Deceased
Brian Ray
Demographics
62y, male
Coroner
Coroner Audrey Jamieson
Date of death
2005-07-08
Finding date
2014-06-26
Cause of death
Multiple injuries sustained in an aviation accident
AI-generated summary
A Piper PA31-350 aircraft crashed on approach to Mount Hotham aerodrome on 8 July 2005, killing pilot Russell Lee and passengers Brian and Kathryn Ray. The coroner found this was a controlled flight into terrain accident. Despite extreme weather conditions (heavy snow, low cloud 100-200 feet, visibility 300 metres, unforecast icing), the pilot attempted to land after being explicitly warned by the airport manager that landing was impossible. The aircraft lacked anti-icing equipment. The coroner rejected theories of engine failure as unsupported. The crash was preventable: the pilot should not have proceeded given clear warnings, marginal conditions, aircraft limitations, and fading daylight. The pilot prioritised commercial pressure and passenger expectations over safety. All regulations and flight aids were available; the fatal error was the pilot's decision-making.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Error types
Court Reference: COR 2005 2436
Form 37 Rule 60(1)
Section 67 of the Coroners Act 2008
Inquest into the Death of: BRIAN RAY
Hearing Dates:
Appearances:
Police Coronial Support Unit:
Findings of:
Distributed on:
27 April 2009 — 30 April 2009, 27 July 2009 — 29 July 2009 and 6 August 2009
Mr J Ribbands on behalf of the family of Russell Lee Mr M Roser on behalf of Air Services Australia Mr J Rule on behalf of the Civil Aviation Safety Authority
Mr T Begbie on behalf of the Australian Transport Safety Bureau
Senior Sergeant T Fitzgerald, assisting the Coroner
26 June 2014
The Finding does not purport to refer to all aspects of the evidence obtained in the course of the Investigation. The
material relied upon included statements and documents tendered in evidence together with the Transcript of
proceedings and submissions of legal representatives/Counsel. The absence of reference to any particular aspect of the evidence, either obtained through a witness or tendered in evidence does not infer that it has not been considered.
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I, AUDREY JAMIESON, Coroner having investigated the death of BRIAN RAY
AND having held an inquest in relation to this death on 27 April 2009 — 30 April 2009, 27 July 2009 — 29 July 2009 and 6 August 2009
at Melbourne
find that the identity of the deceased was BRIAN RAY born on 14 October 1942
and the death occurred on 8 July 2005
at Mount Hotham, Victoria
from: 1 (a) MULTIPLE INJURIES SUSTAINED IN AN AVIATION ACCIDENT
in the following summary of circumstances:
and had business interests in Mount Hotham.
? Mount Hotham aerodrome was privately owned and operated. It consisted of a single runway which was aligned 110°/290° (RWY 11/RWY 29) magnetic direction. The aerodrome reference point elevation is 4,260 feet above mean sea level (AMSL).
} Little information was obtained regarding the personal circumstances of Mr Brian Ray in the course of the investigation and Mr Ray’s family were not present during the inquest.
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Aviation Safety Authority (CASA)* authorised the operation of single and multi-engine aircraft. In order to operate the Piper aircraft in a charter operation, Mr Lee was required by CASA to hold a commercial aeroplane pilots licence and be endorsed with multiengine type rating for the Piper aircraft. He was also required to hold a current Multiengine Command Instrument rating to conduct his operation under Instrument Flight Rules (IFR). Mr Lee renewed his instrument flight rating on 1 July 2005 by passing a flight test conducted by an authorised testing officer. Earlier, on 27 June 2005, he had also satisfactorily passed the command instrument renewal test which is required for a pilot with a commercial aeroplane licence and at the same time met recency requirements according to sub regulation
5.109(1)(a)(ii) of the Civil Aviation Regulations 1988 (Cth).
interests at Mount Hotham.
§; The weather conditions in the Mount Hotham area at the time of the flight were extreme.
While taxiing at Essendon Airport, Mr Lee requested and was granted an amended airways clearance to fly only to Wangaratta due to extreme weather conditions at Mount Hotham,
The aircraft departed from Essendon at 4.29pm Eastern Standard Time (EST).
snow showers. The Flightwatch operator conveyed to Mr Lee the message that he would be
5 Flightwatch provided on-request radio services, initial in-flight emergency response and search and rescue time management services to pilots.
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unable to land at Mount Hotham. Mr Lee responded to the Flightwatch operator that his
passengers were eager to travel.
At 5.14pm Mr Lee reported to air traffic controller Mr Neil Ingarfield that the aircraft was overhead at Mount Hotham and requested a change of flight category from VFR to instrument flight rules (IFR)° and in order to conduct a Runway 29 Area Navigation, Global Navigation Satellite System (RWY 29 RNAV GNSS) approach via the initial approach fix’ HOTEA (which is Hotham Airport). Mr Ingarfield advised Mr Lee that he had identified the aircraft on the Air Situation Display (ASD) and also advised him that there was “NO IFR
At 5.25pm Mr Lee broadcast on the Mount Hotham Mandatory Broadcast Zone frequency that the aircraft was on final approach for Runway 29 (RWY 29) and requested the Mount Hotham Airport Manager, Mr Roger Haddrell, to switch on the runway lights. After turning on the lights, Mr Haddrell attempted to communicate this information to the pilot but he
received no response. No further transmissions were received from the aircraft.
The last radar contact with the aircraft was recorded at 5.22pm. The forecast last light was for 5.35pm.
