McLeod v Flight West Airlines Pty Ltd
[2000] QDC 409
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- Unreported Judgment
- McLeod v Flight West Airlines Pty Ltd[2000] QDC 409
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McLeod v Flight West Airlines Pty Ltd[2000] QDC 409
McLeod v Flight West Airlines Pty Ltd[2000] QDC 409
DISTRICT COURT OF QUEENSLAND
CITATION: | McLeod v Flight West Airlines Pty Ltd [2000] QDC 409 |
PARTIES: | SCOTT MacLEOD (Applicant) v FLIGHT WEST AIRLINES PTY LTD (Respondent) |
FILE NO/S: | No 45 of 1999 |
DIVISION: | Trial |
PROCEEDING: | |
ORIGINATING COURT: | District Court at Cairns |
DELIVERED ON: | 17/11/2000 |
DELIVERED AT: | Cairns |
HEARING DATE: | 20/7/2000 |
JUDGE: | Bradley DCJ |
ORDER: | Application dismissed Order that the applicant do pay the respondent’s costs of and incidental to the application as agreed or failing agreement, as assessed. |
CATCHWORDS: | Limitations of Actions Act 1974 s. 30, s. 31 Application for extension of period of limitation – “material fact of a decisive nature” |
COUNSEL: | C. Jensen for the applicant M. Glen for the respondent |
SOLICITORS: | Thompson & Royds for the applicant MacDonnells for the respondent |
Background
- [1]On 3 January, 1993 the applicant was the pilot of an aircraft, a Beechcraft Barron (“the aircraft”) owned by the respondent. He experienced some difficulties in flight after leaving Horn Island bound for Yam Island and concluded that the nose wheel gear on the aircraft was damaged. Attempts were made to manually lower the main landing gear, but when the aircraft was landed at Weipa (to where the applicant diverted) its main landing gear was fully retracted.
- [2]It is not disputed that the cause of the failure of the nose wheel gear was the breaking of a rod-end attachment.
- [3]As a result of the accident the applicant alleges that he sustained psychological injuries including Post Traumatic Stress Disorder. The applicant filed a claim seeking damages for personal injuries in this Court on 3 September, 1999 and on the same date filed an application pursuant to s. 31 of the Limitation of Actions Act 1974 (“the Act”) seeking an order for the extension of the period of limitation for his action.
- [4]It is the applicant’s contention that until April, 1999 he had no reason to suspect that the crash occurred as a result of the negligence of the respondent. As a result of information he received and inquiries made subsequent to April, 1999, the applicant obtained copies of various documents, most importantly a Submitter’s Report or Defect Notice (the “Submitter’s Report”) from the Civil Aviation Safety Authority (“CASA”). That report, dated 8 January, 1993, details the findings of the submitter who inspected the aircraft involved in the crash on 3 January, 1993. The author of the report, “Kerwitz”, comments that -
“Rod end attachment from gear box arm to fwd. retract rod broken at neck of thread.”
and gives as his opinion as to the cause of the defect:
“Rod end breaking. Inspection carried out to verify if retract rod for nose gear system had fouled on any airframe rib or abnormal rod installation had caused failure. No abnormalities found, the nose gear could be retracted and extended without unusual force of rods fouling on the airframe.”
- [5]The Submitter’s Report states that two types of rod-end were approved for use in the landing gear retract system of the type of aircraft flown by the applicant, a hollow shank and a solid shank. The Submitter’s Report states that “hollow type has history of failure”. The applicant received a copy of the Submitter’s Report on 13 July, 1999.
- [6]The applicant asserts that other documents obtained by him subsequently, in particular Beechcraft Service Instructions No. 0600-205 which apparently issued in November 1973, and reference in reports to two other accidents involving the same part (one prior to January 1993 and one subsequent) indicate that the respondent should have taken action to replace the hollow rod-end with a solid rod-end on the aircraft and that its failure to do so led to the defective operation of the nose landing gear and the subsequent forced crash landing.
