Recently a decision of the Court of Appeal in Queensland has been published. The decision is Johnson v Triple C Furniture and Electrical Pty Ltd 2012 1Qd R 337. Perhaps you think the insurance that you have taken over your aeroplane will protect someone near and dear who is injured as a result of your flying efforts. Think again. Paul Clough explains.
The structure of the court case is quite complex but for present purposes it is sufficient to state that the defendant, Triple C Furniture & Electrical Pty Ltd (Triple C) were the owners of a Cessna 206. The directors of Triple C were Mr and Mrs Johnson, who also worked for Triple C. Triple C insured the aircraft against both property and personal injury risks with Rural & General Insurance Ltd. An accident occurred at Wrotham Park and Mr Johnson, the pilot, was killed and Mrs Johnson and another were badly injured. Mrs Johnson, the plaintiff, sued Triple C, the defendant, who accepted the blame and then Triple C sought contribution from the insurance company. The insurance company said they would not pay for the damages suffered by Mrs Johnson. At first instance, the judge found that Triple C was vicariously liable for negligence by Mr Johnson. Further, the trial judge found that the insurer, Rural & General Insurance Ltd, should indemnify Triple C for the injuries sustained by Mrs Johnson in the sum of $846,030.
The matter came on before the Court of Appeal because the insurer appealed that the nature of Mr Johnson’s negligence was excluded by certain clauses of the insurance policy and the s54 of the Insurance Contracts Act did not operate to nullify the exclusion clause.
The principal judgment was given by Chesterman JA. The other two judges simply agreed with Justice Chesterman’s assessment of the matter. Early in the judgment, Chesterman JA stated that there was overwhelming evidence that the pilot (Mr Johnson) “was grossly careless” in his control of the aircraft. He was of the opinion “that Mr Johnson was negligent”.
But what was the basis of these rather scathing assessments of the dead pilot? To begin with, His Honour dealt with the checking and security of fuel caps. Mr McMurray, a refueller at Charters Towers said that the pilot checked one but not the other fuel cap. What was Mr Mc Murray’s flying qualifications? He had none. Yet his evidence was accepted without demur. When one checks fuel cap security what does a pilot do? I would hazard a guess that he merely looks at the security of the cap. At least that is what I did for most of my 30 years flying various aircraft. I rarely touched the fuel caps or became involved in the fuelling activity when with an airline. If I recall the C206 fuel cap it is a flush fitting cap just forward of the highest point of the wing chord. If the cap is not secure with the fuel tank it will sit above the flush surface of the wing and can be seen to be protruding above the smooth upper surface of the wing. The caps are about 6 to 8 feet apart and can be easily seen from a step ladder. How was Mr McMurray to know whether Mr Johnson when he checked one fuel cap merely used the eye ball Mark 1 and glanced at the other to see it was flush with the surface which would be enough to satisfy the security of the fuel cap check. Mr Mc Murray’s evidence was accepted to show a propensity to be negligent. It was not challenged or gainsaid. First piece of sloppy legal work.
Mr McMurray gave evidence that Mr Johnson turned the propeller over by hand to try and start it. Mr McMurray gave evidence that this activity was in some way quite beyond the pale. However, when I learnt to fly the DH82, Tiger Moth, the only way was to swing the propeller over with the switches live. Some of the early Austers were similar. In fact, I have an entry in my early log book that I was instructed in swinging a propeller to start the engine. The modern light aircraft have starters and perhaps Mr McMurray had never seen anyone swing a propeller. For that reason he was of the opinion that swinging a propeller is the mark of an incompetent pilot. From that propensity evidence perhaps Chesterman JA concluded that Mr Johnson was “grossly careless” . Was this a second piece of sloppy legal work?
The next piece of evidence that was considered said that Mr Johnson encountered heavy smoke haze and his behaviour in respect of that heavy smoke haze was less than satisfactory. Please remember at the time of trial, Mr Johnson was dead and could not give evidence of how the heavy smoke haze affected his performance or did not affect his performance. The court report is silent as to whether the aircraft or the pilot was suitable and qualified to fly IFR or simply it was a VFR operation. There was no evidence as to the extent, location or height, vertically or horizontally, of the smoke haze. What evidence if there was any would have come from laymen.
