Wilson Aviation P/L v P. & T. Aviation P/L

[1993] FCA 974

J AUSTRALIA

' A X , ~

JUDGES'CHAMBERS
FEDERAL COURT OF AUSTRALIA

t_
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JUDGMENT No. .., .... , 9741 ....... , ....... 93 , .... l

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NO. I' G 80 of 1991

)

GENERAL DIVISION )

BETWEEN: WILSON AVIATION PTY LIMITED

Applicant

AND:	P & T AVIATION PTY LIMITED	i	'
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CORAI4: Neaves J.

DATE: 23 December 1993 23

REASONS FOR JUDGMENT i

The applicant, Wilson Aviation Pty Limited, sues the respondent, P & T Aviation Pty Limited, for damages arising	! .
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out of incidents involving four aircraft operated by the	;
applicant. The four aircraft may be referred to by their	i
nationality and registration marks, namely W-CON, W-MKE, VH-	1
ETV and W-CFS. Each of the aircraft was damaged on landing

due to a malfunction of its landing gear.	The incidents in	I !-
respect of which the applicant sues occurred on 23 February	I ,
L -

1987, 28 April 1988, 6 May 1988 and 25 July 1988.

! !

The applicant's claim is pleaded in contract and in negligence and, in the case of the incidents involving the	. ,
! .
aircraft other than VH-CON, as a claim for damages under 6-82	!Z

of	the	T r a d e P r a c t i c e s A c t	1974	(Cth) arising	from conduct on	1 -
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the part of the respondent, in trade or commerce, that was	I
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nusleadlng or deceptive or likely to m~sleac or deceive wlthln the meanlng of s.52 of that Act.
From August 1983 to October 1990, alrcraft operated by the applicant, including the aircraft tl.2 subject of this proceeding, were malnly utlllsed to operate .?hat were referred to as freight runs in New South Wales for Security Express/Country Couriers which was a dlvision of Mayne Nickless Ltd. The freight runs, whlch were known as "bank runs", involved delivering bank documents between Sydney and several clties and towns in New South Wales. The aircraft in question had been in service for a long time and utilisation on "bank runs" was hlgh. Those activities required a high number of landings per hour of operation. It was also a requirement that the aircraft operate according to a tight schedule and, subject only to safety requirements, in all klnds of weather.
The respondent has, at all materlal times, carried March 1985, it was engaged by the applicant to maintain its on the business of maintaining and repairing aircraft. In	aircraft and has maintained the four aircraft in question at
all times material to this proceeding. The respondent was well aware of the circumstances in which the applicant's aircraft were operated.
It is convenient before proceeding further to refer to certain of the provisions, as in force at the material time, of the Alr Navigation Regulations and the Alr Navigation Orders lssued in pursuance of reg.8 of thosc Regulations.
Regulations 29 and 30 provldei for the issue, renewal and validation of certificates o: airworthiness in respect of Australian aircraft. Regulation 35 provided, inter alia, for the granting of certificates of approval to persons engaged, or intending to engage, in any stage of the maintenance of aircraft or aircraft components. The expression, "maintenance" was defined in reg.5(1) to mean -

"(a) in relation to an aircraft -

(i)the doing of any work (including a modification or repair) on the aircraft that may affect the safety of the aircraft or cause the aircraft to become a danger to person or property; or

(ii)the making of a test or an inspection for the purpose of ascertaining whether the aircraft is in a fit state for flying; or

(b) In relation to an aircraft component or aircraft material -

(i)the doing of any work (including a modification or repair) on the aircraft component or

or correct functioning; or aircraft material that may affect its soundness

(ii)the making of a test or an inspection for the purpose of ascertaining whether the aircraft component or aircraft material is sound or functioning correctly.VH-MKE"

Regulation 36 provided for the grant to a qualified person of an aircraft maintenance engineer licence, a licence which might have entered on it an endorsement specifying the limits of the work to which the licence related.

Under reg.39, the Secretary CO the relevant Department might approve a system of ce-tiflcat~on of the completion of stages of malntenance of In aircraft or an aircraft component and dlrect the instituti n of the system as so approved.

Regulation 43 authorised the Secretary to give directions specifying requirements for the malntenance of Australian alrcraft, to require the owner or operator of an Australian alrcraft to submit a proposed system of maintenance of the aircraft, and to approve and require the institution of that system, with or without modifications. A person directed to institute an approved system was required to prepare a manual settlng out details of the system and to furnish copies of the manual to such persons associated w ~ t h the maintenance of the aircraft as the Secretary should direct and to such persons in the employ of, or working under an arrangement with, the person directed to institute the system of maintenance as he considers necessary to permlt the system to

be carried out. The person directed under reg.43 to institute

a system of maintenance of an aircraft was not to fail to

comply with the requirements of the system in so far as those requirements applied in relation to him and to take all steps reasonably required to ensure that persons in his employ or working under an arrangement with him complied with the requirements of the system in so far as those requirements applied in relation to them.

By vlrtue of reg.44, malntenanc - was not to be carried out on an Australian aircraft on Australian territory except by a person who was, or was employem7 for that purpose by, an appropriate person in relatlon to thc maintenance. The expression "appropriate person", In 1 elation to any maintenance, was defined in reg.44(9) to include the holder of a certificate of approval covering the maintenance, a person working under an arrangement with such a holder and the holder of an alrcraft maintenance engineer licence covering the maintenance (other than a person acting in the course of his employment with an employer).

Regulation 48 relevantly provided:

"(1) Maintenance releases in respect of Australian aircraft shall be issued only by authorized persons and only in such manner, and in accordance with such form, as the Secretary directs.

(1A) The Secretary may give a direction specifying the information to be entered on a maintenance release before its issue.

(2) Where a person appointed as an authorized person the Secretary shall specify in the instrument of	for the purposes of this regulation is a body corporate,
appointment the condition that any maintenance release issued by the authorized person is to be signed, on behalf of the authorized person, by a specified person or by a person included in a specified class of persons.
(4) The Secretary may give a direction specifying the period, or the maximum period, that a maintenance release of a kind specified in the direction is to be expressed to remain in force.
(6) A maintenance release shall not be issued in respect of an aircraft unless -

(a)	all maintenance in respect of the aircraft required to be carrled out 1 J comply with any requirement or condltlon im mosed under these Regulations has been certlfl?d, in accordance with a system of certificatlc~ instituted under regulation 39 of these Regula Ions ...
(b)	. . .

(7) For the purposes of paragrapll (a) of the last preceding sub-regulation, the existenrce of an earlier maintenance release issued by vlrtue of that paragraph in respect of an aircraft may, in the absence of evidence to the contrary, be accepted by an authorized person for the purposes of this regulation as proof that all maintenance required under these Regulations to be carried out on the aircraft before the date of issue of the earlier maintenance release has been certified to have been completed as required by that paragraph.

(10) A person shall not issue a maintenance release in contravention of this regulation.

(12) A person shall not sign a malntenance release to be issued by virtue of paragraph (a) of sub-regulation (6) of this regulation in respect of an aircraft if -

(a) he considers that -

(1) the aircraft is in a damaged condition or

is defective;

(il) the damage is major damage or the defect

is a major defect, as the case may be; and

(iii)the damage or defect is not a permissible unserviceability;

(b)	he considers that maintenance carried out on the aircraft may have adversely affected, to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component, or of any system of aircraft components, installed in the aircraft;
(c)	he is aware that certain malntenance that has been carried out on the aircraft has not been certified, in accordance with a system of certification instituted under regulation 39 of these Regulations ... to have been completed; or

(d) he is aware that -

(1) information entered on the

maintenance release 1s incorrect; or

(11) the maintenance I-elease does not contain all lnforn7ation that it is requlred by 0:' under these Regulations to conttun.

Regulation 49K(1) provided:

"(1) The secretary may, for the purpose of ensuring

the safety of air navigation, give directions
specifying -

(a) the records to be kept in relation to -

(1) the maintenance done on Australian aircraft (including any aircraft component fitted in an Australian aircraft); and

(ii) the time in service of Australian aircraft and of aircraft components fitted in Australian aircraft;

(b)	the form of, and the manner of keeping, a record referred to in the last preceding paragraph; and
(c)	the period during which a record kept in
compliance with a direction under this regulation is to be retained by the person

keeping it, and the circumstances in which the record may, during that period, be transferred to another person."

The respondent was the holder of a certificate of approval under reg.35 of the Alr Navigation Regulations authorizing it to carry out maintenance on aircraft of the type here in question. The respondent's managing director, Francis Euan Campbell, was the holder, pursuant to reg.36 of those Regulations, of an alrcrait mal tenance engineer licence.

At all material times the alrcraft were "aerial work aircraft" within the meaning of that express~on in reg.5(1) of the Air Navigation Regulations, that is to say, they were employed in aerial work operations as specifled in reg.191 of those Regulations.

Except where otherwise approved or directed by the Secretary, section 100.5.1 of A L ~ Navigation Orders applied to all Australian aircraft for which an Australian certificate of airworthiness was in force and which were used in aerial work operations (section 100.5.1). Section 100.5.1.3.2 prescribed air inspection schedules for aeroplanes of maximum take off weight not greater than 2,750 kg and not turbine-powered or pressurised. It is common ground that, except as to daily inspections which were to be carried out in accordance with the Wilson Maintenance System (as to which see later), the

provisions prescribed by section 100.5.1.3.2 were relevant to	the maintenance of the alrcraft VH-CON and VH-ETV.
Those provisions required that the aircraft to which they applied be inspected in accordance with the periodic and major inspection schedules contained in Appendix IV to section 100.5.1 of the Air Navigation Orders. A periodic inspection was to be carried out immediately prior to the issue of a maintenance release for the aircraft. By virtue of the period
for which a mamtenance release was requlred zo be issued, the periodic inspection was normally required to be carried out at periods not exceeding 100 hours tlme in service of the aircraft or twelve months calendar period whichever first occurred (see section 100.5.1.6.4).
A major inspection was required to occur every three years, such major inspection to be carried out in respect of each licence category by the holder of a certificate of approval coverlng the maintenance (section 100.5.1.3.3). A major inspection was an inspection of such magnitude that the persons certifying in each licence category were satisfied that, with subsequent maintenance properly performed in accordance with the applicable requirements, that part of the aircraft applicable to the licence category for which they were certifying would be airworthy until the next major inspection was due to be performed (ibid.). Section 100.5.1.3.4 provided:

"(1) Except where such facilities can be shown to be aircraft and which involve substantial disassembly of the aircraft shall be carried out by the holder of a certificate of approval covering the maintenance. unnecessary, repairs and modification of an aircraft and replacement of an aircraft component on an

(2) Where the manufacturer of an aircraft or aircraft component specifies critical practices, procedures and processes such as torque values, adjustments, tests, checks, pressures, fits, clearances and tolerances for the maintenance of an aircraft or aircraft component such practices, procedures and processes shall, except where otherwise directed, approved or notified by the Secretary, be observed when carrying out maintenance on an aircraft of that type or on an alrcraft component >f that type when

installed in or belng installed in an aircraft."

Section 100.5.1.4.1 provided that the certifications requlred by section 100.5.1.4 were to be made in the appropriate log books which were there identified.

