THE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 27-29 June 1995, 20 December 1995 NEGLIGENCE — air crash — air traffic controllers' liability — whether breach of duty — whether, if so, caused crash — held (by maj): ATC not liable. Delta Air Lines Inc v United States of America 561 F 2d 381 (1977) appld. AVIATION — civil liability — air traffic controllers' liability — duty of care — whether breach — whether caused accident — held (by maj): Not liable. EVIDENCE — expert — preference for — primacy of trial judge. Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA) consd. NEGLIGENCE — causation — proper approach to — "but for" test — assignment of responsibility for air crash — loss of engine power immediately following take-off- air pilot request immediate permission to land on specified runway — Air Traffic Control sends plane instead to the end of runway — plane crashes in sea and against sea-wall of runway causing death of all on board — primary judge (Abadee J) finds duty of care and breach of duty on part of Air Traffic Control personnel — further finds that such breach did not cause the subsequent crash of the plane and the damage sued for — upon appeal to the Court of Appeal — held: (1) (Clarke JA contra): The better view was that there was no breach of duty on the part of Air Traffic Controllers. Giannarelli and Ors v Wraith and Ors (1988) 165 CLR 543; Saif Ali and Anor v Sydney Mitchell and Co (a firm) and Ors [1980] AC 198 (HL); Whitehouse v Jordan and Anor [1981] 1 WLR 246 (HL) applied; (2) (Mahoney JA and Clarke JA; Kirby P dissenting): But, in any case, no error was shown in the judge's finding that any breach of duty proved had not caused the subsequent air crash. March v E and MH Stramare Pty Ltd and Anor (1991) 171 CLR 506 considered. Delta Air Lines Inc v United States of America 561 F 2d 381 (1977) followed. AVIATION — air safety — negligence action — air crash following take-off — liability of Air Traffic Controllers — response to emergency — need for response protective of safety of passengers and aircraft — relevance of Air Navigation Regulations — whether breach of duty of care — whether such breach caused crash and loss — held; (Mahoney JA and Clarke JA; Kirby P dissenting): If there was a breach of duty in the circumstances, it did not cause the air crash. Delta Air Lines Inc v United States of America 561 F 2d 381 (1977), considered. EVIDENCE — expert evidence — air crash — capability of aircraft — conflicting expert testimony — choice between experts — position of primary judge — preference for particular experts — whether Court of Appeal authorised to reach conclusion different from the primary Judge — held: (by majority) It is not. Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA) applied. Air Navigation Regulations Reg96, Reg219. ORDERS Appeal dismissed with costs. Kirby P This appeal concerns the entitlements of the representatives of the estates of passengers killed in an aeroplane crash, and certain of their relatives, to recover damages from the Commonwealth of Australia. The damages are 2 UNREPORTED JUDGMENTS claimed in respect of the alleged negligence of the officers of Air Traffic Control (ATC) at Sydney (Kingsford Smith) Airport on 21 February 1980 when the crash occurred. The Public Trustee (the first-named plaintiff/appellant) is the administrator of the estates of the late Donald Henderson and the late Judith Henderson. The second plaintiff/appellant is Mrs Rene Holt, mother of the late Judith Henderson. The third plaintiff/appellant is Ms Rachel Henderson, a surviving child of Mr Donald Henderson and Mrs Judith Henderson. The fourth plaintiff/appellant is Ms Tracey Henderson. The fifth is Ms Kerrie Budwe (born Henderson). The last two parties are the children of the late Judith Henderson by her first marriage. They lived with her and the late Donald Henderson who treated them as children of his marriage. Mr and Mrs Henderson, and their two weeks old child, were passengers in the aircraft when it suffered its fatal crash. The trial Judge (Abadee J) found that a duty of care existed on the part of the Commonwealth for ATC, owed to the passengers. He further found that the officers of ATC were, in particular respects, in breach of the duty of care in the way in which they conducted themselves immediately before the crash. This finding is supported by the appellants, but challenged by the Commonwealth. Abadee J also found that the breaches of duty identified by him were not the cause of the plane crash and thus of the appellants' damage. He therefore dismissed the claim against the Commonwealth. The Commonwealth supports this finding which is challenged by the appellants. Against the possibility that an appeal would occasion the reversal of his final conclusion, Abadee J proceeded to determine the damages which the several representatives of the estates of the passengers and the relatives would be entitled to recover, were liability in the Commonwealth ultimately found. The appeal proceeded on the footing that if the appellants were entitled to succeed, judgments should be entered in their favour in the sums found by his Honour. The long delay in prosecuting the litigation was never fully explained. It may be inferred that the proceedings on behalf of the estates and relatives of the passengers against the Commonwealth in respect of the alleged negligence of the officers of ATC arose out of the absence, or inadequacy, of insurance of the owners and pilot of the plane in which the passengers lost their lives. This Court unlike Abadee J, has not been concerned, as such, with the negligence of the airline or the negligence of the pilot (Captain Kerran Wahl). It may be assumed that pursuit of them was pointless from the point of view of practical recovery. The sole focus of its attention has been upon the suggested negligence of ATC and its officers for which the legal representatives of the estates of the passengers and their relatives sought to recover damages from the Commonwealth. The case before the Court bears some similarity to the decision of the United States Court of Appeals (First Circuit) in Delta Air Lines, Inc v United States of America 561 F 2d 381 (1977). That was a case where representatives of the estates of passengers killed in an air crash at Logan International Airport in Boston, Massachusetts, on 31 July 1973 sued both the airline and the United States. The latter was sued on the basis that an air traffic controller had acted negligently in the directions which he gave to the aircraft and in the response which he made to an emergency situation facing the plane as it approached its landing. The United States District Court (Caffey CJ) found that the "sole and exclusive cause of the accident was the negligence of the pilot and co-pilot". It also ruled that the plaintiffs had not proved "by a preponderance of the evidence, either that UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby PB ATC... personnel were negligent or that the conduct of ATC, however characterised, was a proximate cause of the crash either in whole or in part" See In Re Air Crash Disaster at Boston, Massachusetts, July 31, 1973 412F Supp 959 (D Mass 1976), 998. It thus entered judgment in favour of the United States which was responsible under the Federal Tort Claims Act 28 USC s1346(b) for the torts of the air traffic controllers. The United States Court of Appeals affirmed the District Court's findings, concluding that the latter's decision as to the absence of causal relationship was, within the rules of appellate reconsideration in the United States courts, not clearly erroneous. To some extent, in the light of the findings of the primary Judge in this case, and the issues debated in the appeal, this Court has travelled along the same path of considering the alleged acts and omissions of negligence on the part of the air traffic controllers and the authority of the Court to reconsider, in this appeal by way of rehearing, the findings of the primary Judge and to substitute any different findings of its own upon the facts. AIR CRASH FOLLOWING TAKE-OFF. The basic facts concerning the events immediately preceding the plane crash are set out in the reasons of Mahoney JA. I gratefully accept his Honour's chronicle. In turn, it is highly dependent upon the painstaking findings of Abadee J. About the basic facts relevant to the way in which the appellants put their case in the appeal, there was little real dispute, either at trial or before this Court. The plane in which the pilot and the deceased passengers were travelling (signature call AAV) was owned by Advance Airlines of Australia. It was cleared for take-off from runway 07/25 (runway 25) at Sydney Airport at 1907:27 hours on 21 February 1980 after an extended delay of nearly half an hour awaiting take-off clearance. At the time of its clearance, a Boeing 727 (RMO) operated by Ansett Airlines of Australia was approaching the long north-south runway (16/34) (runway 34) on "short final". At 1908:19 AAV, abeam the control tower, suffered a power failure in its left engine. This happened at a height of approximately 150 feet above sea level. This loss of power caused AAV to veer to the left thereby violating its take-off clearance instructions. A video reproduction of the simulated journey, as taken by AAV prior to the crash, was shown at the trial and seen by this Court. It clearly showed how AAV left the normal trajectory of take-off from runway 25. It came instead towards, and quite close to, the control tower in which senior tower controller, Mr NJ Clough, and his subordinate, ADC1 Warwick, were exercising their functions of air traffic control. On the evidence of the simulation, the proximity could not have been missed. At 1908.19 ATC had given RMO its clearance to land on runway 34. It was exactly at that time that AAV suffered its power failure. The senior controller, Mr Clough, doubtless alerted by the unauthorised manoeuvre of AAV, outside its instructions, directed Mr Warwick "ask the pilot [meaning the pilot of AAV, Captain Wahl] if operations are normal". Mr Warwick did not respond to this command. Nor did he comply with the instruction. Instead, at 1908.33 the pilot of AAV called ATC with the following message: "Alpha Alpha Victor we've lost, err the left engine, request landing, ah - LANDING ON RUNWAY 34 IMMEDIATELY PLEASE" (emphasis added) A number of facts are clear at this critical instant: 1. Although RMO had been given clearance to land and was on its "final approach", it was common ground that the point had not been reached where it was unsafe for ATC to give RMO 4 UNREPORTED JUDGMENTS a direction to "go around". It was still open to ATC to give that direction. Doing so would have immediately cleared runway 34, as the pilot of AAV had requested; 2. Runway 34 is an extremely long runway being the original runway extending out into Botany Bay with a long and wide tarmac designed for use by wide-bodied jet aeroplanes many times the size of AAV; 3. The pilot's message at 1908:33 cannot readily be understood in isolation. It must be read in the context of the laconic exchanges illustrated by the communications between AAV, RMO and AAT, many of which are recorded in the reasons of Mahoney JA. Because of the intense pressure of communications between pilots and ATC at a busy airport such as that at Sydney, especially at peak hours, it is clear that each communicator submits to a discipline of extremely abbreviated messages in which adjectives and adverbs are most rare, verbal exchanges are kept to a minimum and expressed in formulae designed for that purpose. Pleasantries, or words of politeness, are almost wholly absent. It is in this context that the pilot's request "landing on runway 34 immediately please" is to be understood. The adverb "immediately" in this context is arresting. The word "please" is (as I would infer) a signal of serious trouble. Whilst it is true, as Clarke JA notes, that the pilot did not explicitly send a "mayday" call or state that there was an emergency, the breach from the usual course of laconic exchanges, the flight path of the plane and the words used had the same effect; 4. The request made identified precisely what the pilot was seeking. There was no doubt about it. It specified the runway. It identified the immediacy of the request. It signalled the urgency by the word "please". It demanded an affirmative response with no need for intermediate communication. Such a response was possible because no aircraft other than RMO was, at the relevant time, approaching runway 34. RMO was in such a position that it could be "sent around" in safety. Unless doing so endangered other air traffic, the correct response to this announced emergency was a recognition of the primacy of the announced predicament of the pilot and a submission to his request. Neither Mr Clough nor Mr Warwick gave evidence before the trial Judge. Accordingly, there was no evidence from them (or anyone else) of any perceived danger to other air traffic in acceding to the pilot's request in his emergency. To the contrary, the evidence accepted at the trial and uncontested in the appeal, was that RMO could have safely been "sent around". Because neither Mr Clough nor Mr Warwick gave evidence, it is left to speculation as to why they did not conform at once to the pilot's request. It seems a fair inference, in the absence of their testimony, that they could not satisfactorily have answered questions designed to elicit their explanation. At least, in the event of uncertainty as to what their explanation was, it can be inferred that their testimony would not have supported (or wholly supported) the case for the Commonwealth. Otherwise, it can readily be inferred that the two principal actors in the service of the ATC at the relevant time would have been called to give their evidence. Re Jones v Dunkell and Anor (1959) 101 CLR 298, 320; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 (CA), 342, 350. Instead of recognising the emergency and acceding to the request of the pilot facing the emergency, Mr Warwick gave AAV the fateful instruction: "Alpha Alpha Victor. Roger. Make visual approach left base runway 34." UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby PB This instruction was fateful because, instead of allowing AAV to continue the trajectory of the circle to the left upon which it had embarked once the power failure occurred, so as to bring it over land and to afford the pilot the opportunity, as he had requested, to attempt to land on runway 34, ATC sent AAV on a course beyond the end of the runway ("'left base"). It was whilst negotiating that course that AAV, at about 1908:50, suffered a rapid descent. At 1908:58 AAV responded in the negative as to whether the "approach and landing" would be "normal". Meanwhile, at 1909:04 RMO touched down on runway 34. At 1909:08 ATC gave RMO instructions to "go around". But this had immediately to be corrected to "stay on the runway and expedite we have a landing, er, right behind you, he's one engine out'. Too late, the instruction to "go around" was given at a time when RMO had actually landed. It was followed with the clearance to AAV to land. But at 1909:22, AAV collided with the south-eastern sea-wall adjacent to runway 34. It immediately burst into flames incinerating the pilot and the twelve passengers. The foregoing basic facts can be analysed and re-analysed. But they cannot be altered. The exchanges in the last minutes of AAV are recorded. They reveal clearly enough what happened. The question for this Court is whether, in the appeal, it has been shown (as the Commonwealth contends) that Abadee J was wrong in holding that ATC breached its duty of care in the instructions given to AAV. If.Abadee J's conclusion in this regard is affirmed, it must next be asked whether (as the appellants contend) his Honour erred in holding that the breach of duty was legally irrelevant because it did not cause the crash of AAV and the consequential losses suffered by the appellants. Abadee J's conclusion that there was a breach of duty on the part of the ATC rested on the unexplained failure of Mr Warwick (and Mr Clough) to give the instruction which his Honour considered should have been given at 1908:38 to the pilot of AAV, viz, that he was cleared to land as he had requested, followed by an instruction to RMO to ego around". In my opinion, would reject the Abadee J was right to come to this conclusion. Commonwealth's contention that, in reaching this decision, his Honour erred. Basically, I would come to the same conclusion upon the same evidence and for much the same reasons as Abadee J expressed. DUTY OF CARE Critical to this conclusion is the extremely high duty of care which is owed by ATC and its officers safely to control air space around a busy airport such as Sydney (Kingsford Smith) Airport. They are bound to do so with the closest attention to the safety of aircraft using the airport, particularly at the potentially dangerous moments of take-off and landing. This is really self evident. It is a consequence of the very purpose of air traffic control. It arises from the high duty owed by the common law to all persons dependent upon the directions given by ATC officers for their lives and safety. So much is acknowledged in Shawcross and Beaumont on Air La v (3rd Ed) 665, which was quoted with approval in Nichols v Simmonds and Anor [1975] WAR 1 (SC) 16f and, by this Court, in Skyways Pty Ltd (In Liq) and Anor v The Commonwealth of Australia (1984) 57 ALR 657 (SC). The ultimate responsibility for the safety of an aircraft rests, of necessity and by applicable legislative provision, upon the pilot. Air Navigation Reg219 provides: "219(1) For each flight the operator shall designate one pilot to act as pilot in command. 6 UNREPORTED JUDGMENTS (2) In addition to being responsible for the operation and safety of the aircraft during flight time, the pilot in command shall be responsible for the safety of persons and cargo carried and for the conduct and safety of the members of the crew. (3) The pilot in command shall have final authority as to the disposition of the aircraft while he is in command and for the maintenance of discipline by all persons on board." There is a tension between the rights and duties of the pilot in command and those of ATC operators. This can be seen by considering Air Navigation Reg96 which provides, relevantly: "96(1) An aircraft shall comply with Air Traffic Control instructions. (2) Subject to subReg(2), and unless otherwise authorised by the appropriate Air Traffic Control Unit an aircraft shall not - (a) enter, operate in, or leave a control area; (b) operate outside a control area as a result of a diversion out of that control area in accordance with Air Traffic Control instruction; (c) enter, operate in, or leave a control zone or operate at a controlled aerodrome, except in accordance with an Air Traffic Control clearance in respect of the aircraft. (3) If an emergency arises that, in the interests of safety, necessitates a deviation from the requirements of an Air Traffic Control clearance or Air Traffic Control instructions, the pilot in command may make such deviation as is necessary but shall forthwith inform Air Traffic Control of the deviation. (4) The pilot in command of an aircraft is responsible for compliance with Air Traffic Control clearances and Air Traffic Control instruction." The tension to which I have referred was recognised (as Abadee J observed) in Richardson v United States 372F Supp 921 (1974): "\... Those negligence cases dealing with the respective duties of pilot and tower personnel have frequently played with what seems to be a paradox. This Air Traffic Controller must perform certain functions necessary to the maintenance of a high degree of aviation safety, yet the pilot is burdened with the ultimate responsibility for the prudent handling of his aircraft." Operating in controlled air space over the busiest international airport in Australia requires strict discipline on the part of air pilots and efficiency and effective control on the part of ATC officers. The high record of air safety in Australia speaks volumes about the normal attainment of outstanding levels of safety and discipline by pilots and ATC operators alike. But the very necessities of strict discipline and control inculcate a very high measure of semi-automatic obedience to ATC instructions. This is both expected and understandable. Ordinarily, it is desirable. It is the regime within which, as the evidence showed, the ATC and pilots such as Captain Wahl operated at Sydney Airport. A reasonable ATC operator would be aware that, ordinarily, pilots would conform to instructions without questioning them. Although under Air Navigation Regulations and by the common law, a pilot retains a residual right and duty to protect the safety of the aircraft and its passengers, common sense and ordinary experience affirm that, in the disciplined environment of the air space over Sydney Airport, an ATC command to AAV to proceed to "make visual approach left base runway 34" would usually be obeyed without further questioning or debate. This is the world in which air pilots and ATC operators respectively perform their respective important duties. UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby PY A recognition of these facts makes it self-evident that a command by an ATC operator will, almost without exception, be conformed to. So much would have been known by ATC operators Clough and Warwick, at the time of the verbal and visual indications of the emergency facing AAV and the instructions given from the control tower countermanding the request of the pilot for immediate landing clearance on runway 34 and instructing him, instead, to proceed on the much longer journey to the base of runway 34 so that RMO could accomplish its landing for which it had earlier secured final clearance. BREACH OF DUTY. The reasons why I would support Abadee J's conclusion about the breach of duty found rest, in part, upon the evidence called for the appellants at the trial and, in part, upon the inferences which reinforce conclusions from that evidence arising from the failure of the Commonwealth to call the two officers whose conduct was impugned. Those officers therefore refrained from describing, explaining and, where necessary, justifying their conduct. In saying this, I do not, of course, make the mistake of assigning the burden or proof, or disproof, of negligence on the part of ATC from the appellants to the Commonwealth. I recognise that the absence of evidence cannot, of itself, provide evidence where the appellants have failed to offer it at the trial. However, in the circumstances described, I would have little doubt that Abadee J was right in the entirety of the evidence, to conclude that the proper response of ATC when the AAV pilot asked for immediate clearance to land on runway 34 "please" was, in the circumstances, to accede to that request. My reasons include: 1. Emergencies over airports are not such a common occurrence that they need call for a purely routine response. Emergencies of any kind, at or near an airport as busy as Sydney International Airport, demand emergency responses. The loss of an engine on take-off is, by the evidence and indeed self-evidently, a critical event. It is