Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 - HCA 2016 case summary — Zoe

[17]

The flex plate was part of the helicopter's drive system which transferred torque from the helicopter's engine to the main rotor gearbox, which in turn drove the main rotor shaft, causing the rotor blades to rotate. The flex plate operated as a universal joint coupling between the clutch yoke and the drive shaft. Its function was to allow the main rotor shaft to be aligned at a different angle from the engine drive shaft. The flex plate was made of thin, flexible metal in the approximate shape of a four-pointed star. At each point of the star there was a bolt (also known as a fastener) with a washer and nut to secure the flex plate between the clutch yoke and the drive shaft.
The flex plate was required to withstand considerable stress. Other things being equal, it was capable of withstanding the stress as long as each of the four bolts was tightened to the requisite degree. If, however, a bolt were not sufficiently tightened, it was likely to rotate, place stress on the bolt hole and generate cracks in the flex plate. In order to guard against a bolt becoming loose, the Manual required that each bolt and nut of the flex plate be fitted with a secondary fastener, called a palnut. A bolt fitted with a palnut could not become loose without the palnut becoming loose. Consequently any observable movement in a palnut, or the absence of a palnut, served as an indicator of possible bolt rotation.
It is not disputed that the flex plate failed and the crash occurred because, contrary to instructions given in the Manual, one of the four bolts securing the flex plate ("Bolt 4") was incorrectly assembled and, when so assembled, was not tightened to the requisite degree ("the defect"). Robinson did not cause the defect and it was not known who did. There was evidence from which the judge inferred that Bolt 4 was not tightened to the requisite degree when the flex plate and associated parts were removed and reassembled on 17 February 2004. The focus of these proceedings, however, was not so much on when and how the defect arose as upon whether the Manual provided sufficient instruction to facilitate detection of the defect at subsequent inspections.

[22]

The judge found that the Manual required a torque stripe to be applied to each of the four flex plate bolts following fitting of the palnuts, but that it was probable that a torque stripe was not applied to Bolt 4 when it was incorrectly assembled. His Honour found in the alternative that, if a torque stripe were applied to Bolt 4 when it was incorrectly assembled, it was "quite unlikely" that it was applied to a dirty or greasy surface, and, therefore, quite unlikely that the bolt could have rotated without the stripe breaking and misaligning.
The judge held that the explanation given in the Manual of the function of torque stripes, coupled with the instruction given in the Manual to "verify security" of the flex plate during 100 hourly inspections, was sufficient to convey to a LAME carrying out a 100 hourly inspection that it was necessary to look for a torque stripe on each flex plate bolt and, if it were "missing, damaged, or incomplete"[5], to take steps to determine whether the bolt was correctly torqued, to re-torque the bolt, and then to apply a fresh torque stripe.
The judge found that it was probable that Bolt 4 commenced rotating relatively shortly after it was incorrectly assembled but that it did not fail until more than 100 hours of subsequent operation. Consequently, if a torque stripe were not applied to Bolt 4 when it was incorrectly assembled, the absence of the torque stripe should have been sufficient to indicate to a LAME, if competently carrying out a subsequent 100 hourly inspection, that it was necessary to take steps to check whether the bolt was correctly torqued.
In the alternative, the judge found that, if a torque stripe were applied when Bolt 4 was incorrectly assembled, the stripe would have broken and misaligned relatively shortly afterwards; that the consequent misalignment between the relevant vertical and horizontal sections of the stripe would have been visible during the following 100 hourly inspections; and that its appearance should therefore have been sufficient to indicate to a LAME competently carrying out the subsequent 100 hourly inspections that it was necessary to take steps to check whether the bolt was correctly torqued.
The judge also considered possibilities that if a torque stripe had been applied it might have been incompletely applied, or it might have been difficult to see (by which the judge should be understood to have been referring to the possibility of a deteriorated torque stripe). The judge held that those possibilities were not materially different from a missing or misaligned torque stripe, because all such possibilities would have indicated to a LAME the need to take steps to check whether the bolt was correctly torqued.
It followed, the judge held, that it was not established that the Manual was inadequate to address the risk of flex plate failure resulting from an inadequately torqued bolt.

