Expert evidence
26The experts prepared a joint report, answering specific questions, on the basis of assumptions that were put to them. It is necessary, therefore, to set out the assumptions before making reference to the joint opinion expressed by them. The assumptions were these:
ASSUMPTIONS
7. The plaintiff, Mr Malcolm Echin was born on 30 October 1952, As at 16 July 2008 he was 55 years old and enjoyed good health.
8. The plaintiff was a member of the Southern Tablelands Gliding Club ("STGC") which was based at Carrick Road, approximately 10 kilometres West North West of Marulan.
9. The airfield contained three (3) unsealed runways. The main runway was 23 and ran roughly north to south. There was also a runway 28 which ran roughly west to east. There was also an auxiliary runway that was in a roughly east/west direction near the hangar. As at July 2008, the auxiliary runway was a recently mown area.
10. The relevant features of the Carrick airfield are depicted in Annexure "A" to Mr Hayward's statement.
11. The eastern entry point of runway 28 was situated about 160 metres from high transmission lines erected on "grasshopper" pylons. The power lines ran approximately perpendicular to the extended centre line of runway 28.
12. The use of runway 28 by pilots at all times up to and including 26 July 2008 was as follows:-
a. The plaintiff contends that from time to time pilot club members would land on the 12/30 runway for the purpose of performing a "hangar landing"; i.e. landing the aircraft so it stopped near the hangar thereby minimizing the time and effort required to put it away. The plaintiff further contends that at no time before the accident was he ever given any instruction in relation to utilizing the 12/30 strip only in cases of emergency or as to procedures to be adopted when utilizing the 12/30 strip.
b. The first defendant contends that pilots on occasion used runway 28 in an approach from the east, if the wind meant that other landing options were unsuitable. It was rare for Runway 28 to be used for east-west landings.
(In your report please give an alternative opinion, if necessary, upon the assumption that either a. or b. above is found to be the fact.)
13. As at 16 July 2008 the plaintiff had approximately 38 hours total experience (150 launches). He had 9 hours 11 minutes solo experience (36 launches) in Blaniks and 58 minutes solo experience (6 launches) in a Bocian.
14. The plaintiff underwent almost all of his instruction and flight training at STGC at the Carrick airfield.
15. Before any flying activities were undertaken at the Carrick airfield there was a pre-flight briefing conducted by the Duty Instructor/Pilot on the day. The Duty Instructor/Pilot was a member of the Club who had volunteered for that position. At in-flight briefings on and/or prior to the 16 July 2008:
a. The first defendant contends that it was common for the Duty Instructor/Pilot to refer to the existence and location of the power lines,
b. The plaintiff contends that it was not common for the Duty Instructor or the Duty Pilot to refer at the briefing to the existence and location of the power lines.
(Again, in your report please give an alternative opinion if necessary upon the assumption that either a. or b. above is found to be the fact.)
16. At the pre-flight briefing on 16 July 2008, the Duty Instructor/Pilot said to the plaintiff and the other members flying that day:
"The weather bureau forecast for landing is 280 degrees and 15 knots, therefore we will be using Runway 23. We will be taking out two Blaniks. "
17. Prior to 16 July 2008, the plaintiff was aware of the existence and location of the power lines.
18. By 16 July 2008 the plaintiff had completed the practical requirements of his Gliding Federation of Australia "A, B & C" certificates. He had been gliding for three (3) years and flew approximately once per month.
19. The plaintiff had previously landed on runway 28 at the southern end of the field whilst flying a Blanik solo on 21 May 2008.
20. Mr Echin was instructed using the Gliding Federation of Australia Gliding Instructor's Hand Book.
21. The first defendant's case is that the training given to the plaintiff was as set out in the statement of Mr Gamble and we refer you to that statement. The plaintiffs evidence is that at no time either on or before 16 July 2008 was he ever given any specific instruction in relation to:-
(i) Utilising the 30 strip (alternatively referred to as the 28 strip) adjacent to the hangar only in cases of emergency, or
(ii) Procedures to be adopted when utilising the 30(28) strip.
