Robinson Helicopter Company Incorporated v Graham James McDermott and Others

• Jurisdiction: Australia Federal only
• Judge: French CJ,Bell,Keane,Nettle,Gordon JJ
• Judgment Date: 08 June 2016
• Neutral Citation: [2016] HCA 22
• Docket Number: B61/2015
• Court: High Court
• Date: 08 June 2016

[2016] HCA 22

HIGH COURT OF AUSTRALIA

French CJ, Bell, Keane, Nettle AND Gordon JJ

B61/2015

Robinson Helicopter Company Incorporated

Appellant

and

Graham James McDermott & Ors

Respondents

Representation

S L Doyle QC with M T Hickey for the appellant (instructed by Meridian Lawyers)

W Sofronoff QC with M E Eliadis and C K George for the respondents (instructed by Shine Lawyers)

Civil Liability Act 2003 (Q), ss 9(1)(c), 12.

Civil Aviation Regulations 1988 (Cth), regs 31, 42V(1), 42ZC.

Robinson Helicopter Company Incorporated v McDermott

Torts — Negligence — Personal injury — Breach of duty of care — Duty to take precautions against risk — Where first respondent seriously injured in crash of helicopter manufactured by appellant — Where crash resulted from defect caused by third party — Where helicopter subject to multiple routine inspections but defect not detected — Whether appellant's maintenance manual for helicopter provided sufficient instruction to facilitate detection of defect — Whether appellant breached duty of care.

Torts — Negligence — Causation — Where majority of Court of Appeal found multiple possible causes of damage suffered — Whether open to majority of Court of Appeal to find one particular possibility more likely to have occurred than other possibilities — Whether causation established by failure to take precautions against risk other than that which in fact occurred.

Appeal — Rehearing — Where primary judge drew inferences and made findings of fact based on lay and expert evidence — Whether majority of Court of Appeal erred by overturning primary judge's findings of fact.

Words and phrases — ‘causation’, ‘contrary to compelling inferences’, ‘glaringly improbable’, ‘incontrovertible facts or uncontested testimony’, ‘real review’.

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 19 December 2014, and in their place order that the appeal be dismissed with costs.

1 French CJ, Bell, Keane, Nettle AND Gordon JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. It arises out of the crash of a Robinson R22 helicopter (‘the helicopter’) which resulted in the death of the pilot and in the first respondent (‘Mr McDermott’) suffering serious injuries. The essential question at first instance and on appeal was whether the Maintenance Manual for the helicopter (‘the Manual’) provided an adequate inspection procedure for the detection of the defect which caused the crash. At first instance, the primary judge (Peter Lyons J) dismissed Mr McDermott's 1 claims against the appellant (‘Robinson’), in negligence and under the Trade Practices Act 1974 (Cth) (‘the TPA’), holding that the Manual provided adequate instructions to identify the defect 2. On appeal, a majority of the Court of Appeal (McMurdo P and Alan Wilson J) allowed the appeal, holding that the Manual did not provide adequate instructions to detect the defect and, ultimately, that Robinson was liable either in negligence or under the TPA 3. Holmes JA dissented.

2 For the reasons which follow, the majority of the Court of Appeal erred in their interpretation of the evidence, and thus in overturning the judge's findings of fact, and also in relation to causation.

The facts

3 On 30 May 2004, Mr McDermott was a passenger in the helicopter, from which he was inspecting fences on a cattle station in the Northern Territory where he lived with his wife. During the course of the flight, the helicopter crashed and, as a result, the pilot was killed and Mr McDermott suffered serious injuries. The crash was caused by the failure of the helicopter's forward flex plate (‘the flex plate’).

4 The flex plate and associated parts had been removed and reassembled on 17 February 2004. After reassembly, but before the crash, the flex plate had been subject to two ‘100 hourly’ inspections on 27 March 2004 and 12 May 2004. Such inspections were known as 100 hourly inspections because they were

carried out approximately every 100 hours that the helicopter was in operation. After reassembly, but before the crash, the helicopter had also been subject to a number of routine pre-flight checks by pilots who flew the helicopter during that period.

The flex plate

5 The flex plate was part of the helicopter's drive system which transferred torque from the helicopter's engine to the main rotor gearbox, which in turn drove the main rotor shaft, causing the rotor blades to rotate. The flex plate operated as a universal joint coupling between the clutch yoke and the drive shaft. Its function was to allow the main rotor shaft to be aligned at a different angle from the engine drive shaft. The flex plate was made of thin, flexible metal in the approximate shape of a four-pointed star. At each point of the star there was a bolt (also known as a fastener) with a washer and nut to secure the flex plate between the clutch yoke and the drive shaft.

