- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
St Clair v Timtalla Pty Ltd & Anor  QSC 296
ARCHIE STEPHEN ST CLAIR
TIMTALLA PTY LTD
AVAID PTY LTD (UNDER EXTERNAL ADMINISTRATION)
MALEBA OPERATIONS PTY LTD
AVSERVE PTY LTD (UNDER EXTERNAL ADMINISTRATION)
AIRCRAFT TECHNICIANS OF AUSTRALIA PTY LTD
BS5637 of 1996
Supreme Court at Brisbane
20 August 2010
8-12, 15-18 March, final submission 15 April 2010
AVIATION – REGULATION OF AIR NAVIGATION – BREACH OF REGULATIONS – OTHER MATTERS – where there was a breach of rr 42V, 42W and 42ZE of the Civil Aviation Regulations 1988 (Cth) by the fifth defendant – whether these breaches are further evidence of the negligence of the first defendant
EVIDENCE – WITNESSES – IN GENERAL – where the defendants failed to call a witness – whether an inference could be drawn in favour of the plaintiff
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – OTHER CASES – where the plaintiff sustained personal injuries in a helicopter accident in – where the plaintiff did not keep an accurate pilot logbook in accordance with the Civil Aviation Regulations 1988 (Cth) – where the upper actuator bearing failed – where the plaintiff attempted autorotation – whether the plaintiff was flying too close to the ground – whether the plaintiff failed to employ the correct technique for autorotation – whether the plaintiff failed to accurately record the flying hours of the helicopter
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the plaintiff sustained personal injuries in a helicopter accident in 1994 – where the upper actuator bearing failed – where the helicopter was owned by the first defendant and leased to the plaintiff – where the second defendant had serviced the helicopter – where the first defendant and second defendant had the same directors at the material time – where the first defendant owned all the shares in the second defendant – whether the second defendant was the agent of the first defendant – whether the first defendant had a non-delegable duty of care to the plaintiff
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the plaintiff sustained personal injuries in a helicopter accident in 1994 – where the upper actuator bearing failed – where the helicopter was owned by the first defendant and leased to the plaintiff – where the fifth defendant had serviced the helicopter at various times – whether the fifth defendant was liable for the plaintiff’s injuries
TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – OTHER CASES – where the plaintiff sustained personal injuries in a helicopter accident in 1994 – where the upper actuator bearing failed – where the failed bearing was an NTN bearing – whether a Robinson bearing should have been installed – whether the failed bearing was in place when the helicopter was provided to the plaintiff in November 1992
Civil Aviation Act 1988 (Cth)
Civil Aviation Regulations 1988 (Cth)
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Commonwealth v Introvigne (1982) 150 CLR 258
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fabre v Arenales (1992) 27 NSWLR 437
Fitzgerald v Hill (2008) 51 MVR 55
Ghazal v GIO (NSW) (1992) 29 NSWLR 336
Goode v Thompson  2 Qd R 572
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667
Jones v Dunkel (1959) 101 CLR 298
Kennedy v de Trafford  AC 180
Kondis v State Transport Authority (1984) 154 CLR 672
Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23
Morris v C W Martin & Sons Ltd  1 QB 716
O’Brien v Chief Constable of South Wales Police  2 AC 534
Payne v Parker (1976) 1 NSWLR 191
Scott v Davis (2000) 204 CLR 333
Stoneman v Lyons (1975) 133 CLR 550
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Watson v George (1953) 89 CLR 409
Winterton v Mercantile Mutual Insurance (Australia) Ltd  QCA 249
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
J A Griffin QC and G M Egan for the applicant
P Axelrod for the respondents
Cleary & Lee for the applicant
CLS Lawyers for the respondents
- On 21 June 1994 the plaintiff had been mustering cattle by helicopter at Curtin Springs Station in the Northern Territory. Shortly after lunch on that day he and his wife set off on a flight from Curtin Springs Station to Alice Springs in a Robinson R22 helicopter. The plaintiff was the pilot. While passing over Hanbury Station he noticed some cattle in an unusual area and descended from 700 feet to about 100 feet above ground so that he could check on their condition.
- After inspecting them briefly, the plaintiff caused the helicopter to climb. At about 200 feet above ground the plaintiff heard a very loud noise and the helicopter lost power. He attempted to achieve autorotation (a means by which a helicopter may be landed safely in the event of complete engine failure) but failed.
- The helicopter did not land safely and, as a result, the plaintiff suffered severe personal injuries for which he now seeks damages.
- The helicopter was owned by the first defendant (“Timtalla”) which had leased it to The Shankman Pty Ltd (“Shankman”) for an indefinite period from January 1994. Shankman was a company which was controlled by the plaintiff and which had employed the plaintiff as, among other things, a contract mustering helicopter pilot.
- The fifth defendant (“ATA”) is a company which had serviced the helicopter at various times.
- The plaintiff has discontinued against the second, third and fourth defendants.
- It is accepted that:
- the immediate cause of the helicopter losing power was the failure of the upper actuator bearing, and
- that the bearing which failed was an NTN bearing not a Robinson approved bearing.
- The following major issues arise:
- First, when was the bearing which failed installed?
- Secondly, why did the bearing fail?
- Thirdly, is Timtalla responsible for the installation of the NTN bearing?
- Fourthly, was ATA negligent in its servicing of the helicopter after Shankman took possession of it? And
- Fifthly, did the actions of the plaintiff immediately after the helicopter lost power contribute to the accident?
- So far as Timtalla is concerned the plaintiff accepts that he has to demonstrate that the NTN bearing was in place when the helicopter came into the possession of Shankman. With respect to ATA, the plaintiff accepts that he has to prove that the bearing was in place when Darren Fisher serviced the helicopter in 1993.
- While the defendants accept that the plaintiff was badly injured, the extent and consequences of those injuries are in dispute.
- The helicopter the subject of this action was a Robinson R22 manufactured by the Robinson Helicopter Company in the United States of America. It is one of the most common models of rotary wing aircraft on the Australian register and is frequently used for aerial mustering. The aircraft is relatively light and seats two people.
- As with all aircraft, proper maintenance is an essential element of safe operation. The Robinson maintenance manual for the R22 contained a number of warnings including the following in the section on the drive train:
The A647-4 bearing in the A184-3 upper bearing assembly has modif-ied internal clearance by RHC.
DO NOT SUBSTITUTE
- The “upper bearing assembly” includes the actuator bearing. Thus, the warning at s 2.140 of the Maintenance Manual is relevant:
“The failure of either of the actuator bearings in flight could cause loss of power to the rotor system and could result in a serious accident.”
- The upper actuator bearing is located on the clutch shaft. The manual notes that the first indication of an impending bearing failure is usually a noticeable increase in bearing noise. It says that the noise will almost always start at least several hours before the bearing actually fails and long before there is any increase in the bearing temperature.
- At s 1.001 of the manual there is a legend which explains the meaning of notes contained throughout the manual. The presence of the heading “WARNING” indicates “an operation, practice, procedure, etc that, when not correctly followed, could result in personal injury or loss of life”.
- The R22 had been manufactured in such a way that it required a particular type of special bearing with a modified internal clearance.
- In January 1994 the helicopter was hired to Shankman by Timtalla for use in helicopter mustering by the plaintiff. The hiring was for an indeterminate period.
- Both the bearing prescribed by Robinson and the bearing which was actually installed in the helicopter were sealed bearings. Sealed bearings are, as their name suggests, not intended to be dismantled in order that they might be lubricated. At the time of the accident it appears to have been the view of Robinson that the sealed bearing it prescribed would not need to be serviced between the ordinary service intervals for the aircraft. There was evidence that, some time following the accident, Robinson changed its procedures and provided both minor equipment and instructions on how the sealed bearing might be lubricated between particular types of service.
- In June 1994 the plaintiff had, through Shankman, been engaged as a contract aerial musterer in the Northern Territory for some time. On 21 June 1994 he had been mustering at Curtin Springs Station. After concluding the work for that day, he and his then wife commenced the return journey from Curtin Springs Station to Alice Springs. In doing that, the helicopter passed over Hanbury Station. The plaintiff had mustered there on previous occasions and he noticed that there were some cattle gathered in an area of the property where they would not ordinarily be expected to be found. The plaintiff was concerned that the cattle might have been there because of a broken fence or an open gate and he caused the helicopter to descend from about 700 feet to about 100 feet above ground in order that he could inspect them. It was, he said, the same sort of descent as would be undertaken if he was simply landing the helicopter. He stayed at the height of about 100 feet above ground for a very short period of time and then, having satisfied himself as to the condition of the cattle, commenced to ascend. He climbed to about 200 or 250 feet (at which time the helicopter was doing 65 to 70 knots) when he heard a loud bang and the craft immediately lost rotor RPM, that is, power. He said he dropped the collective, pushed the cyclic forward, kept the pedals in and the throttle on in an attempt to engage in the action of autorotation.
- Autorotation is the phenomenon which results in the rotation of, and lift generated by, a primary rotor through purely aerodynamic forces under certain conditions. Autorotation involves the balance of opposing aerodynamic forces along the rotor’s blades. Autorotation of the main rotor in helicopters allows a controlled descent to an emergency landing in the case of a failure of the engine. It depends on the maintenance of air velocity through the rotor and during an emergency autorotation manoeuvre this air speed is provided by the helicopter’s descent.
- The plaintiff referred, in his evidence, to manipulating the cyclic and the collective. In a Robinson R22, unlike many other helicopters, there is a teetering bar cyclic control system. The control is called the cyclic because it changes the pitch of the rotor blades cyclically, that is, the pitch or feathering angle of the rotor blades changes depending upon their position as they rotate around the hub so that all the blades will change their angle by the same amount at the same point in the cycle. The collective changes the pitch angle of all the main rotor blades collectively, that is, all at the same time and independent of their position.
- The plaintiff’s attempts to achieve autorotation were not successful. The helicopter landed in an upright position but with such force that the injuries of which he complains were suffered.
Was the bearing in place when the helicopter was handed over?
- The NTN bearing which was in place was not a bearing approved by the manufacturer. There is no direct evidence as to how the NTN bearing came to have been installed. The plaintiff contends that an inference can be drawn from contemporary circumstances that it must have been installed before the helicopter was handed over to him.
- There are two matters which it is appropriate to note at this point. First, the relevant events occurred more than 16 years ago. It would be surprising if anyone had a reliable memory of what occurred so far as the upper actuator bearing of that helicopter was concerned. There are records of servicing which are of limited assistance as they are little more than what they should be – a brief statement of the work done. I have borne in mind the inevitable deterioration of the witnesses’ memories brought about by the elapse of time when considering their evidence.
