72The plaintiff started the engine and moved the aircraft to the fuel bowser area close to the apron, and later to a run-up bay where the after-start checklist was completed. The after-start checklist was a checklist of steps for the flight, designed to ensure the engine and controls were working properly, and the aircraft was safe to fly. Checks were made of the temperature and pressure. The electronics and intercom were turned on, the engine was tested, and the controls and ailerons were assessed. Finally, a radio check was done to ensure the plaintiff and Mr Nguyen could hear each other.
73Once those checks were complete, Mr Nguyen said there was a take-off safety briefing given by the plaintiff about what was going to happen if an emergency arose. Four major points were covered: what would happen if the engine failed before take-off; what would happen if the aircraft took off with runway remaining; what would happen if the aircraft took off with no runway remaining, and what would happen if the engine failed within the circuit area.
74If there was an engine failure or emergency before take-off the aircraft was required to be brought back to idle, the brakes were to be applied, and the pilot was required to call “stopping” on the radio.
75If there was an emergency or engine failure with sufficient runway remaining, it was expected the aircraft would land on the remaining runway.
76If there was an emergency after take-off with no runway remaining, the nose of the aircraft was to be lowered and a field of 30 degrees either side of the runway was to be selected, for the aircraft to land.
77The plaintiff did not recall specifically where the safety briefing was given or the specifics of it. He could not recall emergency procedures being discussed or saying to Mr Nguyen if there was an emergency, he would continue to fly until Mr Nguyen elected to take over. He agreed though, it was part of the standard instruction in the lead up to a typical flight and that the flight on 17 December 2017 was a typical flight.
78After the safety briefing, Mr Nguyen spoke with the plaintiff and asked him again how he was feeling and whether he had any questions. Mr Nguyen reiterated he was not looking for the best pilot, just a safe pilot.
79The aircraft then taxied to the holding point, where it stopped.[3] Another set of checks known as “FAST checks” were undertaken by the plaintiff. The flaps, the avionics and the two switches or magnetos were checked. Finally, the plaintiff made the radio call. The plaintiff knew this was usual procedure.
[3]The path and direction the plaintiff travelled from the fuel bowser to the run-up bay and then to the holding point, was marked on Exhibit F
80The aircraft waited at the holding point for another aircraft which was already in the circuit. When that had passed, the plaintiff confirmed with Mr Nguyen it was safe to proceed. The plaintiff made a left-hand turn in a northerly direction, stopped the aircraft, and made a radio call as trained. The plaintiff identified the aircraft, stated where it was positioned and announced the aircraft was entering runway 17 and backtracking. The plaintiff visually checked to see if there was any traffic coming from the left towards the piano keys. Mr Nguyen also did a visual inspection. The aircraft then entered the runway and taxied to the piano keys where it waited to commence its take-off run.
Control of the aircraft
Pilot-in-command and responsibility for control, operation and safety of the aircraft during take-off
81The parties accepted that it was a widely accepted principle that only one person at a time should fly/control an aircraft by making inputs on the aircraft controls. The plaintiff had been trained about that principle. The plaintiff said it was made very clear to students; they were not able to be a pilot-in-command of an aircraft by law until they had obtained a pilot’s licence.
82The plaintiff contended Mr Nguyen was pilot in command and retained responsibility for control of the aircraft at all times prior to take-off. The plaintiff said he initiated the take-off under the supervision of Mr Nguyen. He was never in control of the aircraft. Mr Nguyen, as pilot-in-command, was in charge. Mr Nguyen was responsible for directing the plaintiff during take-off and for the ultimate fate of the flight, even if he was not physically manipulating the controls.
83The defendant submitted Mr Nguyen was not in physical control of the aircraft before take-off. He had no responsibility for handling or influencing the controls. The plaintiff was pilot in charge and in control of the aircraft prior to take-off.
84I am satisfied that on the day of the collision, the plaintiff was manipulating the controls during the take-off roll, however, Mr Nguyen was pilot-in-command and retained ultimate authority and responsibility for the control and operation of the aircraft.
85I have reached that conclusion because, first, it is consistent with the SOAR Advanced Flight Training Operations Manual which Mr Nguyen was asked about in cross examination. Mr Nguyen agreed the SOAR Advanced Flight Training Operations Manual contained a provision that:
“For all flights operated by Soar Advanced Flight Training, one pilot shall act as pilot-in-command (PIC). In the case of dual training flights, the flight instructor will act as PIC, while for solo training flights the student will act as PIC. In the case of a flight test, the Flight Examiner will be PIC IAW [in accordance with], the Flight Examiner Handbook requirements.”
86The effect of the provision was that one pilot was to act as pilot-in-command and in the case of dual training flights or flight tests, the flight instructor or flight examiner was to act as the pilot-in-command.
87Second, Mr Nguyen accepted he was pilot-in-command every time he was flying with a student, including on 17 December 2017 when he was flying with the plaintiff. Further, he agreed the pilot-in-command for dual training flights was the flight instructor who was responsible for ensuring there was no doubt as to who had physical control of the aircraft at any given time.
88Third, a structure where Mr Nguyen retained ultimate control of the aircraft was consistent with Mr Nguyen’s evidence that students were taught the pilot-in-command had the final authority in respect of the operation or manipulation of the controls of the aircraft and any request to give or take control by the pilot-in-command should not be questioned. Rather, it should be acted on as quickly as possible by a student.
89Finally, the rationale for having one pilot-in-command is to prevent inconsistent actions between dual pilots and ambiguity as to responsibility resulting in dangerous situations arising. Consequently, a clear command and control structure is necessary to ensure only one pilot has final authority and responsibility for the operation and safety of the aircraft. The conclusion that Mr Nguyen, as pilot-in-command, retained ultimate control of the aircraft is consistent with that rationale.
Appropriate handover/takeover procedures when more than one pilot
90As the flight instructor/pilot-in-command, Mr Nguyen was responsible for ensuring there was no doubt as to who had physical control of the aircraft at any given time.
91At trial the parties agreed that to ensure there was only one person flying the aircraft at the one time, when there were two pilots in an aircraft seated in a control seat, appropriate handover and takeover procedures were required.
92The plaintiff had no recollection, as part of the theory component of the course, of a briefing being given to him about handover procedures in the event it was necessary for an instructor to take over control of the aeroplane.
93Mr Nguyen, conversely, said that handover and takeover practices were included in all training briefings and flights, and in training materials, including the RAAus Flight Instructor Reference Manual, the CASA Flight Instructor Manual Aeroplane - 2007 and the SOAR Advanced Flight Training Operations Manual.
Appropriate policy or procedure for taking over control generally including when an instructor taking over from student pilot
94It was accepted by the parties there was a very clear process in place for takeover and handover between a student pilot and an instructor. To take over control of the aircraft, the instructor said, “taking over” and the student responded with “handing over”. Each pilot had an obligation to advise the other that they were handing over or taking over. That was vital for the safety of operations and to ensure there was never any doubt as to who had control of the aircraft during flight.
95The procedure for giving and taking control was included in the RAAus Flight Instructor Reference Manual. Mr Nguyen said he taught students the procedure. The pre-flight safety briefing undertaken by the plaintiff contained information on all aspects of the flight, including appropriate handover and takeover procedures.
Circumstances of the collision
96There was no dispute the plaintiff was trained to execute a take-off of an aircraft.
97Executing a take-off involved lining the aircraft up along the centreline of the runway, waiting for clearance and then applying full throttle. This involved pushing the lever on the outer side of the pilot’s seat all the way forward. Hands were required to be maintained on both the throttle and the control stick. Feet were to be placed on the rudder pedals. The rudder pedals controlled the direction of the aircraft on the ground and maintained the centreline prior to take-off. The pilot was required to focus their eyes outside and to watch the gauges to make sure the airspeed and revolutions per minute were correct.
98The plaintiff released the brake and started the take-off manoeuvre.