hazardous, or potentially hazardous, to the aircraft, its passengers and crew calling for a most vigilant and urgent response suitable to the occasion; 2. Such response requires on the part of ATC a clear-sighted recognition of the perils and grave dangers which could arise from an incorrect reaction or one inadequately attentive to the risks arising from an insufficient appreciation of the extent of the emergency; 3. In such a predicament, the primacy of the position of the pilot should be respected by ATC to the full extent that control of the control area about the airport is, to the fullest extent practicable and safe, put at.the disposition of the pilot facing the emergency. Of course, if other planes and their passengers are thereby put at any risk, due consideration must be given to their safety. But if it is possible, consistently with the high duty of care to others, to provide an immediate clearance relieving the pilot of the plane facing the emergency of all other concerns and exchanges save the safe landing of his plane, that, as a general tule, is what the common law will require of ATC officers. It does so precisely because of the primacy of the position of the pilot with the emergency and the great risks that may attend distracting commands that divert the pilot from his, or her, urgent necessity to extricate the plane, typically in very short periods of time, from the emergency situation; 4. Particularly when the request was made in the terms expressed by AAV at 1908:33 to ATC, it was the duty of ATC to respond affirmatively to the precise request which the pilot of AAV was making. This proposition can be tested in the way normal for the testing of a proposition in moral philosophy and in law. What is the general rule which should be adopted in such a case? It is - 8 UNREPORTED JUDGMENTS * a clear sighted appreciation of the emergency situation; * the provision of the earliest possible clearance to the pilot to bring the endangered plane in safety back on land; * the proper diversion of all other aircraft from any position which might endanger, or interfere with them and, the control and landing of the stricken aircraft; * the removal of distracting commands and exchanges between ATC and the pilot faced with coping with the emergency; and * the immediate alert to emergency services to prepare for the risks of a mishap. These are the responses which the great perils of aircraft emergencies, on landing and take-off, necessitate on the part of ATC operators acting with reasonable care in the discharge of their high responsibilities to the safety of air crew and passengers in an aircraft facing such an emergency. They are the requirements which this Court should make plain as the principles to be applied in any such emergency. Unfortunately, in the instant case, this is not the course which was followed by Mr Warwick. Nor did Mr Clough, who was superintending Mr Warwick, override his commands and substitute an affirmative clearance as the pilot requested. Abadee J was therefore right to conclude that the appellants had shown relevant breaches of duty on the part of ATC for which the Commonwealth was liable to them if the breaches caused the crash and thus the appellants' losses and damage. CAUSATION: That leaves the question of causation. As Mahoney JA has pointed out, there were in the instant case a number of potential "causes" which could be assigned to the crash of AAV at 1908:22. It is not necessary, in order that the appellants should succeed, that they must establish that the negligent failure of ATC to clear AAV to land immediately was "the" cause, or the "sole" cause, of the mishap. It is enough that the appellants should show that the ATC's breaches of duty materially contributed to the loss and damage sued for. See Fitzgerald v Penn (1954) 91 CLR 268, 273; Barnes and Ors v Hay (1988) 12 NSWLR 337 (CA) 352. As Abadee J recognised, a tortfeasor cannot excuse itself by pointing to another contributing cause, even a dominant one. See Quigley v The Commonwealth of Australia (1981) 55 ALJR 579 (HC) 584. In the United States the test has been described by W Prosser "Law of Torts' para 30 at 143 (4th ed 1971) as "whether the failure proved had a reasonably close causal connection with the accident". Abadee J rejected the appellants' claim that the established breaches by ATC had caused the crash of the aircraft, in the aforesaid sense, by answering in the negative the following two questions: 1. Did the pilot intend at 1908:33 to fly to runway 34 by the shortest possible path? And, 2. Was the aircraft (AAV) capable of flying that path and safely landing so that, but for the negligent response of ATC, the crash would have been prevented and the losses suffered by the appellants avoided? With every respect to Abadee J's conclusions, I cannot agree with his Honour's opinion that the pilot did not intend to fly AAV to runway 34, but was content to follow the course which ATC directed, sending him to the base runway. Because neither Abadee J nor this Court had the advantage of seeing the pilot or listening to his evidence (except in the recorded exchanges available to each) there is no URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby PB reason why this Court must defer to the trial Judge's conclusion on the issue of the pilot's intention. It is based on inference applied to the recorded evidence in respect of which this Court is as well able to reach a conclusion as his Honour was. The best evidence of Captain Wahl's intention to attempt to land on runway 34 by the shortest most direct route is the statement he actually made at 1908:33 requesting clearance to do precisely that. Clearly, the pilot of AAV recognised that he had a serious emergency on take-off. He could not maintain his runway direction. His plane was already at a low altitude, diverting, irregularly, out of the control area. The plane was apparently unable to climb. It was in these circumstances that the pilot made the request to land "on runway 34 immediately please". I agree with the appellants' submission that the obvious and compelling inference to be drawn from this request is that this is precisely what the appellant intended to attempt to do. But he needed ATC's permission. Of course, it is possible to reconstruct potential journeys of AAV once the emergency struck. But the most likely indication of the pilot's intention is undoubtedly to be derived from what he said at the time, not from speculation. Contemporaneous evidence of this kind is rarely recorded and available to courts. But in this case it was. We therefore have an immediate insight, from the voice of the dead pilot in the crisis, into the intention which was then in his mind. The pilot knew that his plane was on a trajectory to the left, taking him back towards runway 34. He would have known that that runway was large and wide enough for manoeuvring once he had secured a clearance to land on it. He was aware of the loss of power and height. He was therefore aware of the critical need to get, as quickly as possible, to a point where he could safely land AAV. With all respect, I find it next to impossible in the evidence (and particularly at the recorded request of Captain Wahl) to reach the conclusion that the pilot intended to do anything other than that which he announced and requested. It was only the countermanding refusal of ATC to respond affirmatively to the pilot's request, which prevented his immediately and directly continuing the arc of his return towards runway 34 - sending him instead on the much longer journey to the base of the runway. That course was adopted because of an inappropriate response to the announced emergency, an apparent disinclination to send RMO around, or a lack of appreciation of the need to react to the announced situation with sufficient understanding of the entitlement of the pilot of AAV (if he required it) to have the entire support of ATC as he struggled to cope with the emergency which unexpectedly confronted him. That brings me to the second, and more difficult question. For the Commonwealth it was suggested that, even if Captain Wahl's intention was, as stated, to seek to land AAV on runway 34 immediately, this was an intention incapable of safe fulfilment. Abadee J found that the aircraft was not capable of flying the arc in such a way as to have maintained adequate height and proper direction so as to permit the pilot to land in safety on runway 34. According to this theory, either AAV would already have descended to a point, before the accomplishment of the arc brought it over runway 34, that it would already have lost so much height so as to cause it to crash as it did. Or, it would not have been able to align itself in such a way as to effect the announced landing on runway 34 or any other available runway which the plane could have reached safely in its predicament. 10 UNREPORTED JUDGMENTS Because of the negligent direction which ATC, through Mr Warwick, gave AAV, we shall never know what might have happened if the simple response to the request at 1908:33 had been affirmative with an immediate direction to RMO to "go around". This much is certain. The failure to give that immediate affirmative response (as I would hold reasonable care and proper, safe practice on the part of ATC required in the circumstances), deprived Captain Wahl (and the passengers dependant upon him) of the last chance which they otherwise might have had to effect a safe landing on runway 34. Clearly, at the time (1908:33) less than one minute before impact when Captain Wahl made the request that is what he had in mind. That is what he thought he could accomplish. Because he was denied permission and because he then conformed to the instruction of Mr Warwick, he lost the chance to do what his piloting instincts indicated was his desire in the emergency he was confronting as pilot. The loss of that chance deprived Captain Wahl, an experienced professional pilot, of the opportunity to do what seemed to him to be the best response to the situation. It would take a great deal of evidence (much stronger than that tendered from the experts called by the Commonwealth) to convince me that this lost chance was worthless and that the denial of the pilot's request had no consequence because the plane was already "doomed". With respect, I consider that the observations of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420 have much common sense to commend them: "although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed... generally speaking, if an injury occurred within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed... it will be taken that the breach of the common law duty caused, or materially contributed to, the injury." Saying this is not to adopt the "heresy" adopted by English courts, that the onus of proof can shift from the plaintiff to the defendant in the course of the trial. See eg McGhee v National Coal Board [1973] 1 WLR 1 (HL), 6. It involves no more ian a simple description of the process of reasoning which ordinarily follows the establishment of a breach and the happening of damage immediately after. Ordinarily, the two will be seen as connected, especially if proximination is very close in time, unless something demonstrates a lack of connection. Once the faulty command is established which deprived Captain Wahl of the opportunity to exercise the skills upon which not only his passengers' lives depended but also his own, it is more likely, as it seems to me, that it should be inferred that he would have succeeded in landing AAV had he been cleared, than that he would have failed. Abadee J had before him expert evidence which conflicted and between which he had to choose. Leaving aside evidence which was rejected, his Honour had the testimony of Mr F Garrisi, a senior officer of the United States Federal Aviation Administration, with a great deal of experience in aviation safety. He asserted that the pilot of AAV would have been able to land had he been cleared to do so. Similarly, Captain Feltman, a most experienced pilot, stated that, had AAV been allowed to continue its left hand turn, it would have returned over runway 34 and would have been capable of making a safe landing upon it. This witness drew a freehand arc on the plan of the airport to demonstrate the way in which he considered, unimpeded by contrary ATC instructions, Captain Wahl would have UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby Ry flown AAV to a safe landing. This is the theory of the so-called "Feltman curve". The "curve" is reproduced on the plan of Sydney Airport in Figure 1 which was in evidence (Exhibit 6) and which I incorporate in these reasons. As against this evidence, favourable to the appellants' case, his Honour had the evidence of Mr Ralph Francis, an aeronautical engineer and test pilot with a long experience since 1965 with Beech Aircraft Corporation, the makers of the Super King Air 200, the type of aeroplane which AAV was. The case for the Commonwealth, reliant on the evidence of Mr Francis, was that AAV could not have returned to runway 34 to land safely from the position in which the pilot called his emergency; nor from any other point along AAV's fight path. The foundation for this assertion was that AAV was not capable of flying the requisite turning circle postulated by the "Feltman curve" because of aerodynamic factors and because the particular kind of aircraft in question required a radius of the arc of turn of at least 1,889 feet which AAV lacked. Critical to these hypotheses was the proposition that the downwind approach to runway 34 required AAV to be displaced to the west of the runway at a distance of at least 3,800 feet in order to be able safely to execute a 180 degree turn so as to be capable of landing safely on runway 34 under the conditions described. Mr Francis gave oral evidence before Abadee J in Washington DC in the United States. In his written statements received into evidence, Mr Francis expressed the opinion that AAV could not safely land on runway 34 unless it was displaced from the runway to the west, a minimum distance of 3,800 feet. He advanced no other reason as to why the aircraft could not land safely. Mr Francis obviously had a very high opinion of the capabilities of the King Air 200. He considered that it could safely fly and land with only one engine operating. In these circumstance, he considered that ATC's direction to AAV to proceed to the "left base" of runway 34 was both reasonable and proper. But the actual knowledge of Mr Clough and Mr Warwick concerning the capabilities of AAV, although available to the Commonwealth, was undisclosed. As I have said, neither of them gave evidence. By a notice of contention, it was asserted for the Commonwealth that, contrary to Abadee J's findings, there was sufficient evidence to require a conclusion that Messrs Clough and Warwick, as experienced ATC operators, knew of the single engine capabilities of AAV. In the unexplained absence of their testimony, I see no reason to question Abadee J's conclusions in this regard. I certainly cannot say that those conclusions were wrong. Mr Francis was cross examined as to the foundation for his belief above stated. Give Abadee J's ultimate reliance upon Mr Francis' evidence to sustain the conclusion which he reached on causation, it is essential to note this cross examination: "Q. I want you to assume that runway 34 is 13,000 feet long, that's from one end to the other. 13,000 feet long. I want you also to assume that the distance from the point marked on the map... to the centre of runway 34 is 3,350 feet. A. That was an assumption you want me to make, right? Q. I want you to assume that please. A. Very well, yes, sir. Q. 13,000 runway, the distance from point 1908:44. Do you see that point which is where the aircraft crossed the beach? A. Yes, sir, I do. Q. Assume that that point to the middle of runway 34 is 3,350 feet... 12 UNREPORTED JUDGMENTS Q. Mr Francis in (your statement) you have expressed the radius of this turn necessary for the aircraft to return to runway 34 at 1,889 feet.... Can you make that assumption? A. That's fine, yes. Q. I want you to look at the actual radius of 1,900 feet calculated from the point 1908:33 and also from 1908:38. Do you see the radius? A. Yes, I do. Q. Do you see the diameter? A. Yes, I do. Q. It brings the aircraft right back into the middle of runway 34 does it not? A. It over-flies the runway. Q. Well it over-flies the runway in two points does it not? A. Yes, it does. Q. One of them right in the middle of runway 34 just north of taxiway Whisky. Do you agree? A. Yes, I do. Q. And the other in the middle of, as you quite rightly say, over-flies the runway at a point near... taxiway... north... of General Holmes Drive. Keeping that in front of you, may we take it that you never did the scaled radius and diameter which that document shows? A. Yes, you may. Q. You have never actually done that calculation? A. Not that particular calculation, that's correct. Q. Now Mr Francis, assume that those figures are correct and looking at the document which I put in front of you, which shows the radius and diameter of the map, it is not accurate, is it, to say that it was not possible for AAV to land on runway 34 from any point along the assumed path? A. In my calculations, I made the assumption... I did not make the assumptions... but in my calculations I derived that distance that would require a pilot at the specific bank angles and speeds to make a 180 degree turn to align himself with the runway. Q. That is exactly what you have said in you statement. And the basis upon which you make that assertion is plain from (the statement) which is the calculations. I understand all that. But accepting all that, my question to you is that: Looking at the document that I now put in front of you with the traced radius and diameter from both 1908:33 and 1908:44, is it not accurate to say that it was not possible for Alpha Alpha Victor to land on runway 34 from any point along the assumed fight path as then shown? A. Given that he would over-fly the runway in this fashion, IT WOULD BE POSSIBLE" (emphasis added) In fairness to Mr Francis, he later proceeded to explain various hypotheses as to banking and height loss which, he claimed, affirmed his opinion as to the capabilities of the aircraft safely to land as posited by Captain Feltman. But, as I read his evidence, he never retreated from the answer that the hypothesis being advanced by the appellants was a "possible" one. In expressing his original opinion, Mr Francis did not have the benefit of a scaled radius and diameter diagram. His opinion was expressed in the absence of such calculations. i ——==pury \ IN es ee 1b<, LOVAV! 2% 606" | AVY-HA ] | 80 6061 NMOGHONOL ¥0-606t { CC rey . q oon tnutue S1UL InoySnony ¥6x2"q UI 1128) 70 6068 Ino euiBus suo (s,e4) NOA pulyog yur 19 Burpuey 1 O1POxe ~ due Atmuni ey) UO AeiE 18 YONDe2/02 i wow 08 YVISO 3X OINOY OWN DOV 80:6061 = be = ANIOd AIXSIHM OHI W3MOL ABNGAS DOV FMZ_ PO 606! 1N39S30 22-6061 | ' & co A u3IMOL Fang Fawr 1872029, ts \ouing2 a _S\—_____——" —# . on" a : mals Saye AY 4, . SRAIWIvs AHONNS o [ Gano v G asi ous3aN00 Wee | \ 861 Areniqe4 LZ oysBuly) AeupAs - HA 002 4999g So [ot 2881) YOLDIA_VHdIW VHav AVY Ov Ot:606N\ {"_sAntBeu WOLDIA VW Vdiv DOV Avy 05:8061] | wou oq Bupuny pus yreoidde 2004 WA B8EG 1/9] Yreordde jensiA exeur 1980) YOLDIA VHd TW VHdIY Avy 20v 05:8061 | eanewiniv IOV AVY 6¥:8061 uy pout Vo 1ySys Uy UEACE OMI UBAES eur sag MOA OP YOLDIA VHA IY VHdIw AVY Dav PP:806t Com Atmuns 9teq 1181 yreordde jentin eyew 1960) YOLDIA VHd IY VHdlw AVY 30v 8C:8061 Breed hiv ano) Benu) Aemund UO Copper ue Mendes suyBur nye) eur 18 {80} 94,0 YOLDIA WHdIY VHA DOV Avy CC'806! iv BUNS YAMOd GaWngsy URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby RB Abadee J had to endeavour to sort out this expert evidence. It has frequently been said that, in this area of specialised knowledge, a judge cannot simply substitute his, or her, opinion on the probabilities for the evidence. The judge's task is to choose between the competing expert testimony. See Delta Airlines Inc v United States (above), 349: "While causation in fact is often a determination that can be made based on inferences from common knowledge, the presence case is one where laymen, unaided, could not be expected to draw such inferences. Expert testimony was of utmost importance. The District Courts... having heard all the evidence, was entitled to weigh the conflicting evidence of expert witnesses and to draw all reasonable inferences from the testimony it credited." In this jurisdiction the courts have recognised the need for appellate courts to defer to the opinions of trial judges, choosing amongst competing expert evidence. Although I have distinct reservations about sustaining conclusions upon experts' testimony on the footing of the impression which the expert witness makes on the trial judge (the conflict being rarely one of truth against falsehood but rather selection amongst preferable and less preferable opinions) authority exists in this Court for deferring to the primary judge's preference. See Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA), 291; see also X and Y (by Her Tutor X) v Pal and Ors (1991) 23 NSWLR 26 (CA), 31. This proceeding being an appeal, and this Court having certain disadvantages when compared to the trial court, we would be justified to reverse the primary Judge's preference for Mr Francis' opinion only if this Court were able to conclude affirmatively that his Honour's opinion was flawed in some material way. With every respect to Abadee J, I have come to such a conclusion. I do so because I believe that his Honour was confused about critical elements in the expert evidence. He made a number of findings about the westerly displacement of AAV from runway 34 which were contradictory, and in some cases clearly wrong. At a number of points in his reasons, his Honour stated that AAV was "displaced too far to the west" in order to turn safely to land on runway 34. However, this was the opposite of the effect of Mr Francis' statement and oral evidence. Mr Francis did not say that AAV was displaced "too far to the west" in order to make the relevant turn with its proposed arc. Indeed, his evidence was to the opposite effect. In the course of his reasons, Abadee J said: "Exhibit 5, in general terms, contained the calculations made by Mr Francis in support of his claim that AAV was displaced too far to the West to have safely landed on runway 34." With respect, this is the reverse of what Exhibit 5 contains. It does not represent the substance of Mr Francis' evidence. This erroneous misunderstanding of the evidence is repeated later in his Honour's reasons, on a number of occasions, where he again refers to the aircraft, AAV, being "too far west to land safely on runway 34". This erroneous misunderstanding of the basis upon which Mr Francis was expressing his opinion is then later attributed to the pilot of AAV. It is used by Abadee J to draw the inference that the pilot did not intend to fly to runway 34 by the shortest possible route. This is so, despite the fact that that is precisely what the pilot requested permission to do in the one indisputable element of the evidence which revealed what was in his mind, viz, the recording of his conversations with the control tower. 