Hazardous weather conditions ensued over the following two days and restricted the search for the aircraft primarily to foot and horseback. Recent moderate to heavy snowfall resulted in extensive snow cover in the area, One hundred personnel were involved in the search on 9 July 2005 and seven rotary aircraft were on standby but were not able to fly due to the conditions. On 10 July 2005, a further 120 personnel searched on the ground and it was only
later in the day that aircraft could be used, but failed to locate the Piper aircraft.
The wreckage of the Piper aircraft was located by helicopter at 10.30am on 11 July 2005, The aircraft had flown into trees in a level altitude slightly banked on the right. Initial
impact was at about 200 feet below the elevation of the Mount Hotham aerodrome. The
® TFR isa category of flight that is subject to discretionary pilot choice and dictates the manner in which the flight is navigated and conducted by the pilot.
7 The point from which the initial segment of an instrument landing system (ILS) approach begins (source: Cambridge Flightpath — Glossary of Aviation Terms Cambridge University Press 2011).
8 Exhibit 1 — Statement of Neil Bernard Ingarfield dated 16 April 2009.
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aircraft had broken into several large sections and an intense fire had consumed most of the
cabin. All occupants were fatally injured.
Disaster Victim Identification
Senior Sergeant Edward Pollard from the State Coroners Assistant Unit (SCAU) (as it then was) requested the attendance of Victorian Institute of Forensic Medicine (VIFM) identification experts at the scene of the aircraft collision. Forensic Odontologist Dr Anthony Hill and Forensic Anthropologists, Dr Soren Blau and Dr Chris Briggs travelled to Mount Hotham on 11 July 2005 and attended the scene. They were joined by Forensic Odontologist, Dr Richard Bassed on 12 July 2005. The VIFM personnel assisted in the removal of the bodies from the aircraft for transportation to the State Coronial Services
Centre for examination.
On 14 and 15 July 2005, Dr Soren Blau. examined the skeletal remains. Dr Briggs also conducted examinations on 15 and 20 July 2005. Dr Blau reported that:
The three bodies showed evidence of severe burning. While soft tissue survived, numerous skeletal elements and fragments were also recovered. The human bones recovered from the crash site showed evidence of heat-induced changes including colour alteration, fracturing
and extreme fragmentation.
The bone fragments from all three individuals were determined to be adults. Examination of
the femur from case number 2434/05 was determined to be most likely from a female.
DNA testing between samples from Mr Ray’s remains and that of his children Tom and
Jack, provided additional support to his presence within the aircraft.
Forensic Odontologist Dr Anthony Hill undertook ante mortem and post mortem dental comparison and reported that the identity of Mr Ray was established.
On 20 July 2005, a Disaster Victim Identification Report was presented to the then State Coroner, Graeme Johnston. A Certificate of Identification was subsequently signed by the State Coroner indicating that the identity of Brian Ray had been established based on the
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dental comparison, DNA results and circumstantial evidence. I accept and adopt State
Coroner Johnston’s signed Certificate of Identification regarding Mr Ray’s identity.
Medical investigation
Dr Shelley Robertson, Senior Pathologist at the VIFM performed an autopsy on the body of Mr Ray. Dr Robertson reported that the post mortem examination identified probable previous abdominal hernia repair, cardiomegaly with left ventricular hypertrophy, mild coronary atherosclerosis and probable aortic stenosis. She stated that Mr Ray’s injuries were consistent with high impact forces and that the nature and severity of the injuries indicated that death would have occurred almost instantaneously upon impact with the ground. Dr Robertson reported that there was no evidence to suggest that Mr Ray was alive during the post crash fire noting that toxicological analysis was negative for cyanide, carboxyhaemoglobin and volatile compounds. Toxicological analysis of blood retrieved post mortem did not identify alcohol or other drugs or poisons. Dr Robertson attributed the cause
of Mr Ray’s death to multiple injuries sustained in an aviation accident.
19,
The police investigation and preparation of the coronial inquest brief was undertaken by
Sergeant E. D. Pollard of the State Coroners Assistants Unit (as it then was).
The Australian Transport Bureau (ATSB) is the aviation body with legislative responsibility under the Air Navigation Act 1920 (Cth) to investigate the circumstances of aircraft
accidents and incidents.
Location of the aircraft collision
The Piper aircraft’s impact site was on the side of a steep ridge approximately five kilometres south-east of Mount Hotham aerodrome and to the left of the extended centreline of RWY 29. The area was heavily timbered with large trees estimated to be between eight to ten metres high. During the impact sequence, the aircraft has broken into several large sections. Pieces of the aircraft have been located in an area 100 metres by 20 metres wide and spreading up the ridge from 4,060 feet to 4,130 feet AMSL. The main wreckage was located at GPS position 37°5'12.74'’S 147°22'33.11E.
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23,
24,
According to the ATSB analysis of the wreckage, the damage to the engines and propellers was consistent with both engines delivering power at the time of impact. The landing gear was extended but its position prior to the impact was inconclusive. The wing flaps were found to be fully retracted. The right wing fuel tanks ruptured and fed the fire that occurred after impact, resulting in the destruction of most of the fuselage including the instrument panel and avionics. The aircraft was not fitted with a flight data recorder or a cockpit voice
recorder.
The ATSB investigation determined that the aircraft systems had been operating normally but that the aircraft was not equipped for flight in icing conditions.? There were no indications prior to, or during the flight, of any problems with the aircraft systems that may have contributed to the accident. Mr Lee had not complied with the requirements for a flight under the IFR or in accordance with the VFR. Their investigation also determined that the weather conditions were such that Mr Lee would have been denied adequate visual reference with the possible result that he may have experienced disorientation and loss of
situational awareness.