Deviation from centreline
99There was no dispute that after the aircraft commenced the take-off roll from the piano keys, it deviated to the left of the centreline of the runway and started to stray very slightly off the middle white line.
100The plaintiff could not give a specific number of metres the aeroplane veered left, but he “didn’t feel it was a particularly big distance,” maybe, “a couple of metres”.
101Mr Nguyen did not provide an estimate of the distance the plane moved, but he said the deviation did not create an emergency or a dangerous situation.
102I accept, on the balance of probabilities, the aircraft deviated only slightly from the centreline, not “a particularly big distance” and no more than “a couple of metres”.
Application of right rudder/taking over control
103To correct the left-hand drift or deviation from the centreline, the plaintiff applied slight right rudder.
104Application of right rudder involved movement of the rudder control pedals which the plaintiff said were operated simultaneously on both the left and the right side of the aircraft.
105When the plaintiff applied right rudder, he thought the rudder control pedals did not feel the same as they usually did. That was consistent with what he told Ms Jill Bailey, national operations manager of RAAus, in a conversation he had with her on 20 December 2017. He could not see Mr Nguyen’s feet. He could not see whether Mr Nguyen had his hands on the control stick or not (although he did not believe he did) and he could not recall what Mr Nguyen was doing.
106Mr Nguyen’s evidence was that immediately after the aircraft moved off the centreline, there was a deviation to the left. Mr Nguyen looked at the plaintiff and waited for a very short time to see if the plaintiff would correct the path of the aircraft by applying right rudder. When the plaintiff took no action to correct the drift towards the left-hand side of the centreline, Mr Nguyen said he “applied subtle right rudder” by pushing his right foot onto the right rudder pedal. As Mr Nguyen applied right rudder, he looked up at the windscreen and saw blue sky. He could not see the horizon. Based on his training and experience, he considered that meant the aircraft was in a high-nose attitude and was going to stall. He accepted he was not looking at the windscreen and it was probable he was looking down at the instrumentation.
107Had the plaintiff applied right rudder, Mr Nguyen said he would have noticed it because he and the plaintiff had a set of interconnected rudder controls which meant the application of right rudder by the plaintiff on his side of the aircraft, depressed the pedal on Mr Nguyen’s side of the aircraft by an equivalent amount.
108Mr Nguyen disagreed that putting his foot on the rudder pedal sent the aircraft to the right-hand side of the runway. He disagreed the aircraft was put into a dangerous situation because it was running off the edge of the runway, or that he put pressure on the plaintiff or caused an emergency situation, by applying the right rudder. He accepted though, if the aircraft had been running off the runway towards the gravel, that would have been a frightening and unexpected experience for the plaintiff, and it might have been reasonable for the plaintiff to respond by trying to get the aircraft into the air. It was not a situation for which training was provided in the CASA syllabus.
109Mr Nguyen denied he took control of the aircraft. However, he accepted that the account of the incident he gave to Ms Bailey for the purposes of preparation of the RAAus Incident Report was correct. He could not remember telling Ms Bailey for the purposes of the RAAus Incident Report that “the nose of the plane started to veer to the left” at which stage “the instructor started to take control of the aeroplane”.
110Mr Nguyen accepted he inputted right rudder without communicating. He also accepted it was incorrect and contrary to his original defence, that the application of right rudder was “in accordance with usual practice”. It was not. Mr Nguyen did not tell the plaintiff he was taking control before he applied right rudder.
111I find that during the take-off roll, after the aircraft deviated slightly left of the centreline, Mr Nguyen waited for the plaintiff to correct the deviation. When that did not occur, Mr Nguyen took control of the aircraft without communicating to the plaintiff and applied right rudder. Consistent with the resistance the plaintiff felt on the rudder pedal, I find that almost simultaneously, the plaintiff also applied right rudder.
Application of control stick by Plaintiff and rotation
112After the plaintiff had applied slight right rudder, he said, rather than heading straight down the runway, the aircraft was facing to the right side of the runway, almost at a 45-degree angle to the centreline, and was “heading off the runway”. The aircraft very quickly – within a matter of seconds – ended up to the far right-hand side of the runway, close to or off the edge of the runway to the right-hand side.
113The plaintiff was unable to explain the dramatic turn of the aircraft across the centreline to the right-hand side of the runway, other than to say the controls did not feel how they should have felt.
114The plaintiff could not be sure how far across the runway to the right the aircraft moved while still on the tarmac, but he recalled it being a significant distance. He was cross-examined about this. He accepted his statement had not referred to the movement of the aircraft back across the centreline to the right; however, he disagreed the version was a recent invention. He maintained there was a “definite right-hand movement of the aircraft at some point”. He believed the movement was while the aircraft was still on the ground and that it occurred within a matter of seconds from when the aircraft had deviated left of the centreline.
115It was put to the plaintiff that contrary to his evidence that he pulled back on the control stick after the aircraft crossed back over the centreline a distance of 15 metres towards the right edge, in fact he pulled back on the control stick before the aircraft moved to the right. The plaintiff disagreed. He believed there was movement to the right, and then he applied full back pressure on the control stick.
116After the aircraft was taken to the far right-hand side of the runway off, or close to off, the edge of the runway surface, the plaintiff said he pulled back on the control stick to tilt the nose of the aircraft upwards. He believed he was the only person holding the control stick at that point.
117He could not recall what caused him to pull back on the control stick. It may have been because the aircraft had reached the speed the plaintiff understood needed to be reached for take-off – 40 knots – or there may have been another trigger. The plaintiff accepted pulling back on the control stick was contrary to his training and instruction, but he said pulling back on the control stick was an unconscious reaction by him to the situation he faced, namely running off the runway.
118The plaintiff could not remember at what point he became aware Mr Nguyen was pushing on the control stick. He said he continued to fly the aircraft and endeavoured to control it, as there had not been any verbal communication to hand over, which was what the plaintiff had been trained by the Royal Victorian Aero Club was the signal for the plaintiff to release control of the aircraft.
119At some point Mr Nguyen said he was taking over and that was when the plaintiff released control on the control stick.
120The plaintiff said from the time he pulled back on the control stick until the aircraft hit the ground, felt longer than five seconds. He did not know how long exactly.
121After the plaintiff pulled back on the control stick, the aircraft took to the air, and the plaintiff said, “sort of pitche[d] up” with a high-nose attitude. He agreed the nose was pitched higher than it ought to have been. It may have been unsafe, but he could not say if he felt it was at the time. His goal was simply to get the aircraft into the air.
122When cross-examined, the plaintiff accepted that he pulled back on the control stick so hard that Mr Nguyen could no longer see the horizon. He agreed if that occurred, the aircraft would have been in an unsafe attitude. He clarified in re-examination he did not believe he made a conscious decision to pull back hard on the control stick. He felt the aircraft was in a position where it was either off the runway or about to be off the runway. He could not be sure exactly where it was. That was the situation to which he reacted.
123There was then a rotation or take-off of the aircraft.
124Mr Nguyen’s evidence was, as he applied right rudder, he looked up towards the windscreen and saw blue sky. He noticed the plaintiff had pulled back on the control stick. He could not say when that occurred or for how long the plaintiff had been pulling back on the control stick.
125Mr Nguyen was aware from his training and experience, that even a small movement could result in a high-nose attitude. Because the plaintiff had pulled back on the control stick and Mr Nguyen could only see blue sky, he determined the aircraft was in a high-nose attitude and was going to stall. At that point, Mr Nguyen considered the situation had become dangerous.
126I accept that after the plaintiff applied right rudder, within a matter of seconds, the aircraft ended up on the far-right side of the runway. The plaintiff believed the aircraft was running off the runway. In an unconscious reaction to the situation confronting him, the plaintiff pulled back on the control stick to tilt the nose of the aircraft upwards. He was the only person holding the control stick. The result was the aircraft was placed in a high-nose attitude and was likely to stall.