22. Please make alternative assumptions in answering the questions below that the training was given as per Mr Gamble's statement or alternatively that the position is as stated by the plaintiff.
23. Mr Gamble instructed the plaintiff on how to land the gliders using different angles to their aiming point as preparation for cross-country (i.e. for landing a glider in a paddock different to where they took off from).
24. In the normal course of their training Mr Gamble checked that the plaintiff was capable of the following:-
a. monitoring his position in the circuit around the airfield;
b. modifying the circuit as necessary to avoid obstacles;
c. landing safely; and
d. selecting an appropriate landing approach.
25. Mr Gamble instructed the plaintiff that he could use runway 28 from west to east. He also instructed the plaintiff that he could use runway 28 from east to west but he did not like to use it because of the power lines.
26. At the time of the subject incident Mr Echin had obtained a level of experience to be flying solo,
27. On 16 July 2008 the plaintiff completed three (3) winch-launch flights taking off from runway 23.
28. The plaintiff took off for a fourth flight. Whilst he was in the air and before he re-joined the circuit to land, the Duty Instructor/Pilot made radio contact with the plaintiff and said to him "make this a hangar landing" or "you might as well take it to the hangar" or "this is a hangar flight."
29. The plaintiff re-joined the circuit to make his landing. He attempted to land on runway 28 from east to west coming in over the power lines. The aircraft collided with the top cable of the power lines and tumbled approximately 100 feet before impacting the ground. The plaintiff suffered some injuries.
30. On 7 November 2010 the Chief Flying Instructor of the Gliding Club sent an email in which he said the following: "Landings on runway 28 involve flight much too close to the power lines and are banned except in an emergency. A hangar landing is not an emergency."
27Before dealing with the answers given by the experts to questions asked of them and to their oral evidence I should say that I found both experts to be helpful and objective witnesses. They were in almost complete unanimity in the views they expressed. Indeed, a person reading their evidence or listening to it would be unlikely to be able to determine by which side each was retained unless so informed. Their evidence was of considerable assistance to me in coming to the conclusions I have reached in the matter. In what follows I have not said very much about their oral evidence because it rarely qualified what was contained in their joint report.
28The joint opinion of the experts in their report is relevantly as follows:
Q1. Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in providing and/or designating runway 12/30?
29The experts first considered this question on the basis that assumption 12(a) was found to be the fact. Assumption 12(a) was that from time to time pilot club members would land on that runway for the purpose of performing a hangar landing but at no time before the accident was the Plaintiff ever given any instruction in relation to utilising that runway only in cases of emergency or as to the procedures to be adopted when using that runway.
30The experts' conclusion was this:
We agree that specific instruction in the risks to be managed and the techniques needed for a safe and accurate landing on 30 should have been a prerequisite to the Plaintiff's use of that runway. Our agreed opinion is that assumption 17 and paragraph 22 of his statement confirm he was aware of the power line hazard. ... Our agreed answer to alternative one is NO. As long as pilots are made aware of and trained to land safely over the obstruction across the approach to runway 30 (sic).
31The experts then considered assumption 12(b) as an alternative. That assumption was that it was rare for that runway to be used for east-west landings and it was used from the east if the wind meant that other landing options were unsuitable.
32The experts agreed that that runway should have been rarely used for east to west landings and only if prevailing conditions rendered other runways unsuitable. Their answer to the question was NO, provided pilots using the airfield were made aware of and trained to land safely over the obstruction to runway 30.
33Accordingly, whichever alternative was found, the experts considered that the Club was not negligent provided the pilots were made aware of the obstruction and trained to land safely over it.
34The Plaintiff not only was aware of the obstruction created by the power lines but said that he had become aware of it during his training. Further, as his evidence set out above shows, he was instructed how to deal with such obstructions, and he had landed safely on that runway over the power lines previously when flying solo. I agree with the experts' answer to this question for the reasons they give and because the Plaintiff knew of the power lines and had been appropriately trained in how to deal with them.