Section 100.5.1.6.1 prescribed the form of maintenance release. Section 100.5.1.6.4 provided that the total tlme in service of the aircraft until which a maintenance release was to be expressed to remain in force was, in respect of aeroplanes referred to in section 100.5.1.3.2, to be the total time in service of the aeroplane at the time of issue of the maintenance release plus 100 hours. Section 100.5.1.6.5 provided that the date until which a maintenance release was to be expressed to remain in force as a function of a calendar period was relevantly to be a date one year from the date of issue of the maintenance release or a date three years from the date of certification for completion of the last major inspection, whichever was the

earlier.

Appendix IV set out a periodic inspection schedule. It will be necessary to refer to some of the provisions of Appendix IV later in these reasons.

In the case of aircraft VH-MKE and VH-CFS, maintenance was to be carried out in accordance with a system known as the Wilson Maintenance System that had been approved

by the Secretary on 9 August 1985 under I ~g.43 of the Air Navigation Regulations. That system, detalls of which are contained in the Nilson Maintenance System I%anual, prescribed what was to occur at a dally inspection ~ n d at what were

called a "Check 1 Inspection" and a "Check Inspection". A

"Check 1 Inspection" was to be carried out & L a maximum of 50 hours time in service from the previous "Cha?ck 2 Inspection" or at a maximum of three months from the ~lrevious "Check 2 Inspection". A "Check 2 Inspection", which was a more substantial inspection then a "Check 1 Inspection", was to be carried out at a maximum of 100 hours time in service from the previous "Check 2 Inspection" or at a maximum of six months from the previous "Check 2 Inspection". A maintenance release was to be issued and certified at the completion of each "Check 2 Inspection". Under the Wilson Maintenance System an aircraft was exempt from the major inspect~on requirements contained in Air Navigation Orders, section 100.5.1, while it was being maintained in accordance with the current overhaul and replacement time limits designated by the manufacturer.

The incident involvina W-CON

W-CON is a Piper PA-30 Twin Comanche aircraft. It

is a twin engined light aircraft with a tricycle type fully

retractable undercarriage. It bears the serial number 30- 1892. At all material times, the aircraft was being purchased by the applicant under a hire purchase agreement.

On 23 February 1987, Davld F iddock, a pllot instructor employed by Aero Professlo~~al Pty Limlted conducted, as an approved check and tralnlnc captain, a pilot instrument rating renewal test for a pllot, : v L r D. Dorrlngton, using VH-CON. Mr Maddock was qualifiec as a Grade 1 Instructor and a Class 1 Instrument Instructor. His evidence as to what occurred was not challenged.

During the course of the test, Mr Maddock simulated

a single engine landing approach. This involved extending the undercarriage and reducing the mixture control on the left hand engine to the idle cut off level thus simulating a left hand engine failure. The pilot, Mr Dorrlngton, correctly identified the failure and reacted to the simulated emergency by applying substantial right rudder in order to maintain

directional control of the aircraft. As will appear, the

rudder pedals also operate the nose wheel when it is in the fully extended position so that the effect of applying substantial right rudder was to turn the nose wheel hard to

positlon by the pilot and the left hand engine returned to	altitude, the undercarriage lever was selected to the up the rlght. When the aircraft had reached its minimum allowed
normal power. According to Mr Maddock's evidence:

"When the undercarriage was retracting the circuit breaker for the electrical motor that operates the gearbox activated, stopping further retraction of the landing gear. The circuit breaker was reset but immediately activated again. The circuit breaker would not reset, stopping the undercarriage from completely retracting."

I interpolate to say that there is evidence that, on

previous occasions, the circult breaker had qctivated when the

undercarriage was being retracted but that. on the clrcult

breaker being reset, the undercarriage h a d completed its retraction. The evidence also establishes that attempts to identify and rectlfy the problem had not becn successful. It is not suggested that the activation of th.: circuit breaker

was a significant factor in relatlon to '.he cause of the

incident the subject of this proceeding.

The aircraft was flown to West Maitland. The

relevant controls were activated but the landing gear down

indicator did not come on and the circult breaker again

activated. Further attempts to operate the undercarriage had

the same result. An attempt was then made to extend the

undercarriage manually but it would not extend beyond about

the two-thirds down position nor completely retract. The

pilot of another aircraft who inspected the landing gear by

flying under VH-CON reported to Mr Maddock that the

undercarriage was only part~ally down and that the nose wheel

appeared to be turned to the right.

The aircraft was then flown to Bankstown airport where, after further attempts to lower the landing gear, an emergency landing was effected wlth the wheels in the mid- retract position. The aircraft suffered damage to its undershell and both propellers. At the time of this emergency landing, the time in service of the aircraft was 8,146 hours.

It had flown a total of 7 3 hours slnc lts last major lnspectlon (certified on 2 June 1 9 8 6 when the aircraft had flown a total of 8,073 hours) and 2 4 hours slnce an incident on 20 July 1 9 8 6 to which reierence !ill1 be n:de later in these reasons.

After the alrcraft had come to rest, the nose cell lnspectlon panel was removed from the nose of the aircraft. Inspections were then carried out by Lindsay Stuart Dougherty, William Norman Bruyn and Francis Euan Campbell. Mr Dougherty described himself as an Aviation Loss Assessor and the manager of L.S. Dougherty & Associates which carries on the business of aviation insurance loss assessing and adjusting. He holds a private pilot's licence. He has held an aircraft maintenance engineer licence for more than 35 years. That licence includes certification in respect of Piper Twin Comanche aircraft. Mr Bruyn was, in 1 9 8 7 , an airworthiness surveyor with the Department of Aviation and a licensed aircraft maintenance engineer. As previously mentioned, Mr

Campbell is the managing director of the respondent. He is	also a licensed aircraft maintenance engineer.
Mr Dougherty said that he could see directly down into the nose landing gear cell and observed "that the nose landing gear aligner roller ('the aligner roller') had derailed from the nose landing gear aligner channel ('the aligner channel') and was jammed on the right hand side of the aligner channel. Messrs Bruyn and Campbell agreed with Mr

Dougherty's observation. Mr Dougherty sald e did not believe that "the landing accident could have c~used the aligner roller to jam outside the allgner chanr.21". I do not understand any witness to have asserted the contrary.

In a report into the incident prepared by Mr Bruyn, it is stated that, on inspection, it was found that "the nose centring roller was jammed on the outside of the centring guide" and that "[blecause of this problem the pilot was unable to extend the landing gear electrically or manually". The report further stated that "[the] aircraft was lifted by crane and the centring roller removed" whereupon "the landing gear then dropped out and locked down normally". Mr Campbell gave evidence to the same effect.

The aircraft was moved to the respondent's hangar at Bankstown airport and placed on jacks. The aligner roller was refitted. Bruyn carried out simulated tests on the operation of the nose wheel landing gear aimed at determining

determined that "the roller would jump out of the guide as the	the cause of the roller coming out of its guide. Mr Bruyn
nose wheel [was] retracting with full right rudder pedal applied". Mr Bruyn, in the presence of Mr David Chin, an employee of the respondent, then carried out checks of "the rudder through to nose wheel steerlng rigging" and made a report on his findings. Mr Campbell's recollection was that
Mt Chin "went through" the checks with Mr Bruyn. He did not
suggest that M r Chin had ever raised with him the inaccuracy of any of Mr Bruyn's f~ndings or any c ncern as to the methodology employed by Mr Bruyn.
Before settlng out other relev nt parts of Mr Bruyn's report, it is necessary to refer to .ertain background material against which his report is to be rcsd.
The movement of the rudder of thc aircraft to the right or left of the neutral position is cor~trolled by rudder control cables connecting the rudder assembly at the tail of the aircraft to the rudder pedal assembly located near the forward cabln bulkhead. The relevant Piper Twin Comanche Service Manual ("the Manual") issued by the manufacturer, in the form in which it stood at the relevant time, specifies that the correct travel of the rudder, measured perpendicular to the hinge, is to be 27' 2 1' to the right and left of the neutral position. The degree of travel in either direction may be adjusted by the use of rudder stops at the rudder hlnge bracket. The Manual specifies that the appropriate components
completely there will be full deflection of the rudder to the are to be adjusted so that when each rudder pedal is depressed

right or left as the case may be. The Manual also specifies that the tension of the rudder control cables as measured at the flexible position of the control cable near the forward cabin bulkhead is to be 25 lbs to 40 lbs and, in relation to the rudder pedals, that the neutral position is to be 13' aft of the vertical position with the aircraft level, that the distance neutral to forward is to be 3.51 inches and that the

dlstance neutral to aft is to be 3.18 inche . In relat~on to the specification of rudder control cable ts-nslon, the Manual contains the following notation:

"Cable tensions given apply only to anplanes wlthout autopilot bridle cables attached. Refer to appropriate autopilot service manual for proper cable tensions when attaching bridle cables."

Although it appeared during the course of the hearing that VH-

CON was fitted with an autopilot, no autopilot service manual

was tendered in evidence. M r Bruyn's evidence was that the effect of the presence of an auto pilot on cable tensions would be minimal or may have required that tensions be somewhat higher.

The nose landing wheel is used to steer the aircraft on the ground. The rudder pedal assembly operates the nose wheel steering assembly by means of push-pull steering rods. It does so, however, in such a way that movement of the rudder pedals will correspondingly steer the nose wheel only when the

slightly forward of the vertical and locked in position. The	nose wheel landing gear is fully extended to a position
Manual (par.7-13) requires that the nose wheel steering assembly be adjusted so that the nose wheel will steer 25O maximum and 19' minimum to the right and left of the neutral position.
One of the components of the nose wheel landing gear assembly is an outer casing referred to as a trunnion through which pass a steering arm and an oleo strut Integral to the trunnion are stops designed to limit the 6 gree to which the nose landing wheel may be steered to the r ght or left. The stops are not adjustable except by fil ng them down to increase the arc of turn of the nose 1andir.j wheel. The stops are intended to prevent the nose landlng whcel being deflected more than 25O to the right or left of the neutral position.
It is possible for a stop to become damaged if it is under frequent impact. This may occur if the aircraft is being consistently subject to tight turnlng movements in taxiing or in tractor towing, so as to cause maximum deflection of the nose landing wheel. There is, however, no evidence to suggest that VH-CON was subjected to any mishandling on the ground which could have resulted in the defective rigging found by Mr Bruyn.
In order that the nose wheel landing gear may correctly retract into the nose landing gear cell it is
This is achieved by the operation of an allgner roller and an necessary that the nose wheel be in the neutral position.
aligner channel. The aligner channel is fixed on the top of the castoring section of the nose landing gear and the aligner roller is a fixture in the top of the nose gear cell. The aligner channel has a flared end which should engage the aligner roller as the nose wheel landing gear retracts, thus ensuring that the nose wheel is turned to the neutral position as the nose wheel landing gear retracts. It is apparent that, if the nose wheel is permitted to steer in +xcess of 25" to the right or left of the neutral posltlon, tt,? aligner channel will not engage the aligner roller on r-traction of the undercarriage.
The Manual contains provisions (par.5.37) In relation to the rigging and adjustment of the rudder controls. The first step is to ascertain that the nose gear is properly aligned with the rudder pedals. Next, the rudder is to be checked, and, if required, adjusted for neutral alignment with relation to the neutral position of the rudder pedals, and the cables are to be checked for correct tension. In relation to those checks, the Manual provldes for the alrcraft to be placed on jacks to clear the nose wheel and for the rudder pedals to be clamped to align in a lateral position. The Manual continues (par.5.37(b)):

"4. Ascertain that rudder trlm bungee is in neutral position. (1.437 of exposed rudder trim bungee screw

surface	. . . ) .
5. Install a small diameter rod on to the bottom of the rudder at the trailing edge ...