Did the heavy smoke haze merely obscure Chillagoe or was it so extensive that the route from Charters Towers via Chillagoe to Wrotham Park was obscured? The judge never commented on those issues. It is difficult to know just how the heavy smoke haze affected the flight. The flight plan was not in evidence. It was assumed that the pilot had wanted to reach Weipa that evening and was upset by delays and yet it was assumed that he wanted to overnight at Chillagoe. The two ideas do not fit together. The judge commented that after Chillagoe the pilot flew on searching for an airstrip. These contradictory comments of the judge indicate that the thrust of the evidence being lead was successful in convincing him that the pilot was “grossly careless”. There simply was no cogent evidence mentioned in the court report to lead to that conclusion. It is a rare pilot that flies in summer about Australia that does not encounter heavy smoke haze at some time. Does that ipso facto make that pilot “grossly careless”? It may make him think a bit more about fuel states or landing before last light or that more care is needed for accurate navigation but negligent? Hardly. Could this be a third piece of sloppy legal work?
Then we came to the report of ATSB and evidence of experts as to the actual accident. It can be said at the outset that the ATSB report was quite superficial. The final comment of the ATSB at paragraph 16 on page 342 is cogent: “Why the pilot lost control of the aircraft during the take off could not be determined”. However, the two experts, Messrs Ellis and Croker having, 20/20 hindsight vision, supplied their assessment of why the pilot crashed. The judge uncritically swallowed the bait. Some facts from the ATSB report were relied upon by the experts and some facts ignored. The two experts used selective facts to flesh out their diagnosis that in fact Mr Johnson was either “grossly careless“ or “negligent”.
Let us analyse the various facts to determine, if possible, why the accident occurred and whether the pilot, Mr Johnson, was in fact “grossly careless” or “negligent”.
1. The pilot’s use of the airstrip at Wrotham Park – The pilot used about 700 metres of available length (Ellis). There were no obstructions affecting the approach and departure flight paths (ATSB). The field was 500 feet above sea level (ATSB). The flight was at first light about 6am in October (ATSB). From this last fact one can assume the temperature was about 15 degrees. If one uses the take off chart given in the manufacturers handbook and enters these details it is apparent that the pilot had more than sufficient strip length for the proposed flight even if he used only two thirds of the available length. Because the take off path was free of obstructions the available length was not foreshortened. Nothing “grossly careless” or “negligent” in that.
2. The strip was gravel and in good condition (ATSB) – As I recall the decelerating effect of gravel on an F27 was 10% or put another way, a sealed runway was 100% available length; a grass strip was 95% available length and a gravel strip was 90% available length. If the same criteria are applied to this light aircraft, it follows that the 700 metres available length should be reduced by 10% in calculating the amount of run available on the day. Again looking at the take off chart, the pilot was still within take off limits. Again, nothing “grossly careless” or “negligent” in that. It is to be observed that the take off chart or any other take off criteria was not in evidence by ATSB or the two experts. Can it be said Mr Johnson was “grossly careless” or ‘negligent” on this issue?
3. Weight and Balance – The aircraft was not overloaded and should have easily taken off within the available length under normal circumstances (ATSB). This hardly indicates a “grossly careless” or “negligent” attitude.
4. Yaw and wing drop at low level – Mr Ellis was the only one of the three experts to deal with this fact in some depth. He said “The Cessna 206 develops a considerable degree of propeller torque, during initial take off. The effect is for the aircraft to yaw to the left, which needs to be countered with considerable right rudder input by the pilot”. What Mr Ellis said is technically sound. However, he stopped short of advancing just how much ft/lbs of work was needed on the rudder pedal to keep the aircraft straight both on the strip and in the air. Also relevant was the fact that Mr Johnson had flown the C206 22 hours in the last 6 weeks (ATSB), which is a relatively high degree of currency for a private pilot and he would have been acquainted with the amount of rudder pedal needed to keep the aircraft straight on the strip/runway and after takeoff.