35Question 2 asked:
Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in its instructions and training given to the Plaintiff prior to the commencement of the flight on 16 July 2008 in relation to landing in general and in particular in landing in the late afternoon?
36There were two alternatives. Alternative one was that it was found as a fact that training was given in accordance with Mr Gamble's statement. The experts found that if it was, Mr Gamble's actions accorded with sound training practice within Gliding Federation of Australia (GFA) norms and their agreed answer to alternative one was NO.
37Alternative two in answering this question was that it was found as a fact that the Plaintiff was not given specific instruction about using runway 30 only in emergency or in the procedures to be adopted when using runway 30.
38On this alternative the experts agree that the Plaintiff should have received such instructions. They provided a qualified YES to the question with the qualification being that the Plaintiff was aware of the powerlines and he had received training before being cleared for his solo flight including landing technique, landing area selection and safe clearance of obstacles.
39It is necessary, therefore, to consider Mr Gamble's statement and his evidence.
40In his first statement of 6 July 2012 Mr Gamble said this:
14. During the course of training Malcolm, I covered the phrase "hangar landing". I said words to the effect:
"Sometimes you will need to land the glider close to the hangar, for example if it is the last flight for the day. If you need to do a hangar landing what that means is you land the glider close to the hangar. Normally you do this by landing long on runway 23, or you can land in the paddock near the hangar - it is pretty flat. You can use runway 28 from west to east. You can use runway 28 from east to west but I don't like to because I don't like the power lines. Sometimes you may need to use that because of wind.
15. In the normal course of their training I checked that Malcolm and Judy were capable of monitoring their position in the circuit around the airfield, modifying the circuit as necessary to avoid obstacles, how to land safely and how to select an appropriate landing approach.
16. I also taught them all the emergency proceedings for winch launching, spinning and stalling.
...
28. I do not like landing over these power lines myself and I always make sure that I have plenty of height when I pass over them.
41In his Supplementary Statement of 3 September 2012 Mr Gamble said this:
5. I was aware from my knowledge of the Handbook when I trained the Plaintiff that one of the topics covered in the Handbook was the clearance of obstacles when approaching to land and when landing and being aware of your position in relation to field, the height above ground and one's ability to get back to flying to the field for a safe landing.
6. I do not have a specific recollection of the training I gave to the Plaintiff in relation to clearing obstacles when landing the glider. However, I believe I would have covered that topic with him. My belief is based on the following matters.
7. As at 2005 to 2006, I knew there were trees which needed to be cleared at the northern and southern end of the runway 23. I also knew there were the electricity wires to the east of runway 28. I also knew that the Handbook said that obstacles should be cleared by approximately 50 feet. It was my invariable practice in 2005 to 2006 to instruct new pilots that they had to ensure they were landing one and a half wingspans clear of any obstacles when landing. My estimate is that that is about 50 feet.
8. As I knew of the tree and power line obstacles as at 2005 to 2006 it would have been my invariable practice to refer to those obstacles when training the Plaintiff and to instruct him to make sure he cleared them by one and a half wingspans when landing.
9. Further to paragraph 28 of my earlier statement, that records my view as at 2005 to 2006 and it remains my view today. I do not recall whether l passed on that view to the Plaintiff. However, I believe that in the course of providing training to him about avoiding obstacles when landing, I would have said:
"You should try and avoid landing over those powerlines whenever you can."
10. It was my usual practice to say words to that effect to pilots under instruction in 2005 to 2006.
42In paragraph 12 of his first Statement, a paragraph that was not read because of an objection to its form, reference had been made to teaching the Plaintiff and his wife about using different angles to their aiming point. He was asked questions about angles and the aiming point in his evidence in chief and he said this:
Q. What teaching were you referring to when you made reference to the different angles and the aiming point in this paragraph?