- Secondly, notwithstanding their written submissions, the defendants did not plead that the plaintiff installed or caused to be installed the NTN bearing. While they argued in their written submissions that a finding to that effect could be made, the case was not conducted on that basis and, indeed, Mr Axelrod disavowed any intention of doing that during his cross-examination of the plaintiff. On the case that was pleaded and conducted the NTN bearing must have been:
- in place when the helicopter was handed over; or
- installed by someone other than the plaintiff during the period it was in the plaintiff’s possession.
- What relevant work, then, was performed on the helicopter before January 1994? The recorded history of that work is contained with the helicopter’s aircraft maintenance logbook.
- In November 1992 Gary Avey was working for Choppercare Pty Ltd, a company which, at the time, was controlled by the directors of Timtalla and which later became Avaid Pty Ltd (the second defendant). In that month, he installed an upper clutch assembly in the helicopter. At that time the helicopter was in north Queensland and Avey took the clutch assembly with him when he travelled there to work on both the helicopter and other aircraft. It is no criticism of Mr Avey to say that his memory of the work he did was prompted almost entirely by documents he had been shown prior to giving evidence. One would not expect anything more about what would have been routine work performed on 13 November 1992. He relied on a requisition form for a part number which coincided with the Robinson clutch assembly to support the contention that he installed a Robinson bearing. The requisition form, though, is dated 14 November 1992, the day after he performed the work. He agreed that it would be very odd for a requisition form to be filled out for a part that had been installed earlier. This is an example of the difficulties faced by both parties in attempting to establish what occurred nearly two decades ago by reliance upon the patchy memory of witnesses and documents which relate to mundane activities.
- The logbook records that maintenance and other work was carried out on the helicopter in January and March 1993. A 100-hourly service was performed in April 1993 by Peter Tonycliffe, a Licensed Aircraft Maintenance Engineer (“LAME”). Part of the maintenance logbook record reads: “Inspection of upper and lower clutch bearings. Was carried out for condition and grease content.” A further note on the worksheet relating to the service records: “Re-grease upper and lower bearings – bearings found in good condition. Repacked with new grease.” The relevance of that note is that, at the time, Robinson did not allow for regreasing of the sealed bearing and the NTN bearing, which was also a sealed bearing, would not ordinarily be expected to be re-greased. It became clear during the evidence that the sealed bearings used in helicopters of this type which were being used in the outback were not standing up to the wear being imposed on them in the sense that the grease was drying out. This came about because the persons maintaining the helicopters found that the bearings, both Robinson and NTN, were not infrequently re-greased in the field. Unlike a bearing which contains a grease nipple or some other means of injecting grease, both the Robinson and NTN bearings were sealed and so both the bearings had to have their seals disturbed in order that they might be re-greased.
- In June 1993 another 100-hourly service was carried out by the fifth defendant.
- In July 1993 other work was carried out which has no relevance to this matter. Later in that same month a further 100-hourly service was undertaken with Darren Fisher, a LAME, performing the work. The worksheet discloses that he noted: “Upper sheave worn out. Replaced with serviceable sheave.” In performing that work Mr Fisher took the bearing off the clutch shaft and cleaned and re-greased it. The outer race retaining the nuts on the bearing was removed to facilitate the seal removal. The plaintiff points to this and says that Mr Fisher ought to have realised then that the bearing was not a Robinson specified bearing or, at least, he should have checked whether the bearing was one which was permitted. Mr Fisher went on to say that from the time he started work at Choppercare and then with the fifth defendant it was the practice to lubricate the upper actuator bearing and that one could do this by removing the seal carefully and then replacing it.
- In September 1993 Mr Fisher conducted another 100-hourly service and inspected and re-greased the upper and lower bearings. The final service before handover was in November 1993. It was a 100-hourly service but the work performed was of no significance to this case.
- The plaintiff also relied upon evidence which emerged during the trial that concerned the installation of a “non-genuine” bearing on another helicopter. The defendants had called David Chadbourne, an airworthiness inspector with the Civil Aviation Safety Authority. He was required, as part of his duties, to investigate the accident in which the plaintiff was injured. During cross-examination he was asked if there was any evidence of Choppercare having replaced a bearing on an R22 with a non-Robinson approved bearing. He said: “There was one from Hotel Romeo Uniform. There was an ARC [Authorised Release Certificate] there supplied for an equivalent lower clutch bearing that was found to be a non-genuine bearing.” There had been no indication that he would give such specific evidence. Mr Griffin QC asked him to undertake some investigations of that matter – which he did – and he was recalled.
- Mr Chadbourne’s evidence was that in November 1992 a clutch assembly was installed into a Robinson R22 registration number VH-HRU at Caloundra by Choppercare. As a result of the accident there was a general alert published with respect to the Robinson R22, and as a result, many of those types of aircraft were checked. In 1994, some short time after the accident, VH-HRU was found to have an NTN bearing installed in the lower clutch assembly. That was discovered, though, after some 767 hours of operation by VH-HRU. The plaintiff submitted that this discovery supported the conclusion they contended for, namely, that a non-genuine bearing had been installed into the helicopter. This was possible, it was said, because there had been a non-genuine bearing installed in VH-HRU nine days before a new clutch assembly had been installed in the helicopter. In both cases the supporting documentary evidence could be construed as showing that the entire clutch assembly was Robinson approved. The evidence as to the VH-HRU installation thus goes to the issue of whether, as a matter of fact, Mr Avey installed an NTN bearing as part of the clutch assembly he installed into the helicopter on 14 November 1992.
- The defendants objected to the receipt of this evidence on the basis of a lack of relevance. The plaintiff did not categorise the nature of this evidence upon which he sought to rely. It could, I expect, be regarded as either circumstantial evidence or evidence of similar fact. With respect to the admissibility of this type of evidence, the modern cases support the view that the essential criterion for admissibility is relevance. It has been the subject of discussion in cases such as Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23; H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667; and O’Brien v Chief Constable of South Wales Police  2 AC 534.
- While this evidence was admitted, I did so on the basis that I would rule later on its weight and relevance. The plaintiff argues that it is relevant because there is a similarity of events, namely, that the paperwork associated with the installation of the clutch assembly would lead a reader to believe that genuine parts were installed, but the discovery later of a non-genuine part leads to the inference that the paperwork did not accurately reflect the true circumstances of the installation. The plaintiff also points to the proximity in time of the two relevant clutch installations. The evidence, though, relating to VH-HRU does not have the probative force which would be necessary for it to be supportive of the plaintiff’s case. All that is known is that VH-HRU had a new clutch assembly installed in November 1992, that the paperwork with respect to that installation would indicate that genuine parts were used, and that after some 767 hours of flying the aircraft was found to have a non-genuine lower clutch actuator bearing. There was no evidence which would tend to show that there was no possibility that a genuine clutch had been replaced by a non-genuine clutch during the 767 hours of flying. The evidence from Mr Chadbourne on this point has little weight and I do not rely on it.
- The defendants, in their submissions, raised the question of whether the NTN bearing was installed at some time after the helicopter was serviced in November 1993. They make the point that it is very difficult to determine how many hours had been flown by the helicopter after it was handed over to Shankman, as the plaintiff had not kept an accurate logbook. I will deal with this matter when I consider the plaintiff’s credit, but, on this point, it is of little relevance. What is more important is what was done and seen by those who serviced the helicopter in the six month period after Shankman took possession of it.
- In April 1994 Jeremy Smith, a LAME, performed a 100-hourly service on the helicopter. He was, coincidentally, the person who discovered that there was a non-genuine lower actuator bearing on VH-HRU. The defendants rely on his evidence as supporting a conclusion that, when he undertook the servicing, there was a Robinson approved bearing in place. His evidence did not go that far. The service he conducted required him to complete a wide range of check activities and although he had to inspect the bearing he did not have to remove or grease it. There was evidence, which I accept, that the bearing contained an indication on its seals of its manufacturing origin. There was evidence that those seals would, through use of a helicopter, become covered with grease and dirt and would make identification of the imprint on the seals difficult. He did not, and I would have been surprised if he had, confirm that during the service he positively identified the bearing as a Robinson approved bearing. This servicing occurred, after all, 16 years before he gave his evidence and his memory was, I am satisfied, largely based on the notes made in the logbook by him at the time. They made no mention of the bearing. He had no particular reason to take any more notice of the bearing than any other part and he did not give any evidence about how he might have detected a non-genuine bearing. This is in contrast with his discovery of the non-genuine bearing in VH‑HRU – this occurred as a result of a CASA directive when he was specifically inspecting VH-HRU for that purpose.
- The evidence with respect to the installation of an upper actuator bearing in the helicopter was confined to the installation which took place in November 1992. There was no evidence that the bearing had been replaced after that time. There was evidence that the clutch assembly is routinely replaced after 2,000 hours unless there are other problems which occur. In the absence of any evidence suggesting that any replacement bearing was installed after November 1992 and notwithstanding the documents relating to the issue of genuine parts in November 1992, I have come to the conclusion that the plaintiff has established that it was more likely than not that the NTN bearing was installed in the helicopter in November 1992.
Robert McMillan, Chief Engineer
- Robert McMillan was the Chief Engineer of Choppercare from the late 1980s until about April 1993. During that time he reported to Mr Costa and Mr Webb, the directors of both Timtalla and Choppercare. He currently conducts a business at Caloundra. He was referred to in the evidence of some of the witnesses. For example, when it was put to Mr Webb that Mr McMillan could have purchased NTN bearings for use in the helicopters provided by Timtalla, Mr Webb responded: “I guess you would have to ask Bob McMillan that.”
- The plaintiff submits that I should draw an adverse inference against the defendants for their failure to call Mr McMillan to give evidence and relies upon the reasons in Jones v Dunkel (1959) 101 CLR 298 in support.
- The principle enunciated in Jones v Dunkel is concerned with the drawing of inferences in the course of the fact-finding process (Fabre v Arenales (1992) 27 NSWLR 437 at 444). In Fabre, Mahoney JA said:
“The ordinary inference of fact is generally of the form: ‘Because facts A, B, and C exist, I infer that fact Z exists, existed or will exist.’ Two questions arise in relation to such an inference process: whether the inference can be drawn; and whether (if it can) it should be drawn … Some inferences cannot properly be drawn: they may be, for example, illogical, irrational, insupportable in fact, or otherwise unacceptable. But the Jones v Dunkel principle is not concerned with whether a particular inference of fact can be drawn. It is concerned with whether it should be drawn in the particular case.”
- The failure to call a witness is a factor which can be called in favour of drawing a particular inference which is otherwise open from the proved facts. In Jones v Dunkel Menzies J said (at 312):
“In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
- In this case, Mr McMillan was in a position, as Chief Engineer, to give evidence as to the practice of Choppercare and Timtalla with respect to the maintenance of their helicopters. It is reasonable to infer that he could have given evidence relating to the practice pursued by those companies with respect to the ordering and installation of spare parts.
