ROBINSON HELICOPTER COMPANY INCORPORATED APPELLANT
AND
GRAHAM JAMES McDERMOTT & ORS RESPONDENTS
Robinson Helicopter Company Incorporated v McDermott
[2016] HCA 22
8 June 2016
B61/2015
ORDER
1.Appeal allowed with costs.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 19 December 2014, and in their place order that the appeal be dismissed with costs.
On appeal from the Supreme Court of Queensland
Representation
S L Doyle QC with M T Hickey for the appellant (instructed by Meridian Lawyers)
W Sofronoff QC with M E Eliadis and C K George for the respondents (instructed by Shine Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Torts – Negligence – Personal injury – Breach of duty of care – Duty to take precautions against risk – Where first respondent seriously injured in crash of helicopter manufactured by appellant – Where crash resulted from defect caused by third party – Where helicopter subject to multiple routine inspections but defect not detected – Whether appellant's maintenance manual for helicopter provided sufficient instruction to facilitate detection of defect – Whether appellant breached duty of care.
Torts – Negligence – Causation – Where majority of Court of Appeal found multiple possible causes of damage suffered – Whether open to majority of Court of Appeal to find one particular possibility more likely to have occurred than other possibilities – Whether causation established by failure to take precautions against risk other than that which in fact occurred.
Appeal – Rehearing – Where primary judge drew inferences and made findings of fact based on lay and expert evidence – Whether majority of Court of Appeal erred by overturning primary judge's findings of fact.
Words and phrases – "causation", "contrary to compelling inferences", "glaringly improbable", "incontrovertible facts or uncontested testimony", "real review".
FRENCH CJ, BELL, KEANE, NETTLE AND GORDON JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. It arises out of the crash of a Robinson R22 helicopter ("the helicopter") which resulted in the death of the pilot and in the first respondent ("Mr McDermott") suffering serious injuries. The essential question at first instance and on appeal was whether the Maintenance Manual for the helicopter ("the Manual") provided an adequate inspection procedure for the detection of the defect which caused the crash. At first instance, the primary judge (Peter Lyons J) dismissed Mr McDermott's[1] claims against the appellant ("Robinson"), in negligence and under the Trade Practices Act 1974 (Cth) ("the TPA"), holding that the Manual provided adequate instructions to identify the defect[2]. On appeal, a majority of the Court of Appeal (McMurdo P and Alan Wilson J) allowed the appeal, holding that the Manual did…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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The High Court of Australia heard an appeal from the Court of Appeal of Queensland concerning a negligence claim brought by Mr McDermott against Robinson Helicopter Co Inc. Mr McDermott suffered serious injuries when a helicopter manufactured by the appellant crashed due to a defect in its forward flex plate. The defect, which involved an incorrectly assembled and insufficiently tightened bolt, was not caused by Robinson but arose during reassembly by a third party. The helicopter had undergone multiple routine inspections, including two "100 hourly" inspections and pre-flight checks, after the defect occurred but before the crash, yet the defect remained undetected.
The central legal issues before the High Court were whether Robinson breached its duty of care to Mr McDermott, and if so, whether that breach caused his injuries. Specifically, the court had to determine if Robinson's maintenance manual provided sufficient instructions to enable the detection of the defect during routine inspections. Furthermore, the court considered whether the majority of the Court of Appeal had erred in overturning the primary judge's findings of fact and in their assessment of causation, particularly in relation to the possibility of multiple causes for the damage.
The High Court allowed the appeal, finding that the majority of the Court of Appeal had erred in their interpretation of the evidence and in their assessment of causation. The primary judge had found that the maintenance manual's instructions regarding torque stripes were sufficient to alert a competent mechanic to the potential for bolt rotation if the stripe was missing, damaged, or incomplete. The High Court agreed with the primary judge that the evidence supported the conclusion that either the absence of a torque stripe or a broken torque stripe would have indicated the need for further inspection of the bolt's security. The court held that the majority of the Court of Appeal had incorrectly overturned the primary judge's findings of fact and had erred in their approach to establishing causation. Consequently, the High Court set aside the orders of the Court of Appeal and ordered that Mr McDermott's appeal to that court be dismissed.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 19 December 2014, and in their place order that the appeal be dismissed with costs.