[23]

The majority of the Court of Appeal, McMurdo P and Alan Wilson J, held that the judge erred in finding that it was probable that a torque stripe was not applied when Bolt 4 was incorrectly assembled. In their Honours' view, there was not sufficient evidence to support the finding. They also held that there was error in the judge's reasoning in what they conceived to be an inconsistency between the judge's conclusion that it was probable that a torque stripe was not applied when Bolt 4 was incorrectly assembled and the judge's observation later in his Honour's reasons that the weight to be attributed to certain of the evidence given by Mr Fisher and Mr Bray was diminished by the fact that, if they had examined Bolt 4 as part of those 100 hourly inspections, the condition of the torque stripe would have indicated that Bolt 4 had rotated.
McMurdo P stated that she did not consider that the judge was correct in limiting the range of possibilities to a missing or misaligned torque stripe. In her Honour's view, it was possible that, when Bolt 4 was incorrectly assembled, the torque stripe was applied to a dirty or greasy surface such that the section of the stripe applied to that surface was able to rotate with the bolt. On that basis, her Honour held that the Manual was defective in failing to make clear to LAMEs "verifying security in the context of a periodic service that a visual inspection of torque stripes may not be sufficient to indicate whether critical fasteners like bolt 4 were correctly assembled"[6]. McMurdo P also found that, if the Manual had contained an additional simple instruction to check the torque of critical fasteners like Bolt 4 with "a torque wrench or a simple spanner"[7], the LAMEs would have followed that instruction and inevitably detected movement in the incorrectly assembled Bolt 4.
Like McMurdo P, Alan Wilson J found it was possible that, if a torque stripe were applied to Bolt 4, it was incorrectly applied so as not to adhere to both the bolt and the fixed component, and therefore that the horizontal section of the torque stripe was able to rotate with the bolt. His Honour observed that it was also possible for a torque stripe otherwise to deteriorate due to ageing, fading or cracking, or by pieces chipping off, in a manner which would not necessarily indicate that "a defect"[8] existed.
Alan Wilson J rejected the possibility that failure to discover the defect might have been due to Mr Fisher or Mr Bray not sufficiently inspecting Bolt 4 at the two 100 hourly inspections immediately preceding the crash. His Honour considered that finding to be precluded by the absence of cross-examination of either man to the effect that he may have overlooked an absent or misaligned torque stripe.
Alan Wilson J held that, since the evidence of Mr Fisher and Mr Bray, and also the evidence of two pilots (Mr McKendry and Mr Lewis) who conducted the previously mentioned pre-flight checks of the helicopter not long before the crash, was that they could not recall seeing anything amiss, the only finding open to be made about the condition of the torque stripe on Bolt 4 at the relevant time was that, whatever its condition, it did not alert either Mr Fisher or Mr Bray or the pilots to the fact that Bolt 4 had lost torque and was rotating. In his Honour's view, it followed that a torque stripe was an inadequate means of guarding against bolt rotation.
On that basis, Alan Wilson J held that the Manual was defective in failing to warn that torque stripes were not an accurate indicator of loss of torque and in failing to state that bolt security "could only be confirmed by applying a torque wrench (with, or without, an adaptor tool) or, simply, a spanner"[9].
Alan Wilson J did not refer to the issue of causation as such, but, in view of the orders made by the Court of Appeal, it must be assumed that his Honour considered that it was the absence of such a warning from the Manual that caused the crash.
Like the judge, Holmes JA held it was likely either that there was no torque stripe present at the time of the 100 hourly inspections, or that there was a torque stripe present which was misaligned, incomplete or deteriorated.
Holmes JA found that, on the evidence, each of Mr Fisher and Mr Bray was at relevant times aware that, if he saw that there was no torque stripe on Bolt 4, or saw that there was a torque stripe which was misaligned, incomplete or deteriorated, he could have no confidence in the stripe as an indicator of bolt security, and that he would need to take action by checking that the bolt was tight - in Mr Fisher's case, with the use of a torque wrench and, in Mr Bray's case, with the use of a spanner. Her Honour reasoned accordingly that**[10]**:

[26]

