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[2025] NSWSC 1536
General information, not legal advice.
Supreme Court of NSW
2025-12-17
Cavanagh J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: O’Driscoll v Encore Aviation Pty Ltd [2025] NSWSC 1536
Hearing dates: 21 – 24, 28 – 31 July 2025, 19 – 20 August 2025, 8 – 9 September 2025
Date of orders: 17 December 2025
Decision date: 17 December 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) Judgment for the first plaintiff in the sum of $55,250.
(2) Judgment for the second plaintiff in the sum of $429,944.09.
(3) Order the defendant to pay the costs of the first and the second plaintiffs.
(4) Should any party seek a variation of these orders, I grant liberty to apply on 3 days’ notice, noting that pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), the parties must seek variation within 14 days of these orders.
Catchwords: TORTS – helicopter crash – cause of crash – mechanical defect – maintenance obligations – failure to properly inspect
TORTS – negligence – contributory negligence – same obligation on both plaintiff and defendant to inspect prior to flight
TORTS – damages – personal injury and property loss – psychiatric illness – failure to disclose symptoms to CASA over 6 years – inconsistent contemporaneous records – operation of business for 13 years – insufficient earnings to pay tax – consequences on assessment
EVIDENCE – practice and procedure – the rule in Browne v Dunn – procedural fairness – failure to cross-examine – acceptance of witness’ evidence
Legislation Cited: Civil Aviation Act 1988 (Cth)
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5R
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 60
Law Reform Miscellaneous Provisions Act 1946 (NSW), s 5(1)(c)
Transport Safety Investigation Act 2003 (Cth), s 27
Civil Aviation Regulations 1988 (Cth)
Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16
Browne v Dunn (1893) 6 R 67
Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166
MWJ v The Queen [2005] HCA 74; 80 ALJR 329
ovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Scott v Scott [2022] NSWCA 182
Texts Cited: Nil
Category: Principal judgment
Parties: Proceedings 2021/103314
Philip Gregory O’Driscoll (Plaintiff)
Encore Aviation Pty Ltd (First Defendant)
Encore Helicopter Maintenance Pty Ltd (Second Defendant)
Proceedings 2021/106215
O’Driscoll Aviation Pty Ltd (Plaintiff)
Encore Helicopter Maintenance Pty Ltd (First Defendant)
Encore Aviation Pty Ltd (Second Defendant)
Representation: Counsel:
Proceedings 2021/103314
R McIlwaine SC and R Quickenden (Plaintiff)
T Brennan SC, D Stanton and H Cooper (Defendants)
Proceedings 2021/106215
G Nell SC and K Anderson (Plaintiff)
T Brennan SC, D Stanton and H Cooper (Defendants)
Solicitors:
Proceedings 2021/103314
AC Lawyers (Plaintiff)
Norton White Lawyers (Defendants)
Proceedings 2021/106215
HWL Ebsworth Lawyers (Plaintiff)
Norton White Lawyers (Defendants)
File Number(s): 2021/103314; 2021/106215
Publication restriction: Nil
This is the judgment in respect of two related proceedings arising out of a helicopter crash which occurred on 17 April 2018.
The pilot, Philip Gregory O’Driscoll (who I will call “the plaintiff”) was the sole occupant of the helicopter at the time that it crashed. He is pursuing damages in respect of the injuries he sustained.
The owner of the helicopter, O’Driscoll Aviation Pty Ltd (who I will call “the company”), is pursuing damages in respect of the damage to the helicopter and other losses allegedly sustained.
Both plaintiffs named a number of defendants, apparently being uncertain as to the party responsible for undertaking the servicing and maintenance of the helicopter prior to the crash.
By the time of the hearing, the plaintiff was only pursuing one defendant being Encore Aviation Pty Ltd. The company maintained his action against both Encore Aviation and a related company, Encore Helicopter Maintenance Pty Ltd, with which the company said it had a contract. As I will discuss, in reality, its case is also against Encore Aviation as the party responsible for the servicing and maintenance of the helicopter.
For ease of reference, I will simply refer to Encore Aviation as “the defendant”. If it is necessary to refer to Encore Helicopter Maintenance, I will do so expressly. When I refer to the plaintiff and the company jointly, I will call them “the plaintiffs”.
The plaintiff sues the defendant only in negligence. The company also pursues claims under the Australia Consumer Law (“ACL”) and for breach of contract.
As I will discuss, all of the claims against the defendant arise out of the failure to take care as this term is understood in the Civil Liability Act 2002 (NSW) (“CLA”).
The defendant provided services to the plaintiffs on a long term basis prior to the helicopter crash. The defendant admits it owed a duty of care to the plaintiffs. However, it denies that it acted in breach of any duty or in breach of contract or the consumer guarantee and raises issues on causation and contributory negligence.
The plaintiff was represented by R McIlwaine SC and R Quickenden of counsel. The company was represented by G Nell SC and K Anderson of counsel. The defendant was represented by T Brennan SC, D Stanton and H Cooper of counsel.
The matter proceeded over two weeks commencing 21 July 2025 and then for two days on 19 and 20 August 2025, and a further two days on 8 and 9 September 2025.
There is little dispute as to the background of the matter or even as to what happened during the crash. There is a significant dispute as to what was required of the defendant in terms of inspections, servicing and maintenance, and in particular what may have been observed or detected by the defendant if it had been complying with (what the plaintiff says) were its obligations.
There is a significant dispute as to the condition of the helicopter immediately before the crash and whether defects existed. The pleaded case was broader than the case pursued after the evidence.
The determination of the outcome involves a consideration of extensive complex expert evidence covering the fields of air crash investigation, engineering and metallurgy.
I will explain briefly what the case is about.
The plaintiff was the only person on board the helicopter at the time of the crash. The cause of the crash was mechanical defect rather than pilot error. The plaintiffs say that, as discovered on examination of the engine after the event, there was fatigue cracking in an engine part known as the exhaust diffuser. Some of the cracking was internal (that is, not observable except during invasive repairs). Some of the cracking was in the external area of the diffuser. The plaintiffs say that this external cracking was present at a time or times when the exhaust diffuser was inspected by the defendant and should have been detected by the defendant. If it had been, the helicopter would have been grounded until the repairs had been effected and the crash would not have happened.
The defendant disputes that the external cracking was present at any time when its servants or agents inspected the exhaust diffuser and thus says that the plaintiffs’ case based on a failure to inspect, detect and repair must fail.
The alternative case pursued by the plaintiffs is that the defendant undertook repairs to the helicopter in the period up to 1 April 2018. The plaintiffs say that at least by 1 April 2018 the nature of the repairs was such that the defendant was required to undertake a vibration test of the relevant part of the engine. On the plaintiffs’ case, if the defendant had undertaken such a vibration test, the presence of excess vibration would have been detected, repairs would have been effected and the crash would not have occurred. The defendant says that there was no obligation on it to undertake a vibration test and there is no evidence as to what such a test would have revealed in any event.
As pleaded and as pursued on the hearing, there are thus two limbs or central allegations against the defendant, being that:
it should have detected cracking in the exhaust diffuser at some point prior to the flight; and
it should have undertaken a vibration test on the occasions when it was undertaking repairs to the helicopter (that is, foreign object debris (“FOD”) repairs).
The plaintiff is currently 53 years old. He resides in Humpty Doo in the Northern Territory, although he generally spends a large part of the year working interstate and in particular in New South Wales.
He has held a commercial pilot’s licence (helicopter) for many years. He also held a low-level operational rating with endorsements for helicopters sling-load, as well as a Canadian Airline Transport Pilot Licence. He has worked in the aviation industry for many years. In 2005 he sustained very serious injuries in a helicopter crash in Canada. He has been in receipt of some benefits from a Canadian fund since that time.
In or around 2007, he incorporated the company through which he has conducted an aviation business. He is the sole director and shareholder of the company.
In 2011, the company purchased a Bell Garlick UH-1H helicopter registered VH-HUE, which is the helicopter the subject of these proceedings.
The plaintiff arranged for the company to acquire Bell Pacific Holdings Pty Ltd because Bell Pacific Holdings held an Air Operator’s Certificate (“AOC”) issued by CASA, which permitted it to conduct aerial work using that particular class of helicopter.
Prior to purchasing the helicopter, the plaintiff arranged for a Licenced Aircraft Maintenance Engineer (“LAME”) to conduct an inspection of the range of helicopters that the vendor had for sale. That inspection was carried out by Blake Curtis who recommended that the particular helicopter be purchased. Mr Curtis prepared a pre-purchase inspection of the helicopter and provided a report to the plaintiff.
Prior to the purchase, the inspection, maintenance and repair requirements were being undertaken by Sea Breeze Aviation Pty Ltd.
At the time of the purchase, the helicopter was fitted with a Lycoming T53 gas turbine engine.
In about March 2014, the plaintiff arranged for the installation of a replacement engine of the same type. Sea Breeze Aviation removed the existing engine and installed the new engine.
In about 2011, the plaintiff first came in contact with Robert Loxton, the principal of the defendant. In 2016, the plaintiff says that he arranged for Mr Loxton’s business to manage and conduct all of the helicopter’s airworthiness, inspection, maintenance and repair requirements on a full-time basis.
A written maintenance agreement was exchanged by the parties, although there is an issue as to the precise terms of any agreement between the company and the defendant.
On the plaintiffs’ case and subject to the obligations of the plaintiff as the pilot and the person who carried out some of the daily inspections, the defendant carried out all required and necessary servicing, maintenance and inspections of the helicopter at all relevant times prior to the crash.
On 17 April 2018, the plaintiff was conducting a lifting operation to move a large drill-rig from the drill site near Lobs Hole, which is close to Talbingo in the Snowy Mountains. The planned work involved using helicopters to relocate the components of a deconstructed drill-rig used for geotechnical survey.
On 16 April, the plaintiff flew the helicopter to Tumut airport. He had notified Mr Loxton of the lifting job and Mr Loxton assigned a LAME (Mr Harris) to meet at Tumut on the evening of 16 April to carry out the daily inspection and undertake any necessary maintenance. Mr Harris was not an employee of the defendant, but the defendant accepts that, having regard to the statutory scheme governing the operation of the helicopter, the defendant is responsible for his conduct.
The plaintiff stayed in a motel in Tumut overnight and performed an inspection the next morning. As the pilot, he signed the daily inspection certificate. He then commenced use of the helicopter that day. He describes the inspection he carried out as being less thorough than the inspection carried out by Mr Harris, perhaps as an explanation for why he did not detect the cracking in the outer struts when Mr Harris should have.
He believes that Mr Harris had also carried out all necessary inspections and maintenance. At the commencement of the hearing the defendant did not concede that Mr Harris had carried out any inspection that morning but by the end of the case, the defendant accepted that such a finding was open on the evidence.
The plaintiff completed 11 lift runs which were uneventful, with ground personnel preparing the next load between lifts. At approximately 2pm, he approached the loading area to lift the drill-rig motor.
As he approached, he was advised that more time was needed to prepare the rigging. He was requested to hold off for a short time. Although he commenced to move back towards the loading area, he was again then told that it was not ready. He commenced to hover a short distance to the west of the loading area.
As the helicopter started to climb, he heard a loud mechanical noise. He formed an intention to immediately land on the drill pad. However, there was a sharp yaw, and he felt the aircraft drop. Everything went quiet and the “engine out” audible alarm went off.
His training took over. He broadcasted a “mayday” call and attempted to jettison the long-line. He chose to land in the riverbed. He tried to avoid the tree lines and did his best to avoid a hard landing. He lost control with the helicopter ultimately colliding with the trees and the riverbed.
The helicopter caught fire. Although ground persons in the loading area attended quickly and extinguished the fire, the helicopter was severely damaged. This must have been a traumatic event for the plaintiff.
The plaintiff sustained significant physical injuries. He maintains that he continues to suffer from disabilities which impact upon his ability to work and his ordinary life, and indeed, his ability to care for himself.
Despite sustaining injuries which could have been potentially severe, by the end of June 2018, he was back flying (he says, on a limited basis). He has continued to fly and operate his business since that time, albeit he emphasises that he has laboured under significant post-crash (2018) restrictions.
In August 2018, he went to South Africa for the purposes of purchasing a new helicopter. By that time his insurance claim in respect of the loss and damage to the helicopter had been settled or was in the process of being settled.
In 2019, he was involved in a further incident when a load he was carrying fell to the ground injuring someone. This also caused him considerable stress but again he continued to fly.
Since obtaining his new helicopter, he has continued to operate his business, albeit he says on a restricted basis. He has also flown fixed-wing planes.
He lives in Humpty Doo in Northern Territory, but his work takes him away or did take him away from home for some months of the year. At least as far as I can determine, he may be away from his home sometimes for eight months of the year (at least before the accident). This is because he has a contract with the RFS and is on call to be fighting fires and doing other work for the lead up to the summer season and throughout the summer.
He maintains that he suffers from anxiety and post-traumatic stress disorder (“PTSD”) and that he has been unable to fly over similar terrain where the 2018 crash happened. He says that he has ongoing back pain referable to the accident. He says his capacity to earn has been limited both by his physical and psychological injuries.
The helicopter was a 1965 Bell Garlick UH-1H helicopter registration VH-HUE. For those familiar with the military and the war in Vietnam, it was known as a “Huey”, a helicopter widely used in Vietnam. It was manufactured in 1965 by Bell Helicopters for the US military. It is a rotary wing type helicopter with a turbine engine.
It was first registered in Australia on 5 December 2002. A special certificate of airworthiness was issued on 7 July 2008.
At the time of the crash, it had a Class B restricted certificate. The logbook statement specifies the maintenance schedule. The inspection, maintenance and repair requirements were thus governed by the manuals for helicopters of this type originally used for military operations.
Preventative maintenance inspections of the helicopter are required each day that the helicopter is to be flown (daily inspections) prior to flight. The requirements of such inspections are set out in the relevant manual. Unlike other aircraft, a daily inspection may be carried out by the pilot or a LAME.
