Robinson Helicopter Company Incorporated v McDermott & Ors

[2015] HCATrans 274

[2015] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 2015

B e t w e e n -

ROBINSON HELICOPTER COMPANY INCORPORATED

Applicant

and

GRAHAM JAMES McDERMOTT

First Respondent

JUANITA CAROL McDERMOTT

Second Respondent

NTB PASTORAL HOLDINGS PTY LTD ACN 078 593 469

Third Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 11.04 AM

Copyright in the High Court of Australia

____________________

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

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

KIEFEL J:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, the majority in the Court of Appeal fell into error in two important respects.  First, they overturned important findings of fact made by the trial judge without any proper basis, and in the face of the trial judge’s careful rejection of some evidence upon which the Court of Appeal relies.  Secondly, the majority did not give consideration at all to the issue of causation, but nonetheless made a determination in favour of the respondents in both tort and under the Trade Practices Act.

As your Honours will see from the reasons, the applicant manufactures helicopters.  It also provided a manual for their maintenance.  There was a crash with one of their helicopters due to a bolt, identified as “Bolt 4”, having failed.  It failed because it had been improperly assembled and tightened by maintenance experts described in the material as ‑ ‑ ‑

KIEFEL J:   Was the inadequacy of the assembly of the bolt in issue?

MR DOYLE:   No, the fact of it ‑ ‑ ‑

KIEFEL J:   I mean, in dispute.

MR DOYLE:   No.  It was accepted that it was inadequately assembled and inadequately torsioned – torqued, I am sorry; I sometimes use the wrong description – inadequately torqued.  The problem arose because those defects were not picked up during some intermediate maintenance inspections by some other LAMEs, and that is the nature of the cause.  The basis for the finding of liability by the majority was that the manual was defective, because it did not contain adequate instruction to those maintenance experts to check the adequacy of the assembly and tightening of the bolt.

GORDON J:   With a wrench.

MR DOYLE:   With a wrench of some kind.  This was a lengthy trial in which an array of witnesses were called; it went for five weeks.  The trial judge made findings of fact as to the physical state of Bolt 4, that it had been incorrectly assembled and incorrectly torqued.  He also made a finding that no torque stripe had been applied to it.  A torque stripe is something which is applied after the bolt, hopefully, is properly assembled and torqued.  It is applied over the nut, the bolt itself and some adjoining plates, so that if there is movement of the stripe, it will break, indicating lack of security.

As I have said, the trial judge concluded the manual was not defective because of the instruction it gave to the personnel to verify security of the bolt, and that the absence of the torque stripes would have put them on notice that it was necessary to check the security by applying a torque wrench, which would have identified the deficiencies in its assembly.  Alternatively, if the torque stripe was present, but broken, because of the differential movement between it and the things to which it was attached, that too would have put them on notice that it was necessary to check by applying a torque wrench, which would have identified the deficiencies in its assembly.

KIEFEL J:   Was there some issue about whether or not the application of the torque wrench or spanner was practical?

MR DOYLE:   There is, but not directly to this question.  That arises in this way.  If there is an intact torque stripe and you apply a wrench to it – that is, it looks like it is secure, and you apply a spanner to it or a torque wrench to it – you might have to undo it all and start again.  That was thought to be not what LAMEs would do, and there is no real issue about the torque wrench application.  Ultimately, the majority of the Court of Appeal said the manual should have said “put a spanner on it to see if it is sufficiently tightened”.

I am dealing with for the moment what the trial judge found.  He rejected a third possibility, and that was that the torque stripe was present, but had moved independently of the bolt, so that the intact torque stripe would not put the LAMEs – the expert maintenance personnel – on notice about a defect, and the manual was silent about that possibility.  That is the possibility the trial judge rejected.  There is a fourth possibility we will come back to later on, but can I deal with the one that the trial judge rejected?

The one critical finding is at paragraph [150] of the trial judge’s reasons, at page 31 of the book, which perhaps we could trouble your Honours to read.  It is based, as you see, upon the non‑acceptance of the evidence of a Mr Ogier, and some other things to which the trial judge refers and which I will return later.  In substance, that was rejected by the majority in the Court of Appeal.  If your Honours turn to page 72, in the reasons of Justice Wilson, to paragraph [78] – there are a number of things his Honour says, but this captures the essence of it:

the evidence of the LAMEs and the pilots who were called left only one possible finding open: that the condition of the torque stripe on Bolt 4 was not such as to alert any of them to the need to investigate further.

