Finding into death of Ian Cook

IN THE CORONERS COURT OF VICTORIA AT MELBOURNE Court Reference: COR 2016 1157

FINDING INTO DEATH WITH INQUEST

Form 37 Rule 60(1) Section 67 of the Coroners Act 2008

Inquest into the Death of: IAN COOK

Findings of: AUDREY JAMIESON, CORONER Delivered on: Tuesday, 23 October 2018 Delivered at: Coroners Court of Victoria,

65 Kavanagh Street, Southbank

Hearing date: 14 November 2017

Police Coronial Support Unit: Leading Senior Constable King TAYLOR

Appearances: Mr Richard Royal of Counsel instructed by Shine Lawyers on behalf of Mrs Nghi Tam Ta (wife of Quoc Huong Vu).

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TABLE OF CONTENTS

BACKGROUND CIRCUMSTANCES

SURROUNDING CIRCUMSTANCES

JURISDICTION

PURPOSE OF THE CORONIAL INVESTIGATION

STANDARD OF PROOF

INVESTIGATIONS PRECEDING THE INQUEST

at

‘

Identity “ Medical Cause of Death “+ Recreational Aviation Australia Investigation

“+ Conduct of my investigation

INQUEST into the deaths of Ian COOK & Quoc Huong VU “> Issues investigated at the Inquest

~ Viva voce evidence at the Inquest

POST INQUEST INVESTIGATION

o

• Coroners Prevention Unit research

‘¢ Further Submissions

COMMENTS

RECOMMENDATIONS

FINDINGS

ANNEXURE ONE: CPU Report

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I, AUDREY JAMIESON, Coroner having investigated the death of IAN COOK.

AND having held an Inquest in relation to this death and the death of Quoc Huong Vu! on 14 November 2017

at Southbank

find that the identity of the deceased was [AN COOK

born on 3 January 1956

and the death occurred on 13 March 2016

at Yarrawonga in the vicinity of Yarrawonga Airport, Yarrawonga, Victoria 3730

from: 1 (a) INJURIES SUSTAINED IN A LIGHT PLANE INCIDENT

in the following summary of circumstances: On 13 March 2016, Ian Cook was the pilot of a weight shift microlight trike, “AirBorne”?

Edge Trike XT912 Registration 32-8112, that crashed into a paddock off Cahills Road Yarrawonga, with fatal consequences for himself and his passenger Quoc Huong Vu, a

cameraman with the television program Amazing Race Vietnam.

BACKGROUND CIRCUMSTANCES

1, Tan Cook (Tan) was 60 years old at the time of his death. He lived in Mount Evelyn, Victoria with his wife Aukje Cook (Mrs Cook). The couple married in April 1982 and

had two sons (twins) to their marriage.

2. Jan worked as a scaffolder and was considered to be of good health.* He rarely attended his general medical practitioner and was not taking any prescription medication at the time of his death. Ian had an interest in many outdoor activities and his interest in flying

commenced around 2011 when he had a light plane introductory flight at Point Cook.

3. In October 2012, Ian had an introductory flight with an instructor in an ultra-light plane in north-east Victoria and he decided to pursue this type of flying. In early 2013, lan signed up for flying training with Chief Flight Instructor (CFI) at Yarrawonga Flight School and

1 Related case: COR 2016 1158.

? AirBorne WindSports Pty Ltd.

3 At the outset of the Inquest, Mrs Cook indicated her preference that her husband be referred to as “Ian”. For consistency I have referred to him as “Ian” throughout the Finding, save where I have deemed it necessary to use his full name.

4 Statement of Aukje Cook dated 9 March 2017 — Coronial Brief @ p 12.22.

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Yarrawonga Aerodrome Manager Peter McLean (Mr McLean). He had his first lesson

with Mr McLean on 8 December 2014.

