New South Wales Supreme Court CITATION : Donald Carl Cooke & 2 Ors v Hawker Pacific Pty Limited & 3 Ors [1999] NSWSC 554 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20196/98 HEARING DATE(S) : 31 May 1999 JUDGMENT DATE : 9 June 1999 Donald Carl Cooke (First Plaintiff) Robert Shennand Cooke (Second Defendant) Clark Lee Gibbons (Third Plaintiff) PARTIES : Hawker Pacific Pty Ltd (First Defendant) Reliance Aviation Pty Limited (Second Defendant) Airservices Australia (Third Defendant) Civil Aviation Safety Authority Australia (Fourth Defendant) JUDGMENT OF : Master Harrison Mr M F Galvin (Plaintiffs) COUNSEL : Mr B Shields (First Defendant) Mr M A Jones (Third Defendant) Whittens, Sydney (Plaintiffs) Ebsworth & Ebsworth, Sydney (First Defendant) SOLICITORS : Mr Finegan of Hartman & Associates Sydney (Second Defendant) Corrs Chambers Westgarth, Sydney (Third Defendant) CATCHWORDS : Discovery - aircraft crash ACTS CITED : Supreme Court Rules - Pt 23 r 3 DECISION : See para 18 9 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON WEDNESDAY, 9 JUNE 1999 20196/98 - DONALD CARL COOKE & 2 ORS v HAWKER PACIFIC PTY LIMITED & 3 ORS JUDGMENT (Discovery - aircraft crash) 1 MASTER: By notice of motion filed 24 November 1998, the plaintiffs sought discovery against the defendants pursuant to Pt 23 r 3(1) of the Supreme Court Rules (the Rules). Part 23 r 3(5) requires special circumstances to be shown before an order for discovery can be made in personal injury matters. The parties agree that there are special circumstances in this case. The plaintiffs and the second defendant have agreed upon the documents the second defendant will provide to the plaintiff by way of discovery. The first and third defendants have agreed on certain documents being made available to the plaintiff by way of discovery. That leaves a few categories of documents that remain in dispute and are the subject of this judgment. 2 On 13 July 1995 the first plaintiff Donald Carl Cooke was being instructed by the third plaintiff Clark Lee Gibbons in relation to a dual instrument flight rules (IFR) training flight, including aerial work at Goulburn followed by two practice instrument landing system (ILS) approaches at Canberra Airport before returning to Bankstown Airport. After completion of the second ILS approach, the first plaintiff was instructed by Canberra Approach to carry out a missed approach and climb to 7,000 feet. They were flying a Cessna model P210N registration No VH-SMA (the aircraft). Robert Cooke, the second plaintiff and the son of the first plaintiff was a passenger in the aircraft. As the aircraft was levelling in instrument meteorological conditions (IMC), Clark Gibbons noticed that Engine Manifold Absolute Pressure (MAP) had reduced from 30 inches to 25 inches. Donald Cooke had not adjusted the power and informed Clark Gibbons of this. At 1127 hours Clark Gibbons advised Canberra Approach that the aircraft had experienced a loss of power. The location of this was approximately 38.8 kilometres north east of Canberra Airport, near Lake George. The plaintiff alleges that the third or fourth defendants assumed the operational control of the aircraft and in doing so became responsible for the safety of the aircraft and its occupants. 3 The pilot contemplated a water landing in Lake George and believed that the air traffic controller was directing him to it. At the time, visibility was poor. The plaintiffs allege that the air traffic controller failed to direct the aircraft to a lake as requested so that a water landing could be conducted but instead direction vectors were given to the aircraft which ultimately resulted in the aircraft crashing in high terrain in an area about 1,000 metres north of Lake George. Upon impact the aircraft caught fire and exploded resulting in the aircraft's total destruction and severe personal injury to the aircraft's three occupants, Donald Cooke, Robert Cooke and Clark Gibbons. 4 On about 20 August 1987 the first defendant Hawker Pacific Pty Limited "bulk stripped" the aircraft pursuant to an agreement for the supply of maintenance services (the Bulk Strip agreement). The allegations of negligence against the first defendant is contained in para 31 of the statement of claim. It is alleged that the crash involving the aircraft was caused by reason of breaches of the duty of care which the defendants owed to the plaintiff as pilots and/or passengers in the aircraft. 