- During the hearing of this matter Mr Axelrod argued that Mr McMillan could have been called to give evidence by the plaintiff. That is, with respect, a surprising submission. Mr McMillan had been the employee in a senior position with the defendants. There was nothing to suggest that he was unavailable, or that he was likely to be friendly to the interests of the plaintiff, or that he had a reason for not telling the truth or refusing to assist, or that he could not have given evidence on the matter in issue. See Fabre at 450, Ghazal v GIO (NSW) (1992) 29 NSWLR 336 at 343, and Payne v Parker (1976) 1 NSWLR 191 at 201.
- The failure to call Mr McMillan is, in my opinion, a factor in favour of drawing the inference that I have set out above, namely, that the NTN bearing was installed in the helicopter prior to it being handed over to the plaintiff.
Why did the bearing fail?
- In a letter from Robinson Helicopter Company to the plaintiff’s solicitors of 21 December 2001 (Ex 30), that company explains why it used a non-commercial bearing:
“The reason for fitting a special non-commercial bearing involves Robinson Helicopter Company’s choice of the shaft diameter. In this critical application RHC did not want the bearing to ever spin or rotate on the shaft. Therefore, RHC used a shaft diameter .0005 inch larger than is recommended for commercial bearings to produce the desired interference fit. However, this change in shaft fit made it imperative to use a special bearing with increased internal radial clearances.
When a commercial bearing with normal internal fits is pressed onto a shaft with a larger than normal diameter, the inner ring of the bearing is forced to expand outwards. The expansion tightens the bearing and deprives the balls of clearances they need for proper operation. Without proper clearance, loading on the balls and rings is increased and the tight fit causes increased heat due to friction. This combination leads to early bearing failures such as occurred in this case for the dimensions and fittings.”
- The importance of using a Robinson recommended bearing was repeated in the evidence of the two experts called on this subject. Dr Duncan Gilmore and Dr Robert Casey are mechanical engineers who were called by the plaintiff and defendants respectively. They both provided reports and their oral evidence was given concurrently.
- In Dr Gilmore’s first report (Ex 57) he referred to Ex 30 and the reference to an “interference fit” the meaning of which he explained as follows:
“An interference fit for a bearing inner ring and shaft means that the external diameter of the shaft is larger than the internal diameter of the inner ring. Thus when the two are joined, the inner ring of the bearing is expanded by the shaft and the shaft is somewhat compressed by the inner ring. This loading is used to secure the inner ring of the bearing to the shaft. Bearings normally have clearances to allow for a certain level of interference fit between the inner ring and shaft, and outer ring and housing. However, if larger than normal interference fits are used, then the clearances in the bearing will be reduced to below that which they were designed to operate, which in turn can be expected in my opinion to reduce the life of the bearings.”
- Dr Gilmore’s opinion of the cause of bearing failure was:
“The ultimate failure of the NTN 6306 bearing was the ejection of the balls from between the inner and outer racers of the NTN bearing. This allowed the inner racer to collapse into the outer racer and relieved the tension on the drive belt from the engine to the rotors causing the loss of power to the rotors and the increased engine RPM (due to the loss of the load from the rotors).”
- Drs Gilmore and Casey provided a joint statement of points of agreement and disagreement (Ex 33). They agreed on the following matters:
- The bearing suffered Brinell damage due to the application of a purely radial force. In this case Brinell damage describes the indentation of the bearings races by the spherical balls.
- The Brinell damage to the bearing progressed and caused spalling. Spalling describes a process whereby flakes of material are shed due to the fatigue and this occurs due to the balls rolling across the Brinell generated dents.
- Dr Casey put forward three possible causes for the Brinell damage suffered by the bearing. First, the bearing may have been dropped. Secondly, the bearing may have been struck heavily by some object. Thirdly, there could have been contamination in the grease contained within the bearing. Dr Gilmore conducted a series of tests in an effort to determine whether or not the Brinell damage could have been caused by the bearing having been dropped or struck. I conclude, on the results of those tests, that it is more likely than not that the damage was not caused by the bearing being dropped or struck. More to the point, there is no evidence nor was it ever suggested to anyone that the bearing had been dropped or struck to such an extent that Brinell damage would be caused. The third possibility, that of contamination, is one which can be supported by the evidence, particularly that relating to the manner in which the bearing was re-greased. As has been pointed out above, the NTN bearing was a sealed bearing, that is, one that is not designed to be re-greased during its working life. It was clear, though, that it had been re-greased through the removal of the seals. This was sometimes referred to as “popping the seals”. In the notes by Mr Chadbourne relating to his investigation to this matter he said:
“I question the process of ‘popping the seals’ on these normally sealed bearings as this would allow migration of dirt in and grease out of the bearings. Surely the seals must get damaged during this operation.”
- Dr Casey also was of the opinion that the damage which had been or was being done to the bearing would have resulted in a constant and appreciable noise being generated by the bearing when in use. That was an important part of his reasoning process. The evidence was, though, that there had been no such constant noise or, for that matter, any unusual noise which might have warned the plaintiff of the deterioration of the bearing. The plaintiff said that the only unusual noise that preceded the failure of the bearing was a loud bang. The plaintiff satisfied me that he had, prior to taking off on the day of the day of the accident, been in a position to listen, had listened for, but did not hear any unusual noise.
- Dr Gilmore reasoned that the absence of the constant noise predicated by Dr Casey was that there had been a sudden failure of the cage of the NTN bearing. He gave evidence of the difference in construction between the Robinson approved bearing and the NTN bearing. The NTN cage was far less robust than the Robinson cage. The latter would have resisted failure over a lengthy period of time, and as it approached failure, there would have been the noise referred to by Dr Casey. As the NTN cage was much less strong it would have fractured much more quickly and would not necessarily have made any warning noises.
- Both Dr Gilmore and Dr Casey agreed that it was probable that contamination was a contributing cause. Dr Gilmore said that removing the seals to re-grease the bearings introduced the possibility of contamination which could reduce the life of the bearing and that it was possible that contamination could have contributed to the failure of the bearing cage. Dr Casey accepted that there was a possibility that a combination of both his theory and Dr Gilmore’s theory could properly represent the true cause of the failure. It is difficult to accurately summarise the two possible versions as proposed by the experts. Put simply Dr Casey did not accept that the insufficient clearance for the balls in the bearings was a problem. He considered that there was damage caused by the Brinelling and subsequent spalling and that this lead to the destruction of the bearing. Dr Gilmore disagreed. He placed emphasis on the lack of sufficient clearance of the bearings and the weaker style of cage construction of the NTN bearing. It was, though, an integral part of the Dr Casey’s theory that there would have been, prior to the final failure, an obvious noise associate with the deterioration. There was no such noise and I am content, then, to find that Dr Gilmore’s explanation is the more likely and that failure came about because the NTN bearing did not have sufficient clearance and the cage of the NTN bearing was weaker than the Robinson approved bearing.
Liability of the first defendant
- The plaintiff’s case against Timtalla is based upon it being the owner and lessor of a piece of equipment that could readily cause death or serious injury if it was not maintained in an airworthy state. It is pleaded by the plaintiff that, when Choppercare serviced the helicopter on 14 November 1992, it did so as agent of Timtalla. The defendants denied that Choppercare was an agent and pleaded that it was simply performing work for Timtalla pursuant to a contract. The defendants submit that when Choppercare serviced the helicopter it did so as an independent contractor and if Choppercare was negligent then that negligence cannot be imputed to Timtalla.
- The defendants accept that each of them owed the plaintiff a duty of care to ensure that the helicopter was safe for mustering work. Both of them say they discharged that duty. The question is: what is the full extent of those duties? In order to determine that so far as Timtalla is concerned one must consider the relationship between Timtalla and Choppercare.
- At the material time, both Timtalla and Choppercare had the same directors: Barry Costa and Lewis Webb. Timtalla owned all of the shares in Choppercare. When Timtalla commenced operations in 1989 it conducted its own maintenance until Choppercare commenced operations in 1990 after which it took over the maintenance of Timtalla’s aircrafts.
- As has been referred to above, Choppercare performed the service on the helicopter in November 2002. That is known from the aircraft’s logbook and maintenance records. There was no evidence of any charge being raised by Choppercare or any payment being made by Timtalla for that work. In fact, there was no evidence to establish a commercial relationship between Timtalla and Choppercare.
- In his evidence-in-chief, Mr Costa agreed that Timtalla and Choppercare treated each other at arm’s length. I note that that answer (as with many others) was in response to a leading question.
- There was little documentary evidence about the relationship between Timtalla and Choppercare. Mr Costa said that Timtalla’s maintenance section had always been run as a separate profit centre and “when it [Choppercare] formed into its independent company, … it had its own manager, its own chief engineer, and it was run by them as a separate entity” (T 3-70). That description appears to be inconsistent with his later reference to Choppercare as “our own maintenance organisation” which he distinguished from a third party (T3-73). When Mr Costa was being cross-examined about the use of compliant parts in helicopters he said that “once we purchased the aircraft it was under our maintenance control, it was under our chief engineer who had the ongoing responsibility of overseeing the maintenance for that aircraft.” (T3-83). That was clearly a reference to Choppercare as our maintenance control. He made a similar reference to Choppercare being “our maintenance organisation” at T3-85. But that is not conclusive of anything. It demonstrates a connection in the mind of Mr Costa but that does not establish the legal relationship.
- Other evidence was given by mechanics and LAMEs who had worked for Timtalla or Choppercare in the early 1990s. They were not able to say for whom they had worked at any particular time and appeared, not surprisingly, to regard those companies as being closely linked.
- Lewis Webb, the other director of Timtalla, also gave evidence. He sat in the court for most of the evidence, including that of Mr Costa and former employees. He would have witnessed the uncertainty of those persons as to particular dates or when a particular chief engineer was engaged and other, similar, matters relating to the conduct of both Timtalla and Choppercare. He did not enter the witness box armed with any information which could throw light on many of the details which had been the subject of earlier questioning. He appeared unconcerned about when particular licences were held by either Timtalla or Choppercare and had made no effort to provide any chronology which would establish when certain people were in particular, relevant positions such as chief engineer.
- Although there was not much evidence from Timtalla about its relationship with Choppercare; the onus did remain on the plaintiff to demonstrate the true nature of that relationship.
- The plaintiff’s submission was in two parts.
- The first rested on an argument that Timtalla was liable because it was responsible for the negligence of its agent Choppercare: “Choppercare was an agent because it was simply a case of Choppercare servicing a helicopter belonging to its parent company. The work was the same work as the parent company itself performed on its own helicopters from time to time.”