Before this Court, Robinson contended that the majority of the Court of Appeal erred in rejecting the judge's finding that it was likely that there was no torque stripe on Bolt 4 when the two relevant 100 hourly inspections were carried out. In Robinson's submission, there was sufficient evidence to sustain that inference, comprised of the probability (which was not disputed) that Bolt 4 was incorrectly assembled on 17 February 2004; the further fact (which was also not disputed) that Bolt 4 was so misassembled as to be incapable of being torqued to the specified degree, and therefore was not torqued to the specified degree; uncontested expert opinion evidence that the usual and expected procedure to be followed upon installation of a bolt like Bolt 4 is to apply a torque wrench once it is assembled, torque the bolt to the specified setting, and then apply a torque stripe as an indication that the bolt has been so torqued; and uncontested expert opinion evidence that it was inconceivable that a competent LAME would put a torque stripe on an assembly that was not properly torqued.
Robinson also contended that the majority erred in overturning the judge's finding that, if a torque stripe were applied to Bolt 4, it was quite unlikely that it was applied to a dirty or greasy surface such that the bolt could rotate without breaking the stripe. In Robinson's submission, it was indicative of the error that neither McMurdo P nor Alan Wilson J dealt at all with the substantial reasons which the judge gave for rejecting that possibility as quite unlikely.
Robinson further contended that the majority erred in holding that, because the Manual did not specifically direct LAMEs to apply a torque wrench or spanner to Bolt 4 during 100 hourly inspections, Robinson had breached its duty of care to Mr McDermott. In Robinson's submission, the majority failed to take into account that the Manual directed LAMEs to "verify [the] security" of Bolt 4; that the evidence was clear that both Mr Fisher and Mr Bray knew that Bolt 4 had to be torqued to the specified degree; and that the evidence was also clear that both men knew that the way to ascertain whether Bolt 4 was torqued to the specified degree was with the use of a torque wrench.
Robinson complained that the majority failed to confront evidence that Robinson had considered the possibility of including an express instruction in the Manual that during 100 hourly inspections each of the flex plate bolts should be re-torqued with a torque wrench, but had rejected the idea because of countervailing risks which might have been created by such an instruction. In Robinson's submission, the majority thereby erred in failing to consider, for the purposes of s 9(1)(c) of the Civil Liability Act 2003 (Q), why it was reasonable for Robinson not to include an instruction to check the security of the bolts with a torque wrench.
Robinson argued that the majority erred, too, insofar as they based their reasoning on evidence that another manufacturer of helicopters included an instruction in its service manual to check torque with a torque wrench during 100 hourly inspections. In Robinson's submission, the comparison was erroneous because it was made without reference to, and in disregard of, evidence that the other manufacturer's helicopter was of a different, older design, which employed older fastener technology, and so had maintenance requirements which were significantly different from the maintenance requirements of a Robinson R22 helicopter.
Finally, Robinson contended that the majority erred in concluding, without appropriate analysis of the evidence and without reference to Robinson's detailed submissions as to the lack of proof of causation, that the omission from the Manual of an express instruction to check the torque of the flex plate bolts with a torque wrench during 100 hourly inspections caused the helicopter to crash. In Robinson's submission, the judge was correct to find that the most likely cause of the crash was that Mr Fisher and Mr Bray failed to inspect Bolt 4 in the manner which both men knew to be required by the Manual.

[38]