The ATSB investigation did not identify any evidence of physiological factors that affected the performance of Mr Lee. Evidence emerged that Mr Lee was prone to risk taking behaviour as a pilot and that he may have been under some pressure from his passengers to proceed to Mount Hotham in the knowledge of the extreme weather conditions. According to the ATSB investigation, Mr Lee was known by his Chief Pilot and others, including staff at Mount Hotham and other pilots, to adopt non-standard approach procedures to establish his aircraft clear of cloud at times of adverse weather conditions at Mount Hotham. The ATSB were also aware that the CASA had held concerns about Mr Lee’s performance as an operator for some time. Although the ATSB investigation was unable to determine why Mr Lee had persisted with his attempt to land at Mount Hotham aerodrome during the reported unsuitable conditions, it speculated that Mr Lee’s overconfidence and commercial or family
. 5 ii -_ 10 pressures influenced his (sic) decision making.
° “Icing” refers to the accumulation of ice on the wing leading edges and engine air intakes (source: Cambridge Flightpath — Glossary of Aviation Terms Cambridge University Press 2011).
© Exhibit 3 — ATSB Transport Safety Investigation Report (p 73 IB).
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Mr Lee’s qualifications
hours. He held a Class 1 medical certificate.
24, On the morning of 8 July 2005, Mr Lee had flown family members including his wife to Mount Hotham. He returned to Essendon Airport to pick Mr and Mrs Ray up for the charter flight and intended to return to Mount Hotham later in day, where he would rejoin his
family.
Mr Lee’s performance as a pilot
weather conditions.’
Road and follow it back to the aerodrome.
| Transcript of Proceedings (T) @ p 44.
2 T@p4s.
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The Air Traffic Controller (ATC), Mr Ingarfied, had had previous dealings with Mr Lee in the course of normal operations of a pilot in ATC communications into and out of Mount
Hotham and could recall no adverse incidents.!
CASA field office staff had apparently held concerns about Mr Lee’s performance as a pilot and had been monitoring his performance for some time. In the two years prior to the accident at Mount Hotham, CASA had not identified any significant operational issues that
warranted their intervention.
The ATSB investigation found that formal surveillance of the operator in the two years prior to the accident had not identified any issues of significance that would have warranted CASA taking any action against the operator. The ATSB also found that absent a reason for CASA taking action against a particular operator, the safety of the operator's actions are dependent on the safety culture within the organisation itself and even more critically dependent on the operation or decision-making of the pilot in command of any particular
flight.
Evidence of commercial pressure
It is reported that Mr Lee had told the ATC at Essendon Airport that Mr Ray’s business interests at Mount Hotham could have a positive impact on his own business through Mr Ray’s patronage and promise to refer passengers onto him. Mr Ray had made numerous visits to Mount Hotham in recent times as part of his role in the development of a resort on the mountain. On a background that Mr Lee is reported to have assured Mr Ray that the weather conditions at Mount Hotham had never prevented him from landing at the aerodrome, Mr Lee is reported to have told the Flightwatch operator on the day that Mr Ray was keen to land at Mount Hotham aerodrome when he stated that “....our customer is keen
to have a look at it”.!*
34,
At the time of Mr Ray’s death, the Coroners Act 1985 (Vic) (the Old Act) applied. From 1 November 2009, the Coroners Act 2008 (Vic) (the new Act) has applied to the finalisation
3 7 @p27.
'4 Exhibit 3 @ p 2 and p 7.
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Ba.
of investigations into deaths that occurred prior to the new Act commencement.)> In the preamble to the new Act, the role of the coronial system in Victoria is stated to involve the independent investigation of deaths for the purpose of finding the causes of those deaths and to contribute to the reduction of the number of preventable deaths and the promotion of public health and safety and the administration of justice. Reference to preventable deaths
and public health and safety are mentioned in other sections of the Act.'°
Section 67 of the new Act describes the ambit of the coroner’s findings in relation to a death investigation. A coroner is required to find, if possible, the identity of the deceased, the cause of death and, in some cases, the circumstances in which the death occurred.!’ The ‘cause of death’ generally relates to the medical cause of death and the ‘circumstances’
relates to the context in which the death occurred.
A coroner may also comment on any matter connected with the death, including matters relating to public health and safety and the administration of justice.'® A coroner may also report to the Attorney General and may make recommendations to any Minister, public statutory authority or entity, on any matter connected with a death which the coroner has investigated including recommendations relating to public health and safety or the
administration of justice.!”
An inquest was held on 27 - 30 April 2009, 27 — 29 July 2009 and 6 August 2009.
Evidence at inquest
Evidence was obtained from the following witnesses:
e Neil Bernard Ingarfield - Air traffic controller e Roger Allan Haddrell - Airport Manager, Mount Hotham e Jan William Brokenshire — Team Leader, ATSB
Section 119 and Schedule 1 — Coroners Act 2008.
See for example, sections 67(3), 72 (1) & (2).
Section 67(1).
Section 67(3).
Section 72(1) & (2).
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e Bernard Malcolm Hole — Metallurgist
e Rudy Spiessl - Licensed Aircraft Maintenance Engineer
e Robert James MacGillivray — Aeronautical Design Engineer, Aviation Consultant e Neville Robert Blythe — Senior Transport Safety Investigator, ATSB
e John Howard Castran — Valuer/Estate Agent
e Clive Henry Phillips — Aircraft Accident Investigator
e John William Baker — Mechanical Engineer
°® Ewen James Jarvis — Pilot
e Michael John Cavenagh — Senior Transport Safety Investigator, ATSB e John Arthur Botham - Aviation Consultant, CASA
e Kevin John Chapman — Senior Investigator, ATSB
e Senior Sergeant Edward Damien Pollard — State Coroner’s Assistants Unit
investigation because:
when the parties' experts met they found ultimately that the areas of agreement were far the raw data, the primary evidence is so substantially in agreement that the only question
remains as to what conclusions should properly be drawn from that...”°
impacted the mountain. 7!
accidents.