4. Tan was enthusiastic about flying, spending every opportunity at Yarrawonga. He obtained his navigation certificate within 18 months of commencing training. During training, he operated Mr McLean’s AirBorne Edge Trike* XT912 registration 32-8112. On 10 March 2015, he purchased the aircraft from Mr McLean. On 8 June 2015, Ian was permitted to

fly solo and he subsequently obtained certification to carry passengers.

5. According to Mrs Cook, her husband was very confident and comfortable operating the aircraft, kept a log of his flight hours and was thorough with his checks of the aircraft before and after each flight. He rented a hangar at the Yarrawonga Flight School to store

the aircraft.®

6. Despite his enthusiasm to fly as much as possible, Mrs Cook stated that her husband was also careful in everything he did and would not fly his aircraft if the weather conditions were not conducive. Mrs Cook believed that Mr McLean trusted her husband enough to take people on flights.’. Mr Mclean has stated that Ian was very competent in flying his

aircraft.®

7. On 11 March 2016 at approximately 4.30pm, Ian retumed home from a day at work and.

retired to bed at approximately 8.30pm.

8. On 12 March 2016 at approximately 5.30am, Ian left his home in Mount Evelyn to drive the approximate 257 kilometre trip to Yarrawonga. Ian’s normal practice was to stay in a caravan, which he and Mrs Cook kept at a friend’s house in Bundalong, approximately

14 kilometres from Yarrawonga.

SURROUNDING CIRCUMSTANCES

9. On Sunday 13 March 2016, Mr McLean had pre-arranged through an acquaintance, Mr William Williams (Mr Williams), to host contestants from the television show Amazing Race Vietnam (ARV). The arrangement did not involve a formal contract and no

payment or gratuity was obtained by Mr McLean’ to take the ARV contestants up in his

5 A “Trike” is a microlight aircraft.

5 Statement of Aukje Cook dated 9 March 2017 — Coronial Brief @ p 12.22- 12.24.

7 Ibid.

® Statement of Peter McLean dated 16 May 2017 — Coronial Brief @ p 18.1.

° Tbid.

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microlight aircraft. The arrangement included that the contestants would be filmed by ARV crew for the program. Pham Trung Dung and Quee Huong Vu (Vu)"? were working

as cameramen and attended the event at Yarrawonga to film for the ARV.

10. Prior to the ARV crew and contestants arriving at the Yarrawonga Aerodrome, Mr McLean had organised a safety management system which involved placing barricades outside the hangar to prevent inadvertent straying of persons into the path of an aircraft. He also obtained the assistance of some pilot friends to help out with safety on

the ground."

an

. lan had agreed to be one of the Safety Marshals for the event. Each Safety Marshal was equipped with a radio so that they could contact Mr McLean at any time. They had been briefed by Mr McLean to communicate with him if they identified any hazard including if they sighted any “Dust Devils’? which could affect his landing or take-off. The Safety Marshals were also expected to maintain safe distances between the cameramen on the

ground and the runway, as well as supervise ARV crew and contestants.

12. At approximately 12.30pm, the crew from ARV arrived at the Aerodrome and conveyed to Mr McLean that they wanted four contestants to be taken up in a weight shift microlight trike, fly a circuit around the Yarrawonga runway and land on the same runway. Mr McLean was to take each contestant up in his aircraft which had the capacity for a pilot and a passenger. Mr McLean liaised with the crew and provided briefings to the

contestants.?

13. Prior to taking the contestants up in his aircraft, Mr McLean took Vu up to obtain aerial footage of the local area. Subsequently, an ARV organiser conveyed that they wanted to have footage of the contestants flying and asked Mr McLean if there was another pilot and aircraft available for these purposes. Mr McLean initially responded in the negative but Ian volunteered to take Vu in his aircraft to film the contestants as requested by ARV.

Mr McLean had some reservations but considered Ian, who had 11 months experience as

‘0 Counsel for Nghi Tam Ta (Vu’s wife) indicated his family’s preference that Quoc Huong Vu be referred to as “Vu”.

For consistency I have referred to him as “Vu” throughout the Finding, save where I have deemed it necessary to use his full name.