5 The particulars of negligence are that the first defendant failed to take and or any adequate precautions for the safety of the plaintiffs, exposed the plaintiffs to a risk of injury which could have been avoided by reasonable care; failed to use all reasonable care and skill in the performance of a bulk strip upon the piston engine of the aircraft; failed to pay careful attention and critically measure the bearing tunnels of the said engine in order to ensure bearing security; failed to ensure that there was no bearing movement in the said engine during the bulk strip; failed to line the bore and take a full measurement of the crankcase and crankcase tunnels of the engine to ensure bearing security and failed to properly identify that the bearing tunnels of the engine were too large which allowed the bearing to move inside the bearing tunnels compromising bearing security and consequently causing oil starvation, then engine seizure and failure of the said engine. 6 An examination of Continental engine failure of the aircraft by R T Southin dated August 1996 (Ex 1D 2) cites the cause of the engine failure was insufficient torque having been applied to the through bolts when they were last tightened. This allowed fretting of the mating surfaces which further reduced the clamping pressure until this was so low that the bearing shells in main bearing number 2 rotated. This rotation resulted in reduced oil flow in most areas around the crankshaft which in turn caused seizing and finally complete engine failure. The maintenance records show that the through bolts would have last been tightened by Reliance about 230 hours flying time prior to the accident. 7 The plaintiffs seek documents referred to in schedule (1) para (a) of the short minutes of order. Those documents are: "(a) Reports, manuals, procedural manuals, maintenance schedules, guidelines, recommendations, memoranda, manufacturer's guidelines, manufacturer's procedural manuals and all documents relating to "Bulk Strip" of all Teledyne Continental Motors TSIO-520F engines fitted to Cessna P210N aircraft or other aircraft for the period of 1987 to 1998." 8 TSIO-520F should read TSIO-520P. The first defendant has indicated that it will produce all overhaul manuals, parts catalogues, service bulletins and airworthiness directives relating to bulk strip of Teledyne Continental Motors TS10-520P engines fitted to Cessna P210N aircraft or other aircraft for the period of 1987 to 1998. 9 The first defendant submitted that the categories of documents that it is prepared to discover cover all the procedures that it followed and should have followed when it bulk stripped the engine. If there had been any problems experienced with this type of engine, details of the problem would have appeared in the bulletins and airworthiness directions. The first defendant has included these documents in the categories of documents it is prepared to discover. Although there is no evidence, the first defendant's counsel submitted from the bar table that the first defendant undertakes between 40-60 bulk strips per year so they would need to produce between 400-600 lots of records. 10 It is my view that the plaintiff has not discharged its onus and demonstrated that the general documents referred to in para (a) relating to the Teledyne Continental Motors TSIO 520P engines are relevant to the issues in dispute. It seems that to require these documents to be produced involves a fishing exercise. 11 In relation to the third defendant, the allegations of negligence also appear at para 31 of the statement of claim and say that further or in the alternative and at all material times the third defendant failed to take any or any adequate precautions for the safety of the plaintiffs; exposed the plaintiffs to a risk of injury which could have been avoided by reasonable care; notwithstanding an express request to do so, failing to provide the pilot in command, Clark Gibbons, with a direction vector that would have directed the aircraft to Lake George so that a water landing could be conducted; failing to provide the pilot in command with information that was accurate; failing to provide the pilot in command, with warning of a known danger, namely, the high terrain in the area of the said crash; directing the aircraft into mountainous and wooded terrain unsuitable for an emergency landing; failing to direct the aircraft to low terrain where the pilot's visibility would have been achieved and the plaintiffs rely on the doctrine of res ipsa loquitur. 12 The plaintiffs allege that the crash was caused by reason of breaches of the duty of care which the defendants owed to the plaintiffs as pilots and/or passengers in the aircraft. The plaintiff seeks two categories of documents. The first category is referred to in schedule (3) para (b) of the document entitled short minutes of order. It requires the following documents to be discovered. "(b) Documents relating to guidelines, emergency guidelines, emergency procedures, emergency policies and training of air traffic controllers in relation to procedures in responding to distress calls received by an air traffic controller from an aircraft in the vicinity of Lake George in the Australian Capital Territory during the period July 1995 to the present." 