- The second was that, even if Choppercare was not its agent, Timtalla was liable because it had the responsibility as “owner and hirer” of the aircraft to take all reasonable steps to ensure that the helicopter hired to Shankman was in an airworthy state, and that it had not been rendered dangerous by things done to it whilst it was in the first defendant’s possession.
The First Argument − Agency
- When considering this submission it pays to recall the words of Lord Herschell in Kennedy v de Trafford  AC 180 at 188: “No word is more commonly and constantly abused than the word ‘agent’”. In two relatively recent cases the High Court has been confronted with arguments that a defendant has been liable for the negligence of a third party on the basis that the third party was the agent of the defendant. In Scott v Davis (2000) 204 CLR 333 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 the court rejected the proposition that the negligent individual was an agent whose conduct rendered the defendant vicariously liable.
- In Scott v Davis the owner of a two-seater aeroplane allowed it to be used for a joy-ride. The owner asked a licensed pilot, who was a guest at the party, to fly the plane. There was no relationship of master and servant or principal and agent between the owner and the pilot on contractually agreed terms. The plane crashed through the negligence of the pilot, causing serious injury to a child who was a passenger in it and nervous shock to his parents. In considering whether the pilot had been the agent of the owner, Gleeson CJ said:
“ In Soblusky v Egan the bailee of a motor vehicle was a passenger in the vehicle, asleep, when negligence of the driver resulted in the damage the subject of the action. The bailee was held by this Court to be vicariously responsible for the driver's negligence. The principle upon which that conclusion was based was said to be drawn from a long line of authority, including the decision of the Privy Council in Samson v Aitchison. The Court said:
‘It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his power of control. Thus it means in point of law that he is driving by his agent. It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control. This therefore must be regarded as an obvious case.’
 Some years earlier, in Christmas v Nicol Bros Pty Ltd, in the Supreme Court of New South Wales, Jordan CJ said, delivering the judgment of the Court, in a case concerning a motor vehicle:
‘If a person sustains physical injury to himself or his property through the negligent use of an article by another person, it is the user of the article who is liable in tort. Its owner is not liable as such; but he too incurs liability if, for example, it is established that the user was his employee, and that the use was in the course of his employment. If so, his ownership is of itself irrelevant to his liability, which is vicarious and arises out of the relationship of master and servant ... As an exception, however, to the general rule, in the special case of a vehicle plying for hire in a public street or used there for the conveyance for hire of passengers or goods, the owner is in New South Wales liable as well as the driver, by virtue of ss 4 and 260 of the Transport Act, 1930 ... But, save in this special case, in order to fix with vicarious liability a person other than the negligent driver himself, it is necessary to show that the driver was at the time an agent of his, acting for him and with his authority in some matter in respect of which he had the right to direct and control his course of action. If this is proved, liability is established on the part of the other person, and it is immaterial whether he is the owner of the vehicle or has begged, borrowed or stolen it.’
 The reference to the right to direct and control the driver's course of action cannot be taken to include a reference to a right which is not, in practice, capable of being exercised. So understood, the passage is consistent with Soblusky v Egan. It may be noted that Jordan CJ did not merely apply the question-begging label ‘agent’; he went on to explain what he meant by it.
 In the present case, the Court was not invited to depart from Soblusky v Egan. However, that decision does not assist the appellants.
 The pilot was not the agent of the respondent in the sense explained in the above passages. At the time of the pilot's negligent act, the respondent was not in a position to assert a power of control over the manner in which the pilot was flying the aeroplane. The pilot was neither in fact, nor in law, subject to his direction and control at the critical time.
 The appellants contend for a principle wider than that accepted and applied in Soblusky v Egan. The principle, they say, is to be found in Morgans v Launchbury, and in earlier cases such as Hewitt v Bonvin and Ormrod v Crosville Motor Services Ltd. In its application to the present facts, it is said to be that, even if the pilot was not under the respondent's control at the time of the accident, he was using the aeroplane at the respondent's request and for the respondent's purposes, and on that ground the respondent is vicariously liable.
 I am unable to accept that there is a principle of such width. There are a number of objections to it. First, as the reasons of Gummow J demonstrate, it has no adequate foundation in authority. Secondly, it is impossible to reconcile with the general rule that a person is not vicariously liable for the negligence of an independent contractor. An independent contractor may be using an article at another's request and for the other's purposes, but the other is not ordinarily responsible for the contractor's negligence. Thirdly, the criterion of application of the principle is ill-defined and likely to be capricious in its operation.” (emphasis added)
- Choppercare was not in the position of an agent. It had responsibilities under the Civil Aviation Act 1988 (Cth) and the Civil Aviation Regulations 1988 (Cth) such that it had to act in a manner dictated by that legislation and could not have been subject to Timtalla’s direction or control as to the manner of undertaking the servicing of the helicopter.
The Second Argument −Overriding Responsibility of Timtalla
- To support its case that Timtalla was negligent the plaintiff relied on the principles set out in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, in particular the paragraph at 554:
“Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur…even where a dangerous substance or a dangerous activity of a kind which might attract the ruling in Rylands v Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances…in the case of such substance or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’.”
- In this case, the plaintiff argued that Timtalla was required to exercise “a degree of diligence so stringent as to amount practically to a guarantee of safety” on the basis that the hiring out of a helicopter created a situation in which an improperly maintained machine could cause immense damage or death to a lessee. It was submitted that Timtalla’s duty came within the following description in Burnie Port Authority (at 550-551):
“It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and ‘more stringent’ kind, namely a ‘duty to ensure that reasonable care is taken’. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v Percival:
‘that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations ... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself ... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.’
In Kondis v State Transport Authority, in a judgment with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common ‘element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken’ is that ‘the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised’. It will be convenient to refer to that common element as ‘the central element of control’. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.” (emphasis added)
- Was Timtalla’s duty of care non-delegable? Or was it a duty which could have been satisfied through the engagement of a competent independent contractor?
- In Fitzgerald v Hill (2008) 51 MVR 55;  QCA 283 McMurdo P engaged in a careful analysis of the origins and essential features of a non-delegable duty. Her Honour synthesised the various authorities in the following way:
“ … The non-delegable duty of care is a special duty to ensure that reasonable care is taken for the safety of those to whom it is owed. It is not vicarious; it is a personal duty, breach of which requires fault. It is an onerous duty in that if a defendant owing the duty to a claimant does not take reasonable care to avoid a foreseeable risk of injury which eventuates causing damage to a claimant, then liability cannot be avoided by the defendant engaging another to carry out the defendant’s responsibilities.
 Whether the duty arises in a particular case will depend on the relationship between claimant and defendant. It is well established that this non-delegable duty is owed by a school authority to a pupil and by a hospital to a patient. Factors which support the existence of the duty include whether the relationship is one where the defendant has a high degree of control, the claimant is vulnerable, or the claimant has a special dependence on the defendant. The categories of situations where a non-delegable duty of care is owed are not closed, but courts should exercise care in extending them.”
- The following situations have been recognised as giving rise to a non-delegable duty of care:
- employer – employee: Kondis v State Transport Authority (1984) 154 CLR 672;
- hospitals – patients: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553;
- schools – students: Commonwealth v Introvigne (1982) 150 CLR 258;
- occupiers – contractual entrants: Watson v George (1953) 89 CLR 409, Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 38; and
- bailees for reward: Morris v C W Martin & Sons Ltd  1 QB 716.
- As is noted by McMurdo P the categories of situations where a non-delegable duty of care is owed are not closed. The plaintiff has not identified any recognised category into which this case would fall but says that it comes within the general description in Burnie Port Authority referred to above.
- The plaintiff argues that Choppercare was not an independent contractor in that it was wholly owned by Timtalla and it had the same directors as Timtalla had. But those features alone do not take Choppercare out of the category of an independent contractor. An independent contractor is someone who contracts to perform work for another person, but is not employed by that person. The degree of closeness in a corporate sense is irrelevant.
- The essence of the plaintiff’s argument is that Timtalla had a non-delegable duty to ensure the safety of the helicopter. Reliance is placed on the reasoning in Kondis (adopted in Burnie Port Authority) that the injured person must have been someone who had a “special dependence or vulnerability”. The vulnerability that is spoken of is of a similar nature to the vulnerability referred to in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at :
“‘Vulnerability’, in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, ‘vulnerability’ is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.”
- The plaintiff, though, did not plead any matters which would give rise to the conclusion that he seeks. Vulnerability, in particular, should be properly pleaded. (For example, in relation to pleading vulnerability in a pure economic loss claim, see RAA-GIO Insurance Ltd v O'Halloran (2007) 98 SASR 123.) The case pleaded by the plaintiff did not establish a claim that Timtalla owed him a duty which was not able to be delegated. It cannot be asserted now in the absence of such a claim.
- The plaintiff also does not come within the category said to exist in which the duty of care is non-delegable because of the hazardous or dangerous nature of an undertaking. The plaintiff appeared to be arguing that the fact that negligent servicing can cause serious damage is enough to support a conclusion that the duty of care was non-delegable. If that was what was being advanced, then I do not accept it. As the majority said in Burnie Port Authority at 558:
“The fact that a particular substance or a particular activity can be seen to be ‘inherently’ or ‘of itself’ likely to do serious injury or cause serious damage will, of course, ordinarily make characterisation as ‘dangerous’ more readily apparent. That fact does not, however, provide a criterion of what is and what is not dangerous for the purpose of determining whether the duty of a person in occupation or control of premises to take care to avoid injury or damage outside the premises is or is not a delegable one. It suffices for that purpose that the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it.”
- In Stoneman v Lyons (1975) 133 CLR 550 the High Court considered non-delegable duties and the doctrine relating to “extra-hazardous” activities. Mr Justice Stephen referred to an earlier decision of the High Court and said, at 565:
“It emerges clearly enough from the judgments that even if there be any such doctrine it has no application if the work undertaken is merely such as will create danger to others if done negligently.”
The statement by Stephen J is relevant to the circumstances of this case and it is consistent with the authorities to which I have referred above.
- The relationship between Timtalla and the plaintiff did not fall into any of the recognised categories which give rise to a non-delegable duty of care. The plaintiff seeks to extend the reasoning in Burnie Port Authority to cover Timtalla but he has not satisfied the preconditions for application, that is, he has not established that Timtalla had undertaken the care, supervision or control of him or the property of another or was so placed in relation to him or his property as to assume a particular responsibility for his safety, in circumstances where he might reasonably expect that due care would be exercised.