6 The flex plate was required to withstand considerable stress. Other things being equal, it was capable of withstanding the stress as long as each of the four bolts was tightened to the requisite degree. If, however, a bolt were not sufficiently tightened, it was likely to rotate, place stress on the bolt hole and generate cracks in the flex plate. In order to guard against a bolt becoming loose, the Manual required that each bolt and nut of the flex plate be fitted with a secondary fastener, called a palnut. A bolt fitted with a palnut could not become loose without the palnut becoming loose. Consequently any observable movement in a palnut, or the absence of a palnut, served as an indicator of possible bolt rotation.

7 It is not disputed that the flex plate failed and the crash occurred because, contrary to instructions given in the Manual, one of the four bolts securing the flex plate (‘Bolt 4’) was incorrectly assembled and, when so assembled, was not tightened to the requisite degree (‘the defect’). Robinson did not cause the defect and it was not known who did. There was evidence from which the judge inferred that Bolt 4 was not tightened to the requisite degree when the flex plate and associated parts were removed and reassembled on 17 February 2004. The focus of these proceedings, however, was not so much on when and how the defect arose as upon whether the Manual provided sufficient instruction to facilitate detection of the defect at subsequent inspections.

Inspection procedures for the helicopter

8 At relevant times, the maintenance requirements for the helicopter were governed by the Civil Aviation Regulations 1988 (Cth) (‘the Regulations’). Perforce of reg 42ZC, only certain classes of person were permitted to carry out maintenance work on the helicopter. One such class of person was licensed aircraft maintenance engineers (‘LAMEs’). A LAME was a tradesperson who was sufficiently skilled and qualified to have been issued a licence pursuant to reg 31 of the Regulations. Each LAME who performed maintenance work on the helicopter was required by the Regulations to do so consistently with instructions given in the Manual 4. Importantly, the Manual required that during 100 hourly inspections the LAMEs ‘verify security’ of the flex plate. The 100 hourly inspections performed on the helicopter on 27 March 2004 and 12 May 2004 were conducted by LAMEs Mr Fisher and Mr Bray respectively.

Torque, torque wrenches and torque stripes

9 Torque is a measure of the twisting or rotational force acting upon an object. It was used in the Manual as a measure of the tightness of a bolt. Used as a verb in the Manual it referred to the action of applying torque to tighten the bolt. The Manual specified various degrees of torque (or tightness) required for the various bolts and other fasteners within the helicopter. Although bolts can be torqued with a range of tools, including spanners, the Manual provided for the use of a torque wrench. A torque wrench can be set to a particular torque setting so that when applied to a bolt it will tighten the bolt to that torque and no further.

10 Under the heading ‘1.300 FASTENER TORQUE REQUIREMENTS’ the Manual provided that: ‘Fasteners shall be torqued to standard dry values listed in Section 1.320 unless otherwise specified.’ The torque setting for Bolt 4 was otherwise specified as 240 inch pounds. Section 1.310 of the Manual further provided that:

‘A secondary locking mechanism is required on all critical fasteners. B330 stamped nuts (palnuts) serve as the secondary locking mechanism …

…

Torque seal (paint) is applied to all critical fasteners after palnut installation in a stripe across both nuts and exposed bolt threads. The

stripe should extend to the part being fastened to show bolt rotation. Any subsequent rotation of the nut or bolt can be detected visually.’

Bolt 4 was a critical fastener.

11 The portion of the Manual pertaining to torque stripes was amended after the crash but, as the judge observed, there was no material difference between the two versions.

12 As was established at trial, and is apparent from the Manual, the purpose of a torque stripe is to signify that a fastener has been correctly torqued and to provide a visual indication of the possibility of a loss of torque and resulting bolt rotation. When applied correctly, the part of the stripe which is painted across the palnut, nut and bolt aligns with the part of the stripe which is painted on the horizontal clamped surface that the bolt is meant to fasten. A loss of torque leads to rotation of the bolt relative to the horizontal clamped surface with consequent misalignment between the sections of the stripe. The presence of that kind of misalignment is a visual indication of the possibility of a loss of torque and the consequent need for the fastener to be examined...