6. Apply masking tape at 90" to airplane centerline, between stabilator halves immediately beneath rod inserted on rudder. On tape, mark the airplane centerline (stabilator trim control rod) and a line k inch to right of centerline ...

7. With rudder pedals clamped, check that the rod in the rudder aligns with aircraft centerline and cable tension is correct ... On PA-30 aircraft Serial Nos. 30-

1 to 30-2000 incl. with Airflow Modification Kit 760 409

or 760 564, the rudder should be rlgged so that with the pedals clamped the rod in the rudder should align with the point f inch outboard of aircraft centerline as

established in Step 6, and cable tension is correct .. .

(Cable tension is taken at the flexlj le portlon of the
cable at the forward cabln bulkhead, stltlon 50.0.)"

In relation to checking and adjus.mg rudder travel, the Manual provides (par.5.37(~)):

"1. At a distance of 6.52 lnches (6.87 inches right and 6.44 inches left on aircreft with Airflow Modification Kit installed) outboard from the centerline of the airplane (stabilator trim control rod), make two small dots approximately six inches apart fore and aft, with a pencil, on the top surface of the stabilator, both sides of the rudder and parallel to the airplane's centerline.

2. Run masking tape on each stabilizer surface fore and aft with the edge of the tape placed at the outboard side of the pencil marks.

3. Disconnect the rudder trim system at the lower end of the trim bellcrank at station 251.5.

4. With the small rod attached to the trailing
edge of the rudder, swing the rudder in both directions

to determine that the pointer intersects the inboard edge

of the tapes. (Refer to Figure 5-13.)

5. Should the pointer not intersect the inboard edge of the tape, adjust the rudder stops at the rudder hinge bracket to obtain correct travel.

6. Ascertain rudder trim controls are properly

rigged per Paragraph 5-45 and connect control rod to trim

pedal completely and check for full deflection of the

bellcrank. 7. From the pilot's seat only, depress each rudder

rudder to each side.

8. Should the pointer not intersect the inboard

edge of the tape, check for interference at the rudder
horn and the nose gear travel stops.

9. If interference is found at the nose gear travel stops, located at the bottom of the strut housing, rework the stops until full deflection of the rudder in both directions is obtained.

NOTE

Maximum allowable nose gear travel is 25 degrees

10. Check full travel of the nose wh.?el and rudder to

determine that the rudder hits its sto~s just before the
nose wheel hits its stops."

In the light of this background material, further reference may now be made to Mr Bruyn's report. It reads:

"Rudder - The neutral position is set 7 mm to left of

specification.

Right rudder stop is set within limits.

Left rudder stop is set 10 mm too far left.

With the rear rudder spring removed the rudder contacts both left and right stops wlth the appropriate pedal pushed fully forward. Both pedals when fully forward contact the forward bulkhead.

With the rear rudder spring fitted the rudder does not contact the stops and the pedals again foul the forward bulkhead.

In this case the rudder travel is O.K. to the left and 8 mm short of proper travel to right.

Cables - The cable run was free however tension is 20 lb and should be 25 - 40 lb.

Pedals - The pedal arms should be 13O from vertical

however are set at 10°.

Nose Wheel Steerinq - The nose wheel should steer 19' -

25' left and right. In thls case the wheel steered 20'

left and 25O right. The maximum limit is 25' left and
right and is limited by the nose leg mechanical stops.

In this case the left stop is 25O however the right stop is 28O - 30° that is 5O in excess of the limit.

With the aircraft jacked and gear extended and the nose wheel steered to its maximum to the right it was found that during retraction the guide roller would contact the edge of the guide and jump to the outside of the guide.

When the gear was extended the roller would jam at the point of flare of the guide.

T h ~ s s~tuation would occur whenever thc landing gear was

retracted w ~ t h full r~ght rudder peda. applied and the

nose wheel beyond 25O r~ght.

Rigging faults from the rudder through to the pedals and the ability of the nose wheel to turn right in excess of

25' allowed the nose gear alignment rolier to jump out of

the guide thus causlng the nose gear and therefore the

main gear to fail to extend.

Other Aspects

It was found that the rudder has a severe twist.

It was found that the steering rollers to nose steering arm have excessive clearance.

This aircraft was involved in a wheel up landing in July

1986. "

Mr Bruyn was cross-examined. He readily agreed that, although he had some recollection of carrying out the investigation the results of which are recorded in his report, hls evidence depended very much upon what was in that report. He could not recall that the aircraft, as was proved to be the fact, was fitted with an auto pilot (see the note to the

provisions of the Manual specifying the rudder control cable

checking the neutral alignment of the rudder, he had proceeded	tension as set out above). Nor was he able to say whether, in
on the basis that the aircraft, as was subsequently proved to be the case, was fitted with an Airflow Modification Kit 760-
409 (see par.7 of the provisions of the Manual concerning the
checking and adjustment of the neutral alignment of the rudder and par.1 of the provisions of the Manual relating to checking and adjusting rudder travel, those provisions being set out above). He was, however, firm in the view that he had proceeded strlctly in accordance with the r quirements of the
Manual and I accept that he did so. I also accept that the report correctly records what 1.Lr Bruyn found to be the
condition of the aircraft at the tlme of his investigation. I
am fortified in that conclus~on by two circumstances. The first is that M r Chln, the respondent's employee who observed, if he did not participate in, the tests carried out by M r
BrUyn, did not give evidence and his absence was not explained. The second is that the respondent, at or about the time of Mr Bruyn's investigation, did not question the accuracy of Mr Bruyn's methodology or any of his findings notwithstanding that it was given an opportunity to do so. Such an opportunity was afforded by a letter sent to the respondent by the Department of Aviation early in May 1987 informing the respondent of the results of Mr Bruyn's investigation and asking the respondent why the procedures and practices set out in the Air Navigation Orders and the Manual had not been observed and what corrective action was to be taken to ensure that defects such as those detailed in the
of the rudder, proceeded on the erroneous assumption that the letter did not occur in the future. I should add that, even if Mr Bruyn, in carrying out the check of the neutral position
aircraft was not fitted with an Airflow Modification Kit 760-
409, the result would have been a finding of a higher degree
of error than that which Mr Bruyn reported.

Mr Dougherty referred to the results of the tests

carried out by Mr Bruyn. He expressed the opinion, based on his experience, that, when flying a twln e-?gined aircraft on one engine, the pilot must be hold~ng "full corrective rudder" to ensure that the aircraft continues flylng in a straight line and that, when applying full r~ght hand rudder, the pilot turns the nose wheel "as far to the rlght as the rigging will allow". He concluded that the sequence of events which resulted in the undercarriage failing to extend fully on the occasion in question was as follows:

"(a) The nose wheel steering rigging and flight controls

were misrigged and allowed the nose wheel to turn

28O - 30' to the right when full right rudder was

applied.

(b)	On 23 February 1987 at the end of the simulated single engine landing approach the pilot retracted the landing gear whilst holding full right rudder.
(c)	The misrigged nose wheel steering caused the aligner channel to pass to the right of and miss the aligner roller.
(d)	After the pilot ceased to apply full right rudder the aligner roller jammed outside the aligner channel.
(e)	The undercarriage was consequently jammed in the mid retract position."

It appears from documents included in Exhibit B (the aircraft's log book) that a major inspection of VH-CON had become due on 25 February 1986 but that that inspection was, with the approval of the Department of Aviation but subject to certain conditions, postponed until 25 April 1986. According to Mr Campbell, the major inspection began on 28 April 1986 and continued until its completion on 28 May 1986. At the time of that inspection, the aircraft's total flying time was

8,073 hours. The aircraft's log book, against the date 2 June

1986, records the carrying out of a major inspection of the aircraft and of a periodic inspection in accordance with Air Navigation Order 100.5.1, Appendix 4. It then notes various items of work that were carried out in the course of the inspections. There is nothing in the entry ln the log book to indicate that a complete check of the nose wheel steering rigging or the rudder control rlgging was carried out during the inspection. In the absence of any corroborative evidence, I do not accept Mr Campbell's assertion that such a check was made during the major inspection. As will appear, there are substantial parts of his evidence that I am unable to accept.

A disturbing feature of M r Campbell's evidence which cannot be allowed to pass unnoticed concerns the manner in which entries in the log book were certified. The log book for VH-CON contains an entry, against the date 2 June 1986, which reads:

installation, rigging, tensioning, correct operation and	"Duplicate insp of flying controls & cables,
locking. "

That entry is followed by two signatures. Against the notation "1st inspection" appears the signature of Mr Campbell. Against the notation "2nd inspection" appears the signature of George Dusting. It is clear on the evidence that Mr Campbell did not carry out the first inspection. He said that it had been carried out by Chandras Naragan, an employee

of the respondent. It is also clear that !r Dustlng dld not carry out any inspection prior to appending his signature to the document. Mr Campbell said he carr1.d out the second inspect~on.

On 20 July 1986 the alrcraft had been involved in an
incldent in whlch it made "a wheels up landing". The damage

to the alrcraft mcluded damage to its underskin and propellers and required removal of both engines, the right hand engine being overhauled and the left hand engine changed. The total flying time in service of the alrcraft as at that date was 8,122 hours. It had, thus, flown a total of 49 hours since the major inspection certified on 2 June 1986. Repairs were carried out to the aircraft by the respondent. The respondent made entries in the log book of the aircraft and lssued a maintenance release. The relevant log book entry (under date 1 0 November 1 9 8 6 ) includes the following -

"U/C cables freed & lubricated, u/c retracted height cables & micro switch adjusted, main & nose gear doors

tensions & rlgging adjusted".

The respondent's invoice for the work, dated 18 November 1986, records, inter alia, that the cost to the applicant included a charge for removing and refitting the undercarriage actuator and motor and undercarriage actuator relay assembly, the manufacture and fitting of new lower fuselage skins, repairs to the rib structure under the floor, and the checking of the undercarriage rlgging.

Mr Dougherty inspected the aircraft on 2 1 July 1986, the day after the incldent. The alrcraft was then posltloned outslde the respondent's hangar at Bankstown alrport. He said that hls inspection of the alrcraft revealed "severe structural damage, skln abrasion and buckling to the fuselage belly skins". He continued:

"This indicated severe and rough belly impact with the ground. I also noted the nose gear doors were only abraded on their opening edges which is consistent with, and indicative of, the exposure of the undercarriage and the landing gear to impact or force dur~ng the crash landing.

Where there are indications that an undercarriage malfunction existed and that the doors were open on lmpact and/or the landing gear and nose wheel were exposed to impact forces and possible forceable [sic] retraction, the landlng gear system may be put out of adjustment and the usual practice of a prudent repairer when carrying out repalr work after such an incident would include conducting a complete undercarriage rigging check. This would include a nose landing gear alignment

check.. "

In an interview on 2 2 July 1 9 8 6 with the pilot of

up landing", the pilot had been informed by the control tower	the aircraft, M r Dougherty was told that, prior to the "wheels
at Bankstown airport that "the undercarriage was in the retracted position but hanging down about slx inches".
The Bureau of Air Safety Investigation report in relation to the incident reads:

"On returning from a flight in the local area, the aircraft was cleared for a straight-3 I approach. When the gear was selected down the in-transit light illuminated and stayed on. The gear werning horn sounded and a go-around was made from short f - nal. Following a flypast, the Control Tower confirmed th,it the wheels were only partially extended. As the aircraft was climbing through about 700 feet, there was a surge of engine power and the aircraft yawed from slde to s~de, mainly to the right. The pilot assumed that the right engine had failed, closed both throttles and made a gear-up landing on the grass alongside the runway. Inltial investigation revealed that the gear motor circuit breaker had popped. This was a known fault with the aircraft, although the pilot had not been alerted to it. Although fuel was found in the right main and both auxiliary tanks, none remained in the left main and the left engine system was devoid of fuel.