That cannot be consistent with acceptance of the reasoning I was taking you to, because his Honour found there was no torque stripe, which would alert the need to investigate further.

The reasoning of the Court of Appeal, in effect, is to reason backwards from the fact that neither the pilots – I will explain their role in a moment – nor the LAMEs who conducted the maintenance saw anything that put them on notice of something wrong; therefore, the nature of the torque stripe must have been such as to not put them on notice that something was wrong, which is inconsistent with, as I have said, the trial judge’s finding.

Neither of those propositions, in our submission, was fairly open to the Court of Appeal.  The inference to be drawn by the majority from the evidence of the pilots is misplaced.  The torque stripe in respect of this Bolt 4 is on the reverse side of the flex plate – that is, away from where the pilots would open the cowling of the airplane to inspect the bolt.

The trial judge dealt with this at paragraph [201] of his reasons, at page 41.  He is dealing with it in the context of a different issue that arose, and perhaps I should explain very briefly what that was.  Once the bolt was fully assembled and torqued – there is a nut put on the top, so this is in a discussion as to whether that nut was missing or whether that should have been detected by the pilots who carried out an inspection of the planes before they flew.  In that context, he deals with that question, and again, at paragraph [232], page 46, in the fourth line, you will see, speaking of the nature of their inspection, the trial judge notes that it:

would require a mirror and flashlight.

That is in the fourth line.  Then in paragraph [234], at the end of that paragraph, you will see he describes the acceptance of the submission made on my side’s part below, that the pilots were negligent in not picking it up, that there is a submission that has:

a substantial degree of improbability about -

it.  So the question whether the nature of the inspection conducted by the pilots would detect missing something – in this case, the palnut – his Honour dismisses as being substantially improbable, and because they would need to conduct it with a mirror and a torch, which is not what the requirements of the manual for pilot inspection call for.

The trial judge’s acceptance of the view that the torque stripe was not there is not impaired in any way by reference to the first of the considerations that Justice Alan Wilson gave, namely that the pilots did not pick it up, because of the findings that were made as to the nature of the inspection the pilots conducted, and the substantial improbability that they would be able to see these things.  That – that is, the facts I have just taken you to about the nature of the pilot’s inspections – is not adverted to at all in the majority in the Court of Appeal.

The second thing that Justice Alan Wilson referred to was the inference to be drawn from the circumstances that the LAMEs themselves – that is, the maintenance experts – did not see anything that alarmed them.  That, too, is misplaced.  As Justice Holmes, the dissenting judge in the Court of Appeal, points out, the way in which the case was pleaded was that it was pleaded by the respondents that the maintenance inspections by the LAMEs were defective, and that was admitted by the applicant. 

An essential step in the reasoning of the majority in the Court of Appeal is that the LAMEs did a non‑negligent job and, therefore, it can be inferred there was no problem with the torque stripe because they would have picked it up.  It is inconsistent with the pleaded case, where it was accepted by both parties their inspection was defective.

Then as to the evidence of the LAMEs themselves, there are only two that are relevant.  Mr Bray gave evidence, and this is conveniently summarised in the reasons of Justice Holmes at paragraph [38] on page 66, that he did not have an “independent recollection” of what he did.  In paragraph [30] of her Honour’s reasons, so back to page 64, he says that:

his usual practice was to check bolts by applying a spanner to ensure that they were tight.

Now, it must be the case that he either did not do that, or did it badly, because it was common that the bolt was mal‑aligned – that is, mal‑assembled.  If he had done what was his usual practice, he would have picked up this deficiency.  It is difficult to infer from the evidence of such a person that his failing to see the absence of a torque stripe is a sound basis for saying the torque stripe must have been there and in an unalarming condition, which is the conclusion that the majority reached.

