Robinson Helicopter Company Incorporated v McDermott & Ors

[2016] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2015

B e t w e e n -
ROBINSON HELICOPTER COMPANY INCORPORATED
Appellant
and
GRAHAM JAMES McDERMOTT
First Respondent
JUANITA CAROL McDERMOTT
Second Respondent
NTB PASTORAL HOLDINGS PTY LTD ACN 078 593 469
Third Respondent

FRENCH CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 APRIL 2016, AT 10.14 AM

MR S.L. DOYLE, QC: May it please the Court, I appear with MR M.T. HICKEY, for the appellant. (instructed by Meridian Lawyers)

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friends, MR M.E. ELIADIS and MR C.K. GEORGE, for the respondents. (instructed by Shine Lawyers)

FRENCH CJ: Yes, Mr Doyle.

MR DOYLE: Your Honours, the appeal, as you know, is centrally concerned with whether the Court of Appeal fell into error in overturning some critical findings of the trial judge relating to the manual of a helicopter without, we would urge, the proper foundation for overturning them. The appellant, Robinson, manufactures helicopters. It provides them with a manual, and the manual provides instructions for periodic maintenance. The manual is directed to an audience of highly specialised and trained engineers, referred to as LAMEs in the material – Licensed Aircraft Maintenance Engineers – and also, they have to undertake a specialised Robinson training regime.

In May 2004, one of these helicopters crashed, injuring the first of the respondents, and the other respondents claim that caused them loss. The immediate cause of the crash is not in issue; it is established by the findings of the trial judge. A bolt, identified as Bolt 4 – and I will explain that in a moment – on the forward flexplate had been incorrectly assembled and insufficiently torqued contrary to the requirements of the manual. This occurred in the course of someone – not the appellant – working on a helicopter, and probably – although there is no finding about this – in the course of work done in early 2004.

That defect in the assembly was not picked up in the course of one, and possibly two, subsequent 100‑hour maintenance inspections. The respondents sued the maintenance providers but settled their claims before the trial which proceeded only against my client.

The basis of the claim against Robinson was that the manual did not sufficiently inform the LAMEs as to the means of conducting the 100‑hour maintenance inspection so as to provide a reasonable means of detecting the incorrectly assembled bolt. Neither of the LAMEs – both of whom were called to give evidence – gave evidence to that effect. The trial judge found that the manual provided a reasonable instruction to the LAMEs and dismissed the claim.

That was overturned on appeal by majority and it is our case that the majority fell into error in two respects: firstly, in terms of breach in overturning some critical findings of the trial judge where there was no proper occasion to do so. The majority held that the appellant breached its duty because the manual did not provide a particular kind of instruction to put a spanner, or a torque wrench on the bolt. The second error is that the effect of the decision below is to conclude that the respondents had established causation of their loss, that is, that the deficiency in the manual caused their loss without there being reasons given and, in our submission, without a proper foundation for that conclusion.

Before I come to those points, can I take you to some material just to show you what, in fact, some of these items are? Can I ask you, first, to go to appeal book, volume 4, page 1515? This is part of the manual and you will see in the top drawing, in the middle of the drawing, there is a star‑shaped item which has an “E” and an “M” written on it. That is the forward flexplate. To its right is the clutch drive and a T‑shape at the end of it is the yoke. The yoke is bolted to one arm, if you like, or one cross‑section of the forward flexplate by two bolts and some other things which I will come to in a moment.

To the right of the forward flexplate is another yoke – you can just see the top of it in that drawing and there is a similar arm of it below the drawing which you cannot see, which is attached to the forward flexplate by two other bolts and that leads off to the rotor drive. The whole of this rotates in the course of the operation of the helicopter.

The bolt with which we are ultimately concerned is one of those which was attached - by which the yoke to the left was attached to the forward flexplate. The configuration of the bolts – you can discern it from this drawing but I will show you a different thing which identifies that, if I may. If you go to volume 2, page 569, at the top of the page is a photo of the bolt which actually failed. If I could tell your Honours, you have to rotate it 180 degrees to make it align to the drawing I was taking you to, but nothing turns on that.

The yoke, as it is described – you can see that sort of solid piece in the middle – is the yoke which leads to the engine rotor. To the left of that there are two washers, which are described as bonded washers and between those two bonded washers there would have been the forward flexplate, although it is broken away. So that the configuration of the arrangement is: there is a bolt, some other washer, then a bonded washer, then the forward flexplate, then another bonded washer, then the forward yoke, if I can call it that.

FRENCH CJ: The word “bonded” refers to some adhesive?

MR DOYLE: Yes, those washers are meant to be adhered to the flexplate itself. You would have seen in the trial judge’s findings, they ultimately disbond. Then a nut and part of the bolt protruding ‑ and there should have been a palnut there as well – there is some controversy about whether it was ever there, but certainly it came apart at some stage prior to that photograph being taken.

The mechanism of failure, as found by the trial judge – I will not take your Honours to the reasons, unless that is of assistance to you – he found at paragraph [24] that the failure was due to the “lack of clamping force in Bolt 4”. He found in his reasons [26] that the bolt was “left loose” when assembled, with a gap of about .15 millimetres. That meant, his Honour concluded, the bolt was free to rotate, bringing it into contact with the walls of the hole in the flexplate.

Eventually that movement led to the washers disbonding. That increased the magnitude of the rotation of the bolt until two cracks formed. Crack A, his Honour could not identify the means by which, also the timing within which, it propagated, and crack B, which he deals with in his reasons but I will not trouble you with, which ultimately led to part of the flexplate coming away.

If I can trouble you to go back to volume 2 of the appeal book, at page 758, you see at the bottom a photo of the forward flexplate again after the accident, which shows the area where Bolt 4 would have been attached – bent over; that is part of the buckling process, no doubt, of the accident – but you can see that there is a hole with metal, in the right‑hand drawing. The hole is incomplete because the cracks are propagated to the end, and the flexplate has failed. That piece breaking away led, as the trial judge says, to loss of drive, loss of control and to the accident.

The assembly of the bolt was not in accordance with the manual. Had it been assembled in accordance with the manual it should have been torqued to 240 inch‑pounds, and would not have been loose, and there would not have been a failure. The evidence below, which I can take you to if it becomes controversial, is that a properly torqued bolt would not become loose and would not require re‑torquing.

The requirements in the manual as to assembly are clear and no issue is taken as to those. The failure, as I have said, concerned the direction about its maintenance. For that, can I ask you to go to volume 3, please, of the appeal book. The manual starts at page 1184 and, indeed, it goes into volume 4, but I will not take you to very much of it.

Can I ask you to go please to page 1201 to section 1 which is marked “General”? You will see in paragraph 1.001, there is a heading “Manual Notations” and a series of different notations which are identified there, which are extracted from the trial judge’s reasons and which inform the subsequent reading of the manual. Then on page 1202, you will see the heading “Maintenance Authorization” in section 1.003:

Only certified Airframe & Powerplant mechanics who have successfully completed a factory‑sponsored maintenance course or are under direct supervision of the above‑stated mechanic may make repairs or perform the required 100‑hour inspections.

We have given, in our written submissions, reference to the regulations in Australia – that you, in fact, have to be a licensed aircraft maintenance engineer to do it at all ‑ but the Robinson manual imposes the additional requirement that only if you have conducted the factory‑sponsored maintenance course or are doing it under the direct supervision of someone who has done that are you authorised to conduct the relevant inspection.

Your Honours, at page 1208 you will see a list of the scheduled maintenance and inspections. The overhaul does not take place until 2,200 hours, at which point I can tell you – not that it matters – the flexplate would be required to be replaced.

There is a series of other inspections, and the one we are concerned with is the 100‑hour inspection which appears at about point 4 of the page and it directs you to section 2.400. Before I go there, perhaps I can ask you to go to page 1228. This is still in the “General” part of the manual. There is a heading “Fastener Torque Requirements”, “Fasteners shall be torqued to” certain standards which are specified and the bolt is one of those fasteners and that is where I got the 240‑inch pounds from. Then it says:

A secondary locking mechanism is required on all critical fasteners.

You will see there is a reference there to “palnuts” which was controversial in these proceedings. We ask your Honour to read both the “Note” and the “Caution” – it is really the “Note” that matters. But then under that there is a paragraph dealing with torque seal:

Torque seal (paint) is applied to all critical fasteners after palnut installation in a stripe across both nuts and exposed bolt threads. The stripe should extend to the part being fastened to show bolt rotation. Any subsequent rotation of the nut or bolt can be detected visually.

And there are some other indications. In the proceedings, those are referred to as “torque stripes” but that is the reference that is made here. Whilst on this page, can I ask your Honours to note that this page is – down the bottom right‑hand corner – identified as “Change 21”? Parts of the manual were updated from time to time and this page, which was the relevant page at the time of the maintenance that took place in this helicopter, is identified as “Change 21”. That appears in some of the evidence I will take you to shortly.

Subsequently, there is a Change 26, that you will have seen referred to in some of the material. That appears in volume 6 at page 2308 and it provides what is said to be a more explicit and mandatory direction – I will not take you to it now ‑ in respect of the torque stripes. There is an issue about that I will come back to later on. Then to section 2 at page 1253.

FRENCH CJ: What is that page number?

MR DOYLE: Page 1253. You will see there figure 2‑1, which gives a pictorial representation ‑ not a very elaborate one ‑ of the application of a torque stripe, from the threads, across the bolt to the component to which it is to be fastened. The trial judge refers to figure 2‑1. I am sorry, your Honours, if you are looking at the drawing, there is a heading “Push‑pull tubes, spherical bearings”. If you go down from the word “spherical” about two centimetres you will see “torque stripe” with a little arrow directed to something, which is a stripe running from the thread of the bolt across the nuts to the component to which it is to be fastened. Figure 2‑1 is one of the things to which the trial judge refers.

If you then turn to page 1270, this is within the part that is dealing with the 100‑hour inspections. At about point 7 of the page there is a paragraph “Forward Flex Plate”. Could we trouble you to read that, please? The trial judge expressed some conclusions about what that conveyed to a licensed aircraft maintenance engineer, to which I will take you shortly. Finally, if you go to page 1293 –

NETTLE J: Can I just ask, is page 1273, line 40, “Fasteners”, relevant at all or does it relate to something else?

MR DOYLE: I will have someone check it. I do not believe it is relevant, but I will have my junior confirm that. My junior is confirming it is not relevant. Page 1293 is just the checklist. It goes for a number of pages and gives you an indication of the number of things which have to be attended to in the 100‑hour inspection and the forward flexplate is one of those referred to at page 1296 at about line 25.

NETTLE J: Is that “Fasteners” there at 1296 on the checklist, line 33, equally inapplicable in this case?

MR DOYLE: As a separate item, yes, your Honour, but you will recall that the part I took you to which described the forward flexplate speaks of verifying security obviate and the trial judge’s mayday finding, which is not controversial, that that would be understood by a LAME as focussing attention on the security of the bolt and in turn requiring inspection of the condition of the torque stripe.

NETTLE J: It is just that you took us to 1228, which refers to the fasteners and the torque at 240 inch‑pounds. It speaks generally in terms of fasteners, as appears it also does at pages 1261 and 1296. You say that is not applicable?

MR DOYLE: It is not applicable as a separate item for the reason that I have just given you, that the forward flexplate instruction itself required, as the trial judge found, the verification of security which involved, in turn, identifying the security of the bolts – all of them but, relevantly, Bolt 4 – and that in turn involved identifying the condition of the torque stripe. Now, it may be – and there are more than 200 fasteners in this thing – but that would capture things which are not specifically dealt with by the other specific provisions of the helicopter.

NETTLE J: Yes, thank you.

MR DOYLE: Your Honours, can we now turn to the first of the two issues that, in our submission, the majority of the Court of Appeal fell into error, that is, in overturning the trial judge’s findings that there was no breach, the trial judge found – and I am going to in fact take you mostly to the trial judge’s reasons to start with to show, I hope, why they were correct - that the manual provided a reasonable instruction for the conduct of the 100‑hour maintenance and the identification of possible looseness of Bolt 4.

In substance, that was because, he held, the manual’s provisions for applying and then checking the integrity of torque stripes were reasonable. A torque stripe applied to an insufficiently torqued bolt would break, and given that the condition of a torque stripe, if missing or broken or incomplete would require the maintenance engineer to further investigate the security of the bolt, that was a reasonable instruction.

The majority held that finding was not open for a number of reasons. But, in substance, the majority’s reasoning was this. First, it is said that the defect was not picked up in the 100‑hour maintenance inspections by Mr Bray or Mr Fisher or otherwise by some pilots, a Mr Lewis and a Mr McKendry. It is argued from that that a strong inference can be drawn that, whatever the state of the torque stripe might have been, it was not such as to alert the LAMEs to the need to do more. Indeed, it is said against us that that is a compelling inference, given the rule in Browne v Dunn.

Secondly, it is said in substance that that is an understandable position because of the various ways in which torque stripes can prevent themselves, which it is said make them unreliable indicators of the security of the bolt. Finally, the reasoning is that there was available another means: the application of a torque wrench or spanner, which would have identified the looseness of the bolt.

FRENCH CJ: There was a problem with applying the torque wrench, was there not, in terms of self‑generating problems?

MR DOYLE: One of the witnesses in fact said that you might do more harm than good. I think a lot of people said if you merely apply a torque wrench, you have to retorque essentially and there was that debate.

I will digress slightly to say the case that was pleaded against us was the manual should have contained an instruction to retorque the bolts. The suggestion that you could check its looseness by the application of a spanner emerged in the course of some very limited evidence rather than the case that was pleaded, but I will come back to that.

It is sufficient to identify that as the sort of key reasoning of the majority. If I take you to only two paragraphs of the reasons of Justice Wilson in volume 11 – the page I want to take you to is 4971 to paragraph [78], and then to paragraph [94]. I will take you later to these reasons in more detail but from those two – there are many other reasons that his Honour gives but those two seem to capture the core issues.

GORDON J: Sorry, [78] and [94] is the same conclusion. Do you seek to distinguish between [78] and [94], that is that there was only one possible finding open?

MR DOYLE: One derives from ‑ ‑ ‑

GORDON J: No, their source might be different but it is the same ‑ ‑ ‑

MR DOYLE: Yes, that is so. It derives from the two points that I made, the inference to be drawn from them not being provoked in some way and the various different presentations of torque stripes. Now, those conclusions represent a very substantial departure from the findings of the trial judge. The trial judge in fact found that the torque stripe was missing and if that were held it was uncontroversial that a missing torque stripe should alert a LAME to further investigate the security of the bolt.

The trial judge also found that if it was not missing, that it would have been broken, and again, uncontroversially, if that were the condition of the torque stripe it would have alerted the LAME to further investigate the security of the bolt. The trial judge also found that even if it was there and incomplete in the sense that it was not connected to the component to which it should have been connected, the yoke, that too is something that a LAME should have looked for and would have put them on inquiry to further investigate the security of the bolt and all of those ‑ ‑ ‑

BELL J: At paragraph [55] in the reasons of Justice Wilson at appeal book 4967, his Honour in the concluding sentence observes that that finding accords with the evidence of the LAMEs. Is that a reference to Mr Bray and Mr Fisher?

MR DOYLE: It is, yes, yes. That passage which is an important one, his Honour in fact records that if it was “anything but a complete, unbroken stripe, even though it might have deteriorated”, it would have put those people on notice and I will be coming back to their evidence about it, in fact what their reaction would have been to a deteriorated torque stripe, but for the moment I am still at a very preliminary stage.

The findings that the Court of Appeal ultimately reached, by majority, are a substantial departure from the findings of fact made by the trial judge. I wanted, as I said, to take you to the trial judge’s reasons, and in the course of doing that, take you to some evidence to show how the findings he expressed were correct. Could I introduce it by going to some things which he found, and which are not controversial, were not controversial on appeal? Your Honours, his reasons are also in volume 11. For some of this, I will not need to take you to paragraphs, but I will tell you the paragraph numbers, if I may.

First, he found that a LAME would understand the direction to verify security to be directed to the condition of the bolt. That is at paragraph [143] of his reasons. Secondly, he found that a LAME would understand the direction to verify security to require the examination of the condition of the torque stripes for the bolts – that is in the same paragraph, [145].

Thirdly, he concluded that a LAME would understand the direction in the manual concerning the application of the torque stripe to extend over the various components I have taken you to, to require it to extend over the bolt threads to the palnut and to the yoke; that is at [147]. He found – and this, I think, was probably common ground – that if the torque stripe was applied properly but over an inadequately torqued bolt, as was the case here, it would break, and that that would be a signal to a LAME to investigate the condition of the bolt further. That is, I think, at paragraph [146] of his reasons.

FRENCH CJ: Now, the hypothesis that the torque stripe could itself slip over a contaminated surface – that was only something which came out of Mr Ogier, was it, nobody else?

MR DOYLE: That is so. I am going to take you to Mr Ogier’s evidence. So far, then, we have the position that in the situation which we know existed, that was an insufficiently torqued bolt with a torque stripe if it had been applied, it would have either – I will start again. It either was not there, or if it had been applied properly, it would have broken. It was found that would be a reliable indicator of the need to do more to investigate the security of the bolt.

NETTLE J: If someone was so incompetent as to put the bolt in as they did incorrectly, and not in accordance with the manual, might it not be inferred they would be sufficiently incompetent as to apply a torque stripe to a greasy surface?

MR DOYLE: It would be, I suppose, theoretically so. That is in fact part of the reasoning against us. The anterior reasoning is such a person would be especially incompetent to have put the torque stripe on at all because of the instruction in the manual to do so after it is torqued, after the palnut is applied, and so as to connect it to the yoke and give an indication of rotational movement. The judge, for those reasons, and for others I will come to, found it was not applied.

But if there was someone who was incompetent in the way that your Honour has put to me, nonetheless you would have to conclude that more than 100 hours later, after this loose bolt is jiggling around, a thing that is rotating - driving the helicopter with sufficient force to wear away the metal, that torque stripe would remain perfectly intact so that when someone comes to inspect it, there is nothing there which gives an indication of a need to investigate the looseness of the bolt.

Mr Ogier does not say that. He does not say a thin piece of torque stripe applied over a contaminated surface will withstand that kind of activity and remain deceptively intact. It is not said. Things he does say are inconsistent with that being his view. But the case put against us really amounts to that – that, ultimately, the torque stripe, despite all the things that I have just said are taking place in this area, remains deceptively intact so as to mislead someone. There is just no foundation for that, in our submission, on the evidence.

From those points that I have identified so far that were found, the trial judge concluded at paragraph [159], which is at page 4835 – we trouble your Honours to read it but it says, in the third line:

would indicate to a LAME carrying out a 100 hourly inspection the need to look for a torque stripe on each critical fastener; and if it were missing, damaged, or incomplete, to take –

et cetera. I should say something a little more about the expression “incomplete”. Some of the evidence, at first instance, was to this effect, that if a torque stripe was not properly applied so as to extend onto the yoke – onto the component to which the bolt has been fastened – it would not necessarily break if applied over a loose bolt and that is because it does not extend to the yoke and the bolt can rotate without breaking the torque stripe. That, indeed, is something that is referred to by the majority in the Court of Appeal.

It emerges from the evidence of a Mr Lay who was an expert called by the respondents. In volume 3 – can we ask your Honours to go to it – at page 1149? The question – this is in an expert’s joint report – there is a series of questions, I will be taking you to a couple of these. Question 15 is the relevant one. If we can ask you to read – your Honours should read it all, of course, but Mr Lay’s response? You will see there he agrees with the qualification that it would have broken if it were properly applied. He then gives some evidence about things that he has observed.

GORDON J: Does not Whitehead also agree, he says “Yes‑providing” it “adhered to all the components”?

MR DOYLE: Yes, that is so. And Mr Ogier says “Properly applied” as well. So, the contention which I am now focusing on is that there is a possibility, on this evidence, that torque stripe over an incorrectly torqued bolt will not break if it does not apply to extend the component. I am going to call it the yoke because that is the component we are concerned about here, but that is something the trial judge dealt with.

FRENCH CJ: That is what you would refer to as an incomplete torque stripe?