During his pre-flight inspection, the pilot had evidently over-estimated the quantity of fuel in the left main tank. He had limited experience on multi-engine aircraft and had not been formally checked on asymmetric handling procedures for some 4 years. Under the circumstances, he elected not to attempt to maintain height on one engine and concentrated on achieving a safe forced landing."

Under cover of a letter dated 28 August 1986, the Department of Aviation sent to the respondent an aircraft survey report of that date which had been prepared as a result of an inspection of the aircraft following the incident on 20

July 1986. By the survey report the respondent was directed, pursuant to reg.43(1) of the Air Navigation Regulations, to	have certain maintenance work carried out and certified prior
to further flight of the aircraft. One of the items read:

"Main and nose landing gear including gear doors require
rigging correctly."

Mr Campbell agreed that the direction required a complete under carriage rigging check including a nose landing

gear alignment check. The Deparment t7as subsequently informed that the work required had been cirried out. It IS, however, clear on the evidence that a ncse wheel alignment check was not carried out following the 1 cldent of 20 July

1986.

Mr Campbell, in his evidence, sald that he saw the aircraft in its damaged condition after the landing and inspected the undercarriage and the gear doors. He said that "the nose wheel was up in its hole; the doors were almost closed and by almost I mean hanging probably % inch, 3 inch and the main wheels were just hanging slightly". Mr Campbell also said that the nose landing gear assembly was inspected and found not to be damaged. No details were given as to the nature of the inspection that was carried out.

Barry Thomas Hopkins, an aviation insurance loss
assessor and adjuster employed by Airclainls (Australia) Pty

Limited and a licensed aircraft maintenance engineer, gave

contrary to that expressed by Mr Dougherty. He did so on the	evidence on behalf of the respondent. He expressed a view
basis that the undercarriage was fully retracted at the time of the incident. His knowledge as to the state of the undercarriage at the time of the landing was based solely on documentary material. He made no inspection of the aircraft at the time.

In h ~ s affldavjt sworn on 15 Tanuary 1992, l a i r

Campbell deposed that "in February 1986 the nose wheel of CON was removed and replaced because of a crack in the right nose wheel stop". It subsequently appeared that ,he event to which

Mr Campbell was referring took place on 17 March 1986 and that

the repair work was recorded ln the aircraft long book under date 19 March 1986. That entry, which is certified by Mr Dusting, reads:

"Nose oleo strut leaking - strut serviced - leak persisted - strut removed - crack found at steering stop extending 4" up strut, serviceable strut obtained and leg re-built & serviced & refitted to aircraft."

The relevant worksheet records the work required as "Nose wheel strut cracked at steering stop lug" and the work carried out as follows:

"(First off) New seals fitted to oleo strut & serviced -
leak again.

(2nd) Nose gear strut removed & found to be cracked. 2nd hand obtained from aviation salvage - Gear assembled &

serviced - satisfactory."

In his oral evidence Mr Campbell asserted that there had been a crack just above the right hand nose wheel stop running towards the back of the trunnion. He further asserted that this had been attended to either by replacing the trunnion or by repalring the trunnion by welding. He persisted in, and elaborated upon, these assertions notwithstanding the absence of any documentary evidence to

support them. Finally, however, he concede l that it was not the trunnion, but the oleo strut that pdsses through the trunnlon that was replaced. At no stage, however, did he withdraw the suggestion that the alleged crack in the trunnion had been repaired by welding.

I do not accept Mr Campbell's evidence that a crack in the trunnion was found on or about 17 March 1986 or that any repalr work was carried out on the trunnion on or about that date. It would, in my opinion, be taking too charitable

a view to say that, in giving that evidence, M r Campbell was

simply mistaken. It follows that any assertion that the nose wheel stop on the trunnion must have become worn or damaged some time after 19 March 1986 because a serviceable trunnion had been fitted on that date has no basis in fact.

I am satisfied on the evidence before me that the nose wheel steering system is lntegral to the rudder control system in the sense that the rigging and adjustment of those

nose wheel steering assembly are correctly rigged and	systems is interdependent. If the rudder controls and the
tensioned, the rudder will be permitted to deflect to the right or left a full 27' 2 l0 while the nose wheel steerlng assembly will allow the nose wheel to turn to the right or left a minimum of 19O and a maximum of 25'. The rigging must be such that the rudder will reach its stop before the nose wheel contacts the relevant stop on the trunnion. As I understand the evidence, the nose wheel may be rigged so that
it wlll turn to the right or left no more t )an l g O . Clearly, if the rudder has full deflection of 27' snd the nose wheel steerlng mechanism is rigged so that the nose wheel will turn only through an arc of 19O right or left, the possibility of the nose wheel contacting the stop on the trunnion (flxed at
25O) will be remote as the turning of the nose wheel will be
arrested by the operation of the rudder pedals, the rigging of the rudder controls and the rigging of the nose wheel steering assembly well before the nose wheel reaches the stop on the trunnion. Even if the nose wheel steering assembly is rigged so that the nose wheel may turn to the rlght or left through an arc of 25O, the nose wheel should not, lf the aircraft is properly rlgged, contact the stops on the trunnion. It may be true to say that, if the stops on the trunnion are so positioned to stop the nose wheel turning more than 25O right or left and are not worn, those stops will prevent the situation arising where the aligner channel may fail to engage the aligner roller. However, the distance through which the rudder pedals are permitted to travel when depressed will
right or left as the case may be. The extent to which the determine the degree to which the nose wheel will turn to the
rudder pedals will travel is, in turn, conditioned by the correctness of the rigging of the rudder controls.
The stops on the trunnion are, in my opinion, not primary but secondary stops designed to ensure that, as the ultimate safeguard, the nose wheel cannot turn through an arc in excess of 25' right or left. In this respect I prefer the
evidence of Messrs Dougherty, Bruyn and Ni olson to that of Messrs Campbell and Hopkins. It follows, in my opinion, and I so find, that the incorrect rigging of the rldder controls and wear to the nose wheel stop comblned to brin] about the result that the aligner channel failed to engage r he aligner roller when the landlng gear was retracted following the simulated left hand engine failure. It is curious to say the least that, if the only cause of the allgner channel not engaging the aligner roller was wear to the nose wheel stop, the trunnion was not replaced or repaired after the incident of 23 February 1987.
I also flnd that the defects found by Mr Bruyn existed at the time of the major inspection of the aircraft which was certified on 2 June 1986 and at the time of the repairs to the aircraft consequent upon the incident of 20 July 1986. I am satisfied, based on the evidence of Messrs Dougherty, Bruyn, Hopkins and Brian Cameron Nicolson, that, as the aircraft had flown only 73 hours since the major
the repairs were effected following the incident of 20 July inspection certified on 2 June 1986 and only 24 hours since
1986, the flying controls and undercarriage rigging would not,
in normal circumstances, have gone out of adjustment to the extent found by M r Bruyn if they had been correctly rigged on either of those occasions. The evidence does not establish that any abnormal circumstances occurred during the relevant period to warrant a different conclusion.
Further, I find that the resF ~ndent falled, in carrying out the major inspection that was certified on 2 June 1986, to check, or to properly check, the na se wheel alignment and the rudder control rigging and that it- failure to do so constituted negligence and breach of contract on its part. The respondent was negligent in that it falled to exercise the usual care and skill required of a licensed aircraft maintenance engineer and so failed in its duty to exercise reasonable care to ensure the proper operation and airworthiness of the aircraft.
I further find that the failure of the respondent to carry out a nose landing gear rigging check, including a nose landing gear alignment check, after the "wheels up landing" on 20 July 1986 constituted a failure on its part to exercise reasonable care in relation to the proper maintenance of the aircraft.

Consequently, the respondent is liable to the

applicant for the damage suffered by it as a result of the	incident of 23 February 1987. There wlll be judgment for the
applicant accordingly.
Incident involvinq VH-MKE
At all material times the applicant has been the owner of this aircraft, a Beechcraft Baron, Model D55, Serial No.TE-592. The aircraft is a twin engined light aircraft with a tricycle type fully retractable undercarriage. The aircraft
was required to be ma~ntained in accordance wlth the Wilson Maintenance System to wh~ch some reference has already been made.
On 28 April 1988 Bradley Grant \!llson, a director and the chief pilot of the applicant, was to fly the aircraft on a "bank run" from Sydney (Mascot) to Maltland and Walkwark and return to Sydney (Mascot) via Maitland and Bankstown. Mr Wilson arrived at Mascot Airport at about 5.30 a.m., lodged a flight plan and performed the daily inspection of the aircraft pursuant to the Wilson maintenance system daily inspection check list. That inspection lncluded checking the nose landing gear assembly.
The aircraft landed at Maitland, off-loaded some freight and, after take-off, proceeded to Walkwark. Prior to landing at Walkwark airport, Mr Wilson checked that both the mechanical and electrical indicators showed that the landing gear was fully extended and locked in position. On landing,
however, the nose wheel collapsed and the aircraft sustained considerable damage. After a preliminary inspection at
Walkwark, the aircraft was ferried to Bankstown airport for further inspection by the Bureau of Air Safety Investigation and for repairs to be effected.
Dougherty inspected the aircraft at Bankstown airport with Peter Anderson, an investigator for the Bureau of Air Safety Investigation. The inspection disclosed that the
eye bolt which attached the nose gear shor push/pull rod to the landing gear actuating gearbox had fractured. The eye bolt (also referred to as "the ball end fitting") had fractured through the threaded portion that screws into the end of the push/pull rod. On closer inspection of the fracture face, it was found that over 30% of the surface was smooth and dull in colour, the failure crack area had rusted and there was oxidisation of the face. These observations, in Mr Dougherty's opinion, indicated that the crack had been propagating for a considerable time due to fatigue stress.
In Beechcraft Baron aircraft of this type the undercarriage is operated by a central electric motor and gearbox. Arms attached to the gearbox actlvate the landing bay doors, main landing gear and nose landing gear. The gearbox arm which operates the nose landing gear is attached to the landing gear by push/pull actuator rods. There are two such rods. That attached to the gear box actuator arm is the shorter. At each end of that rod an eye bolt is fitted. The
aft eye bolt, which incorporates a spherical bearing which is free to move wlthin its housing, is connected to the gear box
mechanism. That at the forward end is connected to a clevis (also referred to as a plunger fork or fork end) attached to the aft end of the longer push/pull rod. The longer push/pull rod is telescopic and incorporates a spring and a shear pin. At the point where the two push/pull rods are connected, the system is supported by what is referred to as an idler arm. At the forward end of the longer push/pull rod another eye
bolt is fitted wh~ch 1s attached to the i!ose wheel landing gear assembly. TO extend the nose landing gear, the gear box actuator arm, whlch moves wlth a semi-circular motion, pushes the rods towards the front of the alrcraft. To retract the nose landing gear, the rods are pulled by the gear box actuator arm towards the rear of the alrcraft. The length of the push/pull rod assembly between the gear box actuator arm and nose wheel landlng gear assembly may be adjusted by means of the eye bolt at the aft end of the shorter push/pull rdd. After adjustment the position of the eye bolt is secured by a lock nut.
Two indicators in the cockpit show when the landing gear is fully extended and safe for landing. The first is a mechanical indicator that moves down as the landing gear extends. The second is a red/green light system in which, if operating correctly, the green light is illuminated only when the landing gear is fully extended and locked in position.
At the time of the incident on 28 April 1988, the total time in service of the aircraft was 6,772 hours. It had flown 13 hours since its last "Check 2 Inspection". That inspection was certified on 31 March 1988. Between 31 March
1988 and 28 April 1988 it had made 38 landings. Exhibit E,
being the maintenance release for the aircraft dated 31 March
1988, incorrectly records the number of landings as 33.