- [7]The applicant consulted solicitors on 19 and 27 August, 1999 and his claim and this application was filed on 3 September, 1999.
- [8]The author of the Submitter’s Report is now deceased and it is argued by the respondents that the reference to the hollow type rod-end having a “history of failure” cannot now be explored or tested.
- [9]Following the crash the applicant’s employment was terminated, his employer arguing that his failure to follow approved procedures (in particular, his failure to ensure that the main landing gear was extended prior to landing) had resulted in the aircraft being written off. The applicant appealed against the termination of his employment to the Australian Industrial Relations Commission (“IRC”) and hearings regarding his claim took place throughout 1993. On 16 December, 1993 a decision was handed down by the Commission whereby the applicant’s termination of employment was upheld.
Legislation
- [10]Section 31 of the Act applies to actions for damages which include damages in respect of personal injuries and subsection 2 of that section provides:-
“(2) Where on application to a court by a person claiming to have a right of action to an action to which this section applies, it appears to the court –
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the deceased person or the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action, apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the deceased or the applicant in that court, the period of limitation is extended accordingly.”
Section 30 of the Act provides:
30.(1) For the purposes of this section and sections 31,32,33 and 34 -
(a) the material facts relating to a right of action include the following –
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused;
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c) a fact is not within the means of knowledge of a person at a particular time if but only if –
(i) the person does not at that time know the fact; and
(ii) as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time.”
(2) In this section –
“appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, as the case may require;
- [11]The applicant contends that the relevant “material fact of a decisive nature” was that the hollow eye-end fitting which failed had a history of failure and should have been replaced with a solid fitting. The applicant contends that this fact was unknown to him until 13 July, 1999.
- [12]Section 31(2) of the Act however, requires the applicant to show that the material fact was not within his means of knowledge “until a date after the commencement of the year last preceding the expiration of the period of limitation for the action”. The period of limitation for the action expired on 3 January, 1996. Accordingly, a date after the commencement of the year last preceding 3 January, 1996, would be a date after 3 January, 1995.
Questions to be determined
- [13]The critical issues to be determined upon this application therefore are –
- Was the information contained in the Submitter’s Report obtained by the applicant on 13 July, 1999 a material fact of a decisive nature relating to his right of action?
- If so, was that material fact not within the means of knowledge of the applicant until after 3 January, 1995?
- Has the applicant established a right of action?
- If so, does that right of action have reasonable prospects of success?
- If so, would a successful action result in an award of damages sufficient to justify the bringing of an action on that right of action?
- Has the respondent been unduly prejudiced by the applicant’s delay in commencing his action?
Respondent’s argument
- [14]The respondent’s argument is briefly that –
1. The material fact was within the means of knowledge of the applicant prior to 3 January, 1995.
2. That the material fact relied upon by the applicant is not a new material fact and is not of a decisive nature.
3. Alternatively, the applicant has failed to establish that, apart from the assertion in the Submitter's Report, there was in fact a “history of failure” of the rod-end used in the aircraft or that the rod damage was the result of any defect or omission of the respondent.
4. That the respondent would be unduly prejudiced if the application were successful as the sole evidence of there being “a history of failure” of the rod-ends is in a written statement by a deceased former employee of the respondent.
Applicant’s evidence
- [15]I have before me four separate affidavits sworn by the applicant in support of this application. These detail his actions with respect to the flying and landing of the aircraft on 3 January, 1993; the Post Traumatic Stress and Shock that he had suffered as a result of the crash; the steps he has taken to obtain information regarding the cause of the crash and the nature of the information that he has received; and his response to the affidavit evidence filed on behalf of the respondent.
- [16]A chronology of the information received by the applicant leading up to filing his claim appears to be:-
- August 1994 – received Occurrence Brief from Bureau of Air Safety Investigation (“BASI”).
- April 1999 - verbally advised by an airline safety adviser of latent aircraft failures due to inadequacy of engineering and maintenance on type of aircraft.
- 24 June 1999 - spoke to officers at BASI and received copy of a Brief Print (Public).