In respect of the other maintenance expert, Mr Fisher, he too had no independent recollection of what he had done.  But as is recorded by Justice Holmes in paragraph [30] of her Honour’s reasons, Mr Fisher accepted that:

he might have missed “some telltale sign” –

This is at the end of paragraph [30] –

in working on the helicopter –

Now, the very thing that we are concerned with is a tell-tale sign, that is, is the torque stripe there, or is it there but broken or intact?  The fact that he accepts that he may have missed some tell-tale signs makes it very difficult, in our submission, for someone to say because he was not alarmed there must not have been any tell-tale signs.  It is inconsistent with his evidence to draw that conclusion.

The three things we would point to as to why it was wrong, in our submission, for the majority to overturn the trial judge’s careful findings about the absence of a torque stripe were based upon not appreciating the nature of the pleaded case and overstating the inference, if any, that can be drawn from the fact that neither the pilots nor the LAMEs identified this problem.

There, as I said, is the possibility of another explanation - a fourth possibility, as it is described by our learned friends in their submissions - as to the condition of the torque stripe.  It is also taken up in the reasons of the majority, and that is that torque stripes can deteriorate over time.  We accept that is so.  That is a red herring for the purposes of this appeal and this application.  The torque stripe may well deteriorate, but there is no liability for the deterioration of a torque stripe if the bolt is secure.  The trial judge found here that if a torque stripe had been applied, it would have broken very shortly after it was assembled.

What we are talking about is not the deterioration of a torque stripe, but one, if it was there at all, which has been found would have broken, so that it would have been in a broken condition at the time it was inspected by the LAMEs.  This generic evidence about deterioration fading, in our respectful submission, leads nowhere.

Of the three remaining possibilities as to the state of the torque stripe – it was either not there at all, which is what the trial judge found and the LAMEs missed it, but there is no inadequacy in the manual in that respect; or was there but broken and the LAMEs missed it, but there is no inadequacy in the manual in that respect; or the third possibility is that it was there and intact, but slipped – that is, moved independently of movement of the adjoining unsecured bolt and plates and so on. 

It is that third possibility which the trial judge considered in paragraph [150] of his reasons, which we asked you to read, and rejected.  His rejection was sound, in our submission.  No other witness supported that thesis.  There are passages of evidence given by the witnesses in the reasons of the President, which we will not take you to, but they were all concerned with a range of other things – the deterioration and fading of torque stripes – they do not support Mr Ogier’s thesis about slippage.

The trial judge gave reasons for not accepting Mr Ogier’s evidence.  As you have seen, they were that he had not been involved as a LAME for about 30 years.  He had no experience on this kind of helicopter.  There was no support from any other witness, but his Honour concluded it was unlikely that a LAME would do what is suggested, given the seriousness of the consequence of applying a torque stripe to contaminated surfaces.

His Honour referred to the evidence of the incorrect assembly of the bolt and the gap in the bolt, as your Honours will recall, in paragraph [150], which is a reference back to an earlier discussion as to how that came about.  It is as a result of the wearing of the bolt on the adjoining surface and the absence of a particular washer, and also the sequence in which the stripe in the ordinary course in accordance with the manual is to be applied – that is, after the torqueing – if that is the right word - of the bolt and its adjoining parts.

All of those things, in our submission, are sound reasons for the view the trial judge reached.  Those reasons, with the plain defective inspections conducted by the LAMEs and, accordingly, the limitation of relying upon the inference to be drawn from them, them not having seen this problem, means that finding was plainly open to the trial judge, in our submission.  It involved, as it must, the matter of weight given to the respective evidence of Mr Ogier and the observations made by the trial judge of the LAMEs ‑ ‑ ‑

KIEFEL J:   This is your Farah v Say-Dee point, really, about the interference with findings.

MR DOYLE:   It is.

KIEFEL J:   What about causation?

MR DOYLE:   As your Honours please.

GORDON J:   Are the respondents right to say that it was not an issue at trial?

MR DOYLE:   No.  The respondents assert that, but it is not accepted; indeed, it is not right to say that.  The question of causation really is there was no finding about it by the majority – unless it is demonstrated there was not an issue at trial about it, and we do not accept that.  I will show you in a moment why.  The President expressed a conclusion about it, but without any reasons, and Justice Wilson did not touch upon it at all.