Rotation of the aircraft
127There was no dispute that after the plaintiff pulled back on the control stick, the aircraft rotated and rose into the air.
128The plaintiff said the aircraft had not “rotated as usual” and after he pulled back on the control stick, he heard a loud noise or a “thud” as the plane pitched up. At the time he thought he heard the tail of the aircraft striking the runway, also known as a tail strike.
129This typically happens when the aircraft’s nose is raised too high, causing the rear of the aircraft to scrape the ground. The plaintiff understood a tail strike occurred when the control stick was pulled back too far, and the aircraft over-rotated. However, he had never experienced a tail strike before and had assumed, without knowing, the noise he heard was a tail strike.
130Mr Nguyen had no memory of the urgent situation caused by the aircraft being on the right-hand side, and running off the runway, and therefore disagreed the plaintiff may have over-rotated the aircraft on take-off. He said the wings of the aircraft were level at take-off and then the left wing dropped. However, he said later, he had no recollection whether that was accurate because he was not paying attention to the wings.
131Mr Nguyen could not recall whether he heard anything as the aircraft rotated, but he felt the seat going back and something being hit from the back – a vibration. He described it as feeling like a tail strike at the back of the aircraft. Like the plaintiff though, Mr Nguyen said he had never experienced a tail strike before or after the collision and the strike he felt on rotation was the only one he felt that day. He said: “So, when you ask me, ‘Did the tail strike the light,’ I can’t recall.”
132I find that as the aircraft rotated, there was a vibration from the back of the aircraft and a loud noise or a “thud” as the plane pitched up.
Where was the aircraft when rotation occurred?
133The plaintiff was unable to recall exactly where the aircraft was when rotation occurred. He was not certain whether the aircraft was still on the runway or whether it had run completely off the tarmac. He was unable to identify the point at which the aircraft became airborne. All he could say was the aircraft was close to, or off, the edge of the runway to the right-hand side.
134Mr Nguyen said when the aircraft became airborne and he saw the plaintiff had pulled back on the control stick, the aircraft was most likely situated “between – around about the third centre-line, the third faint centre-line” on the runway. He marked the position with an ‘X’ on a photograph.[4] He disagreed the aircraft had started on a course to the right-hand side of the runway onto the gravel because if that had occurred, he would have terminated the flight because he would not have allowed a take-off on the gravel.
[4]Exhibit 2
135Despite his evidence, Mr Nguyen was unable to explain why Ms Bailey recorded he had told her the aircraft had run off the right side onto the gravel and a runway light may have been struck. He did not know, nor could he remember, exactly where the aircraft was on runway when the plaintiff pulled back on the control stick and the aircraft became airborne. He could not say whether it was on the far right-hand side or running onto the gravel. He continued to disagree the aircraft took off at the point where the runway light was damaged and said he could not agree because he did not know. He conceded the point he had marked on the photograph as the take-off point was most likely “pure speculation” on his part.
136I find it is more probable than not that the rotation of the aircraft occurred at, or just off, the far-right side of the runway. That conclusion is consistent with the plaintiff’s recollection that at the point of rotation, the aircraft was on, or just off, the far-right side of the runway. It is consistent with Mr Nguyen’s lack of recollection of where the aircraft was at the point of rotation. It is consistent with what Mr Nguyen was recorded as telling Ms Bailey. Additionally, it is consistent with the evidence of Mr Daniel O’Donnell, the defendant’s expert witness, who reviewed the photographs taken by the police after the collision. Mr O’Donnell noted the point of impact of the aircraft with the ground was off the runway to the right on the gravel, after which the aircraft moved to the left and onto the runway, where it ended up nose down. Finally, the conclusion I have reached is consistent with the damage to the runway light and the fact Mr Nguyen only felt one tail impact that day upon rotation.
Did the horizontal stabiliser strike the runway light at rotation?
137The plaintiff’s evidence was the damage to the runway light occurred because the right horizontal stabiliser struck the runway light at rotation.
138Mr Nguyen disagreed. He said he felt the tail of the aircraft strike the ground but that the evidence did not permit a finding to be made whether there were two impacts by the aircraft, namely a tail strike and then a subsequent striking of the runway light, or only a striking of the runway light.
139The plaintiff submitted, if Mr Nguyen’s evidence about the way the collision unfolded were to be accepted, rotation had to have occurred close to the centre of the runway. That finding would require rejection of the plaintiff’s evidence that the aircraft struck the runway light when it rotated, and that the rotation occurred at or off the far-right hand side of the runway. Alternatively, it would require the Court to accept there were in fact two separate tail impacts. I accept the plaintiff’s submission.
140In cross-examination, Mr Nguyen was shown a series of photographs of the collision including a photograph of the runway light. He agreed the runway light was located a metre or two off the edge of the paved surface of the runway and the plastic cap had been knocked off the top of it, resulting in damage. Mr Nguyen also accepted there was damage to the right-hand stabiliser following the collision.
141It was suggested to Mr Nguyen that as the aircraft rotated, the right horizontal stabiliser struck the runway light, and he was aware that had occurred immediately following the collision. Mr Nguyen said he had no recollection of the aircraft hitting the runway light. He disagreed that when he applied right rudder to the aircraft without telling the plaintiff, the aircraft veered across to the right-hand side of the runway and struck a light. He said he could not recall whether the tail struck a light. He said he did not know exactly what happened. It had been five or six years since the collision. His evidence was that, as he applied right rudder, he saw the sky, and everything happened so fast. The next minute the aircraft stalled.
142Mr Nguyen said he felt the tail strike something at the back of the aircraft. He accepted the damage to the horizontal stabiliser did not occur when the aircraft collided with the ground, and the horizontal stabiliser was not damaged before take-off. He agreed the only conceivable possibility was that the right horizontal stabiliser struck the runway light; however, because he could not say definitely whether it did nor not, he refused to agree that it did.
143I am satisfied the right horizontal stabiliser struck a runway light at rotation.
144First, that conclusion is consistent with the plaintiff’s evidence that the aircraft moved dramatically and quickly to the right, and the finding I have made that rotation occurred when the aircraft was at the edge, or just off the edge, of the right-hand side of the runway.
145Second, that conclusion is consistent with the damage to the runway light reported in the police notes and the damage to the horizontal stabiliser observed after the collision.
146Third, a finding that the right horizontal stabiliser struck a runway light at rotation is consistent with the noise heard by the plaintiff at rotation. Further, it is unlikely there were two separate tail strikes because Mr Nguyen only heard one noise, and the tail strike he said he felt on rotation, was the only one he felt that day.
147Fourth, the photographic evidence and police notes to the effect that a runway light 1.5 metres to the right of the runway was damaged, support that result.
148Fifth, that conclusion is not inconsistent with the expert evidence which suggested that a runway light had been impacted.
149Mr Michael Nolan opined that the aircraft drifted to the right-hand side of the runway, and the right side of the horizontal stabiliser impacted a runway light with considerable force. Further, in order for the tailplane to hit the runway light, which was only 100 millimetres high, the right wing must have been low, because the distance between the tailplane and the bottom of the tailskid on the underside of the aircraft, was only 380 millimetres. If the wings had been level, as Mr Nguyen said, the tailplane would have cleared the light. The right-wing low altitude suggested an out of balance flight condition which would have contributed to the aircraft stalling. Mr Nolan’s opinion was supported by Photographs 9 to 12 of the police photographs.
150Mr O’Donnell’s view was the tailplane had possibly impacted a runway light.