A. I am referring to angle to the aiming point, from the glider to the aiming point that they have selected on the field to use as a reference. This angle changes, depending on the wind strength, and doing their checks early and planning their landing patterns early and looking for obstructions, anything they might have problems with, encountered on their landing approaches and so on; animals on the strips, cars, single earth return wires, those sort of the things. Anything that might cause them problems.
Q. In paragraph 17, you have said that you taught Mr Echin and his wife to be aware of the distance from the airfield and to adopt an adequate height above obstacles. What teaching did you deliver to Mr Echin about adopting adequate height above obstacles?
A. It is a two - I have to answer this two ways. There was a time when I took - I allowed Malcolm to fly away from the field, and I wanted him to be aware of his height, his position with regards to his landing strip, and what was actually going on around him. I allowed him to fly away and to a distance and get down to a certain height where I would not allow him to go any further. I wanted him to be aware of how important it was to be aware of where he was and his height from the field so he can always get back there. And I allowed him to get down to a certain height and then I asked him, "Where's the field? What height are you?" And he realised then that he was getting on his limit to be able to get back to the field, and I used that to get him - make him aware of those situations, how important it was.
The other thing is, getting over obstacles and so on, especially on landing. Because at our field, one end we have gum trees, at the other end we have pine trees. It is important that when you join your landing circuit and you do your FUST [scil. first] check, which is a check of the situation around, select your speed, that you be aware of anything that has to be cleared on the way through. Normally, always, it is one and a half wing spans above any obstacle for clearance.
...
Q. Did you have a usual practice in relation to teaching students about clearing obstacles in the period 2006/2008?
A. Yes. What I try to do is teach getting over obstacles in a safe manner. Power lines is a classic example. What I taught was approach the power lines with adequate height above them with brakes closed. When you see the power lines go in underneath the aircraft, especially the skywire, then open your brakes, drop your nose and come down and fly the excess speed off as you land.
Q. Sitting there today, do you have a recollection whether you followed your usual practice and habit in teaching Mr Echin?
A. I can't remember at this moment going back. It is a long time ago. But I use that as a standard practice for my teaching of getting over obstacles, like these damn power lines. I hate them.
Q. Is there anything that you are aware of that would lead you to think you wouldn't have followed your usual practice in teaching Mr Echin?
A. No. What we did do, and I remember doing, a left hand circuit on runway 23. That takes us over the hangar, over the power lines and over the pine trees, and I use that to demonstrate how difficult it was to see this top wire of the power lines. Normally we do a right hand circuit onto 23 but occasionally I do a left hand circuit. That is standard for my teaching because, as I said, I did not like those power lines at that time, couldn't see them in certain conditions.
43Mr Gamble's evidence was attacked on two levels by counsel for the Plaintiff. The first was on the basis of the poor quality of the written records, particularly the logbook, demonstrating the Plaintiff's competence or otherwise from the flights he made. The second attack was that, because Mr Gamble was training the Plaintiff using the gliding instructor's handbook, that meant that, because the Plaintiff had not yet obtained his B Certificate, he would not have been trained in relation to the hazards of power lines. This was because those matters only arose in the handbook in the context of cross-country flying - something that the Plaintiff was not at that stage qualified to do.
44I do not accept that either of these matters have the effect of diminishing the reliability of Mr Gamble's evidence.
45It may be accepted that the paperwork in the logbook was less than desirable in terms of detailing matters that arose during the Plaintiff's training. Nor was it satisfactory that flights were not signed off by the instructor concerned, particularly before the Plaintiff was regarded as suitable for solo flying. Those deficiencies must be seen, however, in the light of the fact that this was a small social club which did not appear to have, and might not be expected to have, strict auditing procedures to ensure that processes and practices were adhered to strictly.
46Mr Gamble's explanation about what he taught the Plaintiff regarding obstacles and wires was entirely believable. As he said, the airfield where he was training the Plaintiff had a number of hazards surrounding it, not the least of which were the power lines on the eastern side. Whilst the issue of power lines and the like might not have been addressed for persons who were being instructed at an airfield that was entirely unobstructed, it makes perfect sense that the issue of the power lines would have been a significant concern in any training of pilots at this particular club and location.