The reasons, in our submission, why there is a real issue about causation, I think we have summarised in our written submissions at page 93 of the book, paragraph 37.  In summary, it is this, your Honours.  Just on the question of causation.  It is said the manual should have said “apply a spanner” or “apply a torque wrench” in certain circumstances.  But the evidence that we have referred your Honours to is that the LAMEs who conducted this maintenance – that is, both Bray and Fisher – said they knew that the way to determine whether the bolt was properly torsioned was by the application of a torque wrench.

There was also considerable doubt, as we have shown, that they were slavishly following the manual.  Bray in fact said that it was his usual practice to apply a spanner, so the question of if the manual had said to do that may not have made any difference to his practice.  There was no evidence from either of them that if the manual had contained such an instruction they would have followed it. 

They were both called.  The respondents, who called them – we think this was a part of their case – would have asked them if it had said “apply a torque wrench” or “apply a spanner”, would you have done it and they could have said yes, but they did not.  There was evidence from both of them, to which we have referred in our outline, that they did not necessarily work through the manual at all whilst conducting their maintenance.

GORDON J:   That does not seem to be the position adopted by the respondents.  They seem to contend that there was a notice of contention before the Court of Appeal which was not pursued.  It is paragraph 35 on page 135 of the application book.

MR DOYLE:   Your Honours, I am, in a sense, not sure how to resolve this.  It is not accepted, on my instructions, that there was no issue about causation – I put too many negatives in there, but there was an issue about causation and it needed to be decided, and it has been, in a sense.  It has been concluded against us by the President, without reasons, and not at all by Justice Wilson.

GORDON J:   Was it the subject of argument before the Court of Appeal?

MR DOYLE:   The facts that I have just taken you to were things that were before the Court of Appeal – that is, the absence of reliance by the LAMEs on the manual in carrying out the performance of their work, the fact they did not comply with the manual in certain respects.  The things that I have just taken you to were all things that were explored before the Court of Appeal.

KIEFEL J:   In the context of causation, though – was that expressly ‑ ‑ ‑

MR DOYLE:   I am going to say – can I just confirm that?  I can tell your Honours I have asked this question very clearly.  I have been told that it was a live issue on appeal.  I will just have that confirmed.  Your Honours can see that that is confirmed.  It is said against us in a generic way that it was not, but we do not accept that.  The first part of the case, about the departure from the trial judge’s conclusions of fact, is sufficient for the grant of special leave, in our submission ‑ ‑ ‑

GORDON J:   I suppose my concern, Mr Doyle, is really what is the last line on page 135 over to 136 of the application book, and that is it seems to be that causation is a red herring.  If you are right about this question, then that is sufficient, and if it is not, then that is the end of it.  Is that not right, on the basis that, as it is set out, that both sides accepted that the “LAMEs (and pilots) obey” what is in the manufacturers’ instructions and they had not complied with it?

MR DOYLE:   No, your Honour.  I have, in fact, taken you to already – it was common ground they had conducted a defective inspection ‑ ‑ ‑

GORDON J:   We are talking about the application for special leave.  We are talking about whether or not that causation question is necessary.

MR DOYLE:   It is unnecessary, because if we are right, you do not get to liability, that is, our application can succeed because of the first point we have taken you to.  Whatever view they might have taken of the causation question, the Court of Appeal was wrong to find that the manual was defective.  The second point that is put against us is if we are wrong about that, we still have a causation question, and we say it is a live question.  The suggestion that it was not argued is not recorded in the reasons.  It is not said ‑ ‑ ‑

KIEFEL J:   Yes, I noticed that.

MR DOYLE:   It is, in our submission, a live question.  Your Honours, I know I have run out of time.  The first question is one in which a trial judge made careful reasons for adopting a particular course, accepting as he did Mr Ogier’s evidence, and those reasons – that is, the reasons he gives – are not dealt with on appeal.  The President refers to them, but there is no analysis of why they are wrong. 

That demonstrates, in our submission, the misapplication of the Say‑Dee question, particularly in this case, because the President starts her reasons by saying the case is a very finely balanced one; very hard and very finely balanced.  That might be true spoken globally, but if it is a reference to what is the core question of whether that finding in paragraph [150] should be overturned, it is wrong to overturn it if it is finely balanced.  It requires something much more than that.  Those are our submissions.