- There are two contingent arguments from the plaintiff. First, he argues that Timtalla “is liable for all of the identified negligence in the servicing of the helicopter.” That is an assertion of vicarious liability as distinct from the non-delegable duty of care. The argument founders on the basis considered in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 where the majority said:
“ Three recent decisions of this Court have examined questions of vicarious liability: Scott v Davis, Hollis v Vabu Pty Ltd and New South Wales v Lepore. It is unnecessary to rehearse all that is established by those decisions. It is important, however, to begin examination of the issues in this appeal from a frank recognition of some considerations that are reflected in those decisions. First, ‘[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’. Secondly, ‘the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy’. That may suggest that the policy to which effect was given by ‘the modern doctrine’ is clearly identified, but, as is implicit in the first proposition, the policy which is said to lie behind the development of the modern doctrine is not and has not been fully articulated. Thirdly, although important aspects of the law relating to vicarious liability are often traced to the judgment of Parke B in Quarman v Burnett, neither in that decision, nor in other early decisions to which the development of the doctrine of vicarious liability may be traced, does there emerge any clear or stable principle which may be understood as underpinning the development of this area of the law. Indeed, as is demonstrated in Scott, the development of the law in this area has not always proceeded on a correct understanding of the basis of earlier decisions.
 Nonetheless, as the decisions in Scott, Hollis and Lepore show, there are some basic propositions that can be identified as central to this body of law. For present purposes, there are two to which it will be necessary to give principal attention. First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). Secondly, there is the importance which is attached to the course of employment. Whether, as has recently been suggested, these, or other, considerations would yield a compelling and unifying justification for the doctrine of vicarious liability need not be decided in this matter. In particular, whether, as suggested, the justification for the doctrine of vicarious liability is found in an employer's promise in the contract of employment to indemnify the employee for legal liability suffered by the employee in the conduct of the employer's business is a large question which is better examined in the light of full argument.
 Whatever may be the justification for the doctrine, it is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person's actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like ‘representative’, ‘delegate’ or ‘agent’. The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.” (emphasis added)
In this case, the plaintiff has not established that Choppercare’s work was to do more than benefit Timtalla or to advance some purpose of Timtalla and so has not demonstrated any vicarious liability.
- The second argument by the plaintiff is that, even if Choppercare was an independent contractor, having regard to the content of the Robinson manual, Timtalla should have arranged an inspection for the purposes of the handover. That is just the converse of the plaintiff’s argument about a non-delegable duty. If, as I have held, such a duty did not attach to Timtalla, then no duty of this nature can arise.
- It follows that the plaintiff has not established negligence by Timtalla.
Liability of the fifth defendant
- The plaintiff argues that the fifth defendant should be held liable because through its workers:
- it materially contributed to the plaintiff’s injuries by weakening the integrity of the bearing by removing its seals and thereby (in particular) apparently causing contamination of the bearing;
- it regreased the bearing at a time when that practice was not part of the Robinson procedure and not a correct procedure for any sealed bearing;
- it removed the seals of the bearing when that was not the proper practice; and
- it failed to take any steps to ensure that the upper actuator bearing was a Robinson approved bearing in circumstances in which (at the least) an enquiry was called.
- Mr Darren Fisher was a LAME who had been employed by ATA from the late 1980s until 1994. He serviced the helicopter on about six occasions for its 100 hourly service. He recalled that he lubricated the upper actuator bearing on some of those occasions. He also said that it was possible to remove the seal of the bearing without damage provided that care was used.
- On 22 July 1993 he serviced the helicopter. As might be expected, he could not recall what was done and relied on his notes in the worksheet he completed with respect to the service.
- In 1994 he was interviewed by Mr Chadbourne as part of his investigation into the accident. Mr Chadbourne made notes of the conversation. He recorded the following:
“Darren states that he took bearing off of clutch shaft in workshop during sheave replacement. Sheave serial number sticker is sprag clutch serial number and so was transferred to new sheave. Seals from bearing were removed. Bearing cleaned and then regreased. Outer race retaining nuts removed to facilitate seal removal.”
- Mr Fisher had no recollection of that conversation but he agreed that the process described would “make sense”. I accept that the conversation took place and accurately recorded what Mr Fisher did during that service. It follows from the finding I made with respect to the time at which the NTN bearing was installed that Mr Fisher must have removed the seals and cleaned and regreased the bearings of the NTN bearing.
- There was a substantial amount of evidence about the appearance of the Robinson approved bearing and the NTN bearing. The seals were different colours and the NTN bearing had letters and numbers impressed on the seal in a manner in which they could, when clean, be easily seen.
- The helicopter was serviced again by Mr Fisher on 21 November 1993. In April 1994 a 100-hourly service was performed by Jeremy Smith of A & A Air Services.
- The plaintiff submits that Mr Fisher should have, during the process of re-greasing, noticed that the letters “NTN” were embossed on the seal and that there were other numbers and letters. None of those numbers and letters had any relevance to serial numbers in the Robinson manual. It was also argued that the difference in colour of the seals was also something which should have alerted Mr Fisher. The fact that the bearing had the letters NTN on it should have been sufficient to alert a person conducting maintenance, because NTN is a well known manufacturer of commercial bearings. Mr Fisher, having previously serviced Robinson R22 helicopters, should have noticed that there was a difference in the bearing which he was re-greasing from those bearings which he had dealt with in other R22 helicopters. The failure to do so was substantial. The duty that a person in Mr Fisher’s position has in these circumstances is considerably higher than it would be when dealing with an engine or machine which is static and situated on the ground. The standard of care necessarily rises in accordance with the principles in Burnie Port Authority in these circumstances.
- I am not satisfied that there has been sufficient evidence to establish on the balance of probabilities that Mr Fisher did contaminate the bearing when he re-greased it in 1993. But, he should have realised that the bearing he was working on was not an approved bearing. The details of the Robinson approved bearing are set out in the manual. A specific warning was prominently displayed in the manual (see ). The failure to take action – either by, at least, investigating further to determine the provenance of the bearing or, more prudently, replacing it with an approved bearing – was a serious breach of the duty owed by Mr Fisher and, through him, ATA.
- Had these breaches not occurred, then the NTN bearing would have been replaced by an approved Robinson bearing and the failure would not have occurred. Dr Gilmore’s view was that the more robust nature of a Robinson bearing would have meant that, as it approached failure, there would have been the “warning” noise referred to by Dr Casey.
- The plaintiff has established that ATA breached the duty it owed him and that the failure of the bearing was, in part, due to that breach.
Breach of civil aviation regulations
- The plaintiff also alleges that his injuries were caused as a result of the breach or breaches by the first and fifth defendants of statutory duties owed by them pursuant to the Civil Aviation Act 1988 (Cth) or the Civil Aviation Regulations made under that Act or both of them. It was not argued that these breaches afforded a separate cause of action; rather, they that were more evidence of negligence. The breaches alleged are as follows:
a.In breach of r 42V, failing to ensure that maintenance was performed in accordance with approved maintenance data.
aa.In breach of r 42U, modifying or alternatively allowing the modification of VH-HQX by the installation of a commercial upper clutch actuator bearing rather than an appropriate bearing as specified in the Robinson R 22 maintenance manual.
b.In breach of r 42ZE, failing to ensure that the certification of completion or maintenance was correct.
c.In breach of r 42ZP, failing to ensure maintenance was performed according to approved maintenance data prior to certifying that the maintenance was complete.
d.In breach of r 43(13)(d)(ii), allowing a maintenance release to be issued when aware the information entered on the maintenance release was incorrect.
e.In breach of r 43(7), failing to ensure that all maintenance had been satisfactorily completed before certification of completion of maintenance was signed.
f.In breach of Schedule 6, failing to co-ordinate each stage of maintenance.
g.In breach of Schedule 6, failing to ensure that all required maintenance had been performed before issuing a final certification of completion of maintenance.
h.In breach of r 42W, failing to ensure that maintenance was carried out using upper clutch actuator bearings identical to the replaced components or approved for use, whether by regulation or otherwise, as replacement components.
- The regulations referred to above impose a duty on the person performing identified work. For example, r 42V provides:
“42VMaintenance: approved maintenance data
(1)A person carrying out maintenance on an Australian aircraft must ensure that the maintenance is carried out in accordance with the applicable provisions of the aircraft’s approved maintenance data.
Penalty: 50 penalty units.
Note Regulation 2A sets out what is approved maintenance data for an aircraft.
(2)Subregulation (1) has effect subject to the requirements of Division 5 (‘Who may carry out maintenance’).
(3)An offence against subregulation (1) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.”
- Regulation 42ZC, which is part of Division 5, provides:
“42ZCMaintenance on Australian aircraft in Australian territory
(1)The holder of the certificate of registration for, the operator of, and the pilot in command of, an Australian aircraft must not authorise or permit any maintenance to be carried out on the aircraft in Australian territory by a person if the person is not permitted by this regulation to carry out the maintenance.
Penalty: 50 penalty units.
(2)An offence against subregulation (1) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
(3)Subject to subregulation (5), a person may carry out maintenance on a class A aircraft in Australian territory if:
(i)holds an aircraft maintenance engineer licence, an airworthiness authority or an aircraft welding authority covering the maintenance; and
(A)holds a certificate of approval covering the maintenance; or
(B)is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or
(b)the following requirements are satisfied:
(i)the person is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; and
(ii)the maintenance is carried out under the supervision of a person who holds an aircraft maintenance engineer licence covering the maintenance and who either:
(A)holds a certificate of approval covering the maintenance; or
(B)is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance; or
(c)the person is a pilot of the aircraft and is authorised to carry out the maintenance by the aircraft’s approved system of maintenance; or
(d)the person is authorised by CASA under subregulation (6), or an authorised person under subregulation (7), to carry out the maintenance and the maintenance is carried out in accordance with any conditions subject to which the authorisation is given.”
- There was no submission, nor was I directed to any part of the Civil Aviation Regulations, which would suggest that the duties listed in those regulations applied to Timtalla rather than to the person undertaking a task covered by those regulations. There was no suggestion that Choppercare did not come within the description in r 42ZC(3) and thus was a person who could be authorised or permitted to carry out maintenance. (If the helicopter was not a Class A aircraft, then the effect is the same for the purposes of this consideration as this regulation imposes similar requirements for maintenance of other types of aircraft.)
- It follows, then, that the duties imposed by the Regulations referred to above were imposed on Choppercare and ATA but not on Timtalla. As a result, these Regulations do not impose a further or higher duty on Timtalla. They did, though, apply to ATA and the failure to notice, investigate further, or replace the NTN bearing in the circumstances referred to above was a breach of, at least, rr 42V, 42ZE, and 42W. It constitutes further evidence of negligence on the part of ATA.