1 Statement of Peter McLean dated 16 May 2017 — Coronial! Brief @ p 18.1.

12 & dust devil is a strong, well-formed, and relatively long-lived whirlwind, ranging from small (half a meter wide and.

a few meters tall) to large (more than 10 meters wide and more than 1000 meters tall). The primary vertical motion is upward. Dust devils are usually harmless, but can on rare occasions grow large enough to pose a threat to both people and property — referenced from Wikipedia.

13 Statement of Peter McLean dated 13 March 2016 — Coronial Brief at p 15.

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a pilot in command, to be capable of flying in the prevailing conditions; it was the hottest

part of the day and there were some Dust Devils in the vicinity.

Lawrence Thompson (Mr Thompson) remained on the ground as a Safety Marshal. He stood one-third of the way along the active runway for the day, Runway two-three,'* and

ten metres from the edge of the runway.

At 3.25pm, Ian took off in his AirBorne Edge Trike with Vu as a passenger. Mr McLean took off with an ARV contestant soon afterward. Jan’s aircraft was observed flying around the vicinity of the Yarrawonga Aerodrome. Mr McLean did not see Ian’s aircraft again until after he had landed his own aircraft. He was walking back out of his hangar to get the next contestant when he observed Ian’s aircraft travelling in a North West direction over the hangar. Mr McLean thought that Ian’s aircraft was flying a little low but he was

not concemed.'*

. At, or about the same time, Mr Thompson made radio contact with Ian informing the pilot

that there was a Dusit Devil over the end of Runway 05 located at the west end of the

Aerodrome. Ian responded that he had seen it and thanked Mr Thompson.

Jan was seen to fly safely around the Dust Devil and was adjacent to Runway 05-23 as if preparing to land. Partway down the runway, Jan turned his aircraft to the left, traveling north over the Aerodrome. He tured left again before the taxiing area, resulting in the aircraft traveling in a westerly direction. At this point, Mr Thompson also thought Ian was flying his aircraft unusually low as it continued toward the sole tree in a paddock adjacent

to the Aerodrome."

Pham Trung Dung filmed Ian’s aircraft from the ground, flying approximately 50 metres overhead. He briefly panned away but returned to filming the aircraft just before it began to rapidly descend."

At approximately 3.30pm, Ian’s AirBorne Edge weight shift microlight trike crashed into

the terrain in a paddock adjacent to the Aerodrome; approximately 500 metres in a

westerly direction. Anumber of people ran to the site while others used vehicles.

\4 “Two three” refers to the compass point (230) and 180 degrees the other way is 05 thus reference to Runway “05”.

5 Statement of Peter McLean dated 16 May 2017 — Coronial Brief @ p 18.1.

'§ Statement of Lawrence Thompson dated 13 March 2016 — Coronial Brief @ p 33, Exhibit 1.

‘7 Statement of Pham Trung Dung dated 14 March 2016 — Coronial brief @ p 19. Footage of the aircraft collision with

ground.

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Emergency Services were contacted, however it was evident that neither Ian nor Vu had

survived the impact with the terrain.

JURISDICTION

20. Ian Cook’s death was a reportable death under section 4 of the Coroners Act 2008 (‘the

Act’), because it occurred in Victoria and was considered unexpected, unnatural or to have

resulted, directly or indirectly, from an accident or injury.

PURPOSE OF THE CORONIAL INVESTIGATION

21,

The Coroners Court of Victoria is an inquisitorial jurisdiction.!® The purpose of a coronial investigation is to independently investigate a reportable death to ascertain, if possible, the identity of the deceased person, the cause of death and the circumstances in which death occurred.!? The cause of death refers to the medical cause of death, incorporating where possible the mode or mechanism of death. For coronial purposes, the circumstances in which death occurred refers to the context or background and surrounding circumstances, but is confined to those circumstances sufficiently proximate and causally relevant to the death and not merely all circumstances which might form part of a narrative culminating

in death.”