KIEFEL J:   Yes, Mr Sofronoff.

MR SOFRONOFF:   Your Honours, causation was not in issue, as I will show from the reasons of Justice Lyons and the members of the Court of Appeal.  It was not in issue for this reason.  This was a case where not mere mechanics were involved, but specialist mechanics were involved.  The case was conducted upon the common ground that these highly trained aircraft mechanics regarded the individual manual of instructions directed to them, a separate one for each model and make of aircraft, as the bible that is to be regarded by them as though they were fundamentalists; they were to follow it to the letter.

Our case was that having followed the existing manual to the letter, it was not sufficient to pick up the defect that existed.  The other side’s case was that the manual was adequate, and had they followed it to the letter, everything that had to be detected would have been detected.  For that reason, if your Honours look at Justice Lyons’ reasons, the trial judge ‑ ‑ ‑

KIEFEL J:   Well, there was an issue about whether they followed it.

MR SOFRONOFF:   Yes, that is right, that was the issue.  We know that Robinson believes that – I say Justice Lyons, but your Honour has just asked me something.  If your Honours would go to paragraph [89] of Justice Wilson’s reasons at page 74, after this case and because of the controversy about whether the manual adequately instructed mechanics to look at the torque stripe and to read its significance, the manual was changed in the way that is described in [89].  That is consistent with the position of the manual as a fundamental guide that must be strictly followed.

Then, if your Honours would go to page 29, your Honours will see in paragraph [137], his Honour in the first sentence summarised the elements of the cause of action, the admission by Robinson of the duty to take care, and then in the fourth line, his Honour identified what he described as “the primary question” as to whether the duty was breached or not.  That was not only the primary question; that was the only question.  In the first sentence of paragraph [138], his Honour said:

Ultimately, it seems to me that in respect of negligence‑based claims, the question is whether the provisions of the Maintenance Manual are adequate –

Nobody argued at the trial or on appeal that had the instruction we contended for been inserted in the manual, LAMEs would have disregarded it, or would have disregarded it in this case.  If your Honours then go to the reasons of Justice Holmes ‑ ‑ ‑

KIEFEL J:   But was it accepted that they would have followed anything that was in the manual?

MR SOFRONOFF:   It was common ground – there was no argument, but that ‑ ‑ ‑

KIEFEL J:   When you say “common ground”, Mr Sofronoff, you are not saying by reference to some admission in a pleading, or a statement made to the primary judge or to the Court of Appeal, but rather by the way things were run.  Is that really what you are saying?

MR SOFRONOFF:   Yes, and also by reference to the pleadings because, as we point out in our outline at page 128, paragraph 7, we contended the manual was inadequate, in our statement of claim, because all it said was that it instructed LAMEs to “verify security”.  By way of defence, it was alleged that the cause of the accident was a failure of LAMEs to look at the part and to detect missing or broken torque stripes.  That is on the footing that they apply a standard, and had they applied the standard, the accident would not have happened.  Then, at paragraph 11 on page 129:

The evidence of these witnesses was not challenged –

that is, the LAMEs, who each of them said they complied with the manual –

nor was the . . . allegation . . . put to any of them.

So, the case was conducted on the footing that if we established that the failure of the mechanics and the five pilots to detect the defect was due to no instruction being contained in the manual, which would have served to direct them to that, then we win.  If your Honours look at Justice Holmes’ reasons at page 66, her Honour also directed attention to the only issue in the trial and in the appeal, namely the adequacy of the manual, because having concluded that the manual was adequate, no mention is made of any argument that did not need to be dealt with concerning causation, or to go on to identify the argument and find in ‑ ‑ ‑

KIEFEL J:   What about what her Honour says at paragraph [40], second‑last line?

MR SOFRONOFF:   What her Honour is describing there is that if one finds as a fact that Mr Bray and Mr Fisher understood, by reference to their training rather than the manual, that this was of significance, that it did not matter that there was nothing in the manual concerning it ‑ ‑ ‑

KIEFEL J:   Accepting that, what her Honour says implies that causation was in issue ‑ ‑ ‑

MR SOFRONOFF:   No, your Honour – I am sorry, your Honour.

KIEFEL J:   ‑ ‑ ‑ before the Court of Appeal.