A pre-flight inspection must also be carried out by the pilot prior to any flight. This is also referred to in the relevant manual.
The helicopter was purchased by the company in early 2011 and was used by the plaintiffs as an income earning chattel between that time and the crash on 17 April 2018. As a result of the crash, the helicopter was damaged beyond repair. Parts of the rotor were salvaged and kept by the defendant in a hangar for a period.
Between 2006 and the crash, the engine had undergone four significant maintenance events. Firstly, on 10 March 2014 at approximately 6194.6 hours, the engine was inspected and repaired by Nebraska Turbines and installed into the helicopter. A hidden damage inspection was performed in which multiple components were replaced including the number 2 main bearing.
Then on 9 November 2014 at 6194.6 hours, Sea Breeze Aviation installed the engine into the helicopter following the repair by Nebraska Turbines. A number of significant maintenance items were undertaken during that time.
The defendant did not become responsible for the maintenance and repair until 2016.
In June 2016, a FOD repair was performed by Eagle Copters at the request of the defendant. The repaired engine was reinstalled into the helicopter in November 2016 by the defendant. Although Eagle Copters did not perform a vibration check at that time, the defendant maintains that it did, albeit the vibration results were permanently lost.
The fourth significant maintenance/repair event was the FOD repairs carried out by the defendant in March 2018. The defendant is said to have been negligent in the performance of its work at this time.
(i) the manufacturer’s maintenance schedule; or (ii) the aircraft’s approved system of maintenance,
before the start of flying operations on each day that the aircraft is to be flown.
The significance of this definition in respect of this helicopter is that the Regulations required that the daily inspection is carried out under the manufacturer’s maintenance schedule.
Regulation 30 deals with certificates of approval. In this case, a certificate of approval was issued to the defendant which covers the maintenance of the aircraft, the maintenance of aircraft components and maintenance of aircraft materials. All of those activities must be carried out under the control of a person appointed by the applicant to control the activities. The defendant accepts that person is the principal of the defendant, Mr Loxton.
Further, it is because of this that the defendant accepts that it is liable for the conduct of Mr Harris. It would have been an offence for Mr Harris to carry out maintenance activities unless under the direction of Mr Loxton.
As set out in reg 30(3A), a person must not contravene a condition to which a certificate of approval is subject. There is a penalty of 25 units in respect of that contravention. As set out in reg 30(3B), an offence against subreg (3A) is an offence of strict liability.
This point was made by Mr Brennan in submissions. He says that a failure to carry out maintenance in accordance with the Regulations may be a criminal offence. The offence is not dependent upon establishing any failure to take care, but it is an offence of strict liability. In the circumstances, the defendant asserts that regard must be had to the consequences of such a finding.
Subdivision 2 of reg 41 deals with class B aircrafts. Regulation 41(1) specifies that the holder of the certificate of registration for a class B aircraft must ensure that all maintenance required to be carried out on the aircraft by the aircraft’s maintenance schedule is carried out when required by that schedule.
There is no dispute that the company was a holder of the certificate of registration and thus the plaintiff was obliged to ensure that the aircraft maintenance schedule was carried out when required by the schedule. The aircraft maintenance schedule for the purposes of this matter is the manufacturer’s maintenance schedule (see reg 42A).
As set out in reg 42A(4), if a person has elected to use a manufacturer’s maintenance schedule for an aircraft’s maintenance, all instructions issued by the manufacturers, being instructions for the continued airworthiness of the components, are to be taken to form part of the manufacturer’s maintenance schedule.
Regulation 42ZE deals with the requirements for the certificate of completion of maintenance. A person who carries out maintenance on an Australian aircraft must ensure that completion of the maintenance is certified in accordance with the approved system of certification of completion of maintenance.
“The experts agree a loss of structural integrity of the exhaust diffuser assembly resulted in the power turbine shaft rubbing against the compressor impeller hub and compressor shaft and caused the engine to fail. The loss of structural integrity of the exhaust diffuser assembly was due to fatigue.”
The plaintiffs prepared a number of evidentiary statements as follows:
In the first proceedings:
(a) Evidentiary statement of the plaintiff dated 4 August 2023; (b) Supplementary statement of the plaintiff dated 3 February 2025; (c) Statement of Hannah O’Driscoll dated 17 July 2024; (d) Statement of Nathan Covey dated 6 February 2025; (e) Statement of Reuben Newell dated 24 January 2025; and (f) Report by Reuben Newell dated 20 June 2025.
(a) Evidentiary statement of the plaintiff dated 4 November 2023; (b) Supplementary statement of the plaintiff dated 21 February 2025; (c) Further supplementary statement of the plaintiff dated 3 July 2025; (d) Statement of Steve Moses dated 20 October 2023; (e) Statement of Stacey-Lee Cullen dated 9 April 2025; (f) Statement of Mark Leadbeatter dated 3 July 2025; and (g) Further statement of Mark Leadbeatter dated 17 July 2025.
The plaintiff gave further short evidence in chief on damages issues. He was cross-examined extensively but most of the cross-examination related to damages issues. He was asked questions about some inaccuracies in his record keeping including as to flight times and maintenance. He was also cross-examined about his own inspections of the helicopter, in particular, what type of inspection he carried out immediately before the flight.
He admitted that he had failed to accurately record the total number of hours flown in a particular period although he said that he had subsequently corrected the records. No submission was made by the defendant that there had been a deliberate underreporting by the plaintiff and, other than as relating to the days before the crash, his earlier misrecordings of flight times have no causal significance.
He was cross-examined about the system of inspections, his relationship with the defendant and the work done by the defendant.
He said that whenever he was called to a fire by the RFS, he would determine whether he would be needed on one day or over a number of days. If he thought that he would be needed more than one day, he would immediately notify Mr Loxton of the defendant as to his whereabouts so that either Mr Loxton or another LAME could attend for the purposes of the LAME undertaking the daily inspection and field maintenance. He said that when he arrived at work for the purposes of firefighting, he would meet Mr Loxton or another LAME. They would describe what they had done showing him around the helicopter and generally discussing the condition of the helicopter.
Whilst he was being shown around the helicopter by the LAME, he would carry out his own pilot’s inspection in accordance with the manual. He would check fluid levels and look for any visible issues such as evidence of leaking fluid, discolouration, cracking, buckling, loose fastenings and anything that might have changed since his last inspection. He would use a stepladder which is stored in the cabin of the helicopter to climb up and look into the tailpipe where he could see the exterior components of the exhaust diffuser and its cover plate. When he carried out the pilot’s inspection at or before dawn, he would use a torch to assist his visual inspection. He says that he always conducted pilot’s inspections.
He believed that the LAME always conducted a more intensive and thorough engineer’s daily inspection. He believed this because he was aware that the LAME had been working on the helicopter overnight and that the maintenance documents required such inspection by the LAME. He says that his pilot’s inspections were limited to checking the outward facing and all exterior areas of the airframe and engine. He did not use a borescope or mirror to inspect areas if not observable by an external visual examination. He believed that Mr Loxton or another LAME would do so.
Mr Newell prepared a statement dated 24 January 2025. Although he has been engaged by the company to undertake LAME work on the company’s new helicopter since 2020, the plaintiff relied on him as an independent expert.
The defendant objected to his evidence on expertise, although not independence. After an examination on expertise, Mr Brennan agreed that I should admit his evidence.
There was some cross-examination as to the circumstances in which he prepared his report, the extent to which he might have had conversations with other experts or persons who were instructing him about the content of his report, but nothing emerged which would tend to suggest that there was something inappropriate about the way in which he came to his views.
Mr Newell has been a LAME for many years. He has provided servicing and maintenance to aircraft, including helicopters over that period. He professed to hold considerable experience in detection of faults and problems with such aircrafts. He maintained that he was aware of the guidelines, manuals and requirements in respect of maintenance and servicing of the helicopter.
He attended the offices of the solicitor for the second plaintiff and inspected the exhaust diffuser.
He said that when tasked with undertaking daily inspections, it would normally take him about two hours to do so even on class B helicopters. He said that in his view, the cracking to the outer strut in the exhaust diffuser was fatigue cracking.
He said that it was his practice and indeed proper practice that a LAME inspecting the exhaust diffuser should use a torch and a mirror (while standing on the ladder) to ensure that the LAME had a proper view of all of the areas of the exhaust diffuser.
He did not accept that the effect of the manual and guidelines (as put to him and shown to him by Mr Brennan) was that there was no requirement for a LAME to use a torch and mirror other than when undertaking a periodic phase inspection.
Mr Brennan sought to establish a distinction between the requirement for a visual inspection and the requirement for inspection using a torch and mirror. Mr Newell did not accept that there was a strict distinction, maintaining that proper practice would be to always use a torch and mirror when inspecting the exhaust diffuser, whether that is a part of a daily routine or as part of a periodic inspection.
The plaintiffs rely on Mr Newell’s evidence in support of the propositions that:
the cracking to the outer strut of the exhauster diffuser was fatigue cracking rather than impact damage;
a LAME properly performing his duties would use a mirror and a torch to inspect the area of the exhaust diffuser as without the use of such additional equipment a visual inspection may not suffice;
Mr Loxton was the principal of the defendant. He was a qualified LAME. He has many years of experience in the aviation maintenance industry.
Mr Loxton acknowledged that following discussions with the plaintiff, he agreed to undertake the servicing and maintenance of the helicopter but only on the basis that it all be done by his company. He would be concerned that, if the plaintiffs were engaging other companies at different times, he would have no control or understanding of what servicing and maintenance was being undertaken. He considered it important that his company undertook all the work on the helicopter. This is what occurred.
However, he also emphasised that this was a class B helicopter and that the rules and regulations in respect of class B helicopters were different to other aircraft. For example, it was not necessary that the daily inspection be conducted by a LAME. He disagreed that a pilot’s inspection was done to a lesser standard.
Mr Loxton referred to the various documents in his statement and was taken to some of them in cross-examination. Again, there is no real dispute as to servicing and maintenance carried out by the defendant at least up to around the time of the crash.
Mr Loxton agreed that the written document provided by the plaintiffs (that is, the written maintenance agreement) was signed on behalf of the defendant and that the defendant was providing maintenance on that basis.
Again, by the end of the case, there was no real dispute as to the terms of the agreement between the defendant and the company.
In verified answers to interrogatories, the defendant stated that Mr Loxton would have inspected the exhaust diffuser on six occasions in 2017 and on a number of occasions in 2018 up to 1 April 2018. It was not suggested to Mr Loxton either that there was cracking in the outer struts of the exhaust diffuser on any of those occasions or that he should have seen such cracking.
It became apparent after Mr Loxton’s evidence that the plaintiffs were no longer pursuing a case that the cracking in the outer area of the exhaust diffuser was present before April 2018. Mr Loxton did not examine or inspect the helicopter after 1 April 2018.
Mr Loxton’s evidence was important on the vibration issue.
Mr Loxton agreed that, on inspection of the helicopter in 2016, FOD was discovered. Indeed, the damage was so significant that his company was unable to repair it. The engine was removed and sent to Eagle Copters in Coffs Harbour for repair, and then the United States. It was repaired and returned.
The significance of this is only that there was a period in 2016 when the helicopter was out of service for repairs. Prior to returning to service, it was certified by the defendant.
Mr Richards’ evidence related mainly to the vibration issue. His evidence, including cross-examination, proved to be uncontroversial as the plaintiff did not press the pleaded assertion that the defendant failed to undertake a vibration test after undertaking the FOD repairs in 2016 and the defendant accepted that it did not undertake a vibration test on completion of its FOD repairs on 1 April 2018.
Mr Richards detailed the repairs undertaken in 2016 and the process of undertaking an engine vibration check. He said he did so on 12 November 2016 albeit the defendant did not have its own vibration testing equipment. It was provided to the defendant by Eagle Copters. He referred to a series of text messages which make specific reference to obtaining the vibration testing equipment from Eagle Copters.
The defendant tendered a statement from Mr Harris. The plaintiffs did not require him for cross-examination. This developed into an issue of substance, having regard to the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunn”).
In its answers to interrogatories, the defendant admitted that Mr Harris carried out inspections of the exhaust diffuser on each of 24 November 2017, 25 November 2017, 16 April 2018 and 17 April 2018. It also admitted that it provided Mr Harris with a mirror and torch for the purposes of his daily inspections. The defendant also admitted in the answers to interrogatories that “[t]he available records indicate that Ben Harris carried out a daily inspection.”
At least on the opening of the case there was some uncertainty as to whether the defendant accepted that was an admission that Mr Harris carried out the daily inspection on 17 April. However, during closing submissions, Mr Brennan accepted that it was open to me to find that Mr Harris had conducted a daily inspection prior to the flight.
Mr Harris’ witness statement was short. After setting out his experience, he said that he started working as a contractor aircraft maintenance engineer in 2017, having been qualified as a LAME in 2015. He last contracted to the defendant in November 2018 albeit he has continued to work as a LAME since then.
He acknowledged that he had carried out maintenance on the helicopter in August 2017 and up to 17 April 2018 from time to time.
He said in his statement:
“… I conducted daily inspections of the Aircraft when assigned to these operations. On occasions, I signed the maintenance release to confirm that a daily inspection had been carried out.
When conducting a daily inspection of the Aircraft, I examined the area of the engine exhaust, including the exhaust diffuser. At no time did I observe any visible cracks in the area of the exhaust diffuser.”
The parties relied on extensive and complex expert evidence including the following reports and joint reports:
Report by Mr Alec Moffat dated 13 November 2023;
Rebuttal report by Mr Alec Moffat dates 16 February 2025;
Statement of Mr Alec Moffat dated 23 April 2025;
Report by Dr Amir Farzenah dated 19 June 2025;
Report by Dr Arjen Romeyn dated 12 September 2024;
Report by Dr Arjen Romeyn dated 13 July 2025;
Report by Mr David Marais dated 18 July 2025;
Report by Mr David Marais dated 24 September 2024;
Joint report of Mr Alec Moffat and Mr David Marais dated 22 July 2025; and
Joint report of Mr Alec Moffat, Dr Arjen Romeyn and Dr Amir Farzaneh dated 24 July 2025.