The broader purpose of coronial investigations is to contribute to the reduction of the number of preventable deaths through the findings of the investigation and the making of recommendations by Coroners, generally referred to as the ‘prevention’ role.2! Coroners are also empowered to report to the Attorney-General on a death; to comment on any matter connected with the death they have investigated, including matters of public health or safety and the administration of justice; and to make recommendations to any Minister or public statutory authority on any matter connected with the death, including public health or safety or the administration. of justice.” These are effectively the vehicles by

which the prevention role may be advanced.”

18 Section 89(4) Coroners Act 2008.

19 Section 67(1) of the Coroners Act 2008.

20 See for example Harmsworth v The State Coroner [1989] VR 989; Clancy v West (Unreported 17/08/1994, Supreme Court of Victoria, Harper J).

2! The "prevention" role is explicitly articulated in the Preamble and Purposes of the Act.

» See sections 72(1), 67(3) and 72(2) of the Act regarding reports, comments and recommendations respectively.

23 See also sections 73(1) and 72(5) of the Act which requires publication of coronial findings, comments and recommendations and responses respectively; section 72(3) and (4) which oblige the recipient of a coronial

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23. It is not the Coroner's role to determine criminal or civil liability arising from the death

under investigation. Nor is it the Coroner’s role to determine disciplinary matters.

24. Section 52(2) of the Act provides that it is mandatory for a Coroner to hold an Inquest into a death if the death or cause of death occurred in Victoria and a Coroner suspects the death was as a result of homicide, or the deceased was, immediately before death, a

person placed in custody or care, or the identity of the deceased is unknown.

25. In this matter, I exercised my discretion to hold an Inquest; pursuant to section 52(1) of the Act, Coroners have absolute discretion as to whether or not to hold an Inquest.

However, a Coroner must exercise the discretion in a manner consistent with preamble

and purposes of the Act.

26. In deciding whether to conduct an Inquest, a Coroner should consider factors such as (although not limited to), whether there is such uncertainty or conflict of evidence as to justify the use of the judicial forensic process; whether there is a likelihood that an Inquest will uncover important systemic defects or risks not already known about and, the likelihood that an Inquest will assist to maintain public confidence in the administration of

justice, health services or other public agencies.

STANDARD OF PROOF

27. All coronial findings must be made based on proof of relevant facts on the balance of probabilities. In determining whether a matter is proven to that standard, I should give effect to the principles enunciated in Briginshaw v Briginshaw.4 These principles state that in deciding whether a matter is proven on the balance of probabilities, in considering

the weight of the evidence, I should bear in mind:

e the nature and consequence of the facts to be proved; e the seriousness of any allegations made; e the inherent unlikelihood of the occurrence alleged;

e the gravity of the consequences flowing from an adverse finding; and

recommendation to respond within three months, specifying a statement of action which has or will be taken in relation to the recommendation.

24 (1938) 60 CLR 336.

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e if the allegation involves conduct of a criminal nature, weight must be given to the presumption of innocence, and the court should not be satisfied by inexact proofs,

indefinite testimony or indirect inferences.

28. The effect of the authorities is that Coroners should not make adverse findings against or comments about individuals, unless the evidence provides a comfortable level of

satisfaction that they caused or contributed to the death.

INVESTIGATIONS PRECEDING THE INQUEST Identity

29. The identity of the deceased was determined by scientific means. Consultant Forensic Odontologist at the Victorian Institute of Forensic Medicine (VIFM), Dr Lyndal Smythe compared the ante mortem dental records of Ian Cook with the post mortem radiographs and computed tomography (CT) scan images of the deceased and reported? that they were

concordant.

30. A Form 8, Determination by Coroner of Identity of Deceased** being Jan Cook whose

date of birth is 3 January 1956 was completed by Coroner Peter White on 18 March 2016.