MR DOYLE: Correct, that is so. He ends up saying that is something – well, I will take your Honours to the paragraphs of his reasons. He starts at paragraph [147]. In [147] and [148] where he deals with Mr Ogier’s evidence on this point, he in fact concludes that the description in the version of the manual which was in existence at the time of the accident, or the inspection just before the accident, did require the application of the torque stripe onto the component. So that the qualification about it not being something required until change 26 his Honour rejects.

FRENCH CJ: Well, it is pretty pointless if you do not have it.

MR DOYLE: That is in fact part of the reasoning that his Honour gives. It tells you to apply it to the component to be fastened so as to be an indication of – obvious that it has to be to the bit that is not rotating with the bolt and he refers to figure 2‑1 which gives him a pictorial indication of just what he has in mind. So that it is right to say change 26 is more explicit but not in a way that is material because the trial judge made a finding about what it would mean to a LAME and that it did not amount to a qualification. Then in paragraph [152], can we ask you to read that. That arises in this way. Your Honours will recall that the description in the manual telling the LAME what the torque stripe is to do says:

it should extend across both nuts, and exposed bolt threads, to the fixed component.

Some of the experts from the respondents expressed reservation about whether that was mandatory or not. His Honour takes the view that means you must do it, so that too – it says consideration of this point and a sensible construction of it as it would be understood by a LAME. Then to paragraph [158], the second sentence your Honours will see:

To a significant extent, the submissions were to the effect that a torque stripe might be damaged or missing . . . However the submission included the proposition –

The one that I am now addressing –

that the torque stripe might not extend to the fixed component, and accordingly, not indicate movement –

and it is from that one then goes to his reasons in [159] where he says, as I have taken you to, his conclusion is that:

if it were missing, damaged, or incomplete –

That, in our submission, is to be understood as a reference to it not extending to the fixed component, the yoke. I probably should trouble your Honours at this stage to read paragraph [161] as well.

So that as a matter of construction of the manual, as understood by an experienced LAME, the instruction was to have the torque stripe extend to the yoke and that if it were incomplete - to look for it and if it were incomplete to do something. That is what his Honour concludes in [161]. Indeed, there was evidence to support his Honour’s conclusion that a LAME would look for and react to such an incomplete torque stripe.

It is probably sufficient for these purposes to go to the evidence of Mr Orloff, appeal book 1, at page 216. If we can ask you to read from the question at line 30 to line 40, please. So that whilst his Honour says the evidence does not specifically deal with it, in fact there was some evidence that did deal with it but consistently with the way in which his Honour has approached the matter. So that so far we have dealt with a missing torque stripe, a broken one or an incomplete one.

There were other possibilities raised in the evidence and discussed by the trial judge. There was a body of evidence that torque stripes can deteriorate over time. Indeed this was, both at trial and particularly on appeal, as we will show you, central to the respondent’s case.

Our case is that the evidence of deterioration does not mean that torque stripes are not a reasonable means for the manual to provide for detection of possible insecurity of the bolt. Can I take you first to what is put against us, really, and it emerges principally from the evidence of Mr Ogier but also some of Mr Lay - in volume 1, at page 160, at lines 20 to 38.

FRENCH CJ: What is the content of the notion of deterioration?

MR DOYLE: Insofar as it appears here, it is being put as something different from broken and absent. That is the way it is put.

FRENCH CJ: Is it faded, dirty and ‑ ‑ ‑

GORDON J: Chipped.

MR DOYLE: One of the troubles is that it is such an imprecise word to have been used in the evidence. But it is right to say that people say these things deteriorate by fading over time and if there is dirt they will get dirty.

GORDON J: Chipping.

MR DOYLE: They might chip. Your Honours have seen from our written submissions what we say about this. Yes, they deteriorate but so what? No one says that a torque stripe applied over a bolt that is not properly torqued will merely deteriorate. The evidence is if the torque stripe is properly applied it will break. So it might be right to say you can see in many helicopters and probably in other things torque stripes that fade with age. We will come back to what, even then, would be the response of a LAME, but that is irrelevant to this case because we know here this bolt was loose and we know that the experts say, in those circumstances it will break.

NETTLE J: It will either break or not be there.

MR DOYLE: If it is there at all, it will break.

FRENCH CJ: If it is there and extends to the – it will break.

GORDON J: It may be incomplete.

MR DOYLE: If it is incomplete, we will look for it, and if it is relatively incomplete, and you will not be able to tell it is an intact, even if faded, torque stripe – can I put it that way – because it will not be there or it will be there but broken or there but incomplete. The response should be ‑ as his Honour has found to each to those things, missing, broken or incomplete – to do more. But anyway, I will show you in a moment, that is in fact the response of both Bray and Fisher, the two LAMEs in this case.

A lot of the evidence which was presented of deterioration is interesting but does not bear upon the question of the condition of a stripe applied over a loose bolt and Mr Ogier does not say it here. He says he has seen lots of these things. Apart from them being broken and absent, he says he has seen them deteriorated. He says it does not mean much to him. If there is a similar sort of stripe there that is possibly consistent with it being there but merely faded, then it does not count for much.

Now, that is his view. It is not the view we urge, it is not the view that the trial judge found, it is not the view of either Mr Bray or Mr Fisher, but it is not relevant, unless he is saying that is true over a bolt which itself is loose, and he does not say that.
Can we remind your Honours that we have in our written submissions that Mr Ogier, whilst the LAME, had not been in practice for 30 years and had never worked on the Robinson helicopter. I do not think there is evidence of it, but it probably follows from that he had not done the Robinson sponsored training ‑ I am not sure there is any evidence about that. Mr Lay also gave some evidence about stripes being deteriorated. In the same volume, can we ask you to go to page 151. At about line 30, you will see the question my learned friend has asked and the answer.

BELL J: I am sorry, is this page 150, did you say?

MR DOYLE: Page 151. If you read from line 30 to line 41, I suppose. This is a passage that Justice Wilson quotes an extract from in his reasons. What is important, as your Honours will have seen, that he says what his reaction will be if it is “just deteriorated”, that he would determine if they were just deteriorated. If they were just deteriorated, he says, he would probably just refresh the stripe. Again, that is not particularly informative in the circumstances of this case. His view was also made clear, if you turn back to page 145, at about line 8 to line 12 or 15. In the answer at about line 12, he says:

If it looked like the paint had cracked or broken on the bolt and I wasn’t sure, then I would just remove the pal nut and check the torque –

and so on. In fact, his evidence is he would look to see if it was “just deteriorated”, but if he was not sure, he would do more. The point we have made in our written submissions, the one that I just made a moment ago, is that while it is accepted that torque stripes can fade with age and get dirty and chipped, that phenomenon is known to LAMEs. There is no suggestion in the material that that phenomenon would be experienced by a torque stripe over a loosely torqued bolt, that is, that it will deteriorate in the anodyne way that is implicit in some of the things that are said against us, if the bolt underlying it is loose.

Rather, as we have said, the evidence is, and the judge’s finding was, that if a properly applied torque stripe was there, it would break by the rotating of the loose bolt. If we can ask you to go back to volume 3, again to that question 15, that is the effect of each of the experts that were called, if you discount the qualification that I have already addressed you about, about the incompleteness.

BELL J: I am sorry, could you give me the page number again?

MR DOYLE: Page 1149.

BELL J: Thank you.

MR DOYLE: We have taken your Honours to this, but it is question 15 in the – sorry, volume 3 ‑ ‑ ‑

GORDON J: This is the joint report, is it not?

MR DOYLE: It is, yes, your Honour. The question is:

Do you agree that if the bolt was rotating in the hole it would of necessity break the torque seal stripe –

and so on. The qualification which is offered with respect to it being incomplete – put aside for the moment, because there is a different answer we would offer about that – all of them agree, yes, it would. The agreed position was, whatever might be occurring with deterioration of stripes, if it was, as it was here, a stripe on a loose bolt – assume it is there, I am sorry – if there was a stripe there, it would of necessity break.

But, your Honours, even if we are concerned with a deteriorated stripe, the evidence supports the conclusion that the manual provided a reasonable instruction with respect to it as it was understood by LAMEs. We ask you to go volume 1 again, please, to page 164 – sorry, this is in the evidence of Mr Bray who is the LAME who conducted the March 2004 100‑hour inspection.

I should tell you that the trial judge in an earlier recitation of the facts gets the people around the wrong way. He refers to Mr Fisher doing the earlier inspection and Mr Bray the latter. But Bray did the earlier one, the March one. If you read from lines 12 to 20, it was deteriorated. His evidence was he would:

put a spanner on the head of the bolt and apply a small amount of force.

That is the very thing that said this manual should have instructed – he said he would have done if he had identified the condition of the torque stripe as being deteriorated. Mr Fisher – his evidence is at the same volume, page 170, line 40. There is the question and answer there – is to the like effect. Mr Orloff in the same volume at page 213 – if we can trouble your Honours to read from line 30, “No, I’m asking you whether” to the end of that page, please – page 213.

FRENCH CJ: The notion of parts of it broken away due to age, does that fall within the notion of chipping?

MR DOYLE: Probably. In a sense, it does not matter because whatever the mechanism for it breaking away, he says if it has occurred ‑ ‑ ‑

FRENCH CJ: Yes.

MR DOYLE: ‑ ‑ ‑ you would do them. That is our case. Our case is not that a torque stripe could be used to diagnose the fact of bolt insecurity but that unless the torque – I am going to overstate it – unless the torque stripe is pristine – I am overstating it, your Honours appreciate – if there is anything to impair its appearance you have to do more to investigate it and that is what he is saying. In fact, he says, at line 48:

If it is just discoloured from age but it is perfectly intact –

then he would have a different view. But if there is anything other than that he would do more and that is consistent with what Bray and Fisher have said. Indeed, it is consistent with what we took you to in the passage of Mr Lay at page145 where he says, if I was in doubt I would do more.

So that our submission is that mere deterioration, whilst it can occur, is really immaterial for two core reasons in this case. Firstly, that it is not suggested by anyone that it will occur over a bolt which is loose. Indeed, the finding is that such a stripe would break. Secondly and, in any event, the LAMEs who actually carried out the work on this helicopter said that even if it was just deteriorated they would put a spanner on it to do the thing which is said – they did not know, they were not sufficiently instructed – to do by the manual.

The Court of Appeal, in the majority, in our submission, misdirected themselves by giving any significance to this generic evidence of deterioration of torque stripes.

NETTLE J: Does the second of those propositions go to duty of care or to breach?

MR DOYLE: Both. The question is: how is this to be approached by a reasonably qualified informed LAME? Putting aside Mr Bray, who was not sufficiently qualified, the other LAMEs to which I have taken you say – and again I am overstating the simplification – if in doubt you would do more. So it is only if you can determine that it is intact do you act upon its security. That is the deterioration presentation.

There was also evidence, as your Honours know, of the possibility of another mechanism – that is, slippage being applied over contamination ‑ which, it is said, might cause slippage of the torque stripe and not its breakage, if I can put it that way. This was considered by the trial judge, in paragraphs [149] and [150] of his reasons, which we would trouble your Honours to go to. This is in volume 11, page 4833.

The trial judge, as you have seen in paragraph [150], at least it can be said, did not give much significance to that view of Mr Ogier. That was right, in our submission, for a number of reasons which we have put in our reply submissions but I will touch on them now. It was a view only expressed by Mr Ogier. It was a view expressed without explanation or any test or stated observation but, as we will come to, it is hard to understand precisely what his evidence is.

We ask you to go back to volume 3, the same page, 1149 ‑ this time to question 16, at the bottom of the page. This is the answer that was extracted in the reasons of the President. We ask your Honours to read the question and Mr Ogier’s response. Now, the question itself assumes that the torque stripe is not intact, that is, that it is “broken or non‑aligned”. So that it is impossible, in our submission, to read the answer, whatever it is, or even in reading the answer, to suggest that a torque stripe will be non‑broken and properly aligned. Indeed, the question is directed to really whether it is “an indication of possible looseness” and it as to that whether it is an indication of possible looseness ‑ he says no. He then goes on to say:

It depends between which surfaces the stripe is broken ‑

So it is suggestive of the condition of the stripe itself being broken or non‑aligned but attributing a cause other than looseness. That is not a suggestion the torque stripe will present in an unbroken, intact way, so as to render it ineffective as a signal of possible bolt looseness.

NETTLE J: That is surely all that that third sentence can mean:

stripes can slip over time if the surface they are placed on is contaminated with oil or water.

MR DOYLE: Yes, but in response to a question, is that an indication of looseness or bolt looseness, he is offering an answer, no, the brake or the non‑alignment might be due not to bolt looseness but to it being applied over a contaminated surface. In our submission, it must be so because he does not say that therefore it will be perfectly intact and not broken and not aligned. He cannot mean that because of his answer to the preceding question where he signed up to the view that, if it is complete, it will, of necessity, break. So it is plain, in our submission, that 16 is not directed to showing a unique mechanism by which this torque stripe would appear intact but rather that its not being intact might be due to something other than bolt looseness.

Your Honours, the other passage of evidence that is relied upon is in the same volume at 1139. This also is a passage which is extracted in the reasons of the President – parts of it are extracted in the reasons of the President. Can we ask you to read question 9 and the answer? There are some things to note about this. This is a part of Mr Ogier’s own report. It predates the joint expert report and, when the same question is asked of him in the joint expert report – that is at page 1165 – his answer given is, “No comment”. But nonetheless, you will see that the question again is directed to whether the torque stripe in these circumstances:

would a torque stripe, placed anywhere on the bolted joint, necessarily be broken and reasonably able to be observed by a LAME –

and the answer is directed to, in our submission, the question of whether it would be reasonably able to be observed by a LAME at a subsequent inspection as due to bolt rotation. He tells us:

The compound is designed to be brittle and crack. Depending on the thickness of the stripe it may not break but rather slip as the surface below it moves . . . may not fill a void . . . with the potential –

in those circumstances –

for it to crack under vibration in service.

So that it posits it cracking under vibration in service and the conclusion there:

It is not therefore a reliable indicator and will not necessarily be broken.
In answer then, a LAME should be able to observe a broken torque stripe but whether that triggers a maintenance response is moot –

Now, again, that passage cannot be understood as suggesting that the effect of this peculiar arrangement would be that it will appear intact. Indeed, quite the reverse. He identifies it as being something that is designed to be brittle and crack and will, if thin, slip and crack under vibration in service.

BELL J: Mr Doyle, I am sorry, you said that in the joint expert report, Mr Ogier’s answer to the same question is “No comment”. I just missed – can you just tell us where that is.

GORDON J: Page 1165.

BELL J: Page 1165.

MR DOYLE: Correct.

BELL J: So it is, yes, a reference to question 9 in the joint report.

MR DOYLE: Yes, it is, although the form of the report is there are a series of questions asked by one side then another, so there are two 9s, it is the last of the 9s.

BELL J: Yes.

MR DOYLE: So that, again, this is not, in our submission, suggesting if this is a peculiar circumstance that it will present as an intact torque stripe but rather a mechanism by which it will crack which is other than the rotation of the bolt. Indeed, as I repeat, it cannot be saying that it will remain intact because he signed up in the expert report to the view that it would of necessity break if it was applied over the incorrectly torqued bolt relevant to this case.

So that that evidence of Mr Ogier, far from suggesting there is a circumstance in which there would be the appearance of a torque stripe which is pristine, he is merely identifying other circumstances in which it may cease to be pristine which he has experienced, he says, which may not be due to bolt rotation. Now, his concluding observation that the:

LAME should be able to observe a broken torque stripe but whether that triggers a maintenance response is moot –

is his own peculiar view of things and, contrary to the judge’s finding that a LAME – the instruction in the manual is that a LAME who observes a missing, broken or incomplete torque stripe should further investigate the cause. Now, as I have taken you to, all of that – that is those various mechanisms were considered by the trial judge.

FRENCH CJ: So the central strand of the reasoning is the probabilities are there was no torque stripe applied when the bolt was assembled, the manual covered the position of a missing or incomplete or broken torque stripe, cadit quaestio.

MR DOYLE: I have approached it slightly differently.

FRENCH CJ: I am just trying to tease out what seems to be the way the judge has dealt with it, as sort of a central theme.

MR DOYLE: Yes, that is so. I suppose the way we would put it, and it is consistent with what the judge has said, is whether it is there or not – if it is not there, you need to investigate further. The absence of a torque stripe is an indicator of the need to look further. It does not mean the bolt will be loose; it just means you need to verify that. If it is there, it will be in the condition of either being broken or incomplete, and again, you need to do more.

He considered the other theses that were advanced and rejected them, as we have shown, including the evidence about deterioration. “Deterioration” is a very broad term to use. It may well describe broken torque stripes. That is captured by his Honour’s remarks about it; if it is broken, you need to do more. If it just means that it is intact but aged, then that is not an indication of – assume against me that no one will do anything in response to that. That does not matter, because the evidence here is if it is over a bolt that is loose, it will in fact have broken.

FRENCH CJ: There is a sense in which it slips into causation. Whatever the inadequacies of verified security, on the primary judge’s reasoning, that inadequacy was not relevant to the errors which led to the bolt not being tightened because there was no stripe, a matter covered by the manual, or else one of the other alternatives of broken/incomplete.

MR DOYLE: It is impossible, as we appreciate, to differentiate between the two. It is a question both of breach and of causation, because the question is, as he observes, to the uninformed reader, these things are not quite so obvious, but it is not an uninformed reader who is looking at these things; it is a highly qualified person, or meant to be someone who is highly qualified and done the Robinson training. Such a person would understand the things that his Honour concluded as the consequences of inspection of the bolt and the torque stripe. In fact, that was true of these people, but it goes to both the question of breach and of causation.

NETTLE J: If one were correct in interpreting Ogier’s evidence as meaning that the horizontal section of the torque stripe, if applied to the horizontal clamped surface, might rotate with the vertical section of the bolt stripe, then it would be causation only, would it?

MR DOYLE: Yes, your Honour. Thus far, I have really considered the different presentations of the torque stripe, but as your Honour the Chief Justice has pointed out, in fact the judge found that it was not there, which really is the strongest position, if you like, rather than it being there but suspect. He found that at paragraph [150], to which we have taken you.

The conclusion is one which was plainly open to him, as I hope to show you in a moment. In part, it is obvious that the judge’s reasoning reflects not only evidence about the likelihood of the torque stripe never having been applied, but there is also his consideration of the likelihood of the other theses that are being advanced. His reasons in this respect start at – I have already taken your Honours to this - it is paragraph [146] where he says everyone agreed with the qualification I have advanced.

BELL J: Can I just take you back one moment to an answer that you gave to Justice Nettle? I understood that on the issue of the slipping torque stripe, the primary judge did not accept Mr Ogier’s evidence and he preferred the evidence of all the other experts.

MR DOYLE: That is so.

BELL J: On that analysis, the manual was satisfactory because a torque stripe properly applied is a reliable indicator, and a LAME knows that if one cannot see a torque stripe covering the bolt and attaching to the fastener, one needs to further investigate.

MR DOYLE: That is so. I had understood Justice Nettle’s question to be directed – and, perhaps, I have misunderstood it – to this proposition that the torque stripe appears to be complete and intact but, because it is over a contaminated surface it is rotating with the bolt.

BELL J: That is Mr Ogier’s theory.

MR DOYLE: That is the theory. But, if you accept ‑ ‑ ‑

BELL J: But that theory was rejected, as I understand it.

MR DOYLE: Well, not given any weight – not sufficient concern to elicit from a reasonable manufacturer a different instruction in the manual.

BELL J: Yes, yes.

MR DOYLE: And, rightly so, in our submission because - I know I have said this before – it would require acceptance of this proposition that a thin piece of torque stripe which is designed to crack and be brittle, which the author of the theory says will crack under vibration will remain intact for over 100 hours with this whole thing rotating over a loose bolt is extraordinary. It seems to sit rather poorly with his acceptance to the proposition in the earlier question that over a loose bolt it would, of necessity, break.

So he must be saying something else and the “something else”, we would submit, is that all he is saying is it might crack for a reason other than bolt rotation but he is not saying it will not crack. I am dealing then with the cherry, if you like, on the cake of the trial judge having found it was not, in fact, applied, that is, the torque stripe was not there.