Background
Background to the litigation
For the reasons which follow, the majority of the Court of Appeal erred in their interpretation of the evidence, and thus in overturning the judge's findings of fact, and also in relation to causation.The facts On 30 May 2004, Mr McDermott was a passenger in the helicopter, from which he was inspecting fences on a cattle station in the Northern Territory where he lived with his wife. During the course of the flight, the helicopter crashed and, as a result, the pilot was killed and Mr McDermott suffered serious injuries. The crash was caused by the failure of the helicopter's forward flex plate ("the flex plate"). The flex plate and associated parts had been removed and reassembled on 17 February 2004. After reassembly, but before the crash, the flex plate had been subject to two "100 hourly" inspections on 27 March 2004 and 12 May 2004. Such inspections were known as 100 hourly inspections because they were carried out approximately every 100 hours that the helicopter was in operation. After reassembly, but before the crash, the helicopter had also been subject to a number of routine pre-flight checks by pilots who flew the helicopter during that period.The flex plate The flex plate was part of the helicopter's drive system which transferred torque from the helicopter's engine to the main rotor gearbox, which in turn drove the main rotor shaft, causing the rotor blades to rotate. The flex plate operated as a universal joint coupling between the clutch yoke and the drive shaft. Its function was to allow the main rotor shaft to be aligned at a different angle from the engine drive shaft. The flex plate was made of thin, flexible metal in the approximate shape of a four-pointed star. At each point of the star there was a bolt (also known as a fastener) with a washer and nut to secure the flex plate between the clutch yoke and the drive shaft. The flex plate was required to withstand considerable stress. Other things being equal, it was capable of withstanding the stress as long as each of the four bolts was tightened to the requisite degree. If, however, a bolt were not sufficiently tightened, it was likely to rotate, place stress on the bolt hole and generate cracks in the flex plate. In order to guard against a bolt becoming loose, the Manual required that each bolt and nut of the flex plate be fitted with a secondary fastener, called a palnut. A bolt fitted with a palnut could not become loose without the palnut becoming loose. Consequently any observable movement in a palnut, or the absence of a palnut, served as an indicator of possible bolt rotation. It is not disputed that the flex plate failed and the crash occurred because, contrary to instructions given in the Manual, one of the four bolts securing the flex plate ("Bolt 4") was incorrectly assembled and, when so assembled, was not tightened to the requisite degree ("the defect"). Robinson did not cause the defect and it was not known who did. There was evidence from which the judge inferred that Bolt 4 was not tightened to the requisite degree when the flex plate and associated parts were removed and reassembled on 17 February 2004. The focus of these proceedings, however, was not so much on when and how the defect arose as upon whether the Manual provided sufficient instruction to facilitate detection of the defect at subsequent inspections. Inspection procedures for the helicopter
Evidence
Evidence Before The Court
The majority should have recognised that it was open to the judge to conclude as he did.The significance of the pilots' evidence Counsel for Mr McDermott contended that it was apparent from the evidence of one of the helicopter pilots, Mr McKendry, who carried out pre-flight checks and flew the helicopter shortly before the flight on which it crashed, that the condition of the torque stripe on Bolt 4 was not sufficient to warn of the possibility that Bolt 4 was rotating. The evidence of the other pilot who flew the helicopter during the relevant period was that he did not look for torque stripes. Although Mr McKendry had no specific recollection of carrying out the pre-flight checks in question, he stated that his usual practice was to use a light and a mirror to look for the presence of palnuts and to observe the condition of the torque stripes, and, if he observed a broken torque stripe, to report it to a LAME. Counsel for Mr McDermott submitted that, since it was apparent that the judge had accepted Mr McKendry as a credible and reliable witness concerning his usual practice for the inspection of palnuts, it would be illogical for the judge not also to accept Mr McKendry as a credible and reliable witness concerning his usual practice for the inspection of torque stripes. In counsel's submission, it followed that the judge should have found it was probable that, whatever the condition of the torque stripe on Bolt 4 when Mr McKendry inspected it, it