MR SOFRONOFF:   I was going to say, causation was in issue only in this sense, that the expression “verify security”, it was contended by the applicant, meant that a LAME with adequate training would do the things that we said should have been contained in the manual.

KIEFEL J:   Was not the evidence that the two LAMEs understood that to be the case?

MR SOFRONOFF:   No, the two LAMEs - their evidence was that they followed the manual scrupulously, and if they were alerted to a sign of a defect in terms of the manual and, indeed, in terms of their own training concerning a broken torque stripe, they would have reacted.  But nothing in the manual existed which alerted them, in fact, to the defect which undoubtedly existed at the date of their respective inspections. 

That must mean that either they were careless, which was not put to them, or that there was nothing to be seen despite the presence of the defect, with the consequence that the manual was deficient in not instructing them to do the one thing that would undoubtedly have revealed the presence of this defect, a loose bolt – that is, to apply a spanner; not a torque wrench, but a spanner – which would have shown that the joint was loose.  That is why causation did not figure in either the judge’s reasons in favour of the applicant, or in the Court of Appeal in either sets of judgments.

As to error, the contended for errors, this was a facts case.  The trial judge rejected the evidence of Mr Ogier, but Mr Ogier was not rejected on the basis of credit in the sense of not being believed because he was telling lies.  He was rejected on the basis that what he said was being said by a man of the experience that your Honours have heard.

KIEFEL J:   Accepting that it is largely a fact case, the Court of Appeal’s findings are a long way from the primary judge’s.  Can you point us to where the Court of Appeal identifies the error in his Honour’s reasoning?

MR SOFRONOFF:   Yes, I am just about to do that.  If your Honours would go to page 70.  First, as Justice Wilson pointed out at paragraph [66], his Honour found by a process of reasoning that:

no torque stripe was applied.

Then, if your Honours go to the top of the next page, his Honour also made a statement later in his judgment that was consistent with a torque stripe having been applied.  It is slightly ambiguous, but that ambiguity is resolved because, as his Honour Justice Wilson pointed out in paragraph [71], his Honour also said, in the passage in bold at the end:

‘While it is not clear precisely when the torque stripe broke –

So his Honour first found that there was no torque stripe, and then found that there was one, but it broke.  Had it been broken, of course, that would have been an alert on anybody’s case.  That is point number one.

Point number two, then, is that if the torque stripe had been missing or broken, on the evidence, that was not challenged, of the two LAMEs and the five pilots, that would have alerted each of them to the fact of something that required checking.  The pilots said they would not have flown the aircraft.  That is point number two.

Point number three is over the page, and it concerns the deterioration which is by no means a red herring.  A torque stripe, your Honours, is a thin line of paint applied to a bolt.  It is designed to be brittle, so that it will crack if there is any improper movement in the bolt to which it is applied.  In essence, you screw a bolt to a nut, and when it is adequately tight, you draw a line of paint over it.  If that nut moves to any degree, it will crack the paint.  The trouble with paint being brittle for that purpose is that in conditions anywhere in Australia, but in particular in the heat of the summer of the Northern Territory, the paint flakes away and breaks, and as a consequence, one sees many aircraft where critical joints ‑ ‑ ‑

KIEFEL J:   Are you giving expert evidence, Mr Sofronoff?

MR SOFRONOFF:   No, no, it is in the judgment, your Honour.  There were photographs in evidence.  His Honour is referring to it at the top of page 72, which showed helicopters with joints, including this joint, or relevantly this joint, containing deteriorated torque stripes.  As a consequence, the LAMEs and the pilots expressed a view that if you see a torque stripe that is deteriorated, that does not tell you anything.  It certainly does not tell you that you will then check the torque.  Robinson then changed its manual to give that instruction to LAMEs, not pilots.  So that is the third point.

The fourth point was that the two LAMEs called had serviced the helicopter some years before, and did not, of course, remember the particular job, but they gave evidence about their practice in following the manual.  It was not put to them that there must have been a broken torque stripe or a missing torque stripe in order to test their credit concerning whether it was probable, or even possible to any relevant degree, that they had failed in their duty. 