- The defendants allege that the plaintiff contributed to his own injuries in the following ways:
- at the time of the accident he was flying too close to the ground;
- he failed to employ the correct technique to initiate and maintain autorotation;
- he failed to monitor the telatemp indicators;
- he stored a number of hard items under his seat and this prevented the seat from compressing properly;
- he did not accurately record the helicopter’s flying hours in the relevant logbook and thus the appropriate maintenance was not taken;
(f) he did not listen for the noise being made by the upper clutch bearing prior to each take off and take reasonable steps in light of such noise; and
- he was not flying in a safe or reasonable manner prior to and at the time of the accident.
- The defendants also plead as an item of contributory negligence that “the cause of the accident was damage to components of the helicopter (particularly a bearing) caused by being dropped, struck or through debris ingress or a lack of lubrication in the helicopter, all of which were the responsibility of others. The first and fifth defendants could not have reasonably been aware of these matters or done anything about them in the circumstances.” That is, obviously, not an allegation of contributory negligence but an assertion as to the cause of the accident other than through the fault of the plaintiff.
- I will deal with each of the allegations of contributory negligence in turn.
Flying too close to the ground
- The defendants referred to Civil Aviation Regulations which, in that part of Australia, required a minimum altitude of 500 feet. The defendants acknowledge that the regulations permitted mustering at lower altitudes but said that that was only permitted when needed for the job and with essential crew on board. This allegation is a misconception. There is no relationship between any breach of a civil aviation regulation as to a minimum altitude or with respect to the nature of the flight being undertaken. Assuming that the plaintiff was in breach of the regulations there was no connection between the risk and the alleged contributory negligence. To take the defendants’ argument to its logical extreme would mean that a person in the plaintiff’s position would be negligent if he descended below 500 feet at any time. That would make it difficult to land. There was no relationship between the failure of the bearing and either the height at which the helicopter was or any manoeuvre the helicopter was undertaking at the time. On all the evidence, it would have been just as likely that the bearing would have failed when the helicopter was on its final descent to land in Alice Springs. There is nothing in this allegation.
Failure to employ the correct technique for autorotation
- The defendants concentrate on an answer given by the plaintiff with respect to the actions he took immediately following the reduction in rotor RPM caused by the bearing failure. In examination-in-chief he said:
“I was doing 65, 70 knots, flying cruise and, bang, went straight into a lot rotation, I kept – which is – I dropped the collective down, pushed the cyclic forward, pedals in, and then I kept the throttle on…I had the throttle opened still, the engine RPM’s started climbing up rapidly. I ended up cutting the throttle back to idle at the time. This is all happening in the instant. The helicopter pulled sideways on me. The rotor RPM, it was just dropping, you can just – I had – the cyclic – it was shaking, and really I don’t remember much after that, sir, …”
- In cross-examination, the plaintiff was taken to Exhibit 11 which is the “Pilots Operating Handbook” for a Robinson R22. It contained “R22 Helicopter Safety Notice 6N-29”. The notice highlights the contrast between the way in which a pilot in a fixed wing aircraft would react to an emergency and the manner in which a helicopter pilot should react in a similar emergency. It emphasises that to make the aircraft go down a pilot will rapidly lower the collective with very little movement of the cyclic stick. It emphasises that a helicopter pilot must never abruptly push the cyclic stick forward. In answer to questions the plaintiff accepted that he did push the cyclic forward. He appeared to be attempting to draw a distinction between pushing the cyclic forward and pushing the cyclic forward to a very small extent. That was not pursued in cross-examination or re-examination. Hector Matheson was called by the defendants to give evidence as an expert with respect to the manner in which a helicopter should be operated in circumstances faced by the plaintiff. Mr Matheson said that the correct use of the cyclic after putting the collective down was to bring the cyclic to the rear to maintain the disc attitude in relation to the horizon. He was asked:
“What would happen if you pushed the cyclic forward? -- You will get a very, very marked decrease in RPM.
What affect would that have on the helicopter? -- It will increase the rate of decent. It will produce a nose-down attitude and you are going – you are going to carve off altitude very quickly.”
- In cross-examination Mr Matheson was asked to comment on the inference which could be drawn from circumstances where there was no damage to the bubble or the front of the helicopter but there was damage to the rear of the helicopter. He said that that would suggest that there had been a flaring prior to touch down and he accepted that there had probably been some elements of autorotation for that to have occurred. The helicopter did land on its skids as is desirable in these circumstances and Mr Matheson drew the conclusion that the helicopter had touched down at a slow speed because the plaintiff had flared the aircraft.
- The factor upon which the defendants rely is the plaintiff’s evidence that he pushed the cyclic forward. There is no evidence as to the extent to which he pushed that forward save that the manner in which the helicopter landed strongly suggests that the cyclic was not pushed so far forward as to increase the damage which would have been caused had an otherwise perfect autorotation been achieved. In any case, the defendants did not lead any evidence by which I could assess the difference which might have been caused by the plaintiff by him pushing the cyclic forward to any extent. The relevant witnesses agreed that the events occur in a very short space of time and there is little time in which a pilot can react. Given the manner in which the helicopter did finally touch down I think that it is more likely than not that the plaintiff did react in an appropriate way or, at least, he did nothing to exacerbate the damage done to the helicopter or to him.
Inspecting the telatemps
- The defendants correctly submit that there is no direct evidence of what the pre-accident condition of the telatemp was. The telatemp is a device in which an increase in temperature in a bearing can be assessed. As the temperature of the bearing rises the telatemp will disclose this through discolouration and it will disclose that a particular range of temperature has been reached. In the absence of any evidence that the relevant telatemp disclosed that a very high temperature had been reached at a stage prior to takeoff I do not consider that the evidence of Dr Casey or Dr Gilmore assists the defendants. Dr Casey did say that the bearing would have been in distress prior to failure and Dr Gilmore stated that the NTN bearing should have been running hotter than a Robinson bearing and that this would show up on a telatemp. There was, though, no evidence as to when that would occur and the defendants are driven to submitting that it should be inferred that prior to the flight the telatemp would have been showing a higher than permitted temperature. There is, simply, insufficient evidence for such an inference to be drawn.
Storing items under the seat
- This was not pursued in submissions by the defendants.
Not accurately recording the flying hours of the helicopter
- The plaintiff gave evidence that he did not make accurate records of the flying time of the helicopter. I will deal with this issue later. With respect to an assertion of contributory negligence, a failure to properly record the flying time of the helicopter will not, of itself, be a contributory factor to the damage suffered. The defendants, though, say that had the flying time been properly recorded then the helicopter would have had at least one more 100 hourly inspection prior to the accident. It is put this way by the defendants: “Another inspection of the bearing might well have detected the deterioration of the bearing before it ultimately failed” however that overlooks the evidence that neither the clutch assembly nor the upper actuator bearing were serviced during a 100-hourly inspection. In any case, the defendants have to establish to the relevant standard that the conduct of the plaintiff did contribute to the accident and subsequent damage. The submissions made by the defendants do not demonstrate that, had the proper hours been recorded, there would have been another service and that such a service would have been likely to discover the faulty bearing.
Listening for the noise
- The defendants referred to the evidence of Dr Casey that the bearing would have been making considerable noise and vibration prior to failure. Dr Gilmore, though, gave evidence that a catastrophic failure could have been preceded by little change in the usual noise. In any case, the plaintiff satisfied me that he adequately performed the pre-flight checks on the day in question and that he heard nothing unusual at that time.
Credibility of the plaintiff
- The defendants attack the credit of the plaintiff on the basis that he admitted that he had not maintained an accurate record of the hours flown by the helicopter. He did not keep a pilot logbook in accordance with the requirements of the Civil Aviation Regulations. It is said that his failure to keep accurate time records contributed to the accident because aircraft engineers rely on accurate time records to determine when maintenance is due. The defendants plead that the plaintiff had operated the aircraft for more hours than he had recorded in the maintenance release and aircraft logs and thus failed to obtain or notify the first defendant to obtain at least one 100-hourly inspection.
- I accept that the plaintiff did not maintain an accurate log of the hours flown by the helicopter in accordance with the relevant regulations. He explained that in a rather unsatisfactory way as having something to do with the manner in which he charged out his services when undertaking aerial mustering. I have already dealt with the question of contributory negligence under this heading. The only matter left to deal with is the question of whether or not the plaintiff’s credibility is adversely affected. The defendants submit that the denial by the plaintiff with respect to observing the telatemps on the relevant day should be considered in the light of his inappropriate conduct with respect to logbooks and so on. In finding, as I have, that the plaintiff did not act in a negligent manner so far as the telatemps were concerned, I took his conduct with the logbooks into account. I regard the issue of the proper maintenance of the logbooks and his invoices to customers as being in a separate category to the issue of his own safety and, in particular, the checks he would undertake on the aircraft. Similarly, I do not think that his failure to properly record accurate times can be regarded as impinging in some way on his account of the results of the injuries he suffered.
The plaintiff’s injuries
- The plaintiff was born in 1957 at Alice Springs, where he attended high school until the age of fourteen. He has worked at various times as a butcher, stockman, oil rig worker, commercial helicopter pilot and, since the crash, an ostrich farmer, food vendor and now as a sculptor.
- In 1980 the plaintiff obtained an airplane licence and in 1981 he began courses that would enable him to become a helicopter pilot. The plaintiff readily admitted that his lack of formal education had caused him difficulty and he failed a number of the theory-based exams that required him to answer essay-style questions. He finally obtained a helicopter licence in 1984 and a commercial helicopter licence in 1985. Initially he struggled to find work as a helicopter pilot and so he commenced working for companies controlled by Mr Costa and Mr Webb at Caloundra as a means of gaining experience in the industry. This work was with a company called Chopperline Pty Ltd. The plaintiff was not paid for that work, and so he also worked in the mornings as a butcher to support himself.
- In about 1986 the plaintiff left Chopperline to take up a position as a helicopter pilot with the Australian Agricultural Company in Mt Isa. There was no satisfactory accommodation for the plaintiff’s partner and child in Mt Isa at that time, so in about 1988 he moved with his family back to Alice Springs and re-commenced working as a butcher. He earned substantially less money butchering than he had from his work as a helicopter pilot.
- After some time the plaintiff gained work as a pilot in Alice Springs before trying to start-up a charter flight helicopter business of his own. It did not succeed. Instead, after a brief period in the United States, the plaintiff devoted his attentions to contract mustering through the company he had set up in preparation for his charter flight business, Shankman.