14 UNREPORTED JUDGMENTS These misunderstandings of the evidence given by Mr Francis are stated repeatedly in the reasons of Abadee J. With every respect, and with proper hesitation, I have come to the conclusion that they demonstrate a fundamental flaw in the reasoning which lead Abadee J to accept the opinion of Mr Francis when such acceptance rested on a fundamental misunderstanding of the evidence - indeed an understanding which was exactly the opposite of the propositions being advanced by the witness. For the Commonwealth it was put that these were merely verbal slips which could readily be corrected and overlooked. Respectfully, I do not agree. The choice between the testimony of the highly experienced experts called by the parties was not an easy task. But it was critical that the learned judge should have fully understood the premises upon which the opinions of the experts were based. Otherwise, his stated preference is seriously flawed. The evidence of Exhibit W, which was admitted at the trial, demonstrated that AAV, at all relevant times, was displaced west of runway 34 a sufficiently minimum distance to allow it to make the necessary 180 degree turn to land safely on that runway. This was the concession as to the "possibilities" which Mr Francis eventually made in the passage of his evidence which I have cited. Abadee J did not refer in this context to the fact that the Commonwealth had failed to call as witnesses, engineering test pilots employed by Beech Aircraft Corporation, including Mr Thomas Carr, whose statement had been filed. It was in order to take the evidence of Mr Carr, and other experts, that arrangements were made for Abadee J to take oral evidence in Washington DC in the United States. Mr Carr had conducted evaluation on an aircraft of the same kind as AAV in the flight simulator maintained by Beech Aircraft at its factory in Kansas. Following the evidence of Mr Francis, the Commonwealth indicated that it did not propose to call Mr Carr to give oral evidence. Nor did it propose to call the other expert witnesses whom it had been the announced intention of the Commonwealth to call (Messrs McBurney and Owen). Of course, where a party considers that its case is sufficiently established by a particular witness, it is open to it to refrain from calling others: This may be a legitimate and economical forensic tactic. Yet if Mr Francis' evidence was misunderstood by the judge (as I believe it was) and if, far from sustaining the case of the Commonwealth that safe landing of AAV was impossible, it eventually accepted the exact opposite, ie that it was possible, the failure of the Commonwealth to call Messrs Carr, McBurney and Owen, without proper explanation, takes on a different complexion. It is then open to the appellants to argue, as they did, that the Court should draw the inference that their evidence would not have assisted the Commonwealth to rebut the claims of the appellants. Those claims remained that the safe landing of AAV on the long trajectory of runway 34 was possible at one or other of the two points at which, pursuing the aircraft's "curve", it would have crossed runway 34, had it not been commanded to proceed to the "left base" of the runway. If, because of the foregoing misunderstanding and flawed appreciation of the evidence of Mr Francis, this Court is entitled to reach its own conclusion upon the preferable testimony of the experts, I have no doubt as to the evidence which I would prefer. Captain Feltman's evidence is, as I read it, compelling. It was based upon a wealth of practical experience as an air pilot. Again, with respect, Abadee J appears to have misunderstood the "speculative" and "conjectural" character of Captain Feltman's testimony. It is true, that in response to certain questions in respect of the pilot's ability to comply with the instruction at URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby RB 1908:38 ("make visual approach left base runway 34") Captain Feltman gave evidence on his view as to whether the pilot could have complied with the instruction in the absence of other factors. But this evidence did not, in the slightest, touch his clearly stated opinion that the pilot of AAV could have effected a safe landing, if only he had been cleared by ATC as requested by him at 1908:33. CONCLUSIONS Much has been said and written in the course of arguing this case. But in the end its resolution comes down to a fairly simple question. A pilot over a busy airport announced an emergency. He asked immediate clearance to land. He could, and should, have been given that clearance. Instead, he was sent on a long journey to the base of the runway. Many (perhaps most) planes could have accomplished that journey safely, even on one engine only. This one did not. The plane crashed. The pilot and passengers were killed. What happened was neither good air traffic control practice in response to the announced emergency in this case. Nor was it good practice generally. The air traffic controllers themselves were not called to give evidence, to explain their directions or, by evidence, to justify them. In these circumstances, the primary judge was clearly right to find the duty of care of the air traffic controllers to the passengers for the loss of whom the appellants sue existed and that a breach of that duty had been established by the evidence. In my opinion, his Honour ought also to have found that the breach which he rightly determined to have occurred, was the cause of the air crash in the relevant sense. Unlike Delta Airlines Inc v United States (above), this was not a case of an entirely separate and distinct cause of pilot error which severed the relationship between the final crash and the erroneous rejection of the pilot's emergency request for immediate landing on runway 34 "please". An attempt was made for the Commonwealth to establish such a severance by suggesting that the fundamental cause for the sudden loss of height, which explained the rapid descent of AAV at 1908:50, was a failure on the part of the pilot to "feather" the propeller in such a way as to maintain height. "Feathering" is the action of turning the blades of a propeller to an angle with the airflow for the purpose of providing the minimum drag when the engine is stopped in flight. Abadee J was unable to determine precisely when the pilot feathered the propeller of AAV after loss of one engine. But that he did so at some point during the fateful flight was affirmatively found by his Honour. It could scarcely have been denied given that, after the crash, the feathering switch was found to be in the active position. The inferences strongly support the conclusion that Captain Wahl did feather the propeller of AAV as an integral part of the proper emergency procedures when he discovered that power in the left engine of his plane had been lost. Captain Wahl was an experienced pilot who would not be expected to act unsafely. His own life was at risk as well as the lives of his passengers. The emergency procedures after engine failure were well established. It was "difficult to imagine" that he would not have followed them. Feathering the propeller was the second established step in carrying out emergency procedures after taking the first step of applying full power to the live engine. Captain Wahl certainly took the first step. It would seem highly likely that he also immediately took the second. The operation of feathering is a.comparatively simple one. It can be 16 UNREPORTED JUDGMENTS performed quickly. Even Mr Francis expressed the view that the aircraft would not have reached the point it did unless the feathering procedure had been followed. In these circumstances, the attempt to blame the crash exclusively on the failure of the pilot to observe proper emergency procedure by feathering the propeller immediately after engine loss ought not to be accepted. This leaves, as Mahoney JA has pointed out, the other competing possible causes of the crash: * The failure of the left engine. * The trajectory of the aircraft following that failure. * The control of the flight and the speed of the plane once the emergency struck. * The sudden descent of the aircraft and whatever it was that caused that descent. To the list of possibilities contained in the reasons of Mahoney JA, one could add the suggested failure of the pilot, once the emergency presented and the descent occurred, to attempt a landing on sea. Yet there was also the failure of ATC to respond affirmatively to the pilot's own assessment of what was required, namely authorisation to land at once on runway 34. Had this been approved, the arc or "curve" to which AAV was then committed would have brought the aircraft back over runway 34 at two potential points so long as adequate height were maintained. It is true that AAV would then not have been in an ideal position for an ordinary landing. But this was no ordinary or ideal situation. The pilot knew as much. He signalled as much by his request. The basic mistake of ATC was to treat the situation as semi-normal and not to clear the runway and authorise immediate landing as could and should have been done, and as the pilot requested. If the pilot, on losing height, could have positioned AAV over runway 34, he could probably have negotiated a landing. Once contact of the wheels of the aircraft was made with the runway, manual control of the plane's movements would enlarge the capacity of the pilot to avoid the crash which ensued. Although on the evidence it would certainly have been close, given the unexplained descent of AAV at 1908:50, if that descent had occurred at a point that AAV was over runway 34 (as would be the case if the trajectory of the "Feltman curve" had been continued instead of the direction taken after the command to proceed to the "left base" of the runway) the prospects of the pilot's taking control of the situation were high. This was Captain Wahl's own estimate of the proper response to the predicament facing AAV. Although no-one can ever now say for certain what would have occurred had his request been granted, the better inferences from the facts support the appellants' argument that the denial of the opportunity which Captain Wahl requested was a critical factor in the cause of the crash which followed. There are two basic differences between the approach which I would make to the issue of causation from that which finds favour in the reasons of Mahoney JA and Clarke JA. First, although is true that there were a number of considerations which, in a general sense contributed to the "cause" of the crash, that does not, in my view, exclude the appellants from recovering from the Commonwealth if they can show that the breach of duty on the part of ATC materially contributed to the damage that ensued. The fact that other causative elements existed, and possibly other persons or organisations were liable in tort, does not contradict the entitlement of the appellants to bring home liability to the Commonwealth. UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Kirby RY Causation is essentially a question of fact to be determined by reference both to common sense and experience. In March v E and M H Stramare Pty Ltd and Anor (1991) 171 CLR 506, at 522f, Deane J explained: "For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.... The 'but for'... test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense. In particular, the test will commonly exclude causation for the purposes of the law of negligence if the answer to the question it poses is that the accident which caused the injuries would have occurred in the same way and with the same consequences in any event. There are, however, in my view, convincing reasons precluding its adopting as a comprehensive definitive test of causation in the law of negligence.... [The] mere fact that something constitutes an essential condition (in the 'but for' sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a 'cause' of that occurrence as a matter of either ordinary language or common sense." See also Stovold v Barlow, Court of Appeal (England) unreported, Times Law Reports, 30 October 1995. Adopting this approach to the facts of the present case, I believe that it can be said that "but for" the faulty direction of ATC in denying the request of the pilot facing an emergency, the probabilities are that the pilot would have safely landed AAV. But if, beyond that test, it is necessary to ask whether the inappropriate direction is properly to be seen as an "effective cause" of the crash which ensued, I believe that it is. Self-evidently, ATC directions will ordinarily be observed without question. This must have been known by the ATC operators. Their instructions were indeed followed. Those instructions denied the pilot the requested opportunity to get as quickly as possible over runway 34 in order that he could attempt the emergency landing which he requested. Especially if the "but for" test is to be regarded (as McHugh J preferred in March, at 534) as the principal or most useful test for legal causation, the liability of the Commonwealth is shown. "But for" the negative response to the pilot's request, AAV would not have been sent out on the journey to the left base of runway 34 - a journey it never completed and which ended in the fatal crash occasioning this litigation. A second point of difference from the reasons of Mahoney JA is that I would not myself regard it as relevant to take into account "the effect of a finding of negligence upon the standing and reputation of a professional officer". I realise that such a perception is sometimes held by members of professions in responding adversely to findings of negligence in civil proceedings. Thus Rogers v Whitaker (1992) 175 CLR 479 has been criticised by medical writers on this score. In my opinion, such criticism misconceives the function of negligence actions at law. It is not the role of the courts in such actions to divert the focus of their attention to the sensitivities of professional groups. Still less is it their function to hold back from providing redress afforded by the law for an established breach of a duty of care causing damage because to do so might have an "effect... upon the standing and reputation of a professional officer". The purpose of proceedings of this kind is fundamentally to assign the financial burdens of a misfortune which has occurred to a plaintiff. It is to decide whether 18 UNREPORTED JUDGMENTS that burden has been shown to be lawfully shifted, in whole or part, to the defendant. By concentrating on professional sensibilities, and individual standing and reputation, a risk is presented that the attention of the court will be diverted from its proper function. For my part, I would put such considerations entirely out of my mind. In finding the Commonwealth liable for the incorrect and inappropriate direction given by ATC officers to the urgent request of the pilot of AAV, I am not assigning moral blame. That is left to a high court, not of this world. I am simply determining that, but for the misdirection shown (and found), the pilot would very likely have been able to land safely and was denied that opportunity which he had urgently requested. No-one under-estimates the pressure under which ATC operators work. All air travellers, if they reflect upon it, appreciate the dedication and commitment to the safety of others that goes into the performance of such functions. All people performing work duties occasionally make mistakes. That is the nature of the human condition. Most mistakes, fortunately, have few or only trivial consequences. This is so even in the case of ATC operators. But because of the extremely high risks which can attend mistakes on the part of ATC operators, and the large numbers of human lives and valuable property at stake, the law requires of such persons commensurately high standards of care in performing their functions and particularly in responding to emergency situations. Mahoney JA has set out in his reasons extracts from the Airways Operating Instructions which governed the performance of the duties of ATC operators at the relevant time. They include the instruction that safety of passengers is in no way to be jeopardised; aircraft in emergencies are to be given priority in all circumstances; and the highest attention is to be given to the removal of the announced hazard. See Airways Operating Instructions RAC-3-1 (1 November 1979, vol 2) Priorities 1.1. In the present case there was a departure from these stringent and essential standards. So much was rightly found by Abadee J. But I would go further and conclude that such a departure was "a cause" in a relevant sense of the crash which undoubtedly followed. Upon this basis, the appellants were entitled to recover the damages for which they sued. At a late stage in the course of the hearing, the appellants sought leave to add an alternative claim. This was designed to reformulate their entitlement so as to express it in terms of a claim for the value of the lost chance safely to land AAV which followed the denial of an affirmative response to the pilot's request at 1908:33. To the extent that this claim is simply a reformulation of the claim litigated at trial (presenting the same arguments in different language) it does not advance the appellants' case. To the extent that it involved a different formulation of the claim which might have given rise to differing questions and the presentation of a different case at trial, procedural fairness requires that this Court should deny the amendment. See Coulton and Ors v Holcolm and Ors (1986) 162 CLR 1, 7. Having come to the conclusion that the appellants are entitled to succeed, I do not consider that I need delay longer to elaborate this point. ORDERS I favour the following orders - 1. Appeal allowed; 2. Set aside the judgment entered in favour of the Commonwealth; URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonég JA) 3. In lieu thereof, order that judgment be entered in favour of the plaintiffs to take effect from 8 June 1994 in accordance with the damages found by the trial Judge; 4. Order the Commonwealth to pay the plaintiffs' costs of the trial; 5. Order the Commonwealth to pay the appellants' costs of the appeal but to have, in respect thereof, if otherwise qualified, a certificate under the Suitors Fund Act, 1951; and 6. The parties, within 28 days of these orders, to bring in Short Minutes of Order to provide for the judgments in favour of the individual plaintiffs. Mahoney JA On | February 1980 a Beech two-engined aircraft crashed into the runway wall at Sydney Airport. The pilot and passengers were killed. Those claiming through the deceased passengers have sued the Commonwealth for damages. They claim that the crash was caused by a negligent error made by an Air Traffic Controller (to whom I shall refer as "ATC"') for whom the Commonwealth is responsible. For reasons which are not clear, the plaintiffs' claims were not brought to trial until 11 October 1993. The trial extended some over some twenty-five days. On 8 June 1994 the trial judge, Abadee J in a long and detailed judgment held that the ATC had made a negligent error in his control of the aircraft but that that negligence did not cause the crash. His Honour gave judgment for the defendant. The plaintiffs have appealed to this court against his Honour's judgment. At the trial, a substantial number of issues were in contest. Before this Court, the issues have been reduced. The plaintiffs' contention is that the judge was right in holding that the ATC was negligent and they contend that it should have been held that that negligence caused the plane to crash. The defendant, by cross-appeal and notice of contention, has contended that the ATC was not negligent in what he did and has supported the judge's conclusion that, if he was negligent, his negligence did not cause the crash. At the trial, the trial judge made findings as to the damages which, if the defendant be liable, should be paid to the plaintiffs. There is no contest before this Court that, if the defendant be liable in damages, the amounts to be awarded are those determined by the trial judge. For the reasons to which I shall refer, my conclusions are: the ATC was not negligent; (if he was) his negligence did not cause the accident; and accordingly the appeal should be dismissed with costs. 