Our learned friend referred to the fact that one of them was asked, as witnesses are asked, “All right, you say that you would have reacted to this, but it is possible, is it not, that you did not?”  Being honest, the witness said “Yes, of course it is possible”, as any honest witness would.  That is the height of the evidence.  It was not a concession that it might have happened; it was a concession about a range of possibilities.

The fifth point is that the pilots who flew the aircraft each, on the evidence, inspected the aircraft, including this joint, before flying it.  At the top of page 73, you will see the evidence referred to of the pilot, McKendry, who said “he would investigate a broken torque stripe”.  At page 130 of the book, in our outline at 130 to 131, we set out the evidence of Mr Lewis, who would check the flex couplings, the relevant part – the couplings being the bolt, the centrepiece:

visually . . . as well as by touch to seek evidence of cracking [of any kind] or of loose nuts.

He understood what a torque stripe was, and then spoke about the deterioration.  It was not put to them during the course of these inspections they had missed it.

Fifthly, there were four possible conditions attaching to the torque stripe, apart from intact – never applied, missing, broken, incorrectly applied so that it slips and does not indicate anything, or deteriorated.  Two of those would indicate to anybody relevantly a defect.  Two of them would disguise or mask the defect.  Those were the four possibilities, and his Honour did not explain why his Honour discounted the two that masked the defect when considering the evidence of the LAMEs.  Justice Wilson was of the view that one explanation and, indeed, the only plausible explanation for five pilots and two LAMEs not to detect an indicative torque stripe was that the torque stripe was not indicative.

Sixthly, the only way, as his Honour found and as Robinson’s witness accepted, to check for the looseness so that you know beyond a doubt is to apply a wrench.  Could I explain the difference between a torque wrench and a wrench?  A torque wrench is a wrench with a gauge within it so that when you apply the correct torque, which is expressed in numbers, when you reach the correct torque the wrench gives an indication. 

You do not need to do that, and the disadvantage that is spoken of in paragraph [84] was a disadvantage of applying the torque wrench.  But this defect would have been found by applying a simple spanner.  That was not the subject of any instruction.  Over the page, the seventh error was that:

Robinson’s manual did not instruct LAMEs that a deteriorated . . . torque stripe –

was something which would have signified that you do not have an indicator now, and that is an unsafe condition within which to be, and you should now apply a torque wrench to the bolt because you do not know its state.  If it is torqued correctly, then reapply it.  That has now been rectified.

Eighthly, at paragraph [92], his Honour concluded that the learned trial judge was wrong because, as his Honour found, the trial judge found, if the torque stripe had been applied it would have broken, but if it would have broken, that would have signified defect and yet nobody saw the defect, which suggests that there was nothing to be seen.

Ninthly, at the top of page 75, his Honour did not give any reasons why he concluded that the torque stripe was missing or broken, as opposed to deteriorated.  We know why his Honour rejected the theory of slippage, so we know why his Honour did not accept that.  Tenthly, his Honour simply did not deal with why it could not have been a case of deterioration when deterioration is the most likely, for the reasons I have said. 

Finally, his Honour ought to have concluded, in Justice Wilson’s view, that because of the possibility that a torque stripe will signify nothing by reason of deterioration and would only signify something if it was absent or broken, a torque stripe was an insufficient safeguard for the safety of the people in the aircraft against the possibility of the failure of the critical bolt.  Those are the errors, your Honours.  It is a facts case, in our submission.  There is no issue of principle involved.

KIEFEL J:   Anything in reply, Mr Doyle?

MR DOYLE:   Four things, briefly, your Honours.  On the question of causation, as indications for the contention we make that the case was not run in the way it is put against us, we have already identified it was pleaded and accepted by both parties that the inspection by these two LAMEs was defective.  The evidence which was given of a particular LAME having missed a tell-tale sign is inconsistent with what our learned friends say was their evidence, namely that they followed the manual scrupulously.  That, in any event, is not their evidence, as we referred to in our written submissions.

In terms of the other liability questions, can I deal very briefly with the inconsistency question?  Your Honours will recall there is an apparent inconsistency between some parts of the reasons of the trial judge.  It is found in paragraph [150] – that is the paragraph I took you to at the start – at page 31, that the torque stripe was not applied.  It is then said that is inconsistent with paragraph ‑ ‑ ‑

GORDON J:   Is not [150] dealing with slippage?