On 7 February 1 9 8 9 the Bure, U of Air Safety

Investigation issued a report on the incldent of 28 April

1988 .   The report reads:

"CIRCUMSTANCES

The pilot reported that he had obtained normal indications when he selected the landing gear down. The subsequent touchdown was normal but as the nosewheel was lowered to the ground, the nose gear leg collapsed.

The eyebolt between the nose gear retract aft rod and the landing gear motor had failed, resulting in the nose gear failing to lock down and allowing it to retract on ground contact. The eyebolt had failed at the beginning of the thread, adjacent to the eye. Specialist examination indicated that the initial fracture was indicative of fatigue and had been present for some time. The aircraft had only recently been returned to service following an earlier accident which involved fatigue failure of the nose gear retract rod plunger fork. It was considered likely that the fracture had initiated at the same time as the earlier failure.

SIGNIFICANT FACTORS

The following factors were considered relevant to the development of the accident:

1. Probable fatigue failure.

2.   Inadequate inspection during repair following earher accident.

RECOMENDATIONS

It is recommended that the Civil Aviation Authority

considers advising maintenance organisations of the

desirability of conducting magnetlc particle inspections

of appropriate eyebolts, when aircraft have incurred

damage to the landing gear area."

The respondent had been given an opportunity to comment upon a draft of the above report. By letter dated 27

January 1989, the respondent made the following comments:

"We have received your draft report or the accident to
the above aircraft.

The only comment we would like to make is that you have not specifically stated the actual area where the eyebolt failed. We feel that it is important to state this so special attention may be paid to this area when carrying out periodic inspections by organisations maintaining such aircraft. Also it is recommended that all eyebolts be magnetic particle inspected whenever aircraft sustains damage to the undercarriage."

The earlier incident referred to in the Bureau of Air Safety Investigation report occurred on 19 June 1987 when the aircraft's total time in service was 6,653 hours. On that occasion, the nose landing gear had failed due to the fracture of the clevis or plunger fork end at the aft end of the longer push/pull rod. The fracture was due to fatlgue stress in the metal.

After the incident on 19 June 1987, the respondent
effected repairs to the aircraft and at the same time carried

out a "Check 2 Inspection". That work was certified on 31

August 1987.	A "Check 1 Inspection" was certified by the
total of 6,759 hours and, as I have said, a further "Check 2	respondent on 13 October 1987 when the aircraft had flown a
Inspection" was certified on 31 March 1988.
The section of the Wilson Maintenance System Manual which contains the "Check 2 Inspection" schedule headed "Airframe - Nose Gear" (Chapter 6, p.16, par.3) states:

"Actuating linkage - check for wear at attach points

Check for cracks and security. See ite-o 10 below."

Item 10 reads:

"NOSE GEAR RETRACT LINKAGE - Inspect forward retract rod aft fork end for cracks, wear in bolt holes. Check idler

arm for security. (Gain access through inspection panel

in lower skin behind nose gear well)"

No explanation was offered as to why Item 10 was limited to the forward retract rod aft fork end.

In M r Dougherty's opinion, both the repair work and the "Check 2 Inspections" required an ~nspection for cracks of the push/pull rod ball end fitting, being part of the actuating linkage. Whilst the log book entries do not indicate what steps were taken to inspect the actuating

linkage during repairs following the incident of 19 June 1987 or durlng the "Check 2 Inspections", an entry in the log book for 31 August 1987 states:

"Nose gear push rod to gear box bolt repositioned".

This, in MI Dougherty's view, indicated that the push/pull rod was removed. Mr Campbell disagreed. He said that it was quite possible that the only work done was to turn or adjust the gear box to put it into the right configuration. There is not sufficient evidence before the Court to make a definitive finding as to what work was done.

Mr Dougherty said that pressure applied to the front part of the push/pull rod causing the clevls to fatigue crack would also apply pressure to the short push/pull rod ball end fitting. He could not ascertain that there was anything unusual about the landing gear that would have caused the push/pull rod ball end fitting to be placed under excessive pressure causlng it to crack. He did not believe that the earlier incident on 19 June 1987 initiated the crack in the push/pull rod ball end fitting. During that incident the push/pull clevis broke allowing the nose gear to swing free in flight. When the aircraft landed the nose gear was forcibly retracted but was not attached to the nose gear push/pull rod, meaning that the rod was not under any load.

Mr Dougherty concluded that the sequence of events

leading to the nose landing gear collapsing on 28 April 1988
was as follows:

"(a) at some time prior to 19 June 1987 fatigue cracks clevis and nose landing gear push/pull rod ball end	initiated in the nose landing gear push/pull rod
f ltting;

(b) on 19 June 1987 the push/pull rod clevis failed;

(c)	the fatlgue crack in the ball end fitting continued to propagate and on 28 April 1988 the push/pull rod ball end fitting failed as the nose landing gear was lowered, allowing the nose landing gear to swing freely underneath the aircraft;
(d)	upon landing the nose landing gear, not being locked down, collapsed." Mr Dougherty was unable to express an opinion

whether the crack, wh~ch in his view would have been present as at 19 June 1987, would have been vislble to the naked eye when the repalrs immediately follow~ng the incident on that date occurred. However, a procedure known as a magnetic particle ~nspection was in June 1987 available to determine if cracks existed in components such as the ball end fitting on the push/pull rod. If that procedure had been applied and if a crack had been detected, the replacement of the ball end fitting would have been required. There is no reference in the log book to the respondent having performed a magnetic particle inspection of the nose landing components and it is clear that no such procedure was carried out.

Mr Dougherty expressed the following opinions:

"64. In my opinion where the number of landings exceeds around 250 per 100 hours of flylng time, the rate of landings is high and is a factor to be considered when determining the method of examining a component such as the push/pull rod ball end fitting in

circumstances which I have outlined and understood

occurred in this case.

65. The number of landings per 100 flying hours can be estimated from the maintenance releases in respect of an aircraft which would ordinarily be available to the maintenance organization. Considering the high number of landings per hour and because a component in the nose landing gear had failed from fatigue cracking, the Respondent, when repairing the aircraft after the June 1987 accident, should have carried out a full inspection including removal of the push/pull rod ball end fitting, thorough cleaning and visual and magnetic particle inspection to ascertain whether it, or other components in the nose landing gear, were also cracked.

66. The log book discloses that the Respondent completed a check 2 inspection of aircraft VH-MKE on 31 March 1988. The aircraft had only flown approximately 23.5 hours after that inspection before crash landing on 28 April 1988. Pursuant to the Applicant's maintenance system manual ... the Respondent was required, as maintainer of the aircraft, at a check 2 inspection to inspect the push/pull rod ball end fltting for cracks. Due to the recent incident of landing gear fatigue failure (the June 1987 accident), the high rate of landings per hour and because failure of push/pull rod ball end fittings is a common problem in Beechcraft Baron aircraft, it would have been prudent for the Respondent very carefully to inspect the ball end fitting for cracks. In my opinion at 31 March 1988, approximately 30% of the ball end fitting had cracked and had a careful visual inspection been performed, whlch would have included cleaning the area of dust and grit with some form of solvent, the Respondent would have seen the fatigue crack in the ball end fitting.

67. In my opinion the failure to replace the fatigue cracked eyebolt caused the nose landing gear to fail on 28 April 1988."

Mr Dougherty was incorrect in stating (par.66) that the

aircraft had flown 23.5 hours between the inspection and the

crash landlng. The correct figure is 13 hours.

The question arises whether the circumstances as they existed at the time the respondent carried out repairs to

the aircraft following the "wheels up landing'' on 19 June 1987 and the associated "Check 2 Inspection" certified on 31 August 1987 were such that, in order to fulfil its duty in relation to the repair and maintenance of the aircraft, it should have subjected parts of the nose landing gear push/pull rod assembly, including the eye bolt connecting the shorter push/pull rod to the gear box actuator arm, to magnetic particle inspection. In this regard, the applicant

acknowledged that there is no express requirement in the relevant Air Navigation Orders or the manufacturer's manual for magnetic particle inspection of any of the components of the nose wheel push/pull rod assembly. The applicant's case 1s that the respondent was required to exerclse its skill, experience and judgment in determining what steps should be taken, in all the then existing circumstances, to ensure that the aircraft was made airworthy and that a prudent aircraft maintenance aircraft engineer would have required magnetic particle inspection of the eye bolt as it was likely to be the same "age" as the clevis that fractured and to have been subject to the same or simllar stresses. In support of this contention, the applicant pointed to a number of circumstances as factors to be taken into account in exercising that skill, expertise and judgment. Reliance was placed on the circumstance that it was the propagation of a fatigue crack that caused the clevis to fracture. The eye bolt that subsequently fractured had been in the aircraft since the aircraft's manufacture as had the clevis. The aircraft had at the time of the incident of 19 June 1987 been in service for 6,653 hours. The nose landing gear was approaching the expiry

of its recommended life.