151Sixth, reports made following the collision supported the conclusion that the horizontal stabiliser struck a runway light. The Bendigo Airport Incident Report dated 17 December 2017 which Mr Nguyen conceded in cross-examination was correct (although he could not remember writing it), identified that the “aircraft failed to take off on runway 35, impacted a runway edge light and came to a stop on the pave[d] section of the runway”. Similarly, both the Undated Recreational Aviation Australia Short Report External Use and Undated Recreational Aviation Australia Short Report Internal Use did not exclude the possibility that the horizontal stabiliser had impacted a runway light. Each of those reports identified that the “aircraft was reported to pitch up severely as a result of either a possible tail strike or impact by the horizontal stabilizer with a runway light”. Further, in the undated Recreational Aviation Australia Short Report – External Use, the Aerodrome Reporting Officer confirmed a runway light had been damaged. The lens was found 120 metres from the runway light and the globe had been sheared off in the light fitting.
152Seventh, the notes of the telephone call that took place on 20 December 2017 between the plaintiff and Ms Bailey were not inconsistent with rotation having occurred when the horizontal stabiliser struck the runway light. They recorded: “The tail struck the ground as the aircraft drifted right and the left wing stalled, impacting the ground. … .” The plaintiff agreed he would have attempted to give Ms Bailey an accurate version of events relating to the collision and may have told her the things she recorded. He did not refer to the horizontal stabiliser striking the runway light, but that was understandable. He had never previously experienced a tail strike, and it is likely he incorrectly attributed the noise he heard upon rotation, to the tail striking the runway as opposed to the horizontal stabiliser hitting the runway light.
153Ms Bailey had recorded that the plaintiff told her during the RAAus investigation, the aircraft “rotated as usual”. The plaintiff did not recall providing that information to Ms Bailey. He explained the discrepancy by saying when he spoke with Ms Bailey very soon after the collision, he “was still trying to put together what was happening in [his] own mind”. He endeavoured to do his very best to give an accurate portrayal of what he recollected the events to be. I accept his evidence, notwithstanding that not all details of the conversation with Ms Bailey may have been accurate.
154Eighth, the notes of a telephone conversation between Mr Nguyen and Ms Bailey on 20 December 2017 support the conclusion that rotation occurred when the horizontal stabiliser struck the runway light. Although Mr Nguyen initially said he could not recall whether he had one or two calls with Ms Bailey, he accepted, when cross-examined, Ms Bailey contacted him on a number of occasions as part of her formal function of investigating the collision. He also accepted that Ms Bailey’s note of the conversation she had with him on 20 December 2017. correctly reflected what was said to Ms Bailey by Mr Nguyen. The note recorded that, “… [Mr Nguyen] noted the aircraft had run off the right side onto the gravel of 17 and a runway light may have been struck.” I accept the conversation on 20 December 2017 between Ms Bailey and Mr Nguyen occurred and Ms Bailey’s note was an accurate reflection of what Mr Nguyen told her had occurred.
155Ninth, although Mr Nguyen said he did not inspect the runway after the collision and he was not aware of any damage to the runway light until much later during the RAAus investigation when someone – possibly Ms Bailey or Mr Schaefer, Assistant Safety Manager of RAAus – told him about it, I do not accept that evidence. Mr Nguyen said he had a conversation with Mr Koushik Panchangam after the collision. Following that conversation, Mr Ngyuen took some photographs of the aircraft in its final resting place. He then said, “we moved the aeroplane off the runway”. It is improbable Mr Nguyen did not look at the aircraft and the runway in the process of taking photographs and moving the aircraft.
156I am satisfied, on the balance of probabilities, the horizontal stabiliser of the aircraft struck the runway light when the aircraft over-rotated at take-off. Further, that the rotation of the aircraft occurred at a point at, or just off, the far-right side of the runway.
157Having made those findings, it follows that I reject Mr Nguyen’s evidence about the way the collision unfolded. Rotation did not occur close to the centre of the runway. It occurred at or off the far-right side of the runway. Further, I find there was only one tail impact, and it was with the runway light.
Did Mr Nguyen take control of the control stick after rotation and take-off?
158The plaintiff recounted how, after the aircraft became airborne, events happened quickly.
159There was a point after take-off – the plaintiff could not say exactly when – that Mr Nguyen “took control of the yoke – that is, put his hand on the yoke – in order to try and recover the situation the plane was in”. Mr Nguyen said, “Taking over” and the plaintiff released his hands and his feet. The plaintiff could not remember clearly, but he thought about two seconds later, the left wing impacted the ground.
160He recalled that despite full power being applied to the aircraft, the aircraft was nose high and losing airspeed, which could potentially have led to the aircraft stalling. He had trouble recollecting how long the aircraft was airborne, but he thought perhaps a matter of seconds. He estimated perhaps 20 to 25 seconds. That timeframe accorded with what Mr Nguyen told Mr Nolan, namely that the aircraft was airborne for 25 seconds, with Mr Nguyen controlling the aircraft without advising the plaintiff for 10 seconds. It was also consistent with what the plaintiff told Mr Tony Trevitt, psychologist. Specifically, that the aircraft was “[u]p for 20 seconds, sudden left then sudden right” or “[c]limbing, then down to ground at 110 kilometres per hour”.
161Despite the plaintiff’s evidence, he maintained he did not have a complete recollection. He could not be certain about the time between lift-off and impact. He uniformly maintained that position. He was unable to accurately recall how high the aircraft rose into the air. He thought perhaps 100 feet. Though, the best he could really say was that events happened quickly.
162Mr Nguyen said when he saw the high-nose attitude of the aircraft, he immediately tried to lower the nose by taking the control stick and pushing it forward. He said that was the first time he had touched the control stick during the flight. He wanted to make the aircraft safe; to aviate the aircraft first, then navigate and, finally, communicate.
163When Mr Nguyen took hold of the control stick, he felt resistance. He looked at the plaintiff. He could not recall and did not know whether the plaintiff had frozen at the controls, lost control of the aircraft or whether Mr Nguyen had pushed past the plaintiff and put his own hand on the control stick while the plaintiff was also holding it. He said events at that point were very fast, like a flash; however, he thought the plaintiff had frozen at the controls.
164Mr Nguyen pushed the control stick more, and the plaintiff “kind of let go”, which resulted in the nose of the aircraft being lowered. Mr Nguyen did not disagree he may then have said “taking over” to the plaintiff.
165Mr Nguyen said, from the time he noticed the horizon had gone, to the time of the impact, was very short, possibly a couple of seconds.
166I find very soon after take-off – within a matter of seconds – Mr Nguyen took over control of the control stick without communicating with the plaintiff before doing so. When Mr Nguyen took over control of the control stick, he felt resistance on the control stick. Mr Nguyen then said, “Taking over” and the plaintiff released his hands and feet.
The collision
167The plaintiff said shortly after the aircraft became airborne, and after Mr Nguyen said, “Taking Over”, the aircraft slipped to the left. The left wing had stalled.
168The plaintiff said he felt a sense of calm and he was fairly certain he was going to die.
169He said the aircraft took a course to the ground. The left wing impacted the ground. The impact dragged the aircraft down, nose-first, onto the runway. The plaintiff had no recollection of the right wing striking the runway and he was unable to say what happened to the aircraft to end up in its final position[5] facing 180 degrees from the original direction of travel, with the cockpit, the front of the aircraft and nose into the runway. He was unable to say whether the momentum of the aircraft meant it kept moving after it struck the ground.
[5]The aircraft in its final position at Bendigo Airport runway 17 was identified by the plaintiff and marked with an ‘X’ on Exhibit G; Further photographs of the aircraft in its final resting place were also tendered as Exhibit H
170Mr Nguyen recalled after the aircraft was airborne, and he had applied the control stick and lowered the nose, the left-wing tip went down. Mr Nguyen said the left wing stalled, and the aircraft dropped. The aircraft continued on an arc until the left wing hit the gravel on the right-hand side of the runway.[6] The aircraft then cart-wheeled or spun about 180 degrees. Immediately before the impact, Mr Nguyen said, “Brace for impact”. The aircraft then went down to the ground[7] and landed on the runway, nose down.[8]
[6]The position where the left-hand wingtip made contact with the gravel was somewhere between point 3 and point 5, in the vicinity of point 3, in the photographs.