1. THE FACTS: The factual issues in contest upon the appeal have been argued in considerable detail and, in order to deal with the submissions that have been made, it will be necessary to refer to some extent to the detail of the evidence. It will be necessary to refer at length to portions of the evidence and to the judge's findings. (His Honour, in order to deal with the massive material placed before him, prepared a judgment extending over some 198 pages). However, in order to place the evidence, the findings and the contentions of the parties in context, it will be convenient to commence by summarising the structure of the factual submissions which the parties have made. The aircraft (to which I shall refer as "AAV") was a two-engined aircraft with provision for a pilot and some twelve passengers. On the day of the crash, it was to fly from Sydney Airport to Temora and then to Condobolin. The aircraft was directed onto Runway 25, the airport runway which has an approximately east-west direction. The aircraft waited for some twenty-five minutes on the eastern end of Runway 25 for permission to take off. When that permission was 20 UNREPORTED JUDGMENTS given, it taxied down that runway and became airborne some distance to the east of the position where the other runway then existing, Runway 34, crossed Runway 25 in an approximately north-south direction. A short time after the aircraft became airborne, its left engine ceased to function. The aircraft was then about 100-120 feet above the ground. It veered to the left in a curve described as being about thirty degrees. The pilot informed the ATC of the engine failure and requested "landing on Runway 34 immediately please". The ATC replied: "Alpha Alpha Victor, Roger, make visual approach left base runway 34". The aircraft continued on a curving path generally in a southerly direction to the west of Runway 34. After a short time it suddenly descended from a height of approximately 100-120 feet to approximately 10-15 feet. It continued in a curve towards the southern end of Runway 34. In the course of doing so, portion of the aircraft struck the water and it collided with the embankment of Runway 34. That embankment was some fifteen feet high above sea level. The aircraft struck the embankment about six feet from its top. It burst into flame and those aboard it were killed. Stated in summary form, the contentions of the parties are as follows. A Boeing 727 aircraft (to which I shall refer as "RMO") was approaching the airport and was in the course of an approach to land on Runway 34. If it continued in that way, it would have been necessary for AAV, if it was to land on Runway 34, to land after RMO. It would not have been possible for AAV to land on that runway ahead of RMO. The ATC permitted RMO to continue with its landing. The plaintiffs contended that the ATC should not have permitted RMO to continue to a landing and that he should have directed it to "go round", ie, to diverge from the runway and to land after AAV. He should, the plaintiffs claim, have thereby cleared Runway 34 for such landing as AAV desired to make upon it. The plaintiffs contend that the ATC was negligent in taking the course that he did. The defendant contends that the ATC was not negligent in allowing RMO to continue with its landing and in directing AAV to fly as it did. Alternatively, it submitted that, if there was negligence, that negligence did not contribute to the crash because the pilot of AAV did not intend to fly otherwise than in the direction it was sent and that the cause of the crash was an error or errors by the pilot of AAV. As I have said, in order to deal with the submissions made on appeal, it is necessary to refer in more detail to the facts. Each party has submitted to the Court a summary statement of the relevant facts. It will be sufficient for present purposes to state the facts substantially in the manner adopted by the parties. One matter is to be borne in mind. Considerable emphasis has in argument been placed, and rightly placed, upon the sequence of events and in particular the sequence of the radio interchanges between the ATC and AAV and between the ATC and RMO. At the trial and on appeal, the relevant sequences and the position of AAV at the time of each radio interchange was recorded in a convenient manner on exhibits: see Exhibits 6G and W. In addition, these exhibit recorded the course taken by AAV and the curve of the flight path that it followed from the time that the left engine ceased to function to the time when AAV stuck the embankment of Runway 34. The course of that curve is of particular importance in the submissions made by the parties. The curve as depicted in the exhibits to which I have referred has been accepted by the parties as the path which AAV followed, and the position of AAV at the time when radio communications passed between it and the ATC has, as shown on those exhibits, been accepted as URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonay JA) correctly recorded in those exhibits. I shall, in the course of summarising the facts, refer to the interchanges and to the course which the aircraft followed as there recorded. AAV waited on Runway 25 some twenty-five minutes for permission to take off. AAV received permission from ATC at 1907.28. ATC said: "Alpha Alpha Victor, maintain runway heading, maintain 3000, clear for take Off'. Captain Wahl, the pilot of AAV, responded, "Alpha Alpha Victor, 3000". At 1907.36 the brakes were released at the end of Runway 25 and AAV commenced its take-off run, heading in a westerly direction. AAV became airborne before the intersection of Runway with the north-south runway, Runway 34. It began a normal ascent during which its undercarriage was retracted. At this stage RMO was approaching Runway 34 from the south. At 1908.17 it reported that it was on "short final". At 1908.19 the ATC gave RMO its clearance to land on Runway 34: "Romeo Mike Oscar clear to land". At 1908.19 AAV suffered a power failure in its left engine. The trial judge found that at this point AAV was "at a point past the Runways 25/34 intersection and close to the intersection of taxiway 'Victor'". It was at a height of 120 feet. As a consequence of the power failure, AAV began to turn to the left, thus turning in a southerly direction towards the Cook's River and the shore of Botany Bay. This manoeuvre resulted in a 90 degrees deviation from the runway heading, thus violating AAV's take-off clearance instruction. Before 1908.33 Senior Tower Controller, Mr NJ Clough, instructed aerodrome controller 1 (ADC1), Mr Warwick, to "ask the pilot [meaning the pilot of AAV] if operations are normal". The trial judge found that "Mr Warwick did not respond to that instruction nor implement it'. This was perhaps because, at 1908.33, the pilot of AAV called the control tower saying, "Alpha Alpha Victor, we've lost, er, the left engine, request landing, ah - landing on Runway 34 immediately please". The aircraft continued to bank to the left, turning away from Runway 25 in a southerly direction, and crossing the Cook's River at 1908.38. At that point, ADCI Mr Warwick gave the following instruction to AAV: "Alpha Alpha Victor, roger, make visual approach left base runway three four". (I shall refer subsequently to what this instruction involved.) At 1908.44 AAV crossed the beach at Kyeemagh directly above a witness, Mr Briancourt; at an altitude of approximately 120 feet. Mr Briancourt described the propellers of both engines as being like "discs". ADC1 Mr Warwick asked the pilot (at 1908.44): "Alpha Alpha Victor, do you have the 727 in sight on short final?" AAV travelled from the shoreline for some distance across the Bay, maintaining altitude at 120 feet and still turning to the left. At 1908.49, the pilot replied, "Affirmative". At this stage, the aircraft had maintained a steady altitude of approximately 120 feet ever since the initial power failure in the left engine. However, approximately 150 yards out from the shoreline AAV commenced a rapid descent over a distance of 400 to 500 yards, dropping down to a level of 10 to 15 feet above sea level. Mr Briancourt described the aircraft as "dropping suddenly" over a distance. At 1908.49 ADC2 Mr KJ Brown asked ADC1 Mr Warwick, "Want to send this bloke [meaning aircraft RMO] around?". Mr Warwick did not send RMO around or issue any instruction to it. 22 UNREPORTED JUDGMENTS At 1908.50, just as AAV began its sudden descent, ADC1 Mr Warwick radioed to the pilot: "Alpha Alpha Victor, roger, make visual approach left base, will your approach and landing be normal?". The pilot replied, at 1908.58: "Alpha Alpha Victor, negative". At this point RMO was above the threshold of Runway 34 and about to touch down. It touched down at 1909.04. At 1909.08 ADC1 Mr Warwick instructed RMO: "Romeo Mike Oscar, go around, correction st..., stay on the runway and expedite. We have a landing, er, right behind you he's one engine out". At 1909.20 ADC1 Mr Warwick instructed AAV, "Alpha Alpha Victor, clear to land". There was no reply from AAV. At 1909.22 AAV collided with the southeastern sea wall adjacent to Runway 34 near the end of the runway, west of taxiway "Papa". The aircraft immediately burst into flames and the pilot and all twelve passengers were killed. The elevation above sea level of the point of impact was six feet. The aircraft struck the sea wall in a nose-up attitude, banking to the left and skidding to the right. The right engine and the outboard section of the right wing both separated and were thrown across the ground adjacent to the runway. The remainder of the aircraft bounced over the sea wall, landed inverted on the taxiway and slid backwards. Abadee J noted that at the time of the accident. the surface wind was blowing at nine knots on 310 degrees magnetic, visibility was 50 km with the cloud at 8,000 feet, and the temperature was 30 degrees centigrade. The sun was shining, being some six degrees above the horizon. 2. WAS THE ATC NEGLIGENT? The defendant accepted that the ATC owed a duty of care in negligence to AAV and to those in it. The learned judge, in my opinion correctly, accepted that such a duty existed. His Honour referred to Skyways Pty Ltd (In Liquidation) v The Commonwealth (1984) 57 ALR 657; Heyman v Sutherland Shire Council (1984-1985) 157 CLR 424 at 462, 463464; Nichols v Simmonds and Anor (1975-1976) WAR 1; Shawcross and Beaumont on Air Law (3rd ed), 665; Richardson v United States 372 F Supp 921 (1974); and a number of other United States decisions. The substantial contest in this regard was whether there was a breach of that duty. Having regard to the submissions made in this appeal it is, I think, of assistance to examine the process of thought or of reasoning by which a court comes to the conclusion that the defendant has acted in breach of a duty of care. The process of reasoning is, in a practical sense, different according to whether the issue is addressed, as it were, before or after the breach has occurred. The principles of law in this regard, as formulated in decisions of the courts and, to a great extent, in the texts, look to what will happen in the future. They look forward, not to a particular act or default, but to the kinds of conduct which will constitute a breach of that duty. The generally accepted statement of principle in this regard is that of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40. His Honour: at 47-48; said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonag JA) of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. Magnitude of the risk and its degree of probability remain to be considered with other relevant factors." The principle so stated provides the basis on which what a reasonable man would, by way of response to the risk, do in some future situation. However, in a practical sense, when a claim for damages comes before a court for determination, the court knows - it will be identified in the plaintiff's claim and established by evidence - the act or default which is said to constitute the breach. In such a case, the court looks back to that act or default and must decide whether that act or default was a breach of duty because a reasonable man: in truth, the court: see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728 per Lord Radcliffe; would not have done it. See generally Phillis v Daly (1988) 15 NSWLR 65 at 72, 76-77. Accordingly, in the ordinary case coming before the court, what the court must, in a practical sense, decide is: whether the defendant did what he is said to have done; and (if he did) whether that act or default is a breach of his duty to take care. In this appeal, as it has been argued, there has been little or no contest in relation to the first of these. The plaintiffs' claim, as formulated by Mr Stitt QC in argument, has been twofold: that the ATC should not have given the direction which he gave at 1908.38; and that the ATC should have directed RMO not to land but to "go round" and should have told AAV to land on Runway 34 in such manner as it wished. These two things are related: if the ATC did not give the direction that he did, he would have cleared the runway by a direction to RMO to "go round" and would have left the runway free for AAV to land in such manner as the pilot chose to do. The defendant did not, I think, seriously contest that these were the acts or defaults that were in issue. There is no contest but that the ATC did the things of which the plaintiffs complain. Therefore the question which essentially has been in dispute has been whether those acts or defaults should be judged to be a breach of the ATC's duty of care. To do that involves, of course, a value judgment: a judgment that, in the circumstances, a reasonable person would not have done what the ATC did. That, in turn, requires the court to consider why a reasonable person would not have done what the defendant did. In most cases, this is plain. But, in the present case, in the written and the oral submissions, there was no agreement. Accordingly, it is in my opinion of assistance to spell out the considerations involved. It is, in particular, of assistance to do this in order to judge the submissions that were made based upon the evidence of the experts who gave evidence at the trial. The (alleged) vice in what the ATC did is not that he deliberately gave (I shall use a neutral term.) inappropriate directions; the (alleged) vice is that, in the exercise of his skill and judgment as an air traffic controller, he made an error in that he gave directions which were inappropriate. Accordingly, the court must consider: whether, in the sense to which I shall refer, the directions given by the 24 UNREPORTED JUDGMENTS ATC were inappropriate; and (if they were) whether they were so far inappropriate that the giving of them should be categorised as something that the reasonable person would not have done. This, of course, spells out the obvious. But in the present case the distinction between these two things is of importance. There was at the trial and, I think, on appeal a contest as to whether the course which the ATC took was wrong. The defendant contended that the directions given were not wrong but were the right directions - or at least were appropriate directions - to be given in the circumstances. It is therefore necessary to consider the basis on which the directions which the ATC gave were, in the relevant sense, wrong and why, if they were wrong, different directions would have been right. In my opinion, in determining such matters it is relevant to consider, inter alia, two things: whether the directions given increased the danger to AAV in the sense that they established conditions which made its safe landing more difficult or less likely; and whether the alternative directions propounded by the plaintiffs would have involved, in this sense, less danger to AAV in achieving a landing. The objective to be achieved by the directions was the safe landing of AAV or, more accurately, the establishment of a set of conditions in which, as far as directions by the ATC could do it, the chance of the aircraft landing safely was maximised or not decreased. In formulating the matter in this way I am conscious of the judgments or matters of degree that are involved. However, stating the matter in this way assists, I believe, in focussing attention upon the precise considerations by reference to which the matter is to be decided. In argument, counsel for the plaintiffs was invited to indicate what were the dangers created by the directions that the ATC gave. The directions involved that AAV should fly in a southerly direction approximately parallel to Runway 34 for a substantial distance across Botany Bay, then should tum left to fly in an easterly direction until the aircraft was appropriately aligned with Runway 34, and then should turn left to fly in a northerly direction so as to cross the threshold (the southern end) of that runway and land upon it. No evidence was given to establish the distance which AAV would travel in doing this or the time that it would take. Mr Stitt QC, for the plaintiffs, pointed to a passage in the evidence which indicated that, where aircraft are flying in the same direction along the same flight path, the turbulence created by the wake of a jet aircraft such as RMO ordinarily required that the following aircraft be some five miles behind it. (An aircraft flying at 100 miles per hour would take three minutes to fly five miles). But this matter was not pursued in detail; the witnesses were not asked how the turbulence created by RMO in landing in front of AAV would affect the flight path to be taken by AAV and whether, for example, a separation of five miles would have been required in the process of landing in the present case. I do no think that any firm inference can be drawn from that portion of the evidence. However, I infer that a certain distance and so a certain time would have been involved if AAV had flown as directed and landed across the threshold of Runway 34. I take into account in this regard the necessity or, in the existing circumstances, the desirability of AAV positioning itself sufficiently west of the runway to enable it to turn to the left so as to align itself for landing without placing unnecessary strain upon the aircraft or upon the single engine that was available to it. It was not, I think, suggested that the fact that the aircraft would be in flight for the time required by such manoeuvres, or the fact (if it was such) that that time would be longer than might otherwise be taken by AAV to land created, as such, an increased danger to AAV. In any event, subject to what I shall say, I am UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahon2g JA) not satisfied that it did. It was accepted that AAV was designed to fly with only a single engine operating; it could not merely fly but could climb on a single engine. The time involved in complying with the directions given would not in my opinion have increased the danger to the aircraft and the directions given were not, for that reason, to be seen as wrong. In saying this, I am conscious that the fact that an aircraft is in flight involves a danger which does not exist when the aircraft is on the ground. But the evidence did not establish that there was, in relation to this aircraft, any substantial danger involved merely because it was in flight, with one engine, for the time it would have taken to comply with the directions given by the ATC. Mr Stitt QC submitted that, insofar as the directions increased the danger to the aircraft, the increased danger lay in what the pilot was required to do if the aircraft was to fly on the single engine. In my opinion the evidence established that though the aircraft could fly and climb on one engine, it was necessary that the pilot do things to enable it to do so which, flying on two engines, he would not have had to do. When the left engine ceased operating, the effect was that the aircraft would, absent steps taken to the contrary, fly in a curve to the left. In the present case, the report of the aviation authorities tendered and accepted as probative in evidence suggested that, after failure of the left engine, the aircraft flew in a thirty degree curve to the left. Uncorrected, it would have continued to do so. The expert witnesses' evidence suggested that, for it to fly in a straight line, inter alia, three things were required. The pilot should turn the rudder so as to direct the aircraft sufficiently to the right. He should use the ailerons for the same purpose. And he should fly with the right wing lower than the left wing to an extent which would help correct the tendency of the aircraft to curve left. It was suggested for the plaintiffs that to do such things would lessen the speed that otherwise the aircraft could attain: the suggestion was generally to the effect that there would be "drag" or resistance greater than for an aircraft flying straight on two engines. And this, and the possibility that the pilot might err in what he was doing, was suggested to increase the extent of the danger to the aircraft caused by following the directions given by the ATC. It was accepted that on one engine the aircraft would ordinarily be capable of achieving a sufficient speed to fly for an indefinite time. But if, by drag or otherwise, the speed was reduced below the stall speed, the aircraft would drop, or tend to drop, towards the ground. How great was the increase in danger (if any) which the directions involved? As I have indicated, the evidence was clear that the aircraft could be flown and would, if it became necessary, be expected to be flown on one engine. The things to which reference was made to achieve this were the things which, in my opinion, would ordinarily have been involved in the flying of the aircraft in that way. A competent pilot would be expected to do them. The pilot of AAV was a competent and experienced pilot. As I have said, there is a danger in flying: while an aircraft is flying, there is more danger to those in it than while it is on the ground. But that apart, it is the extent of the increase in the danger involved in the pilot being required to fly the aircraft in the manner to which I have referred which, in the end, has been relied on as indicating that the directions given by the ATC were in this sense wrong. In the end, the main thrust of the plaintiffs' case in this regard lay in the suggestion that, though what had to be done could well be done by a competent pilot such as this pilot was, it had to be done quickly and in a situation of emergency and that that would increase the risk that the pilot would not do 26 UNREPORTED JUDGMENTS properly what he had to do. Without limiting the matters to which Mr Stitt QC referred and which are to be taken into account, this, I think, was the main thrust of the complaint made. These dangers were to be measured against the dangers involved in the alternative course. To do that involves the determination of what the pilot of AAV would have done had the ATC directed RMO and other aircraft away from Runway 34 at once and had allowed AAV to land as and when it desired. This was an issue hotly contested at the trial. The defendant contended that, had the area been immediately cleared to allow AAV to land as it wished, AAV would have done what in fact the ATC directed that it do, namely, fly south, turn east, turn north to align itself with the runway and land over the threshold. The plaintiffs' case was essentially that AAV would have landed in another way: it would have followed (as it was conveniently described in argument) "the Feltman curve" and would have landed on Runway 34, not over the threshold, but at a place considerably further north. These were the two alternative courses about which the argument turned. It would, of course, have been theoretically possible for AAV to have taken other courses: it might have flown in a quite different way or in an arc less than that suggested for the defendant but different from the Feltman curve. But no other alternative was pressed. The evidence adduced by the parties was directed, in substance, to one or other of these two alternatives, to alternatives generally of these two kinds. There were, in my opinion, reasons why only these two alternatives were discussed. This being the issue chosen by the parties in this regard, it is not necessary to lengthen this judgment by detailing the reasons why, as I believe, they chose the issue that they did. The defendant's contention was that it was not possible or practicable for AAV to fly to a landing on Runway 34 by a Feltman curve and that that course involved dangers which the pilot would not or should not have taken. It is therefore necessary to refer in more detail to the Feltman curve and what it involved. One of the expert witnesses for the plaintiffs, Captain Feltman, was of the opinion that, absent the instructions given to him, the pilot of AAV could and would have landed differently. He drew on one of the exhibited plans a curve which he suggested the aircraft could and would have followed. It was this curve which was described as "the Feltman curve". This, the argument suggested, would have led to the aircraft being in the air for a shorter time than would have been involved if it had followed the direction given by the ATC. The defendant suggested that a course of the kind suggested by Captain Feltman could not have been followed or, if it was followed, would have involved difficulties and dangers which would have made it unacceptable. In order to understand the contentions advanced by the plaintiffs and the defendant in this regard, it is of assistance to articulate an assumption which, in my opinion, underlay the evidence of each of the experts. When an aircraft - at least, an aircraft of the present kind - comes to land, it will before landing align its flight so that it is flying in the same direction as the runway. Such an aircraft will not, for example, make its approach to land at a significant angle to the runway. Each of the expert witnesses made an assumption of this kind. It is, in my opinion, necessary to bear this in mind in assessing what they said and the reasons why, as it was urged, the pilot would not have