- By 1993, the plaintiff was firmly based in Alice Springs and was married to his second wife, Sue Coker. His business as a contract musterer grew and was centred on helicopter mustering, though the plaintiff also did some ground mustering. In conducting this business in the Northern Territory, the plaintiff ultimately arranged for the hiring, over time, of three Robinson R22 helicopters from companies controlled by Messrs Costa and Webb. These helicopters were leased to the plaintiff for $100.00 per hour, based on the time entered into the helicopters’ logbooks. Included in these helicopters from January 1994 was VH-HQX, the helicopter that the plaintiff was in when he crashed on 21 June 1994.
- After the crash the plaintiff was not located until about midnight and medical attention was not afforded until 7am the following day. After assessment, X-Rays and resuscitation he was flown to Royal Adelaide Hospital arriving at approximately 6.30pm on 22 June. He went to theatre that evening and had an open reduction of his spinal fractures with a Harrington Rod internal fixation from the 11th thoracic vertebral level to the 4th lumbar vertebral level. A reconstitution of the fractured L1 vertebral body was obtained with restoration of vertebral alignment and restoration of vertebral body shape and disc height.
- The major injuries sustained by him were:
- fractures of the right and left transverse processors of the 12th thoracic vertebra;
- a posterior disruption of the T12/L1 posterior facet joint;
- a crush fracture of the L1 vertebra with a large segment of posterior vertebral body protruding posteriorly into the vertebral canal;
- a separated left lateral segment of vertebral body displaced posteriorly; and
- a fracture through the right lamina of the L1 vertebra which extends through the right L1/L2 posterior facet joint.
- The plaintiff remained as an inpatient at the Royal Adelaide Hospital for about six weeks. He was transferred to a rehabilitation unit and spent a lengthy period there.
- It is obvious that the plaintiff continues to have great difficulty walking. His left leg is withered and difficult to control. He wears a special type of shoe which has springs at the heel which are designed to, and apparently do, assist him to walk on lawns and uneven surfaces. Nevertheless, he has great difficulty with his balance. For this he wears orthotic inserts in his shoes and he requires a walking stick most of the time. Pressure stockings are needed to prevent his legs from swelling up if he has to sit for extended periods. He requires a knee brace.
- The plaintiff was required to lie flat for six weeks before he could be mobilised and suffered from severe pain in his back as well as burning pain in his legs. At the time of his transfer to the Rehabilitation Unit he was diagnosed with incomplete paraplegia below the L1 level. The plaintiff suffered bowel and bladder control problems and constipation and required assistance to urinate and to void his bowel.
- By May 1996 the pain being experienced by the plaintiff had diminished somewhat but was still severe enough to require at least 50 milligrams of morphine administered in the form of time release tablets. The plaintiff was unable to stand or sit in one position for longer than a few minutes without experiencing back pain. This is a condition which continues until today. He suffers from constant pain in the mid lumbar region which radiates out to the hips and the left buttock and thigh. This pain is aggravated by activity.
- He is able to walk short distances with the aid of callipers and crutches as his primary form of mobilisation. This, though, causes him a great deal of pain and he has difficulty in negotiating stairs and uneven or sloping terrain. As a result he falls frequently. He has little useful function in his right foot. He requires a lumbar support brace to decrease the discomfort in his back.
- For 12 months after the accident, the plaintiff was unable to sleep through the night. He is able to sleep now but requires the aid of medication. As a result of his pain and the depression it causes him he is frequently exhausted and often sleeps for periods of over 12 hours. He has limited sexual function. His incapacity and pain led him to suffer from suicidal tendencies in the past but he has, more recently, been able to control this by other measures.
- As might be expected, his social life has been severely curtailed due to his embarrassment at being seen in public and the discomfort he believes his presence causes others. His unusual gait means that he is frequently perceived by others to be heavily intoxicated. He is unable to participate in any of his prior work or recreational activities, including rodeo riding, breaking horses, and flying a helicopter. He has had an involvement with horses for most of his life and is now unable to do anything more than observe them.
- He blames the emotional and sexual problems caused by his injuries for the separation and then divorce from his wife in 2002. He also blames these problems for the difficulties he is still experiencing in forming lasting relationships with women.
- His problems with loss of balance have resulted in a number of falls, including one where he fractured his left elbow, one where he fractured his right elbow and one in which he fractured his right knee.
- His problems with constipation and defecation have resulted in severe difficulties so far as haemorrhoids are concerned and he has been hospitalised more than once to deal with problems relating to bleeding haemorrhoids.
- The plaintiff described the sciatic nerve troubles which he experiences as being similar to an electric shock. He says that they last for between 5 and 15 seconds at a time and generally occur in his left leg although he has recently begun to experience them in his right leg. He frequently has to stop performing any type of work, take painkillers and try to sleep through the pain. This occurs sometimes for two or three days in a week.
- In a joint report from Drs Tuffley and Curtis, they both agree that the plaintiff has a partial and permanent whole person impairment of 64 per cent.
- The accident, having occurred in 1994, is not governed by the Civil Liability Act 2003 (Qld).
- I have taken into account authorities including Winterton v Mercantile Mutual Insurance (Australia) Ltd  QCA 249 and Goode v Thompson  2 Qd R 572. In the latter case the damage suffered by the plaintiff was both neurological and orthopaedic. The condition of the plaintiff in that case was complicated by a lack of insight. In a case such as this it will be impossible to find any truly comparable set of injuries but the injuries suffered in the case of Goode v Thompson are, in my view, of a similar range while, of course, having obvious differences. In that case the Court of Appeal held that an award of $150,000 was within the range and that is the award which I regard as appropriate in these circumstances.
- There is a dispute about the period over which interest should be awarded. I intend to award interest for the whole period and I give reasons for that below. Interest on this award is, then, calculated at 2 per cent on $70,000 for 16 years which provides $22,400.
- The plaintiff submitted that there were very few disputes raised with respect to the claim for out-of-pocket expenses of $196,910.37. It remains, though, the responsibility of the plaintiff to establish on the relevant standard that the expenses were in fact incurred and were both reasonable and attributable to the injury. The defendants argued that there was little evidence to support some of the claims.
- I will deal with the claims as they appear in the Second Further Updated Statement of Loss and Damage.
These are admitted at $47,619.97.
The claim was for $7,875.00. It was based on nothing more than an estimate of the distance travelled by the plaintiff for medical attendances every year. In the absence of any documentary support, while I accept that travel was needed, I will assess this as a global amount of $4,000.00.
· Pharmaceutical expenses
Claims were made for Viagra, Androgel and other medications such as anti-inflammatories in the sum of $82,815.40. Once again, these figures were only estimates and the only support for these claims was in this brief exchange with the plaintiff: “Then pharmaceutical expenses, those figures, I think, are based on your estimates?-- Yes, sir.” There was support in the joint report from Mrs Coles and Ms McNamee (Ex 34) for the use of Viagra and androgel. None of these matters were challenged by the defendants but the plaintiff did not establish the level of use or the expense of some of the items. I will allow a global sum of $50,000.00.
· Special aids
The plaintiff established his use of Z-Coil pain relief footwear at $5,600.00. He claims $3,000.00 for special orthopaedic shoes which, I understand, is a reference to the callipers and braces he is required to wear. I allow both amounts.
A claim is made for $50,000.00 for aids such as hoists and lifts to assist him with heavy lifting and accessibility for his sculpting. I accept that he needs these aids but there was no attempt made to justify the amount of the claim. I will allow $40,000.00.
TOTAL SPECIAL DAMAGES: $150,220.00 (rounded up)
Past economic loss
- One of the important factors that must be taken into account in the assessment of both past and future economic loss is the work history of the plaintiff. As has been referred to above, he has had a limited formal education and it was clear from his evidence that he had engaged in a number of occupations over many years. A report from Mr Calabro estimating his past economic loss at $1,126,970 was tendered. It is based, as most of these types of reports are, on the indications by the plaintiff as to what he had intended to do in the absence of the accident. For example, he says that he would have leased a second helicopter from 1995 onwards and would have employed a pilot to fly it and would have gained an additional income of some $30,000 per annum. I have difficulty in accepting that the plaintiff’s life would have been as planned and prepared as he may, quite truthfully, have thought it was going to be. Given the work history of the plaintiff, I am of the view that the approach taken by Mr Green in his report in which he averaged the pre-injury net income for the four years preceding the accident is a more accurate manner of assessing the plaintiff’s loss than to simply adopt the financial year preceding the accident as was done by Mr Calabro. This approach is, I think, supported by the fact that the plaintiff had been a helicopter pilot for some time prior to the accident and to adopt only one year does not provide a fair representation of his past income.
- At this point the failure by the plaintiff to keep accurate records causes him significant problems. He conducted his business quite haphazardly as far as the rendering of invoices and the manner of marking up his flying time in order to arrive at the charge he wanted to levy on a client were concerned. There is considerable inconsistency between the hours that one might regard his having flown on the basis of the charges to his customers compared to the maintenance records and the hours otherwise recorded. His behaviour with respect to the keeping of records suggests strongly that he would have had considerable difficulty in expanding his business and in employing people. Further, his failure to comply with regulations relating to the keeping of records could well have resulted in his being the subject of adverse comment by the authorities and possible prosecution.
- The plaintiff claims to have sustained a loss of $215,090 over the period of 1995 to 1998. He was during that period attempting to earn income in various ways. He attempted, for example, to conduct an ostrich farm. The loss that resulted from that was more likely to be due to the market rather than due to his physical condition. He admitted that everybody in Australia attempting to conduct ostrich farms lost money because of changes in market conditions.
- I accept that the plaintiff made genuine attempts to earn income and was, no doubt, stymied to a considerable degree by his physical incapacity.
- In 2002 the plaintiff left Australia for the United States to live and to work. It is pointed out that he earned no income in 2001, no doubt because he did not have the requisite permission to work, and that this should not be taken into account as his decision to move was not a result of the accident. Since moving to the United States the plaintiff has engaged in a number of enterprises, the most successful of which has been as a sculptor in which he has been retained by the town of Grapevine in Texas to produce various sculptures for public purposes.
- Both Mr Calabro and Mr Green have based their reports on assumptions as to the amount of work which the plaintiff could have undertaken from the time of the accident until now. Mr Calabro, in my opinion, is far too optimistic and that is mainly because he has based his opinion on the expressions of intent by the plaintiff as to what he would have done, which I have found to be unlikely. Mr Green suggests that the total past economic loss for the plaintiff ranges from $77,656 to $128,310.
- During their evidence I asked Mr Calabro and Mr Green (at T7-10 to 11) about the consequences of findings I might make:
“HIS HONOUR: I have to determine - I have to form a view as to what the plaintiff was likely to do had the accident not occurred.
MR GREEN: That's correct.
HIS HONOUR: And your approach is to say that his future was going to be like his past; that is, he moved from job to job or changed occupations in some way.
