A man who was catastrophically injured in a helicopter crash in 2004, when a bolt failed causing the helicopter to loose power and come down, and was unsuccessful at first instance but later successful on appeal, has had his judgment against the manufacturer overturned, with the High Court of Australia unanimously allowing the manufacturer’s appeal.
On 30 May 2004, Mr McDermott was a passenger in a Robinson 22 helicopter, from which he was inspecting fences on a cattle station in the Northern Territory. During the course of the flight, the helicopter crashed. The pilot, Kevin Norton, was killed and Mr McDermott was catastrophically injured.
The crash occurred when a critical part of the helicopter’s drive mechanism, called a forward flexplate, failed and one of the four bolts securing the flex plate was incorrectly assembled and was not tightened. Over time, two cracks developed that eventually caused a piece to come away, resulting in a loss of power to the rotor blade and control of the helicopter, causing it to be brought down quickly.
The helicopter maintenance manual specified that a secondary locking mechanism, a palnut, must be placed on bolt 4 and that after the installation of the palnut, a torque stripe be applied across both bolt 4 and the palnut. It specified that the torque stripe be applied in a stripe across both the nut and exposed bolt thread so that a visual inspection of the torque stripe would show any bolt rotation. Neither of the two Licensed Aircraft Maintenance Engineers (LAMEs) who carried out the last two 100 hourly inspections, nor the pilots who examined the flexplate during at least 28 visual inspections prior to flying the helicopter, noticed anything about the torque stripe which caused them to be concerned about the integrity of bolt 4.
The manual did not make it clear that during a periodic service that a visual inspection of torque stripes may not be sufficient to indicate whether critical fasteners like bolt 4 were correctly assembled.
Mr McDermott commenced proceedings in the Supreme Court of Queensland against the manufacturer of the helicopter, the Robinson Helicopter Company Inc (Robinson), alleging that it was negligent. He argued that the Robinson’s manual failed to specify and require an adequate inspection procedure; had an adequate procedure been established, the defect that led to the accident would have been detected and rectified and the accident would have been prevented. He also argued that the manual failed to require that the tightness of the four bolts through the flexplate should be checked by a method more stringent than simply looking at marks on the bolts.
The primary judge, his Honour Lyons J, noted that the manual required the LAME to examine the condition of the torque stripe for bolt 4, and that the relevant provisions of the manual gave adequate instruction for the inspection of the flexplate bolts. Reliance upon the torque stripes as an indicator of the condition of the bolts was sufficient. His Honour found that Robinson took reasonable care to address the risk of failure of the flexplate from an inadequately torqued bolt, and that Robinson did not breach its duty of care. Mr McDermott’s claim was dismissed.
Mr McDermott sought leave to appeal. He argued that the primary judge erred in finding that the manual was adequate; had a further, simple instruction to use a torque wrench or spanner to verify whether a bolt was loose been included in the manual, the incorrectly assembled bolt 4 would have been detected, the bolt reassembled and the accident avoided. He also argued that the torque stripe was an unreliable indicator of whether the bolt was loosened.
His Honour Wilson J, with whom her Honour McMurdo J agreed, found that there was no evidence to support the earlier finding that no torque stripe had been applied to bolt 4 and was, therefore, missing at the time of inspection. The evidence did point to a finding that whatever the actual state of the torque stripe, it was not such as to alert any of the LAME to the fact that the bolt was loose and rotating. Further, the stripes were not a trustworthy or reliable indicator of the security of the bolts and reliance on the stripes, for inspection purposes, was insufficient. Also, reliance in the manual on torque stripes as a method of verifying security was inadequate.
His Honour Holmes JA (dissenting) found that even if a less than complete torque stripe was inspected, it did not necessarily mean that the bolt was moving; it might have simply deteriorated. His Honour found that the instructions in the manual were adequate.
The majority found that Robinson was liable in negligence. Its manual was not adequate as it did not make it clear that a visual inspection of torque stripes may not be sufficient to indicate whether critical fasteners, such as bolt 4, were correctly assembled. Nor did the manual specify that a deteriorated torque stripe might indicate looseness of a critical bolt. The majority upheld Mr McDermott’s appeal.
On appeal to the High Court
By grant of special leave, Robinson appealed to the High Court. It argued that the court erred in rejecting the primary judge’s finding that it was likely that there was no torque stripe on bolt 4 when the relevant 100 hourly inspections were carried out. It also argued that the court erred in finding that because the manual did not specify the LAMEs to apply a torque wrench to bolt 4 during the inspections, Robinson had breached its duty of care to Mr McDermott.
Mr McDermott argued that the court was correct in finding that a torque stripe could not be regarded as a sufficient indicator that a bolt was incorrectly torqued, and was correct in finding that Robinson was negligent in failing to include an express instruction in the manual that bolt 4 be verified with a torque wrench during 100 hourly inspections, and that failing to do so caused the crash.
The court found that the majority of the court of appeal erred in their interpretation of the evidence and in overturning the primary judge’s findings of fact and causation. The primary judge was correct “to hold that it was not shown that the contents of the Manual fell short of what was required to discharge Robinson’s duty of care in the circumstances of this case”.
Accordingly, the court unanimously allowed Robinson’s appeal: Robinson Helicopter Company Inc vMcDermott & Ors  HCA 22.
This article was written by Jackie Waugh, Wolters Kluwer Torts writer, and first appeared in the Australian Tort, Personal Injury, Health & Medical Law Tracker dated 9 June 2016.