~T @p6.
"1T @p7.
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44,
CFIT occurs when an airworthy aircraft, under the control of the flight crew, is flown unintentionally into terrain, obstacles or water...and is...more common during the
approach and landing phase.”
The ATSB concluded that both engines were operating at the time the aircraft crashed but an outstanding issue related to the opinion of Mr Hole” that the damage exhibited by the righthand propeller system and engine was consistent with the propeller not rotating under power at the time of impact. The ATSB contended that Mr Hole’s opinion was formed without looking at the totality of the evidence, including the damage at the accident site, and without
consideration being given for the damage caused to the aircraft as it crashed through trees.
Mr Begbie also submitted that consideration should be given to the weather conditions at the time and that the pilot had a particular style which might mean that he was less cautious than other pilots.* Other matters to take into account were that the aircraft had no known maintenance or engineering problems and no problems with the aircraft were communicated over the radio, and that this should be considered on a background that it is known that the pilot was in radio contact with Mount Hotham Airport very shortly before the accident. In addition, it was an agreed fact that the right propeller was not feathered”* and this needed to be considered in relation to Mr Hole’s expert opinion that there could have been engine power loss. Mr Begbie indicated that there would be evidence given that in the event of an engine power loss, one of the very first things a pilot will do is feather the propellers so as to minimise any drag or resistance that the aircraft experiences when that engine is no longer
developing power.”°
According to Mr Begbie, the interested parties agreed on a number of matters thus far
identified in the course of the investigation, which included that the initial impact to the
» Bxhibit 3 - @ p 11 (p 84 IB).
23 Mr Hole prepared a report at the request of the ATSB, however, at the time of the inquest he was a CASA employee.
I was advised by Mr Rule however that at the time he authored that report, he was nota CASA employee —T @ p 22.
*T @pd.
25 Feathering is a basic procedure involving the angle of the propeller that competent pilots would follow in the event of engine failure.
® T@p9.
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propeller was front-on and the damage sustained by the propeller was consistent with this
directional impact. He said:
....the parties collectively will agree that in this case the impact to the propeller was right near the centre of the propeller, not the extremities of the blades, and that the damage to the blades on the right-hand engine was very different from the damage to
the blades on the left-hand engine. So there's agreement about that key fact.”’
There was also agreement that the exhaust pipe sustained some damage at a point in time when the temperature of that exhaust pipe was less than 400 degrees Celsius and that there was a cable fitting which connected a flexible cable to a throttle lever that was missing when Mr Spiess attended the accident site approximately twelve months after the accident.2® Despite substantive agreement on some key issues, Mr Begbie emphasised that there was
divergence in opinion regarding how and/or when these matters came to be.
At the outset of the inquest, Mr Ribbands on behalf of Mr Lee’s family submitted that the state of the evidence was such that I would be unable to conclude one way or another the accident’s precise sequence of events. While not desirable, the result would be a partially open finding because I would not be able to ascertain positively one way or another, to the requisite degree of proof, that is, on the balance of probabilities, what the precise sequence was. Nevertheless, the issues he said that had arisen from his client’s perspective and from the investigations of Mr Spiess] was that there was a possibility that Mr Lee had experienced
an engine failure in the starboard engine at a point in time shortly prior to the collision.
The evidence that is said to support the theory that an engine failure caused the fatal air crash includes the butterfly carburettor issue, the damage to the propeller on the right engine, the crack in the flange on the propeller assembly, the absence of spiral cracking in the forward journal, the analysis of the exhaust pipe and the temperature that was said to have damaged it. Mr MacGillivray’s analysis of the flight and prior occurrences of problems
with the throttle assemblies were also raised in support of the theory/proposition of engine
7 T@pilo.
8 Ibid.
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failure being the fundamental causative factor. Engine failure could also be supported as the causative factor if there was evidence that the propellers had been feathered at the time of
the accident.
On the other hand, according to Mr Begbie, I am able to find a very ready explanation for the accident, namely the pilot's flight in the extreme weather conditions and the location that
he was flying.”
(a) Evidence of feathering
According to Mr Spiess, a licensed aircraft maintenance engineer, in flight a pilot would choose to feather the engine to reduce the drag caused by the propeller which would otherwise be(sic) windmilling.*° Mr Spiess] agreed with Mr Ribbands that windmilling is the effect of the wind rushing through the propeller causing it to rotate, or in other words, it is
the propeller driving the engine.*!
The evidence did not support the proposition that the propellers had been feathered. The interested parties agreed on this point. Mr Spiessl admitted in evidence that the opinion expressed in his report was reliant on accepting the position of Mr Hole’s opinions” which of themselves were found to be unreliable on this issue. The interested parties agreed that feathering is a basic procedure that competent pilots, including Mr Lee, would follow in the
event of engine failure.
(b) Evidence of throttle butterfly closure
oT.
The proposition that the throttle butterfly was found to be in the closed or idle position suggested that the engine was at idle prior to impact. Mr Spiessl stated:
The fact that the throttle butterfly was closed strongly indicated to me that the engine was not operating under power at the time of impact and that at best the engine was at” idle”
only, if not shut down by the pilot?
” T@p993.
T @p 241.