I am satisfied that, once it was discovered that the clevis had failed because of the propagation of a fatigue crack, the other circumstances to which I have shortly referred required that the other parts of the nose landing gear push/pull rod assembly, including the eye bolt that

subsequently fractured, should have been subject to a very careful visual inspection in order to determine whether there was any cause for concern that fatigue cracks might also be present in any of those components. There is little evidence as to the extent to which any such inspection was carried out but the real difficulty faclng the applicant is that it cannot confidently be postulated that a fatigue crack in any of those components could have been discovered by any such careful visual inspection. Mr Dougherty agreed that this was so. The opinions expressed, in the case of Mr Dougherty, that the ball end fitting should have been the subject of magnetic particle inspection and, in the case of Mr Nicholson, that that part should have been replaced or tested, contain, in my opinion, a substantial element of the wisdom that comes from hindsight, drawn particularly from the incident that occurred on 25 July 1988 involving the aircraft VH-CFS, an incident referred to later in these reasons. If one were to have regard to hindsight, one would have to take into account that between 19 June 1987 and 28 Aprll 1988 the aircraft was flown a total of

Campbell's recommendation for magnetic particle inspection	119 hours and was involved in a large number of landings. Mr
contained in his letter dated 27 January 1989 must, I think, also be seen in the light of the incident involving VH-CFS on 25 July 1988.
It follows from what has been said that I am not satisfied that the respondent was negligent in failing to have the eye bolt removed from the aircraft and subjected to magnetlc particle inspection after the incldent of 19 June 1987. Equally, I am not satisfled that the respondent was
negligent in failing to regard the fracture of the clevis as, of itself, requiring that the eye bolt be replaced.
~t remains to consider whether the respondent failed properly to fulfil its duty to ma~ntain the aircraft at the time of the "Check 2 Inspection" that was certified as complete on 31 March 1988. As has already been mentioned, the aircraft had flown only 13 hours between that date and 28 April 1988 when the second "wheels up landing" occurred. Reference has already been made to the evidence of Mr Dougherty that, at the time of hls inspection of the ball end fitting, over 30% of the surface was smooth and dull in colour and that the surface was rusted and oxidised.
In the light of Mr Dougherty's evidence, which was not challenged, I am satisfied that a proper visual inspection of the eye bolt at the time of the "Check 2 Inspection" would
would, at least, have alerted the inspector that further most likely have revealed evidence of the fatigue crack or
inspection and testing of the part was necessary before the aircraft could be certified as airworthy. In this respect, the respondent failed to exercise the standard of care required of it. Consequently, the respondent is liable to the applicant for the damage suffered by it as a result of the incident of 28 April 1988. There will be judgment for the applicant accordingly.
Incident lnvolvina VH-ETV
This aircraft is a Beechcraft Baron, Model 58, Serial No. TH-187. At all material times, it was owned by the applicant. It is a twin engined light aircraft with a tricycle type fully retractable undercarriage.
On 6 May 1988 David Michael King, who held a commercial pilot's licence, was to fly the aircraft on a "bank run" from Sydney (Mascot) to Taree, Port Macquarie, Taree, Bankstown and Sydney. He arrived at Mascot airport at about 5.30 a.m., lodged a flight plan and performed a daily inspection of the aircraft. According to his evidence, he inspected the up-lock rollers on the undercarriage to ensure that they were free to rotate. He said he performed this task by spinning the up-lock rollers a couple of times between his forefinger and thumb. He said he found that the rollers were free to rotate.
The aircraft was flown to Taree and then to Port Macquarie. Upon commencing landing approach at Port Macquarie
the landing gear was lowered and the cockpit landing gear
indicators showed that the landing gear was fully extended.
When the right main landing gear touched down, the left wing of the aircraft continued to drop. The landing was aborted and the aircraft landing gear retracted. M r King was informed by radio by a pilot of an aircraft on the taxi way that the left undercarriage was "completely up" during the aborted landing. Attempts were made to lower the landing gear and the cockpit indicators showed the landlng gear fully extended. Inspection of the landing gear from the ground and from another aircraft resulted in Mr King being informed that the
undercarriage looked to be fully extended. After emergency
services were in place, a landing was attempted. The aircraft touched down on the runway but, after running along the runway for about 100 metres, the left hand undercarriage leg collapsed and the aircraft slewed off the runway and was damaged.
On 4 May 1988 the aircraft had been flown by Mr Wilson from Sydney (Mascot) to Maitland, Taree, Port Macquarie and return involving 5 landings. He gave evidence that he performed a daily inspection which included checking that the main landing gear up-lock rollers would rotate freely. He said he found the rollers free to rotate. It appears from the relevant maintenance release that the aircraft also flew on 5 May 1988 and made 5 landings on that day. No evidence was tendered in relation to the checking of the up-lock rollers
prior to that flight.
On 7 May 1988, Barry Arthur Sargeant, the officer of the Bureau of Air Safety Investigation in charge of the investigation into the incident, and Mr Anderson attended at Port Macquarie airport and inspected the aircraft which was then in a hangar supported by jacks. Mr Anderson found that the left hand main landing gear up-lock roller would not rotate. He removed the up-lock roller and took it to the Civ~l Av~atlon Authority workshop at Bankstown for further tests. Mr Dougherty also inspected the aircraft at Port Macquarie. His inspection of the undercarr~age revealed that the left hand maln gear push/pull actuat~ng rod was bent in two places and that the up-lock roller for the left hand main landing gear was seized.
The undercarriage of the alrcraft operates by an electric motor driving a gearbox located in the centre of the aircraft which, by a series of cables and rods, operates the undercarr~age. Within the undercarriage system is a mechanism known as "the up-lock mechanism". This consists of two main members, the up-lock roller and the up-lock assembly. The up- lock roller comprises an inner and an outer shell within which are a number of needle bearings. It is fltted with a grease nipple for lubricating purposes. The up-lock roller is affixed to the centre knuckle of the drag brace of the landing gear. When the landing gear is extended, that part of the drag brace is facing the rear of the aircraft. The grease nipple then
also faces the rear of the aircraft. The up-lock assembly is
located in the landing gear cell. The assembly may, for
present purposes, be descr~bed simply as a triangular piece of metal to which is attached a spring and a cable activated by the gear box mechanism. The gear box is designed sequentially to open the landing gear cell doors, release the up-locks on the right and left hand main landing gear and extend the landing gear. Part of the up-lock assembly consists of a piece of strengthened metal known as the up-lock spade.
when the landing gear is fully retracted the spade is positioned beneath the up-lock roller with a clearance of
between ten and twenty thousandths of an inch. It is
maintained in that position, against the tension of the
spring, by means of the cable attached to the gear box mechanism. On extending the landing gear, the spade is withdrawn by the operation of the spring consequent upon the tension on the cable attached to the gear box mechanism being released. This allows the up-lock roller to roll over the end of the spade as the landing gear begins to extend. The up- lock roller and the up-lock spade may come into contact while the landing gear is retracted in the event of the landing gear moving due to in-flight turbulence. The movement of the landing gear in the retracted position is, however, severely curtailed if there is adherence to the adjustments required by the manufacturer's manual.
If the up-lock roller is seized, it will not roll off the spade and the up-lock will not release. The
push/pull rod which connects the gearbox to the undercarriage. undercarriage gearbox will still exert pressure on the
The push/pull rod could in that situation, buckle under compression in a concertina fashion. The damage to the push/pull rod observed by Mr Dougherty was, in his opinion, consistent with this sequence of events. He expressed the further opinion that, after the push/pull rod had buckled, it would not have had sufficient length to push the undercarriage to the full down position.
At the Civil Aviation Authority workshop at Bankstown M r Anderson unsuccessfully attempted to rotate the up-lock roller with his hands, He clamped part of the up-lock roller in a vice and attempted, again unsuccessfully, to achieve rotation with multigrip pliers. He removed the up- lock roller from the vice and was successful in rotating the roller with hls hands. He then cut the up-lock roller open. He reported as follows:

"The bearing had a black gritty substance in it that in my opinion was old grease. The roller was entlrely devoid of any fresh lubricant and in my opinion it had been a long time since it was lubricated. Regular lubrication should have flushed out the old grease."

In his oral evidence, M r Anderson said that, in his opinion, it was the grit within the grease residue which had jammed the needle rollers. He also said that, in his opinion, the up- lock roller had not been lubricated for at least 200 flying hours.

Mr Dougherty again inspected the up-lock roller

after it had been cut open by Mr Anderson. He observed that the roller was dry, corroded internally and void of any lubrication whatsoever; the needle rollers were covered in a black sticky dirt; the bearing was badly worn in a manner consistent with a lack of lubrication; and the needle rollers had left indentations in the inner and outer race surfaces. Those indentations were, in his opinion, consistent with a lack of lubrication.

So far as appears from the evidence, no representative of the respondent inspected the up-lock roller either before or after it was cut open by Mr Alexander

A report was prepared by the Bureau of Air Safety Investigation. It is dated 20 May 1988 and is signed by Mr Sargeant. The report reads:

"The left undercarriage up-lock roller of VH-ETV was
found to be seized when initially examined in-situ.

The roller was removed from the aircraft; and sent for examination by an Airworthiness Surveyor (Peter Anderson), at Bankstown.

He reported that he initially tried to free the bearing by applying force with a pair of 'Multxgrips'. The roller remained seized in spite of his efforts.

He then decided to cut open the roller to examine the internal components. As he was handling the roller, prior to cutting it open, it suddenly freed itself by finger pressure alone and was able to be turned freely.

After the roller was cut open he reported that it was almost entirely devoid of any lubricant. The internal rollers were stuck together by a dark gritty substance. He was of the opinion that it had been a long time since the roller had been lubricated."

According to Mr Dougherty, the inability to free the bearing	with multigrips followed by the bearing freeing itself during
handling was consistent with seizure caused by lack of lubrication and indicated that the seizure was intermittent.
Mr Dougherty concluded that the sequence of the undercarriage failure was as follows:

"(a) The left hand up lock roller was seized due to lack of lubr~cation.

(b) The seized up lock roller jammed in the lock on the first landing attempt at Port Macquar~e causing the left hand undercarriage to remaln locked up.

(C) During the attempt to extend the undercarriage on the first landing attempt, the gear box exerted pressure on the left hand push/pull rod which could not move as the left hand undercarriage was locked UP.

(d)	The landing gearbox pressure bent the left hand landing gear push/pull rod.
(e)	On the second extension of the undercarriage the up lock released and allowed the left hand undercarriage almost fully to extend. The reduced length of the bent push/pull rod prevented the left hand landing gear locking mechanism from engaging so as to lock into a down or extended position.
(f)	The left hand main landing gear collapsed because the over centre lock was not engaged. The left hand undercarriage could not remain extended after landing without being locked in the down or extended position."

On 29 July 1988 the Bureau of Air Investigation

issued the following report:

"CIRCUMSTANCES

and carried out a normal approach. Shortly after the	The pilot carried out the various pre-landing actions,
aircraft touched down, the left wing began to drop. The p~lot immediately applied full power and went around. As the aircraft climbed away, the pilot of another aircraft observed that the left maingear had failed to extend. The landing gear was cycled, and again indicated a safe condition. During the subsequent landing roll, the left gear leg collapsed.
Investigation revealed that the left gear uplock roller was seizing intermittently due to insufficient lubrication. This caused the gear to jam against the uplock when the extension cycle commenced. The retract rod subsequently became bent, preventing the gear from being fully extended. In this aircraft type, the gear position microswitches can give a down and locked
indication even when one or more gear legs is not in the
locked position."

Mr Dougherty agreed with those conclusions.

The respondent had conducted a major inspection of the aircraft which was certified on 4 March 1988. The relevant entry in the aircraft log book records that the major inspection was carried out in conjunction with a periodic inspection in accordance with Appendix 4 to Air Navigation Order 100.5.1. At the time of that inspection, the number of hours flown by the aircraft was recorded as 7,187. After the inspection, a maintenance release was issued by the respondent.

Between the date on which the major inspection was certified and 6 May 1988, the aircraft had flown a total of 70 hours and had made 162 landings.

The periodic inspection schedule forming part of Appendix 4 of Air Navigation Order 100.5.1 requires that the	airframe, which includes the undercarriage, be lubricated in
accordance with manufacturer's recommendations (Item (r) under
the heading "Airframe " ) . The relevant part of the
manufacturer's recommendations reads:

"The up-lock roller bearings should be lubricated with grease ... every 100 hours or any time that, while cleaning the wheel well, the bearings are subjected to degreasing with solvent under pressure. The up-lock bearing is lubricated by means of a grease fitting installed in the up-lock bearing bolt.