flown in a direction such as the Feltman curve. URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonay JA) The main witness for the defendant in this regard, Mr Francis, contended that it would not have been possible or practicable for AAV to have attempted to land by approaching the runway as Captain Feltman suggested. The evidence given by Captain Feltman and by Mr Francis relating to these matters, in written form, in oral evidence and in cross-examination, dealt with a number of contentions. However, the main reasons advanced by Mr Francis for his contention that the pilot could not, would not and should not have landed by approaching the runway in a Feltman curve, were, I think, essentially three. In order to appreciate fully the thrust of them, it is necessary to take account of the flight path which AAV was already following the point from which the plaintiffs suggested the Feltman curve would be commenced, the course of that curve, and the alignment of Runway 34 as shown on the exhibits to which I have referred. First, Mr Francis said that an aircraft of the present kind, flying on one engine, could not or should not fly on a curve having a radius or diameter as small as that suggested by Captain Feltman. I am inclined to think that Mr Francis did not mean that there was no way in which physically such an aircraft could fly in such a tight curve: it may be that, by side-slipping or other manoeuvres, it could have been done. I am inclined to think that he was indicating that there would be unacceptable risks if, in that condition, it did so. Mr Francis made calculations to support his evidence that the curve which the aircraft should fly so as to come towards Runway 34 from its flight path to the west of it should have a diameter of some 3800 feet. Subsequently, he indicated that those calculations involved various assumptions, eg, that the aircraft was flying at an angle of bank of no more than thirty degrees. His view was that a bank of more than thirty degrees would involve unacceptable risks. Seconds and connected with this, his evidence suggested that if, from the point in its path from which the Feltman curve was to commence, AAV had been able to fly in such a curve, the result would have been that it would have crossed Runway 34 at an angle which would not have permitted it to make a landing from that curve. The suggestion was that, following the Feltman curve, the aircraft would not have been able to straighten up so as to fly north in line with the runway until it was some distance to the east of the runway. That, it was suggested, would involve that the aircraft would have had to cross the runway from the west, then fly on the eastern side of it and then make adjustments to its flight path so as to come onto a northerly course. This, it was suggested, was not an acceptable method by which it should approach the runway. Third, Mr Francis dealt with the explanation which Captain Feltman, in his subsequent evidence, gave to explain how, from the Feltman curve, the aircraft could land on Runway 34. Captain Feltman sought to deal with the fact that, if AAV approached the runway in the way he had originally suggested in his evidence, it would have come to the runway at an angle and accordingly would have had to cross to the eastern side of it before it was able to align itself to land in a northerly direction on the runway. For the purposes of this point, Captain Feltman assumed, I think, that if AAV flew in the ordinary way along the Feltman curve, the aircraft would have been forced to fly across the runway. To avoid this, he suggested that the pilot would, when approaching the runway on an angle from the west, perform an operation described as "Beta". He suggested that this involved the manipulation of the propeller and the engine power, that doing that would lessen the speed of the aircraft, that the aircraft would drop more rapidly than otherwise it would, and that that would allow the pilot to achieve a landing in a northerly direction without crossing the runway. Mr Francis said that that 28 UNREPORTED JUDGMENTS manoeuvre should not be attempted. He pointed out that such a manoeuvre was regarded as "hazardous" and that the handbook for operation of the aircraft stipulated that such a technique should never be adopted. In relation to these matters generally it is, I think, to be borne in mind that the aircraft was, as it initially curved to the left, flying at a height of only about 100-120 feet. Even if it maintained that altitude it would have little room for manoeuvre and little scope for error in coming into land on Runway 34 on a Feltman curve. His Honour's conclusion was that, had the directions not been given by the ATC, AAV would not have flown in the manner of a Feltman curve and would not have sought to land in that way. His Honour accepted the evidence of Mr Francis and, for reasons to which I shall refer, preferred his evidence to that of Captain Feltman and another expert witness whose evidence was tendered for the plaintiffs, Mr Garrisi. I shall return to this matter subsequently in considering the issue of causality. It is sufficient to indicate for present purposes that my present conclusion in this regard is the same as that of the trial judge. Considering the evidence as it appears in the appeal papers, I am of opinion that, if AAV had attempted to land by flying in the manner of a Feltman curve, the risks involved would have been greater than those involved in following the course indicated by the ATC. To have given directions of the kind suggested by the plaintiffs would not, in my opinion, have resulted in reduced risks. If this be so, the directions given by the ATC were not, in the sense to which Ihave referred, wrong. They did not increase the risks involved in the landing of AAV to all unacceptable extent or, I think, at all; the alternative course proposed would, in my opinion, have involved problems and risks of a higher order. It is convenient at this point to consider the way in which the trial judge, Abadee J, assessed the acceptability of the expert witnesses and what in that regard he did. This is of significance in determining whether AAV could or should have flown in the manner of a Feltman curve and it will have relevance in relation to the causality issue. The main expert witnesses whose evidence is relevant for present purposes were, on the plaintiffs' side, Captain Feltman and Mr Garrisi and, on the defendant's side, Mr Francis. Captain Feltman gave evidence in written form and also gave oral evidence and was cross-examined upon it. Mr Garrisi's evidence appeared only in a comparatively brief written statement. It had been intended that Mr Garrisi give oral evidence. However, his American employer directed that he not give oral evidence. The facts leading to that direction and the reasons for it are not before this Court and accordingly no criticism should, in my opinion, be made of those authorities. Mr Garrisi was a person who, on the written statement of his qualifications, had considerable expertise and this is to be borne in mind in assessing the effect of his written statement. However, the trial judge had the advantage of hearing in evidence the other very well qualified witnesses, Captain Feltman and Mr Francis. His Honour, in my opinion properly, placed greater weight upon the evidence of the witnesses who had been before him. Without putting aside the evidence of Mr Garrisi, I shall confine what I say substantially to the evidence of Captain Feltman and Mr Francis. The expert witnesses on each side were each well qualified. The trial judge described Captain Feltman as "highly experienced" and accepted that he had "started flying the Beech King Air in 1977" and "at the time of trial had 9,000 hours of flying on the aircraft". He was, the judge said, "one of the most experienced pilots of the Beech King Air 200 Series". He had held a Commercial URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahon@g JA) Pilot's Licence since 1965. His Honour had before him the ratings, the licences, and the other experience which Captain Feltman had. Mr Garrisi was, the judge said, "a very experienced officer employed by the US Department of Federal Aviation Administration as a Principal Aviation Safety Inspector". He had had "some practical experience as a pilot of Beech King Air aircraft" and held a number of certificates, licences and other qualifications. Mr Francis's experience, particularly with the subject aircraft, had been extensive. He was "the senior pilot on the programme" for the test flying of the Beech Super King Air 200. He was "the primary pilot on the first airplane, their number one airplane, on which we did all the performance testing and handling qualities testing...". He had been involved in "the single engine performance" testing "during the certification programme for the 200 Series". In evidence, Mr Francis said: "There is very extensive single testing of the airplane during its development and its FAA certification. That testing deals primarily with two areas. One is in the area of flight characteristics or handling qualities, for instance, how well can the airplane respond to the pilot's inputs in the event that one engine is lost. The second area deals with the performance of the airplane, specifically if one engine is lost, how well can the airplane climb or for that matter, cruise on one engine." He said that the Pilots' Operating Manual was "a document which is produced from data gathered by the test pilots and other engineers during the certification process". His Honour, in relation to Mr Francis's evidence, said: "Tt appears to me that Mr Francis' technical knowledge of the Super King Air 200's performance capacity, specifically if one engine was lost, was not merely of an academic nature but derived from considerable and vast actual experience gained as the test pilot in its production." Later. his Honour referred to Mr Francis as: "\.. the actual test pilot and obviously a person familiar not only with the aircraft's capacity in 'actual situations' of the type postulated but also who had input into the preparation of the operational manual pertaining to the aircraft. He apparently contributed to the writing of the operations manual, and to the part dealing with actions to be taken in a situation such as the present." His Honour considered the competing evidence put before him and in particular that given by Mr Francis and Captain Feltman. He said: "They express conflicting views and theories. I have seen them and heard them. I have had the opportunity of hearing their views tested (and tested thoroughly) including the testing of the premises for such. The logical consistency or otherwise of their evidence has also been tested." Of Captain Feltman, his Honour said, inter alia: "Captain Feltman's evidence has caused me disquiet in terms of its acceptance. Apart from the matter of hindsight, there are elements of speculation and conjecture associated with it." Subsequently, his Honour said: "In some ways the evidence of Captain Feltman throws up more unanswered questions than are resolved by it. His reasoning casts doubt upon his opinion. In some ways Captain Feltman's evidence contains internal inconsistencies. lacks supporting premises and logical consistency." 30 UNREPORTED JUDGMENTS As I have said, his Honour preferred the evidence of Mr Francis on the matters which are directly here relevant. His Honour considered at some length the nature of the evidence given and the process by which he should determine which witness he should accept and to what extent. His Honour dealt with the matter at some length. He said, inter alia: "Tt is appropriate if I state that in relation to solving matters of conflict as and between experts that I have acted in part upon my specific evaluation of the demeanour of the expert witnesses. In regard to the approach to be adopted in considering the expert evidence, the evaluation or assessment of the conflicting expert evidence, the conclusions based upon such evaluation and the inferences therefrom, I have also had regard to the views and observations expressed by the Court of Appeal in X and Y v Pal (1991) 23 NSWLR 26 particularly Mahoney JA at 31-33 and the views of Kirby P in Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 291." In this context, I come to consider whether, had the directions given by the ATC been different, AAV would have attempted to land by a method such as suggested by Captain Feltman or whether, as Mr Francis suggested, it would have flown south parallel to Runway 34 and landed across the threshold of that runway. Captain Feltman suggested that it would have done the former; Mr Francis suggested that it would have taken the latter course. In deciding this question, I bear in mind that this is not a question which can be answered simply by the application of common sense or from such intuitive reactions as I, as a judge, may have. The matter is, in my opinion, one in which the expert evidence must play at least a substantial part. Therefore the choice between the experts is of particular importance. Considered in the abstract, the choice between the inferences and conclusions drawn by expert witnesses should be made upon an objective basis: the "weight to be given to inferences drawn by an expert will depend upon, inter alia, the certainty of his facts and the stringency of his principles": Chambers v Jobling (1986) 7 NSWLR 1 at 24. But this becomes peculiarly difficult where the facts from which each expert draws his inferences and upon which he bases his conclusions are in contest between them and where the principles relating to the capacity of an aircraft to fly and manoeuvre are differently stated by each. One must maintain ongoing scrutiny of the facts and the principles. But where the decision must be made not in a laboratory but in a court, it is the evidence which is before the court and the court's assessment of it which must determine the decision. Where the evidence is such that no conclusion or no firm conclusion can be drawn by the court itself from the facts and the principles involved, the court must, to an extent determined by the circumstances, be influenced by the extent to which one expert witness or the other carries conviction. In the present case, this matter has assumed a particular importance. As I have indicated, it was not possible for the judge at the trial or for this Court upon a rehearing to judge for itself how tight a turn an aircraft may safely make or what should properly be done where an aircraft such as this is flying with only one engine. It is therefore proper to examine whether the course the judge adopted was correct and what course this Court should take. It is part of "general human experience": cf Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 173; that one who must decide whether to believe what is said by another will ordinarily take into account what he sees of the person when saying it. Why this is so and the extent to which it should go has been the subject of discussion. Psychologists and psychiatrists have pointed to cases in which URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonay JA) judgments so made have been wrong. Others have justified such judgments as made by observation of "body language" and the like. But the fact that such judgments are made and are acted upon is, in my opinion, clear. If statements made elsewhere may be adapted, used cars are often bought, or not bought, because of the affect of the person selling them. The fact that such judgments are acted upon has long been recognised by those concerned to consider them: see, for example, Sir William Blackstone's observations in 3 Commentaries 373; Starkie Law of Evidence (4th ed) (1853) at 822 et seq; Taylor on Evidence (12th ed) Vol 1 at 55-56. See, more recently, Halsbury's Laws of England (4th ed) (1876) Vol 17 paral22. Judgments of this kind may, of course, be wrong. This fact is relevant in deciding whether the judgment made of a particular witness should be acted upon. But the possibility of error is relevant for another reason. If judgments based upon, as Wigmore has described it, "the elusive and uncommunicable evidence of a witness's deportment": Wigmore on Evidence (3rd ed) (1940) Vol 5, paral395; are wrong sufficiently often, it may be contended that they should not be acted on at all: cf Chambers v Jobling (1986) 7 NSWLR 1 at 28-29. But this, I think, has not been found to be so. "General human experience" has been such that persons have found such judgments validated by the facts sufficiently often to continue to act upon them: as to the significance of general human experience see, eg, Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 224-225 and the matters there referred to. This is confirmed, inter alia, by the fact that, as the High Court has repeatedly affirmed, not merely may trial judges take into account the affect of the witnesses appearing before them, but also that, if they have done so, an appellate court must take into account the advantage which the trial judge had in doing so: see Abalos v Australian Postal Commission (1990) 171 CLR 167. It is proper to recognise also that this has been the experience of those engaged in the law over a very long period. In Chambers v Jobling at 26, I referred to decisions to this effect between 1876 and the present time. Since then the High Court has affirmed that, on appeal, proper weight is to be given to judgments of a trial judge affected by the demeanour of witnesses who have given evidence before him: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. During oral argument, counsel emphasised the possibility of error. That is always to be borne in mind. It has long been emphasised: see, eg, Powell v Streatham Manor Nursing Home (1935) AC 243 at 267-268. In a definitive examination of this matter Lord Wright said: "The judge will form his impression from the whole personality of the witness: he can allow for the nervous witness, standing up in a crowded court or worried by the strain of cross-examination. The judge may be deceived by an adroit and plausible knave or by apparent innocence: for no man is infallible; but in the main a careful and conscientious judge with his experience of courts is as likely to be correct in his impressions as any tribunal, unless perhaps, as some would say, a jury of twelve members is preferable. Yet even where the judge decides on conflicting evidence, it must not be forgotten that there may be cases in which his findings may be falsified, as for instance by some objective fact;...". This case was referred to more recently in Voulis v Kozary (1976) 180 CLR 177 at 182. That has not led to the conclusion that the impression formed by a trial judge may not be relied upon by him in deciding whether a witness should be accepted. Trial judges are, in my experience, conscious of the possibility of 32 UNREPORTED JUDGMENTS error and will take that possibility into account in deciding whether, in the instant case, they should give effect to the impression of the witness which they have formed. This principle applies to a trial judge's judgment of the acceptability of the evidence of an expert witness. This was so held by Lord Scarman in Maynard v West Midlands Regional Health Authority (1984) 1 WLR 634. His Lordship's view was, in my opinion, the view of their Lordships in that case. That view has been adopted by this Court in X and Y v Pal (1991) 23 NSWLR 26 and Ahmedi v Ahmedi (1991) 23 NSWLR 281. This does not mean that a judge should act uncritically upon his intuitive impression of the credibility, ie, the acceptability, of a witness, particularly of an expert witness. Credibility involves, inter alia, the opportunity to know the facts, the capacity to know them, the desire to recount them accurately, and the intellectual capacity to do so. The evidence of a witness is to be tested by reference, inter alia, to these matters. But in the case of an expert witness, a judgment as to acceptability may, in the end, have to be made, by reference essentially to the affect of the witness. The evidence of an expert witness will ordinarily involve three things: the facts from which his conclusion is drawn; the principles to be applied in drawing it; and the conclusions drawn from the application of the principle to the facts. The acceptability of the conclusions will depend, inter alia, upon the certainty of the facts and the correctness of the principles: see Chambers v Jobling at 24. But, not infrequently, the court may not be in a position to decide whether the facts on which the witness relies are true and may not be able to judge the scientific or professional accuracy of the principles. This will be so where, for example, the facts depend upon the experience or experiences of the witness, for example, in the flying of an aircraft or the like, and (where they differ) the court cannot adequately judge which of them is accurate. And where experts state different conclusions and rely for them upon facts which differ and principles which do not agree, it may not be able to form its conclusion by reference to those facts or those conclusions alone. Where a judgment must be made between the facts and the principles advocated at the trial, the court may not be in a position to give give objectively convincing reasons for its choice. It may, in the end, have to depend upon the impression which he witness has made. In such a case, the choice between the experts may fall to be made according to which of them has impressed the court as a credible witness. And in this the affect of the witness may be of importance. The present case is, to a significant extent, of this kind. The question to be decided involves a judgment as to what the aircraft AAV could and should prudently have been made to do in order to land. Mr Francis and Captain Feltman expressed inconsistent views. Their conclusions were derived, to a significant extent, from their own experience of what such an aircraft could do and the dangers involved in doing it. There was - perhaps there could be - little or no evidence which would enable the court to choose between these two conclusions on purely objective grounds. The judge referred to the testing of what they said according to its "logical consistency and otherwise". He saw in Captain Feltman's evidence some "internal inconsistencies". But, as his Honour said, he acted in part upon his "evaluation of the demeanour of the expert witnesses". It was, I think, necessary or at least appropriate that he do so. If landing by a manoeuvre based upon the Feltman curve would have been impossible or would have involved unacceptable risks, the conclusion to be drawn is that the pilot would, absent instructions, have followed the course which URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonag JA) the instructions given by the ATC indicated he should take. As I have said, these were the alternatives presented by the parties. Other alternatives were not explored. The evidence did not suggest that they should be. Accordingly, it is proper to conclude that, absent the instructions, the pilot of AAV would have followed the course to which I have referred. The inference to be drawn is that that course did not involve an increase in danger, or such an increase in danger, as would warrant the conclusion that, by giving the direction that he did, the ATC acted in breach of the duty of care that he owed to AAV. Before leaving this aspect of the matter, it is proper to add two things. First, I have considered carefully, as on a rehearing, the evidence given by the expert witnesses according to the terms of that evidence. Considering the evidence according to its terms, I would prefer the evidence of Mr Francis. What he said in relation to a landing based upon a Feltman curve indicated, in my opinion, an appreciation of what was involved in such a landing and of the dangers of it. My impression from portions of the evidence of Captain Feltman is that he had not had his attention directed with the same degree of precision to what was involved in the landing of an aircraft following a course along a Feltman curve. Accordingly, I understand the preference which Abadee J expressed in this regard for Mr Francis. I see no reasons warranting the court putting aside the advantage which Abadee J had in seeing the witnesses in evidence. But, however that be, I would in this regard come to the same conclusion as was arrived at by the learned judge. Second, it is proper to refer to the Airways Operating Instructions to which Mr Stitt QC, in his address in reply, drew attention. Mr Stitt QC referred, inter alia, to the following instructions: "Vol 2 Airways Operating Instructions RAC-3-1 dated 1.11.79: "1. PRIORITIES 1.1 In assessing priorities for the use of part of the manoeuvring area or airspace for which there are conflicting requirements, provided that safety is in no way jeopardised, traffic priorities shall be applied in the following order: (a) when an aircraft is known or believed to be in an emergency situation including being subjected to unlawful interference, that aircraft shall be granted priority in all circumstances; (b) a multi-engined aircraft which has suffered the loss of an engine and has not been subject to a SAR phase, or has not been considered under the provision of para(a) above, shall be granted priority for landing; 1.5 In cases of emergency, it may be necessary in the interests of safety for an aircraft to enter a traffic circuit and make a landing without proper authorisation. Controllers should recognise the possibilities of emergency action and render all assistance possible. If circumstances warrant, a controller shall instruct aircraft with which he is in contact to give way so as to remove, as soon as possible, the hazard of such an unauthorised operation. In no case shall permission to land be withheld indefinitely." "Airways Operating Manual RAC-0-5 dated 16.6.77: "1. The traffic separation functions of ATC are for the purpose of: (a) preventing collisions (i) between aircraft; and (ii) on the maneuvering area, between aircraft and obstructions: and 34 UNREPORTED JUDGMENTS 2. In providing ATC service in accordance with this section of AO1, the prime responsibility of air traffic controllers is the ever important safety function of preventing collisions and advising known weather hazards... 