- Subsequently - advised by officers at BASI to obtain Submitter’s Report from CASA.
- 13 July 1999 - received Submitter’s Report.
- Subsequently - received Beechcraft Service Instructions 0600-205
- Subsequently - received CASA Airworthiness Directive Policy.
- 26 July 1999 - received advice from aircraft manufacturer that Service Instruction 0600-205 was issued in November 1973 and manufacturer has no statistics available for failure of the part.
- 28 July 1999 - received CASA Major Defect Report re 30/9/86 incident.
- 10 April 2000 received Australian Transport Safety Bureau Summary Report (Public) re 22/1/97 incident.
- [17]Additionally, the applicant gave evidence and was cross-examined at the hearing of this application.
- [18]The applicant admitted that as at January, 1993 he had been a pilot for some 12 years and held an Airline Transport Pilot’s Licence, the highest category of pilot’s licence. He admitted that he was aware that both CASA and BASI would have received documents relevant to the accident following its occurrence. The applicant further admitted that the Australian Federation of Air Pilots represented him at the Industrial Relations Commission hearing and that he did ask the Federation to look into the cause of the accident for him but that he was told they were unable to do so.
- [19]It was the applicant’s evidence that in about August 1994 he did make inquiries of both CASA and BASI in an attempt to obtain relevant documents and information but he said that couldn’t recall what documents he obtained in 1994.
- [20]The applicant did not make any Freedom of Information applications to either CASA or BASI in 1994 because he says he was not aware that he had the right to do so. He agreed, however, that the accident had had a major effect on his career and on his health and that he wanted to do something about it. However, he was unaware of his legal rights and did not consult a lawyer because he was “unemployed or very poor at that time”. In fact the first time the applicant approached a lawyer was following his receipt of the Submitter’s Report when he went to the Cairns Community Legal Centre in 1999.
- [21]It was the applicant’s evidence that he has continued to investigate the accident ever since it occurred in 1993 although his efforts became more intense when he received the verbal information in about April, 1999.
- [22]Whilst there is a deal of evidence before me as to the accessibility of the Submitter’s Report from CASA and whether or not an application pursuant to Freedom of Information legislation would be necessary to obtain it, it was the applicant’s evidence that ultimately when he requested a copy of the Report from CASA, it was readily forwarded to him without the necessity of any such application.
- [23]The applicant did not impress me as a credible witness, he was inclined to avoid giving straight and direct answers to questions and his explanations for failing to take steps to obtain information and advice were unconvincing and implausible. At the time of the accident the applicant was an experienced pilot and well-versed in the procedures of the industry. He presented as a relatively sophisticated and knowledgable person who, if unaware of an aggrieved or injured person’s rights would have no difficulty seeking appropriate advice and direction.
- [24]The only evidence before me regarding the injury suffered by the applicant as a result of the accident is a report dated 29 December, 1999 prepared by Kerry Douglas a senior consultant psychologist. In her report Ms. Douglas describes the applicant’s underlying personality style as “somewhat obsessive with a fairly rigid value system displayed externally as conscientious and meticulous with good attention to detail and rules. This personality style is fairly characteristic of pilots and is clearly valued in the aviation industry.”
- [25]Under the heading Effect on Lifestyle Ms. Douglas states:-
“It is not possible to anticipate the full impact of the accident and its aftermath on Mr. MacLeod’s career. Clearly the accident and his subsequent dismissal would have had a profound impact on his confidence in his skills. He was able to find employment with a reputable carrier in Cairns. Nevertheless, Mr. MacLeod’s present psychological state is likely to severely impact upon his motivation, commitment and self-esteem. It would be unlikely now that he would be successful in the psychological testing aspect of an interview process for commercial airlines – testing designed to access some of the aspects of personality and psychological state mentioned above.”
It is Ms. Douglas’ opinion that –
“Mr. MacLeod does not suffer from a psychiatric condition as such although he does meet many of the criteria for major depression. After the accident he would have suffered from an acute stress reaction There is no evidence that he went on to Develop Post Traumatic Stress Disorder.