5. Stall warning sounding – One of the passengers later recalled hearing the stall warning activate shortly after takeoff (ATSB). This does not prove that the pilot negligently stalled the aircraft on takeoff. Had that happened the aerodynamic qualities of the aeroplane would have ensured the aircraft sank onto the runway soon after the point of lift off rather than fly some 100 metres south west of the centre line to strike a mast eight feet in the air. It simply means that the stall warning vane is indicating that the wing itself is very close to the critical angle of attack and is providing an aural warning of a potential stall.
6. Engine torque – The C206 has a healthy power/weight ratio when lightly laden. Torque is quite substantial. Another aircraft that some readers may be conversant with is the Sea Fury, a Korean War naval fighter. Such is the torque effect on takeoff only 70% power is applied initially on take off until the tail is up, then full power is applied for acceleration on the old straight through flight decks of the carriers at that time. If full power is applied on overshoot invariably the Sea Fury will roll to the left and drop a wing. There are photographs of this occurring off HMAS “Melbourne”.
Again with hindsight and not holding a brief for either the injured party or the insurer in this matter, I suggest that the last three facts indicate the cause of the accident and the other three facts having little involvement.
To delve into history, as a trainee stiff wing pilot, I undertook the RAAF basic flying training course at Point Cook in 1960. The RAAF are wont to fly their aircraft to the limits for operational reasons. Trainee RAAF pilots are shown and complete many functions not canvassed by civil trainee pilots such as aerobatics and formation flying. One of these manoeuvres is the torque stall. The aircraft is taken to the point of a clean stall with a trickle of power applied, 5” or 10” MP. Just at the stage of nose drop, full power of about 27”MP is applied. The onset of the stall was rapid and frightening. Wing drop, sudden yaw and roll almost inverted occurred in the blink of an eye. The first time I experienced it, I lost 1000’ in the recovery. I was ultimately expected to recover in less than 100’.
With that in mind, and when reviewing the ATSB report and the comments of the two experts, it is quite possible that Mr Johnson may have experienced the onset of a torque stall and not been aware of such a stall’s hazardous and fearful qualities. It may have been his first experience of it and he had no altitude to recover. The fact that Mr Johnson was unaware that such nastiness can occur suddenly does not render him negligent or grossly careless, simply ignorant and inexperienced.
That is not the end of the findings of the Court of Appeal. The Court made much of the fact that Mr Johnson may not have completed a biannual flight review. Much of the decision concerned the syllabus, hopes and aims of this procedural flying activity. It was not certain whether Mr Johnson had not in fact completed a BFR in the last two years. Assuming he had completed a BFR, it is not normal for a civil pilot to complete a torque stall even at height. I have completed a few some years ago and the instructor merely went through the motions because he thought a holder of a first class ATPL did not need to have issues pointed out to him when he flew light aircraft. If the BFR is not used as an active tool to impart knowledge its value is nothing more than a written notch on one’s gun belt log book.
If Mr Johnson has not been introduced to torque stalls in a BFR, even if he completed it he would have been blissfully unaware of the dangers of lifting off early in an aircraft with a high power/weight ratio with full power applied. Ignorance is not negligence. Ignorance of the law, even physical laws, may be no excuse, but it is certainly not negligence.
In the end the insurance company was able to convince the judge of appeal that the propensity evidence in respect of fuel cap security and inspection, flying in heavy smoke haze, forgetting a passenger’s bag, not doing up his seat belt a second time set the scene for the coup de grace and allege he was negligent or grossly careless because he may have been ignorant or been unaware of a potential torque stall in a relatively high powered C206.
Sadly the matter was decided against a deserving injured plaintiff based on propensity evidence, half facts and no in- depth analysis of the accident and its lead up. Before writing this article, I canvassed a number of CFIs of aero clubs to determine if they advocate a BFR pilot be acquainted with a torque stall. Invariably, they said no. The reason given that many pilots now fly underpowered ultra lights and a torque stall is a contradiction in terms in that type. The second reason is that it only scares the pilot and he will not return to the aero club for another bout of scariness in the future.
Watch this space…