2 T @p 247.
Exhibit 12 — Statement of Rudy Spiess] dated 28 April 2009.
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This proposition included the reasoning that the fitting bolt on the lever arm may have sheared off or come loose mid flight, however this point became highly questionable during the course of Mr Hole’s and Mr Spiessl’s viva voce evidence. I have had regard to the fact that Mr Spiess] did not examine the engine until approximately 12 months after the incident whereas both Mr Phillips and Mr Baker had seen the physical components of the aircraft remains proximate in time to the collision and reported that the component was jammed shut. In addition, Mr Spiessl in his own evidence stated that he had neither seen nor heard of any such similar incident previously occurring in a Piper aircraft. Ultimately, I have formed the view that the proposition regarding the likely position of the butterfly prior to the
collision is highly speculative.
(c) Significance of propeller damage
53s
Mr Hole, Mr Spiess] and Mr MacGillivray were all of the view that because the left propeller showed damage in the form of uniform backward curling and the right propeller was absent similar damage, that this was evidence that the right engine could not have been under power at the time of the impact. However, Mr Spiessl** conceded that his views were piggybacked onto Mr Hole’s views. Similarly, Mr MacGillivray, an Aeronautical Design Engineer and pilot, based his views*° in part on his experience of two examples where the propellers were operating under power at the time of impact with the ground, in part by
reading other ATSB reports and also on his acceptance of Mr Hole’s views.
Mr Hole’s views were not uniformly accepted by witnesses Mr Blythe, Mr Phillips, Mr Cavenagh and Mr Baker.
(d) Crack in the flange
It was agreed that a crack in the flange that attaches the crankshaft to the propeller would have been caused by the application of rearward force. There was however a lack of consensus as to what would be the flow on effect. Mr Hole opined that there would have been no rotational power whereas Mr Blyth and Mr Baker were of the view that the crack
did not of itself prove there was no rotational power.
4 T @ pp 244-245.
3 7 @ pp 328-329.
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(e) The absence of spiral cracking on the forward journal
Si.
In Mr Hole’s opinion spiral cacking on the forward journal would be seen if a propeller is under power at the time of impact. The corollary of this opinion was that the absence of spiral cracking was indicative that the propeller was not under power at the time of impact.
Mr Baker on the other hand said that the absence of spiral cracking on the forward journal only proved that there was no repeated propeller strikes, rather than proving there was no
propeller power at the time of impact.
I was not compelled by Mr Hole’s opinion and his observations did not point to strong and cogent evidence that the right propeller had no rotational power at the time of impact. | am more convinced by Mr Begbie’s submissions that the observed propeller damage is
consistent with the impact sequence.*°
I accept the submission of Mr Begbie in relation to the significance of the evidence of the blade damage, the crack in the flange and the absence of spiral cracking on the forward journal and that is, that the right propeller did not experience the same damage as the left propeller because the propeller, the engine and the wing became separately liberated in the
collision?"
(f) The significance of exhaust damage
Additional support for the proposition that the flight was not under power at the time of the crash was according to Mr Hole, supported by his findings on testing pieces of the exhaust pipe.
I was not persuaded by Mr Hole’s evidence in this regard. His testing lacked rigor and he made a number of unsubstantiated assumptions. According to Mr Blythe, even to assume an operating exhaust temperature of 400 degrees was a significant oversimplification=® In addition, Mr Hole conceded that:
% T @p 1018.
” Thid.
3 7 @p43i.
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.,one must also consider the possibility that the exhaust pipe may have been damaged
during removal of the engine at the accident site.”
not under power at the time of the aircraft crash.
(a) Flight aids
Mr Ingarfield was employed by Airservices Australia (Airservices) as an ATC. On 8 July 2005 he commenced a 3.00pm—1 1.00pm rostered shift in which he had responsibility for the combined airspace in the Ovens, Dookie and Hume sectors (known collectively as Ovens).
The Ovens airspace consists of 20,000 feet and below underlying the Benalla and the Eildon
Weir sectors.”
Mr Ingarfield’s evidence included an explanation of the difference between IFR and VER.
He said that IFR is a set of rules that the pilot has to fly by ...using the instruments within the aircraft or ground-based navigation aids. He may also fly visually. It doesn't preclude him from flying visually at all. VFR is another set of rules, where the aircraft is basically Jlying visually. The pilot may also use navigation aid in conjunction with VFR but whilst
flying with VFR, the pilot must remain clear of all cloud at all times."!
In addition to the availability of instruments and visual flight Mr Lee also had a global positioning system (GPS) for navigation purposes. Where a pilot is conducting a GPS nonprecision approach to Mount Hotham or, indeed, to any other aerodrome in the country, there is an established system that gives a pilot various waypoints as their first points of approaches, so that regardless of the direction of the approach, the pilot can choose the nearest one and then arrive at that at a particular altitude. The pilot follows a path into the
next point and so on which leads the pilot into the airport. In this instance Mr Lee changed
“° Exhibit 1 - Statement of Neil Bernard Ingarfield dated 16 April 2009.
| T@p2.
© A method of navigation available to pilots in aircraft that is equipped with a global positioning system unit,
17 of 27
his flight profile from VFR to IFR as he travelled across Hotham and evinced to ATC an intention to conduct the GPS approach which would have led to him making an approach towards what was known as Hotham Echo Alpha.” If Mr Lee saw that Hotham Echo Alpha was five miles over in one direction and Hotham Echo India, being the next waypoint, was only a few hundred metres to his right and he was clear, there was nothing erroneous in him flying straight to Echo India. According to Mr Ingarfield, as long as he's visual he may break off the instrument approach and just land visually“ and there is no obligation
imposed on the pilot to communicate this change to ATC.”