5. Whenever there is the slightest doubt or even a suspicion of doubt as to the actual traffic situation, which could mean there may be a conflict between aircraft, then air traffic controllers are to assume that such a condition does in fact exist, and they are to act in a manner which will remove the possible conflict....""" It was submitted that these directions provide that, in a state of emergency, an ATC should give absolute "priority" to the aircraft the subject of that emergency. What the giving of such "priority" would require to be done and what the "circumstances warrant" would, of course, depend upon the exigencies of the case. The thrust of Mr Stitt's submission in this regard was that, in allowing RMO to continue to land and in directing AAV to fly south and to land over the threshold of Runway 34 did not amount to the giving of absolute priority to AAV. This was particularly so, it was suggested, because a direction to RMO not to land but to "go round" would have created no danger, could easily have been obeyed by RMO and would have left the relevant air space free for such approach as AAV might choose to make. It was not argued that the Operating Instructions constituted statutory standards of conduct such that disobedience of them, in whatever circumstances, would constitute, as it has been described, "statutory negligence": see, eg, O'Connell v SP Bray Ltd (1937) 56 CLR 464; Henwood v Municipal Tramways Trust (South Australia) (1938) 60 CLR 438; and the cases collected in Fleming The Law of Torts (8th ed) at 124-134. But I shall assume that such Operating Instructions may be taken into account in determining what, in the context of a duty of care, a reasonable person would have done in the circumstances. An ATC acting in accordance with such operating instructions would be required to determine, for example, what, within the instructions as to "priorities" should be done to grant "priority" or "priority for landing" in the circumstances which existed. The Instructions would of course have been complied with if RMO had been directed to "go round". But if the fact was that AAV would, left to the judgment of its own pilot, have followed a course essentially similar to that which it was directed to follow and if the landing of RMO created, in such a case, no additional danger to AAV, then, in my opinion, what the ATC did granted a relevant "priority" to AAV. That, in my opinion, was the position in the present case. For these reasons I am of the opinion that what the ATC did was not, in the relevant sense, wrong; the directions that he gave were directions which it was proper to give. I therefore conclude that the ATC was not negligent in giving those directions. However, I am conscious that the learned judge arrived at the conclusion that ATC was negligent. In deference to his Honour's conclusion and to the submissions made by Mr Stitt QC, I shall assume that the ATC was wrong in giving the directions he gave and that those directions increased the risks involved in the landing of AAV beyond those which otherwise would have been incident to it. On that assumption I shall consider whether what the ATC did constituted negligence. In doing this, it is necessary to make distinctions. First, it is to be borne in mind that not every decision which increases the risk of injury to a plaintiff constitutes negligence. It is necessary to have regard, amongst other matters, to what may be expected of those who live together in a URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonag JA) community and, accordingly, of the particular defendant. Thus, a defendant may desire to have in his dining room a dining table. He may be aware that the (prospective) plaintiff will pass through the dining room. The presence of the table in the dining room will create a risk of damage to that plaintiff which would not exist if the table were not there: if, without the fault of any person, the plaintiff slipped or collapsed, there would be a danger that he would strike his head on the corner of the table and cause serious damage to himself. But the fact that the existence of a dining table in a dining room would create such a risk and that the risk would, in the absence of the table, not exist, would not in my opinion warrant the conclusion that it was negligent of the defendant to have a dining table. To say this is, of course, to burn daylight. But it is important to have in mind that negligence requires more than the conscious creation of a greater risk. Accordingly, if it be assumed that the directions given by the ATC created a greater risk to AAV in landing, that is not be sufficient to require a finding of negligence. It is necessary to consider whether, in the sense referred to in Wyong Shire Council v Shirt, the reasonable person would, because of the increased danger, dispense with her dining table. That leads to the second matter relevant in this regard: whether the (assumed) increase in danger was a mere error of judgment or whether it constituted a breach of the duty care. The choice which was to be made by the ATC was between the direction he gave and a direction involving that RMO be sent around and the air space cleared. That choice was one which does not, I think, involve plain or obvious error. It is therefore necessary to consider why the decision he made should (as I shall presently assume) be held not merely wrong but negligent. The distinction between error and negligent error is in principle clear. It is well recognised in the law: see generally Giannarelli v Wraith (1988) 165 CLR 543; Saif Ali v Sydney Mitchell and Co [1980] AC 198; Whitehouse v Jordan (1981) 1 WLR 246. But, in my opinion, in practice there has been in recent years an increasing tendency to equate error with negligent error; more accurately, fact finding tribunals have increasingly found error to be negligent error in circumstances in which, in earlier times, negligence would not have been found. It is not necessary in this case to consider whether that tendency should be applauded or condemned. But it is proper to recognise the effect which it has had in, for example, restricting the services which previously public authorities felt able to provide: cf L Shaddock and Associates Pty Ltd v Parramatta City Council (1982) 151 CLR 590; the conduct of the functions of such authorities: Sutherland Shire Council v Heyman (1985) 157 CLR 424; and the conduct of professions: see Rogers v Whitaker (1992) 175 CLR 479. It is, in my respectful opinion, proper that the effect of these developments upon the manner of conduct of affairs, the cost of the conduct of them and the insurance and other problems involved be articulated. The dividing line between a non-negligent error of judgment and a negligent error of judgment in a particular factual situation is, as was observed by Mason CJ, "by no means easy to draw": Giannarelli v Wraith (1988) 165 CLR 543 at 558: see also at 577, per Wilson J. It is not sufficient merely to describe what was done as "an error of judgment" rather than negligence. Thus, in Whitehouse v Jordan (1981) 1 WLR 246, Lord Fraser of Tulleybelton: at 263; said: "Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that 36 UNREPORTED JUDGMENTS would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent." But that, of course, presses the question one stage further back. It is necessary to determine the kind of error which such a professional would or would not make. In Saif Ali v Sydney Mitchell and Co [1980] AC 198, Lord Diplock: at 220-221; said: "No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turned out to be errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties and the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered. ... If subsequently a barrister is sued by his own client for negligence on what he advised or did in the particular case, he has the protection that the judge before whom the action for negligence against him will be tried is well qualified, without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take." In my opinion it is not to be taken from such observations that the fact that the error was made in choosing between alternative causes of action negatives the possibility of a finding of negligence. The principle established in Rogers v Whitaker has, I think, a general application: in the end, it is for the court to determine whether, within the law, such a choice involves negligence. It is important to be conscious of the distinction between error and negligent error where the suggested negligence is of the kind here in question. What is here involved is not lack of care as such in the doing of a simple act. The ATC was a person having and expected to have an appropriate degree of skill and to exercise that skill in the instant case. It was not in question but that the ATC possessed the relevant skill: his Honour found and it was not contested that the person in question was highly skilled and highly trained. He was at the time subject to supervision. But the essential complaint was that he gave the direction he did rather than the alternative direction because he did not properly exercise that skill in the particular case. This is a case in which the difference between error and negligent error arises from the choice, in the exercise of accepted skill, of an alternative which was not (as it is assumed) the proper alternative. URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonay JA) A wrong choice may be a negligent choice for a number of reasons. The choice may have been made without due consideration of the alternatives available. It may have been made without due consideration of the consequences of each alternative. It may have been made more quickly, and so without consideration, than was necessary in the circumstances. The evidence does not, in my opinion, establish that the ATC's decision was affected by such defaults. The ATC was conscious of the alternative of directing RMO to go around: I infer this from the nature of the case and what appears on the record of what was said. The decision was made and had to be made very quickly. And the difference between the alternative directions was not such that one was plainly right and the other plainly wrong. There were, inter alia, two main things suggested as indicating negligence rather than mere error. First, it was suggested that the fact that, at 1908:33, AAV had requested landing on Runway 34 "immediately please" indicated such a degree of crisis in the flying of AAV that the ATC should have recognised that to direct it to fly as he did involved unacceptable additional risk. But that submission depends upon what would be understood by the ATC as the significance in the circumstances of "immediately". It was suggested by witnesses for the defendant that the direction given was one which provided for AAV to land, in the relevant sense, "immediately". It was suggested that the best and quickest way of landing AAV in the circumstances, with due regard to safety, was by flying south to land over the threshold of Runway 34 in the manner to which I have referred. The submission suggested that the pilot of AAV and the ATC together each would have envisaged that to be a landing "immediately", a landing by means of a tighter curve to the east and north would have involved unacceptable dangers. The second matter involves a different question, namely, what the ATC should have known or inferred as to the capacity of AAV and its pilot to fly on one engine. The suggestion was, I think, that the dangers were obvious - at least, some danger was obvious - and that that should have led to a different decision by the ATC. As I have said, it was accepted that the aircraft was designed to and could fly and climb on one engine; at least, it could do so if it was flown in accordance with the instructions. The pilot was an experienced pilot and, I infer, would have known what was to be done. As I have indicated, if the plane had been flown in accordance with the instructions, the dangers (if any) incident to its flying as directed by the ATC were dangers with which the pilot could have been expected to cope. It was submitted for the defendant that it should be inferred that the ATC who gave the directions was aware of these facts and that accordingly when he gave the directions he did, he would have been conscious that they involved only the degree of difficulty or danger to which I have referred. That, it was submitted, is relevant in determining whether there was negligence in choosing the directions given. The plaintiffs submitted that it should not be inferred that the ATC knew of the capacities of AAV. The trial judge refused to draw that inference. He pointed to the fact that the defendant chose to call in evidence none of the officers involved in the operation of the control tower at the time. It was suggested that it should be inferred, in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298 at 308, 312 321, that if the ATC had been called, his evidence would not have assisted the defendant on that point. 38 UNREPORTED JUDGMENTS The nature and extent of the inference warranted by the failure to call a witness, as illustrated in Jones v Dunkel, has been the subject of consideration by the courts on several occasions: see Fabre v Arenales (1992) 27 NSWLR 437 at 443; Bootle v Kettlewell (Court of Appeal, 25 November 1993, unreported). As was said in Fabre v Arenales: at 444; there is a danger that what was decided in Jones v Dunkel has been taken beyond what was there involved and there is "sometimes unreality in the attempted applications of that decision": at 444. But, in my opinion, the principle is, in its terms, directly applicable in the present case. No explanation was given for not calling the ATC. If called he could, of course, have stated what he knew of the capacity of the plane to fly on one engine. It is proper to infer that if called his evidence would not have assisted the defendant. Accordingly, bearing this and the other evidence in mind, I do not conclude that the ATC knew or was conscious of the capacity of the plane in this regard. But that does not conclude the present question. It still remains to be determined whether the error made by the ATC in choosing one direction rather than the other constitutes not merely error but negligence. I am by no means satisfied that it does. The choice that he was to make is, as I have indicated, between the direction he gave and a direction that RMO go around and the air space be cleared in that way. I do not infer that that choice involved the failure to exercise the required degree of care. The ATC was required to make his decision very quickly. He had to make it without a full appreciation of the facts: RMO was on short final approach and he did not then fully understand the extent of the difficulties of AAV beyond that it had lost the use of the left engine and desired to land "immediately". It was, in my opinion, by no means clear that, had a different direction been given, AAV would have been able to act, or would have acted, differently. I am conscious of the loss which a plaintiff may suffer when an error of this kind is made and I am, consequently, conscious of the degree of care which the law requires to be exercised by a person in the position of an ATC. These matters predominate. But it is, I think, relevant to have in mind the consequences of a finding of negligence in such a case as this. The law of negligence imposes serious consequences for a breach of its requirements. A person is negligent if he fails by whatever small margin, to exercise the care or skill which the law requires. But the damages for which he becomes responsible are, in the relevant sense, unlimited: they are not proportionate to the degree of negligence. A lack of care barely sufficient to change the colour of the legal litmus paper may involve imposition of liability for many thousands of dollars. And it is, I think, relevant to remember the effect of a finding of negligence upon the standing and reputation of a professional officer. These matters do not determine whether the choice made by a professional is or is not negligent. But, in my opinion, they indicate the context in which such a decision is to be made. Tam conscious that the trial judge concluded that the ATC was in breach of his duty of care. His Honour came to this conclusion, I think, influenced by the standing directions to ATCs to which I have referred and because the ATC did not, pursuant to those directions, clear all other aircraft from the vicinity of the runway so as to allow AAV to land as it chose. It has not been argued that the directions to ATCs constituted directions having statutory force of such a kind that non-compliance with them necessarily constituted a breach of duty and consequently the tort of (as it has been described) statutory negligence: see generally O'Connor v SP Bray Ltd (1937) 56 CLR 464; John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218. The status of the statutory directions has not been UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonag JA) referred to in argument before this Court. I accept that the directions may constitute, in effect, the accumulated wisdom of those in the industry amounting to a practical judgment that in an emergency care requires that the area be cleared to permit landing. But, in the end, it is necessary to determine the significance of an act or default in the context of the instant circumstances. In the present case, for the reasons to which I have referred, I think that such danger (if any) as was created by the ATC directions was created by default rather than by an error of judgment by the ATC. I think that what AAV did in flying in a southerly direction parallel to Runway 34 was what AAV would in any event have done. It could not safely have done otherwise. For these reasons, I am of opinion that there was no relevant breach of duty by the ATC. 3. CAUSE OF DAMAGE: What I have said in relation to a breach of duty is sufficient to determine this appeal. However, Abadee J decided the matter upon another basis: he concluded that the act or default of the ATC did not cause the plane to crash as it did. The issue of causality has been dealt with at length in the submissions made to this Court. I shall therefore assume, contrary to the view which I have expressed, that the direction by the ATC constituted a breach of duty and | shall consider whether that breach of duty caused the plane to crash. I shall do this by reference to the principles of causality applicable in such a case as the present. In doing this I shall in a sense repeat the matters to which I have referred in determining whether what the ATC did was a breach of his duty to AAV. This results from the relationship in the law of negligence between a breach of duty and causality. It has from time to time been suggested that, in some factual contexts at least, the issue of breach of duty is in substance the same as that of causality and that the difference between them lies in verbiage rather than in the substantial reasons upon which the conclusion in each case is based: see generally Bennett v Minister for Community Welfare (1992) 176 CLR 408 and the observations of Mason CJ, Deane and Toohey JJ: at 416; and of Gaudron J: at 422. The present case illustrates the difference between (as I shall describe it) the practical approach to causality and the legal approach. The injury for which the plaintiffs sue, namely the injury to passengers in AAV, was caused by the crash of it into the runway. The Court is concerned essentially with what caused that crash. There was a consensus in argument that what caused the aircraft to crash was its descent from 100-120 feet to 15 feet: there was a consensus that, when it did that, it was "doomed". Therefore, on a practical approach to the issue, the cause of the injury was the descent of the aircraft or that which caused it to descend. It was put that the reason for that descent was probably the decision of the pilot to attempt by the descent to gain additional air speed. But, however that be, once it descended as it did, it was "doomed" to crash. However, in law the concept of causality is more complicated. In deciding who for the purposes of the law, caused a particular injury, the