[7]Exhibit H
[8]Mr Nguyen said the final position of the aircraft was most likely at point 8 of the photographs because that was close to the location of the fuel which had pooled on the runway; Exhibit H
171Mr Nguyen accepted that when the left wing struck the ground and the nose came down, it would have created momentum, and it could have been the case that the right wing continued with the momentum and struck the ground. Mr Nguyen did not know whether the speed of the aircraft would have reduced if the right-hand stabiliser struck the light. He accepted though, that hitting something, would have reduced the speed of the aircraft, but he was not aware the light had been struck.
172I find, after the aircraft was airborne and Mr Nguyen had applied the control stick and lowered the nose, the left wing stalled. The left-wing tip went down, and the left wing hit the gravel on the right-hand side of the runway. The aircraft cartwheeled and spun about 180 degrees and landed on the runway, nose down.
Aircraft following collision
173Examination of the photographs showing the condition of the aircraft after the collision revealed the severity of the aircraft’s impact with the tarmac. The photographs of the collision showed the aircraft with a squashed front. It had collided nose first into the runway. The nose of the aircraft had collapsed, been jerked around, had been bent back 180 degrees, and had collided head on into the runway. The impact had shattered the windscreen and windows and had torn the yellow metal shell of the aircraft. The dashboard had collapsed. There was a fuel leak. There was also damage to the right horizontal stabiliser.
Events following the collision
Airport
174In the moments directly after the impact, people gathered around the aircraft.
175The plaintiff said when the aircraft collided, his left elbow struck the tarmac through the window, the aircraft dashboard collapsed onto his feet, and the aircraft door was damaged.
176The plaintiff had lacerations and grazes to the back of his left thigh, and his left leg was bleeding.
177He was bleeding from his left elbow.
178He was bleeding from his right lower leg.
179His trousers and his R M Williams’ boots were badly shredded.
180The plaintiff said Mr Nguyen called to him, “Are you all right [sic]? Get out. Get out.”
181The plaintiff initially struggled with his harness and had trouble getting out of the aircraft, but he eventually managed to squeeze his feet out and crawled onto the runway before managing to walk away. The plaintiff could not say how long that took, but he thought it would have been under a minute.
182The plaintiff said he made his way to the building where he saw Mr Mohamed Abdalla, a senior flight instructor. The plaintiff used Mr Abdalla’s telephone to call his mother. He had no memory of what was said during the conversation. He said things were “a bit of a blur”.
183Mr Nguyen said, following the collision, there was petrol on the runway which meant Mr Nguyen was concerned about the potential for a fire to occur. He remembered saying to the plaintiff to get out of the aircraft, but he did not know if he shouted.
184Mr Nguyen said he did not see the control panel in the middle of the aircraft after the collision and he assumed the door of the aircraft was damaged. He agreed the engine of the aircraft had caved in and he knew that on the day.
185Mr Nguyen was asked about whether the area around his feet had collapsed. He responded that “it didn’t do any injuries or damages [sic]. We were able to get out freely.” Mr Nguyen recalled the plaintiff unbuckled his seatbelt, opened the door and “walked out, same as me”. “Crawling, rolling, tumbling, I’m not sure.” Mr Nguyen asked if the plaintiff was okay, and he was told he was fine.
186Despite his evidence, Mr Nguyen later accepted the front of the aircraft was completely distorted, including the area where his feet and the plaintiff’s feet were.
187Mr Nguyen said he arranged for another instructor to escort the plaintiff from the damaged aircraft back to the airport building to check up on him. Mr Nguyen then telephoned the defendant’s chief flying instructor, Mr Panchangam, to inform him what had happened. He discussed with Mr Panchangam what may have contributed to the collision. Mr Nguyen said he most likely told Mr Panchangam the plaintiff froze at the controls. He said Mr Panchangam told him to look after himself and the student, and Mr Panchangam would look after the reporting side of things.
188Mr Nguyen said he was instructed by Mr Neel Khokhani, CEO of SOAR, to move the aircraft off the runway to make sure it was safe.
189Following the conversation with Mr Panchangam, Mr Nguyen took some photographs of the aircraft in its final resting place and then “moved the aeroplane off the runway”.
190Ms Curtis said she had a conversation with the plaintiff following the collision. In the conversation, the plaintiff sounded “stilted”, “strange” and unlike himself over the telephone. Her observation was usually he was verbose and talkative.
862Finally, there was no evidence from instructors at the Royal Victorian Aeroclub that the plaintiff was no longer pursuing a commercial pilot licence because he was suffering from anxiety. On the contrary, the course withdrawal form stated the plaintiff was withdrawing due to “family commitments”.
863Alternatively, the defendant submitted, if an award of damages to the plaintiff was to be made, the Court was required to assess the chance the plaintiff would have become a commercial pilot consistent with cases such as Malec v JC Hutton Pty Ltd,[52] and take that chance into account. On that basis, a buffer for the plaintiff’s potential loss of no more than $15,000 including superannuation should be awarded, including any claim for superannuation, due to the highly speculative evidence surrounding the plaintiff’s prospects of becoming a commercial pilot.
[52](1990) 169 CLR 638 (“Malec”)
864The plaintiff’s evidence was he had not attained a high enough VCE score to undertake an aviation course immediately after he left school. Nevertheless, since he was a child, he had held an ambition to become a commercial pilot. Although he did not fly for some time after the collision, when he flew with his father in Alice Springs on 6 and 7 December 2018, he realised he still held a passion to fly. He said:
“… I sort of had this dream my whole life. I want to be a commercial pilot. And it – it felt like it had been – it felt like it had been taken away from me. And I guess I wasn’t ready. The reason I initially started looking into it is because I didn’t feel like I was ready to let that go. … .”
865The plaintiff subsequently contacted the Royal Victorian Aero Club to enquire about undertaking the aviation course to obtain a commercial pilot licence.
866In February 2019, the plaintiff started the aviation course with the Royal Victorian Aero Club on a full-time basis.
867In August 2019, the plaintiff obtained a private pilot licence.
868After the plaintiff obtained his private pilot licence, the plaintiff was finding flying “quite nerve-wracking”. He was “getting quite anxious” and he was having panic attacks. He was unsure whether he wanted to go back to flying.
869The plaintiff undertook a solo flight on 16 November 2019. There was then a gap in his flying while he attempted the theory component of the commercial pilot licence. The plaintiff completed the subjects required to attain a commercial pilot licence, but he was required to resit some subjects because he failed them. By the time the plaintiff completed the required subjects, it was too late for him to continue in the commercial pilot licence course. The plaintiff elected to undertake the Diploma of Aviation Instrument Rating. The course was a multi-engine instrument command rating course. Like the commercial pilots’ course, it was an hour-building course. A lot of time was spent flying the aircraft without an instructor, which the plaintiff preferred because since the collision, he had not felt comfortable flying with an instructor.
870Consistent with the plaintiff’s flight school history, he commenced the Diploma of Aviation Instrument Rating on 9 June 2020. He continued to experience anxiety and generally flew on his own up to the date of his final flight on 4 August 2020. As previously noted, the plaintiff ultimately withdrew from the course. He completed a Course Enrolment Variation Form dated 18 November 2020 which noted the plaintiff’s reason for withdrawing from the course was “family commitments”.
871The plaintiff was cross-examined first about whether he had continued to fly. The plaintiff said he could fly and had continued to fly after the collision as demonstrated by the various flights he had subsequently undertaken. The plaintiff agreed there were numerous flights dating back to March 2019 where he flew alone but eventually his anxiety and psychological state reached a level that meant he avoided, and ultimately stopped, flying.
872Next, the plaintiff was cross-examined about whether he would have become a commercial pilot.