Mr Moffat (retained by the plaintiff) and Mr Marais (retained by the defendant) gave evidence concurrently over the course of a day. The next day they were joined in the witness box by Dr Farzaneh on behalf of the plaintiffs and Dr Romeyn on behalf of the defendant.
The experts had a broad range of expertise. The expertise of Dr Farzaneh, significant as it was, was limited to materials examination and metallurgy, that is, the nature, extent of and timing of the cracking in the exhaust diffuser.
Dr Romeyn had a similar level of expertise on that topic. Mr Moffat and Mr Marais’ main expertise was in aircraft investigations, causes of a crash and the operation of the engine, although they both professed to have significant expertise to offer opinions on the cause, origin and extent of the cracking in the exhaust diffuser.
Having regard to the way in which the case was run and the narrowing of the issues by the parties and indeed some agreement by the experts, it is not necessary that I comment on all of the original reports. I will focus on the issues.
I will deal with the vibration issue firstly.
There are two aspects to it.
Firstly, it is asserted that during the period 2 February 2017 to 1 March 2018 it was necessary to carry out repairs to the tachometer on four occasions. The plaintiff’s expert, Mr Moffat, opined that, having regard to the nature of the repairs and the repeated failures of the tachometer, it should have been apparent to the defendant that these repeated failures were likely caused by abnormal vibration. This is particularly so as the tachometer generator is a delicate instrument that is easily damaged (as was conceded by Mr Loxton).
Secondly, the plaintiffs assert that following the 2018 FOD repairs the defendant should have done a vibration test on the engine and that, if such a test had been performed, it would have revealed the presence of abnormal levels of engine vibration, leading to repair and prevention of the failure which caused the crash.
As a result of the FOD damage to the compressor detected in March 2018, repairs were affected to the compressor rotor blades. The plaintiffs maintain that, because, on their case, more than 20 percent of the total blades were repaired, a vibration test was mandated by the manual.
They call to their aid the note in section 4 of the manual as follows:
“On engines that have had greater than 20 percent of the total number of blades blend repaired to the maximum limits, perform vibration check as outlined in paragraph 1-93. Engines that do not pass vibration test requirement shall be shipped to Depot for repair.”
The defendant did not undertake a vibration check. It is agreed that, if more than 20 percent of the first stage compressor blades were blend repaired to the maximum limits on 1 April 2018, then a vibration check was required.
The plaintiff’s case on the vibration issue is based on the expert opinion of its aircraft investigation expert, Mr Moffat. The defendant relies on the opinion of one of its experts, Mr Marais, as well as the views of Mr Loxton.
Mr Moffat is an expert from Canada. He operates a business known as RJ Waldron & Co. which specialises in aviation, forensic and failure analysis.
There was an initial challenge to his expertise on the basis that he was really an avionics expert and had insufficient expertise to comment on deficiencies in the engine.
He gave evidence on a voir dire. Whilst his study on metallurgy and matters relating to the operation of the engine may be limited, he has extensive experience investigating the cause of aircraft crashes often working with a team. Indeed, he has investigated 750 incidents, half of which involved some metallurgical aspect.
It is not necessary that I comment further on his expertise as, after cross-examination, Mr Brennan accepted that his evidence should be admitted (subject to specific objections) and that he had relevant expertise because of his education, training and experience.
I will deal with the tachometer issue firstly.
The plaintiff’s case is based on the evidence of Mr Moffat and the successful cross-examination of Mr Marais to the effect that tachometer generators are susceptible to abnormal vibration and could be damaged in that way. Mr Marais accepted that it was possible that the repeated failures could be the result of abnormal vibration. This might have been detected through a vibration test.
Against that, the defendant relies on the evidence of Mr Loxton, being the person who actually carried out the repairs or was in charge of the repairs.
Mr Loxton said that when he was repairing the tachometer on the last occasion before the crash he “found that the N2 Tacho spline drive on the overspeed governor and the Tacho drive assembly were worn beyond limits”.
There were no further failures of the tachometer between 1 March 2018 and 17 April 2018 which led him to conclude that he had fixed the problem, such that the problem was not one of abnormal vibration.
Whilst expert opinion is to a certain extent always the result of conclusions based on inferences and provable facts, in my view there is a degree of speculation in Mr Moffat reconstructing what may have been happening.
He may be right but his evidence must be considered against the evidence of the person who actually did the work, Mr Loxton, who is himself an expert in the field. Leaving aside the vibration issue, it was not suggested by the plaintiffs that Mr Loxton had failed in any other aspect of his work or that he was not generally competent when performing his work.
For the plaintiffs to succeed on this aspect of the case, I would have to reject Mr Loxton’s explanation as to what he found and what he did. I see no reason to do so. The reasoning of Mr Moffat is sufficient to establish that the failures of the tachometer might have been caused by abnormal vibration but is not sufficient to establish that they were, having regard to the requirement for the plaintiff to prove on the balance of probabilities and the clear and direct evidence of Mr Loxton on the topic.
I thus do not accept that the defendant ought to have carried out a vibration test after effecting repairs to the tachometer.
The plaintiffs submit that:
having regard to the nature of the repairs effected to the rotor blades in March 2018, it was a requirement of the manual that the defendant carry out a vibration test after effecting those repairs; and
even if, on a different reading of the manual, the precise requirements of the manual were satisfied, a prudent LAME would have carried out a vibration test.
This submission is supported by Mr Moffat. Mr Marais disagrees, as does Mr Loxton.
Mr Marais has extensive experience in aircraft maintenance and engineering including relating to helicopters of this type.
Mr Marais says that the nature and extent of the repairs to the rotor blades were not such that a vibration test was required. Mr Marais rejects the idea that it would have been prudent to carry out a vibration test in any event, stating that it was either required by the manual or it was not. He rejects the idea that prudence required doing more than was required by the manual.
The defendant submits that, on the proper reading of parts 2-3 of the manual (dealing with compressor rotor blades), each of the areas of the blade are treated differently and have different allowable limits.
The plaintiffs maintain that the area described as the “blade airfoil area” on the blade comprises all of the surface of the blade and must include the tips and leading and trailing edges. As such, the maximum allowable repair length set out in item 17 applies to all of the surface of the blade. It follows that any repairs to tips or leading edges are limited by the maximum allowable repair length, not just the maximum allowable repair depths.
Mr Moffat and Mr Marais prepared thorough and comprehensive reports. It is not necessary that I refer to them in detail because they prepared a joint report with the result their views were crystallised and summarised. Further, they were subject to extensive questioning during their concurrent evidence.
It became apparent during their oral evidence that Mr Moffat and Mr Marais adopted different approaches to the manual and specifically to those parts dealing with requirements and limits of repair of the rotor blades.
The three issues for consideration are:
What was the nature and extent of the repairs to the rotor blades?
Was a vibration test required having regard to the terms of the manual?
If not, did the exercise of reasonable care on the part of the defendant suggest that a vibration test should have been carried out in the event?
There is an issue between the parties as to the nature and extent of the repairs to the rotor blades carried out in 2018. Following discovery of further FOD damage in March 2018, the blades of the rotor required repair. This was undertaken by the defendant, under the supervision of Mr Loxton.
“Finished repairs to blade airfoil surfaces shall be limited as follows in actions for items 14 thru 18”.
Items 14 to 18 then refer to the airfoil. Item 17 refers to the blade airfoil area and specifies a maximum allowable repair length of 13/32 inches (10.3 mm).
As emerged during cross-examination, the difficulty with Mr Moffat’s approach is that, on his construction, it would never be possible to comply with the manual when undertaking repairs to the tip or leading edge. This was demonstrated by his own photograph of the repairs to a leading edge of a blade which, as specified in the manual, required smoothing out.
This necessarily involved creating a small curve to deepen the blade (viewed microscopically). The repair may have complied with the depth requirement but could not comply with the length requirement because the whole of that part of the leading edge was necessarily removed by smoothing it out. 75 percent of the depth was thus not retained.
Mr Moffat agreed it would not be possible to comply with the manual if blended repairs were necessary to the leading edge or tip of a blade. This tends to suggest that his approach to the manual could not be correct.
Further, in my view it is clear from the way the manual is set out that each part of the blade is specified as a separate item with separate allowable limits. The item described as “blade airfoil area” means the surface of the blade but it does not include the tips or leading edges as they are dealt with specifically and separately in the manual.
The cross-examination of Mr Moffat on this issue exposed the inconsistency in his approach to the manual.
Mr Loxton did not construe the relevant part of the manual as requiring him to undertake a vibration test following the 2018 FOD repairs. This was not due to inadvertence on his part or the overlooking of some critical requirement. His approach to his obligations was consistent with the views of Mr Marais and coincides with my construction of the relevant part of the manual for the reasons I have set out. Mr Loxton was a very experienced expert in his field. That does not mean that he was necessarily right but, in my view, his approach to what was required in all the circumstances was well open to him and the fact that another expert coming along years later might take a different view does not of itself mean that Mr Loxton failed to comply with the requirements of the manual or, more relevantly, failed to exercise reasonable care in the performance of his work.
It follows that the plaintiffs have not established that the defendant failed to comply with the repair obligations set out in the manual.
The remaining issue is whether, if the repairs to the rotor blades did not exceed 20 percent of the maximum limits but approached the 20 percent threshold, would it have been prudent in the exercise of reasonable care for the defendant to carry out a vibration test in any event?
“If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. That is not to say that a defendant will always escape liability by proving that his or her conduct was in accord with common practice. From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant’s position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff. But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required.”
See also Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752 per Sackville AJA at [88].
Caution should be exercised before finding a defendant negligent in circumstances in which a party complied with the manual governing its work.
The statutory regime governing the ongoing repair and maintenance of the helicopter makes it clear that an appropriately authorised repairer such as the defendant was required to comply with the manufacturer’s manual in carrying out its work. On my findings, at least on this issue, he did so.
I do not accept that the defendant was in breach of any obligation in failing to do more, that is, in failing to carry out a vibration test when the manual which governed its work did not require it to do so.
Having regard to my findings, it is not necessary that I deal with causation in any detail. It is only necessary to say that the plaintiffs bear the onus on causation. That requires the plaintiffs to show more than merely that a vibration test might have showed levels of abnormal vibration. What the result of any vibration test might have been remains uncertain. The plaintiff said that he never noticed any abnormal vibration when flying the helicopter.
The plaintiffs would have failed on causation on this issue in any event.
The cracking issue involves three sub-issues being:
the rule in Browne v Dunn;
whether the cracking in the exhaust diffuser was present and visible prior to the flight; and
whether the defendant (or the plaintiff) should have detected the presence of the cracking prior to the flight.
Despite their pleaded case, the plaintiffs did not put to Mr Loxton that there was cracking in the exhaust diffuser at any time when he might have examined the exhaust diffuser. In particular, despite the allegation in the Statements of Claim that the cracking was present for an extensive period prior to the crash, the plaintiffs did not suggest to Mr Loxton that he should have detected the cracking during the 2018 FOD repairs.
When this was raised with the plaintiffs, they said that they were no longer pursuing a case that the cracking was present at the time of the 2018 FOD repairs.
Thereafter, the defendant tendered the statement of Mr Harris without objection from the plaintiffs. I was informed that the plaintiffs did not require him for cross-examination.
The consequences of that became a significant issue in the case.
The defendant submits that the plaintiffs are now precluded from asserting that Mr Harris failed to conduct a proper inspection and identify the cracking at any time when his inspections took place. The defendant says that I am bound to accept Mr Harris’ evidence that he inspected the exhaust diffuser when conducting a daily inspection and never saw any visible cracking in the area of the exhaust diffuser.
The defendant says that, as that evidence was not challenged, I must accept it. The defendant also submits that, even if the failure to cross-examine Mr Harris on this issue is not a strict breach of the rule in Browne v D**unn, the decision not to cross-examine him would be material to the weight to be given to the evidence or whether any inference should be drawn (L**ocke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166 (“Locke”) at [47] per McHugh JA).
That is, the defendant submits that, if there is any doubt as to whether the cracking was present at the time of inspection by Mr Harris immediately before the flight, then the plaintiff’s failure to challenge Mr Harris should lead to a conclusion in his favour.
The plaintiffs say that the circumstances in which a party is required to cross-examine the opposing side’s witness are:
to contradict the witnesses’ evidence (Locke at [38]); or
to criticise or impugn that witnesses’ credit or conduct (L**ocke at [56]).
The plaintiffs submit that nothing in Mr Harris’ statement needed contradiction and further that the rule is not engaged because they have not sought to criticise his credit or credibility.
“… it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
A party is required to give notice to the other party, and any of that person’s witnesses, of any imputation that the party intends to make against any witness or party about his or her conduct relevant to the case, or a party’s or a witness’ credit (MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [38]).
The rule in Browne v Dunn is a rule which applies to the parties in the way that they conduct the litigation and may also impact on the findings that might be made by a trial judge (Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11 at [71]-[74], per Heydon, Crennan and Bell JJ).
The rule in Browne v Dunn is directed to ensuring procedural fairness in litigation (Scott v Scott [2022] NSWCA 182 (“Scott”) at [64]). Ultimately, where Browne v Dunn is relied upon, the question is whether, having regard to the conduct of the case as a whole, the relevant party has been put on notice that the adverse inference may be drawn (Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16; Scott at [65]-[67]).
The rule in Browne v Dunn is a rule of procedural fairness in that a party is required to ensure that the other party understands the case that is been put against it and has been given a fair opportunity to respond to it. It is not a rule which requires the slavish recitation of series of propositions to a witness about which there would be no dispute.