47I accept Mr Gamble's evidence that the Plaintiff was a competent and safe pilot who had reached the level of competency that made him safe to fly solo. It is clear that that happened a considerable time and a considerable number of flights before the unfortunate events of July 2008. By that time the Plaintiff, for example, had made a number of hangar landings including one along the airstrip that he intended to land on the day of the accident and in the same direction.
48Mr Gamble's evidence is supported to an extent by what appears in the GFA accident/incident report of the Plaintiff's accident. Mr Jolly, the Chief Flying Instructor at the Club, said of the Plaintiff:
B Certificate requirements complete but not yet claimed - about to complete C.
49In the result, I accept Mr Gamble's evidence including the evidence contained in his statements about what he informed the Plaintiff concerning hangar landings. That included his evidence that he had informed the Plaintiff that he could use runway 23 by landing long on it. Whilst the Plaintiff said that that was not an option which had been discussed with him I consider that he is mistaken in his recollection. Although Mr Gamble was cross-examined about his statements no challenge was made either to his evidence that he informed the Plaintiff about landing long on runway 23 to achieve a hangar landing nor to his evidence that he said to the Plaintiff that he should avoid landing over the power lines whenever he could. The Plaintiff accepted that it was possible Mr Gamble made the latter remark to him.
50Further support for Mr Gamble's evidence is provided by Mrs Echin who said that she was aware that a hangar landing could be performed northwest to southeast on runway 23. Mr Gamble was also Mrs Echin's instructor.
51Both the experts considered that that was an appropriate place for a hangar landing. Mr Atkinson, who was the duty pilot on the day of the accident and the treasurer of the Club, said that almost without exception when a pilot was told to make a hangar landing they either landed long on runway 23 or they landed on the auxiliary runway. Mr Atkinson assumed on the day of the accident that the Plaintiff was about to make his hangar landing on runway 23. All of these matters make it very likely that the Plaintiff was told that a hangar landing could be made by landing long on runway 23.
52Additionally, I found Mr Gamble to be an honest and straightforward witness on whose evidence I felt I could rely.
53Accordingly, the experts' conclusion based on the acceptance of Mr Gamble's statement is that there was not a breach of the duty of reasonable care by the Club in its instructions and training given to the Plaintiff in relation to landing in general and in particular in landing in the late afternoon. I agree with that conclusion.
54In addition, in their oral evidence the experts said this (T 173):
WITNESS VASSAROTTI: ... In effect we are saying that the issue of whether or not there was specific reference to the presence of the power lines on every daily briefing, we didn't consider it to be of major importance because many gliding clubs operate in the vicinity of hazards similar to those wires and as long as the pilots who were flying there on the day have been trained at that site or any visiting pilots have been briefed on them separately, then it would not be normal constantly to refer to the presence of the hazard. It could be on the day if particular conditions were such that it was possible people were flying circuits near them, but basically I think as experts we agreed that it wouldn't be normal for the presence of these hazards to be dealt with every day on a regular basis.
HIS HONOUR: Do you have a different view, Mr Flower?
WITNESS FLOWER: No, that was basically how we addressed it. We felt it was common practice that where there were known hazards on any particular runway where they were of the opinion that the clubs members flew them regularly and knew it, and we went on in another place to say that that would have formed part of the instruction.
55A little later Mr Vassarotti said that if a pilot knows wires exist there should be no reason not to be able to pick them up because they are strung between towers. The pilot should set his height by the towers. Mr Flower agreed with this. The Plaintiff also gave evidence that he knew it was necessary to clear the uppermost point of the tower (T 80):
Q. So you knew when you flew across, I suggest to you, that the relevant point for you to clear by way of obstacle clearance was the upper most point of the tower, correct?
A. Correct.
Q. The power towers?
A. That's correct.
Q. And that happened to coincide with where the top of the power lines was because that ran between the tops of the towers, correct?