law decides who is to bear the burden of the loss resulting from it. I do not mean by this that the law invites each court to apportion the burden of a plaintiffs loss simply in its discretion or according to its evaluation of the social considerations involved. The legal concept of causality establishes the parameters of what the court may do and the considerations to be taken into account in deciding where the burden 40 UNREPORTED JUDGMENTS of loss is to lay. And the cause of the injury is to be determined, not in the way in which the cause of a physical phenomenon is to determined by a scientist or a philosopher, but in another way. The law accepts that, in a given factual situation, there may be several different acts or defaults which, for the purposes of the dispute before it, may be seen to be the cause of an event or loss. Reference was made to this in Barnes v Hay (1988) 12 NSWLR 337. In that case the question at issue was whether the negligence of solicitors in failing to warn their client that, if he did not reach an agreement on various matters, his lease could be terminated. He did not reach such an agreement, he was harassed by his lessor, and ultimately he left the premises. He sued the solicitors in negligence for loss of the profits he would have gained had he not been harassed in that way and for loss of possession of the premises. Notwithstanding that, after the time of the solicitor's negligent advice, various events had taken place leading up to his loss of profits and his vacating of the premises, it was held that the solicitor's negligence and not those matters was the cause of his losses. Reference was made in argument to the decision of the House of Lords in Hamilton Fraser and Co v Pandorf and Co (1887) 12 App Cas 518. In that case, rats had gnawed a hole in a pipe in a ship. Sea-water entered through the hole and damaged the cargo. The shipowner was liable, unless the damage was caused by "dangers and accidents of the seas", within the shipping documents. Damage caused by the rats was not, but the entry of sea-water was, within that description. Lopes J held that the damage was caused by the sea-water (1885) 16 QBD 629; the Court of Appeal by the rats (1886) 17 QBD 270; and the six members of the House of Lords by the sea-water. It was, I think, apparent to their Lordships at every level that the choice between the rats and the sea-water as the cause of the damage was not determined by the considerations which David Hume and JS Mill ("necessary and sufficient precedent events") applied in their examination of physical phenomena. The facts of the present case illustrate that, in the end, the cause of a particular loss may be chosen from a number of possible things. A person considering the present case might choose, as the cause of the crash: the failure of the left engine to operate; the veering of the aircraft to the left following that failure; what was done to straighten the flight of the aircraft and the effect that had upon its air speed; the direction given by the ATC; the pilot's failure to feather the left propeller at a proper time or in a proper way; the descent of the aircraft from 100120 feet to 15 feet or what caused that descent; and the striking of the water by the left wing of the aircraft. As the decided cases indicate, any one of these could have been chosen, for the purposes of a particular dispute, as the or a cause of the crash. In the present case, the plaintiff has submitted that it was the act or default of the ATC which was the cause. If that act or default rather than another of the possible alternatives is to be accepted as the cause or a cause of the crash for present purposes, it must be possible to indicate why that rather than the other possible alternatives is chosen. In some cases, judicial decisions result, not from an articulated process of reasoning, step by step, to such a choice but from a more or less intuitive selection of one rather than the other. Decisions are sometimes arrived at by the application of a principle whose terms are indeterminate and the application of which does not lead inexorably to the selection of one rather than another of the possible alternatives. But, if justice is to be done to the plaintiffs and to the defendant, it is in my opinion proper to examine the reasons why, as URE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Mahonéy JA) the plaintiffs' submissions suggest, the acts or defaults of the ATC rather than the other alternatives are to be seen as the or a cause of the crash. In my opinion there is no convincing reason for choosing what the ATC did rather than some other of the available alternatives. In some cases, an act or default may be seen as the cause of an event because the act or default has brought into being a danger which would not otherwise have existed and because the loss in question has resulted from the danger so created. That which caused the engine to fail might be held to be such. Situations of this kind were, I think, inherent in the matters put in the present case. In Barnes v Hay: at 356; reference was made to considerations of this kind. In Stansbie v Troman (1948) 2 KB 48 the defendant decorator had been left alone in the plaintiffs house. He left the house and when he did left the door on the latch so that it could be opened merely by turning the handle. In his absence a thief entered the house through the door and stole the plaintiffs property. Plainly the thief was the cause of the loss. But it was argued that the defendant also had caused the loss. He was held liable because "as a direct result of his negligence... the thief entered by the front door, which was left unlocked, and stole these valuable goods": at 52. In Barnes v Hay, it was held that the solicitor's faulty advice was the or a cause of the plaintiffs loss because "that loss was the thing, or one of the things, which the advice ought to have been directed to avoid: the reason why the advice was faulty was because it was apt to lead to the kind of loss which in fact was suffered": at 356. But reasoning of that kind does not, in my opinion, lead to the conclusion that, in the present case, the act or default of the ATC caused the crash. The danger which the direction of the ATC caused was, as I have indicated, such danger as was involved in the fact that AAV would fly for a longer time than otherwise it would have and that, in the course of doing so, an error could be made in the manoeuvring of the plane so as to fly on a straight course. But, however the danger produced by the ATC's directions be formulated, it was not that danger which caused the crash. As I have indicated, various submissions were made as to what caused the crash. That which caused it was the descent of the aircraft from 100-120 feet to 15 feet. This was caused either by the failure of the pilot to feather the left engine when he should have or in the manner he should have, or by the decision of the pilot to descend in an attempt to pick up speed. These were the things which, in argument, were suggested as the causes of the descent of the aircraft. These were not the result of the direction given by the ATC. Having regard to the place at which the descent took place and the time intervals involved, such a descent would have taken place whether the aircraft had followed the line of flight that it did or had turned left in a tighter circle. Accordingly, whatever danger was created by the direction given by the ATC, that danger did not cause the descent of the plane and the resultant crash. I have, in deference to the careful submissions of counseL spelled out the issues involved in this result. I have endeavoured to draw out the significance of the considerations on which counsel have relied. Considering the matter in "common sense" terms, my conclusion is that the direction given by the ATC, whether it was or was not negligent, was not that which led to the crash. That crash resulted from factors other than that direction. In my opinion the conclusion reached by Abadee J was correct. I would dismiss the appeal with costs. 42 UNREPORTED JUDGMENTS Clarke JA At 1909:22 hours on 21 February 1980 a Beech Super King Air VH-AAV operated by Advance Airlines of Australia and piloted by Captain Wahl crashed into the seawall on the western side of the north south runway of Kingsford Smith Airport shortly after take-off on a scheduled flight to Temora and Condobolin. The pilot and all passengers were killed instantly. This appeal concerns the dismissal by Abadee J of a claim brought by dependents of Mr and Mrs Henderson, who were among the passengers, against the Commonwealth of Australia. In the statement of claim the appellants relied on a number of breaches of duty by officers of the Commonwealth. In dismissing the claim his Honour either rejected the claims that the breaches of duty occurred or, where he found breaches, the existence of a causal nexus between any breach and the loss of the aircraft and its passengers. On the appeal the appellants have challenged only one area of his Honour's judgment and that involved the air traffic controllers at the airport. Perhaps the best way to define their claim is to quote the relevant particulars relied on by the appellants which are set out in the judgment: "(a) Failing to respond properly or with sufficient speed to the statement 'request landing on Runway 34 immediately please' (being part of a communication made by the pilot at 1908:33 hours to the control tower). (b) Failing to permit the pilot to land on Runway 34 immediately in circumstances where to their knowledge the aircraft had suffered a total power failure in its left engine, deviated from its runway heading and was flying at low altitude. (c) That the control tower officers 'directed' the pilot to make a landing on Runway 34 from what is called an approach from left base knowing that the aircraft was losing height and was without power in its left engine. (d) Failing to permit the aircraft to make an emergency landing without passing over the threshold of the runway. (e) Failing to clear other aircraft in the vicinity to permit the pilot of AAV to make an emergency landing without regard to their presence. (f) Failing to clear aircraft VH-RMO ("RMO") immediately (after the completion of the transmission at 1908:33 hours) from the vicinity of Runway 34 by means of what was called a "go round" instruction. (g) Adding to the workload of the pilot of the aircraft VH-AAV by distracting communicators or communications. (h) Issuing a 'go round' instruction by aircraft VH-RMO ("RMO") which was too late and ineffective." I have quoted all the relevant particulars to encompass the various ways that the appellants put their case but the essence of the claim was that the air traffic controller on duty responded inappropriately to a request by the pilot or gave him a wrong direction and was negligent. Abadee J accepted the essence of this case and held that the relevant instruction was not appropriate and constituted a breach of duty. Notwithstanding, for reasons which he expressed in great detail and at length, he was not satisfied that the breach of duty materially contributed to the crash. It is the last finding which the appellants challenge but the task facing the court is not limited to the reconsideration of the causation issue for the respondent has filed a notice of contention in which it challenges a number of his Honour's findings including the finding of breach of duty. UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Clarke JAB It follows that the fundamental questions involved in this appeal require the court to examine the evidence, in the light of his Honour's unchallenged findings. Before turning to the facts I should point out that a number of exhibits which bear on the questions with which we are concerned were tendered on other issues and may not have received the close attention at the trial which they received before this court. Hence his Honour did not attach the significance to them, or to parts of them, on the presently relevant issues which one or other of the parties has submitted they deserved. Turning to the facts, there was no dispute as to most of the primary facts which can be summarised as follows: Before 1907:27 AAV was stationery on the eastern end of the East-West runway (25) of the airport. At that time it received its take-off clearance - "Maintain runway heading, maintain 3000', clear for take off'. It immediately commenced its take off and before reaching the intersection with Runway 34 (the north south runway) it left the ground and rose to 100'-150'. Shortly after crossing that intersection the aircraft commenced turning to the left. This occurred at about 1908:19. The aircraft continued on its left hand turn, passing by the control tower and proceeding over Kyeemagh Baths, by which time it was proceeding nearly at right angles to runway 25 and almost parallel to Runway 34. It was about this stage that the pilot radioed the air traffic controllers (ATO). The time was 1908:33 and the pilot said "We've lost er the left engine request landing ah landing on Runway 34 immediately please". (The transmission lasted 5.3 seconds). ATO responded immediately (1908:38) saying "Roger make visual approach left base Runway 34" (this took 3.4 seconds). Almost immediately ATO radioed the pilot again saying "Do you have the 727 in sight on short final" (I will explain the reference to the 727 shortly). This transmission started at 1908:44 and lasted 3.3 seconds. An immediate response "affirmative" was received. The aircraft was then still about 120' above ground level but almost immediately it commenced a descent from which it straightened about 15' above the sea in Botany Bay. At this stage the aircraft was out of control and at 1 909:Z it crashed into the sea wall on the western side of Runway 34 in close proximity to its southern extremity. To complete this picture it is necessary to refer to a TAA 727 jet which was approaching Runway 34 from the south having travelled from Melbourne. At 1906:03 (before AAV commenced its take off) the jet (RMO) reported "short final'. At 1908:19 (when AAV had taken off and cleared Runway 34) RMO was given clearance to land. Ultimately, RMO touched down on Runway 34 at 1909:04 and almost immediately afterwards ATO gave it the following direction "...Go around. Correction st stay on the runway and expedite we have a landing er right behind you (he's) one engine out". Less than 15 seconds later AAV crashed into the sea wall. The two basic questions facing the court in the appeal are, I reiterate, whether the instruction given by ATO to AAV to make a "visual approach left base Runway 34" was, in all the circumstances, a negligent one and, if so, whether there was a causal nexus established between the negligent direction and the ultimate crash. It is, I think, helpful in considering these questions to refer to a report prepared by the Air Safety Investigation Branch of the Department of Transport (Australia) into the causes of the crash which was published in September 1981. Under the hearing "Analysis" the following, inter alia, appears: 44 UNREPORTED JUDGMENTS "The loss of left engine power was not, of itself, the primary cause of the ensuing accident. The failure occurred at a critical phase of flight, the aircraft was overloaded by some 128 kg and the ambient temperature was 39 degrees C, nevertheless the single-engine performance of a Beech 200 is such that safe continuation of flight should have been possible. This, of course, assumes that the remaining engine was capable of normal operation. In respect of the right engine of VH-AAV, no evidence of significant pro existing fault was found. Maladjustments of the propeller governor and propeller over-speed governor existed but, on test, were found to have negligible effect upon engine operation. To achieve the best single-engine climb performance, a Beech 200 should be flown straight ahead with the unoperative propeller feathered, landing gear and flaps up, maximum power set on the operating engine, at the optimum airspeed, with 5 degree bank into the operating engine. A variation in any of these parameters will reduce the rate of climb. When the left engine of VH-AAV failed it is known that the landing gear was up and the aircraft was climbing straight ahead. It is probable that the left propeller was feathered shortly afterwards and, at some stage of the flight, the flaps were raised. On the other hand it is known that instead of bank to the right being introduced, the aircraft banked and turned to the left shortly after the engine failed and, with minor variations, stayed in such an attitude for most of its flight. The situation in respect of other parameters is not known but, from circumstantial evidence, the following appears likely. The take-off was probably carried out with power set at the company limit of 700 degrees C ITT. This would have reduced the acceleration, and hence increased both the time and distance to lift off but, given the long runway available, not to any significant extent. When the left engine failed the pilot was confronted with two important tasks: to control the aircraft in its state of asymmetric power and to identify and shut down the failed engine. Of the two, controlling the aircraft is more important. This should have involved countering the yaw caused by asymmetric power with opposing rudder, adjusting the aircraft pitch attitude to gain and maintain optimum air speed, introducing 5 degrees of right bank and applying full power. The second task, identifying the failed engine, confirming by reference to the engine torque gauges, and then moving the left propeller control to the feather position should have been carried out next. Given the expected delay in human reaction due to surprise, the second task was commenced with reasonable speed. Feathering of the left propeller was apparently initiated about ten seconds after engine failure. In terms of controlling the aircraft, however, the only action to be expected was the lowering of the aircraft nose to gain or maintain air speed. There was no obstruction ahead and hence no obvious reason to place the aircraft into a left tum. The pilot could, as indicated in his transmission to Aerodrome Control, have decided the best plan was to make a landing on Runway 34, but it would have been usual to climb straight ahead to at least 500 feet before turning left. It therefore seems likely that the left turn was entered unintentionally as the aircraft would naturally tend to do in the absence of opposing control inputs. Two reasons, probably in conjunction, appear possible for such a tum. Firstly, in the stress of the moment the pilot's attention may have been primarily directed to what was wrong with the left engine and what could and should be done about it. This would have involved an inspection of the engine instruments with associated diversion of attention from both the flight instruments and external references. The second reason was the low azimuth of the sun, almost directly UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Clarke JAB ahead. This created both delay and difficulty in visual adjustment to the relative darkness of the cockpit interior and would have further compounded the loss of outside reference. By the time the pilot had resolved the engine problem and returned his attention to aircraft control it is probable that VH-AAV had already turned some 30 degrees to the left. The situation was not critical, in that the tum could have been stopped or even reversed but, probably conscious that he was in a busy traffic area and had deviated from his authorised track the pilot's immediate reaction was to call Aerodrome Control to explain this emergency and obtain clearance for the left tum. Both his transmission and monitoring the response would have occupied his attention and this distraction was prolonged by the need to scan for and acknowledge the siting of the Boeing 727 on approach for Runway 34. By the time this transmission was completed the aircraft had turned through approximately 90 degrees and the pilot commenced to straighten the aircraft onto a downward leg. If, shortly after left engine failure, the right engine had been set to the maximum limit of 750 degrees C, then VH-AAV should have retained a climb potential throughout the initial tum, albeit less than flight straight ahead would have provided. As the aircraft maintained a virtually constant altitude, this potential should have resulted in an increased airspeed. It would therefore have been expected that the aircraft would climb on the downwind leg, towards the normal circuit height of 1000 feet AGL. Instead, shortly after straightening, the aircraft descended to just above sea level. The most obvious explanation for such a manoeuvre is that the pilot was attempting to trade altitude for airspeed. If power had not been increased from the take-off setting of 700 degrees C ITT then, during the tum, the aircraft would have been in a negative climb potential regime. By holding height in such a situation, airspeed would have been reduced and, given all the other demands upon his attention, this could have been overlooked by the pilot. When it was noticed he could be expected to react rapidly in an attempt to rectify the situation. That the pilot had not appreciated the deteriorating situation prior to this is supported by the normality of his early transmissions to Aerodrome Control. It was not until responding to the query whether the approach and landing would be normal that he conveyed an awareness of real danger. The descent was evidently not successful in that the gain in airspeed was not sufficient to permit the aircraft to climb. During the final low level segment of the flight the aircraft attitude was nose high and the continuing gradual left tum indicated the pilot was experiencing directional control problems. At the extremely low height, ground effect, with its resultant reduction in drag would have assisted, but not sufficiently to recover the situation in the time available." There is reference in the report to the feathering of the inoperative propeller. The importance in feathering that propeller at an early stage lay in the need, which was important, to reduce drag effect. If the propeller was not feathered then that effect would be much greater. It was common ground that when the wreckage was inspected the left propeller was found in the feathered position. The persons involved in the compiling of the report took statements from witnesses, who were not called at the trial, and as a consequence of the observations of those witnesses concluded that the feathering took place at about the time stated in the report. The respondent did not accept that was a correct conclusion and submitted that, on the evidence of the only eye witness called, it should be concluded that the feathering took place much later. Consequently, it 46 UNREPORTED JUDGMENTS was said, the failure to feather exacerbated the drag problems and led to the aircraft performing in the way in which it did. It seems to me, and in saying this I am agreeing with the trial judge, that the time at which the propeller was feathered is a matter of sheer speculation on the evidence in this case. There is no doubt that the aircraft was designed to fly safely, and even