Contrary also to the reasoning of the majority of the Court of Appeal, it was open to the judge to find, as his Honour did in the alternative, that if a torque stripe were applied when Bolt 4 was incorrectly assembled, the torque stripe would likely have misaligned a relatively short time after misassembly when the bolt (and thus the vertical section of the stripe) began to rotate relative to the horizontal surface; and thus that it would have been apparent to a LAME carrying out a subsequent 100 hourly inspection in accordance with the Manual that Bolt 4 was rotating, or at least that further investigation was required to exclude the possibility that it was rotating.
Certainly, as the majority of the Court of Appeal observed, there was evidence that torque stripes can and sometimes do deteriorate in a manner that is not necessarily indicative of a loss of torque. But, even so, as the judge found, the fact that the Manual identified the role of a torque stripe on a critical fastener, coupled with the instruction to "verify security" of the flex plate, was sufficient to convey to a LAME carrying out a 100 hourly inspection that it was necessary to look for a torque stripe on each critical fastener and, if it were missing, damaged (whether by misalignment or deterioration) or incomplete, to take steps to verify that the torque was as specified and then to reapply the torque stripe.
That conclusion was borne out by Mr Fisher and Mr Bray's evidence. Mr Fisher said that, as a LAME, he had seen many torque stripes and that they varied a lot, and that if he saw a deteriorated torque stripe after 50 or 100 hours of operation, "you would have to check the torque of the bolt, put the palnut back on, retorque stripe it". Mr Bray said that, in his experience, "[t]he torque stripe can come off", although they did not do so normally, and that if a torque stripe were missing on a critical fastener "you would probably remove the bolt ... and inspect the area, make sure it was all correct, and torque the bolt up again". He added that, if a torque stripe were deteriorated, but not broken, "it shouldn't be a problem but you would still check the torque on that bolt if it was the critical part".
There was also expert opinion evidence to the same effect given by Dr Orloff, Mr Lay and Mr Ogier. Dr Orloff was a highly qualified aeronautical engineer who had worked for more than 13 years for the National Aeronautics and Space Administration (NASA) in the area of low-speed aircraft research. He was also a pilot with approximately 8,000 hours of flying time on both fixed wing and helicopter aircraft and he held a flight instructor's certificate for instructing in helicopters as well as a number of fixed wing ratings up to airline transport pilot. He had obtained his airframe and power plant mechanic's licence in 1979 and, in 1982, he had obtained the United States equivalent of the LAME qualification. At the time of the trial he remained active in the servicing and repair of fixed wing and helicopter aircraft. He gave evidence that it was standard practice in the industry for a mechanic to assemble something and, in doing so, to torque each thing in the correct order before applying the torque stripe to indicate that the specified torque had been achieved. He said that there was also an industry standard practice to investigate further if a torque stripe is missing, misaligned or cracked. On the subject of deterioration, he said that if a torque stripe is discoloured from age but it is perfectly intact and it appears to be adhering to the surface, it may be assumed that "everything is fine". But he said that if parts of the torque stripe had chipped or broken away due to age, "I would remove it, ... verify the torque, I would make sure the junction is okay, I would look at the parts and make sure they're all right, not cracked, not deteriorated themselves", and that "[i]t is basically industry standard practice on torque striping to do what I've just told you".
Mr Lay was an airframe and power plant mechanic who had also obtained the United States equivalent of the LAME qualification. He too was a helicopter pilot and had been so since war service in Vietnam. He said that from time to time in his experience in servicing helicopters, including Robinson R22 helicopters, he saw torque stripes that had deteriorated to some extent and he said that, if a torque stripe were broken, it was an alert to investigate further in order to determine why it is broken, especially where misaligned. If it looked to him like the torque stripe had cracked or broken on the bolt, he said he "would just remove the palnut and check the torque and then reapply the torque striping". If it looked to him like the torque stripe was missing, he agreed that would also be "an alert".
Mr Ogier, who was a LAME from the early 1960s until the early 1980s, said that, based on prior industry knowledge, it would cause him concern if there were no torque stripe at all because "[o]n a Robinson helicopter ... that's the methods [sic] used".
Just as significantly, none of the witnesses suggested that it would ever be appropriate for a LAME to ignore an absent, broken, incomplete or deteriorated torque stripe.
Contrary, too, to the majority's reasoning, the judge's finding - that, if a torque stripe were applied, the condition of the torque stripe, whether missing, damaged or incomplete, would have been adequate to alert a LAME to the need for further investigation - was not foreclosed by the fact that it was not put to Mr Fisher or Mr Bray in cross-examination that he had not adequately inspected Bolt 4. As Holmes JA reasoned, since it was alleged by Robinson and admitted by Mr McDermott that each man did not properly examine for and identify the defect**[18]; since each man professed a lack of specific recollection of having carried out the relevant 100 hourly inspection[19]**; and since Mr Fisher admitted that, although he would like to think it was not the case, it was possible that he had missed some telltale sign, there was nothing more which needed to be put to either witness. It was open to conclude that both of them may have done less than they should.
Alan Wilson J characterised Mr Fisher's admission - that it was possible that some telltale sign was missed - as "nothing more than an acknowledgement of human fallibility by an, otherwise, apparently honest witness"[20]. But the meaning to be attributed to an admission of that kind depends as much on the way it is stated as on its content; and, in this case, the judge had the significant advantage of seeing and hearing Mr Fisher make the admission**[21]**. The majority appear to have overlooked that advantage. Moreover, at an objective level, if the admission really were as anodyne as Alan Wilson J suggested, it is remarkable that Mr Fisher was not moved to say something further to the effect that, although anything was possible, he invariably took so much care in carrying out critical work like a 100 hourly inspection that he was confident that nothing was missed. To the contrary, however, although the Manual specifically required that the 100 hourly inspection be carried out "per Section 2.410" and directed the person performing the inspection to "[u]se checklist in Section 2.420 to ensure all items are complete" (the check list included more than 180 individual checks and processes), Mr Fisher agreed in cross-examination that he "didn't necessarily refer to the checklist because this was something that [he] knew", and similarly, he "wouldn't necessarily refer to the Maintenance Manual itself because [he] understood what was required". His practice was to complete the paperwork "at the end of the completion of the work" so as "not to interrupt the workflow".
In sum, the evidence supported an interpretation of Mr Fisher's admission as a genuine concession that he might have missed a significant telltale sign in the course of his 100 hourly inspection of the helicopter.