873First, it was suggested to him that he did not have the aptitude to become a commercial pilot. He had been partway through the commercial pilot licence course but had failed a mandatory subject twice: first, when he sat the exam on 6 November 2019 and, second, when he resat the exam on 29 January 2020. The result was he was unable to continue his current enrolment in the Diploma of Aviation and Commercial Pilot Licence. The plaintiff’s explanation was he missed the deadline for resitting the exam which meant he did not complete the requirement of unit 3 of study, the theory component of the course, in the time required. He was challenged about this. It was suggested to him that the reason he could not complete the course had nothing to do with the plaintiff failing to complete the required exams on time. He agreed.
874Second, it was suggested that even if he had the aptitude, because he had transferred out of the commercial pilot licence course, there was no certainty he would have become a commercial pilot. The plaintiff said that throughout the theory component of the commercial pilot licence course he was convinced he was capable of being a commercial pilot. Any doubts he had were about his ability to fly, not about the theory component of the course. In re-examination, he said he undertook the Diploma of Aviation (Instrument Rating) Intermediate course because he saw that as an alternative pathway to a commercial licence. It was necessary to achieve a certain number of hours of flying to attain a commercial pilot licence, so it did not seem an unnecessary pathway for the plaintiff.
875Third, the plaintiff had completed a Course Enrolment Variation Form seeking to withdraw from the Diploma of Aviation (Instrument Rating) Intermediate course and ultimately withdrew before he was required to sit any exams. It was suggested this supported the argument he would not have pursued a career as a commercial pilot. The plaintiff responded by saying that even after he withdrew, he continued to try to fly up to his final flight on 17 January 2021. He wanted to get a commercial pilot licence, but he had decided earlier in the year he was not going to continue with the course past that particular unit because he was finding it difficult to continue with the flights under instruction. His mental state was fluctuating. Sometimes he was “comfortable in a plane” and other times he got “flustered”, had “massive bouts of anxiety” and was “absolutely terrified”. He was cautious and wanted to make sure the safety briefs were done correctly and that there was very clear communication in the cockpit. He had significant anxiety about having someone else in front of the controls. He was anxious flying with Mr Proban, the chief pilot, and when flying with Mr Ierkic, he felt like he was being constantly tested.
876He was then cross examined about his claimed anxiety. It was put to the plaintiff that although the Course Enrolment Variation Form enabled him to indicate he had left the course for a medical reason, such as anxiety, he had not completed the form by identifying any medical conditions. This was notwithstanding the plaintiff said he had already told Mr Wreford at the Royal Victorian Aero Club the reason he was going to leave flying was because of his anxiety. The plaintiff maintained the reason he ultimately decided to leave the course was because of his heightened levels of anxiety and the experiences he was having when flying. He said he could not explain why he ticked the box titled ‘family commitments’ or why he did not state on the form he was leaving due to anxiety. In re-examination, the plaintiff explained that the form was purely for inhouse use. There was no follow-up on what boxes he had ticked, and no-one questioned him about whether he had ticked ‘medical’ or ‘family’.
877I have found the plaintiff has a psychiatric injury, PTSD. I prefer Dr Hayman’s opinion to that of Dr Lee. I accept the plaintiff’s psychiatric injury impacted his ability to fly. His anxiety increased to the point where he was no longer able to fly. I further find that although the plaintiff failed the exam required to qualify for his commercial pilot licence on 29 January 2020, he subsequently passed the exam on 13 February 2020. This demonstrated an aptitude for the occupation. However, by then it was too late for the plaintiff to qualify for the commercial pilot licence. This meant he had to transfer to the Diploma of Aviation (Instrument Rating) Intermediate course.
878Notwithstanding these conclusions, the evidence suggests there was a possibility the plaintiff would not have passed any future exams or may have stopped flying for reasons unrelated to his anxiety.
879In Malec,[53] the High Court articulated that if it is alleged a hypothetical event would have occurred but for the injury, the court must take into account the chance of the hypothetical event occurring in assessing the damages. Unless the chance of it occurring is so low as to be regarded as speculative, say less than one per cent, or so high as to be practically certain, say over 99 per cent, the Court assesses the degree of probability that an event would have occurred and adjusts its award of damages to reflect the degree of probability. In this instance, the Court is required to assess the probability the plaintiff would not have become a commercial pilot as a probability and then reduce the plaintiff’s damages accordingly to reflect that chance. The concept of a discount for vicissitudes is subsumed in the analysis of the Malec principles so it is unnecessary to reduce further for vicissitudes.
[53]Supra at 642-643
880Applying the principles in Malec in evaluating damages for past hypothetical events, I am satisfied, on the balance of probabilities, the plaintiff would have worked as a commercial pilot but for the collision. I do not consider any alleged chance was either speculative[54] or negligible,[55] or both, based upon the opinion from Dr Hayman that there was a psychological impact upon the plaintiff. However, the probability the plaintiff would have worked as a commercial pilot but for the collision is less than certain. Other possibilities need to be taken into account, such as the risk the plaintiff would not have worked as a commercial pilot because he would not have completed either the Diploma of Aviation (Instrument Rating) Intermediate course or the Commercial Pilot course for “family reasons”, because he had moved to Warrnambool, because he was unable to complete the practical flying component or for some other reason. The additional risk the plaintiff would not have obtained a job as a commercial pilot also needs to be taken into account.
[54]Malec (supra) at 643 (per Deane, Gaudron and McHugh JJ)
[55]Sellars v Adelaide Petroleum NL and Others (1994) 179 CLR 332at 355 (Mason CJ, Dawson, Toohey and Gaudron JJ)
881In my view, a discount of 50 per cent should be applied to the award of damages that would otherwise be made to reflect the degree of probability the plaintiff would not have worked as a commercial pilot.
882On the assumption however, that the plaintiff would have become a commercial pilot, it is necessary to consider whether the past loss of earnings claim is to be assessed on the basis that a commercial pilot would have earned $130,000 per annum as claimed by the plaintiff.
883Dr Andrew Hook, rehabilitation consultant, provided a report dated 7 February 2023. In his report, Dr Hook listed a variety of factors which impacted a commercial pilot’s salary including years of experience, location, job title, type of aircraft, flying hours logged, and flying routes, specifically whether they are regional, domestic or international.
884Dr Hook referred to the Fair Work Ombudsman’s Air Pilot Award. This provided a general overview of the minimum earnings that could be obtained by a commercial pilot depending on the years’ experience of the pilot and the type of aircraft. According to the Fair Work Ombudsman’s Air Pilot Award, the minimum annual salaries for certain commercial pilots are:
· Captain of larger aircraft: $126,312 for a Fokker 28 to $185,826 for a wide-body double-decker aircraft.
· First officer of larger aircraft: $83,728 for a Fokker 28 to $122,201 for a wide-body double-decker aircraft.
· General airline captain: $45,656 for a single-engine aircraft to $78,594 for a multi-engine aircraft (19,000 kilograms or above).
· General airline first officer or second pilot: $39,198 for a single-engine aircraft to $57,522 for a multi-engine aircraft (19,000 kilograms or above).
· Regional airline captain: $52,000 for any Cessna aircraft to $143,358 for a Boeing 737-400.
· Regional airline co-pilot: $52,404 for a Beechcraft 200 to $94,414 for a Boeing 737-400.
885Dr Hook also provided data obtained from various other sources as to the earnings of commercial pilots.
886Data from the Australian Bureau of Statistics demonstrated that from 2013 to 2023, gross earnings for a pilot based on all age data ranged from $1,907 to $3,068 per week and based on the earnings of a twenty-nine-year-old, the range was from $1,027 to $2,579 per week.
887Payscale.com compared the median base salary for commercial pilots between airlines. The base salary for a commercial pilot with Virgin Australia was the highest at $109,000, Qantas was $102,029 and Jetstar was $91,000. However, it was noted the base salary did not include allowances including shift penalties, accommodation, meal allowances, clothing and or operating and training allowances.