to climb, on one engine and it was also established that the correct procedure required that the pilot take a number of remedial steps, continue on straight ahead and lift to a height of at least 500 feet. It is obvious that the pilot did not follow those correct procedures. There are, as it seems to me, three possible explanations for the immediate bank to the left. First, the pilot did not follow the correct procedures and was unable to correct the banking to the left. The second and alternative explanation is that he determined to bank to the left in order to move into a position in which he could land the aircraft on Runway 34. The difficulty with such a manoeuvre is that the banking itself created drag which had a negative effect on the maintenance of speed. A third possibility is that the pilot encountered other malfunctions which made it impossible, or very difficult, to climb straight ahead. There is support for the first theory in the evidence. There was an exhibit tendered (Exhibit MM) which demonstrated graphically that if inappropriate procedures are taken once an aircraft has lost its left engine the aircraft will tum in a slow skidding way to the left, losing power and balance, in much the same way as the aircraft did on the fatal day. On the other hand the pilot was experienced and appeared calm almost to the end. If, however, he had determined to bank left in order to land immediately it is inexplicible that he did not immediately notify ATO of his intention instead of waiting for 14 seconds. To my mind there are simply not enough hard facts to enable the drawing of an inference, one way or the other. If anything I prefer the first hypothesis. It is, I think, the most likely of the three. It was submitted that, given the emergency, ATO should have cleared the aircraft to land when and where it desired and should have directed RMO to abort its landing. In considering this submission it is important to bear the following in mind. First, it was known that a Beech aircraft could fly satisfactorily on one engine; secondly, the bank to the left, although unusual and contrary to instructions, did not present a picture of a great emergency or impending danger; thirdly, the pilot explained the problem - the left engine was out - and sought permission to land immediately although in terms which did not suggest that there was any desperate emergency. The suggestion that the appellant made was that the use of the phrase "immediately please" conveyed that message. To me it is difficult to understand why it should be thought to have done so. The aircraft was known to be capable of being flown on one engine and there was nothing in the statement made by the pilot which conveyed any more than that he wanted to land his aircraft immediately. The addition of the word "please" should, in my opinion, have conveyed no more than that he sought a positive response to his request. The pilot may have been seeking to convey a great air of urgency by his use of the word "please" but in the absence of evidence attributing a special meaning to that word I do not believe that that would necessarily have appeared to the listener. Fourthly, when the instruction was given the pilot accepted it when, if he had thought it inappropriate and that the danger was great, he could easily have responded by asking ATO to abort RMO's landing to which his attention was specifically drawn. UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Clarke JAY His Honour accepted the evidence of Captain Grady, a Boeing 727 pilot, and expert in the area of its flying capacity, to the effect that the pilot's request at 1908.33 should have been met by an air controller's instruction to the effect "Clear to land on Runway 34" and a further instruction to RMO to "Go around". No doubt this was an available view but, in the absence of an indication of an emergency, or a rapidly deteriorating situation or, indeed, a request to land in an unorthodox manner on any part of Runway 34, I would not accept that in the circumstances known to the ATO the failure to give that response should be categorised as negligent. In my opinion a preferable view is to be found in the report to which I earlier made reference in which it was said: "A final consideration is whether air traffic control might have been able to influence events so as to prevent the accident, or at least have reduced its severity. The only factor under their control was the movement of other traffic that might have hindered the freedom of VH-AAV to manoeuvre. Only one aircraft, VH-RMO entered this category and it could have been instructed to go around when the pilot of VH-AAV first reported an engine failure. Such a decision, however, could not be justified on the facts available to Aerodrome Control at the time. The controller's knowledge of Beech 200 aircraft was sufficient to appreciate that single-engine flight should not have been a critical condition. The aircraft was apparently under full control and the pilot had not indicated, either by the universal alert of 'Mayday' or in any other terms that an accident was imminent. Furthermore, the Boeing 727 was so advanced in its approach to land that there was no question of its hindering VH-AAV in the event of that aircraft following the expected approach pattern. Once the situation deteriorated, with VWH-AAV in a descent and the pilot confirming a normal approach was not possible, Aerodrome Control took action to ensure the availability of Runway 34. From a reconstruction of the flight path of VH-RMO, it is considered that the decision to allow it to complete its landing was correct. This did not significantly affect availability of the runway and to have required the Boeing 727 to effect a go-around in the middle of a landing sequence could have introduced a hazard to that aircraft and its occupants." The ATO was placed in a situation where the Beech aircraft was behaving in an unusual manner and its pilot had sought permission to land at a time when a large commercial airliner was in an advanced stage of its landing procedures. The ATO had to balance the possibility of danger to the Beech aircraft against the creation of disruption and possible hazards to an aircraft carrying a large number of passengers. In all those circumstances I am of the view that his response was an appropriate one and that the trial judge erred in finding negligence. It should not be overlooked that the appellants' argument on this question proceeded on the premise that the pilot of the Beech aircraft was intending, to continue the aircraft's turn to the left to enable it to land on the central or northerly portion of Runway 34. It was submitted that this was the inference to be drawn from the known flight path and the text of the request at 1908:33. For reasons, which I amplify later, I am unable to agree that this inference is available. The known facts are too limited and too uncertain to enable the drawing of the inference. The words used in the request by the pilot are a clear indication that he wanted an immediate clearance to land but nothing he said indicated a dangerous emergency or that he wanted to execute a most unusual manoeuvre. The turn of the aircraft was unusual and inappropriate but it provided no basis, in my view, for a conclusion that the pilot intended to continue his tum and land on the central or northern part of Runway 34 until the receipt of the 48 UNREPORTED JUDGMENTS instruction, as the appellants have argued. I say that for two reasons - the known facts are insufficient to provide a basis for reasoning logically to that conclusion, and, secondly, as his Honour found, the aircraft's turning circle to the point it straightened up brought it too close to Runway 34 to enable it to execute a safe landing on that runway. Although the evidence does not enable the court to determine the question there is a real possibility that the aircraft took off with the power set at the company limit of 700 degrees C ITT and that, once the engine failed, the pilot did not set the right engine to the maximum limit of 750 degrees C ITT. This would provide a ready explanation for the loss of speed of the aircraft which, it would seem probable, led to the disastrous descent. If this had occurred it would follow that the pilot had not carried out appropriate procedures and, probably, was not in complete control of the aircraft, at the time he first spoke to ATO, whether he realised it or not. The conclusion I have just expressed leads to the dismissal of the appeal. Notwithstanding it is, in my opinion, appropriate that I deal with the causation issue which was decisive of the verdict for the respondent given by Abadee J. The premise upon which I discuss the issue is that, contrary to my conclusion, the ATO was negligent in his instruction to the pilot and in positively failing to give the proper instruction both to the pilot and RMO - that is, that he should have instructed RMO to go around and informed the pilot that he could land at any time on whatever part of the runway he wished. The issue that then arises is whether there was a causal nexus between the negligent failure of the ATO and the damage suffered by the plaintiffs. The legal approach which should be adopted to this inquiry has been discussed by Mahoney JA in his judgment in terms with which I respectfully, adopt. The factual issue was posed by Abadee J in these terms: "In this case there is a serious issue of causation raised by the plaintiffs' alleging air traffic controllers' negligence and relating to what the pilot would have done had he at 1908:38 been given, as asserted, a clearance to land on Runway 34 (the specific location requested by the pilot in his message of 1908:33) and had he been told no further transmissions were required followed by an air traffic control instruction to RMO to go around. Two questions arise. The first concerns the pilot's intentions and wishes and whether the pilot would, in the event, have followed a different course to that which he did (Exhibit G), and secondly, whether he could or would have in the event landed safely on Runway 34 by following a different path (after an alleged correct instruction), and which would have involved flying in effect the flight path drawn in Exhibit Lcommencing at, about, or very shortly after, - 1908:44. Thus, if the harm would have occurred notwithstanding the failure to perform a duty then the subject omission or failure is not a cause of the damage:" The trial judge believed that the two questions were inter-related, that is, that his capacity to land on Runway 34 must have had a bearing on his intentions at the time. In that context the trial judge said: "Tf the pilot probably could not have safely flown the 'Feltman curve' such would of itself be consistent with a view that he never intended to do so, or even to try and do so. To this extent intention and capacity to fly the 'Feltman curve' are in a sense somewhat related matters. To some extent they run into each other. The defendant submitted that the claimed proper instruction, if accepted by me, in terms still would not have caused the pilot to fly the 'Feltman curve' since he could not safely do it as he was not displaced at any time far enough to the west." UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Clarke JAD His Honour then went on to say that the question whether the aircraft could, assuming a correct instruction, have landed safely on Runway 34, was to be determined by the resolution of the debate between the two experts Captain Feltman, called by the appellant, and Mr Francis, called by the respondent. His Honour then proceeded to consider that issue and concluded that he preferred the evidence of Mr Francis that the pilot could not have landed the aircraft safely on Runway 34 primarily because he was not far enough to the west of the runway when he had his communication with ATO. Apart from his Honour's preference for the substance of the evidence given by Mr Francis he expressed some disquiet with aspects of the evidence of Captain Feltman. He thought that he displayed elements of hindsight, speculation and conjecture. His Honour thought the evidence of Captain Feltman threw up more unanswered questions than were resolved by it; that his reasoning cast a doubt upon his opinions and that in some respects his evidence contained internal inconsistencies, lacked supporting premises and logical consistency. Indeed his Honour thought there was much force in the following question put to Captain Feltman: 'You see this manoeuvre that you have proposed and marked on Exhibit L, one might respectfully suggest to you, is nothing more than wild speculation, would you agree with that?" The fact that the witness did not agree is not to the point. What is important is that his Honour, who heard the witness and observed the difficulties which he has mentioned, thought that there was real substance in the suggestion put. It should be well understood that, although these observations specifically related to Captain Feltman, they were made following a general statement by his Honour that in resolving matters of conflict as between experts he had acted, in part, upon his specific evaluation of the demeanour of the witnesses. In these circumstances there are strict limitations upon the power of this Court to review his Honour's acceptance of Mr Francis in preference to Captain Feltman (see X and Y (By Her Tutor X) v Pal [1991] 23 NSWLR esp Mahoney JA at 31-33 and Ahmedi v Ahmedi [1991] 23 NSWLR 288, esp at 299-300). The appellants sought to meet this problem by a submission that his Honour had misused his position of advantage and, in particular, had misconceived the thrust of the evidence of Mr Francis. The submission was developed in this way: It was the defendant's case, articulated by Mr Francis, the aeronautical engineer, that the aircraft could not return to Runway 34 to land safely from the position where the pilot called his emergency (either at the point at 1908:33 or the point at 1908:38) nor from any point along the flight path. This proposition was rooted in the assertion that because of aerodynamic factors the aircraft was not capable of making or flying the requisite turning circle of 180 degrees and landing on Runway 34 because the diameter of tum of a Super KinG Air 200 required a greater radius of arc of tum than was available from any of those points. The implication underlying the last statement is that the aircraft was not displaced far enough to the west of Runway 34 to make a safe tum and land on the runway. The appellants' counsel claimed, however, that his Honour failed to understand this evidence, or its significance, and that he was confused and made a number of contradictory findings on the question of the distance of the westerly displacement of the aircraft from Runway 34. The submission proceeded, "he was confused and thought the aircraft was 'displaced too far to the west' in order to tum. This is the opposite of the effect of Exhibit 5 and Francis' evidence. Francis never said the aircraft was displaced 'too far to the west' in order to be able to make the relevant turn. His evidence was to the opposite effect." 50 UNREPORTED JUDGMENTS It was accepted by the respondent, clearly correctly, that the submission properly expressed the thrust of Francis' evidence. He expressed the view, in strong terms, that a Beech Super King Air 200 required a greater turning radius, particularly if operating with only one engine. If, as the appellant claimed, his Honour in truth misunderstood this evidence then I would agree that there was a sound basis for reviewing his Honour's evaluation of the evidence. Because the trial judge did, on more than one occasion, refer to the aircraft being too far to the west I have read and re-read the relevant portions of the judgment in order to decide whether his Honour was confused or whether typographical, or other, errors invaded the reasons for judgment of a judge who was perfectly clear as to the evidence before him. In particular I have paid careful attention to the seven instances in which reference was made to westerly displacement in the judgment and to which our attention was drawn by the written submissions, and also two instances not mentioned in those submissions but in which his Honour referred to that subject. Having read that material and reflected on the general effect of his Honour's reasons I have no doubt that his Honour clearly understood the thrust and detail of Mr Francis' evidence which he analysed carefully and at length. Indeed in his final reference to the matter he said: "I have already referred to my view that it could probably not be done, accepting Mr Francis' evidence rather than Captain Feltman's. The aircraft was not displaced far enough to the west of Runway 34 to "execute a left turn", or carry out a left turn and land, or rather land safely on Runway 34. I do not think there is any substance in the point. I accept that a gremlin has entered the reasons but a reading of the totality of this portion of the judgment leaves me, as I have earlier indicated, in no doubt that his Honour was acutely alive to the difference between the points of view articulated by the experts and based his ultimate conclusion in large part upon his acceptance of the view expressed by Mr Francis that the aircraft was too close to the runway to enable it to tum and land on the runway. That view is reinforced by the fact that it is nonsense to speak of the aircraft being displaced too far to the west to tum safely to its left and land on the runway. His Honour's reasoning could never be regarded as supporting the view that his Honour made this fundamental mistake. The suggestion is, in my opinion, quite unfair to the judge. The other challenges to his Honour's acceptance of Mr Francis' evidence depend upon an examination of its substance and I have been unable to discern any error in it. The conclusion that the aircraft could not safely turn to the left from its position on any point of its route on the fatal afternoon and land safely on Runway 34 had, as his Honour thought, a dual effect. First, it made it highly unlikely that the giving of the, assumed, correct direction would have saved the aircraft or even given it a real chance of a safe landing and, secondly, it makes it unlikely that the pilot, who was labouring under difficulties, ever intended to follow the path of what has been described as the Feltman curve or any similar course. The second statement reflects a finding that his Honour made that the pilot probably did not ever intend to manoeuvre the aircraft to return to land on Runway 34 on a track similar to that drawn by Captain Feltman. This was, in my opinion, a substantially correct conclusion although I would like to express it slightly differently - the appellants did not establish that on the probabilities the pilot ever intended to manoeuvre the aircraft in the manner suggested by Captain Feltman. UIRKE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA (Clarke JA) Let me reiterate a point I made earlier. That is that there was no evidentiary material before the court which would have justified a conclusion that the pilot intended the course suggested by the appellants. The evidentiary material upon which the appellants relied to found the inference that the pilot probably intended to follow a path similar to the Feltman curve was within a limited compass. In broad terms the submission was that three factors - the path followed by the pilot to the time he sought permission to land, the inoperative engine and the addition of the words "immediately please" to his message - established the probability that he wished to tum at that instant of time to his left in order to land on some portion of Runway 34 albeit much further to the north than the southern commencement of the runway. Disregarding other complicating factors I would find it quite impossible to draw any inference from this material as to the path intended by the pilot. To me it is a matter of speculation. There are, however, other factors, as I have indicated, which complicate the picture. The left engine had failed; the aircraft had not followed the path which it should have followed if the pilot had applied appropriate procedures; there was a real question whether the aircraft was under complete control while it made its tum to its left; seconds later the pilot radioed ATO and sought permission to land (in terms which did not suggest an unorthodox landing except to the extent that there was only one operative engine); upon receiving a reply the pilot did not, at any stage, complain that the course indicated by ATO was inappropriate or created a potential danger. The indication by ATO of that course concluded shortly after 1908:41 and approximately 8 or 9 seconds later, immediately after the pilot had radioed saying that he had RMO in sight, the aircraft commenced its steep descent. At that time the pilot's steady voice, in his radio contact, provided some indication that he was in control and it is probable that the descent was a desperate attempt by him to regain speed in order to avert a stalling situation. Whatever the reason for the descent there was universal agreement in the evidence that from the moment it commenced the aircraft was doomed. Given that the aircraft was flying downwind at an even height (that is, not climbing) in a general southerly direction prior to the descent there was no reason to suppose that additional loads had been placed upon the aircraft following the instruction which would have further reduced its speed. On the contrary the fact that the aircraft was travelling downwind on a straight course would suggest that it should have been able to maintain speed without difficulty. Accordingly, there is support for the view that at the time the pilot received the critical response he was unable to maintain a safe speed to stay at the same height or to climb. In these circumstances I am not satisfied that any inference can be drawn either as to the precise intention of the pilot or as to whether, even if he had intended to follow the Feltman curve, he could have done so. The trial judge himself concluded that on the probabilities the pilot probably did not ever intend to manoeuvre the aircraft to return to land on Runway 34 on a track similar to that drawn by Captain Feltman. It is obvious from what I have said that I do not think the evidence supported the inference that the pilot did intend to follow the Feltman curve and I would add that, even if that was his intention, I am unable to infer from the evidence that at the time he received the critical response the aircraft would have been capable of landing safely on Runway 34.. It is true that Mr Francis agreed that, on assumptions put to him in cross-examination, a safe 52 UNREPORTED JUDGMENTS landing on Runway 34 may have been theoretically possible but, as his Honour found, that did not detract from his opinion that a safe landing on the runway was highly improbable. In these circumstances I agree with Abadee J that the appellants failed to 5 establish the necessary causal nexus. Appeal dismissed with costs. COUNSEL: 10 Appellants: RR Stitt QC/GB Evans Respondent (Cwth): CC Branson QC/RS McIlwaine SOLICITORS:Appellants: Champion and Partners Respondent (Cwth): Australian Government Solicitor253545