His Honour concluded that because, in effect, he said it would be unlikely that a LAME who reads the manual, who identifies that the function of the torque stripe is to be applied after the palnut is applied – and that only occurs after it has been properly torqued – and its function is to serve as an indicator of a bolt rotation and, for that reason, the instruction is that the torque stripe has to extend from the threads across the nut to the yoke, would put it on before he had – he or she, but in this case probably he – torqued the bolt. That conclusion is consistent with the form of the manual to which I have taken you.

It was also consistent with the evidence of Mr Orloff, to which I should take you. It is, again, in volume 1, page 212, lines 28 to 38, I suppose. It is slightly obscure in his Honour’s reasons but that is a passage of Mr Orloff’s evidence to which the trial judge refers in footnote 169 of his reasons at paragraph [160]. Can we also take you –in the evidence of Mr Lay – the same volume that you have – to page 145, line 32.

GORDON J: What was that page, Mr Doyle?

MR DOYLE: Page 145, lines 32 to 40. Now, it is said against that that there are inconsistent findings in the trial judge’s reasons. He at one stage says that the torque stripe was missing and elsewhere it is said, inconsistently, says something about them being there but not observed. The asserted inconsistency is between his conclusion in [150] that the torque stripe was missing and paragraph [202]. Paragraph [202] appears in the reasons in the section dealing with a missing palnut, or missing palnuts, in fact. That arose at trial because it was part of the Robinson’s case that at least one of those palnuts was missing and that, too, was an indicator of lack of security and should have alerted the LAMEs or, indeed, the pilots to be concerned.

Ultimately, the appellant failed on that. But it is in that context that the trial judge says:

The weight to be given to their evidence is affected there –

being Mr Bray and Mr Fisher, who are the two LAMEs:

by the fact that each of them failed to detect the condition of the torque stripe –

And it is that really that is relied upon to suggest that he is being inconsistent, that is, giving little weight to their evidence of them not having seen the missing palnuts, by saying, well, because they missed something about the torque stripes.

KEANE J: But the condition of the torque stripe could have been that it was missing.

MR DOYLE: That is our submission. In fact, the trial judge did find in [150] it was missing. I wanted to take your Honours to this because, read as a whole, his reasons make perfect sense.

FRENCH CJ: I do not quite understand how he got to that conclusion that it was missing. He says that he considers:

it more likely that, when the bolt was incorrectly assembled, no torque stripe was applied.

MR DOYLE: For the reasons that I have given your Honour, that no one, knowing the function of the torque stripe ‑ recognising that whoever did this bolt did a bad job and, in a sense, that could wash both ways – and our friends put this against us: they could have done a bad job by putting a torque stripe on when they should not have. The trial judge says the more likely position is that they did not put it on because the manual tells you – I will take your Honours back to it if necessary – it is to be applied after the palnuts are on, so over the thread of the bolt, over the palnut, to the yoke, which means at the end when you have done everything, including torquing of the bolt.

So he concludes from that it is more likely that it was not there at all. Someone who is interrupted in the course of doing their job does not torque it but, equally, does not put the stripe on. That is consistent with those passages of the evidence I have taken you to where it states the obvious, you put the torque stripe on when you have finished.

GORDON J: Can I just deal with [150]? There seemed to be two steps in Justice Lyons’ reasoning. The first was because there was the gap in bolt 4, he concluded that the torque was not checked and then, in effect, goes to the next stage to say, well, the torque is not checked, then in addition the stripe is not applied because there is a process to be followed. Is that the way it is put?

MR DOYLE: Yes. The gap is – it is only a small ‑ ‑ ‑

GORDON J: He seems to rely on the gap as a step in the process of getting to the fact that there is no stripe attached. Is that unfair?

MR DOYLE: It is just an aspect. It was common ground, certainly at trial, that the bolt was not properly tightened.

NETTLE J: It was so loose, it had a gap of 150 mill.

MR DOYLE: Correct. It had a .15 millimetre gap and so it had not been tightened to 240 pound ‑ ‑ ‑

GORDON J: No, I understand that, but it is the next step. He then seems to suggest, having not done that step, it is likely, on the balance of probabilities, that they did not apply the stripe and, in fact, having not done one job well, when they came to finish the job, they did not finish it.

MR DOYLE: Can I put it differently?

GORDON J: Certainly.

MR DOYLE: Having put the various components on but not torqued it, the manual would – my words – a LAME would think, I only put that on after I have done everything, including torquing the nut, because that is what the manual tells me to do, and the judge thinks it is unlikely to make two mistakes, if you like. Yes, you might get interrupted or do whatever and so not finish by torquing the bolt, but more unlikely that you would nonetheless put a torque stripe on it. That is the reasoning.

KEANE J: It is unlikely not just because it is a question of incompetence. If someone installed this piece of equipment did not torque a bolt and then put a torque stripe over it, that would not just be incompetent; that would be wicked. That would be almost an act of sabotage. One would not readily leap to assume that whoever installed the thing was engaged in a crime. One would be loath to reach that sort of conclusion.

MR DOYLE: Your Honour is, of course, putting it more highly than I have, but that, in substance, is what we say. If you are asking what is the likely position, the likely position is that the person who had not finished the job on the bolts would not nonetheless have finished it by putting a torque stripe on. That is consistent with the manual, consistent with what the LAMEs say and that is what the judge finds. It is also consistent with some parts of the other evidence I want to take you to in a moment, but that is the reasoning and it is the reasoning which his Honour employed, which the Court of Appeal overturns and says, that is not right.

BELL J: The defect in the assembly that it is acknowledged had occurred was not only that the bolt was not sufficiently tightened but that also there was a missing shim washer or something of that sort.

MR DOYLE: There was.

BELL J: So there were indications that, whoever had failed to assemble bolt 4 correctly had done more than leave the bolt loose.

MR DOYLE: That is undoubtedly true. The shim washer is not critical ‑ ‑ ‑

BELL J: I understand but ‑ ‑ ‑

MR DOYLE: ‑ ‑ ‑but you are right to say that it is not there.

BELL J: Yes.

NETTLE J: But the absence of the shim washer meant that it was incapable of being torqued, on the evidence?

MR DOYLE: I do not think that is right.

NETTLE J: It could not have been torqued?

MR DOYLE: I do not think that is right, your Honour. It could have been. Forgive me, I will have to defer to my junior about this, but I think the function of the shim washer was to correct alignment rather than enable the tightening of the nuts.

I was trying to explain to your Honours that this is not an inconsistent finding because of the starting point being that he found, for the reasons we have articulated, the thing was not there – the torque stripe was not applied. That was at paragraph [150]. Then [157], his Honour goes on to say:

If a torque stripe had been correctly applied . . . it would have broken –

So he is articulating the alternative, coming to his ultimate conclusion if it is missing, broken or incomplete it is a signal. Then when he – sorry, I should really take you to his conclusion at paragraph [166]:

satisfied that the instruction in the Maintenance Manual to verify security . . . was sufficient to identify a risk of failure –

in either of the circumstances, it is missing or broken or incomplete, if that be relevant, and then in [167] he says:

In case my finding is incorrect, I propose to express my views about what seem to me to be the more significant of the remaining allegations, and some related matters.

So that what follows is obviously an alternative articulation of reasons, and it is in that context that paragraph [202] appears, where it is right to say his Honour’s description of the condition is apt to mean its absence or, in the alternative, it is there, that it is broken, but in absence. So that it is not an inconsistent finding. It is plainly in a part of the reasons dealing with alternative cases, but in the course of dealing with them forms a view about the inference to be drawn from the circumstance that Bray and Fisher did not see the absence of a palnut.

To say, well, the weight I am going to give to their evidence about that is diminished because I find – my words – that it was missing or, if relevant, they have missed that it was there but broken. So that, in our submission, it is not an inconsistent finding at all, it is readily reconcilable with the way his Honour has articulated the matter and no foundation for criticising his reasons as it has been used in the Court of Appeal.

FRENCH CJ: So it works this way. The stripe was not there, if it was there it would have been broken, it they did not notice the break they would have noticed the palnut, the missing palnut.

MR DOYLE: They say – can I put it differently – they say they did not notice the missing palnut.

FRENCH CJ: No, no, I am just looking at his hypotheses.

MR DOYLE: Yes. Well, they say they did not – and he accepts that ultimately, that the palnut is not missing, but in the course of saying what he is going to say about that, he says the weight I am going to give to their evidence of their not having observed a missing palnut ‑ ‑ ‑

FRENCH CJ: I see.

MR DOYLE: ‑ ‑ ‑ I give less weight to because they have missed the torque stripe. That is really what we urge to be the relevance of [202]. It is demonstrably a finding about their credit. It is a finding that he is giving less weight to what they say about a palnut because he is finding they missed what we say about a missing torque stripe.

Now, he heard the witnesses. He heard the LAMEs, and he heard the evidence of the pilots. He also heard experts, of course, giving evidence about the setting for weighing what these other witnesses had to say. The trial judge had the advantage of an inspection looking inside two R22 helicopters. He heard the evidence given by reference to models; that is, you will have seen in some of the evidence people talking about holding exhibit 13, and holding it this way or holding it that way. He saw all that as they were giving their evidence.

Paragraph [202] is, in our submission, the expression of the trial judge’s unpreparedness to rely upon the inference to be drawn – or at least unpreparedness to give much weight to the inference to be drawn from what the LAMEs said they did not see, because he has formed the view that they were wrong about not seeing the broken torque stripe.

Now, I wanted to take you to the evidence of those two LAMEs for other reasons as well, but it is convenient to do so now, because in fact neither of them could recall the maintenance inspections they conducted. Can we ask you to take up volume 1 again to page 166? This is in the evidence of Mr Bray. At about line 16, you will see he says he has:

no recollection of working on the helicopter –

He is then asked about his usual practice. I think I may have already taken your Honours to this, but ‑ ‑ ‑

NETTLE J: You took us to line 30.

MR DOYLE: Thank you, your Honour. That was not the passage, but that is helpful. Can we ask you to go back to page 164, which I think I have taken you to, his evidence about his reaction if what he saw was a deteriorated torque stripe, which I am sure I have taken you to – and then back to 166, I am sorry. If you would read from line 32 to 52, please. His evidence is that he had no recollection of working on this helicopter, but his usual practice would be such that if the torque stripe appeared to him in a deteriorated form, he would put a spanner on it to check its looseness.

I think it is right to say everyone accepted – at least there was evidence from which it could be accepted – that if you put a spanner on this bolt and did what Mr Bray said was his usual practice, you would have detected its looseness. He obviously did not engage in his usual practice which is, of course, another reason, in our submission, why it is a poor foundation for saying that you can draw an inference from his inspection that it was a good one – that when he tells you what he actually would do it is plain he did not do it.

The same point emerges with respect to Mr Fisher. His evidence is at page 169 at about line 48. Again, he says he has no specific recollection. At page 175, at lines 25 to 36, he ultimately accepts that it is possible that he missed the “telltale sign”. That is, of course, consistent with the trial judge’s view but inconsistent with the inference the majority in the Court of Appeal drew.

At page 170, which I have taken your Honours to, at about lines 40 to 46 he again describes what his reaction would be if it was deteriorated and it is to put a spanner on it. So we make the same point. He obviously did not do that because of the evidence that if you had put a spanner on it – well, the case against us is that you should have put a spanner on it. If you had done that, you would have detected looseness. He did not do that.

So the evidence these gentlemen gave is a poor foundation for, really, the conclusion the majority in the Court of Appeal makes, that you can assume they did a good job and if there had been something amiss they would have picked it up because they do not recall what they did. What they say they would normally do, they must not have done. One of them accepts he may have missed telltale signs.

As we have said, probably too many times now, it is also difficult to imagine that the torque stripe was, in fact, in a condition which gives a false assurance of being intact when it has been subjected to the kinds of forces that one can imagine it must have been subjected to with the bolt rotating and wearing away at the flexplate causing the washers to despond and so on – all of it rotating at the same time and no one says that.

Now, it is said there is a Browne v Dunn point here that this proposition was not put to either Mr Bray or Mr Fisher. There is, in our submission, no relevant Browne v Dunn issue. The pleadings raise the issue whether the LAMEs were careless. Can we ask you to go in volume 1 to page 19? This is in the statement of claim. In paragraph 42, it is said:

As a consequence of [my client’s] failure to exercise reasonable care as alleged–

in various paragraphs ‑ ‑ ‑

GORDON J: That means the defective manual, does it not?

MR DOYLE: Yes, it does. The way it is put here is it was our fault that they led to doing something, but what is said in (d) is that those people, the fourth and seventh defendants, that is, the employers of Mr Bray and Mr Fisher:

did not properly examine for and identify the Defects referred to ‑

in the earlier paragraphs. Then across the page to (h):

did not carry out any or any proper or adequate inspection for cracks initiating at the flex plate bolt holes –

and there is a whole series of “did not do things”.

GORDON J: When I looked at those pleadings, Mr Doyle, and at the way in which the admissions came, it is on the assumption that the manual should have contained the additional step – that is, the additional requirement to apply the torque wrench to the bolt. That is how I read 42:

As a consequence of the first defendant’s failure –

i.e., your failure to include in the manual additional directions.

MR DOYLE: That is as they would allege it.

GORDON J: Yes.

MR DOYLE: The particular nature of the direction that they talk about ‑ well, there are a number – is to remove it and retorque the whole job. Your Honours can see that what is asserted, albeit induced by our own, what is said to be the appellant’s negligence, they did not do things, they did not carry out a proper inspection of things, in the defence at page 57 – of this volume, sorry - paragraph 36(a), it is pleaded that if my client was negligent it was not causative because:

if the allegations made by the plaintiffs against the fourth and seventh defendants are true, then the negligence, breach of duty or breach of contract by those defendants . . . including the failures pleaded in paragraph 16 –

caused all the trouble and 16 appears at pages 34 and 35 of that volume – it is probably sufficient to go to (a)(ii):

the failure of:
(A)the maintenance organizaations ‑

to detect:

(G)missing or broken torque stripes –

For completeness, I should go to the reply to page 66 where it says:

The plaintiffs deny the allegations in paragraph 16(b)(i) -

I have no idea what that means because it has been deleted but, nonetheless, the facts that are alleged here are things that the case went to trial on because:

(b)there were no missing or broken torque stripes . . .
(c)the accident was not caused by a failure to detect . . .
(ii)missing or broken torque stripes . . .

(f)the detection of missing or broken torque stripe would not have avoided the occurrence of the accident -

GORDON J: Sorry, I am lost, Mr Doyle. I thought that the pleading to paragraph 30 in the seventh amended statement of claim, the defence was what you took us to – sorry, I will start again. The defence to paragraph 42 was to be found in paragraph ‑ ‑ ‑

MR DOYLE: Paragraph 36.

GORDON J: ‑ ‑ ‑ 33 on page 52.

MR DOYLE: Yes, but the passage that I took you to in the defence is in paragraph 36, which cross‑refers in a rather inelegant way to paragraph 16.

GORDON J: I will put the proposition differently. Your reference to paragraph 42 then becomes irrelevant, does it not, because this is a defence that you take regardless of whether or not it is in the manual or not?

MR DOYLE: Yes, except that ‑ ‑ ‑

GORDON J: It is a broader defence.

MR DOYLE: Yes, that is true.

GORDON J: That is where I got confused.

MR DOYLE: It cross‑refers to 16, and then in the reply, as I was taking you to –paragraph 5(b), (c) and (f) are the passages I suppose I would take you to. As between the parties, consistent with the manner of expression of those paragraphs I have just taken you to, it was clear there was an issue whether there was a missing or broken torque stripe, and whether it was the negligence of the maintenance inspectors or us that brought that about – that led to it not being detected. The plaintiff said they did not detect it – I am paraphrasing – but it was due to your inadequate instruction, and we said no, they did not detect it through their own negligence.

In terms of the application of Browne v Dunn, your Honours, I will not take you to any of the authorities unless it is of assistance to you. Mr Fisher was asked by our learned friends “Did you ever ignore a suspect torque stripe?” Perhaps I should take you to where that is asked: volume 1, page 171 at line 10. Neither in that passage, nor in what precedes it, where he is asked about the condition of torque stripes and them being deteriorated, is he in fact asked about a missing torque stripe.

He accepts, as we have shown you in cross‑examination, that he may have missed telltale signs of a lack of security, but he also says that he has no recollection of working on the helicopter. We do not contradict his evidence that he has no recollection of working on the helicopter, but in fact the thing which is said gives rise to this inference was put to him. He accepted that he may have missed telltale signs of the difficulty, when his own evidence does not include an assertion that he was on the lookout for a missing torque stripe.

Now, Mr Bray, our learned friends did not ask him the similar question. They did not ask him, “Have you ever ignored a suspect torque stripe?” We have taken you to his evidence and he gave evidence about his usual practice which evidently he did not follow. He too had no recollection of working on the helicopter. I am not sure if I have taken your Honours to that but that appears at book 1, page 165 at line 50. At page 167, he was asked and he accepted that he had never done the Robinson training course which, of course, you will recall is one of the qualifying criteria for working on this helicopter at all.

FRENCH CJ: How do you use that, by the way? Do you say that is just evidence of the level of competence to which the manual is addressed?

MR DOYLE: Yes, and for relevant purposes here it is a poor foundation to say the torque stripe must have been intact and okay if the evidence is given by someone who has not undergone the training required to be working on this helicopter at all for the maintenance. Now, because he cannot recall it, his own evidence is not that he was asked had you ever ignored a suspect torque stripe and he is not appropriately qualified. It is a big leap, in our submission, to say that there is a compelling inference to be drawn that everything must have been okay when he worked on this helicopter, must have appeared to be okay when he worked on the helicopter.

So that in terms of the trial judge’s finding that the torque stripe was missing, the trial judge expressed in paragraph [202] a view about the weight to be given to these gentlemen’s evidence. Mr Fisher accepted he may have missed the telltale sign, Bray was not appropriately qualified, neither had any recollection of working on the helicopter.

They both gave evidence of their usual practice which it seems highly unlikely they in fact employed, and from that the Court of Appeal seeks to draw an inference against the finding of the trial judge because it in substance has said you can assume, in effect, they did a good job and had there been something wrong they would have picked it up. That, in our submission, is misplaced.

KEANE J: It was actually part of the plaintiff’s case, as you showed on the pleadings - it was actually part of the plaintiff’s case that they did a bad job, that they were led to do the bad job by your material.

MR DOYLE: That is so, your Honour.

KEANE J: So there is not much of a Browne v Dunn point in saying it was not put to them, they did a bad job, that was common ground.

MR DOYLE: That is our submission, as you have seen in our written submissions, and moreover, the circumstances put to Fisher, you may have missed telltale signs, and I am sorry, because both of them say they cannot recall, there is no – what is the point in asking people things they cannot recall. The decision we gave you of Justice Toohey in Trade Practices Commission v Mobil Oil Australia is to that effect. You do not need to keep pushing once you have someone to say they cannot recall, unless you are going to challenge that they can in fact recall something.

Your Honours, we should also deal with the evidence of the pilots because the Court of Appeal drew some support from the circumstance that they conducted pre‑flight inspections and did not notice or raise the alarm about the condition of the torque stripe. As I hope to show you in a moment, the trial judge also made a finding as to the weight – for their evidence which is against the inference to be drawn by the Court of Appeal.

But can I take you first to their evidence. It is all in volume 1. One of the pilots was a Mr McKendry. He flew the helicopter. Before you fly the helicopter, the pilot operating handbook requires you to do certain things and I will take you to what those are in a minute. He signed as having done those on a number of occasions – I cannot remember now how many. He gave evidence of what might be thought to be a reasonably careful examination by him. In fact, he had no recollection of doing an inspection of this helicopter and that appears at volume 1, page 449, lines 29 and 30:

Now, we take it you don’t have any actual recollection –

So he, too, gives evidence of his usual practice. His usual practice was to undertake an inspection using both a torch and a mirror, and he gives that evidence on the same page, at the bottom, from lines 30 to 45. At the bottom of that page you will see he is asked:

And what were you looking for –

Can we ask your Honours to read that across to the end of the answer on the next page, and also on page 450, at lines 25 to 28. He gave evidence that he was looking for a cracked torque stripe and if he saw one he would report it. But he was not asked and he did not say whether he was looking for a missing torque stripe or what he would do in response to that. He hand tested the bolts, he says, but the trial judge made a finding that the kind of looseness that we are concerned with here would not be capable of being readily picked up by hand manipulation, if I can put it that way. That is in his Honour’s reasons at paragraph [64].