[39]

The majority of the Court of Appeal did not refer to the judge's reasons for rejecting as quite unlikely the possibility that, if a torque stripe were applied to Bolt 4, it was applied to a dirty or greasy surface which enabled the bolt to rotate without misalignment of the stripe, and that, if it were, the stripe would have remained intact and, as it were, floating above the surface after 100 hours of the helicopter's operation. Nor did the majority give any reasons of their own for finding that the application of a torque stripe to a dirty or greasy surface was a realistic possibility, or that, if it were so applied, the stripe was likely to have remained intact, floating above the surface, after more than 100 hours of the helicopter's operation. In those respects their Honours did not give the respect and weight to the judge's analysis of the issue which it deserved**[22]**.
The trial lasted for five weeks, during which close to 20 witnesses gave oral evidence. The judge alone had the opportunity of hearing and seeing those witnesses giving their evidence. There were also a very large number of exhibits, including physical exhibits and extensive documentary exhibits, which only the judge had the opportunity to read and consider completely. The judge had the unique benefit of a viewing of two helicopters of the kind which crashed. And the judge alone had the opportunity to consider all of the evidence in its totality and to reflect at length upon its interaction.
As the judge observed, only one of the expert witnesses referred to the possibility of a torque stripe being applied to a dirty or greasy surface. That was Mr Ogier, who had not practised as a LAME in approximately 30 years and had no experience in the servicing of Robinson R22 helicopters. Mr McDermott did not cross-examine any of the other expert witnesses as to whether he agreed it was a possibility. It was also unclear what Mr Ogier conceived would be the result of such a possibility. In his report of 25 August 2012, Mr Ogier said that:

[45]

Counsel for Mr McDermott contended that it was apparent from the evidence of one of the helicopter pilots, Mr McKendry, who carried out pre-flight checks and flew the helicopter shortly before the flight on which it crashed, that the condition of the torque stripe on Bolt 4 was not sufficient to warn of the possibility that Bolt 4 was rotating. The evidence of the other pilot who flew the helicopter during the relevant period was that he did not look for torque stripes.
Although Mr McKendry had no specific recollection of carrying out the pre-flight checks in question, he stated that his usual practice was to use a light and a mirror to look for the presence of palnuts and to observe the condition of the torque stripes, and, if he observed a broken torque stripe, to report it to a LAME. Counsel for Mr McDermott submitted that, since it was apparent that the judge had accepted Mr McKendry as a credible and reliable witness concerning his usual practice for the inspection of palnuts, it would be illogical for the judge not also to accept Mr McKendry as a credible and reliable witness concerning his usual practice for the inspection of torque stripes. In counsel's submission, it followed that the judge should have found it was probable that, whatever the condition of the torque stripe on Bolt 4 when Mr McKendry inspected it, it was incapable of indicating that Bolt 4 was or might be rotating. And, in counsel's submission, when that evidence was combined with Mr Fisher and Mr Bray's testimony of their usual practices during a 100 hourly inspection, and with the expert evidence of the many ways in which torque stripes may deteriorate in service without necessarily signifying bolt rotation, it appeared probable, and the judge should logically have inferred, that when Mr Fisher and Mr Bray inspected Bolt 4 during the 100 hourly inspections preceding the crash, the condition of the torque stripe was equally incapable of indicating that Bolt 4 was or might be rotating.
Those submissions should be rejected. The judge did not specifically refer to Mr McKendry's evidence of his usual practice of looking for broken torque stripes. But, in dealing with whether it was likely that a palnut had been fitted to Bolt 4, his Honour said that it appeared to him that it would be easier for a pilot to detect a missing palnut than to detect a crack in, or misalignment of, a torque stripe. Hence, his Honour accepted that, if the palnut were missing, it was likely that Mr McKendry would have discovered that it was missing. By contrast, it appears implicit in his Honour's reasoning that, because it was harder for a pilot to detect a crack in, or misalignment of, a torque stripe than to detect a missing palnut, his Honour did not accept that Mr McKendry would necessarily have observed a misaligned torque stripe. And the likelihood of that being so is fortified by the judge's further observation, later in his reasons, that "the failure of a pilot to detect that [the torque stripe] was broken (or, perhaps, missing) does not demonstrate inadequacy in the inspection carried out by the pilot"[23].
Just as importantly, whether or not Mr McKendry should be taken to have looked for a broken torque stripe, there was no evidence that he would have looked for a missing torque stripe, still less that he did so during the pre-flight checks in question. Nor was there evidence as to what significance he might have attributed to a missing torque stripe if he had observed one to be missing. And as has been seen, it is more likely that a torque stripe was not applied to Bolt 4 and so was missing at the time of the pre-flight checks than that one was present and misaligned. It is true, as counsel for Mr McDermott submitted, that Mr McKendry was not cross-examined as to whether he would have attributed any significance to a missing torque stripe. But it was not for Robinson to establish that he would or would not have attributed any significance to it. It was for Mr McDermott to exclude the possibility that he may not have considered it to be significant**[24]**.

