The phrases in this checklist were apparently derived from a checklist (Exhibit 1D2) he received from Mr Hutchinson when taking possession of the plane (2/8/16 at [9]-[11]). Neither checklist makes reference to the restraining cord and so the relationship between the "lock" and the cord remains uncertain.
- Mr Byers' first reference in his evidence to the restraining cord is made in his affidavit dated 2 August 2016, shortly before the trial. He records a lengthy oral instruction purportedly given by Mr Lane to him almost four and a half years earlier on 17 March 2012. Mr Byers (at [29]) asserts that Mr Lane orally gave him the following instructions:
"After take-off the landing gear of the aircraft is put into the Land Retract Lock position. This has the following steps. The first step is to pull the undercarriage lever back to the locked position. The second step is to put the bungee cord over the end of the undercarriage lever. The third step is to check that the blue light on the dash is illuminated. These three steps ensure that the wheels are pulled up, that the left and right wheels are retracted up, and that the nose wheel is retracted into the fuselage. This is called the Water (Up) position.
For landing the aircraft, the procedure for the landing gear is important. There is one procedure for landing on land, and a different procedure for land on water.
Before landing on land, the procedure is as follows. The first step is to take the bungee cord off the undercarriage lever. The second step is push the undercarriage lever all the way forward to the locked position to extend the nose wheel all the way out of the fuselage, and to lower the left and right wheels. The third step is to check that the green light on the dash is illuminated. The fourth step is to then say aloud, 'We are landing on land, and we have a green light on'. The wheels are down. This is called the Land (Down) Position.
For a water landing, the step is called 'Water - Keep locked', and the procedure is as follows. The first step is to check that the undercarriage lever has been pulled all the way back into the locked Water (Up) position. The second step is to check that the bungee cord is over the end of the undercarriage lever. This is done by checking with your eyes, and also by using your hand to feel that the bungee cord is locked over the end of the undercarriage lever. The third step is to check that the blue light on the dash is illuminated. The fourth step is to then say aloud, 'We are landing on water, and we have a blue light on'. The wheels are up, and you can then proceed to land on water. This is called the Water (Up) Position."
- Mr Byers then recounted his understanding of the steps to be taken after a take-off from land, which included pulling "the undercarriage lever back into the locked Water (Up) position", placing "the bungee cord over the end of the undercarriage lever in the locked Water (Up) position", checking that "the blue light was illuminated" and saying out loud "We are airborne, the wheels have been retracted, and the blue light is on". Mr Byers also gave descriptions of his understanding of the pre-landing procedures for landing on land and water, which were the same as he described Mr Lane instructing him, as quoted in the preceding paragraph.
- Mr Byers recorded (Byers 2/8/16 at [38]) that a final check of the wheel position is done "immediately before the aircraft lands" on water and involves "a check of the dash light to ensure that the blue light is illuminated which indicates that the wheels are in the locked Wheels (Up) position".
- The following matters may be noted about these instructions. First, the term "Land Retract Lock" is the name of a position of the landing gear, although the instruction identifies a number of steps to place the undercarriage in that position.
- Secondly, the "locked position" and the "locked Water (Up) position" are separately stated to be when the lever is pulled back. Thus, the lever can be in the "locked position" without the restraining cord being in place, even though that involves no secure lock on the lever.
- Thirdly, any significance of the parentheses around the word "Up" was not clarified in the evidence. That form was not derived from a manual in evidence or any checklist. How the parentheses operated on the form of the oral instruction (such as whether the word "Up" was stated, or not) was not clear.
- Fourthly, the first reference to the restraining cord appears, in Mr Byer's evidence, when, in his 2016 affidavit, he attributed to Mr Lane references to the "bungee cord" repeatedly. Yet Mr Lane and Mr Byers both acknowledged in cross-examination that Mr Lane never referred to the restraining cord as a "bungee cord" (T174/31-39; T218/21-38).
- Fifthly, on Mr Byers' account, Mr Lane refers to the dual checking method, visually and tactually, to ensure that the cord is over the lever, including checking that "the bungee cord is locked over the end of the undercarriage lever" (2/8/16 at [29]). Strictly there is no locking of the cord. Rather, the cord is properly the locking mechanism on the lever, to hold the lever in place.
- Sixthly, according to Mr Byers, Mr Lane referred to the check of the blue light for a water landing, and the confirmatory statement (at the conclusion of the quoted instruction) that "we have a blue light on". Without more, this method of instruction might wrongly indicate that the blue light comes on only when the lever is fully retracted and the restraining cord is in place, but this is not so. As indicated above, the blue light is activated by the lever being fully retracted; the securing of the restraining cord does not affect the operation of the blue light (other than indirectly, by operating to keep the lever fully retracted). As the confirmatory statement makes no express reference to the cord being in place or to the lever being fully retracted and locked, and makes no reference to any checks visually or tactually of the lever or the cord, it is difficult to regard that statement as evidence that the restraining cord was in place. Mr Byers' evidence of a final check - that the blue light is illuminated which "indicates that the wheels are in the locked Wheels (Up) position" - underlines that the "locked" position is not dependent upon the restraining cord being in place.
- Seventhly, Mr Lane is not recorded as giving to Mr Byers an explanation of the steps involved in taking off from water, a matter of some significance given that the incident landing occurred after two take-offs from water. Nor does Mr Lane explain to Mr Byers the confirmatory words to use after a take-off from land: Mr Byers appears to invent his own words.