Having regard to the content of Mr Harris’ statement, his response to any suggestion that the cracking was present on 17 April, but he missed it, would be predictable. He might agree, which would hardly assist the defendant, or he might reject the proposition which seems more likely.
The defendant has not been given an opportunity to respond to the central allegation against it through Mr Harris. I have not been able to assess Mr Harris as a witness.
In my view, the consequence of the plaintiff’s failure to raise the issue with Mr Harris is that I can more readily accept his evidence being that he never saw cracking in the exhaust diffuser when he inspected the diffuser.
However, it does not follow that I am precluded from making a finding that such cracking was present prior to the flight. His unchallenged evidence just makes it more unlikely that the cracking was there. If, on a proper consideration of the expert evidence, I conclude that the cracking was present, despite Mr Harris’ evidence, the only inference would be that Mr Harris failed to see it. As the defendant’s position is that, if it was there, it could have and should have been seen, then it does not matter why Mr Harris failed to see it. Its presence leads to the conclusion that he failed to see something he should have seen.
As the evidence emerged having regard to the changes in the parties’ cases during the hearing, this must be the key issue as the defendant accepts that the person carrying out the daily inspection was required to inspect the exhaust diffuser and that, if the visible cracking present after the crash was there before the flight, it should have been seen.
Indeed, Mr Brennan submitted during closing submissions:
“HIS HONOUR: Well, the effect of what you’re saying is, that your defence is built on the proposition that the crack wasn’t there. You’re not running a case 30 that if it was there, you couldn’t see it. You’re really accepting, aren’t you, that whatever was there we should have seen it.
BRENNAN: Correct.
HIS HONOUR: Mr Harris inspected it, he should have seen it.
BRENNAN: Yes. We accept that if your Honour finds that it was present at a time when anyone from my client conducted an inspection, then your Honour would find, as night follows day, that we breached our duty.”
It could hardly take a different approach as the relevant part of the exhaust diffuser was present as an exhibit in Court and the cracking could be seen by looking closely into the exhaust diffuser. It was pointed out to me and counsel by the experts. Further, the relevant part of the manual which deals with the daily inspections makes it clear that there was a requirement to inspect the exhaust diffuser and its componentry for cracking (see sequence 3.9 of the preventative maintenance schedule). This is of some significance.
The plaintiffs rely on the evidence of both Mr Moffat and Dr Farzaneh. The defendant relies on the opinions of Mr Marais and Dr Romeyn.
As it turned out much of the expert evidence became background and context evidence. The narrowing of the case to a period of two days before the crash rendered the maintenance history and the work done by the defendant during the months prior to the incident merely background. Suggestions of an extended period of failure to detect the cracking proved to be unfounded by the end of the oral evidence.
For example, Mr Moffat reviewed the maintenance records with specific reference to the period of January 2018 to the date of the accident. He says that a minimum 14 inspections and possibly 6 additional inspections of the exhaust area were conducted by a LAME between January 2018 and the date of the accident.
Mr Moffat originally considered that the cracking in the external area was likely present for at least the last few inspections made by the defendant and thus should have been detected. Even the plaintiffs moved away from that opinion by the end of the case, focusing on the last day or two before the crash.
It follows that there is no longer any suggestion or evidence to support any suggestion that the defendant failed to undertake its work properly in any way during all of those earlier inspections. The criticism of the defendant became limited to two very narrow time frames and events. That is, the work done on 1 April (that is, not undertaking a vibration test) and the inspections carried out by Mr Harris on 16 and 17 April 2018.
After the crash, cracking in both the internal and external struts of the exhaust diffuser was observed.
It is important to again emphasise that it is not suggested by any party that the cracking on any internal strut could have been observed by the defendant at any of its inspections. It was generally agreed that it would have been necessary to disassemble the engine to observe the cracking in internal strut 3. The cracking to the internal struts is relevant in assessing the cause of the crash as well as the development of the cracking in the outer struts.
The plaintiffs (or perhaps the plaintiff) assert that cracking in the inner cone, in the plate in the middle of the diffuser and in outer strut 1 would have been visible at some point prior to the flight when the helicopter crashed. Specifically, the plaintiffs assert the cracking beginning in the spot weld area of outer strut 1 extending to the mid-cone would have been visible on proper inspection by Mr Harris before the flight on 17 April.
The plaintiff pursues a cause of action in negligence and for breach of the consumer guarantee arising under s 60 of the ACL (Competition and Consumer Act 2010 (Cth), Sch 2). The company pursues identical causes of action except that the company also pursues a claim in contract alleging a breach of express and implied terms of the contract.
All of those causes of action have as an essential element an allegation that the defendant failed to exercise reasonable care. The allegation of a failure to exercise due care and skill under s 60 of the ACL is to be assessed in the same way as an allegation of a failure to exercise reasonable care having regard to s 5B of the CLA. Further, as set out in the company’s Further Amended Statement of Claim and as acknowledged in the company’s written closing submissions, the company’s claim for breaches of implied and express terms of the contract are based on an assertion of a failure to exercise reasonable care. In these circumstances, the causes of action under s 60 and in contract afford no better remedy to the plaintiffs than the claim in negligence.
Further, because the claim in contract arises out of a failure to take care, the CLA applies. Liability must be assessed in accordance with s 5B of the CLA. Contributory negligence is available even in respect of the claim in contract.
It is not necessary to say anything further about the causes of action as the outcome essentially depends upon my factual findings.
I have accepted that the outer cracking in the exhaust diffuser was present prior to the flight and therefore present at a time when Mr Harris last inspected the exhaust diffuser. As set out in the manual, in carrying out the daily inspection he was required to inspect the exhaust diffuser for the presence of cracking. To the extent that it was necessary to use a torch and mirror to properly inspect the exhaust diffuser for cracking, then they should have been used. Whether or not he did that on the day is not known but it does not matter.
The only inference available from the presence of the cracking and his failure to detect it is that he failed to carry out his inspection on that day with the required level of care and skill and, in particular, in accordance with the manual which required an inspection for such cracking. He was required to carry out his inspection with sufficient thoroughness to determine whether cracking was present. Its presence must indicate that he did not. This is not a general criticism of his work or the systems in place, but the plaintiffs need only prove a failure to take care at that particular time to succeed.
In any event, as I have already recorded, the defendant accepted in closing submissions that if the cracking was there and if Mr Harris carried out an inspection when it was there, he should have seen it.
Both plaintiffs are thus entitled to succeed against the defendant in tort and under s 60 of the ACL.
The defendant asserts that the plaintiffs are guilty of contributory negligence arising from the plaintiff’s own failure to detect the presence of the cracking during the inspection which he was required to carry out and says did carry out prior to the flight.
The defendant made much of the opportunities for the plaintiff to detect the cracking during all of his inspections of the plane in the days, weeks and months prior to the flight. However, that submission falls away in circumstances in which I have only accepted that the cracking was likely to be present at least during the day prior to the flight and in sufficient time for it to have been detected during Mr Harris’ last inspection.
Further, the plaintiffs emphasise that there is a difference between a pilot’s inspection and a daily inspection carried out by a LAME. That is so. The manual contains requirements for the daily inspection which includes inspecting the exhaust diffuser for cracking. The requirements for a pilot’s inspection do not make reference to inspecting the exhaust diffuser for cracking albeit the pilot’s inspection must still be thorough. Mr Moffatt tended to accept that the pilot’s inspection was different from the daily inspection.
The plaintiff said that he looked for different things when carrying out a pilot’s inspection. It may be that, had he only carried out a pilot’s inspection, then there would be good grounds to accept that even exercising reasonable care he might not have detected the presence of the cracking in the outer strut of the exhaust diffuser.
However, the problem for the plaintiff is that he signed the daily inspection form verifying that he had carried out the daily inspection on 17 April. Of course, it is possible that, perhaps consistent with a sloppy system, he signed the form even though he knew Mr Harris had carried out the inspection. Yet, he was taken to the form in cross-examination. He said quite directly that when he signed a form indicating that he carried out a daily inspection, he carried out the daily inspection. True it is that when the aircraft had been moved, he might have carried out only a pilot’s inspection, but it is difficult for the plaintiff to have it both ways.
He might be right in asserting that a LAME might be better qualified to detect the presence of a problem in the exhaust diffuser but by the plaintiff’s own admission (in cross-examination) he carried out the daily inspection on 17 April. The maintenance manual permitted him to do so. In carrying out this inspection he had the same obligations as the LAME carrying out the inspection. He was obliged to check the exhaust diffuser for cracking. It is not an answer for him to say that even if he carried out a daily inspection he was really carrying out a pilot’s inspection.
The plaintiff’s attempt to limit his role and distinguish between carrying out the pilot’s inspection and daily inspection rather fell apart when he admitted in cross-examination that he carried out a daily inspection on 17 April. It follows that both parties are bound by their admissions and their evidence.
The plaintiff presents as a remarkable man. He survived a helicopter crash in 2005 in Canada. Despite the catastrophic nature of his injuries, he sought and did resume his occupation of flying helicopters. However, he was only able to do this with the support of a benefactor and that help was only forthcoming due to some media attention on his plight.
He accepted in cross-examination that following the 2005 crash he sought to return to helicopter flying but had been unable to obtain any employment at all. In about 2010, he received some generous financial assistance which enabled him to purchase the helicopter which he was flying when he crashed in 2018.
Following purchase of that helicopter, he established his business. He continues to operate that business right up to this time. The operation of the business has been interrupted by a number of events over the years, including:
The need to replace the engine in 2014;
The destruction of the helicopter in the 2018 crash;
His said to be difficulties in returning to flying;
The time it took to purchase a replacement helicopter;
The significant period when the replacement helicopter could not fly because of extensive repairs;
The need to remain in the Northern Territory to care for his daughter for a period; and
Stress and investigation time arising from an incident in 2019 when he dropped a load causing injury to a person.
Yet, even on his own case, despite all these matters, he continued to fly and operate his business as of 2025 (at least until the last days of the case as I will discuss), albeit he maintains not to the same level and as much as he would like.
He says that as a result of the 2018 crash he developed a significant psychiatric illness in the nature of PTSD and anxiety and that it has interfered with his life in many respects since that time and will continue to do so on a long-term basis.
Yet, despite the plaintiff’s resilience and courage in dealing with the consequences of his first crash, there is some important evidence that calls into question the claims he makes in these proceedings including:
the contemporaneous medical records (limited as they are) tend not to support the continuation of any physical or psychological injuries for any lengthy period after the 2018 crash. Indeed they are quite inconsistent with his claims;
despite his suggestion that he has been unable to fly over certain terrain (as if to provide a basis for some reduction in earning capacity), he continues to hold a contract with the RFS, and his own records demonstrate that he has flown over the areas of rugged terrain on a regular basis. Indeed, he was back flying in the Snowy Mountains by June 2018. His explanation for what might be viewed as his overstatement is that he has a concern about the certain terrain;
Ms Bilato is a rehabilitation counsellor with some experience and qualifications in psychology who has been assessing, treating and counselling the plaintiff since approximately 2010 as paid for by the Canadian insurer. That is, she has been appointed by the insurer responsible for paying for the treatment and rehabilitation of the plaintiff consequent on the 2005 helicopter crash.
She has provided regular reports to the Canadian insurer, both before and after the 2018 crash (since 2010 and continuing).
According to the plaintiff, he has relied heavily on her guidance and counselling in terms of his continuing recovery from the effects of the horrific accident in 2005. It is plainly a credit to her that she has been able to provide such support and guidance for such a long time. Her reports demonstrate an ongoing concern for his welfare.
She prepared a report for the purposes of these proceedings, dated 1 April 2025 and a further report was later admitted dated 7 July 2023. These are reports in which she expresses opinions as to the nature of his psychological condition and his prognosis. Aspects of the reports are plainly beyond her expertise and the defendant objected.
As emerged during her oral evidence, her opinions, diagnosis and prognosis are very much informed by the reports of the psychologist who had assessed the plaintiff from time to time on behalf of the Canadian insurer (Ms Chrystalla Yiannitsaros).
Indeed, in her oral evidence, she identified the report prepared by that psychologist as being the basis for the opinions expressed in her report used in these proceedings.
Ms Bilato accepted in oral evidence (being a challenge to her expertise to offer psychological diagnosis) that her diagnosis and prognosis were essentially based on what she understood the psychologist, who had examined the plaintiff for the purposes of his continuing support from the Canadian insurer, had said, such that, as she explained, she was not really offering her own opinion on these matters but giving her opinion as to the general effects of the 2018 crash on the plaintiff.
Although Ms Bilato impressed as a caring and genuine person, there remain a number of problems with her evidence to the extent the plaintiff seeks to rely on it as supporting his claims.
Those problems include:
It is clear from any review of her contemporaneous reports, that is, reports produced not for these proceedings but for other purposes subsequent to the 2018 crash, that she considered that the plaintiff’s mental health had remained stable after the 2018 crash. She said so in reports, not prepared for these proceedings. This is inconsistent with the claim he makes in these proceedings.
Her reliance on the views of another psychologist (Ms Yiannitsaros) for the purposes of offering an opinion is misplaced because the other psychologist did not suggest that the conditions of anxiety and PTSD are referrable to the 2018 crash. Indeed, included in the tender bundle are a number of documents, reports and records relevant to the ongoing support of the Canadian fund to the plaintiff, some of which postdate the 2018 crash. No reference was made to these documents by the plaintiff in submissions, albeit the parties were obviously aware of them as they were tendered.
An independent medical examination was carried out by Ms Yiannitsaros in February 2021 for the purposes of the plaintiff’s continuing claim under the Canadian fund.
She reviewed the up to date material including the reports of Dr Townson of 8 June 2020 and 26 October 2020, the summary of Ms Bilato dated 26 July 2020, and the reports of psychologists, Dr Sasha Davis and Dr Renee-Louise Franche dated 25 August 2020.