A. I'm now aware of that, yes.
Q. So you knew full well when you flew your down wind leg that the relevant obstacle to clear was the top of the power towers?
A. Correct.
Q. You knew when you came back that that was important?
A. Yes.
Q. To clear that obstacle, correct?
A. Yes.
Q. And you knew at the time that in circumstances where there are power lines in place that it was important to err on the side of caution, correct?
A. Yes.
Q. And one way to err on the side of caution here was to keep well clear of the uppermost point of these towers, correct?
A. Yes.
Q. And the only downside that would have had, I suggest to you, if you had flown one and a half or even more wing spans above the top of these towers was that you might have landed a bit past where the hangar was, mightn't you?
A. Yes.
56This evidence from the Plaintiff, from Mr Gamble and from the experts demonstrates clearly that proper instruction had been given to the Plaintiff and that the Plaintiff knew what he had to do to deal with the obstruction created by the power lines.
57Question 3 asked:
Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in its instructions to the Plaintiff during the Plaintiff's flight on 16 July 2008 in relation to landing?
58The experts agreed that the answer in relation to landing in general was NO. In relation to landing in the late afternoon the experts said that some glare difficulties were a reality for all pilots and could be expected to have been part of the Plaintiff's training and solo experience.
59The Plaintiff said that the topic of dealing with the sun and the glare was covered in his training to the extent that it is covered in the manual. He said he had never experienced visibility problems because of the sun before the flight during which the accident occurred. He said that although he always wore appropriate eyewear to counteract the sun, on the day of the accident he thinks he was only wearing his standard prescription glasses because it had been a fairly overcast day.
60In my opinion, the Club cannot be said to have been in breach of its duty by reason of any omission in saying anything to the Plaintiff about the need for appropriate eyewear. That was something he knew in any event. Further, it could not have been known in advance that the Plaintiff would choose to do his hangar landing on runway 28. Had he performed the hangar landing on either of the three landing places he would not have been flying into the sun.
61Question 4 asked:
Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in permitting the Plaintiff to fly as a solo pilot on 16 July 2008?
62The experts agreed that the answer to this question was NO. That is scarcely surprising in view of the Plaintiff's history of flying as shown in the logbook. Moreover, on the day concerned he had safely flown two solo flights as well as one flight with Mr Haywood who only commented in the GFA accident/incident report:
Assessed safe solo but briefed to get ahead of aircraft, to anticipate and to smooth out control use.
Mr Hayward explained this in his oral evidence (T 147):
In my debrief to Mr Echin, who flew well, I suggested that in addition to flying well he flew a little roughly with the controls and I suggested that if he was able to think a little further ahead that the aircraft might require a manoeuvre shortly he could ease into the manoeuvre instead of roughly jerking into a manoeuvre, so smooth out his flying. So the intention was to get Mr Echin to make his flying smoother.
Nothing in that explanation suggests that the Plaintiff was not competent to fly solo.
63I further have regard to Mr Gamble's assessment of the Plaintiff's flying ability, that he had been assessed safe for solo flying some 19 months before and had flown solo on many occasions in the intervening period without Mr Gamble or any of the instructors expressing any concerns that he was not fit to do so.
64Question 5 asked:
As at 16 July 2008 was the First Defendant required pursuant to the GFA operational regulations, clause 7.1.1 and/or the GFA Manual of Standard Procedures clause 17.1.3.1, to ensure that the Club's operations in general and in particular the operation being conducted by the Plaintiff were directly supervised by an instructor holding an instructor's rating level two or higher?
65The experts answered YES to this question.
66Mr Gamble was a Level 2 instructor. Mr Gamble was present when the Plaintiff took off on his last flight but then he went home. The other instructor said to be a Level 2 who was present at the time of the accident was Mr Hayward. Although Mr Hayward said only that he held a Level 1 in his first statement, in his second statement he said that he held a Level 2 which had been reinstated on 29 June 2008. His original Log Book was produced. That showed a sticker rating him as a Level 2 instructor apparently signed, dated 29 June 2008 and issued by the GFA, the certifying authority.