Mr Lewis was the other pilot. At page 459, line 40 you will see he has no recollection. At 464, at about line 5, you will see that he says he sometimes uses a torch but not always. I am sorry to jump around with some of this. If your Honours would go back to 462, from line 5, I suppose, to line 25.

He there indicates the difficulty in observing the condition of the two bolts, one of which is the one we are concerned with here – one of the ones that is forward facing. Back to page 464, can we trouble your Honours to read from lines 35 to 45? So certainly with respect to Bolt 4 and its companion he is not even looking for the torque stripes on those. Then on the next page he says at line 15 – he is asked:

Why were you not so interested in the torque stripes, Mr Lewis?‑‑‑Generally, they had a tendency to fade away.

It seemed to be less relevant to a pilot would seem to be his evidence. So that in respect of his evidence, again, we would say, it is a poor foundation for drawing an inference of the kind drawn by the Court of Appeal because on his case he is not even looking to see the condition of the torque stripes and he does not pay much attention anyway. Quite the reverse it seems, in our submission, to be that his evidence would support the trial judge’s findings. He is not looking for it. So, it is perfectly consistent with him not having seen that it is not there. Similarly for Mr McKendry’s evidence. Whilst he talks about the significance to him of a cracked torque stripe, he does not speak about a missing ‑ ‑ ‑

BELL J: But it is a fair inference, is it not, that if you are looking for a cracked torque stripe, you might be concerned to find no torque stripe?

MR DOYLE: You might infer that. The other thing you might infer is that you are looking to see where there are torque stripes – whether they are intact because you know they are meant to be intact. But you do not second‑guess – there is no direct evidence about this but one can well imagine that a pilot would not second‑guess whether there should be one. If it is not there, that is…..looking for that. If we go to the pilot operating handbook – it is in volume 5. Perhaps I will just give your Honours the reference. At page 2129 it identifies what the pilot should do before taking off and it says – I will read your Honours the words:

Flex coupling…………No cracks, nuts tight.

The pilot operating handbook does not itself direct the pilot to be looking for the presence or absence or condition of torque stripes. The trial judge deals with that evidence in a number of places. Can we take you to his reasons at paragraphs [232] to [233]? It is probably sufficient to go to [233]. This appears in that part of the judgment where his Honour is considering the proposition that there had been either voluntary assumption of risk contributing to negligence by the respondent companies or by the pilot who was killed in the flight. But if you can read [233], his Honour expresses a view about what the pilot operating handbook expects of a pilot looking for – or not looking for torque stripes. Then in [234] he says:

There is other evidence which supports this conclusion.

Which we would ask you to read which picks up the evidence of Mr McKendry and Mr Lewis. Then to paragraph [240], his Honour was:

not prepared to find that the looseness of the bolt could have been detected by adequate pre‑flight inspection ‑

and problems with the handle. But if we can then ask your Honours to go back to [201] and this is in that part of the reasons which considers whether the palnuts were missing or not, similar to the part I took you to before with respect to Mr Bray and Mr Fisher. In paragraph [201] his Honour says:

Both these witnesses –

and that is a reference to the two pilots I have just taken you to:

attributed significance to the absence of the palnut from one of the bolted joints . . . It seems to me that the absence of a palnut would be easier to detect than a crack in or misalignment of a torque stripe. They both appeared to be responsible persons –

and so on. So I accept that it is not a strong articulation of his Honour’s view but he has found that a pilot would not pick up the presence or absence of a palnut and it is not defective for them not to have done so. But it is even harder, he would say, for a pilot to pick up the presence – a crack or misalignment of a torque stripe.

That, too, in our submission, is an indication from the trial judge of the advantage of hearing all the evidence and so on. He would not give weight to the suggestion that you can conclude it was there and intact from the fact that pilots could not pick it up because he was not prepared to say that could be concluded from the palnuts and a fortiori it could not be said with respect to the torque stripes.

I have laboured, I am sorry to say, that proposition because both in paragraphs [201] and [202] the trial judge expressed views which must be views as to the weight to be given to the evidence of, critically, the two LAMEs but, additionally, the two pilots. Those paragraphs as indications of the weight which the trial judge formed as to those people’s evidence do not feature as such at all in the reasons of the Court of Appeal.

The trial was conducted over 25 days but a lot of that was for quantum. I believe it is right to say about a third of the trial was attributable to liability issues, seven or eight days, that order of things. As we have said, the trial judge inspected the helicopter so he was able to open the cowlings or have them opened and look in and see how the forward flexplate would appear to someone who had opened the cowlings and was inspecting them. He had physical models which are, of course, available to your Honours but he had them to observe the witnesses as they gave their evidence by reference to them.

He heard from numerous witnesses and formed views about things which I have touched upon. He certainly formed a view as to the proper understanding which an experienced LAME would have of the contents of the manual and in doing that he expressly rejected the hesitations expressed by both Mr Lay and Mr Ogier about the significance of the change 21 and change 26 instruction, that is, they both expressed the view that there was some implied criticism, I think is the way the trial judge puts it, in the use of permissive language in the change 21 version of the instruction about torque stripes and he rejects that.

He also, still at a very general level, weighed up the competing expert evidence about the appearance of deteriorated stripes, stripes that are incomplete and so on, and again, obviously formed a view principally against Mr Ogier’s evidence but also against the suggestion that mere deterioration was somehow an indication of some limitation on the instruction in the manual.

He discussed what we have called in our written submissions the “Ogier theory”, that is, the contamination aspect, and obviously did not give any weight to that, at least not such as would induce a reasonable manufacturer to alter the instruction in the – or require a reasonable manufacturer to alter the instruction in its manual. And he expressed views about the weight to be given to the evidence of the LAMEs and the pilots in paragraphs [201] and [202] to which we have taken you.

The appeal, on the other hand, was conducted on the record on one day and with the benefit, as perhaps the advantage, of being only taken to some of the evidence. The majority’s conclusions, as we have submitted, involve very significant departures from the trial judge’s findings, including as to his view of the reliability of weight to be given to the evidence of Bray and Fisher, or the inference to be drawn from their evidence. We have given your Honours in our written submissions Fox v Percy. I will not at this stage take you to it.

The function of the Court of Appeal is to conduct a review and to decide the case before it on appeal. However, it must pay appropriate regard to the advantages of the trial judge which the trial judge and not the Court of Appeal had in considering the witnesses, all of the other evidence in context and the time and so on that is available to the trial judge and not to the appellate court.

Those advantages are not articulated, in our submission, in the judgment of the Court of Appeal. They do not identify them as things which they give weight to in their views and, indeed, as we will take you to in a moment, the President identifies the case as being finely balanced and that is not indicative of there being some – insofar as we are concerned, with the findings of weight to which I have taken you, of there being some glaringly improbable position which needed to be redressed on appeal. Indeed, our submission, as perhaps I have made obvious, is that the trial judge is plainly right and that the Court of Appeal erred, but the extent to which the trial judge expressed views of weight and so on, there is not a proper foundation for overturning that.

I wanted to take you, if I may, very briefly now to the reasons of the majority. Almost all of them I have already dealt with so I will be able to simply identify why it is we have said what we said about them. If we can start please with the reasons of the President at page 4958 of volume 11, you will see in paragraph [2] that passage I have just been referring to about how the case was “difficult and finely balanced”. In paragraph [9] and then in [10], her Honour deals with the ‑ ‑ ‑

FRENCH CJ: That finely balanced reference must be a reference, must it not, to the inferences which were open and which should have been drawn, rather than questions of characterisation or evaluation?

MR DOYLE: Well, except that you cannot separate the two. If the nature of the inference you are going to draw is – I will start again, if I may. If you have someone who is accepted as a very careful, thoughtful, diligent LAME who did all these things and did not see something, you might draw a particular inference. But if, hearing the witness, you think. I am not prepared to give weight to that because he has been careless, that is a combination of both a view as to his evidence and a view as to the inference to be drawn from it. It is the merger of the two, as you have seen from ‑ ‑ ‑

FRENCH CJ: Well, it is really a statement about the factual case, is it not?

MR DOYLE: Yes. Her Honour must be referring to the outcome on the facts being finely balanced. In paragraphs [9] and [10], her Honour deals with that inconsistent finding – I have already addressed you sufficiently as to why that is a misreading of the primary judge’s reasons. If we can ask you to note, in the middle of paragraph [10], her Honour says:

These apparently inconsistent findings . . . and his Honour’s abstention from finding whether a torque stripe over bolt 4 was in place but slipped, means that this question was unanswered in the judgment.

In fact, his Honour found it was not there, so his Honour has answered the question in a particular form. But the “was in place but slipped”, on the evidence, can only mean one of two things relevantly; a reference to an incomplete, as I have called it, torque stripe so that it is not connected to the yoke so it can slip around without being adhered to the thing which rotation or shell it is broken from – that is fully dealt with in the primary judge’s reasons, in the matter I have taken you to, or it is a reference to the contamination theory of Mr Ogier, which again, we have taken you to. Or if it is something else, it can only be a reference to that other passage of Mr Ogier, where he talks about a thin piece of torque stripe which would crack under vibration. As I have explained to you, that too is dealt with and answered in his Honour’s reasons.

BELL J: At paragraph [8], her Honour has recorded his Honour’s rejection of the Ogier theory.

MR DOYLE: Yes. Our learned friends – perhaps I misstate this – in their submission, suggest that the majority did not rely upon Mr Ogier’s evidence, or did not rely upon the correctness of it – I withdraw that. There is a substantial part of the reasons of the President that consists of referring to Mr Ogier and quoting from him. In terms of that observation in paragraph [10], in our submission, it reflects a misunderstanding of what the trial judge has in fact carefully done.

Her Honour in paragraphs [11] and [12] sets out that passage of Mr Ogier’s own report, to which we took you in appeal book 3 at page 1139. I have already addressed your Honours about the lack of significance of that, if I may. It is all dealt with in the trial judge’s reasons.

In paragraphs [14], [15] and [16], her Honour has extracted the evidence firstly of Mr Lay, again in the passage to which I have already taken you, and then to Mr Ogier, again which I have already taken you to, and unless there is some advantage in restating it, I would just simply pass over that. Paragraph [19], can we draw your Honours’ attention to the opening words of that:

The accepted evidence of the LAMEs –

et cetera. Now, that is something of an overstatement, in our submission, given the observation that we have taken you to in paragraph [202] of the trial judge’s reasons about giving reduced weight to their evidence for some reason. I suppose it would be better to say accept that evidence but subject to the qualification that his Honour was not prepared to rely upon its accuracy with respect to what they may or may not have seen, so that that is a misstatement and, in our submission, it ignores the significance of the weight credit finding which is represented by paragraph [202] of the trial judge’s reasons.

GORDON J: It is [201] and [202], is it not? Paragraph [201] deals with the pilots.

MR DOYLE: You are quite right, [201] is the pilots, [202] is the LAMEs. Then in paragraph [20], the possibilities, which the evidence was not limited to, is the Ogier theory which we have already addressed you on. The other possibility that her Honour expresses, consistent with Mr Ogier’s evidence, was that:

when bolt 4 was incorrectly assembled, so too was the torque stripe over it incorrectly applied, perhaps to contaminated surfaces ‑

and so on. I have addressed your Honours on that. For that to be determinative, as it seems to have been in her Honour’s thinking, really requires some evidence to support the contention that an incorrectly applied torque stripe over a rotating bolt will appear intact after a very long time and the sorts of forces that are necessary and there is no evidential foundation for that. Paragraph [21], her Honour there deals with the fact that torque stripes might appear “deteriorated” and we have already addressed you, I hope, on everything that might arise out of that. So that, in our submission, the reasons of her Honour cannot be accepted, and certainly cannot be accepted as a proper foundation for overturning the findings of the trial judge.

FRENCH CJ: The essential logic of [20] is none of these people saw anything wrong with the torque stripes, therefore the probability is there was not anything wrong, and then she explores the possibility of the Ogier theory.

MR DOYLE: Yes. How do you explain the fact that they did not see it? There might be a circumstance where they give a false appearance of security. Often it is the other way around, of course. If they will always break, in the circumstances I have described, or they will crack on vibration and so on, but it must be these people missing it, and that is what the trial judge concluded.

Whilst we are at her Honour’s reasons, can we ask you to read paragraphs [23] and [24], which are really directed to causation, which I will come to in a moment, but it will save me having to come back to it later on. Can we ask you then to go to the reasons of Justice Wilson? Much of what I have said and much of what her Honour has dealt with is dealt with by Justice Wilson in some other way, so I will not take your Honours through every paragraph of his reasons.

Can we start, however, with paragraph [73] where, as a step in his Honour’s reasons for overturning the trial judge’s conclusions, is that the manual was otherwise found by the learned trial judge to be inadequate in a number of other respects. In our submission, that is wholly irrelevant. The manual, the trial judge determined, did not separately identify means for the identification of, for example, the disbonding of the washers or the fretting of the metal and so on. That is what his Honour says – they are not sufficient. But, of course, these are steps in the process of bolt rotation, which are more difficult to observe than the breaking of a torque stripe. If the manual, by its provision with respect to torque stripes, provides a reasonable indicator for the LAMEs of the need to conduct further investigation of security, it does not matter that there could have been other things that could have been said in the manual about other events. It is, in our submission, irrelevant.

In paragraphs [74] and [75], particularly can we draw your Honours’ attention to the last sentence of [75], his Honour there is expressing the view that something renders:

the stripes, effectively, useless as indicators of bolt movement or slippage.

The something is:

deterioration, the evidence also showed, is not indicative that a defect exists –

We have already addressed you on this. Mere deterioration is irrelevant. The fact that it might merely deteriorate and no defect exists, one can accept. It may, therefore, be that a thing deteriorates and if LAME thinks, I have got to do something more to investigate it, and on investigating it realises that there is no problem.

The point of the torque stripes is not to diagnose the fact of bolt movement but rather to identify a need to further investigate whether there is or is not. And, as we have said, mere deterioration, if there is no defect, as this passage seems to contemplate, is irrelevant.

We think we have dealt sufficiently with much of what follows. In paragraph [80], Justice Wilson referred to the evidence of Mr Lay, to which we have taken you, where he says:

one which had simply deteriorated he would have . . . probably refreshed –

it. That of course is, for the reasons I have just given, irrelevant. But could I remind your Honours of Mr Lay’s evidence where he says, if in doubt, he would do more. That, of course, is not referred to by Justice Wilson, but it is obviously relevant to the disposition of the case. Can we go then to paragraph [82] and [83] where his Honour identifies four possible presentations of the torque stripes? He says in paragraph [83]:

All of these contingencies were mentioned in the judgment.

And, if you go back to them, they are “never applied, and therefore missing”, “correctly applied, but broken”, “incorrectly applied, so as not to adhere to both the bolt” and the yoke, and then, finally, “so that the stripe could move with the rotating bolt and not crack”. Those are the four. The only reason we take you to this is that, again, our learned friends have said that Justice Wilson does not rely upon Mr Ogier’s evidence. But the four possibilities that are identified here include the last I have just taken you to which is footnoted – by reference to the trial judge’s reasons – to paragraph [150] which is the passage which deals with Mr Ogier’s evidence.

So, the extent to which Justice Wilson refers and relies as he does upon a possibility that the stripe could move and rotate with a rotating bolt and not crack – that is a misstatement of evidence, mind you – it must be a reference to Mr Ogier’s contamination theory. Then in paragraphs [84] and [85] ‑ ‑ ‑

NETTLE J: Before you go, might I trouble you, at [86] is the first – I beg your pardon – is the first sentence correct in saying that there was evidence given that there was a tool other than a torque wrench which was specifically mentioned in the manual by which one could check the torque because I cannot find it.

MR DOYLE: I do not believe there is one mentioned in the manual, to answer your Honour’s question. Your Honour will know there was evidence to this effect, that putting a torque wrench on it might serve no purpose, you would actually have to retorque it. And in the course of the case, a question arose as to whether you could just put a spanner on at one end and the torque wrench on the other or something and manipulate it. That is not in the manual, obviously, and I do not know of anything else that Justice Wilson might be referring to. Can I just deal with paragraphs [84] and [85]?

FRENCH CJ: Before you leave that question, I think there is a footnoted reference, is there not, to paragraph [44] in the trial judge’s reasons which seem to refer to a torque wrench.

MR DOYLE: Yes. Indeed, even I think ultimately the spanner was said to be one which had a torque facility on it. Ultimately, their Honours express a view about a torque wrench or spanner and it is unclear as to whether they mean a torque wrench and a torque spanner or a spanner which is not torque – it is unclear – the majority does in fact in the passage I am about to come to.

If your Honours would, as you have, read paragraphs [84] and [85]. It is obvious you can, of course, determine the torque by using a torque wrench. It was also right to say that there were perceived to be dangers rechecking every fastener, every bolt. Mr Cox expressed the view at page 279 of volume 1 that it is possible the LAME could do further damage whilst he is in there – the he could do more harm than good type of proposition. I am sorry, I should really take your Honours to that, volume 1, page 279.

GORDON J: What line is it, Mr Doyle?

MR DOYLE: It is line 18 to the end of the question so it is just five lines, “So, you have no opinion”, that question. Now, Justice Wilson says in paragraph [85] that there was:

no such disadvantage attached to the use of a simple, inexpensive spanner . . . and Dr Turnour . . . readily conceded that.

We would urge that is not in fact the way to read Dr Turnour’s evidence. If you go to volume 2, page 497, line 22, so when our learned friend tenders the spanner, what he readily conceded was the efficacy of – that is, you could detect the looseness of a bolt by the spanner. He was not asked and he did not readily accept that there were difficulties in doing so in terms of Mr Cox’s evidence that you might do more harm than good. But, of course, our primary submission is neither paragraphs [84] or [85] are directed to the question of whether torque stripes are themselves an adequate indicator of the possibility of bolt looseness. If they are, you do not need the spanner. If they are not, you need to do something, and those seem to be, with respect, the options.

His Honour – that is, Justice Wilson – deals with mere deterioration and incompleteness in paragraphs [88] and [89]. He says in [88], the:

manual did not instruct LAMEs that a deteriorated or incomplete torque stripe . . . should . . . be investigated –

That, of course, is the trial judge’s conclusion of what the instruction would mean to an experienced LAME. In any event, that was supported by the evidence to which we have already taken you.

His Honour refers in [89] to the manual being changed; that is a reference to the change from the description of the application of the torque stripe in change 21 to change 26. Again, the trial judge has already dealt with that. He construed 21 as requiring, in mandatory terms, the application of the torque stripe from the thread and bolt to the yoke, and that it required and even though it used the word “should” rather than “must”. There was, as the trial judge said, no ambiguity in the original version, so there is no point in it being further clarified in the subsequent version. At paragraph [91], the eighth point that Justice Wilson refers to is put in these terms:

in the context of manuals, the service manual for at least one other similar helicopter (albeit one without a flexplate) specifically required that the actual torque on critical fasteners be checked, with a torque wrench, at periodic services.

There is no finding by the trial judge that that one other manual describes a similar helicopter; nor, indeed, does the evidence support that conclusion. Can we ask you to go to, in volume 1, to page 230? At about line 12, you will see Mr Sofronoff refers to the manual for a Schweizer helicopter, 269C‑1. That is the manual with which we are concerned. If you go then to page 234 to line 40‑odd, Mr Orloff is being asked about provisions of that manual. You will see at the end of that answer he says:

This is a totally different helicopter.

So, his evidence is that it is a totally different helicopter. Then in the evidence of Mr Cox at page 281, if we can trouble you to read from line 5 to the end of the page and I will ‑ ‑ ‑

FRENCH CJ: What is the proposition rather than reading the whole page?

MR DOYLE: That it is a different designer helicopter. It is older technology which permitted torquing to only about 50 per cent of the magnitude of torque that a Robinson helicopter could be torqued to and, therefore, of course, you have to check its torque more frequently than a Robinson helicopter where the evidence was, from Dr Turnour, that if it was properly torqued it would not release. So, far from reference to what this other helicopter shows as being indicative of what should have been done here, it serves to highlight how this is just a completely different ‑ ‑ ‑

FRENCH CJ: Well, you say – I mean, your primary position is it does not matter because of the primary judge’s findings.