I consider that Flight West Airlines had a responsibility to offer Critical Incident Stress Debriefing to Mr. MacLeod within 72 hours of the accident. Psychological debriefing and social support from the company management and other staff may have alleviated his initial symptoms, preventing feelings of isolation and abandonment. Without that sort of support in my experience, individuals will develop a clinical depression and anger symptoms.
His current condition is attributed to the above, his ongoing “battle” for justice and compensation as well as his isolation from peer support. I do not offer an opinion as to the company’s decision to dismiss Mr. MacLeod or the results of the investigation process.
Mr. MacLeod requires psychological and medical treatment for his depression. If this report was required for medical examination – fitness to fly, Mr. MacLeod would be grounded with a review in six month’s time.
Psychological treatment would be over a period of six months comprising 12 twelve sessions of cognitive therapy at $155.00 per hour (APS item 103).”
- [26]There is nothing in Ms. Douglas’ report that would indicate that the applicant’s psychological condition has adversely affected his ability to act in his own interests. Indeed, the report speaks of the applicant’s ongoing “battle” for justice and compensation.
Respondent’s evidence
- [27]Affidavits filed by the respondent reveal that the author of the Submitter’s Report, Dave Kerwitz, was at the time of the accident employed as the technical records officer for Flight West Airlines in Cairns and that Mr. Kerwitz passed away in about March this year.
- [28]Denis Cavanagh, the Human Resources and Industrial Relations Manager for the respondent, who was involved in the hearing concerning the applicant before the Industrial Relations Commission as Industrial Advocate for the respondent, states that the basis of the termination of the applicant’s employment was that the applicant failed to follow correct procedure leading to the aircraft being damaged by landing with the main gear retracted. Exhibited to Mr. Cavanagh’s affidavit is a report under the hand of Gary Govan, a Flight West engineer, dated 8 January, 1993 who inspected the aircraft at Weipa and who confirmed that the aircraft landed with its main gear retracted but that the main gear was operating normally. The applicant does not contest this finding, although he does argue that he did attempt to lower the main landing gear manually but asserts that it was the failure of the nose landing gear that led to the necessity to crash land.
- [29]An affidavit sworn by Alan Leslie Stray, the Deputy Director of Air Safety of the Australian Transport Safety Bureau (formerly BASI) details the documents that would have been available to the applicant through BASI following the accident both by way of general request and pursuant to an application under the Freedom of Information legislation. Records examined by Mr. Stray indicate that a copy of the Air Safety Occurrence Report was forwarded to the applicant on 23 August, 1994. That report essentially confirmed the applicant’s version of events prior to the crash landing and that the main landing gear, although operating normally, was retracted at the time of landing.
- [30]An affidavit by Colin John Whyte, a Cairns aircraft engineer, who has worked on the model Beechcraft Barron involved in the accident, states that an Airworthiness Directive requiring compliance with the Service Instruction issued by Beechcraft in November 1973 has never been issued. Accordingly, there was no formal obligation on the part of the respondent to comply with the Service Instruction. It is Mr. Whyte’s opinion that the Service Instruction was issued as an evolutionary refinement so as to allow the relevant parts to be updated in due course and it was not a mandatory instruction.
Findings
- [31]Accepting, for the moment, that the relevant fact relied upon by the applicant is a material fact of a decisive nature relating to his right of action, it was the applicant’s evidence that despite the reasons given for the termination of his employment and the findings of the Industrial Relations Commission he always believed that the cause of the accident was the breaking of the rod-end in the nose landing gear system and that he was not at fault. His evidence was that ever since the accident he has, to some extent, been taking steps to investigate the cause of the rod-end failure. When in mid 1999 he made inquiries with both BASI and CASA he was provided with relevant documentation include the Submitter’s Report without the necessary of making an application under Freedom of Information legislation.