NOTE

The grease fitting on the drag leg, directly above the up-lock roller bearlng, does not supply lubrication for the up-lock roller

bearing. "

Mr Dougherty expressed the opinion that the up-lock roller had not been lubricated at this inspection nor indeed lubricated for several hundred flying hours. He added that, independently of the requirements of the Air Navigation Orders and the manufacturer's recommendations, a prudent licensed aircraft maintenance engineer would lubricate the grease nipples located on the up-lock rollers at least at every 100 hourly maintenance inspection. He added that, in his opinion, if the up-lock roller had been lubricated during the inspection that was certified on 4 March 1988, it would not have seized on 6 May 1988 after some 70 flying hours.

The hypothesis advanced by the respondent is that the up-lock roller had been properly lubricated at each of the	inspections of the aircraft carried out by it and that the
grease was washed out of the roller between 4 March 1988 when the last of those inspections was completed and 6 May 1988 when the "wheels up landing" took place. The respondent relied on the evidence of one of its employees, Jason Martin Neimanis, as to the lubrication of the roller during the inspection certified on 4 March 1988 and on evidence as to the daily ralnfall totals at Bankstown airport during the period 5 March 1988 to 9 May 1988.
The respondent also referred to the recommendation endorsed on the maintenance release lssued after the completion of the major inspection on 4 March 1988 that the aircraft have a 50 hourly inspection. No further details were given concerning the extent of the inspection that was being recommended. In this connection it is to be noted that, prior to February 1988, the aircraft had been required to be maintained in accordance with the Wilson Maintenance System. From February 1988 the aircraft was required to be maintained in accordance with the relevant provisions of the Air Navigation Orders. It may be, although no evidence was given to this effect, that what the respondent was suggesting was that the aircraft should again be required to be inspected in accordance with the Wilson Maintenance System. The respondent relies on the fact that the applicant did not act in accordance with the recommendation.
Mr Neimanis was the witness whose evidence was relied upon to show that the up-lock roller had been greased at the major inspection certified on 4 March 1988. He gave evidence that he had placed his initials opposite the entry "Lubricate aircraft in accordance with manufacturer's instructions" in the relevant inspection sheet relating to the aircraft's airframe. Understandably, he had no recollection of precisely what steps he had taken prior to placing his initials against that item. In particular, he had no recollection of lubricating the up-lock roller on the left hand main landing gear of the aircraft on the occasion in question. His evidence was based solely upon the entry in the relevant inspection sheet and hls recollection of what his practice had been in lubricating an aircraft during such an inspection. He said he did not have the maintenance manual with him when lubrlcatlng the airframe; that be relied on his memory as to the parts that were to be lubricated; that there were approximately 50 points on a Beechcraft Baron aircraft to be lubricated; and that his practice was to complete the lubrication at one time, the time necessary to do so being approximately half an hour.

I make no adverse comment upon the manner in which

M r Neimanis gave his evidence but, in the light of the

evidence given by Messrs Dougherty and Anderson, who were impressive witnesses and whose evidence I accept, I am satisfied that the up-lock roller on the left hand main

greased, during the inspection that was certified on 4 March	landing gear of the aircraft was not greased, or not properly
1988.
Nor do I regard the evidence given as to the daily rainfall totals at Bankstown airport between 5 March and 9 March 1988 as providing a sufficient basis for concluding that the aircraft had, during that period, been flown with its landing gear extended, or that it had taken off or landed, in such exceptional wet weather as could have resulted in the grease being washed out of the relevant up-lock roller, assuming it to have been properly lubricated at the major inspection in March 1988.
On the evldence before me, I find that the up-lock roller on the left hand main landing gear was not lubricated, or properly lubricated, as required at the major inspection certified as having been completed on 4 March 1988 and that that was the cause of the aircraft making a "wheels up landing" on 6 May 1988. The failure of the respondent to ensure that the up-lock roller was properly lubricated clearly amounted to a breach of the duty which it owed to the applicant to take reasonable care in maintaining the aircraft. I should add that, in my opinion, the failure of the applicant to take up the recommendation that the aircraft have a 50 hourly inspection does not in any way relieve the respondent of the consequences of its failure properly to lubricate the roller durlng the major inspection.
The respondent is liable to the applicant for the damage suffered by it as a result of the incident of 6 May 1988. There will be judgment for the applicant accordingly.
Incident involvinq VH-CFS
At all material times the applicant owned this aircraft, a Beechcraft Baron, Model C55. It is a twin engined light aircraft with tricycle type fully retractable undercarriage. It was required to be maintained in accordance with the Wllson Maintenance System.
On 25 July 1988, Gary Grant Mente, the holder of an airline transport pilot's licence, was to fly the aircraft on a "bank run" from Sydney (Mascot) to Warkworth and Maitland and return to Sydney (Mascot) via Bankstown. He arrived at Mascot airport at about 5.30 a.m., lodged a flight plan and performed a daily inspection of the aircraft.
The final leg of the flight was from Bankstown to Mascot. On taking off from Bankstown, M r Mente heard an unusual thud as the landing gear retracted. On approaching Sydney (Mascot) airport, he moved the landing gear selector control to the down position. He noticed that the mechanical landing gear indicator for the nose gear stopped half way between the up position indicator and the down position indicator. He moved the landing gear selector to retract the landing gear but the nose gear indicator dld not move.
On touching down, the main landing gear was stable but the nose landing gear did not support the aircraft and the nose continued to drop. He aborted the take off and proceeded to Bankstown airport. Further attempts to lower the nose landing gear were unsuccessful. Eventually, a landing was effected but the nose landing gear would not support the aircraft. The aircraft skidded along the runway on its nose and came to rest turned slightly to the left.
This aircraft has the same undercarriage mechanism as is described earlier in these reasons in relation to VH-
MKE .
On 27 July 1988, Mr Dougherty interviewed the pilot of the aircraft and, with ltc Anderson, inspected the aircraft whlch was in the hangar of Hawker Pacific Pty Limited. Mr Dougherty observed that "the ball end fltting at the end of the push/pull actuator rod for the nose landlng gear was broken". The ball end fitting, or eye bolt, that fractured was the fitting that joined the short or aft push/pull rod to the gear box actuator arm.
On inspection of the crack in the failed eye bolt, which had a hollow shank, Mr Dougherty formed the opinion that the shank had failed due to bending loads. This was ascertained by looking at the fractured face of the eye bolt which showed that both sides had been compressed and were smooth. When the two pieces were put together there was a gap
compressed. This indicated to Mr Dougherty that, over a on either side where, whilst bending, the eye bolt had been perlod of time, pressure was applied causing it to flex or
bend. Repetition, he said, caused the eye bolt to break.
The statement to Mr Dougherty by the pilot that he heard a soft thud when the up-lock engaged and the fact that the nose landing gear could not be fully extended and was observed to be hanging down underneath the aircraft were, in
Mr Dougherty's opinion, consistent wlth the gear box actuator
arm not belng connected to the push/pull rod.
When Mr Dougherty and Mr Anderson inspected the aircraft on 27 July 1988, the threaded end of the eye bolt was still screwed into the push/pull rod with the lock nut still tight. Mr Dougherty and Mr Anderson requested that Ian James Bere of Hawker Pacific Pty Ltd conduct a full rigging and retraction test of the undercarriage. Mr Dougherty, Mr Anderson and Tony Gillan, an observer from the respondent, were present when the tests were conducted on 3 August 1988.
M r Gillan did not give evidence.
Mr Bere gave evidence that he conducted the tests in accordance with the manufacturer's manual. The manual relevantly provides that, with the gear extended in the full down position and the wheel clearing the floor, the nose gear tension at the aft retract rod should be such that there is a deflection force of 55 lbs or higher at the union of the "V"
brace assembly and the drag leg assembly, the deflection force being applied at the pivot point of that union in a plane
perpendicular to the centre line between those assemblies. The manual also relevantly provides that, with the nose wheel in the fully retracted position and the doors disconnected, the force required to move the strut off the bumper when applied downwards at the centreline of the tow pin should be 30 to 35 lbs.

In his affidavit sworn on 4 June 1991, Mr Bere says:

"5. The nose landing gear aft push/pull rod ball end fitting was broken and I noted the posltion of the adjustment nut on the broken bolt before removlng the bolt. I then replaced it with a new ball end fitting adjusting it to the same position as the old ball end fitting.

7.  As part of the rigglng check which I carried out, I measured the down lock tension. The down lock tension when measured was found to be 32 lbs and the gear up break away tension 65 lbs. If the components had been adjusted to comply with manufacturer's specifications, the measurements would have been 55 lbs and 30/35 lbs respectively."

At the time the tests were carried out, Mr Bere filled out a worksheet detailing the work performed by him and the results. The action taken is recorded as follows:

"Broken threaded section of nose aft retract rod was removed from rod & No. of threads of engagement noted. Serviceable rod end fitted same No. of threads to aft retract rod. A/c was jacked & made ready for retractions with regulated 28V power supply.

Nose retract rod assembly fitted to a/c & secured.

U/c retracted & observed for signs of fouling & unusual

noises - none noted.

Manual extension carried out - no defects noted.

U/c knee break tensions checked & found as listed. LH main 60 lb. RH main 68 lb & nose 32 lb.

With U/C retracted the load required to move nose gear off rubber bump stop was 65 lb.

Uplock roller clearances checked LH .011" RH .025"

No further checks were carried out as the Department & Insurance Co. people in attendance considered no further inspection required.

Nose retract rod was removed for removal of ball end & a/c secured for return to operators."

Mr Dougherty's affidavit sworn on 4 July 1991 sets

out what he says occurred:

"79. Mr Bere measured the down lock tensions and up lock tenslons and compared these to the tensions specified in the manufacturer's manual. The 'up- lock' tension is the tension applied on the landing gear by the push-pull rod to retract the landing gear and hold it in the 'up' position. The 'down- lock' tension is the tension applied on the landing gear by the push/pull rod to lock it in the landing

position . . .

80. During the test I made a note of the tensions measured by Mr Bere compared to what the tensions should have been ... The results 1 noted are as

follows  : 

Down Lock Tensions  Actual Should be 

Nose	32 pounds 55 pounds
LH Main	60 pounds 45/65 pounds
RH Main	68 pounds 45/65 pounds

Nose UP Lock Tensions

First check 56 pounds 30/35 pounds Second check 56 pounds 30/35 pounds

81. The up lock and down lock tensions were incorrect and were reversed. The down lock tension is required to be higher than the up lock tension

pressure to engage the over centre lock on the drag because the push/pull rod has to apply sufficient

brace so that the force on landing is borne by the drag brace and not by the push pull rod. If the push pull rod is not under sufficient tension some or all of the landing compression load would be borne by the push/pull rod causing it to bend."

The discrepancy between the up-lock tensions of 65 lbs and 56 lbs recorded by Messrs Bere and Dougherty respectively has not been explained. However, I do not regard that discrepancy as of significance. What is of significance is that the up-lock

and down-lock tensions varied markedly from those specified in
the manufacturer's manual.