MR DOYLE: That is so. At paragraph [94], Justice Wilson says of the finding that the torque stripe was not present, that there was no evidence to support it. We have already taken your Honours to the evidence that does support that, including, as we have said, the circumstance that – I am sorry, I have taken you to all the evidence that I need to. Then at paragraph [96] of Justice Wilson’s reasons, can we ask you to read that but you will note that he says in the fourth line that the “possibility” he is there talking about was:

noted by the learned trial judge at paragraph [58] but not, otherwise, addressed –

and the possibility was:

that the torque stripe on Bolt 4 was present but had been incorrectly applied so as not to adhere to both the bolt and the fixed component –

That is the incomplete connection, as I have been describing it, and it is addressed at length in the trial judge’s reasons. It is hard to understand how that criticism of the trial judge is sustainable. Your Honours, I have spent enough on the breach question. Justice Holmes dissented. We, of course, adopt her reasons, that the trial judge’s findings were plainly open to him ‑ plainly right, in our submission ‑ but no proper basis was shown for departing from it. Your Honours, I was going to move to the second question ‑ ‑ ‑

GORDON J: Just before you finish with Justice Holmes, as she then was, it is not right in [37] though, is it, that the fact that their inspections were defective was not in issue? At the foot of 4964; this in the context of those pleadings that you took us to earlier.

MR DOYLE: Well, it was asserted they were defective – that is, the fact they did not detect things was not in issue; whether it was our fault or their independent fault was in issue.

GORDON J: Thank you.

MR DOYLE: I think that is the way your Honour’s reasons should be understood.

FRENCH CJ: How much longer do you expect to be, Mr Doyle?

MR DOYLE: Not terribly long, although it will be a quarter of an hour, I guess, your Honours.

FRENCH CJ: Court will adjourn until two o’clock.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1:58 PM:

FRENCH CJ: Yes, Mr Doyle.

MR DOYLE: Thank you, your Honour. a Before I move on to causation, can I revisit an answer I gave to Justice Nettle earlier concerning paragraph [86] of Justice Wilson’s judgment. There is in the manual at page 1229 of volume 3 a reference at about line 25c to “special adapters”, et cetera.

NETTLE J: You would actually use those with a torque wrench, would you not?

MR DOYLE: Yes, it is a special adapter to a torque wrench. That is, on the first of the little drawings, a “Short Open End Adapter”, and is the one to which Mr Gilmore refers to in his reports and to which the trial judge refers.

NETTLE J: But what Mr Justice Wilson said about it appears to be wrong. He appears to conceive, though, of it as something as an alternative to a torque wrench.

MR DOYLE: That is certainly not what Mr Gilmore says and I will give you the two passages in his reports: volume 2, page 728, lines 38 to 42, and volume 3, 1109, line 25 – I will not bother to take your Honours to this – to say that the adapter would permit you to torque the bolt without removing the palnut.

NETTLE J: Thank you.

MR DOYLE: Can I move on to causation, which is the second of the errors, in our submission, which the Court of Appeal made.

There are very limited findings. The trial judge obviously did not make a finding about causation. The President did, in paragraph [23], to which I took you in her reasons before. Justice Holmes was to the contrary; that is in paragraph [40] of her reasons. Justice Wilson did not make an explicit finding, although the effect of the judgment must be that he has formed a view that causation has been established.

Your Honours, there are three questions on this part of the case. The first is whether it was necessary for the respondents to establish causation. I will not trouble you; the answer is obvious – yes, they ought to have. We have given you in our submissions, and indeed our learned friends in theirs have given some authorities which establish that.

The second question is whether the evidence in fact established causation. That arises on two levels, in our submission. The first is that the majority did not actually make a finding as to the state of the torque stripe, but rather, in the passage I have taken you to at paragraph [94] of Justice Wilson’s reasons, spoke of:

whatever its actual state, it was not such as to alert any LAME . . . to the fact that the bolt was loose, and rotating.

That is developed in other passages of his Honour’s reasons that I will not trouble you with.

Now, a generalised statement to that effect, of course, is not sufficient because there are a number of states that it could have been in which would have alerted the LAMEs to its condition and I have taken you through all of that earlier in the day. Critically, both Bray and Fisher have said in passages I have taken you to that if the torque stripe appeared as deteriorated they would apply a torque wrench.

The ultimate case which is put against us is that the manual should have told them to apply a torque wrench or a spanner. But there can be no causation of loss if the appearance of the torque stripe was one of deterioration, or something worse; no question of causation for the manual not to tell them the very thing which they already said they knew they would do. If we can take you to volume 11 of the book, to page 4921 – I should start at 4920. This is in the course of our learned friend’s submissions.

GORDON J: What is this relevant to, Mr Doyle?

MR DOYLE: Causation.

GORDON J: Why are we going here? What is the proposition we are getting from this transcript?

MR DOYLE: To show that our learned friend’s contention on causation was the torque stripes appeared in a deteriorated form and they were simply ignored.

GORDON J: Thank you.

MR DOYLE: If you read from line 38 to line, I suppose, 12 or 13 on the next page - I am sorry, 38 on 4920 to line 12 on the next page. So the case that was put on appeal is one which ought to fail on the respondent’s own evidence which they led from Bray and Fisher, but had it appeared in that form they would not have ignored it, they would have done something else.

Your Honours, the second aspect in which the evidence fails to establish causation is that if the manual had contained the direction the respondents now say it should have, the respondents have to establish on the balance of probabilities that it would have made a difference, that is, that the LAMEs would have followed it, and there is no evidence to that effect, that is, neither LAME was asked that question: “If it contained this direction what would you have done differently?”

Their evidence in fact shows that they did not conduct their maintenance inspections by having immediate reference to the manual. In respect of Mr Bray, that is in volume 1, page 165, line 40 through to line 20 on the next page, and Mr Fisher at 173, lines 20 to 30.

So our submission is that it remains a matter of speculation. There is no evidence which could have been led but was not to show that had the manual contained the additional direction that is now pleaded against us – asserted against us they would have followed it.

Your Honours, the third issue of causation is whether the appellant conceded the issue of causation on appeal. It did not, in our submission. The issue of causation was raised in the appeal. Can I ask you to go back to volume 11, please, to page 4867? This is the start of my client’s submissions on appeal. Paragraph 1(d) we would ask you to note. Then if you go to paragraph 54, you will see that the notice of contention – at least as concerns paragraphs 2 to 7, and 7 is the one that is relevant – are said to be dealt with in the submissions already made. So the causation submissions are said to be dealt with already in dealing with our learned friends’ appeal.

If you turn back to paragraph 25, that would be sufficient. There are a number of these paragraphs which we have pointed to in our written submissions, but I would ask you to go to paragraph 25 where you will see, fourth line down:

neither of them necessarily followed the manual in carrying out 100‑hourly inspections ‑ therefore, anything that might otherwise have been written in the manual would not necessarily have been followed by them; and each already knew what the appellants contend the manual should have said.

If you go in the same volume to page 4897, you have our learned friend’s submissions in reply on appeal and you will note in paragraph 29 that they too accept that the issues raised by inter alia paragraph 7 of the notice of contention arise in respect of the substantive matters which were raised on their appeal.

The argument before their Honours included argument about causation. We have set that out in our primary written submissions before you and I will not trouble to take you through that now. The only basis on which it is suggested that there was a concession about causation arises at pages 4944 and 4945 of this volume. You will see that before the adjournment Mr Bain says that he will be less than half an hour and then he said:

I also intended to say some things about the notice of contention to indicate what perhaps doesn’t have to be dealt with in terms –

et cetera. Then if you come to the bottom of that page, the very last line:

May I say of the notice of contention, your Honours, having reviewed it over lunch –

and your Honours can read that passage. The notice of contention is in the same volume - you need not turn to it – at page 4863. The paragraph numbered 7:

That it was open to the Supreme Court to hold, and it ought to have held, that the cause of the plaintiffs’ loss and damage was the negligence of one of the LAMEs who had carried out one of the last two 100‑hourly inspections . . . not any inadequacy (pleaded or otherwise) in the Maintenance Manual.

It is clear Mr Bain identifies that grounds 8 to 11 are not being pressed – they are irrelevant for these purposes – and says of ground 7 that it is not necessary to decide but says that on the basis that the appeal itself has raised questions which overlap with it, of what is required to verify security and the adequacy of that instruction and otherwise confined to the point that was agitated today – that is what he says.

So we accept there is a degree of imprecision in what fell from Mr Bain, but it cannot be said to amount to abandonment of the issue of causation because he said it is pressed, because it arises out of the matters that have been agitated on the appeal – and that is consistent with the form of the written submissions that both parties had given – and it cannot amount to a concession, which it must if this point is not open to us, but it cannot amount to a submission, that Bray and Fisher would have followed the manual whatever it said. There was no such concession.

Now, we have, as I have said, addressed all of this in some greater length in our primary submissions, so unless there is any particular assistance you want to me to take you through – that last point is correct, that it was plainly a matter that should have been dealt with by the Court of Appeal. They did not at all, and they did not give reasons for the way in which it was dealt with. The burden was on the respondents, our learned friends’ client, to establish causation. In the two respects that we have identified, they failed.

They failed in the second of the respects to show that Bray and Fisher would have followed the manual, but more importantly, they failed to demonstrate the actual condition of the stripe was such that Bray and Fisher in any event would not have applied the spanner in the way that it is alleged that the manual should have told them to do it.

The outcome, in our submission, is that the Court of Appeal erred both in terms of overturning the trial judge’s findings of breach and, if otherwise that was correct of them to do, in making a conclusion about causation which was not reasonably open on the evidence. Those are our submissions.

FRENCH CJ: Thank you, Mr Doyle. Yes, Mr Sofronoff.

MR SOFRONOFF: Your Honours, we hand up our oral outline.

FRENCH CJ: Yes, Mr Sofronoff.

MR SOFRONOFF: Your Honours, in our respectful submission, it is necessary, in order for the Court to apprehend the factual issues that have been raised by both sides, for your Honours to be informed in a little more detail about the physical nature of the flexplate and the problem that arose. Fortunately, that will not take too long.

Your Honours, both parties at the trial tendered mock‑ups of the flexplate assembly. I do not know that they are materially different. As your Honours would appreciate, unlike in an aeroplane where the engine turns in a plane and the propeller turns in the same plane so a shaft between the two need not deviate, in a helicopter, the engine is somewhere in the helicopter but the rotor will spin in a horizontal plane in relation to the ground.

In the case of a Robinson, the engine within the helicopter – and that engine is just behind the passenger compartment – spins in a plane so that the shaft that comes out of the engine then has to be transported at a 90 degree angle vertically to the rotor.

FRENCH CJ: So the spin axis is parallel to the ground. That is what you are saying, is it?

MR SOFRONOFF: Yes, yes. As a consequence, there is a complicated mechanism to achieve that. One of the consequences of the design of the Robinson in particular is that the shaft emanating from – I will call it the 90 degree angle joint, to make it understandable – the shaft emanating from the 90 degree angle joint and the shaft emanating from the engine will, for reasons to do with the control of the helicopter, not always be aligned with each other. They may flex upwards, downwards and sideways depending upon what the controller of the helicopter is doing.

As a consequence, it was necessary for the designer of the helicopter to incorporate the flexplate – in fact I think there were two, the rear and the forward – we are concerned with the forward flexplate. The flexplate, as its name suggests, and as your Honours will see from exhibit 14 in due course, is a thin, four‑pointed, star‑shaped metal plate and two of those stars will be attached to a thick piece of metal attached to one shaft and the other side of the star will be attached to an identically similar thick piece of metal attached to the other plate.

The plate in the middle, the flexplate, is thin so that it can actually bend with the consequence that when the shafts are not aligned the arms of the flexplate can flex and so the structure does not break. The consequence is, if your Honours can see the model, that the flexplate can allow this kind of a movement on the part of one shaft while the other shaft retains its position without structural damage.

As a consequence, as your Honours would gather, it is essential to ensure that the flexplate itself does not break, it being a very thin piece of metal. The way Robinson has designed the flexplate is first that it has the requisite thinness that it can actually flex; secondly, the bolt assembly on each of the four points of the star have been determined by Robinson as requiring a particular size of bolt to go through from one side to the other.

On the side at which the head of the bolt will appear there will be a washer that finds it place between the bolt and the flexplate. The flexplate itself has a washer attached to it by a resin. On each side of the hole in the flexplate there is a washer which is permanently fixed to the flexplate by resin. It is there because the flexplate was thought not to be strong enough, having regard to the thinness required, on its own to withstand the forces being applied. As a consequence, a washer was glued to each side of the flexplate at the site of the hole so that there artificially the flexplate is thicker than the rest of the flexplate, that being the point at which the greatest pressure would be applied in use as this case has shown.

So the bolt is put in with a washer attached to it, so now there is the bonded washer and a free washer on one side. On the other side there is the bonded washer and there is – I cannot remember now – one or two other washers that are required, and then the nut is applied to it. The metallurgical requirements are such that the quality of the bolt in terms of the quality of the metal and the character of the nut itself that is applied to it is specified with absolute precision.

In addition, whereas one would normally think as a lay person that you tighten a bolt, a nut on a bolt, to a position that you judge to be enough, the degree of tightness is defined in the manual in terms of foot‑pounds and different fasteners have different requirements. The way in which that is measured is by the use of an instrument called a torque wrench which is simply a wrench on which there is a mechanism so that as soon as you exceed the foot‑pounds or the inch‑pounds of torque required, the wrench will snap into free movement. So as soon as you have set the requisite degree of tension – be it 100 or 200 – if you go half a pound above 100, the wrench will snap free and you will be unable to torque the nut beyond the required. You will, in fact, torque it to exactly what is required.

So, the manual, as your Honours have heard, specified particular degree of tension for the nut that goes on the bolt – and I think it was 240 foot‑pounds. Once that is done, there is a risk that the nut that has been applied might come off. This is common not only to this part but to any part on an aircraft where a nut might come off through vibration or some other agency. If a nut was slowly becoming looser, its state might not necessarily be observable to the naked eye. It might have moved half a thread or a full thread and even an experienced person might not notice that that has happened.

In order to guard against that possibility, a second nut is put onto the bolt and screwed down to its own particular tension. The second nut is called a palnut. It is made out of a much flimsier material and it is torqued to a much lesser degree of force. The effect of screwing a palnut onto the existing nut is that it is impossible for the primary nut – which is the one that everybody is interested in that should not move – for it to move, without affecting the flimsier palnut – so the flimsy palnut becomes an indicator of movement. That is why it is put there.

As an extra precaution against the possibility of movement, it has, as the evidence showed – it became a practice in the industry to paint a strip onto the assembly which, when it dries, becomes brittle and is likely to break if there is any movement at all and, hence, the evidence that your Honours have heard about a torque stripe cracking. That is why it is called a torque stripe because it is an indicator of the application of torque in the wrong direction.

At the trial, the evidence was, as my learned friend explained to your Honours, uncontroversial that somebody had, not Robinson and not, it seems, the two LAMEs who worked on the aircraft afterwards – but somebody had, before that time, disassembled at least one of the bolts – the relevant bolt, Bolt number 4 – had reassembled it and had used the wrong washer, the wrong thickness washer with a consequence that he did not – or it was not possible to torque the assembly of Bolt 4 to the required 240 foot‑pounds. So it was, in the sense in which we are discussing it, loose. That much is common ground.

One of the indicators of looseness, as I have said, is the movement of a palnut. Another is the breaking of a torque stripe. There may be two other indicators of a lack of integrity in the flexplate itself not necessarily related to the nut and bolt - could I call it “the fastener” because they use that expression in the manual to describe nuts and bolts - that might not necessarily be related to the fastener but could be, namely, the flexplate itself might, through metal fatigue, start to break. If it does, it may show two indicators or three. One is that the bonded washers that I have referred to may debond. The manual prescribes that if the bonded washers debond the flexplate is unairworthy and has to be replaced.

The second thing that might happen is that for some reason – and it happened in this case – there might become a turning of the fastener so that there is friction between the fastener and the flexplate grinding away the metal of the flexplate within the hole. As a consequence of that you would expect the metal filings might be visible. That is referred to as fretting dust and LAMEs are instructed in the manual to look for fretting dust.

The third thing that might happen is that a crack might appear anywhere on the flexplate but, relevantly in this case, at the hole through which the fastener is assembled and any crack within that, caused for any reason, could then propagate until the flexplate itself fails, as happened here.

What happened here was that because of the looseness of the fastener the fastener was able to rotate within the hole itself and grind away a little bit of the metal fabric of the flexplate and because the flexplate is designed to ensure that the fastener clamps the flexplate with the requisite degree of tightness to the yoke on each side, it follows then that there is not what is described as sheer force being applied to it. If the fastener is permitted to rotate the consequence might be – and it was in this case – that, instead of force being applied down the surface and the interior of the flexplate, it is applied in a way that the flexplate was never designed to withstand, with the result that one of the arms might crack.

In this particular case, the rotation of the bolt that was too loose caused fretting, caused cracking, caused debonding of the washers. The cracking began, then propagated in two directions until, on the day of the accident, the flexplate broke. The consequence is an absolute lack of control – I think I am right in saying it is irretrievable lack of control.

There are forms of engine failure where, even in a helicopter, it can glide to safety but this is not one of them. Hence the part is described as a critical part and the fastener is described as a critical part, as your Honours have heard, in the manual, something that involves the potential for property damage or personal injury.

One of the consequences of the flexplate being a flexplate is that at various stages of the operation of the helicopter the shafts, as I have said, will be out of alignment with each other and designedly so. But one of the consequences is that, as your Honours will see in this model, three of the fasteners have been torqued to the required 240 degrees and they are immoveable, except with the use of a tool. The fourth has been left loose. I do not say that it is loose to the degree in the accident fastener, but it is loose. So, your Honours, if your Honours will in due course inspect this you will see that you can turn it.

Now, one of the consequences of the use of the flexplate to deal with deliberate misalignment of the two shafts is that when you hold the shaft in a particular position, one of those in which it will be inevitably from time to time, tension is applied through the flexplate to the loose bolt and it becomes harder to move. At some point it would become impossible to move without a tool.

Certainly it can be seen that it can very readily become immoveable to the point that you cannot move it with your fingers and even a small amount of pressure applied with a small wrench might not move it. As I say, this model does not purport to have the lack of tension precisely in accord with the accident helicopter because nobody actually knows that figure.

So what I would ask your Honours to draw from the model and the evidence that described the model is that the flexplate is a critical part, the fasteners themselves critical parts. They are designed by virtue of the metals used and also by use of the bonded washers to withstand failure. They are protected against failure in terms of indicia by the palnut which, if it was missing, would potentially indicate a very serious problem, and by the torque stripe, as well as by the possibility – not the certainty but the possibility of seeing fretting dust or seeing cracks.

FRENCH CJ: Does this go to the content or the intensity of the warnings to be given in the manual?

MR SOFRONOFF: The content, your Honour. The manual itself prescribes the manner of assembly when that is required, and from time to time it is required, and it seems this flexplate had to be disassembled and reassembled at a point in the servicing of the helicopter before it came into the ownership of the plaintiffs.

Could I ask your Honours to go to volume 3 of the appeal book? If your Honours would go to page 1228 of the appeal book, this is a general section not limited to the flexplate. It is a general section concerning torquing requirements of fasteners. So step 1 is the fastener by which is meant, as your Honours will see, the nut and the bolt itself and its accompanying washers:

Fasteners shall be torqued to standard dry values listed in Section 1.320 –

Section 1.320 lists all of the torques for particular fasteners throughout the aircraft. The second step in the paragraph below the table:

A secondary locking mechanism is required on all critical fasteners. B330 stamped nuts (palnuts) serve as the secondary locking mechanism in most areas –

as here –

and are torqued per Table 1.