She took an extensive history from the plaintiff. The history recorded (as obtained from the plaintiff) is inconsistent with the evidence he has given in these proceedings.
The plaintiff reported that as of February 2021 he was not working, in part due to mechanical issues with his helicopter but also because he had sole custody of his daughter and was unable to be away from her for long periods of time. He hoped that working may be easier in 2022 as he had some plans about his daughter attending boarding school. He said that would afford him some flexibility to be able to work away for long periods.
He said that he felt anxiety when continuing to fly. He said that he has been involved in two further helicopter incidents, one being the 2018 crash. He said that that incident is currently before the Court and was a great source of stress for him (that is, the court case was causing him stress).
The second incident occurred in 2019 involving the dropping of the load. He continued experiencing significant feelings of guilt about what occurred.
The report is extensive. Reference was made to social support. The plaintiff reported generally close and supportive connections with family and friends. He was able to adapt to different interpersonal situations and tolerate close attachment. This does not sit well with his claim about difficulty with socialising consequent on the 2018 accident.
Importantly, he completed the Detailed Assessment of Post-traumatic Stress (“DAPS”) seemingly answering 104 items designed to determine PTSD. Ms Yiannitsaros felt that based on the DAPS profile, he was experiencing a clinically significant level of traumatic distress as was evidenced by his endorsement of all of the post-traumatic stress scales in the test.
Ms Yiannitsaros concluded her report by stating that:
“Of significant importance to Mr O’Driscoll’s clinical presentation is the level of disturbance present to his overall quality of life. The 2005 crash has significantly altered his entire life including but not limited to his appearance, work outlook and earning capacity, and his identity. His presentation involves multiple issues which are worthy of their own focus in treatment. These include his trauma reaction to the crash, his physical pain experience, as well as the associated grief with the experience of loss and subsequent adjustment across all domains of his life. Therefore, successful psychological treatment of Mr O’Driscoll will need to be broad, integrative, and encompassing all of the facets described above with particular attention paid to treatment sequencing.”
The relevance of all of this is that other than the plaintiff reporting the 2018 crash and that the court case was giving him stress, there was not one suggestion or mention in this lengthy and extensive report of the plaintiff suffering from any problems referable to the 2018 crash. There is no suggestion in the report that the PTSD was referable to the 2018 crash.
There are other records and reports to the same effect. For example, Mr David Moorcroft prepared a report on 20 September 2021 entitled ‘Psychology Assessment Report’. He referred to a number of other documents and assessments prepared in the period 2020-2021.
He interviewed the plaintiff. He took an extensive history. It is notable that the plaintiff informed Mr Moorcroft that he had been avoiding PTSD therapy (even though he recognised that he needed it) because of the fear of the potential emotional impact that may have on his work. The plaintiff ultimately suggested that engaging in therapy was not viable.
Mr Moorcroft concluded that the plaintiff presented with symptoms consistent with PTSD and would benefit from undertaking some trauma focused therapy. Again, that may be so, but the plaintiff made no mention to Mr Moorcroft of suffering from any effects from the 2018 crash.
It is one thing to accept that the plaintiff is a determined, resilient and remarkable man in many respects, but the fact remains that he must be taken to be saying different things to different persons depending on the context in which he is saying those things. Of course, this is most evident from the fact that for six years in a row he has attended a medical examination for the purpose of renewing his licence and filled in forms (which he is obviously capable of filling in and understanding) suggesting he is suffering from no mental health problems at all including any anxiety.
When asked in re-examination why he did not disclose the existence of his anxiety or PTSD when applying for his license he said that he had “fought it” meaning that he was continuing to fight the notion that he was suffering from PTSD and did not want to admit to having it.
However, he did not adopt that approach when completing the DAPS for Ms Yiannitsaros. Indeed, he answered the questions in such a way which led her to conclude based on his answers that he was suffering from PTSD. Again, this is evidence of a different approach taken to medical examinations depending on their context. He said he could not bring himself to disclose his symptoms when seeing one doctor but was content to do so on other occasions. There is an obvious inconsistency in his approach.
I am unable to reconcile his suggestion that he did not answer the CASA/license application questions accurately because he was fighting the idea that he had PTSD with his apparent willingness to identify all of the symptoms of PTSD when undertaking a review on behalf of the Canadian insurer.
I am faced with a stark conflict.
On the plaintiff’s case I should accept him as a person who has done his best to continue to function and operate, including running his own business despite the adversity of two helicopter crashes but is now faced with the reality of being unable to fly because of the effects of the 2018 accident.
Shortly before the conclusion of the hearing he reported to CASA that he did in fact suffer from psychological symptoms and thus could not fly (at least temporarily).
On the defendant’s case, the plaintiff has demonstrated by his own behaviour subsequent to the 2018 accident, as confirmed by his own contemporaneous records, that the 2018 crash has not had the impact on him of which he complains. The defendant has not run a case to the effect that the plaintiff is a malingerer or that he has not done his best to return to work. Rather, to the contrary, on the defendant’s case, the plaintiff has returned to work and exhibited little by way of disability referrable to the 2018 crash.
The defendant’s case gains some support from the plaintiff’s own financial records, which present as another remarkable feature of this case.
Included in the evidence are the financial statements of the company from 2011 to 2024, as well as the company tax returns and the plaintiff’s own tax returns (up to 2018) such as they are.
In 2011, the company disclosed gross income of $261,000. From 2013, there was then an increase in the gross income of the company almost each year such that by 2017 the gross income was $731,000. In 2018, it was $1,150,000. It might be thought that the business was going well.
In the financial year following the crash, that is 2019, the gross income reduced to $734,000 but the next year it increased again to $1,060,000, which would at least, on a comparative basis, be suggestive of regular work. This level of earing does not sit well with either the plaintiff’s assertion that he could not work or his claim of substantial loss.
In 2022, the income decreased dramatically ($204,000) but then again increased significantly to $914,000 in 2023.
These fluctuations do not tend to suggest that the plaintiff was suffering from restrictions in his ability to fly after the 2018 crash because of any psychological condition referable to 2018 crash.
Rather, the fluctuations (increases/decreases) happened to coincide with that which the plaintiff was telling persons such as Ms Bilato, Ms Yiannitsaras and Mr Moorcroft at various times.
For example, the decrease in gross income in the year following the crash with a still substantial gross income would be consistent with the plaintiff having no helicopter to fly for a number of months but then getting back to work. This would be consistent with what he told Ms Bilato, being that his mental health remains stable following the 2018 crash. Further, the increase to almost the highest level of gross income ever earned in 2020 would hardly be consistent with the plaintiff being unable to work.
It is often said that contemporaneous records can sometimes provide the best evidence of a particular state of affairs at any particular time. Yet, in this case the plaintiff says that I should largely disregard them in favour of acceptance of his evidence in these proceedings.
In the end, I am not prepared to do so. There is so much evidence contrary to the plaintiff’s claims in these proceedings that I am not prepared to merely accept what the plaintiff says in his claims in these proceedings as to the consequences of the 2018 crash.
Importantly, it is not merely that the contemporaneous records tend not to support his claims in these proceedings. In my view, the records are quite inconsistent with his claims. They provide direct evidence contradicting his statements in these proceedings.
At the risk of repeating things, this is a matter in which the plaintiff claims that he developed a significant psychological illness following the 2018 crash leading him to suffer a substantial economic loss but, contrary to those claims:
in each of the years since 2018, he told CASA he suffered from no psychological symptoms or condition;
his contemporaneous medical records such as GPs notes and other documents do not include references to the plaintiff complaining of any psychological symptoms;
he has been regularly seen and assessed by a counsellor, Ms Bilato, who he says has provided significant support to him. Her records are not consistent with the claims he makes in these proceedings and she admitted to preparing a report for these proceedings based on someone else’s opinion;
he has been assessed by health professionals for the purposes of his ongoing claim arising from the 2005 crash. Their records and reports which postdate the 2018 crash are directly contradictory to the claims he makes in these proceedings;
his financial records do not support his claim for loss or the assertion that he has been unable to perform his flying duties. For example, in 2020, the gross income of the company was nearly as high as it has ever been.
his own activities such as continuing to fly in areas of rough terrain rather detract from his own statements as to how the 2018 crash has impacted upon him.
In my view, and at best for the plaintiff, he may have developed some anxiety or aggravated a pre-existing anxiety state for a period after the crash. It no doubt took some determination and resolve to go back to flying but this is what he did. I do not accept that he developed PTSD consequent of the 2018 crash.
The plaintiff suffered from some physical injuries for which he is mostly recovered.
I assess non-economic loss at 27 percent of a most extreme case ($80,500).
**********
O'Driscoll
Encore Aviation Pty Ltd [2025] NSWSC 1536
(2010) 267 ALR 752
(1959) 101 CLR 298
(2011) 243 CLR 361
(2003) 215 CLR 317
(2007) 234 CLR 330
At least generally, the outcome of these two factual issues must determine the outcome because without a positive finding on one or both of these matters the plaintiffs could not succeed.
I will describe the issues generally as “the cracking issue” and “the vibration issue”.
In the pleadings, the plaintiffs asserted that the presence of the cracking should have been detected by the defendant at some point during the months before the crash, meaning that on the plaintiffs’ case, the cracking was present over a period of months prior to the crash. During the hearing, that period was narrowed to a matter of days.
Similarly, although the plaintiffs pleaded that the presence of abnormal vibration in the engine leading to the cracking could have and should have been detected by the defendant as early as 2016, at the hearing, the plaintiffs limited their case to an allegation that a vibration test should have been undertaken by the defendant during the April 2018 FOD repairs undertaken by the defendant.
At the commencement of and during the hearing there were very significant issues in respect of both the claim for personal injuries and the property loss claim. The parties adduced written and oral evidence from valuers but by the end of the case the quantum of the property loss claim was agreed.
The plaintiff pursued a claim for significant damages on the basis that he suffered severe psychological illness consequent upon the crash. He sought substantial damages including significant sums for loss of earning capacity. However, it emerged during the hearing that he had not reported any psychological symptoms to CASA over the past 6 years; that the contemporaneous and even recent medical records were inconsistent with his claims and despite operating a business since 2012 he has never earned sufficient income to pay any tax at all. These matters present as significant challenges to the plaintiff in recovering the substantial damages he seeks.
It is accepted that the provisions of the CLA apply, including ss 5B-5E and 5R.
Having said that, there is really no dispute as to the operation of those provisions in the circumstances of this case. The risk of harm must be the risk of the helicopter crashing and causing injury, loss and damage. It would be reasonably foreseeable that, if the defendant did not undertake its repair and maintenance work properly, there would be risk of engine failure and the helicopter crashing.
Similarly, the reasonable precautions which the plaintiffs maintain the defendant should have taken are not said by the defendant to have been onerous or unreasonable.
The plaintiffs bear the onus on causation (s 5E, CLA). A finding on the first limb of the plaintiffs’ claims necessarily leads to a finding on causation in favour of the plaintiffs. There is a real issue between the parties on causation on the second limb.
I assume that the circumstances and cause of the crash were investigated by the Civil Aviation Safety Authority (“CASA”) and the Australian Transport Safety Bureau (ATSB), although I do not know. This is because if there was an investigation and there were contemporaneous documents created as to the cause of the crash, no such documents were put before me. Section 27 of the Transport Safety Investigation Act 2003 (Cth) renders the reports of any such investigation inadmissible in these proceedings.
I am simply observing that I am determining the issues in the proceedings including the cause of the crash without regard to any earlier reports or findings of relevant authorities or even contemporaneous statements which might have been made by relevant persons at the time. This case has been pursued and defended on the basis of statements prepared for the purposes of these proceedings and also on the basis of evidentiary statements and expert reports prepared and obtained solely for the purposes of proceedings.
This included substantial repairs undertaken in 2016. As a result of Mr Loxton discovering damage to the compressor section of the engine caused by FOD, the company lodged a claim under its aircraft insurance policy in respect of that damage (which was accepted), although some issue arose as to the extent of the repairs.
It is only necessary to say that the defendant restored the engine following repairs being undertaken as directed by the company’s insurer.
During the period between 2013 and 2018, the plaintiff provided services as an aerial firefighter to the New South Wales Rural Fire Service (“RFS”). The work consisted of releasing water drops on fires of varying sizes throughout the State as directed by the RFS.
Initially, the company subcontracted the firefighting work from Calibre Aviation and Kestrel Aviation but, from about 2017, the company obtained a direct contract with the RFS to provide firefighting services.
According to the plaintiff, between 2016 until the crash, Mr Loxton or some other person on behalf of the defendant carried out daily inspections and field maintenance on the helicopter throughout the course of each firefighting job (except in certain limited circumstances).
In addition to firefighting work, the helicopter was also used to do long line lifting work. The lifting jobs were usually completed within a day although they occasionally spanned two days.
In or around December 2017, the company entered into a subcontract with Helisurveys Pty Ltd to provide helicopter lifting services in respect of the expansion of the Snowy Mountains Hydro-electric Scheme.
In 2018, the plaintiff conducted lifting operations in the helicopter on 15 January, 7, 8 and 15 February, 2 and 8 March, 7 and 17 April. These lifting operations were generally conducted immediately following a firefighting job.
According to the plaintiff, on those occasions, the defendant would conduct daily inspections and maintenance before he departed the firefighting job’s base of operations for the lifting job. On occasions when the lifting job spanned multiple days, the plaintiff says that the defendant would supply a LAME to travel with that helicopter and carry out the inspections and maintenance on the helicopter in the usual manner.
Some relevant parts of the engine were able to be examined by the experts for the purposes of these proceedings. A part of the exhaust diffuser was retained and inspected by the experts, albeit an issue was raised by the defendant as to the plaintiff’s failure to undertake invasive testing which might have resolved a controversy as to the presence and source of oxide found on the cracks.