- [32]It has always been the applicant’s position that he was not to blame for the accident. Although, until he received the Submitter’s Report, he was unaware of any negligence on the part of the respondent, given his belief and his circumstances following the accident it is reasonable to expect that the he would have made all possible inquiries to ascertain if any other relevant party had in fact been negligent. The test of reasonableness is an objective one.[1] It is clear that there is no requirement to take appropriate advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a plaintiff to have done so[2]. However, in the applicant’s particular circumstances it was, in my view, reasonable to expect that he do so.
- [33]To put it another way, had the applicant sought advice from an appropriately qualified person within the aviation industry, such as an airline safety adviser, or from a solicitor, prior to 3 January 1995, he would, in all probability have discovered “the material fact of a decisive nature” now relied upon.[3] It was reasonable for him to seek that advice during the relevant time.
- [34]Whilst I accept that the Submitter’s Report did not come into the applicant’s possession until 13 July, 1999 and that he was, until then, unaware of its existence, the evidence before me indicates that that report would have been available to the applicant had appropriate inquiries been made in 1993 and subsequently. The applicant must show that negligence on the part of the respondent was not within the means of knowledge of a reasonable person knowing what he knew. That issue is to be determined on the footing that such a person had at the relevant times taken all reasonable steps to ascertain the fact[4]. Accordingly, I am not satisfied that the Submitter’s Report was not within the means of knowledge of the applicant until after 3 January, 1995.
- [35]Similarly, there is no evidence before me to show that any of the other documents or information obtained by the applicant, subsequent to April 1999 would not have been available to him had appropriate inquiries been made prior to 3 January, 1995.
- [36]Ms. Douglas’ report and the evidence of the applicant both show that the applicant has had, ever since the accident, both a need and a desire to obtain redress. The applicant’s qualifications and experience were in his favour so far as his knowledge of the aviation industry and its investigation procedures were concerned. I find his failure to consult a solicitor until August, 1999 is also unreasonable. The applicant bears the onus of satisfying the court that the material fact of a decisive nature was not within his means of knowledge until sometime after 3 January, 1995 [5] and he has failed to discharge that onus.
- [37]For the purposes of this application I accept that the applicant has established that he has a right of action and that prima facie there is evidence of negligence on the part of the respondent. However, the material before me (particularly the parts of the transcript of the IRC hearings to which I have been referred) also indicates that it is highly likely that the applicant would be found to have contributed to the severity of the accident due to his landing the aircraft with the main landing gear retracted. Further, it is that fact which led to the aircraft being written off and to the subsequent termination of the applicant’s employment. Ms Douglas’ report makes it clear that the fact of his termination per se has contributed significantly to his current condition.
- [38]Further, Ms. Douglas’ opinion that the applicant “does not suffer from a psychiatric condition as such although he does meet many of the criteria for major depression” and the fact that the applicant subsequently found employment as a pilot and in fact, continues to fly, indicates that the applicant’s claim could only result in a very modest award of damages at best.
- [39]In these circumstances, the applicant has failed to show that his action would have a reasonable prospect of success and would result in an award of damages sufficient to justify the bringing of the action.[6]
- [40]Finally, there is some merit in the respondent’s argument that it would be unduly prejudiced if this application were successful given the recent death of Dave Kerwitz and the time which has elapsed since the accident. The granting of an extension of a period of limitation is a discretionary matter[7], and in all of the circumstances of this case, even if the applicant were able to establish that the material fact relied upon was not within his means of knowledge until after 3 January, 1995, I would not exercise my discretion in his favour.
Order
- [41]The application is dismissed and I order that the applicant do pay the respondent’s costs of and incidental to the application as agreed or failing agreement, as assessed.
Footnotes
[1] Castlemaine Perkins Limited v McPhee (1979) QdR 469
[2] Healy v Ferndale Pty Ltd (unreported) CA 37/93, p. 5
[3] Pizer v Ansett (1998) QCA 298 (29 September 1998) Byrne J para 3
[4] Pizer v Ansett ibid Thomas J para 15.
[5] Pizer v Ansett (1998) QCA 298 (29 September 1998) Thomas J para 15
[6] Limitation of Actions Act 1974 s. 30(b)(i)
[7] Ibid s. 31(2)