888Glassdoor.com.au generated unverified self-reported salary figures. The typical Qantas pilot salary, when factoring in bonuses and additional compensation, was $197,500 but could range from $60,000 to $500,000 per year. The typical Virgin Australia commercial pilot salary, when factoring in bonuses and additional compensation, was $200,500 but could range from $95,000 to $207,000 per year. The typical Air New Zealand pilot salary was $178,000. Commercial pilots operating in regional and mining communities in the Northern Territory and Western Australia including Chartair (Northern Territory) and CareFlight (Darwin) reported yearly figures of $94,411 plus allowances, and $126,786 plus allowances respectively.
889Dr Hook also provided information on the size of the labour market for a commercial pilot position. There were 8,730 people employed as commercial pilots nationwide compared to other occupations such as general clerk (288,600 workers) or retail sales assistant (540,130 workers). Further, of the 113 advertised positions on 6 February 2023, the majority of commercial pilots earned less than $70,000 a year.
890The plaintiff submitted, based on the report or Mr Hook and the Fair Work Ombudsman’s Air Pilots Award, a sum of $130,000 per annum was an appropriate estimate of the plaintiff’s future earnings as a commercial airline pilot. It was submitted $130,000 was less than the advertised salaries for captains of larger passenger aircrafts which the plaintiff may have attained if he was successfully employed by Qantas or Virgin airlines; the sum made allowance for the time it may have taken the plaintiff to reach his full earning capacity and acknowledged that salaries for pilots of regional carriers were lower than for larger airlines.
891The plaintiff submitted that an assessment of $15,000 as a buffer as posited by the defendant was “woefully inadequate and reflects a very small percentage”. The plaintiff’s submission was the difference between the plaintiff’s approximate salary of $80,000 at the time of trial, and his estimated salary of $130,000 had he commenced working as a full-time commercial pilot from 1 November 2018, demonstrated he had suffered commercial loss.
892I am satisfied the appropriate salary the plaintiff would have earned as a commercial pilot was $130,000.
893The appropriate award of damages for past loss of earnings as a commercial pilot is therefore $400,231 minus the plaintiff’s actual earnings of $278,591.22 to give $121,639.78. To that sum needs to be applied a discount of 50 per cent to account for the probability that the plaintiff would not have become a commercial pilot as a probability. That gives a sum of $60,819.89.
894I allow interest at a rate of 3 per cent of $60,819.89 for a period of 4.3 years multiplied by 50 per cent to give a past loss of interest of $3,922.88.
895In relation to superannuation, it is unnecessary to calculate loss of superannuation in respect of any time the plaintiff had off work at Brighton Renault.
896I allow superannuation during the time the plaintiff claimed he would have been working as a commercial pilot. The loss of superannuation was calculated by adopting the superannuation rate of 9.5 per cent and applying that to the income the plaintiff would have earned for the 221 weeks from 1 November 2018 to 26 January 2023 when he was precluded from working as a commercial pilot and then claiming for 85 per cent of that sum. The plaintiff calculated this loss as 85 per cent of $2,500 (gross weekly earnings as a commercial pilot) multiplied by 221 weeks at 9.5 per cent to give $44,614.00. The plaintiff’s actual superannuation of $22,859.98 was subtracted from the sum of $44,614.00, to arrive at the total for loss of superannuation of $21,754.02. That sum is then discounted by 50 per cent to reflect the reduction for Malec to give a total of $10,877.01 for past loss of superannuation.
897In total the plaintiff’s past loss of earnings claim is for $60,819.89 plus loss of interest of $3,922.88 plus loss of superannuation of $10,877.01 to give a total for past economic loss of $75,619.78.
Future economic loss – loss of earning capacity
898The plaintiff has claimed a loss of future earnings on the basis that he would have earned income as a commercial pilot but for his injuries. The plaintiff is currently working as a bookkeeper. On the basis of the difference between what he would have earned as a commercial pilot compared to what he would have earned as a bookkeeper, until retirement at age sixty-seven,[56] the plaintiff claimed he should be awarded $627,073.20.[57]
[56]Updated Particulars of Special Damage dated 8 February 2023, paragraph F(4)
[57]The sum of $627,073.20 was calculated by subtracting $932,638 from $1,558,711.60. However, the plaintiff’s future earnings as a pilot were incorrectly calculated at $1,811 x 875.6 = $1,558,711.60 when in fact the correct amount should have been $1,585,712. The correct calculation of overall future earnings was $1,585,712 - $931,638 to give $654,073
899The plaintiff will earn $931,638.40 as a bookkeeper. This is calculated by multiplying his net earnings per week of $1,064 by the relevant multiplier of 875.6. The plaintiff would have earned $1,585,711.60 as a pilot calculated by multiplying his net future weekly earnings of $1,811 by the multiplier of 875.6. The difference between $1,558,711.60 and $931,638.40 gives the plaintiff’s future loss of earnings calculated as $654,073.00.
900To that sum, the plaintiff claimed an entitlement to an award of $94,477.00 for future loss of superannuation. This was calculated based on the difference in superannuation that the plaintiff would have earned as a commercial pilot and the superannuation he would have earned as a bookkeeper, again to age sixty-seven.
901In total, the plaintiff claimed entitlement to an award of $748,550 less a deduction of 25 per cent for vicissitudes, to give a total claim for future loss of earning capacity of $541,163.00.[58]
[58]Updated Particulars of Special Damage dated 8 February 2023, paragraphs [5]-[7]a. In fact, the correct figure should be $748,550[58] less a deduction of 25 per cent for vicissitudes ($187,137.50), to give a total claim for future loss of earning capacity of $561,412.50 calculated as entitlement to an award of damages of $654,073 plus $94,477 for future loss of superannuation multiplied by 25 per cent
902The plaintiff submitted that a 25 per cent discount for vicissitudes was appropriate because it was 10 per cent more than the usual deduction for future loss. The plaintiff acknowledged it was open to the Court to apply a discount of more than 25 per cent if considered appropriate. The plaintiff submitted if the Court accepted the plaintiff does in fact suffer from a psychological injury that prevents him from flying, a reduction of 33 per cent, would be as low as the Court should go.
903The defendant submitted no amount should be awarded for loss of earning capacity on the basis the plaintiff had not made out a case that, on the balance of probabilities, he would have worked as a commercial pilot. Alternatively, if the Court was required to award damages to the plaintiff for loss of earning capacity as a commercial pilot, the Court should assess damages consistent with the principles in Malec.
904For the reasons already articulated, I accept, on the balance of probabilities, the plaintiff would have worked as a commercial pilot but for his injuries. I do not accept it is necessary to apply a Malec discount to the assessment of future loss of earning capacity. It is enough to make an allowance for vicissitudes.
905In Club Italia (Geelong) Inc v Ritchie,[59] the Court of Appeal accepted that, in Victoria, as a rule of thumb, the discount for vicissitudes of life in personal injury cases is usually of the order of 15 per cent, while emphasising that each case depends on its own facts.
[59][2001] VSCA 180, paragraph [57]
906I assess damages as to future economic loss at $654,073 and as to future loss of superannuation at $94,477. This gives future loss of earnings of $748,550, to which a discount of 25 per cent should be applied to take into account vicissitudes. The calculation is therefore $748,550 reduced by 25 per cent (or $187,137.50) to account for vicissitudes to give a total amount for future loss of earning capacity of $561,412.50.
Past out-of-pocket expenses
907The parties agreed the sum of $1,370.78 for past medical expenses. I consequently allow the sum of $1,370.78 for past medical expenses.
Future out-of-pocket expenses
908The plaintiff claimed the sum of $8,508 for future medical expenses. This sum includes an amount in respect of any future medical consultations with the plaintiff’s general practitioner, reviews by an orthopaedic specialist and psychological and psychiatric treatment.