MR DOYLE:   It is a conclusion that the torque stripe had not been applied because the other alternative of it being there and moving independently is rejected.  Sorry, your Honour – at page 41 of the book we get to what is said to be the inconsistent finding.  This is the trial judge rejecting something about the evidence of the two LAMEs.  About halfway down that paragraph, you will see it is 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 –

It is said by our learned friends and, indeed, by some of the majority, that that is an inconsistent finding.  It is not so, in our submission.  If you go back, you will see after the conclusion in [150], his Honour at paragraph [157] makes a finding that:

If a torque stripe had been correctly applied . . . it would have broken relatively shortly thereafter ‑ ‑ ‑

KIEFEL J:   So there are alternatives, are there?  It was either not there and they should have seen that, or if it was there, it was broken?

MR DOYLE:   Correct.  Your Honour, “the condition of the torque stripe” is an expression apt to describe either; if it is not there, or it is there but broken.  Indeed, to finish this, at paragraph [167], he says what follows is a consideration of some alternative things, in case I am wrong about what I have said before, and the apparently inconsistent finding is in paragraph [202], which is in that following alternative discussion.

KIEFEL J:   This instruction to verify - I think I probably incorrectly asked Mr Sofronoff whether or not the two LAMES themselves had said what they understood it to be.  His Honour the primary judge made a finding about what LAMEs generally would understand about that, did he not?

MR DOYLE:   They would know that if it is missing, if it is broken ‑ ‑ ‑

KIEFEL J:   It means look at the torque stripe.

MR DOYLE:   Correct – you have to do more.  What you have to do is to re‑torque it, essentially, which is why this discussion about deterioration is irrelevant.  The question is not whether a torque stripe proves security, or whether some difficulty with it means you go on and undertake some further investigation.  On the findings of the trial judge, it was either not there – that is his primary finding – or if it was there, it would have broken very shortly after – no time for it to deteriorate in the heat, and so on; it would have broken.  That is what his Honour’s findings are directed to.

Your Honours, I know that I am out of time, but I wanted to say two other things, if I may.  In terms of the response our learned friends offered to your Honour’s question, where did the trial judge go wrong, you will have observed not one aspect of that reasoning considered his Honour’s reasons for rejecting Mr Ogier in paragraph [150], that is, no part of the majority was – the trial judge said this will be rejected for these reasons. 

Indeed, it would seem at least Justice Wilson had overlooked that paragraph.  Can we ask you to go to Justice Wilson’s reasons at paragraph [83]?  There is a footnote 64, which is a reference to paragraph [150].  If you then go to paragraph [96], you will see his Honour says:

The second is that, on the evidence, other possible findings were in fact open:  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, and had rotated with the moving bolt – a possibility noted by the learned trial judge at paragraph [58] but not, otherwise, addressed –

and yet that is the very gravamen of what the trial judge addresses at paragraph [150], that possibility.  It would seem at least reasonably clear

what is open.  The critical issue – that is, why did the trial judge get it wrong in paragraph [150] – is not addressed at all.

Finally, your Honours, the four possibilities our learned friend identified, two which identify insecurity and two which mask it – the trial judge rejected one of those as a possibility, so you are only left with one, and that is deterioration.  It does not matter that it masks insecurity; that is, the contention that a deteriorated torque stripe might be there, even if the bolt is secure, does not matter, because liability does not follow from a secure bolt.  The finding in this case is that if a torque stripe had been there, it would have broken, not deteriorated, and that is the question.  Those are our submissions.

KIEFEL J:   The Court will adjourn briefly to consider this matter.

AT 11.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.54 AM:

KIEFEL J:   There will be a grant of special leave in this matter.  What is your time estimate, Mr Doyle?

MR DOYLE:   A day, your Honour.

KIEFEL J:   Do you agree with that?

MR SOFRONOFF:   I think it might go into a second day, your Honour; a day to a day and a half.

KIEFEL J:   All right, thank you.  Would the parties please see the Deputy Registrar before they leave in relation to a timetable, but I think I am reasonably confident to say this probably will not be set down in December.

AT 11.55 AM THE MATTER WAS CONCLUDED