In relation to the ATC’s ASD displays, Mr Ingarfield also explained the difference between
primary and secondary radar return as referred to in paragraph 9 of his statement.” He said:
.. primary radar is basically the raw radar that is reflecting from the aircraft itself that the radar head is picking up. Secondary radar is the actual transponder on the aircraft sending a return electronic signal back to the radar head, it shows up on our screen as a
symbol and from that we can determine things like the ground speed, the altitude.”
The primary radar is more accurate according to Mr Ingarfield because the primary is emitting from the actual aircraft itself. Secondary is basically on the same position but the
interpretation by the computer may be slightly less accurate.**
From approximately 4.47pm the aircraft had been flying in uncontrolled airspace. Radar coverage of the aircraft was lost at 5.22pm at approximately 5600 feet. For approximately one kilometre before the loss of coverage the aircraft appears to have been flying straight and
level. Mr Ribbands submitted that this is not inconsistent with the aircraft flying visually
“3 According to the ATC, Mr Lee communicated that he was relying on GPS navigation by saying he is now tracking by Echo Alpha. —T @ p 33.
“ T @p29.
S T @p 30.
Exhibit 1 - Statement of Neil Bernard Ingarfield dated 16 April 2009.
T @p2z7.
T @p27.
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whether or not the runway itself was then able to be seen.”” From the loss of radar coverage the aircraft descended 1300 feet over approximately six kilometres into a valley with high terrain on either side to the site of impact. I accept that this geography would have limited Mr
Lee’s ability to manoeuvre his aircraft.
The discrepancy between the last radar track and the time of Mr Haddrell’s last radio contact with Mr Lee was explained when Mr Haddrell agreed with Counsel Assisting that the discrepancy between the time of his radio contact with Mr Lee at 5.25pm, and the time of the last radar contact with the aircraft at 5.22pm could be attributed to a difference between the clock on the wall in his office and the computerised clock on the radar” Accepting this explanation, it is reasonable to conclude that it is likely to be a matter of seconds prior to the collision time from the last radar track and last radio contact and neither provides any
suggestion of mechanical problems with the aircraft.
The flight analysis by Mr MacGillivray raised the possibility that Mr Lee was flying visually.
He said the radar provided this indication because Mr Lee had navigated a big hill and he was flying on, the alignment of the Great Alpine Road. Apropos he must have been flying in appropriate conditions for example, free of cloud and with the requisite visibility. I reject Mr MacGillivray’s evidence in this regard. It is speculative to predict that Mr Lee could have been able to navigate visually when the preponderance of evidence reflects that he would not have been able to. While Mr Ewen Jarvis did not challenge the suggestion by Mr MacGillivray that Mr Lee may have been attempting a visual approach, he remained doubtful that it could be claimed that Mr Lee continued to maintain an inflight visibility of 5,000 metres continuously clear of cloud and in sight of ground or water. In support of this, Mr Jarvis noted that when Mr Lee claimed to be on final approach, the radar plot shows that at no time was he on final. Mr Jarvis commented with certainty that Mr Lee did Sly straight into a
stationary hill — presumably because he couldn’t see it or had lost sight of the ground or was
” T @p 1070.
© T@p49.
19 of 27
no longer clear of cloud.*!
(b) Weather conditions
71,
74,
The weather conditions at the time of the aircraft crash were extreme, prompting the issuing of a significant meteorological information bulletin. This forecasted severe icing conditions between 5,000 and 14,000 feet. The Mount Hotham aerodrome forecast broken cloud between 1,000 and 9,000 feet and temporary periods of snow and broken cloud at 400 feet.
Data available at the Mount Hotham automatic weather station recorded visibility to be no more than 300 metres at the time of the crash. The meteorological observer noted that cloud cover was unbroken between 100-200 feet with heavy snowfall. Mr Lee had been informed by the airport manager (an accredited meteorological observer) that the area was
experiencing low cloud cover, poor visibility and showers.
The evidence about the flight conditions in and around Mount Hotham on the afternoon of 8 July 2005 was consistent. The conditions were poor and inherently dangerous for flying. At
the time, daylight was fading in already overcast conditions.
The ATSB investigation report found that the weather conditions were conducive to icing.
Mr Lee’s aircraft was not fitted with any anti-icing or de-icing equipment.”
Mr Lee was very familiar with his Piper aircraft and would have therefore been aware of its limitations in this regard. Armed with this knowledge and his knowledge of the weather conditions at or around Mount Hotham aerodrome, he nevertheless made the decision to fly
into Mount Hotham. In doing so J accept that he placed the safety of the flight at risk.
The ATSB report states that the meteorological conditions at the time of the aircraft crash were conducive of those necessary to produce a ‘flat light phenomena’ which occurs where light is diffused by a cloudy sky and is likely to occur when the ground is covered by snow.
The phenomenon is an optical illusion where the pilot loses their depth-of- field and contrast
vision.
Flat light conditions inhibit visual cues, impairing a pilot’s ability to perceive depth,
distance, altitude or topographical features. Flat light can completely obscure the
*! Exhibit 26 - Letter to Gray-Spencer from Ewen Jarvis dated 11 September 2009.
» Exhibit 3 @p8 &p 15.
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features of the terrain, creating an inability for the pilot to distinguish closure rates.