The first thing to do in reassembling the fastener is to apply the nut and the bolt and the accompanying washers, and torque the nut to its appropriate value. The second thing, having done that, but only after having done that, is to apply the secondary locking mechanism – the palnut – and then to torque that to its appropriate value. So that is the third step - first, apply fastener and torque; two, apply secondary locking mechanism; three, torque the secondary mechanism. The final step, in the subparagraph just below the caution:

Torque seal (paint) is applied to all critical fasteners after palnut installation in a stripe across both nuts and exposed bolt threads.

The only purpose of applying a torque stripe – there are two purposes on the evidence. One is it may serve as an indicator of a problem, and the second thing is to signify that somebody has torqued this in the belief that it is the correct torque, because there is no purpose, as I think one of your Honours observed, in applying paint other than to signify that you believe he had done it to the correct standard. You would not undertake that step unless you have screwed in the bolt and the palnut.

In the trial, the issues between the parties involved these facts raised by the appellant. The first was that the LAMEs and the pilots should have seen the cracking that emanated from the hole. The second is that they should have seen the fretting dust that resulted from the rotation. The third was that they should have observed the palnut missing, because on the appellant’s case, it had never been applied, and the fourth was that the state of the torque stripe should have alerted a reasonably competent LAME or pilot to the lack of integrity in the fastener.

His Honour found – and this was hotly contested at the trial, but not reagitated on appeal in the Court of Appeal – that the palnut had been applied, and therefore, absence of a palnut would not have been an indicator of lack of integrity. His Honour found that fretting dust would not have been visible to any reasonable inspector, and this is because in the location in which the flexplate is found, there is a lot going on, apart from the flight of the helicopter itself; there is a lot of rotating machinery. This helicopter was used in the Northern Territory in cattle country, and it was dusty work. As a consequence, his Honour concluded that the indication in the manual to check for fretting dust could not have been useful in this application.

Thirdly, his Honour concluded that the cracks would not have been visible until it was too late – that is, on the accident flight – because they were hidden by the bonded washer. I should have mentioned another indicator; the debonding of the bonded washers that occurred was relied upon by the appellant as an indicator that should have been picked up, but it quickly merged in the evidence, and his Honour found that the debonding of the washers would not have been detectable without disassembly of the flexplate, its examination, and then its subsequent reassembly after the examination was complete.

Then, his Honour came to the torque stripe with which this appeal is concerned. But one of the consequences of those findings about the debonding and the cracking was that his Honour concluded that the only way to ensure against cracking at the 100‑hourly service and the only way to ensure against debonding – each of which would render the flexplate un‑airworthy and render the helicopter un‑airworthy – would be by removing the flexplate, disassembling it and examining its parts before reassembling it.

One then comes to the torque stripes and their significance. Your Honours have heard submissions this morning that torque stripes fall, in the context of this case, into categories of present and intact, entirely absent, present but broken so as to show a problem or a potential problem, deteriorated or applied in a way that would not involve cracking even if the fastener was rotated. They were the five possibilities in the relevant universe of this case.

His Honour had before him – the Court of Appeal had before their Honours – photos of Robinson 22 helicopters and this accident helicopter, that is to say, identical models to the accident helicopter – showing the state of torque stripes in ordinary use. Could I ask your Honours to look at that? Your Honours will find them in volume 8, I think – yes, volume 8.

If your Honours would go to page 3277, the way the book of photographs was assembled was by first photographing the relevant helicopter. At 3277 and 3278, you see a Robinson 22 helicopter identified by its registration letters on page 3278. Then, what follows is a set of photographs – in many cases of flexplates within the helicopter and then other cases of other parts as well showing the state of torque stripes.

So, your Honours will see, for example, at 3280, the arm of a flexplate with a smudge of yellow paint that might have been an old torque stripe and some evident white paint. If your Honours go to page 3281, on the same helicopter, on, I think, a different part, there is a remnant, a residual remnant of a torque stripe and if your Honours go to 3286, there is a photograph of a white torque stripe which, however, does not extend to the yoke.

We see the palnut at the foot of the photograph, at the bottom of that assembly - it is called a castellated nut for obvious reasons – and extends down against the nut proper, the bonded washer and the grey, slightly rusty, part is the yoke and we can see that that assembly could rotate without cracking.

Your Honours will see the same assembly on the next page, 3287. Page 3294 shows the registration number of the next helicopter and at page 3297 there is an evidently incomplete torque stripe. Page 3298 appears to be one with nothing on it at all. There are some, I think, of some quite decently applied torque stripes but a lot that are not.

That set of photographs was used and tendered in evidence so that his Honour the trial judge understood, he having also examined, I think, two helicopters during the view, the real world of torque stripes and how they fare in operational use, which is not determinative but it was a material matter for his Honour and for indeed, with respect to your Honours, to know about.

The consequence is that the world is not neatly divided into intact and perfect torque stripes, entirely absent torque stripes, torque stripes with a neat break signifying a problem and deteriorating torque stripes which, as we understood the appellant’s submissions, were offered as mutually exclusive possibilities. Instead, there is a wide variety of states of torque stripes which, if one were to regard the ones that I have shown your Honours – and I obviously did not take your time to look at all of them – might suggest as other evidence said, that they are not much of an indicator of potential failure.

This is an appeal, in our respectful submission, which is from a case in which the findings of fact were based upon inferences. Nobody could remember seeing the actual state of the critical fastener at the time, so an inference was sought to be drawn from scientific evidence, on the one hand, and expert evidence about how helicopters are put together and how fasteners are assembled. That included expert LAMEs, expert metallurgists, expert technical advisers and also the manual of course.

In addition, the evidence included a second category, which consisted of the people who worked on or flew the helicopter, none of whom, admittedly, could remember a particular inspection, for understandable reasons, but who were able to give evidence of their normal procedure and about which his Honour the trial judge made findings, none of which were impugned on appeal in a sense which I will describe.

There was a third category of evidence, which was the documentary records which in this field of aviation, shadow everything that is done. As a consequence, we begin with the manual and its requirements. The second document is the pilot’s operating handbook, with which the mechanic is not interested but the pilot is interested. That prescribes not only data about the way the aircraft works but also prescribes a checklist of things to look at before the first flight of every day. Those are the two documents that emanate from Robinson, and indeed for any properly constructed aircraft.

The third category comprises a document that a pilot signs every time the pilot flies the aircraft for the first time on a day called a maintenance release. It is a document required by Australian law to be issued by a LAME who performs relevant work on the aircraft after 100 hourly to certify that the aircraft is in order. That document is then kept with the aircraft and a pilot is obliged to sign it signifying the pilot’s view of the airworthiness of the aircraft before flying it. Consequently, a signature on such a document followed by flight is an assertion by the pilot that the pilot has undertaken the checklist and has formed that conclusion.

The fourth category of document then is the set of maintenance documents prepared by a LAME when undertaking relevantly 100 hourly, and I will show your Honours those. It is a checklist which lists every single step that the LAME must take in accordance with the manual’s procedure for carrying out 100 hourly, including the inspection of the flexplate. The LAME then signs that document accompanied by his or her identification number as an assertion that the manual has faithfully been followed and that nothing has been found that is airworthy or if it has it has been repaired.

In this case, we also have a document which certifies in the same way that the inspection in each case was carried out in accordance with the manual. So that was the evidence that his Honour had and that the Court of Appeal had concerning the state of the torque stripe.

The allegation made by the respondent plaintiffs was in the statement of claim that the manual should have, as the only failsafe method to verify security of this critical part, directed the disassembly and reinspection and reassembly of this part on every 100‑hourly inspection, and that the manual did not contain that and as a consequence the defects were not discovered.

Your Honours have seen the pleadings, and I may come to them in due course, in which the allegation is made that the manual should have contained that instruction, did not, and as a consequence the two LAMEs did not detect the defect, by reason of the absence of that instruction.

In answer to that, the defendant, as your Honours have seen, and as I have sought to explain, answered that allegation of lack of adequate measures in the manual to detect the defect in the flexplate by pointing to the requirement to check for cracks, which indeed is in the manual, the requirement to check for fretting ware, which is in the manual, the requirement to check for the bonding of the bonded washers, which is indeed in the manual, but each of which in due course his Honour concluded were inadequate instructions because one would need to disassemble the flexplate in order to detect cracks or debonding and the fretting ware dust never rested in a way to be seen.

Fourthly, that a LAME should be alert for missing palnuts – now, that was not said in the manual but it is common ground that a LAME would be alert for missing palnuts because that is why you apply palnuts so you do not need an instruction for that. Finally, it was said that a LAME should be alert – although the manual did not say so – for broken or missing torque stripes, not deteriorated torque stripes, broken or missing torque stripes.

One can understand why in the state to which aircraft come, as shown by the photographs and as the oral evidence explained, a merely deteriorating torque stripe may not be an indicator that anybody would pay particular attention to without more. So the defence raised those matters.

Cracks, threading where debonding, and missing palnuts were rejected by his Honour and that left the torque stripes. The manual itself was silent on the question of deteriorated torque stripes and as a consequence the cross‑examination of the respondent’s expert LAMEs restricted itself to broken or missing torque stripes.

Could I ask your Honours to look at appeal book 1, at 144? Could I tell your Honours that the witness being cross‑examined at page 144 is Mr Lay. Mr Lay is a pilot with thousands of hours in helicopters, including in the United States Army, at war. He is also a highly experienced LAME. I say highly‑experienced because at the time of the trial I think he was in his late 60s, perhaps early 70s - I am not sure. He ran a business which did, among other things, service helicopters including Robinson 22 helicopters.

So at line 40 on page 144 – after the reference to the absence of a palnut – he was asked about broken torque stripes and he said that if it is broken it would be an alert. Then he pointed out that if it had a hairline crack:

but it still looks like it is valid –

then he might let it go:

If it was misaligned –

then he would react in a particular way. He was then asked – a suggestion was put to him that:

the absence of a pal nut, for example, or, indeed, a broken torque stripe –

would require immediate investigation and over the page, after qualifying the question, at line 10:

If it looked like the paint had cracked or broken on the bolt and I wasn’t sure, then I would just remove the pal nut and check the torque and then reapply the torque striping. If it looked like it had fretting –

he said something. At line 20:

if we can put aside misaligned torque stripes for a moment – I take it if there was an absence of a torque stripe, complete absence of a torque stripe where there ought to be one, that would be also an alert for you?

He said it would. So he was cross‑examined on the footing that what the defence sought to raise was of a significance of an absent or missing torque stripe and that is consistent with paragraph 32(g) of the defence which raised those two conditions.

At page 157, Mr Ogier was cross‑examined. He was an expert called by the respondent, although his licence had lapsed by then because he had for the subsequent years worked for CASA in its regulatory functions because of his past experience. He did not practice, but worked within the industry for the regulator. If your Honours would go to 157 at line 20 he was asked by way of preliminary, how do you check the torque and he said you use a torque wrench.

Could I just pause, your Honours? I have said that a torque wrench is a tool that contains within it an instrument that will make the force break once the required torque has been exceeded. One distinguishes that from an ordinary spanner or wrench, which is a familiar tool we have all used from time to time. Then at line 30:

Would you agree with me, Mr Ogier, that a misaligned torque stripe is something that would invite further inquiry –

and he agreed. At the foot of the page:

I take it on the topic of torque stripes being misaligned, if we go one step further and there’s no torque stripe at all, that would also cause you concern?

He agreed that it would. The appellant did not plead or allege at the trial, or even on the appeal, that the manual explicitly, or even implicitly, required a LAME to use a torque wrench or any wrench as a matter of course to test for the integrity of the flexplate. It relied upon the five indicia that I have described. Its experts’ evidence, Mr Boyle and Mr Cox, was consistent with its pleaded case. Can I give your Honours the reference to that - appeal book 3 at 1148 to 1164.

FRENCH CJ: What is the significance of the variable quality of torque stripes which you took us to, in terms of the adequacy of the manual? Are you saying that the manual, to the extent that it relies upon the torque stripe mechanism, is inadequate because it does not engage properly with the realities of life?

MR SOFRONOFF: Yes, as explained by the witnesses, not just as a matter of ‑ ‑ ‑

FRENCH CJ: Yes, I understand that.

MR SOFRONOFF: In particular, and I will come to the evidence in a moment, there was a set of different views about what you do with torque stripes in particular states. One of our LAMEs – Mr Bray, I think – said if he saw a broken or missing torque stripe, or at least a broken one, he would react by using a torque wrench appropriately, and that if he saw a deteriorated one, he began, in the passage your Honours have seen to which I will return, to say “well, if it looks all right, otherwise” but then he said “but you would still use a wrench”, by which he meant not a torque wrench, but a spanner, and he described it as he would apply a small amount of force to the nut to see if it was loose or not.

The other LAME just said if it is deteriorated, you might take it further, but you would not use a torque wrench to test it, because it seemed to be common ground that to apply a torque wrench will tell you that the bolt is tight, but it will not tell you anything about the state of the flexplate. To apply a spanner will tell you that it is tight, but will not tell you if it is tight enough.

So Mr Lay, the American gentleman – LAME - I spoke about a moment ago, said that before this case came to his attention through his engagement as an expert, if there was a deteriorated torque stripe and there was nothing else to indicate a problem he would simply repaint the torque stripe. Mr Ogier’s evidence I think was to the same effect. If, however, Mr Lay saw a break or anything to alarm him further, then he would go much further.

FRENCH CJ: Or a slapdash - if I can call it that - torque stripe which did not do the job prescribed by the manual.

MR SOFRONOFF: I cannot answer that directly, your Honour, because the evidence was that everybody had idiosyncratic views about how to react to torque stripes in a state of deterioration. One of the complaints that the respondent made about using this as an indicator lay in just that, that it left it up to the judgment of the individual LAME what to do with a deteriorated torque stripe, which were on the evidence ubiquitous. So it may be an indicator but it may not be an indicator or it may be ignored. Lay said until this case he would ignore it. Now he takes the step of applying at least the torque wrench before doing anything else.

BELL J: Just a few moments ago you referred to your pleaded case that it was necessary for the manual to require that a torque wrench be used. As I understood it, that was not the case that was maintained at the hearing; it was on your case. Am I right in believing that it was sufficient that one used a spanner to test?

MR SOFRONOFF: No. The way the case was pleaded and put was that it required disassembly and reassembly but what was put was that at least you would direct people to use a spanner.

BELL J: Your case was that it was sufficient had the manual had an instruction to test the looseness or otherwise of the bolt with the use of a spanner.

MR SOFRONOFF: Properly used. I add the word “properly” as a qualification for this reason. I had better take you to the evidence of Mr Bray.

NETTLE J: Can I just understand, does that mean that you have stepped back a bit from the pleaded case to a lesser case during the course of the trial?

MR SOFRONOFF: Could I check that, your Honour? I do not want to give a glib response. My recollection is that our case was that you would disassemble it. I am not sure whether we ‑ ‑ ‑

NETTLE J: Do you maintain that?

MR SOFRONOFF: We certainly maintain that. I am not sure whether the use of the spanner which we got ‑ a $5 spanner from Kmart and I put it to one of the witnesses, “You could’ve used this and it would certainly have found this defect” – whether that was used merely forensically or whether we were prepared to run on that. Could I just get that checked so that I give your Honour an accurate answer?

NETTLE J: Yes, thank you.

MR SOFRONOFF: The reason I qualify it is this, your Honour. Mr Bray, at volume 1, page 164, said just below line 10:

So long as the torque stripe is still there and not broken, it shouldn’t be a problem but you would still check the torque on that bolt if it was the critical part.
And what would you do to check that torque?—I would simply put a spanner on the head of the bolt and apply a small amount of force.

Depends what you mean by “small amount of force” of course because, as the evidence showed, and I will give your Honours the reference to it, the helicopter in its resting state when being examined by a LAME has the clutch which connects the rotor to the engine disengaged. One of the consequences is that the flexplate then drops within the assembly. That can be replicated with this model – this cannot be dropped but this can be raised. If you raise the shaft, that is if the flexplate itself drops, tension is applied so that you can no longer turn the loose bolt easily.

BELL J: Mr Sofronoff, was this taken up with the witnesses?

MR SOFRONOFF: Yes, yes.

BELL J: So was it taken up with Mr Bray that depending on ‑ ‑ ‑

MR SOFRONOFF: No, it was not taken up with Mr Bray.

BELL J: Or Mr Fisher?

MR SOFRONOFF: Or Mr Fisher. It was taken up with the experts concerning the traps that exist within the mechanism because of its nature and the effect of the torque and ‑ ‑ ‑

NETTLE J: Mr Orloff said he disengaged it so as to avoid that problem, did he not?

MR SOFRONOFF: I do not recall that evidence, your Honour.

NETTLE J: He was also a maintenance man, he had qualified on the run, as well as being a doctor of physics, as I recall, and he said the way he avoided it was by disengaging the clutch or some such thing.

MR SOFRONOFF: I do not recall that, your Honour, but I will take your Honours to the evidence concerning the – and in any event, your Honours can see for yourselves when you look at this that that is indeed what happens.

NETTLE J: I am sorry, I know you are going to check into this, could I just be clear where we are? Are we still at the point where you say that the only thing – that nothing short of disassembly, checking and reassembly, would have been an adequate direction in the manual and there was a breach of duty and care in failing so to advocate.

MR SOFRONOFF: Yes.

NETTLE J: Because that does not appear to be the case considered by the Court of Appeal.

MR SOFRONOFF: In the Court of Appeal, if your Honours would go to the part of the transcript in the Court of Appeal that my learned friend took your Honours to a little while ago in volume 11, if your Honours would go in volume 11 at page 4924, just below line 20:

So your position was just you always have to apply a torque wrench and the manual should’ve said that?

The President then said something. Just below line 30, I describe it in the general way and at 4925 – I had better go to the pleadings because I am referring to them but I am not reading them out.

BELL J: But at this stage we are interested in understanding the case in the way that it was left at trial and then in the Court of Appeal, as distinct from the pleadings.

MR SOFRONOFF: I understand. The way the case was argued in the Court of Appeal – your Honours will see at 4924, at the top, after Justice Holmes asked me about torque stripes, she then said:

Or did you just say you always have to check with a torque wrench?
MR SOFRONOFF: Yes, that’s right. That’s what we did say.
HOLMES JA: Well, why are we worrying about torque stripes, then, if you always have to check with a torque wrench?

As I tried to explain, finally, on page 4295, because it was raised as a defence ‑ ‑ ‑

NETTLE J: That is, checking with a torque wrench, as opposed to disassembly, checking, reassembly and re‑torquing?

MR SOFRONOFF: Yes, although our pleading and our case remained, but that is the only ‑ ‑ ‑

NETTLE J: I follow. Just to reiterate the point made by Justice Bell, it appears at the moment, as presently advised, to have slipped from that to being a case of that you needed to advocate to check with a torque wrench simpliciter.

MR SOFRONOFF: Excuse me, your Honour, that will be answered if I just find our submission on appeal, which is here. If your Honours would go, in that volume, to page 4663. There is a passage there, but I will just find a better one.

BELL J: The submissions at 4663 are the submissions on your client’s behalf at trial. Is that right?

MR SOFRONOFF: No. I think in the Court of Appeal, your Honour. No – at trial, your Honour, yes.

GORDON J: At 4653 there is a breach of duty set out, which refers to a number of aspects in which the manual failed. It starts at 4652. They are in varying versions – I withdraw that – in (d) is the removal of the secondary palnuts and the re‑torquing of the bolted joints with a wrench, which would not seem to go so far as what Justice Nettle put to you.

MR SOFRONOFF: Yes.

GORDON J: Then in (e) for the flexplate to be removed for the bonded washers and then in (f) we are back to fretting.

MR SOFRONOFF: Yes. The relevant pleas, for present purposes – the relevant case, for present purposes is that contained in paragraphs 5(d) and (e).

NETTLE J: Yes.

MR SOFRONOFF: Yes.

NETTLE J: But it is (e) that alone specifies the need to disassemble, check, reassemble.

MR SOFRONOFF: Yes, but could I ‑ ‑ ‑

GORDON J: Does it? Does (e) require removal?

MR SOFRONOFF: Yes, yes, your Honour, in the second line of (e).

GORDON J: So (e) is directed at complete disassembly, checking, reassembly, retorque?

MR SOFRONOFF: Yes, yes, it is. That is because – so the case was put and so his Honour found – that is the only way you could be certain that the bonded washers are still bonded and they were not bonded here because of the defect. If your Honours would go to 4522, paragraphs 57 and 58?