The relevant part of the exhaust diffuser was in Court as an exhibit. I was able to examine the cracking as explanations were provided by the experts.
The relevant maintenance manual was the Technical Manual TM55-2840-229-23-1, being a document approved by the Department of the Army and the Air Force (USA) on 9 March 1981 (“the manual”). The defendant accepts that in terms of maintenance requirements it was bound to comply with this manual. The plaintiffs agree with this, although they also assert, for the purposes of the vibration issue, that the defendant was required to do even more than required by the manual.
The operation of the helicopter and its maintenance requirements are governed by the Civil Aviation Act 1988 (Cth) (“CAA”) and the Civil Aviation Regulations 1988 (Cth) (“the Regulations”).
I will explain briefly the way in which that legislation impacts upon the issues in these proceedings.
As set out in s 27 of the CAA, CASA may issue AOCs. Except as authorised by an AOC, an aircraft is not permitted to fly into or out of Australian territory or operate in Australian territory. In this case, the company or its subsidiary, Bell Pacific Holdings, was the holder of an AOC.
As set out in s 28 of the CAA, CASA must issue an AOC if satisfied about certain matters including that key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely (s 28(1)(b)(iv)). Key personnel means the people who carry out the relevant duties (s 28(3)). In this case, the plaintiff is the key personnel.
Section 28A of the CAA specifies additional conditions for the issue of an AOC in relation to certain foreign registered aircraft.
The Regulations then govern the requirements for repairs, maintenance and quality control.
A daily inspection in relation to an aircraft is defined under the Regulations to mean either, if the aircraft is maintained in accordance with the CASA maintenance schedule, the inspection referred to in Pt 1 of the schedule or, if the aircraft is not maintained in accordance with the CASA maintenance schedule, the inspection required to be carried out under:
Regulation 43 deals with maintenance releases in respect of Australian aircraft. Maintenance releases shall be issued only by authorised persons and only in such manner, and in accordance with such form, as CASA directs or approves.
It is only necessary to say that a person cannot simply own an aircraft. If they seek to own and fly an aircraft (including a helicopter) in Australia, there are onerous obligations imposed by the CAA and the Regulations. Further, a company which seeks to provide maintenance services is similarly bound by the Regulations including a certificate of approval.
The point emphasised by the defendant about the statutory scheme is that the helicopter is a class B aircraft. The requirements for operation of that aircraft are covered by the Regulations. Maintenance of the helicopter must be undertaken either in accordance with the CASA maintenance schedule or the manufacturer’s maintenance schedule.
In this case, the maintenance was undertaken in accordance with the manufacturer’s maintenance schedule albeit that the helicopter was manufactured on behalf of the US military in 1965, although the maintenance schedule has been upgraded since that time.
The point remains that there is a distinction between class B aircraft and other aircrafts governed by the CAA and the Regulations. An important point of distinction in respect of this helicopter is that, unlike, for example, a Qantas plane, it is not mandated that the helicopter be inspected on a daily basis by a LAME.
The daily inspection can be conducted by the pilot. It is clear from the relevant maintenance schedule that the pre-flight checks must be undertaken by the pilot, but the daily inspection can be undertaken either by a LAME or the pilot. There are other checks and inspections which must be undertaken by a LAME.
Between 4 March 2016 and April 2018, he conducted his pilot’s inspection in the absence of Mr Loxton or another LAME on 42 occasions. He never observed any fatigue cracking, material loss or other defects in the tailpipe, exhaust or engine. He never observed or otherwise experienced vibrations above the ordinary operating vibrations.
When he arrived at the airport on 17 April, he found the LAME finalising his work on the helicopter. He recognised the LAME as Ben Harris. He knew him to be an engineer from the defendant.
Mr Harris had placed his ladder next to the helicopter and was the top of the ladder and appeared to be looking at the top section of the helicopter. He was near the rear of the engine. He did not know how long Mr Harris had been there.
The plaintiff said that he inspected the exhaust diffuser on the morning of 17 April and did not observe any obvious damage. He believed that Mr Harris would inspect the area in a more detailed way.
The plaintiff was cross-examined on his observations of that morning. He agreed that he was only assuming that Mr Harris had carried out an inspection. He agreed that his own pre-flight inspection before taking off would have involved looking into the exhaust.
When asked whether he was careful when looking into the exhaust, he replied that he was only looking for anything obvious. He also agreed that when looking at the exhaust he did not see any defect. He did not see any cracking. He was further cross-examined about some inconsistencies in his documentation, particularly his logbook. An issue was raised as to the difference between engine time and flight time. He rejected the proposition that there had been some fundamental failure to carry out proper maintenance based on inaccuracies in the logbook.
Leaving aside damages issues which I will come to later in this judgement, the plaintiff’s evidence was relevant to the system of maintenance and his observations as to his own inspections and what Mr Harris did.
The effect of his evidence was to acknowledge that he carried out regular inspections, but they were only pilot’s inspections and were less detailed or thorough than the inspections carried out by the LAME. He said he was looking for different things than the LAME. He agreed that he did look at the area of the exhaust diffuser and did not see any defects. However, according to the plaintiff’s own documentation, it was he who signed as having undertaken the daily inspection on 17 April, that is, immediately before the flight. I will return to this later.
The plaintiff also adduced evidence from his ex-partner Stacey-Lee Cullen. Her evidence related mainly to damages and as such I will refer to it later in this judgment.
The company also relied upon a number of statements from witnesses on damages issues. They were not required for cross-examination, and it is not necessary that I refer to this evidence as the matters referred to were ultimately the subject of agreement.
the cracking in the outer struts of the diffuser as shown in the photographs and in the diffuser itself (which was an exhibit) would have been visible to a LAME properly performing his duties; and
if the cracking was there, it should have been seen by a LAME properly performing his duties and the helicopter grounded until repaired.
Importantly, both Mr Richards and Mr Loxton stated that, following the reinstallation of the engine, a vibration test was undertaken by Mr Richards. The data was recorded and both Mr Richards and Mr Loxton stated that the helicopter passed in the sense that the results of the vibration test indicated compliance. Unfortunately, the data for that test appears to have been lost or discarded at some stage.
I asked Mr Nell whether the second plaintiff was challenging the fact of the vibration test or its results, and he indicated that it was not. As such, it was not in dispute that a vibration test was undertaken in 2016 and the result was that the helicopter was compliant. It follows that, again by the end of the case, the plaintiff was no longer pursuing an allegation that the defendant had failed to undertake a vibration test when the helicopter first underwent FOD repairs (i.e. in 2016).
Once the helicopter was placed back in service, the defendant continued to undertake maintenance and inspections from time to time as recorded in the daily logbook.
Further FOD damage was discovered in March 2018. It is this damage and the subsequent repairs which give rise to the second limb of the plaintiffs’ case against the defendant. The plaintiffs assert that the nature and extent of the damage discovered in March 2018 was such that following the repairs, the defendant was required to undertake a vibration test.
On the plaintiffs’ case, the defendant did not do so (the defendant agrees it did not do so). On the plaintiffs’ case, if the defendant had done so it would have become apparent that there was a problem with the engine, that is, the vibration was excessive, the helicopter would have been grounded and repaired and, of course, the crash would not have happened.
Mr Loxton disagreed that the relevant manual and guidelines required the defendant to undertake a vibration test following completion of the FOD repairs in March 2018.
Firstly, he said the reference to seven first stage blades being damaged was a typographical error and only six blades were damaged. Secondly, he said that the number of blades which were damaged was not more than 20 percent of the blades, such that the plaintiffs’ reliance on that part of the manual which required a vibration test following more than 20 percent of the blades being damaged and requiring repair was misplaced.
None of the blades were replaced. The defendant effected blended repairs on the compressor blades. The repairs were signed off by Mr Loxton on 1 April 2018.
Although it was put to Mr Loxton that he should have carried out a vibration test on or before 1 April 2018, the issue of whether there might have been cracking in the outer area of the exhaust assembly unit was not raised with him, that is, he was not taken to the photographs of the cracking in the outer area of the exhaust assembly unit. It was not put to him that that cracking was present as of 1 April 2018 and that he should have detected it.
In his email dated 22 March 2018 he referred to there being damage restricted to seven blades of the first stage with there being a tiny mark on one blade of stage two of the rotor.
The plaintiffs submitted that, on that basis, there were repairs to seven blades that would have been more than 20 percent and thus a vibration test was required after completion of the repairs.
Mr Loxton gave evidence that his reference to seven blades in that email was a typographical error. In fact, he only worked on six blades in the first stage and one second stage blade.
He accepted in cross-examination that he did not now recall how many blades he may have worked on but says that his evidence is based on other contemporaneous records. He relies on his logbook entry of 1 April 2018 which identifies only six first stage blades being repaired. His invoice of 6 April 2018 is consistent with the logbook entry.
The plaintiffs submit that I would not accept Mr Loxton’s evidence on this issue instead preferring the analysis of Mr Moffat. However, Mr Moffat accepted in cross-examination that he could not rule out the possibility that one of the seven blades might have been blend repaired during the FOD damage repair in 2016 (that is, at an earlier time).
The problem for the plaintiffs on this issue is again the evidence of Mr Loxton. It is correct that when Mr Loxton first reported to the plaintiff about the need for repairs, he referred to there being seven blades in the first stage of the compressor requiring repair but, after he completed the repairs and in accordance with his statutory requirements, he recorded in the logbook that he had repaired six blades. Further, he charged on that basis. He maintains that the entry in his logbook would be accurate and reflect what he did.
Again, I accept that there may be some uncertainty about that and understand the basis on which the plaintiffs’ might have adopted the position that the number of blades exceeded the 20 percent threshold, but Mr Loxton has explained what he did and points to his post repair records as being accurate. I accept his evidence.
Further, the plaintiff’s case on the need for a vibration test following the 2018 repairs is also dependent upon Mr Moffat’s approach to or construction of the relevant parts of the manual.
Section 2-38 deals specifically with the ‘Compressor Rotor Blades – Repair’.
Mr Moffat and Mr Marais disagree as to the meaning of the requirements in the particular part of the manual. That difference of opinion was the subject of examination during their oral evidence. It is not necessary to set out the six pages of the manual, but resolution of the issue necessarily involves a consideration of the whole part.
At least to some extent the different views arise out of different approaches to the meaning of “blade airfoil area” being a part of the compressor rotor assembly referred to in the manual.
Mr Marais says that there is a difference between what is referred to as leading and trailing edges of the blade, the blade tip edges and the blade airfoil area. Mr Marais supports this construction by reference to the fact that each of the areas are individually numbered and specified in the manual.
Mr Moffat says that the blade airfoil area, which is essentially the surface of each blade, would include the leading and trailing edges or the blade tip edges.
He points out that both the leading and trailing edges and the blade tip edges are specified, and separate maximum allowable repair limits are provided. For example, point 11 provides for a maximum allowable repair depth of 3/32 inch (2.4 mm) in respect of blade tip edges. The length of repair for blade tip edges must be at least three times repair depth. Further, in respect of the leading or trailing edge of a blade, a minimum of one-half of blade tip chordal width must remain after blend repair.
Mr Marais points to the different sections of the manual and the notes at the end of each part making it clear that the next few parts of the manual apply to some other part of the blade.
For example, at the end of point 13 is the note:
Mr Marais was rather dogmatic in his approach, maintaining quite directly that there was either compliance with the manual or there was not. In his view, there is no room for prudence or judgment in terms of carrying out a test such as a vibration test.
Mr Moffat took a more nuanced approach, suggesting that it would be prudent for a LAME to undertake a vibration test, even if the 20 percent figure was not actually exceeded but the repairs came close to that figure.
Further, he felt it was significant that, on his examination, the seven blades which were repaired in March 2018 were in one hemisphere. He said this resulted in a potential imbalance. Coupled with the level of blended repairs, that should have led the defendant to undertake a vibration test on completion of the repairs in March 2018.
Mr Marais did not agree, pointing out that there was nothing in the manual that suggested that repairs to less than 20 percent of the blades on one particular area of the compressor could create an additional risk of vibration such that a vibration test was required.
In considering this issue, it is of course important to have regard to the provisions of s 5B, CLA. The determination of this issue depends on whether it was reasonable for the defendant to have been required to carry out such a vibration test in all the circumstances. The circumstances include the nature of the work being performed by the defendant, the very real risk of injury, loss and damage which would flow from any failure on the part of the person in the position of the defendant to properly perform its duties and the fact that the role of a repairer or maintainer to an aircraft must be to ensure the safety of those flying passengers in the aircraft.
Having said that, it is important to emphasise that all duties may be discharged by the exercise of reasonable care (see Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 per Gummow J).
The case against the defendant is based on a failure to exercise reasonable care. What is reasonable must depend upon the particular circumstances of the matter.
It is important to bear in mind the observations of McHugh J in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34] as follows:
They say that the allegation against Mr Harris is quite specific (or perhaps it became so during the course of the hearing) being that he was negligent in the performance of his inspection of the exhaust diffuser on 15, 16 and 17 April.
The plaintiffs did not submit that he was engaged in a gross dereliction of duty or habitually negligent or that he engaged in some activity of endangering life. He just failed to observe something that was there to be seen and which it was his duty to detect.
The real basis of the plaintiffs’ approach (that is, not cross-examining Mr Harris) is that (they assert) there was nothing to cross-examine him about. They say that the reason the Court does not have evidence from Mr Harris as to his inspections on 15, 16 and 17 April 2018 is not some forensic decision on the part of the plaintiffs but rather the defendant’s forensic decision not to adduce evidence in chief from him as the manner in which he conducted inspections on those days. The plaintiffs submit that the defendant was on notice that the plaintiffs were asserting that Mr Harris had failed to carry out proper inspections on those days. Yet, Mr Harris said nothing about his inspections on those days merely making a general statement as to his inspections.