Reflected light can give the pilot the illusion of ascending or descending when actually in level flight. In thee conditions a pilot may become spatially disoriented,
unable to maintain visual reference with the ground and unaware of actual altitude.©
Given the known weather conditions at the time, I accept the possibility that if present, a “flat light” phenomena may have impaired Mr Lee’s ability to properly control his landing approach to Mount Hotham airfield when he was flying at a low altitude and surrounded by
steeply rising terrain.
The evidence of Mr Lee’s performance a pilot
The basis on which Mr Lee was characterised as a “cowboy” was never substantiated. The characterisation may have been founded on a background of knowledge of the CASA history of counselling and surveillance, but this is of course speculative. He was known to have infringed Air Services airspace in the past. He apparently had a reputation on occasions of bad weather for adopting a non-standard approach to Mount Hotham. There is a vague mention in the evidence about a senior air traffic controller at Essendon Airport speaking to Mr Lee about his behaviour in the weeks prior to the aircraft crash, but there was no clear and cogent evidence of contemporaneous performance concerns either reported to or under investigation by CASA. There was no evidence of any reported performance concerns by ATC, Mount Hotham or from any member of the public who had contracted for flight services from Mr Lee. There is no evidence of a history of Mr Lee intentionally disregarding the safety of his
passengers. According to Mr Rule:
..no intelligence has come to CASA’s attention to the effect that Mr Lee was in the habit of performing these sort of approaches into Mount Hotham Aerodrome in the years leading up to the accident and nor indeed had any other intelligence come to light that had caused CASA to have any grave concerns that Mr Lee was a pilot prone to taking
unnecessary risks.**
In the circumstances I have not been able to identify what action was open to CASA that
could have prevented the events of 8 July 2005. Even if CASA had taken a more proactive
3 Exhibit 3 @ p 11.
4T @ p 1078.
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approach of surveillance and/or monitoring of Mr Lee because of his past regulatory breaches, anything short of preventing Mr Lee from flying is unlikely to have influenced his decision
making on that particular day.
not identify alcohol or other drugs or poisons.
I accept and adopt the findings of then State Coroner Graeme Johnston’s signed Certificate of Identification and find that the identity of the deceased is Brian Ray.
I make no adverse finding against CASA in relation to its oversight of RL Aviation or Mr Lee in the
period leading up to 8 July 2005.
I accept the submissions of Mr Roser and find that Air Services Australia and in particular, Mr Ingarfield delivered all the required air traffic control management services to Mr Lee in an appropriate and timely manner and as such there is no relationship between the delivery of those
services and the cause of death of Mr Ray, his wife and Mr Lee.
There was a divergence of views amongst the expert witnesses. I make no criticism of any one of these witnesses merely because their own views may have not been shared by others. Nor am | influenced by the arguments raised about their “independence” in the weight that I ultimately attached to an individual’s evidence. I reject the proposition that faced with conflicting evidence
that I am restricted in making findings of fact.
The safety of this flight on 8 July 2005 was reliant on the operational decision making of the pilot, Mr Lee. Whether he perceived pressure from the Rays to fulfil the charter agreement by delivering them to Mount Hotham and /or whether that included a perceived pressure to impress them for future commercial purposes, is of little significance because it was Mr Lee and Mr Lee alone that was charged with the safety of himself and his passengers. He ignored all the warnings including Mr Haddrell’s warnings that he would not make it into Mount Hotham because of the weather
conditions. He did not appear to factor his aircraft’s lack of anti-icing and/or de-icing equipment
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into his decision making to proceed with the flight. It is not necessary to make definitive findings on whether Mr Lee did not follow standard procedure in conducting his final approach because
ultimately it was his ability to fly per se that was compromised by the weather conditions.
The preponderance of evidence enables me to be comfortably satisfied that Mr Lee’s aircraft was operating normally at the time of the collision. Mr Lee flew his Piper aircraft into Mount Hotham without incident on the morning of 8 July 2005, there were no known maintenance or mechanical problems with the aircraft and there was no indication of mechanical problems referred to in the last radio contact with Mr Haddrell which, I am satisfied would have been within seconds of the collision. During this contact, Mr Lee requested that the lights on the Mount Hotham runway be turned on. He made no articulation that gave any suggestion of problems with his aircraft. In the absence of any substantive indicia of engine failure, and only a number of unsubstantiated theories, I find that the engines were operating at the time of the collision and there is no evidence within the analysis of trajectory of the aircraft that any significant descent or ascent of the aircraft was occurring at the time of the collision, although I accept that the trajectory analysis in itself did not equate to straight and level flight into the side of the hill. I am also satisfied that the engine damage can be comfortably accounted for as damage sustained upon impact rather than damage sustained as a result of loss of power prior to impact.
Mr Begbie urged me to adopt a common sense analysis of the evidence. When all other propositions
55 the application of Occam’s Razor is
have not been proved to a reasonable satisfaction, compelling.
I find that this catastrophic aircraft event is appropriately characterised as a controlled flight into terrain incident. Although faced with conflicting evidence on the issue, I find that this aircraft crash
was not caused by engine failure. In the event there was an engine failure on this aircraft, I agree
with Mr Rule that it occurred at a point in time where the pilot had already put himself — and his
» Briginshaw v Briginshaw (1938) 60 CLR 336.
°° Occam's Razor - The English philosopher, William of Occam (1300-1349) propounded Occam's Razor: "Entities should not be multiplied more than necessary". That is, the fewer assumptions an explanation of a phenomenon depends on, the better it is.
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passengers — in such a position that any engine failure could only have had fatal consequences.*'
This controlled flight into terrain incident claimed the lives of three people and could have been avoided if Mr Lee, himself a victim, had heeded the multiple warnings. This was not an incident caused by sudden, unexpected or inclement weather. It was predicted and it was known. This is not an inexact proof but the reverse — the evidence of the weather conditions was strong and cogent.