13 The third defendant objects to the time period stipulated, namely from 13 July 1995 to date, but is prepared to produce the documents relating to the day of the crash. The plaintiff submitted that there may have been changes to the guidelines and procedures that were introduced as a result of investigations carried out in relation to the crash. If changes to guidelines were made as a consequence of the crash they are relevant to the claim of negligence and should be produced. It is difficult to estimate how long any investigations would take. It is my view that the period stipulated is allowable. 14 The final category of documents in dispute between the plaintiffs and the third defendant appear in schedule 3 para (c) of the short minutes of order. They are: "The following documentation and information relating to the communication with, obtaining information about and providing information to aircraft in the Lake George, Australian Capital Territory, vicinity by air traffic controllers from 11.00 hours EST on 13 July 1995 to present date: (i) Inventories of equipment relating to functions carried out by air traffic controllers. (ii) Technical manuals. (iii) Technical specifications. (iv) Guidelines. (v) Procedures and guidelines for use of the equipment. (vi) Training documentation and manuals for use of the equipment." 15 The third defendant submitted that firstly, the words "and information" cannot take the paragraph any further then the preceding reference to documents; secondly, the categories sought appear to refer to all equipment used in the air traffic control operations of Airservices Australia and thirdly, that there is no allegation on the face of the pleadings that indicates the configuration or operative capabilities of the equipment used in any way relevant to these proceedings. Nor is it alleged that the equipment was inappropriately operated. According to the third defendant para 3(c) amounts to a fishing expedition, is oppressive on its face and the descriptions are so vague as to amount to uncertainty in what is required to be produced. 16 The plaintiff submitted that by the general pleading of negligence the configuration or operative capabilities of the equipment are in issue but conceded that the words "and information" could be deleted. It is my view that if the plaintiff was seeking to establish that the equipment was faulty or the operating capabilities of the equipment were insufficient, these allegations should have been pleaded. I am not satisfied that the documents sought in schedule 3 para (c) are relevant to the issues in dispute on the current pleadings. Accordingly the third defendant is not obliged to discover these documents. 17 The plaintiff and second defendant have already agreed on an order for costs in relation to the motion. The first and third defendants submitted that the appropriate order for costs is each party pay its own costs whereas the plaintiffs submitted that it was a matter for the court to decide that discovery ought to be given and the order for costs should be that each party pay its own costs. It appears that the plaintiffs did not attempt to negotiate discovery with the defendants prior to filing a notice of motion. After the motion was filed agreements were reached between the parties in relation to most of the documents sought to be discovered. The plaintiffs and second defendant managed to agree on all documents to be discovered. It is my view that although court agreed with the parties that there were special circumstances the appropriate order for costs is that costs be costs in the cause. 18 The orders I make are: (1) The first defendant is to provide discovery of all overhaul manuals, parts catalogues, service bulletins and airworthiness directives relating to bulk strip of Teledyne Continental Motors TS10-520P engines fitted to Cessna P210N aircraft or other aircraft for the period of 1987 to 1998 within 28 days. (2) The third defendant is provide discovery of documents relating to guidelines, emergency guidelines, emergency procedures, emergency policies and training of air traffic controllers in relation to procedures in responding to distress calls received by an air traffic controller from an aircraft in the vicinity of Lake George in the Australian Capital Territory during the period 13 July 1995 to date within 2 months. (3) The plaintiffs' and the first and third defendants' costs of the motion be costs in the cause. ********** Last Modified: 06/09/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.