Plainly, Mr Harris could have said something about any inspections he carried out on 15, 16 or 17 April 2018. He chose to keep it general. There may be many reasons why he did not, one of which is that he did not remember. Another may be (consistently with the way the defendant was initially running the case), that he has some doubt as to what he actually did on 17 April.
Yet, by the end of the case, the defendant was accepting that it was open to find that Mr Harris carried out an inspection on 17 April. Further, the defendant was accepting that if the cracking in the outer area of the exhaust diffuser was present at the time of that inspection, it should have been seen by him.
In any event, is not for me to speculate on why Mr Harris did not give more precise evidence. He did say that whenever he inspected the exhaust diffuser, he did not see any cracking therein.
In my view, that statement was at least sufficient to traverse the allegations against him and it was for the plaintiffs to challenge him on this evidence. They chose not to.
However, the matter is somewhat complicated by reason of the fact that the parties altered their positions during the course of the hearing as to whether Mr Harris actually carried out the daily inspection on 17 April 2018.
The plaintiff said, perhaps conveniently, that he saw Mr Harris up the ladder looking into the engine. It was not suggested that he was making that up. No other reason was advanced by the defendant as to why Mr Harris would have been looking into the area of the exhaust diffuser other than for the purposes of carrying out his duties as a LAME.
In Browne v Dunn, Lord Herschell LC said at 70-71:
As submitted by the defendant, I can more readily accept expert evidence to the effect that it was not present in circumstances in which Mr Harris says that he did not see it, but Mr Harris’ evidence does not compel me to accept that expert evidence. I will give Mr Harris’ evidence appropriate weight but it is not determinative even when he has not been challenged.
In terms of unfairness to the defendant, it is difficult to see how there is any such unfairness. The defendant has the advantage of relying on Mr Harris’ evidence that he did not see the cracking. The defendant was always aware that the plaintiff’s case was that it was there to be seen and should have been seen by Mr Harris.
The focus of the dispute is on the cracking to outer strut 1 which was observed after the crash. This cracking is agreed by Mr Moffat, Dr Farzaneh and Dr Romeyn to be fatigue cracking. Only Mr Marais suggested it may be impact damage, that is, it developed because of the crash rather than before the crash.
As it turned out, much depends upon the nature of the cracking including its appearance. This is very much a matter of metallurgical expertise.
Mr Marais’ opinion suffers from a lack of proper examination of the cracking itself. It cannot be reconciled with the views of the other experts. This may be why the focus of the defendant’s submissions was very much on the views of Dr Romeyn.
I accepted Mr Marais views on the vibration issue but found the views of the other experts more compelling on the cracking issue. This is particularly so having regard to what I consider to be the greater level of expertise of Dr Farzaneh and Dr Romeyn in looking at cracking and trying to form a view as to its cause and significance.
Fatigue cracking is by its very nature caused by the repeated application of loads with gradual damage to the material. The process commences with a crack initiation phase and is followed by the crack propagation phase, although the difference between the two is not easy to determine. This applies in this case.
The defendant places considerable reliance on the opinion of Dr Romeyn. The defendant submits Dr Romeyn’s analysis is a model of expert analysis starting with the engine wreckage and conducting a thorough and careful examination. His analysis begins with the internal struts. He identifies the cracking in internal strut 3 as a fatigue crack which resulted from contact with an abrasive wheel. Dr Romeyn then analysed the sequence of events from the fatigue crack on strut 3 to the engine failure, the cause of which is agreed to Mr Moffat and Dr Farzaneh.
As it is only the outer cracking which could have been observed by the defendant prior to the flight (if it existed), the opinion of the experts as to how this cracking emerged is particularly important.
Both Dr Romeyn and Dr Farzaneh suggest that the initiation and propagation of cracks on the mid-cone area around outer strut 1 were consistent with high cycle fatigue with abnormal vibrations being the likely cause.
Dr Romeyn says that high cycle fatigue cracking will not occur over a long period of operation. Dr Romeyn put forward a theory that, based on his experience, expertise and literature, if a part such as the external strut is going to crack under low vibration, it would generally happen at 100,000 rotations as the rotor assembly rotates at 20,000 revolutions per minutes. On that basis it is possible that the cracking in the outer strut emerged only five minutes after the abnormal vibrations commenced. In other words, on his view, it might be likely that the cracking only occurred during the course of the flight and immediately before the crash.
However, during cross-examination undertaken by Mr Anderson on behalf of the company, he ultimately conceded that the number he had chosen, that is 100,000 revolutions per minute could just have easily been 1,000,000 revolutions, or even 10,000,000 revolutions.
That is, it is not possible to say that the metal would crack merely after 100,000 revolutions. That was merely to describe the bottom of the range. It was always possible that it would not crack for a much greater period even under the same conditions. Whilst the defendant highlights that Dr Romeyn ultimately viewed the longer period of operation as being unlikely, in my view the effect of his oral evidence is that it is not possible to say how long the outer cracking might have been present based only on the number of cycles.
He did maintain that it was likely to be between 5 and 50 minutes, but the possibility of a longer period remains. The point of cross-examination was really to demonstrate that the period during which high cycle fatigue cracking was present could not be determined merely by assessment of the number of revolutions per minute. I accept that contention.
It follows that the proposition advanced by Dr Romeyn (to the effect that the cracking in external strut 1 likely only happened during the flight) was somewhat diminished by the acceptance of the possibility that the cracking might only occur after much more significant revolutions than he had originally suggested.
Of course, it was not up to the defendant to prove when the outer cracking emerged and all of the background and analysis of the events that occurred did not, in my view, point to or establish a particular time.
Subject to my comments below, the expert evidence as to when the outer cracking would have first appeared and become visible during inspection was somewhat speculative and involved a degree of conjecture. Leaving aside Dr Romeyn’s high cycle fatigue theory, there was little which would have enabled a determination as to precisely when the outer cracking first appeared.
The focus of the plaintiffs’ case thus became the post-crash appearance of the cracking and the expert metallurgical analysis of Dr Farzaneh.
Important evidence emerged during the concurrent evidence. It does not seem to have been referred to directly and specifically in the earlier expert reports, albeit the plaintiffs maintain that it was referred to with reference to the commentary on possible corrosion and there was reference to the appearance of the cracking in the joint report.
In the joint report, Mr Moffat referred to the amount or number of cracks, suggesting that many pre-existed the flight. He also referred to cracking in the 3 and 4 bearing cover with discolouring and missing materials said to be typical of fatigue cracking over a period of days.
Dr Farzaneh said that he agreed with Mr Moffatt’s comments referring to the crack morphology and the two distinct regions with the presence of corrosion products in one region being indicative of progressive, in-service crack growth.
Dr Farzaneh carried out a microscopic examination of the cracking in outer strut 1. Dr Romeyn did not. Dr Farzaneh commented on the differences shown in the cracking leading to the conclusion that parts of the cracking appeared at different times. These differences were explained by Dr Farzaneh in the witness box. They could be seen in the relevant photograph.
Towards the end of the experts’ concurrent evidence in questioning by Mr McIlwaine, Dr Farzaneh stated that the white substance shown in photographs of the cracking in outer strut 1 was likely to be due to the presence of oxidation.
Indeed, he explained that the presence of the white substance apparently in the crack or part of the crack tended to confirm that the part of the cracking where the white substance was, was likely to be fatigue cracking and the inner part was likely to be a crack which happened under load.
It followed, Dr Farzaneh suggested, that the cracking subject to oxidation must have been present for some days prior to the crash as that process of oxidation would not have taken hours. He settled on at least a day.
When Dr Romeyn was asked to comment on the same photographs and the white substance, he indicated that he was unable to say it was oxidation and suggested he had been unable to indicate how long it might have been present in any event. My impression was that he was caught by surprise by the suggestion and said he had not looked at it microscopically. Dr Farzaneh said that he had.
However, Mr Brennan then took up the challenge questioning Dr Farzaneh as to whether he was aware the engine had been sprayed with fire retardant (containing chemicals). Dr Farzaneh said he was not. Dr Farzaneh then expressed some uncertainty as to what the white substance might have been but questioned how the contamination could be fire retardant having regard to the differences in the ends of the crack. He emphasised that the appearance of the crack supported the theory that one end of the crack was more exposed than the other end of the crack, meaning that they had appeared at different times. It followed that the area he described as fatigue cracking was more likely subject to oxidation.
Whilst Mr Brennan attempted to demonstrate through cross-examination that the white substance in the particular crack might have been the remains of fire retardant, no evidence was adduced by the defendant which would enable me to accept that proposition. There are other photographs showing that fire retardant was used at the crash scene but Dr Farzaneh said it may be unlikely that fire retardant was only shown on one part of the crack and not the other.
The defendant pointed out that this dispute could have been easily resolved through invasive testing by the plaintiffs. It was submitted that I should draw a Jones v Dunkel inference against the plaintiffs because they had failed to undertake the sort of testing which would have demonstrated the correctness of the views of Dr Farzaneh (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8). I am not sure that the principles set out in Jones v Dunkel go so far as to lead to an inference arising from a failure to carry out a certain type of testing on metal componentry. Be that as it may, the only inference is that it would not have made the plaintiffs’ case any better. No inference can be drawn that it would make the plaintiffs’ case worse.
I found all of the experts to be credible and experts in their fields. I mean no disrespect to any particular expert in preferring one view over the other but as often happens in these types of cases, well qualified experts come to differing views on matters of critical importance.
The task of the Court is to try and make sense of these expert opinions and form a view as to which might be preferred always remembering that it is the plaintiffs who bear the onus of proof. Having said that, it is the task of the Court to make a decision which will necessarily involve preferring one expert opinion over another. In making that decision, I must also have regard to the lay evidence and, as I have already said, the evidence of Mr Harris and indeed the plaintiff’s evidence.
There was merit in the defendant’s initial suggestion that it seems unlikely that the cracking would have been missed on so many occasions, having regard to the original case pursued by the plaintiffs but that submission has less force when the evidence only points to the cracking being present a day or two prior to the crash. I am looking at the issue in circumstances in which only the plaintiff and Mr Harris would have inspected the exhaust diffuser when the cracking was visible. The plaintiff said that his inspections were less thorough than would be undertaken by a LAME because (he asserted) that he was really only undertaking the pilot’s pre-flight inspection, albeit that he signed as having undertaken a daily inspection.
There is merit in the defendant’s submission that I would be cautious in making a finding that a person such as Mr Harris failed to observe the cracking having regard to the significance of the consequences of that failure. Yet, if there is good reason to accept an expert opinion that the cracking was present at the time of inspection either by Mr Harris or the plaintiff, the fact that both said they looked into the exhaust diffuser does not lead to the conclusion that it could not have been present. Sometimes things are not done as thoroughly as they might be perhaps because of familiarity of the routine of that which is happening.
I found Dr Farzaneh to be an impressive and credible witness. He has considerable expertise on this particular aspect, being crack analysis. The photographs to which he refers point to differences in the particular crack, which he concludes means that parts of the cracking appeared at different times. There is a white substance shown on the part of the particular crack. He identifies it as oxidation and says it must follow that it had been present for a period prior to the crash which he identifies as that last day.
Leaving aside Dr Romeyn’s high cycle fatigue cracking theory on which I have already commented and having regard to the majority consensus on the cause of the crash, the critical question becomes whether the appearance of the cracking in outer strut 1 offers some guidance as to how long the outer cracking had been present.
If I accept that the white substance was indicative of oxidation, then I would accept the general opinion of Dr Farzaneh on the issue. If I accept that the white substance was more likely to be fire retardant, then there is no evidence of oxidation.
In my view, the point made by Dr Farzaneh about the differing appearances in the particular crack makes sense and is of significance. The fire retardant theory was developed with impressive skill by Mr Brennan but it was not supported by other evidence and, in my view, was ultimately answered by Dr Farzaneh.
I accept the evidence of Dr Farzaneh as to the presence of oxidation in the cracking in outer strut 1 to the exhaust diffuser. It follows that I accept the outer cracking was present prior to the flight and did not just emerge during the flight.
The final issue is whether Mr Harris inspected the exhaust diffuser at any time when the outer cracking would have been visible. There is no doubt that Mr Harris was present and doing some work on the helicopter on 16 and 17 April. In the maintenance release from that day, there is a record of a service and lube for which the defendant charged. Further, the plaintiff said that when he arrived in the morning on 17 April, he observed Mr Harris on the ladder looking at the helicopter. It was not put to the plaintiff that he had not seen Mr Harris there, albeit the plaintiff accepted that he was making an assumption as to what Mr Harris was doing. Further, the plaintiff signed the daily inspection form for 17 April.
However, the effect of the defendants’ answer to interrogatories is an admission by the defendants that Mr Harris carried out the daily inspections on 16 and 17 April. The effect of Mr Harris’ statement is, at the least, not to dispute that. Although there might have been some uncertainty as to whether the plaintiff is running the case that Mr Harris had not inspected the diffuser on 17 April, having regard to all of the evidence, I accept that Mr Harris carried out a daily inspection on 17 April, that is, before the flight. The defendant is bound by the admission it made (in my view correctly).
It is unnecessary that I say anything further about the contractual claim pursued by the company. There was an issue between the parties as to the contracting parties and the terms of the contract. The claim in contract affords no better remedy to the company in any event.
I am required to assess contribution between the plaintiff and the defendant having regard to what is fair and equitable pursuant to s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW). Difference in level of expertise is not an excuse for the failure to detect something that should have been detected. In circumstances in which the sole basis for the defendant’s liability is the failure to detect cracking in the immediate time prior to the flight and in circumstances in which both the plaintiff and defendant were obliged to, and did by their own admission, carry out inspections at that time, then there is no reason to distinguish between their culpability. Thus, I assess contributory negligence at 50 percent.
most significantly, he has applied for and obtained his pilot’s licence in June every year since 2018. The medical notes of the doctor who has seen him regularly for the purposes of renewing his license do not reflect the complaints made by the plaintiff in these proceedings. He has denied the existence of any psychological symptoms every year.