909The plaintiff claimed a total of $1,308 for future medical consultations, calculated as being four attendances per annum at $90 per attendance for the next three years (= $360), divided by 52 weeks (= $6.9 per week) and multiplied by 189.6, being the applicable discount multiplier at a rate of 5 per cent for four years.
910Additionally, the plaintiff claimed a global sum of $1,000 for review by an orthopaedic surgeon.
911The opinion of Dr Hayman was relied upon in support of the plaintiff’s claim for future psychological and psychiatric treatment. In his report dated 30 October 2020, Dr Hayman opined that engaging in psychotherapy and SSRI medication could potentially benefit the plaintiff, with psychotherapy alone as the initial treatment. A course of six sessions with review thereafter was recommended with a cost assessment of $200 to $300 per session for a private psychologist, and $300 to $400 per session for a private consultant psychiatrist.
912The defendant submitted there should be no award for future out-of-pocket expenses as the plaintiff had not pursued any particular medical treatment “in the past for any injury with any vigour”. At the date of trial, the plaintiff had seen a chiropractor once for his neck; he had no plans for further investigations and had not sought psychological treatment for his symptoms.
913Even if the plaintiff has not pursued specialist treatment previously, that does not mean he may not require it in the future. I accept the anxiety and nightmares the plaintiff experiences may mean that some form of specialist review of the plaintiff will be required in the future even if his treatment to date has been limited.
914Dr Hayman’s first report touches on the approximate cost of future treatment. The Psychology4Life quotation provided an estimate, at the time it was created, of the cost of psychological treatment for the plaintiff. There is limited other evidence before me. I have concluded that $8,508.00 for future medical expenses is a reasonable allowance.
915Accordingly, I find the appropriate allowance for future out-of-pocket expenses (medical costs) is $8,508.00.
Past gratuitous care
916Section 28IA of the Act provides:
“28IA Limitation on damages for gratuitous attendant care
(1)no damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(a)There is (or was) a reasonable need for the services to be provided; and
(b)The need has arisen (or arose) solely because of the injury to which the damages relate; and
(c)The services would not be (or would not have been) provided to the claimant but for the injury.
(2)Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided–
(a)For less than 6 hours per week; and
(b)For less than 6 months.”
917In the Updated Particulars of Special Damage, the plaintiff initially claimed the sum of $1,848 for past gratuitous care. This claim was based on:
(a) 14 hours of domestic assistance and personal care per week for one week by the plaintiff’s mother, calculated at a rate of $33 per hour (amounting to $462); and
(b) 14 hours of care per week for three weeks by the plaintiff’s father between 20 December 2017 and 14 January 2018, calculated at a rate of $33 per hour (amounting to $1,386). This was on the basis that the plaintiff’s father took three weeks off work to provide care to the plaintiff.
918At trial, the plaintiff agreed his father had not taken three weeks off work to care for him. The plaintiff abandoned that aspect of his gratuitous care claim.
919In respect of the balance of the gratuitous care claim, the plaintiff’s evidence was that in the week after the collision he was able to look after his personal care, mobilise and do things around the house, although with a “fair degree of discomfort”. He did not attempt to cook and clean and was cared for by his mother at home for at least two hours per day each day. His girlfriend, Ms Stokie, was also present. The plaintiff’s mother made sure the house and the plaintiff’s clothes were clean. She also spent time with him. The plaintiff explained:
“… there was a thought that I would struggle with the cooking and cleaning, that sort of stuff. My – which was why my mum came over to assist.”
920The plaintiff said he remained at home until he travelled to Streaky Bay on 20 December 2017 for Christmas.
921Ms Curtis said she took two-and-a-half days collectively off work to look after the plaintiff. She did some washing for him, drove him to medical appointments and made him food.
922Ms Curtis agreed her husband travelled to Melbourne and took the plaintiff to Streaky Bay where they spent Christmas.
923Ms Stokie said that while Ms Curtis dropped in to visit occasionally, she was certainly not at the house the whole time Ms Stokie was there. Ms Stokie did not recall Ms Curtis cooking and washing for the plaintiff. She did not see anyone cleaning for the two or three days after the collision and she could not recall what they ate.
924The defendant submitted the total claim for past gratuitous services of $1,848 was all “exaggerations and untrue” and should be disallowed. It was not an accurate reflection of the care the plaintiff required. The defendant submitted an award of $198 was appropriate. The sum of $198 represented four hours of assistance on the day of the collision and one hour of assistance on each of the subsequent two days before the plaintiff left for Streaky Bay.
925The defendant contended the plaintiff had exaggerated the nature of the injuries he sustained when he consulted Dr Hayman, and the plaintiff could walk. In cross-examination, the plaintiff accepted he could walk to the toilet unassisted, but he identified he nevertheless had a significant degree of discomfort. He also said he had understood the question he was asked to be whether he was able to walk long distances of a kilometre-and-a-half to two kilometres.
926I accept the plaintiff was discharged from the hospital on the same day as the collision and all investigations conducted by his general practitioner the following day were reported “as normal”. Nevertheless, the plaintiff was sore. His left elbow, left femur, left ankle and right wrist hurt, and he experienced significant pain in his neck and upper body. He had trouble walking. He had suffered extensive grazing and lacerations which made movement difficult. Further, he was in shock. I accept he did not function normally, at least for a few days, and there was a need for some services to be provided to the plaintiff during the week following the collision.
927I accept that in the week following the collision, it was appropriate for the plaintiff’s mother to provide 14 hours of domestic assistance and personal care to the plaintiff, calculated at a rate of $33 per hour (amounting to $462). I am satisfied that the plaintiff satisfies s28(1)(a) of the Act.
928I am also satisfied that pursuant to s28(1)(b) of the Act, the need for such services arose solely because of the injury that the plaintiff sustained to which the damages relate. Ms Curtis provided care to the plaintiff following the collision because the plaintiff was “very sore” as a result of the collision.
929Further, I accept that but for the injury, the services would not have been provided to the plaintiff as stipulated in s28(1)(c) of the Act.
930Accordingly, I find that the plaintiff satisfies the requirements of s28IA(1) of the Act. The plaintiff is consequently entitled to an award of damages for past gratuitous care unless he is disentitled by reason of s28IA(2) of the Act.
931I now turn to consider the requirements of s28IA(2) of the Act.
932Having found it was appropriate for Ms Curtis to have provided 14 hours of domestic assistance and personal care to the plaintiff in the week following the collision, I accept the plaintiff satisfies the threshold of six hours’ domestic care per week as required under s28IA(2)(a) of the Act.
933There was no expert opinion which indicated the domestic assistance services were required for less than six months. However, there was also no expert or other evidence which supported an ongoing need for domestic assistance or personal care for more six months. I find the need for domestic assistance services was for less than six months. Sub-paragraph (b) of s28IA(2) is not satisfied.
934For a plaintiff to be disentitled from claiming damages for gratuitous care, both sub-sections (a) and (b) of s28IA(2) are to be read conjunctively.[60] That is, the prohibition against damages claims for gratuitous services does not operate unless the damages are of a kind that fall within both sub-paragraphs (a) and (b). Because the plaintiff received gratuitous care for more than six hours in the week after the collision, the requirement of sub-paragraph (a) is not met. Consequently, the plaintiff is not disentitled from claiming damages.
[60]Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority [2007] VSCA 210
935I find the plaintiff is entitled to an award of damages for the domestic assistance provided to him in the week following the collision.
936I award $462.00 to the plaintiff for past gratuitous care.
Conclusion on damages
937I award the following damages to the plaintiff:
(a) $150,000 for non-economic loss;
(b) $75,619.78 for past economic loss;
(c) $561,412.50 for future loss of earning capacity;
(d) $1,370.78 for past out-of-pocket medical expenses;
(e) $8,508.00 for future out-of-pocket medical expenses;
(f) $462.00 for past gratuitous care.
938The total award of damages is the sum of $797,373.06.
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