GORDON J: What are these, Mr Sofronoff?

MR SOFRONOFF: These are more of our submissions. I cannot remember now why but we put in submissions and then further submissions. It might have been to do with the way the trial was not conducted in one episode.

KEANE J: But these seem to be just about the use of a torque wrench.

MR SOFRONOFF: Yes.

KEANE J: That seems to have been the basis on which you succeeded in the Court of Appeal, if one looks at page 4974, paragraph 100.

MR SOFRONOFF: Could I come to that in just a moment, your Honour, so I do not lose my track?

KEANE J: Yes, sure.

MR SOFRONOFF: Your Honours, 4528, paragraphs 78 and 79 ‑ ‑ ‑

GORDON J: Are these still in your submissions?

MR SOFRONOFF: Yes, they are still our submissions at trial.

NETTLE J: Just before you go to that, Mr Sofronoff, at paragraph 59(a) at page 4522, it seems also to be a submission that removal was required.

MR SOFRONOFF: Yes. I am sorry – your Honour Justice Keane put a proposition to me about the Court of Appeal – Justice Wilson’s reasons ‑ ‑ ‑

KEANE J: On page 4974, paragraph [101], his Honour seems to be focused in terms of finding that the instructions in the manual were inadequate. He seems to be focused on the use of a torque stripe.

MR SOFRONOFF: The use of a torque stripe – and that was sufficient for us and would be sufficient for us in this appeal.

Now, allied to that was the evidence that your Honours heard about this morning, that one of the reasons why Robinson did not specify that in the manual is the possibility that that might introduce some other defect – puts in another step that might lead to something worse. That was premised upon the proposition that you would have to remove the palnut and say you are tinkering with the apparent integrity of the joint.

It was also said at trial, and it was advanced on appeal here, that the evidence was that one would not expect this fitting to come loose. It is difficult to countenance that proposition, having regard to the requirement to verify security, and the requirement to apply a torque stripe as an indicator of lack of security.

In relation to the removal of the palnut as a problem, the evidence about which your Honours have heard something this afternoon was from Dr Gilmore, who pointed to the provision in the manual that your Honours saw just after lunch, which would have allowed the application of an adaptor to a standard torque wrench, so that the adaptor would fit under the palnut and one would not need to remove the palnut in order to check the torque.

In short, his Honour had concluded that only disassembly and reassembly was apt to detect cracking and debonding washers – that was not challenged on the appeal to the Court of Appeal – and that only the application of a torque wrench was an absolutely certain method of checking the integrity otherwise of the bolt. But his Honour concluded that, nevertheless, the torque stripe was sufficient as an indicator, so one did not have to go to the absolutely certain indicator; the application of a short wrench.

Could I turn then to the evidence relating to the approach of the experts and the Court of Appeal – and Justice Wilson in particular – to the reliability of the use of torque stripes? We know that it is common ground that they have at least a limited use as an indicator because a missing torque stripe, as the defendant pleaded – or an obviously broken torque stripe, as the defendant pleaded – would have been alerts for a reasonably competent LAME. Your Honours have seen the photographs.

Could I ask your Honours then to go to appeal book 3, page 1158. As your Honours might have gathered, Mr Boyle and Mr Cox were the appellant’s experts; Mr Lay and Mr Ogier were the respondents’ experts. Your Honours should probably disregard Mr Whitehead because although he was an expert engaged by the appellant his evidence was not tendered. So nobody referred to Mr Whitehead, if that becomes material. We start with the proposition in question 3 that “verify security” is not defined in the manual. Then question 3(b):

should it have been defined –

Mr Boyle and Mr Cox said no, the words were in common usage. Could I ask your Honours to go to the manual itself? If your Honours would go to page 1270, which contains the instruction for the forward flexplate, we see one use of the term “verify security” there and it is concerned, obviously, with the security of the flexplate as such, that is to say the flexplate proper and whether it has cracks in it or other indicia on its own surface. It would also encompass the security of the fasteners with which this case is concerned.

NETTLE J: Why were they not separately dealt with at page 1273, the penultimate item?

MR SOFRONOFF: Which item, your Honour?

NETTLE J: The penultimate item, fasteners.

MR SOFRONOFF: Yes.

NETTLE J: Coupled with what you have at page 1228, which is the ‑ ‑ ‑

MR SOFRONOFF: Yes. It does not add anything. I am conceding that the instruction on page 1270 would instruct a LAME to verify security of the plate itself, whatever that involves.

NETTLE J: But does not the instruction at 1273 also instruct him to verify the fastener security?

MR SOFRONOFF: Yes – does it?

NETTLE J: It seems to.

MR SOFRONOFF: Excuse me, your Honour, I will find out while I am getting it. What I did want to point to the Court is that the expression “verify security”, implicitly at least, on page 1270 is instructing the LAME to verify security of the fasteners also on the flexplate. So whatever 1273 means, we would accept that 1270 instructs attention to the fasteners and to the plate.

I would like to show your Honours two things. The first is that, if we go to 1257, item 9, removable controls, that is probably a reference to a flight control in front of the passenger as well as the pilot. You can remove the passenger’s flight control and you can put it back. So it is important to ensure that, if it is put back, it is safe:

Verify security of attach fasteners -

which would not be this kind of an assembly. Then if one goes to 1263, in relation to the instruments just below paragraph 2 ‑ ‑ ‑

GORDON J: Why are we being taken to these, Mr Sofronoff? Just explain to me what the point of this is.

MR SOFRONOFF: Yes, I am seeking to show that the expression “verify security” is used as a general direction, whether it is about an instrument in a panel or a fastener on a critical part like this one or anything else such as an antenna at ‑ ‑ ‑

FRENCH CJ: Well, it has to be read contextually, does it not?

MR SOFRONOFF: Yes, that is right.

FRENCH CJ: You talk about verifying the security of a fastener, I suppose securely fastened is one aspect of that.

MR SOFRONOFF: Yes, and the question is how you do it because the LAME is instructed to verify security of a number of different things on the aircraft and it is left to LAMEs themselves to make a judgment how to do that. If we see 1274, there is a quite different instruction:

Lower Steel Tube Frames . . . Verify proper torque –

which is a different thing – and in the first line –

Verify no corrosion or cracks –

Now, that is a very different thing from what appears in the next item:

Engine Mounts . . . Verify security.

The only way you could verify torque, of course, would be to apply a torque wrench.

BELL J: Mr Sofronoff, just going back to your case that it was necessary for the manual to direct the disassembly of the flexplate, there was some evidence, I think from Mr Cox, that there were more than 200 fasteners on the Robinson 22 and that there were inherent risks about disassembling all of those and then re‑torquing them. Somewhere in the joint report of the LAMEs are there expressions of opinion about those risks of disassembling the flexplate in accordance with your case? Is that a matter that is discussed?

MR SOFRONOFF: The evidence was from ‑ ‑ ‑

BELL J: I just wondered if you could take us in the joint report to where that aspect of your case is addressed.

MR SOFRONOFF: Yes. I will go back to that, your Honour. I had your Honours at the joint report and we were at ‑ ‑ ‑

NETTLE J: But are we now considering whether the manual was inadequate because it failed to direct the disassembly, checking and reassembly, or do you accept that in order to win on this appeal you must, as it were, uphold the Court of Appeal’s overturning of the final conclusion that the judge expressed that the instruction given was adequate to guard against the risk and what would follow from the risk of a loose bolt?

MR SOFRONOFF: Well, they amount to the same thing, your Honour.

NETTLE J: One entails going into whether it is necessary to disassemble, the other is whether a torque stripe was a sufficient mechanism for checking against a loose bolt.

MR SOFRONOFF: We would need to maintain the conclusion of the Court of Appeal that the torque stripe was insufficient for that purpose, and we do that by pointing to the evidence in relation to the torque stripe, and in addition, by pointing to the findings and to the evidence in relation to the fact that the application of a torque wrench was an absolute way of satisfying oneself.

NETTLE J: With you so far, but we do not have to go – or do we – into whether it needed to be disassembled in order ‑ ‑ ‑

MR SOFRONOFF: No, no, we can win on the less intrusive ‑ ‑ ‑

NETTLE J: And, in effect, you cannot win on the greater.

MR SOFRONOFF: No. If I lose on that, I cannot win – no, that is quite right, your Honour, thank you for that. I had not appreciated that.

NETTLE J: Thank you very much.

MR SOFRONOFF: If your Honours would go to 1158, point 1 is that, as we can see from the manual, the term “verify security” is used in different contexts and its application in a particular case is left to the interpretation of each maintainer. Then, an opinion is expressed in 3(b) that it should “have been defined”. Mr Lay and Mr Ogier give that opinion. In subsection (c), Mr Lay and Mr Ogier say they:

should check the torque value of the bolted connections with a calibrated torque wrench –

Mr Lay said in oral evidence that prior to becoming involved in this case, he did not used to do that but he does that now and that is the instruction in his workshop, to apply a torque wrench if he sees a deteriorated or, otherwise, imperfect torque stripe or any other indicator.

Then in subparagraph (d) on page 1159, Mr Lay pointed out that there is no explanation of what “verify security” means in this context. Then if your Honours would go to page 1164 – everybody agreed that if a torque wrench had been applied, the defect would probably have been discovered.

GORDON J: At 1162 – just so that I am clear – there is that joint report saying that the only way a LAME can verify the bolted joints are properly torqued is to use a torque wrench?

MR SOFRONOFF: Yes, although, to be fair, that may be in the context – or have been understood by the experts to mean – in general.

GORDON J: I see.

MR SOFRONOFF: If you want to check the torque, you need to use a torque wrench. There is no other way. I do not think they were relating it to a safety inspection there.

FRENCH CJ: That is sort of the “gold standard” as it were.

MR SOFRONOFF: No, that is what you do at the beginning. The only way you can verify torque in any situation is to apply a torque wrench because we are speaking about specific calibration. The next question was ‑ ‑ ‑

FRENCH CJ: In terms of determining whether there is rotation?

MR SOFRONOFF: Yes, that is the only way you can be certain.

FRENCH CJ: That is the only way to be sure.

MR SOFRONOFF: That is right.

FRENCH CJ: If the torque stripe process works, that is the lesser intrusive way.

MR SOFRONOFF: Yes, but there is no intrusion, your Honour. If I can go now to Dr Gilmore’s evidence in volume 3 at 1174? This is a spreadsheet of the varying opinions of the experts. At 1174, the second column – the first column sets out the questions – question 14:

Did the RHC MM provide adequate inspection procedures . . . to detect . . . zero clamping force?

And Dr Gilmore’s opinion was:

No. A torque wrench –

had to be applied. In the fourth line:

This would be a rapid procedure using a short open end adapter shown on page 1.29 –

of the manual:

No disassembly of the joint would be required. Reliance cannot be placed on a visual inspection –

Over the page, at 1175, question 18:

Do you agree with Mr Ogier that the usual . . . practice” to assure security of a critical fastener . . . is “removal of the locking Palnuts and a re‑torque –

The answer is that is one way, but the:

Use of a short open end adapter shown on page 1.29 . . . without removal of the Palnuts would be another way –

Dr Gilmore’s evidence otherwise, if I can give your Honours the references – you may have been given them already – are in volume 2 at pages 700, 706 and 728. That was led to answer Mr Turnour’s point about intrusion and adding defects in volume 1 at page 497 – volume 2 it must be. If your Honours would go to page 496, at the foot of 496 I have sought to summarise the process to which Mr Turnour, for reasons he explained, objected that you would have to remove the palnut. It is put to him that you do not have to remove a palnut if you just put a spanner on it; a spanner will not tell you the torque measurement. As Dr Gilmore explained, you can put the Robinson approved adapter onto a torque wrench and achieve the same effect.

BELL J: All of this is upon a basis of acceptance that it is desirable to use a less intrusive process ‑ ‑ ‑

MR SOFRONOFF: Yes, yes, and that is fine because a less intrusive method is easily available.

BELL J: Yes.

MR SOFRONOFF: Now, the alternative, which was not to do this, which would in the context of testing the integrity of a critical part is to, as his Honour found, rely upon the torque stripes, in a context in which the manual merely said “verify security” and left it to individual LAMEs to determine how to use torque stripes accordingly. They used different methods. I will give your Honours the references without taking you to them.

In appeal book 1, at page 164, Mr Bray would have used a spanner and a small amount of force. Mr Fisher, at 170, would remove the palnut and check the torque of the bolt. Mr Orloff said it would depend upon the condition – that is 213 – and Mr Lay, whose attitude I described before, would have done nothing at the time except have a good look and reapply the torque stripe to replace anything that has deteriorated.

Consequently, the state of the evidence, as the Court of Appeal appreciated, was that the state of torque stripes is varied in actuality, whatever a perfect world would wish. In the absence of clear instructions concerning what to do, there was no unanimity concerning the approach to be adopted upon seeing, let us say, a deteriorated torque stripe.

Could I take your Honours to Justice Wilson’s reasons, beginning at paragraph [75]? I should add, your Honours, that Mr Bray, at page 166, said he would not use a torque wrench, because he thought that would not show anything.

BELL J: In the passage in Dr Turnour’s evidence, that you took us to a few moments ago, am I right in my recall that it was said that using a spanner, as Mr Bray indicated he would do, would bring to attention the looseness of the nut?

MR SOFRONOFF: Yes, I think that is right, your Honour. Yes. If your Honours would go to volume 11 please, to paragraph [75] of Justice Wilson’s reasons. Paragraph [75] contains an observation by his Honour that the tendency of torque stripes to deteriorate renders them “useless as indicators” because the presence of a break would not be necessarily detectable. And one ought to bear in mind that the manual did not at the time require the application of a torque wrench or any wrench, upon finding a deteriorated torque stripe. Then if your Honours would look at paragraph [76], the last sentence:

the photographs show that torque stripes can deteriorate to a point where a crack . . . may be present but is not actually, or readily, visible or discernible.

That is to say, the material itself constituting the paint will fragment to the point where a crack will have disappeared as an indicator. His Honour then observed that nothing in the manual required retorquing or using a torque wrench to test in the case of deterioration.

His Honour then turned to the evidence of the LAMEs. Could I say something about the evidence of the LAMEs, because the reliance by the Court of Appeal, by Justice Wilson, upon their evidence was said to have been misplaced.

In our respectful submission, the task that the trial judge had and the Court of Appeal had was to determine if it was possible what was the state of the torque stripe at the date of the two inspections, and the evidence that those two courts had fell firstly into the category of scientific evidence, which relevantly was that a torque stripe properly applied would have broken quickly.

The second category of evidence was that torque stripes deteriorate. The third category of evidence was the evidence of Mr Bray, Mr Fisher and the pilot, Mr McKendry. I put Mr Lewis aside because he was not looking for torque stripes. The evidence of Bray and Fisher, as your Honours appreciate, was that in the normal course they would be looking for indicators, that being the task of verifying security, and in particular they would be looking for anything peculiar about the torque stripes.

The evidence of Mr McKendry was that he was looking for a torque stripe and because he flew out of an establishment that had tools, unlike other pilots, he actually made it a practice to get a mirror like a dentist’s mirror and a torch to see the state of the fastener. A mirror is necessary, your Honours, because as one looks at the assembly from the vantage point of a pilot or a mechanic performing that inspection, one can only see two palnuts and if present their relevant torque stripes.

The torque stripes on the other side, one of which broke, would be invisible from this angle. A mechanic would need to use a mirror and a torch, and one of them said he did, as you would expect, to look at the state of the fasteners and to verify their security. Mr McKendry, the pilot, said that is what he did, he looked at each of them in that manner before flying.

Could I ask your Honours to go to Justice Lyons’ reasons in relation to Mr McKendry, at page 4842, paragraph [199]. Mr McKendry flew this helicopter five times in the relevant period. One of the things that he did was to see if the palnuts on this flexplate were missing and he would not have flown the aircraft if he had found one was missing:

His evidence strongly suggests that the palnuts were in place –

and his Honour used it for that purpose to make that finding. If your Honours would go to paragraph [201], his Honour is concerned with palnuts and Mr Lewis gave evidence about that as well but if we put him to one side, in the second line:

It seems to me that the absence of a palnut would be easier to detect than a crack in or misalignment of a torque stripe. They both appeared to be responsible persons, unlikely not to carry out the checks they described. Their evidence makes it highly unlikely that one palnut . . . was missing –

Consequently, we can conclude that his Honour believed Mr McKendry when he said what his practice was and in particular that he looked for the state of the torque stripe. In paragraph [202], his Honour then turned to the evidence of Mr Bray, who also gave evidence that it was his practice to look for the state of the torque stripe, and Mr Fisher too. Then in the fifth line, his Honour said:

The weight to be given to their evidence is affected by the fact that each of them failed to detect the condition of the torque stripe for Bolt 4, which, on my findings must have –

been missing or cracked. The problem with that, in our submission, is that why does the process which is, with respect, correct of fact finding in relation to palnuts and that involves use of the scientific evidence and the expert evidence and these witnesses, in particular Mr McKendry and Mr Lewis who were believed when they said “I was looking for palnuts”, why does that not apply when consideration is given to finding the state of the torque stripe as not being in a state to alert anybody, because not only did Mr Bray and Mr Fisher give that evidence, but so did Mr McKendry, who was accepted as a witness of truth.

BELL J: But was not his Honour making the point that a pilot checking and taking the care to use a torch and a mirror might reasonably be expected to certainly detect the absence of a palnut but that a pilot making an inspection may not detect a defect in the torque stripe, as opposed to LAMEs conducting a 100‑hourly check?

MR SOFRONOFF: That cannot be right, your Honour, for two reasons. One is Mr McKendry’s evidence – could I ask your Honour to look at it in appeal book 1 at 449, just below line 40 – could I ask your Honours to look at that to over the page. His cross‑examination was very succinct. It began on page 451 and it finished on page 453 and it was not suggested to him that he did not perform the task or that he could have missed a thing like a missing torque stripe, which is what his Honour ultimately found and is the purpose of this inquiry.

In our respectful submission, what ought to have been done in connection with the determination of the state of the torque stripe, was to consider the scientific and expert evidence together with the evidence of the direct witnesses, Bray, Fisher and McKendry, and just as in the case of the palnuts, his Honour, looking at all of that evidence together ‑ and there was a great deal of it on palnuts – his Honour concluded that having regard to the significance of Mr McKendry’s examination, it is probable that the palnut was there.

Equally in the case of the torque stripe, the evidence that his Honour had before him was the scientific and expert evidence and the evidence of Bray and Fisher as to their usual conduct and the evidence of Mr McKendry. Now, the significance of Messrs Bray and Fisher and McKendry, in our submission, is this. McKendry’s life depended upon that examination and in this case it actually did because, as we know, when he flew it, this defect was there. His purpose and any pilot’s purpose in performing these checks is not the same as a LAME who is guardian of other people’s welfare. The pilot’s purpose is his or her own welfare and that of the passengers, so it is an imperative.

Consequently, in our submission, his Honour was right to conclude that Mr McKendry carried out these checks, and was a responsible person, and so on. But the consequence of that finding must be that there was nothing remarkable about the state of the torque stripe, and the consequence of that is that one could not draw a conclusion, as his Honour did early, and make a finding about the state of the torque stripes and then use that finding to say that Mr Bray and Mr Fisher ought to be disbelieved on it, or at least their evidence ought not be accepted about it.

GORDON J: About palnuts, or about torque stripes?

MR SOFRONOFF: About anything, your Honour.

GORDON J: I do not think his Honour at [202], does he – his Honour says:

their evidence provides some support for the proposition that the palnuts remained in place at the time of their inspections.

MR SOFRONOFF: I am sorry, your Honour?

GORDON J: At [202], his Honour concludes, on balance, that the palnuts were ‑ ‑ ‑

MR SOFRONOFF: Yes, yes. His Honour is concerned with the palnuts in this section. My point is that in order to make a finding based on inferences cited in expert evidence, and also from the normal practice that these witnesses asserted they employed, one looks at it all together. One does not look at the expert and other evidence first, determine that there was no torque stripe, and then conclude on the basis of that evidence that the weight of the evidence of Bray and Fisher is reduced because “see how their evidence is inconsistent with my evidence on the torque stripe”.

