In April 2018, a Bell Garlick UH-1H helicopter was being used to move a large drill-rig in the Snowy Mountains. After completing 11 uneventful lift runs and whilst hovering a short distance from the loading area awaiting preparation of the lift, the pilot O'Driscoll heard a loud mechanical noise, there was a sharp yaw and the aircraft dropped and the 'engine out' alarm sounded. Following a 'mayday' call and attempt to jettison the long-line, the pilot lost control and the helicopter collided with trees and a riverbed before catching fire. The helicopter was severely damaged and the pilot suffered significant physical injuries.

Encore Aviation had provided long-term maintenance services to the helicopter’s owner O'Driscoll Aviation Pty Ltd including maintenance inspection and any necessary maintenance by a contracted licenced aircraft maintenance engineer (LAME) on the day prior to the accident.

The cause of the crash was not in dispute between three expert witnesses who in a joint report stated that "a loss of structural integrity of the exhaust diffuser assembly resulted in the power turbine shaft rubbing against the compressor impeller hub and compressor shaft … caused the engine to fail. The loss of structural integrity … was due to fatigue."

The pilot pursued a cause of action in negligence and for breach of the consumer guarantee under section 60 of the Australian Consumer Law. The company as the helicopter’s owner also alleged breach of contract.

Justice Cavanagh found that the cracking in the exhaust diffuser was present when the aircraft was last inspected on the day prior to the accident. He also held that the failure to detect the cracking amounted to a failure to exercise the required level of care and skill.

Accordingly, the claims in tort and under section 60 succeeded and there was no need to determine contractual liability also.

The defendant argued that the pilot should have detected the cracking. Although the judge found the LAME’s inspection on the day prior to the accident should have detected the fault, he also found that as the plaintiff signed a daily inspection form on the day of the accident contributory negligence amounted to 50%.

Damages were significantly complicated by the fact that the pilot returned to flying despite his injuries and had a subsequent accident in 2019 in which he sustained injury. Ultimately, he obtained judgment for $55,250, damages of $110,500 being reduced by 50% for contributory negligence. The owning company obtained judgment for approximately $430,000 after the same reduction for contributory negligence.

The decision is very much one based upon the particular facts of the case and is largely unremarkable. Perhaps of greatest interest are the findings on contributory negligence and the pilot's unsuccessful attempt to distinguish his own inspection from that of the LAME on the basis of differing expertise where the court found that either inspection should have detected the cracking.

If you would like to discuss the implications of this decision or require advice on aviation maintenance liability please contact our Transport & Logistics team.