[65]

On the assumption that it was a realistic possibility that a torque stripe was incomplete or applied to a dirty or greasy surface in a manner that permitted the horizontal section of the stripe to rotate with the bolt and thereby create a deceptive appearance of bolt security, it might have been concluded that Robinson owed a duty of care to take reasonable care to avoid that risk eventuating. It might also have been considered that Robinson breached its duty of care by failing to include a direction in the Manual that flex plate bolts be checked with a torque wrench at each 100 hourly inspection. But, since the Manual was adequate to cover possibilities (1), (2) and (4), and it was not established that possibility (3) was any more likely to have occurred than any of the other possibilities, it could not be concluded that the breach of duty in failing to provide for possibility (3) was causative of the crash**[28]**.
Counsel for Mr McDermott argued to the contrary that, if there had been a requirement in the Manual to verify the torque of the flex plate bolts with a torque wrench during 100 hourly inspections, it was probable that that requirement would have been complied with. Thus, regardless of which of possibilities (1) to (4) in fact occurred, it was apparent that it was Robinson's breach of duty in failing to require that the bolts be re-torqued which caused the crash.
That argument should be rejected. Essentially, it amounts to saying that, if a manufacturer recommends a simple procedure adequate for detection of a fault that in fact occurs, but does not recommend a more sophisticated procedure necessary to detect not only the fault that in fact occurs but also another fault that was a foreseeable possibility but that did not in fact occur, and, as a result of the user failing to adhere to the recommended procedure, the fault that in fact occurs is not detected, the manufacturer should nonetheless be held liable to the user for the consequences of the user's failure to discover the fault that in fact occurs. The logic of that is hardly self-evident.
Conceivably, if a manufacturer recommended the more sophisticated procedure, the user might be more likely to follow the sophisticated procedure than the recommended procedure, possibly because the recommendation of the more sophisticated procedure may heighten the user's appreciation of the potential risks of failing to do what was recommended. On that basis, it might be conjectured that, because of the manufacturer's failure to recommend the more sophisticated procedure, the user would be deprived of a chance of avoiding the damage that the recommendation of the more sophisticated procedure may have avoided. But, in this case, there are at least two reasons why an argument of that kind is bound to fail.
First, at the level of principle, this Court has set its face against recovery of loss of a chance in the law of negligence relating to personal injuries**[29]. Although proof of causation may sometimes entail the robust, pragmatic drawing of inferences[30], especially where there are a number of possible causes and there is difficulty in ascertaining which of them was the cause of damage suffered[31], proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered[32]**.
Secondly, at a factual level, such evidence as there was on the matter pointed against the likelihood that Mr Fisher and Mr Bray would have been any more assiduous in adhering to a recommendation that they check the torque of the bolts with a torque wrench than they were in examining the torque stripes in accordance with the Manual. Although each of them gave evidence that he was familiar with the Manual, and that he followed it, both of them said that they did so without necessarily looking at the Manual and Mr Fisher said that he did not make use of the check list. Neither of them said that he would have been any more likely to adhere to a recommendation that he check the bolts with a torque wrench than he was likely to conduct a thorough examination of the torque stripes for indications of possible bolt rotation.

At a glance

Court

Decision date

Before

Source

Judgment (317 paragraphs)

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 (8 June 2016)

Parties

Legislation Cited (7)

Cases Cited (30)