According to Mr Rule:
.. the pilot Russell Lee made a critical error in judgement in deciding to attempt a visual approach to Mount Hotham Aerodrome in circumstances where he only had marginal conditions and where he must have known that the conditions that awaited
him at the aerodrome itself were unlikely to be suitable for VFR flight.**
Although Mr Lee was an experienced and competent pilot, such attributes do not equate to a carte blanche right to fly in any weather conditions and contrary to the advice of others and without apparent regard to the capabilities of an aircraft. Although there is no specific evidence that Mr Lee was flying his Piper aircraft in a manner that could be considered dangerous or reckless at the time of the collision, it remains open to me to make a finding of fact that Mr Lee should not have been flying in that place at that time. His actions at this point in his flying history were not consistent with a conservative, competent and cautious pilot discharging his responsibilities, but were to the contrary and led to the fatal consequences.
In considering the totality of the evidence, I find that the deaths of Brian and Kathryn Ray and
Russell Lee could have been prevented and it is Russell Lee that could have prevented the deaths.
I accept and adopt the medical cause of death and find that Brian Ray died from multiple injuries
sustained in an aviation accident.
Mr Ribbands in his final submissions said that there were no useful recommendations he could urge
upon me to make which might prevent a recurrence of this tragedy or assist in the safety of future
7 T @p 1074.
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flights conducted in mountainous terrain or in cold and inclement weather in the southern regions of
Australia because effectively:
The regulations as they now stand sufficiently address these issues.°
Tagree with Mr Ribbands to the extent that it is the existence of regulations that already play a role in the prevention of aviation disasters and it would be trite for me to recommend that pilots should
comply with them.
In relation to the ATSB investigation Mr Ribbands submitted that:
The failure of the ATSB to remove the engines for further examination has potentially
interfered or disallowed a thorough and detailed analysis of the accident,
I accept that the rigour of the ATSB investigation was compromised by the engines not being removed from the crash site and in all probability lead to greater controversy about the state of the engines at the time of the crash than might have occurred had it been deemed necessary or been economically viable to remove them at the time. Mr Ribbands acknowledged that there are constraints on the ATSB’s resources and urged me to make a recommendation for the allocation of greater resources to the investigative body.®' I consider a broad-brush recommendation about resource allocation to the ATSB beyond my jurisdiction however the discreet reference to how the ATSB may better improve on its investigations by the use of video recording of the scene and the
accident investigation are germane to this investigation. Accordingly:
T recommend that the ATSB undertake review of the merits of and its capacity to utilise video recording at all fatal aircraft accident investigations and that such video recording should incorporate the scene and the accident investigation.
I adopt the same position in declining to make a broad-brush recommendation for the allocation of greater resources to CASA consistent with the ATSB’s own recommendation concerning CASA
reviewing and/or improving its surveillance methods as they relate to the detection of patterns of
unsafe practices and non-compliance with regulatory requirements. In addition, I am mindful of the
» T @p 1072.
® T @p 1072.
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prolonged period of time that has lapsed since the aircraft crash, the conclusion of evidence at inquest and the finalising of this Finding and consider that there is no probative value to making any recommendation to CASA regarding their surveillance techniques. Furthermore, I accept Mr Rule’s submissions to the Court that CASA is always looking for ways in which it can improve its practices and procedures and make them more effective.’ To this end Mr Rule provided an
example of CASA’s recent roll out of a new software program.
To enable compliance with sections 72(5) and 73(1) of the Coroners Act 2008 (Vic), I direct that the Finding will be published on the internet.
I direct that a copy of this finding be provided to the following:
e MrE. John Maitland, Maitland Lawyers, on behalf of Mrs Melinda Lee e@ Mr Mark Gray-Spencer; Riley, Gray-Spencer Lawyers
e Hickey Lawyers on behalf of the Ray family
e Civil Aviation Safety Authority, Legal Branch, Canberra
e Australian Government Solicitor, Canberra, on behalf of Australian Transport Safety Bureau
e Mr Matthew Roser, Blake Dawson Lawyers, Canberra, on behalf of Air Services Australia
e Senior Sergeant T Fitzgerald
Signature:
— eo /
CORONER Date: 26 June 2014
© T @p 1079.
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Abbreviations / Terminology:
AMSL = Feet above mean sea level
ATSB = Australian Transport Safety Bureau
ASD = Air Situation Display
ATC = Air Traffic Controller
AUS SAR = Australian Search and Rescue
AVFAX = Air Services pre-flight pilot briefing service — includes weather information CASA = Civil Aviation Safety Authority
CFIT = Controlled Flight into Terrain
Flat light conditions = occurs where light is diffused by a cloudy sky and is likely to occur when the ground is covered by snow, the phenomena is an optical illusion.
Flightwatch = Flightwatch provided on-request radio services, initial in-flight emergency response and search and rescue time management services to pilots.
IFR = Instrument Flight Rules = using the aircrafts instruments due to reduced visibility (not allowed to fly into cloud)
ILS = Instrument Landing System
IMC = Instrument Meteorological Conditions MBZ = Mandatory Broadcast Zone frequency POB = Persons on board
PAPI = Precision approach path indicator (an array of lights used to guide pilots on the correct approach angle when landing.)
RWY 29 RNAV GNSS = Runway 29 Area Navigation, Global Navigation Satellite System SOP = Standard Operating Procedures
TWAS = Terrain awareness and warning system — uses GNSS = Global Navigation Satellite System
VFR = Visual Flight Rules
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