The correct approach, in our respectful submission, is to look at all of that evidence together, and it may be that the scientific evidence is sufficiently persuasive that the only possible conclusion is to reject the evidence of normal practice. But that is not how his Honour approached it. Instead, there is one process in relation to the missing palnuts, another process in relation to the state of the torque stripe.

The use of McKendry as a reliable witness in relation to the state of the palnuts but for an unexplained reason, not a similar use of Mr McKendry in relation to the torque stripe except for the passage in the third line of paragraph [201]:

the absence of a palnut would be easier to detect than a crack in or misalignment of a torque stripe.

But his Honour was concerned with a finding that he reached about an absent torque stripe, not a mere crack. I should tell your Honours that the interior that we are looking at is dark, hence the need for the torch.

In our respectful submission, when one comes to the reasons of the Court of Appeal, and Justice Wilson in particular, if your Honours would go to page 4971, paragraph [78], the only basis upon which the trial judge had rejected the evidence of the LAMEs was that he had already made a finding about the state of the torque stripe. Having done that, of course one must reject the evidence of the LAMEs.

Our submission is that in seeking to make a drawn inference about the state of the torque stripe, he had to take into account and consider for what it was worth the evidence of the LAMEs, and his Honour did not do that. But he did it in relation to the palnuts, and he took McKendry’s evidence into account in making a finding about the palnuts, but did not in relation to the torque stripe.

BELL J: Can I just query this, Mr Sofronoff? In criticising his Honour’s reasoning, you are relying, are you, on a view that an open possibility consistent with the LAMEs and Mr McKendry not having been alerted by the absence of a regular torque stripe was Mr Ogier’s slippage theory?

MR SOFRONOFF: Yes, that is right.

BELL J: Well, it really does depend on that, does it not?

MR SOFRONOFF: It depends on two possibilities, your Honour. The first is Mr Ogier’s slippage theory.

BELL J: Yes.

MR SOFRONOFF: The second is that the torque stripe appeared to reach the part from which it would crack if there was movement but did not, in fact, reach it as your Honours have seen in some of the photos.

BELL J: So an incomplete torque stripe?

MR SOFRONOFF: Yes, yes.

BELL J: Not alerting trained LAMEs.

MR SOFRONOFF: Yes.

BELL J: I see.

MR SOFRONOFF: And an experienced responsible pilot as well.

BELL J: Yes.

NETTLE J: Do you mean by that that it would not be on the horizontal bonded surface?

MR SOFRONOFF: It would be on it but not affixed to it so that it ‑ ‑ ‑

NETTLE J: That is the slippage – the Ogier – but the second of the two possibilities you put, then the incomplete.

MR SOFRONOFF: The first one is slippage due to contamination.

NETTLE J: Yes.

MR SOFRONOFF: The second is apparent attachment but not actual attachment – not bonding to the surface so that the parts could rotate separately.

BELL J: As to Mr Ogier’s approach, the primary judge dealt with that at paragraph [150] ‑ ‑ ‑

MR SOFRONOFF: He did.

BELL J: ‑ ‑ ‑ and rejected‑ ‑ ‑

MR SOFRONOFF: No, he did not, your Honour. Sorry, your Honour, I should not have put ‑ ‑ ‑

BELL J: Perhaps that is putting it high, Mr Sofronoff. He certainly did not appear to embrace that theory.

MR SOFRONOFF: He did not embrace it.

BELL J: He provided reasons why one would not. Were those addressed by the Court of Appeal?

MR SOFRONOFF: The President dealt with the issue at paragraphs [8] to [15].

BELL J: Did the President explain why one would come to a contrary view to the trial judge who did not accept the risk that a torque stripe might be applied to a contaminated surface and subsequently slip for the reason that he explained at paragraph [150]?

MR SOFRONOFF: She did not, your Honour. But the reason her Honour did not may be because if one goes to – does your Honour have her Honour’s reasons at 496, paragraph [10]?

BELL J: Yes, I do.

MR SOFRONOFF: Her Honour refers to his Honour’s abstention from finding, in the fourth line of paragraph [10].

BELL J: Yes.

MR SOFRONOFF: Yes, and in paragraph [150] that your Honour directed my attention to – his Honour Justice Lyons, in the last sentence, expressly said he did not need to look at that because his conclusion was firmly that no torque stripe had been applied.

BELL J: Well, read as a whole, his Honour had said it seemed quite unlikely that a torque stripe would be:

applied to a contaminated surface ‑ ‑ ‑

MR SOFRONOFF: Yes. It can be read ‑ ‑ ‑

BELL J: It can.

MR SOFRONOFF: It can be read one way or another. Could I make this point about this fastener? Somebody reassembled this fastener with a part missing, a washer missing – that is why it was looser than it should have been. That person who did that evidently followed the procedure in the manual to the extent that the main nut was put on and also the palnut because his Honour found that the palnuts were there. That is, as I explained earlier, the second step in the process of securing the fastener, the last being – not a step in securing – but in signifying that all of that had been done.

Your Honour Justice Keane observed this morning that the application of a torque stripe, in the knowledge that this application was unjustified, would be a wicked act – and, of course, it would be. But this was a person who, one would infer from the placing of a palnut, thought the job was done, otherwise there was no need to put on a palnut. So if, for example, the job was interrupted at some point in the day and left to a subsequent day, a palnut would only be applied if the person working on it thought the torque had been correctly applied. Hence, the torque stripe would be applied, if one was.

His Honour’s reasoning rejected that possibility because his Honour concluded, for reasons your Honours understand, that no torque stripe had been applied. The inference is really the other way because of the presence of the palnut. The inference would have been all the appellant’s way if the palnut had been absent because on no view would anybody apply a torque stripe without a palnut having been put on first as the actual safety device. Now, one steps then to the question, was his Honour justified in concluding that nobody would put a torque stripe onto a contaminated surface? Well, this person would because he made a mistake.

BELL J: And that torque stripe would remain in sound condition for more than 100 hours of the bolt rotating?

MR SOFRONOFF: It would not break.

BELL J: Yes, it would not break. It would remain in sound condition.

MR SOFRONOFF: Yes. Would your Honours appreciate that the flexplate will turn in accordance with the revolutions of the engine – 2,000 or 3,000 revolutions per minute – and the bolts remain in place, of course. They do not spin. It is the slow rotation that slowly grinds away the flexplate.

BELL J: Yes, slow rotation, grinding away parts of the metal shaft over a period in excess of 100 hours.

MR SOFRONOFF: Yes, that is right, and the debonding ‑ ‑ ‑

BELL J: Leaving the torque stripe in place?

MR SOFRONOFF: Yes, that is right.

FRENCH CJ: If I can just try to simplify it - we have the proposition that the inference of a missing torque stripe is not open, not least because of the ‑ ‑ ‑

MR SOFRONOFF: Your Honour, not preferable. I can put it ‑ ‑ ‑

FRENCH CJ: You do not go so far as to say “not open”?

MR SOFRONOFF: Anything is possible, your Honour, but the probability is that it was there because of the presence of the palnut.

FRENCH CJ: The inference that the torque stripes were noticeably broken or incomplete is not preferable?

MR SOFRONOFF: Yes. In a criminal case, of course, it would be not open.

FRENCH CJ: Yes, on the basis, again, of the involvement of the LAMEs and the pilots.

MR SOFRONOFF: Yes.

FRENCH CJ: Because they would have, one would expect, seen it.

MR SOFRONOFF: Yes.

FRENCH CJ: Your alternative hypothesis then – and that seems to be the approach taken by the Court of Appeal – is that there was a level of deterioration which concealed or did not allow the torque stripe to reveal cracks. I am looking at paragraph [98] in the judgment of Justice Wilson. It is from that platform that you then say that is an inherent problem, which was not addressed by the manual?

MR SOFRONOFF: Yes, that is right.

FRENCH CJ: The way to address it was to, at least, suggest the use of a torque wrench?

MR SOFRONOFF: Yes, and there does not seem to be any answer to the proposition – the two propositions that the use of a torque wrench with the adaptor would have revealed the defect and secondly would have involved no disadvantages.

FRENCH CJ: Disassembly is a kind of nuclear option that you do not need to get to on that.

MR SOFRONOFF: Yes, yes, as Justice Nettle pointed out, if I lose on the torque wrench, I cannot get to that, anyway. I am sorry, the other point I wanted to make about the LAMEs - I had said that the pilot was doing the inspection for the sake of his own life. The LAMEs were not the ones who introduced the defect. There was no reason why they would not be looking for defects in the ordinary course in terms of motivation. They were merely paid to do the job.

Could I take your Honours to the records of the inspection which was prepared at appeal book 5? At 2271 - this is the inspection that took place in March 2004, the first inspection. Your Honours will see at 2271 the first item in the left‑hand column is that the 100‑hourly inspection was the relevant work and the second column provides “carried out” by “AW” in accordance with Robinson Helicopter Corporation R22 maintenance manual. Then there is the signature by the relevant LAME and the LAMEs number and the date. It is signed by the co‑ordinator at foot.

If we go over the page, we see the rest of that document. If your Honours would go to page 2277 you will see LAMEs ticking signature next to the entry for the forward flexplate to signify that the work involved in that has been done. The second LAME’s document begins at 2293. It is in May, just a short time before the accident, 12 May, and it signifies – it certifies that the inspection was carried out in accordance with the relevant CASA regulations.

Then if your Honours go over the page, you will see at page 2295 at the top, the maintenance was 100 hourly and it was carried out, so this person declared, as the law required him to do, in accordance with the Robinson maintenance manual and the other reference is to the engine maintenance manual, the Robinson maintenance manual referring to the structure.

At page 2297 there is the LAME’s signature in relation to having performed the work in relation to the forward flexplate. So what his Honour had and what the Court of Appeal had was the evidence of these LAMEs, as you understand it, and their proceeding in accordance with a written checklist in accordance with the manual.

NETTLE J: Fisher said he did not use the checklist though, did he not?

MR SOFRONOFF: No, your Honour, I will take your Honour to it. What he was asked was, do you use the manual and what he said was that, I use it but I know some of it so I have the diagram in my mind. I do not have to go to every page to see what it is I have to do. The passage is at volume 1, 165.

NETTLE J: Thank you.

GORDON J: Page 173, I think is where he gives evidence about not using the manual and checklist.

NETTLE J: It is.

MR SOFRONOFF: Thank you, your Honour.

GORDON J: It starts at line 28, I think.

MR SOFRONOFF: Yes, and he is asked about the checklist and the manual and ‑ ‑ ‑

NETTLE J: He is to sign it all off at the end of the work.

MR SOFRONOFF: Yes, that is right, as having been done.

NETTLE J: It is not quite the same, is it?

MR SOFRONOFF: No, but with respect to Mr Bray – 165, just below line 40:

Now, Mr Bray, I think you said that you would refer to the manual if you needed special information?--Yes.

I take it that the work you’d need to do on the forward flex plate . . . would be something that you would know because of your expertise as a LAME, having done 100 hours many times . . . Yes, I have got a picture of the diagram in my head, so, you know.

So actual resort to the maintenance manual might not be necessary –

“Actual resort”, as he acknowledged a little earlier, to find out the torque value might have been necessary, but in terms of the flexplate, resort to the manual would not have told him anything except to verify security, which is the obvious task. To the extent that cross‑examination sought to establish that they were not paying attention to the manual fell far short of that, because to do the work that you are obliged to do in terms of the flexplate, the manual instruction does not add anything to what, as the evidence showed, the LAMEs would do according to their own views.

Could I respond to the proposition that one of these LAMEs did not have the qualification of having done the factory course? That was not pleaded as a ground of negligence and it was not alleged in the case in terms of the running of the case as a reason why that LAME might have been incompetent to pick up these defects. Indeed, the evidence was otherwise because everybody agreed why torque stripes were applied, although there is controversy about the significance of various states of torque stripes.

Consequently it is understandable why the appellant sought to make no case of incompetence based upon a lack of actual qualification or knowledge, nor did that - asserted like a qualification, nor was it raised as a ground of actual negligence and because it was not pleaded no evidence was given about it except for the evidence in cross‑examination that in fact, you have not done the factory course and the answer was, “No, I haven’t.”

FRENCH CJ: You do not know anything about the content of the factory course?

MR SOFRONOFF: No, but one can infer a great deal. There was no evidence led that the factory course may be more particular about the paint and the dust or anything of that kind. It just was not an issue.

BELL J: I thought some evidence was led about the content of the Robinson course.

NETTLE J: It is in the documents.

MR SOFRONOFF: I was wrong about that, then, but in any event, no link was sought to be made between any ignorance of a LAME by reason of not having done the course and the consequential failure to detect the defect. One of the qualifications in the manual - there are two qualifications in the manual, either the LAME doing the work has done the course or the LAME doing the work does it under the supervision of a person. That was not addressed by anybody because it was not a pleaded point. He was asked that question: “Did you do the course?” The answer was no and it went nowhere.

Could I turn to the question of causation, your Honours. As I understood the submissions on this issue two matters were raised. The first was that the court did not make a finding – the Court of Appeal did not make a finding of the state of the torque stripe. It did make a finding of the state of the torque stripe. The court concluded that the state of the torque stripe was not such as to raise an alert in the mind of a pilot, McKendry or Bray or Fisher. Therefore, the state of the torque stripe was that it was not missing. It was not broken, evidently, so as to signal an alert. Whatever its state, its character was such as not to raise an alert. As a consequence, there was nothing to see and there being nothing to see – although there was something there – and there being no instruction to do the things that would have revealed the defect, the accident happened.

The second issue was that there was no evidence, it was submitted, that the LAMEs would have applied the manual anyway if there had been an instruction to use the torque wrench. The evidence that they would have complied with the manual is contained in their actual use of the manual that I took your Honours to a moment ago – appeal book 1 at 163 to 166 and 172 – to the point where one of them, as your Honours have seen, said he knows its content.

Secondly, they prepared documentation that I showed your Honours, the checklists and the other legal documents, to show their compliance with the manual. That is at appeal book 5, pages 2271, 77, 95 and 97. Thirdly, Mr Cox, an expert and an employee of the appellant, said that in his view because of matters like that and the expectation of what LAMEs do, they work on different aircraft and are obliged to follow instruction manuals, Mr Cox said in evidence that an instruction to use a torque wrench would have resulted in the defect being discovered if that instruction had been there, appeal book 1 at 280.

Fourthly, there was no plea in the defence that the manual would have been ignored, and finally, it was not put to the LAMEs, there being no issue about it, that they would not have complied with an instruction in the manual. So the issue simply was not an issue at the trial. Your Honours, there are some passages I am sure in the oral outline that I have not expressly addressed because I have moved from that plan but subject to anything your Honours might wish me to answer.

NETTLE J: I wanted to ask one question if I could. Justice Wilson said there were four possibilities on the appellant’s case, that the stripe would have been sufficient to overcome possibilities 1, 2 and 3 but not the fourth which is the slippage.

MR SOFRONOFF: Yes.

NETTLE J: Is there sufficient evidence to sustain a conclusion that that fourth possibility is any more likely than the other three?

MR SOFRONOFF: Yes, it is the evidence of Bray, Fisher and McKendry.

NETTLE J: That they did not observe?

MR SOFRONOFF: That they did not observe anything and they would have observed something if there had been one, two or three. McKendry, in particular, was not criticised the way Bray and Fisher were.

NETTLE J: So that is it. That is the evidence, you say, that makes that fourth possibility the more likely.

MR SOFRONOFF: Yes.

NETTLE J: Thank you.

MR SOFRONOFF: Thank you, your Honours.

FRENCH CJ: Yes, Mr Doyle.

MR DOYLE: Your Honours, a few points. Our learned friend’s reference to exhibit 14 and to ascribe various aspects to it and the functional role served by the flexplate and its flex capacity and so on all go to demonstrate just how unlike the Schweitzer helicopter - which does not have a flexplate - this helicopter is, to render his Honour’s observations - this is Mr Justice Wilson’s observations - that a manual for a like helicopter, albeit without a flexplate, really robs it of any likeness.

Your Honours, secondly, you were taken to a series of photographs in volume 8 of the record - there is no need to go to them - which are designed to show the various – the…..states of presentation of torque stripes. There is no evidence that any of those photographs show a torque stripe applied to a loose bolt. So that it is really a false comparison to say here are some helicopters where a torque stripe is applied to a sound bolt so that it can deteriorate over time and present in these various ways. You can, therefore, infer that a torque stripe applied over an unsound bolt which the experts have agreed would break – our learned friends put it, would break very quickly - would be able to deteriorate in such a way as to present ambiguously.

That really is at the heart of the reason why, in our submission, the conclusion against the appellant is unsound. Yes, torque stripes can deteriorate but that is an anodyne observation because unless they can be over a defected bolt and deteriorate – and no one suggests that – it is clearly irrelevant.

Your Honours, our learned friends took you to various different uses of the expression “verify security” in the manual. We are not entirely sure why but when I started our submissions I identified various things which were uncontroversial and the things which were uncontroversial on appeal was the trial judge’s conclusion that the manual had a particular meaning when it said “verify security” and that is it required focus on the bolt, relevantly, Bolt 4, and it required the LAMEs to inspect the condition of the torque stripes and then react accordingly.

Those findings were the subject of the notice of appeal but they were abandoned by our learned friends and, relevantly, grounds 4, 7, 1 and 11 – which appear in the notice of appeal at volume 11, page 4950 – that might be a 7 – my eyes are failing - sorry, the notice of appeal is at volume 11, page 4856 and at 4950 our learned friend abandons those paragraphs.

The challenge which our learned friend makes to what is said to be the inapposite process of reasoning of the primary judge in paragraphs [201] and [202] of his reasons, that challenged is misplaced. In [201] the trial judge is directing his attention to the evidence of the pilots.

In [202] where he says, the evidence of these men – I think that is the language used – he speaks first of what Mr Bray said, then what Mr Fisher said. Then he says, “The weight to be given to their evidence” is diminished et cetera. He is plainly there talking about the weight to be given to the LAMEs in the way that I have described earlier. It is a credit finding. In respect of the pilots, the same credit finding is found in [201] where he says:

the absence of a palnut would be easier to detect than a crack in or misalignment of a torque stripe.

I took you to that earlier. What remains significant is that Mr McKendry was not asked and did not say that he would notice a missing torque stripe and nothing which our learned friend has taken you to shows that was his evidence. So that his evidence, in fact – if you accept him to be a careful and honest and so on witness, as was urged – is that he was looking for a cracked or misaligned torque stripe, which is perfectly consistent with and supports the trial judge’s finding that the torque stripe was not applied.

Our learned friends a moment ago, in answer to a question from your Honour Justice Nettle, identified the two residual possibilities as being, as I described it, incomplete or Mr Ogier’s contamination theory. But in answer to your Honour’s question our friends then said the incompleteness may present itself in terms of being there, appearing to be connected to the yoke, but not in fact connecting.

There is absolutely no evidence of a circumstance in which that might have occurred, except by contamination – that is, it is another way of saying the same as the Ogier contamination theory. No one, not even Mr Ogier, said that the torque stripe paint would remain suspended in air above the yoke so as to appear complete but in fact incomplete. That is a development of our learned friends’ case which is unjustified on the evidence.

Finally, on the question of causation, it was said things were not put by those appearing for the defendant to Bray or Fisher. Both Bray and Fisher were called by our learned friends. It was their case to prove that if a different instruction – and it is to be borne in mind at the time that they were called, the instruction being urged by the plaintiff, the respondents here, was that you should pull this thing apart and retorque the whole thing.

If their case was that, or if it is, as it now appears to be, that they should have done something by way of precaution of checking it with a spanner, the onus was on them to ask those two people whether what they did would be different if the manual had said something different. It is not for my side to prove the plaintiff’s causation case, and the plaintiff did not seek to do so. Those are our submissions, your Honours.

FRENCH CJ: Yes, thank you, Mr Doyle. The Court will reserve its decision. The Court adjourns until 9.45 tomorrow for pronouncement of orders.

AT 4.20 PM THE MATTER WAS ADJOURNED

[2016] HCATrans 83

Key Legal Topics

Areas of Law

Civil Procedure

Negligence & Tort

Legal Concepts

Appeal

Causation

Damages

Duty of Care

Negligence

Standing