The broken eye bolt was subjected to a metallurgical examination by Arjen Romeyn, a metallurgist employed by the Civil Aviation Authority. He expressed the opinion that the rod end fitting fractured because of repeated bending or flexing of the push/pull rod. His report, dated 18 November 1988, contains the following:

" 2.	EXAMINATION
The rod end fractured in the thread exposed between the locknut and the eye of the fitting. Microscopic examination of the fracture surface revealed that two diametrically opposed regions of fatigue cracking were present.
The disposition of the zones of cracking is characteristic o f reversed bending load applications. The plane of bending was coincident with the plane of the eye of the fitting.
'Metallographic analysis of the fitting revealed that the fitting had been manufactured from a low carbon normalised steel, with a Vickers hardness range of 178-182HV20. The micrograph ... shows the severe deformation at the root of the thread near the
initiation site of the fatigue crack.
Many other small cracks were observed on the outer surface of both sides of the eye of the fitting ...

3. CONCLUSIONS

3.1 The rod end fitting fracture was caused by the growth of two fatigue cracks to critical sizes. It would seem that the bending loads involved were

high. "

On 28 November 1988, the Bureau of Air Safety Investigation reported as follows:

"The fractured MLG retract rod end fitting PN KMXL6FG has
been examined as requested.

The metallurgical examination found that the fracture was initiated by fatigue cracking which occurred due to high bending loads on the fitting.

The retract rod has bearings at both ends which would enable the rod to align itself under tension loads and thus high bending loads are unlikely when the rod is in tension (during the retract cycle). The rod can however, bow if the compressive loads on it are high and this would place a bending load on the end fitting. Such compressive loads could occur as follows

- an initiation of the extension cycle

- due to stiffness elsewhere in the mechanism resulting in high loads at some other point in the extension cycle - possibly during activation of the over centre down lock

- the over centre down lock not fully engaging

allowing some or all of the wheel loads to be
reacted by the retract/extend mechanism.

Which of the above possibilities occurred could be established by examining the retract mechanism for bending/restrictions and rigging."

The aircraft log book records that a "Check 2
Inspection" was carried out by the respondent when the

aircraft had a total time in service of 8,639 hours. That

inspection is certified to have been completed on 12 May 1988.

At the completion of the work, appropriate certifications were made in the aircraft log book and the respondent issued a maintenance release. The aircraft log book records that, during the inspection, the nose landing gear "retract rod ends and fork ends" were replaced. M r Campbell, however, asserted that that entry was incorrect in that only one eye bolt, not being the eye bolt that failed on 25 July 1988, was replaced. The maintenance release was valid until 11 November 1988 or until the total time in service of the aircraft was 8,739 hours, whichever first occurred. The aircraft had flown 80 hours between 12 May 1988 when the "Check 2 Inspection" was completed and the maintenance release issued and 25 July 1988 when the "wheels up" landing occurred. A "Check 1 Inspection" was carried out when the aircraft had a total time in service of 8,689 hours. That inspection is certified as having been completed on 4 July 1988.

The maintenance release shows that the aircraft had made 230 landings between the "Check 2 Inspection" certified on 12 May 1988 and 25 July 1988. In Mr Dougherty's opinion, the bending of the push/pull rod over this number of landings caused the eye bolt on the end of the push/pull rod to

fracture .

Mr Dougherty gave evidence that, when any part of the nose landing gear is replaced, the gear has to be re- rigged in accordance with the manufacturer's requirements. He

expressed the opinion that, as the aircraft had flown only 80

hours since the "Check 2 Inspection", the landing gear rigging could not have been checked and adjusted in accordance with the manufacturer's specifications durlng that inspection. He said that, over a period of 80 hours, there might be a slight change in the rigging tensions but it would be impossible for the up-lock tension to increase to 56 pounds from the recommended range of 30 - 35 pounds and for the down-lock tension to decrease from the recommended 55 pounds to 32 pounds. He expressed the further opinion that the failure of

the respondent to adjust, or to correctly adjust, the nose landing gear caused insufficient down-lock tension to be applied to the nose landing gear which in turn allowed

excessive bending tension to be placed on the eye bolt linking

the push/pull rod to the gear box. Thls excessive bending load, in his opinion, caused the ball end fitting to fall with consequent failure of the nose landing gear.

On 30 November 1989, a report on the incident of 25 July 1988 was issued by the Bureau of Air Safety Investigation. That report reads:

"CIRCUMSTANCES

The aircraft was making a landing approach to Sydney when the pilot observed the nose gear had failed to extend normally, after the landing gear was selected down. The aircraft was diverted to Bankstown where it was subsequently established that the nosegear trailed about 20 degrees from the locked down position. All attempts to extend the nosegear were unsuccessful. The aircraft was subsequently landed on the 36L grass strip. During the landing roll the nosegear collapsed and the aircraft settled onto its nose.

he had shut down the right englne and feathered the

Prior to making the approach and landing, the pilot said

propeller, which was then parked in a horizontal position. On short final, the left engine was shut down and the propeller feathered. Insufficient time was available to park the propeller, which struck the ground in a vertical position. This resulted in the left engine crankshaft being fractured, at the rear of the propeller hub mounting.

It is considered that the nosegear failed to extend following the failure of the aft rod end of the nose gear aft retract rod. A subsequent specialist examination determined that the excessive forces were imposed on the rod end due to landing gear rnisrigging, following replacement of that component durlng a recent maintenance inspection. The aft rod end subsequently failed as a result of continued overloads.

SIGNIFICANT FACTORS

The following factors were considered relevant to the development of the accident:

1.	Inadequate maintenance in that the nosegear was incorrectly rigged following a component replacement.
2.	Overload failure of aft rod end caused by the

applications of excessive loads during the operation

of the landing gear.

RECOMMENDATIONS

It is recommended that the actions of the pilot, although done with the best of intentions in shutting down both engines prior to landing, be the subject of a report in the Avlation Safety Digest. The report should highlight the dangers involved in thls practice, both airborne and after touchdown."

M r Dougherty said he agreed with the conclusions set out in

the report.

The respondent sought to establish that the up-lock
and down-lock tensions found by Mr Bere were incorrect as the

eye bolt used to replace the fractured eye bolt was a

that the part used for the conduct of the tests was longer in

different part from that removed from the push/pull rod in

the shank than the fractured part. I accept Mr Bere's evidence, supported by that of Messrs Dougherty and Anderson, that he took appropriate steps to ensure that the replacement part was installed so that the effective length of the shorter push/pull rod was the same as its effective length at the time of the malfunction of the nose landing gear. I also accept that, even if the replacement part was installed so that the

:l	I	rpr + -	*.v
effective length of the push/pull rod durlng the tests was marginally longer than that of the push/pull rod at the time of the malfunction, that circumstance would not invalidate the overall result which Mr Bere's tests reveal. Neither does the circumstance that on 7 May 1991, that is to say some three years later, Mr Neimanis was unable to reproduce the results reported by Mr Bere invalidate those results. As Mr Neimanis' evidence shows, an adjustment, described by him as a "very rare adjustment" and an "unusual adjustment", had been made to the nose wheel push/pull rod assembly since the incident of 25 July 1988. The consequence is that the tests carried out by
Mr Neimanis were not carried out on the assembly as it had
existed at the time of that incident and it is, therefore, inappropriate to compare one set of results with the other.

In his affidavit sworn on 6 September 1991, M r

Campbell stated (par.35):

"I deny that the rod ball end fitting failed because there had been a failure to adjust or properly adjust the

work was carried out by an aircraft maintenance engineer	nose landing gear after replacement of the fitting. The
Su Khoo and I was present when it was tested. I inspected the down lock tensions and up lock tensions using a Beechcraft tensiometer. Upon checking the tensions I found them to be within the manufacturers limits as set out in the Beechcraft maintenance manual
. . .

In his oral evidence, Mr Campbell affirmed that he had a clear recollection of what had occurred. However, in further cross- examination he conceded that the affidavit was incorrect in stating that the tests were carried out using a Beechcraft tensiometer as the respondent dld not, at that time, have such an instrument. I am not prepared to accept YE Campbell's evidence that he checked the up-lock and down-lock tensions on the occasion of which he speaks and found them to be within the manufacturer's limits. Mr Su Khoo was not called as a witness and there is nothing in the documentary evidence before the Court to support Mr Campbell's statement.

It is also of significance that, after the incident of 25 July 1988, repairs were carried out to the nose wheel push/pull rod assembly. The work sheets relating to the repairs show that the rear nose gear actuating rod and both rod ends were replaced and that the front rod end and actuator fork were magnafluxed, that is to say, subjected to magnetic particle inspection. It is clear from the evidence that the three eye bolts forming part of the nose wheel push/pull rod assembly were replaced. The eye bolt at the aft end of the shorter push/pull rod was replaced because it had fractured. The other two eye bolts were replaced because they had been

These facts support the conclusion that the misrigging of the	found by the magnetic particle inspection to be unserviceable.
nose wheel landing gear assembly of which Mr Bere, M r Dougherty and Dr Romeyn gave evidence caused the fatigue crack in the eye bolt that failed on 25 July 1988.
I find that the eye bolt connecting the nose wheel landing gear aft push/pull rod to the gear box actuator arm failed as a result of a fatigue crack or cracks caused by repeated bending or flexing of the push/pull rod, such
repeated bending or flexing resulting from the incorrect setting of the up-lock and down-lock tensions. I further find that there was a failure on the part of the respondent to ensure that those tensions were correctly adjusted at the inspection that was certified on 12 May 1988 and that that failure constituted a breach of the duty which the respondent owed to the applicant to take reasonable care in maintaining the aircraft.
The respondent is liable to the applicant for the damage suffered by it as a result of the incident of 25 July 1988. There will be judgment for the applicant accordingly.
Conclusion
For the reasons set out above, the applicant is entitled to judgment in respect of the incidents that occurred on 23 February 1987 (aircraft W-CON), 28 April 1988 (aircraft W-ME), 6 May 1988 (aircraft VH-ETV) and 25 July 1988
the recovery and repair costs and the costs of the use or hire (aircraft VH-CFS). The parties have agreed upon the quantum of
of alternative aircraft referable to each of the incidents. The agreed figures are as follows:

A. Incident of 23 February 1987 (VH-CON) -

(i) Recovery and repair costs $22,253.00

(ii)Costs of use of alternatlve

aircraft 618.33 $22,871.33
B.	Incident of 28 April 1988 (W-ME) -

(i) Recovery and repair costs 23,304.14

(ii)Costs of use of alternative

aircraft 469.00 23,773.14
C.	Incident of 6 May 1988 (VH-ETV) -

(i) Recovery and repair costs 37,432.52

(ii) Costs of hire of alternatlve

aircraft 5,458.17 42,890.69
D.	Incident of 25 July 1988 (W-CFS) -

(i) Recovery and repair costs 26,147.07

(ii) Costs of hire of alternative

aircraft 2.682.50 28,829.57

At the conclusion of the hearing, the Court was asked to consider only the issue of liability and to reserve for further argument questions concerning the applicant's claim for interest and costs. I will, therefore, make no

orders at this stage. I d~rect the applicant to bring in

short minutes of order to give effect to this judgment, to the agreement between the parties as to damages and to any agreement that the parties may make as to interest and costs. If agreement cannot be reached in relation to interest and

costs, the parties should submlt written submissions in

relatlon to those matters.

I certify that this and the

preceding 72 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves .

socia e

Dated: 23 December 1993

For the applicant : Mr M.W. Mackrell, Solicitor, of Lane

& Lane, Solicitors

For the respondent : Mr G.T.W. Miller, Q.C. and M r J. Drummond instructed by T.G. Hartmann

& Associates, Solicitors

Dates of hearlng : 9, 10, 11, 12, 16, 17 and 18 June