was incapable of indicating that Bolt 4 was or might be rotating. And, in counsel's submission, when that evidence was combined with Mr Fisher and Mr Bray's testimony of their usual practices during a 100 hourly inspection, and with the expert evidence of the many ways in which torque stripes may deteriorate in service without necessarily signifying bolt rotation, it appeared probable, and the judge should logically have inferred, that when Mr Fisher and Mr Bray inspected Bolt 4 during the 100 hourly inspections preceding the crash, the condition of the torque stripe was equally incapable of indicating that Bolt 4 was or might be rotating. Those submissions should be rejected. The judge did not specifically refer to Mr McKendry's evidence of his usual practice of looking for broken torque stripes. But, in dealing with whether it was likely that a palnut had been fitted to Bolt 4, his Honour said that it appeared to him that it would be easier for a pilot to detect a missing palnut than to detect a crack in, or misalignment of, a torque stripe. Hence, his Honour accepted that, if the palnut were missing, it was likely that Mr McKendry would have discovered that it was missing. By contrast, it appears implicit in his Honour's reasoning that, because it was harder for a pilot to detect a crack in, or misalignment of, a torque stripe than to detect a missing palnut, his Honour did not accept that Mr McKendry would necessarily have observed a misaligned torque stripe. And the likelihood of that being so is fortified by the judge's further observation, later in his reasons, that "the failure of a pilot to detect that [the torque stripe] was broken (or, perhaps, missing) does not demonstrate inadequacy in the inspection carried out by the pilot"[23]. [23]McDermott v Robinson Helicopter Company [2014] QSC 34 at [233].
Decision
Reasons for decision
FRENCH CJ, BELL, KEANE, NETTLE AND GORDON JJ
(dissent)
At trial, there was an issue as to whether a torque stripe is a sufficient indicator of a loss of torque. One suggestion, which the judge rejected as quite unlikely, was that the horizontal clamped surface to which the horizontal section of the stripe is applied might be so dirty or greasy that the stripe does not adhere to it and so is able to rotate with the vertical section of the stripe as the bolt rotates. There was, however, also evidence, which the judge accepted, that torque stripes may sometimes so deteriorate, chip or disappear in service that they cease to be a reliable indicator of whether a bolt has rotated. It will be necessary to say more of each of those possibilities later in these reasons.The decision at first instance The judge found that the Manual required a torque stripe to be applied to each of the four flex plate bolts following fitting of the palnuts, but that it was probable that a torque stripe was not applied to Bolt 4 when it was incorrectly assembled. His Honour found in the alternative that, if a torque stripe were applied to Bolt 4 when it was incorrectly assembled, it was "quite unlikely" that it was applied to a dirty or greasy surface, and, therefore, quite unlikely that the bolt could have rotated without the stripe breaking and misaligning. The judge held that the explanation given in the Manual of the function of torque stripes, coupled with the instruction given in the Manual to "verify security" of the flex plate during 100 hourly inspections, was sufficient to convey to a LAME carrying out a 100 hourly inspection that it was necessary to look for a torque stripe on each flex plate bolt and, if it were "missing, damaged, or incomplete"[5], to take steps to determine whether the bolt was correctly torqued, to re-torque the bolt, and then to apply a fresh torque stripe.[5]McDermott v Robinson Helicopter Company [2014] QSC 34 at [159]. The judge found that it was probable that Bolt 4 commenced rotating relatively shortly after it was incorrectly assembled but that it did not fail until more than 100 hours of subsequent operation. Consequently, if a torque stripe were not applied to Bolt 4 when it was incorrectly assembled, the absence of the torque stripe should have been sufficient to indicate to a LAME, if competently carrying out a subsequent 100 hourly inspection, that it was necessary to take steps to check whether the bolt was correctly torqued. In the alternative, the judge found that, if a torque stripe were applied when Bolt 4 was incorrectly assembled, the stripe would have broken and misaligned relatively shortly afterwards; that the consequent misalignment between the relevant vertical and horizontal sections of the stripe would have been visible during the following 100 hourly inspections; and that its appearance should therefore have been sufficient to indicate to a LAME competently carrying out the subsequent 100 hourly inspections that it was necessary to take steps to check whether the bolt was correctly torqued.