Indeed, I raised this troubling matter with the plaintiff’s Senior Counsel during the course of the hearing because it seemed to me to be a matter of public safety. It is a criminal offence to provide false declarations to CASA for the purposes of obtaining a licence.
The reason CASA requires a pilot to disclose any physical or psychological problem that may impact upon their ability to fly is obvious.
I raised with the plaintiff’s counsel how it could be that the plaintiff could assert in these proceedings that he was suffering from such disabilities whilst at the same time declaring to CASA that he suffered from no such disabilities.
I gave counsel time to consider the answer to that question. I was informed by Mr Quickenden that the plaintiff would be informing CASA that he does in fact suffer from those disabilities and that the information he provided as late as June 2025 was false.
As I said to Mr Quickenden, that was a matter for him; that was his choice and he should not be proceeding on the basis that because I had raised the issue I was indicating some acceptance of the existence and level of disability or that I would be making a finding that he was unfit to work as a pilot.
The plaintiff did not seek to re-enter the witness box and adduce any further evidence on this issue.
A further and important matter of concern is that, despite operating a company with consistent gross earnings sometimes close to or above $1 million over the past 15 years, the plaintiff says that he has never earned enough money to pay tax. That is apparent because the pre-2018 tax returns which he has produced do not disclose any tax being paid.
He was required to produce his personal tax returns for the period from 2018 to 2024. He did not do so. He explained in cross-examination that he has not filed a personal tax return since 2018, suggesting that he was informed by his accountant that he was not required to do so because he has never earned more than the taxable threshold. That is, when the gross income was over $1 million in 2020, that was insufficient for him to receive any real personal income.
Despite operating a business and seemingly having sufficient funds to at least not be impoverished, he has not paid tax in 13 years.
In closing submissions, Mr McIlwaine emphasised the character of the plaintiff highlighting his determination and resilience as demonstrated by returning to flying and continued operation of his business up to the time of the 2018 crash.
He highlighted the plaintiff’s evidence as to why he had seemingly not reported or complained of any significant deterioration or aggravation in his psychological state following the 2018 incident to the effect that the plaintiff did not want to admit to it (that is, admit that he was suffering from such severe symptoms). He emphasised the plaintiff’s statement to Dr Spira, a neurologist, who examined the plaintiff on behalf of the defendant to the effect that the plaintiff said “the first accident injured me the second broke me”.
Mr McIlwaine submitted that the plaintiff’s failure to disclose his symptoms to CASA and the continued operation of his business despite very limited personal earnings must be seen in a light that the plaintiff remained determined to continue to work despite the effects of both accidents.
Mr McIlwaine also sought to explain the disparity between the content of the documents and medical reports produced for the Canadian fund, including a number of post 2018 documents, and his claims in these proceedings again with reference to the perceived need to keep both claims separate and the support of Ms Bilato (who was seeing the plaintiff for multiple purposes) in doing so.
Further, when dealing with the fundamental inconsistency between what the plaintiff has been saying to CASA for six years and what he maintains in these proceedings, Mr McIlwaine submitted (he said on written instructions) that I would accept that he has been providing false information to CASA over all those years. This might be viewed as a remarkable submission.
In the end, Mr McIlwaine submitted that the plaintiff will probably now lose his licence, his business will fold and he will need to seek work on the open labour market as a pilot. As I will consider further when dealing with the loss of earning capacity, the plaintiff claims that he has lost the chance of doing so and that he should be awarded a significant sum on that account.
The defendant submitted that the plaintiff should receive very little.
Whilst the defendant did not dispute the resilience of the plaintiff, it submitted that the contemporaneous medical records, including those submitted to and prepared on behalf of the Canadian fund and the plaintiff’s own business records, demonstrated that he had returned to flying by June 2018 and had continued to operate his business thereafter.
The defendant submitted that having regard to the evidence as a whole I would not accept that the plaintiff had any ongoing significant psychological condition caused by the 2018 crash, pointing in particular to the post 2018 crash documents prepared for the Canadian fund and of course the statements made by the plaintiff to CASA.
Except in respect of the alleged injury to the back, there is no dispute as to the physical injuries sustained by the plaintiff.
They include a right orbital floor fracture and sinus fracture. He recovered from those injuries fairly quickly except that he now has nasal blockage and deviation of the nasal septum.
He also sustained a displaced fracture of the left lateral tibial plateau and a soft tissue injury to the left foot and chest laceration.
He was examined by Dr Myles Coolican and Dr James Bodel for these proceedings. Dr Coolican did not consider that he suffered from any ongoing symptoms from his lateral tibial plateau fracture or his left foot injury. Dr Bodel observed some residual knee stiffness and restricted ankle movement but could not verify the exact pathological process leading to the symptoms.
Neither expert considered that the plaintiff had any real incapacity or that these injuries would prevent him from working. They suggested that his main problem was psychological.
The plaintiff claims that he also sustained an injury to his lower back in the crash. This is disputed by the defendant for the reasons that:
The Canberra hospital records do not contain any reference to the plaintiff suffering from any back problem. Indeed, when the plaintiff returned to Canberra Hospital on 6 May 2018, he did not report any problems with his back. There is a specific reference to no pain in the back. There is a reference to no vertebral tenderness.
Further, he never suggested any back problems when being examined for the purposes of his licence renewal.
I do not accept that the plaintiff suffered a back injury in the crash. Not only did he not mention it when reporting his problems in the period after the crash, but he said that there was no tenderness in the back.
Whilst I accept that the plaintiff must have suffered a significant and nasty blow to his face on impact, the consequences of the accident to him physically healed quickly. Within months of the crash, he was back flying. Indeed, he flew to South Africa to purchase a new helicopter (on a commercial flight).
He may need a septoplasty but that injury has no impact on his ability to earn or care for himself.
The real question in this case is whether he developed a psychological condition, such as PTSD, anxiety and/or depression consequent upon the 2018 crash and to what extent any psychological symptoms have continued to affect him.
The plaintiff was examined by Dr Allnutt for the purposes of these proceedings. He prepared a report dated 19 April 2023, having regard to the information with which he was provided. The defendant arranged for the plaintiff to be examined by Dr Leonard Lee, who prepared two reports dated 26 April 2022 and 26 July 2023.
Dr Lee did not consider that the plaintiff was suffering from any psychological condition. Indeed, he believed that the plaintiff was feigning his symptoms.
The doctors met in conclave and prepared a joint report dated 11 July 2025.
Dr Lee did not consider that the plaintiff was suffering from any psychological condition. The doctor subjected the plaintiff to a test for malingering known as the SIMS test. Based on the results of this test, Dr Lee did not consider that the plaintiff was reporting his symptoms accurately.
The idea that the plaintiff is malingering is somewhat contradicted. The defendant’s case is that he is back working and suffers no loss.
The problem for the plaintiff is not that he has been doing nothing for the past six years waiting for the case to come on but that his actual activities and prior history are inconsistent with the complaints he makes in these proceedings.
I do not accept Dr Lee’s opinion. I have considerable reservation about the use of a SIMS test as a means of determining whether someone is feigning injury. Much depends on how the answers are interpreted. The plaintiff is not malingering. To the contrary, he appears be carrying on as he was before the crash.
Although Dr Allnut accepted that the plaintiff had been diagnosed as already suffering from PTSD consequent on the 2005 accident, he also considered that he developed PTSD as a result of his 2018 accident. He felt that the plaintiff fell into the category of persons who were at high risk of developing trauma and stress related disorders including depressive and anxiety disorders. He felt that the plaintiff was motivated to return to work but this would make him prone to minimisation of symptoms when meeting clinicians.
I take this to be some form of explanation as to why the plaintiff might have said that he did not suffer from any psychological symptoms when seeking renewal of his licence for six consecutive years, that is minimisation of his symptoms to a doctor, albeit he really has symptoms.
I can only say that stating that he has no symptoms is hardly merely minimisation of symptoms.
Dr Allnut emphasised in the joint report that the plaintiff did not describe actual avoidance of helicopter flying but rather described a preference not to fly alone and anxiety when flying in certain circumstances.
Dr Allnut felt that that was not inconsistent with diagnosing PTSD. Yet, when asked to differentiate between all of the different stressors in the plaintiff’s life, Dr Allnut said that he could not do so.
Dr Allnut was asked whether the plaintiff would be incapacitated for performing his own care and domestic duties. He said he did not believe that he would be.
In oral evidence, when confronted with the fact that the plaintiff had returned to some flying within months of the 2018 accident, Dr Allnut suggested that the plaintiff felt that he had to force himself to fly to feed his children, but he could still have PTSD and anxiety. That may be so but there is other evidence which also suggests that he had PTSD as a result of the 2005 crash.
Whilst I accept the plaintiff may have returned to flying quickly despite a psychological condition and whilst I accept that he may have manifested symptoms consistent with PTSD and anxiety, I am unable to accept Dr Allnut’s opinion that when examined by him, the plaintiff was suffering from PTSD or any psychological condition referable to the 2018 crash.
His opinion is compromised, because it is quite plain that the information provided to Dr Allnutt for the purposes of his opinion was both incomplete and inconsistent with other records. Further, there is so much other evidence contrary to that view.
As is often said, psychiatrists rely on the history that is given to them and then bring to bear their professional experience and expertise in forming a view as to diagnosis and prognosis. The information provided to Dr Allnut is quite inconsistent with things said by the plaintiff to other health professionals, in particular, those that have reviewed him for the purposes of his continuing benefits arising from the 2005 accident as well as those who have reviewed him for the purposes of renewing his licence each year.
Whist I reject the suggestion that the plaintiff is malingering, it does not follow that I would then accept the opinion of Dr Allnut.
For example, when examined in June and July 2020 on behalf of the Canadian fund, the plaintiff continued to complain of ongoing psychological problems referable to the 2005 accident or other factors not related to the 2018 crash.
On 8 June 2020, a visiting specialist, Dr A Townson, indicated that the plaintiff was having a lot of stress over the previous year because of personal matters relating to his family and in particular his daughter.
Reference was then made in the documents to the clinical report from Ms Bilato dated 27 July 2020 in which she referred to the plaintiff continuing to suffer from major depressive episodes, panic, generalised anxiety and anger management issues (consequent on the 2005 crash).
Ms Bilato was asked about what appeared to be inconsistencies in her reporting to the Canadian insurer and the report she prepared for the purposes of these proceedings. She openly admitted that she did not wish to prejudice the plaintiff’s entitlement to ongoing benefits from the Canadian insurer and thus, was in effect not telling them about the consequences of the 2018 crash.
That may be so but the consequences of that in terms of her report writing is that all of the contemporaneous notes and reports she prepared did not suggest ongoing complaints referable to the 2018 crash and it was not until she was asked to prepare a report for the purposes of these proceedings that she related his ongoing problems to the 2018 crash. It is difficult to place much weight on an opinion which is quite inconsistent with much of what she has said previously. Her attempts to assist the plaintiff in both claims has been misguided, although perhaps well intentioned.
Further, her reliance for her diagnosis and prognosis on the Ms Yiannitsaros report is misplaced because Ms Yiannitsaros’ diagnosis and prognosis are referable to the 2005 crash.
These matters do not sit well alongside the plaintiff’s claims in these proceedings.
Further, the rather dramatic fall in gross income the next year would be consistent with that which the plaintiff was telling those who examined him on behalf of the Canadian fund being that he had been unable to work much because of issues with his daughter but hoped that things would improve the next year. They did.
The financial statements and tax returns are also illuminating because they show that:
over the 14 years of its operation, the company has not paid any tax; and
the plaintiff has paid no tax at all in the past 14 years.
This is evidenced by the tax returns he completed prior to 2018 and his own statement that he has not completed any tax returns since 2018 because he has never earned enough money to pay tax. Even his company achieving a gross income of over $1 million has been insufficient for him to have earned a taxable income.
Indeed, according to his pre 2018 tax returns, in most years he earned nothing at all. The purpose of completing the tax return appears to have been to obtain a rebate from the government.
I accept the plaintiff would have been off work for a period and that the activities of his business were interfered with both when he needed to get a new helicopter and the helicopter needed refurbishment. He is bound by his tax returns. He must establish that his time off work was productive of financial loss, in circumstances in which he had declared no personal income from running his business for 14 years. Of course, they are yearly assessments.
I will allow a figure of $30,000 as there was a matter of months when he did not have a helicopter to fly.
He claims the sum of $1,087,545 (net) for future loss of earning capacity. He says that he has now (as of 25 July 2025) told CASA that he is unfit to fly and thus will not be working. As I said at the time, that is a matter for him.
Alas, unlike the tax system, the Court does not award damages based on a self-assessment.
In any event, he has said consistently over the past six years (to persons not associated with this case) his psychological problems are referable to other events. Going to CASA at the end of the case to inform it of his psychological problems does not assist him.
He is not entitled to any sum on account of future economic loss.
Having regard to my findings on injury and disability, he is not entitled to any amount on account of care or domestic assistance.
He claims half of the cost of his consultations with Ms Bilato stating in an affidavit that he believes half were related to the 2018 crash. The source of that belief is unclear as he did not tell Ms Bilato that at the time. Although he claims $32,900 for future treatment expenses, it is not clear that he has had any treatment in the past.
Damages are assessed in the sum of $110,500.
Although there was a dispute as to the quantum of the company’s claim and there was valuation evidence, the parties reached agreement on the amount being $859,888.18.
I assess contributory negligence at 50 percent. It follows that any judgment will be 50 percent of the assessments.
I make the following orders:
Judgment for the first plaintiff in the sum of $55,250.
Judgment for the second plaintiff in the sum of $429,944.09.
Order the defendant to pay the costs of the first and the second plaintiffs.
Should any party seek a variation of these orders, I grant liberty to apply on 3 days’ notice, noting that pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), the parties must seek variation within 14 days of these orders.