Mr Calabro, your view, as I understand it, is premised on a continuation of that first year; that is, he started as a self-employed musterer and a helicopter - using helicopters, and your calculations are based on the assumption that he would continue to do that?
MR CALABRO: That's correct, your Honour.
HIS HONOUR: Mr Green's is based on an assumption he would do that for a while, and then he might do something else, and then he might do something else. Is that right, Mr Green?
MR GREEN: That's correct.
HIS HONOUR: All right. So, if I form the view that his past was indicative of the future, then Mr Green's calculations would be appropriate to look at. If I formed the view that he was going to continue along the same lines as his first year as a self-employed musterer, I would follow Mr Calabro; is that right?
MR GREEN: That's correct.
MR CALABRO: That's correct.”
- As I have concluded that the plaintiff’s work history after the accident would have been similar to that before the accident then I will adopt the approach of Mr Green and award a sum of $130,000. On that basis, interest will be awarded at 5 per cent for 16 years, namely, $104,000.
Loss of past superannuation
- The plaintiff claims past loss of superannuation at the rate of 6 per cent amounting to $67,618.20 on the basis that the full amount of the loss calculated by Mr Calabro was awarded. The plaintiff was, for many years before the accident, employed by Shankman. He had been an employee in his other occupations. He had an entitlement to superannuation. I will allow superannuation at 6 per cent on $130,000, that is, $7,800.
Future economic loss
- One advantage of the long period of time which has elapsed between the accident and the trial is that the plaintiff’s condition has settled and it is easier to make an assessment of his capacity to work given, in particular, what he has been doing since he has been living in the United States. Dr Curtis’ opinion was that the plaintiff would not be able to return to the general workforce and was destined to remain a disability support pensioner. Dr Tuffley, in the joint report, said that the plaintiff would not be able to return to any previous vocations but, subject to his sitting endurance, could perform administrative tasks. Of course, the plaintiff has shown no aptitude for administrative duties and would be unlikely to be engaged in that by even the most understanding employer.
- The plaintiff has been, and is, on a rolling 12 month contract with the town of Grapevine in Texas as their sculptor in residence. The city manager of Grapevine gave evidence that no guarantee could be given that the plaintiff’s contract would be renewed, notwithstanding the good work which he has done.
- The plaintiff is currently 52 years of age. He has another 15 years before a notional retirement age of 67.
- The accountants called to give evidence approached this issue, as with the other issues, from a different base position.
- Mr Calabro referred to the plaintiff’s work as the “artist in residence” in the city of Grapevine. The plaintiff’s contracts with the City of Grapevine are contracts of one year duration and are re-negotiated every August. At this stage his current contract runs to 31 December 2010. However in August 2010 the Plaintiff will have to negotiate to see if he still has a job for 2011. Based on the medical evidence, Mr Calabro’s opinion was that the Plaintiff would find it near impossible to find another job at his age without relocating, retraining etc. In view of the uncertainty Mr Calabro calculated future losses from 2011 in the sum of $970,037.
- Mr Green took the view that it would appear likely that the Plaintiff retains a material residual earning capacity at the current date, and has recorded gross US dollar earnings of $116,000 for the year ended 31 December 2009. He, therefore, did not make an assessment of future loss.
- It seems clear that the plaintiff has discovered and employed an ability as a sculptor which, without the accident, may never have been revealed. But the life of an artist cannot, except in exceptional circumstances, be regarded as offering the security enjoyed in other fields of work. The plaintiff may continue to find success as a sculptor. He may not. Corporate or municipal work may dry up. His work may fall out of fashion. His physical problems may prevent him from engaging in sculpting.
- The assessment to be made is the degree to which his capacity to earn income has been truncated. He can never again work in any of his occupations engaged in prior to the accident. His capacity to work in administrative type occupations is limited by both education and infirmity. In the most recent year of income he received a gross income of USD116,000 which is approximately AUD140,000. He has earned more as a sculptor than he ever earned before the accident. I think it appropriate to take that figure into account and, doing the best I can, to make adjustments for the uncertainty of his work future and the limitations caused by his injuries to arrive at an annual figure for future loss of $50,000. I have incorporated into that amount a notional discount for contingencies. Using the 5 per cent tables, that gives a future loss figure of $533,355.
Future loss of superannuation
- The plaintiff has been receiving some benefits from his employment by the city of Grapevine – medical insurance and pension contribution – which resemble the superannuation benefits available in Australia. No evidence was proffered which would allow me to make a comparison of what has been paid in the United States and what would be available in Australia. There was no certainty about his future domicile but, given his current accommodation, friendships and available work, I think it more likely than not that he will remain in the United States. There are many contingencies which play upon this claim. I will allow a global sum of $20,000.
- Evidence with respect to both past and future care was given by the occupational therapists, Mrs Coles and Ms McNamee. I received greater assistance from Mrs Coles’ report because she had a much longer association with the case than Ms McNamee and she had also the benefit of discussions with Ms Schumacher who assists the plaintiff in the United States. In the second further updated Statement of Loss and Damage the plaintiff claimed a global sum of $150,000 for past Griffiths v Kerkemeyer damages on the basis of receiving assistance from his wife or partner, relatives and friends at 2 hours per day, 7 days a week for 819 weeks. At $15 an hour that amounted to $172,000. In his final submissions the plaintiff claims a lower amount of $120,900 based on care at 10 hours a week. Ms McNamee conceded that the plaintiff would have required more than 4 hours assistance immediately after the accident.
- I prefer the evidence of Mrs Coles on the basis outlined above, namely, that she has had a greater association with the plaintiff’s case and has received more insight into his needs from the time of the accident until the present.
- As with other parts of the plaintiff’s claim it is important to bear in mind that the plaintiff should not be under-compensated because he has, through his own determination, been able to do more than others might have in the same situation. His compensation should not be reduced simply because he is a stoic. His injuries were great and so were his needs for many years after the accident. I accept what Mrs Coles says with respect to the appropriate amount of care which was needed and award $120,000 for this claim. Interest on that sum at the rate of 5 per cent for 16 years is $96,000.
- Ms McNamee’s assessment of the plaintiff’s future needs is based in part upon the manner in which he has organised his life in the United States. He lives in a small house, he works a lot of hours at his studio (he sometimes sleeps there) and he has set up his yard for low maintenance.
- Ms Schumacher, who gave evidence, estimates that she spends 6 to 10 hours a week assisting the plaintiff.
- One of the areas of concern for the plaintiff is that he is very unstable when standing or walking and he has suffered and will probably continue to suffer serious injuries caused by falling. When he does fall, his needs for care increase significantly. There is no doubt that the plaintiff’s needs will increase as he ages. I accept Mrs Coles’ view of the care that he needs in the future. The plaintiff has accepted the defendants’ hourly rate of $22.50 (as it accepted the defendants’ rate for past care of $15 an hour). I think that an appropriate allowance for care is 8 hours per week for 27 years. I will use the 3 per cent multiplier as this claim is unaffected by the Civil Liability Act 2003 (Qld). An amount of $174,780 is the result. That, though, needs to be reduced for contingencies which I will apply at 15 per cent to arrive at $148,563.
Future medical expenses
- The plaintiff’s injuries are such that he will require continuing medical attention. The claim is for $25 a week for 27 years which is reasonable. The award, after contingencies, is $16,640.
Future physiotherapy and hydrotherapy
- The plaintiff claims the sum of $78,300 for this treatment. There was evidence that the plaintiff had required this type of treatment. His injuries are those which are accepted as being capable of being relieved in this way. I will allow $80 a week for 27 years and apply a discount of 15 per cent, resulting in an award of $53,244.
Future pharmaceutical expenses
- The defendants concede that the plaintiff will require ongoing medication and submit that $25 per week is appropriate. Once again, the evidence to support this claim is sparse but, doing the best I can, I will allow a total of $80 a week. Using the 5 per cent tables (as the plaintiff did in his Statement of Loss and Damage) and then applying a discount of 15 per cent for contingencies results in an amount of $53,244.
- In his report of August 2001, Dr Tuffley (Ex 93) suggested that future surgery would be needed and estimated the cost at $12,000. The plaintiff has not undertaken this surgery and, so, the defendants claim that the award should be discounted to reflect that it may be an expenditure incurred in the future. This was not explored by the defendants during the trial. Given that the estimate of the cost was made in 2001, I think a sufficient discount has been incurred through a decrease in the time value of money. I will award $12,000 under this head.
Future psychiatric treatment
- In the report of Dr Hamilton (Ex 90) the need for future psychiatric treatment was raised. It was not disputed during the trial. I will award the sum of $8,800.
Future architectural adjustments
- The plaintiff claimed $57,800 for the cost of future architectural adjustments to his residence. There was no evidence to support this claim. The defendants concede that some amount may be appropriate and, in the absence of any detail, I will award $25,000.
- Other matters claimed by the plaintiff include matters relating to his almost certain deterioration and need for wheelchair equipment and aids. In Mrs Coles’ report of 2001 she sets out her estimates of what will be required. As the plaintiff’s lifespan has not been reduced by his injuries he can expect to require this type of equipment for another 27 years.
- Ms McNamee took a different view of some of the plaintiff’s future requirements but, in their final submissions, the defendants conceded that an appropriate amount for future special damages was $78,196.47. I will award the amount claimed by the plaintiff of $78,300.
- I have throughout the above reasons allowed interest for the total period from the time of the accident. The defendants have submitted that due to the delay by the plaintiff in bringing the matter to trial that interest should not be allowed for that period. It was contended that 12 of the 15 years had been the subject of waste in the sense that the plaintiff had delayed in prosecuting the case. That may be correct, but the defendants did not plead that interest should not be allowed for the whole period and no amendment has been sought. Further, the defendants, in the usual circumstances, have had the use of the money the subject of these calculations for the entire period.
Award of Damages
Interest on general damages
Z-CoiL shoes $ 5,600.00
Orthopaedic shoes $ 3,000.00
Past economic loss
Past superannuation loss
Interest on past economic loss
Future economic loss
Future loss of superannuation
Interest on past care
Future medical expenses
Future physiotherapy etc
Future pharmaceutical expenses
Future psychiatric treatment
Future architectural adjustments
- The claim against the first defendant is dismissed.
- I give judgment for the plaintiff against the fifth defendant in the sum of $1,729,566.
- Published Case Name:
St Clair v Timtalla Pty Ltd & Anor
- Shortened Case Name:
St Clair v Timtalla Pty Ltd
 QSC 296
20 Aug 2010
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 296||20 Aug 2010||-|
|Primary Judgment|| QSC 480||24 Dec 2010||-|
|Appeal Determined (QCA)|| QCA 188||09 Aug 2011||-|
|Special Leave Refused|| HCASL 17||09 Feb 2012||-|