67Mr Anderson of Counsel for the Plaintiff challenged the authenticity of the certification of Mr Hayward as a Level 2 instructor. That was principally on the basis that Mr Hayward did not have the necessary hours of flying time and instructing between the date he was certified as a Level 1 and the date he was purportedly certified as a Level 2. Reference was made to section 6.4 of the GFA Operational Regulations in that regard.
68When My Hayward was asked whose signature appeared on the certifying sticker he said it was that of Mr Drew McKinney who he said was a Level 3 instructor and whom the logbook showed he had flown three flights with on 28 and 29 June 2008. Thereafter, no questions were asked of Mr Hayward about that matter. Reliance was placed, however, on the answer to a subpoena issued to the GFA. The subpoena required production of,
Any and all records in relation to issue and/or re validation of instructor ratings held by Graeme William Hayward (GFA number 213619) during the period 9 September 1970 - 16 July 2008.
69A letter from the GFA to the Court of 29 August 2012 said:
I confirm that, following a search, The Gliding Federation of Australia Inc has no records of the kind requested in the Subpoena.
70I cannot conclude from that letter that Mr Hayward is not a certified Level 2 instructor. Unless all of the stickers in the logbook are fraudulent (and that, quite properly is not suggested) the fact that the GFA claims to have no records is not sufficient to overcome what does appear in the logbook and Mr Hayward's evidence. I noted at the time that Mr Hayward gave his evidence that he was a good witness who made appropriate concessions and was not evasive. More than one re-reading of the transcript of his evidence does not cause me to change that view.
71The Plaintiff had an evidentiary onus to show that Mr Hayward was not appropriately qualified. It did not discharge that onus.
72However, even if I had concluded that Mr Hayward was not appropriately qualified and, therefore, that there was no Level 2 instructor at the airfield at the time of the Plaintiff's accident the Plaintiff would have the difficulty in establishing the element of causation contained in s 5D(1)(a) Civil Liability Act. By virtue of the Plaintiff's training, knowledge and experience the absence of a Level 2 instructor could not be said to be a necessary cause of the harm suffered to the Plaintiff.
73At the time the duty pilot made the radio call to the Plaintiff telling him to make a hangar landing Mr Hayward was about 50 feet from the base station where the radio was. Mr Hayward observed the circuit that the Plaintiff was flying and it did not appear to him that the Plaintiff was flying in the circuit it now seems to be accepted he flew (set out in paragraph [13] above). Mr Hayward had drawn what he believed the circuit was. That had the Plaintiff flying the downwind leg in a southwest to northeast direction (roughly parallel with runway 23), the base leg parallel with the line of pine trees on the northern verge of the property, and the final leg directly south towards the hangar. Mr Hayward said that as he perceived the Plaintiff's path the Plaintiff was not in any danger until just before he struck the wires.
74Although Mr Atkinson first thought that the circuit the Plaintiff followed was the one set out in paragraph [13] above (he had been shown the plan attached to Mr Berry's statement) when shown the plan Mr Hayward drew and asked what he said about that route, Mr Atkinson said:
That more closely represents what I thought happened.
75Even though I think Mr Hayward and Mr Atkinson wrongly perceived the course the Plaintiff was flying I can understand how perceptions might differ when a plane is being observed from different vantage points on the ground. I accept that Mr Hayward honestly thought the Plaintiff was flying a different circuit, one that did not until the last minute involve any danger. Accordingly, he would not have given any particular instruction to the Plaintiff about how he performed his hangar landing regardless of his level of qualification as an instructor. In that way, even if he was only a Level 1 instructor that was not a necessary cause of the damage.
76The answer given by the experts to question 5 is undoubtedly correct - Section 7.1.1 GFA Operational Regulations. That regulation was complied with by virtue of Mr Hayward's presence, but even if it was not it was not a cause of the Plaintiff's damage.