- Eighthly, no explanation was given as to how Mr Byers was able to remember the instructions given by Mr Lane in such detail. No notes recording the instructions were produced, and, as mentioned, the recollection occurred some four and a half years after the conversation. The conversation was not at the more memorable time of the incident landing, but about three months earlier at the time of delivery of the aircraft. It is also not clear how Mr Byers was expected or able to remember this detail at the time, without any checklist of items. If Mr Byers needed or was careful enough to adopt a checklist to remind him to leave the undercarriage up after take-off from water ("WATER - KEEP LOCKED"), to expect all this detail to be remembered without a checklist seems unrealistic.
- The considerations in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 indicate that the reliability of Mr Byers' account of Mr Lane's words must be doubted in the absence of any record or explanation of his memory. Perhaps a recollection of Mr Lane's words and Mr Byers' procedure might be strengthened by a practice of continually following the procedure, but Mr Byers, so far as the evidence reveals, has not flown a similar aircraft in the four years since the incident, and had flown it very few times beforehand. As he was still being instructed and had not performed many water landings beforehand, any "usual" practice would be limited.
- It was unclear whether Mr Byers' final step in his landing on water routine involved merely a check of the blue light (Byers 2/8/16 at [38]) or a confirmatory statement after having carried out his water landing procedure (2/8/16 at [32]).
- Mr Byers deposed to having carried out the "After Takeoff Check", which he said were the steps to be taken after a land take-off set out above, after he took off from Camden Haven airfield after lunch on the third day of training on 4 June 2012.
- In respect of the third water landing that afternoon, Mr Byers gives two inconsistent accounts of his words prior to landing. His second affidavit (2/8/16 at [81]) records that he said, consistent with his training and understanding, "We are landing on water, and we have a blue light on", whereas his first affidavit (6/2/15 at [181]) records him saying, "We are landing on the water, the landing gear has been retracted and the gear extension lever is locked, and we have a blue light for landing on the water."
- Mr Byers' purported explanation for this is at [84] in his second affidavit, that:
"I confirm that I said… ['the gear extension lever is locked']…after I had checked by sight that the undercarriage lever had been pulled all the way back into the locked Water (Up) position and after I had checked by sight and by touch that the bungee cord was secured over the end of the undercarriage lever. This is what I meant by the words 'the gear extension lever is locked'".
- This does not explain the different accounts. Rather, it proposes a third alternative confirmatory statement that goes beyond the account in [81] of the 2 August 2016 affidavit by referring to the locked gear extension lever, but omits a reference to the landing gear having been retracted, which was in the version at [181] of the 6 February 2015 affidavit.
- It is also difficult to accept that stating the words "the gear extension lever is locked" are a reference to the action of checking that the restraining cord is in place, as Mr Byers asserts at [84] of his second affidavit. The other references to "locked" are distinguished from, and unconnected to, the positioning of the restraining cord.
- More than once, when confronted with these inconsistencies during his oral evidence, Mr Byers attributed the differences to a "lack of detail". Although the second affidavit contained more detail in respect of his asserted checks, it contained less detail in respect of his oral confirmation. The assertion of a lack of detail might manifest an unwillingness to concede the obvious, in this case, the inconsistency of his evidence.
- In his oral evidence at the trial, Mr Byers gave a further account of what he said before the fateful landing. He says (T179/49): "I said what I usually say, which was, 'We are landing on the water. We have a blue light. The gear is retracted and locked. We are landing on the water. We have a blue light.'"
- This is not what Mr Byers "usually say[s]" if he has not said it for over four years. And it differs from earlier versions in the repeated reference to the blue light, in the repeated reference to landing on the water, and in the absence of any express reference to the lever.
- In summary, the repeated accounts of Mr Byers are not straightforward, consistent and easily believable. Rather, the accounts contain inconsistencies, references to matters unlikely to be remembered, and explanations which are less than convincing. His first contemporaneous account contained no reference to the restraining cord or visual or tactual checks. Nor did the account in his first affidavit. But shortly before trial, after the defendants had served affidavits referring to the restraining cord, Mr Byers deposed to detailed instructions he had received when he took delivery of the aircraft, his understanding at the time and his account of every water landing during the days of training. I could not accept that Mr Byers actually remembered all those matters, especially the detailed instructions, and his assertion that he did impacts adversely on his credit.
- Mr Byers was also challenged on his unwillingness to accept that he had volunteered to, and did, assist in the assembly of his aircraft. This unwillingness remained even when he was shown his own correspondence recording his desire to do so. Whether Mr Byers assisted in the assembly of his aircraft does not appear to be material to the issues in the proceedings but the unwillingness of Mr Byers to concede his involvement is relevant, and adverse, to his credit.
- In these circumstances, I do not accept Mr Byers' account of what he said or what he was told. It follows that this account does not assist to establish, as a form of contemporaneous representation (see e.g. Evidence Act 1995, s 64(3)), what he did. Further, Mr Byers' adherence to these various versions of what he said undermines his credit and diminishes the value of his evidence of what checks he performed and observed on the final day. If his recollection of what he saw and heard Mr Lane say, and what he said and heard himself say, is faulty, then there is a real possibility that what he saw, felt and did, at that same time, is also faulty.