31. No further investigation in respect of identity was required.

Medical Cause of Death

Post mortem examination

32. Dr Matthew Lynch, Forensic Pathologist at the VIFM performed an autopsy on the body of Ian Cook on 17 March 2016, reviewed the Police Report of Death for the Coroner, Form 83, a post mortem CT scan, photographs of the incident scene and arranged for histological examination of tissue. Dr Lynch reported?’ there was evidence of multiple injuries to the head, torso and limbs identified at autopsy. Natural disease was also noted

in the form of patchy myocardial fibrosis (scarring of the heart muscle) and fatty liver.

25 Forensic Odontology Report of Dr Lyndal Smythe (undated) and Identification Report of Dr Lyndal Smythe dated 18 August 2016. — Coronial Brief @ pp 12.1B - 12.1G.

26 Section 24 Coroners Act 2008.

27 Medical Examiners Report of Dr Matthew Lynch dated 12 April 2016 ~ Coronial Brief @ p 12.2.

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Toxicology

Toxicological analysis was negative for drugs and alcohol.

Forensic pathology opinion

Dr Lynch ascribed the cause of Jan Cook’s death to injuries sustained in a light plane

incident.

Recreational Aviation Australia Investigation

On 13 March 2016, Recreational Aviation Australia (RAAus) were notified of the aircraft crash resulting in the deaths of Ian and Vu. On 14 March 2016, RAAus Accident Consultant and Technical Manager Darren Barnfield (Mr Barnfield) attended the site of the incident to assist Police with their investigation. At the site, Mr Barnfield did an initial walk through to assess the situation, made hand-written notes, took photographs of the scene and of the aircraft. He also used a drone to take aerial shots of the scene and

inspected the aircraft.

Mr Barnfield completed a statement on the same day wherein he stated that, based on the condition of the aircraft and statements taken from eye witnesses, he had ‘formed the opinion that the aircraft was in serviceable condition during the flight and that the

incident was not due to mechanical failure of the airframe or engine.”*

On 13 October 2016, Mr Barnfield completed his report in respect of his limited scope,

fact gathering investigation of the incident.”

Information obtained from the RAAus database reflected that Ian had been a member of RAAus since 9 December 2014. He obtained his pilot certificate on 6 April 2015 and at the time of the incident Ian’s medical declaration was current. A Biennial Flight review had been completed on 7 December 2015 and Jan had a total of 86 hours flying as a pilot in command of a weight shift microlight trike as at 13 March 2016. He had endorsements to his pilot certificate in cross country, human factors, passenger carrying and RAAus

flight radio.

Details of the aircraft were obtained from the RAAus database which reflected that Ian’s AirBorne Edge Trike XT912 Registration 32-8112 was manufactured in 2012 by

28 Statement of Darren Barnfield dated 14 March 2016 — Coronial Brief @ p33.

29 Recreational Aviation Australia (RAAus) Accident Consultant Report dated 13 October 2016 - Coronial Bnef @ pp

143 - 200

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AirBorne Windsports Pty Ltd in NSW. It was first registered with RAAus on 16 April 2012 and had a total of 431.4 hours-time in service with approximately 1400 landings.

40, The weather on 13 March 2016 was reported as being acceptable for the flight.

Mr McLean reported the presence of Dust Devils at the time of aircraft opcrations, prior to Ian’s flight.

41. On 14 March 2016, Mr Barnfield inspected the damage to the aircraft®* and the associated wreckage debris in the vicinity of the collision with terrain. Mr McLean was present in his capacity as CFI. On inspecting the engine, Mr Barnfield reported that he found evidence that it was producing power when the aircraft impacted with the terrain. The evidence was supported by his observations that the propeller blades were found detached from the base of the propeller hub and were thrown in various directions on impact. Consequently,

Mr Barnfield concluded that engine failure was not a primary cause of the incident.

42. With the assistance of RAAus Assistant Operations Manager Neil Schaefer (Mr Schaefer), Mr Barnfield reviewed the camera footage taken by Vu while he was a passenger in Ian’s aircraft.?! Mr Schaefer and Mr Barnfield did not know what relevance the footage they were viewing had to the flight sequence immediately before the impact event, although they did comment that the aircraft was initially in stabilised flight and all

operations appeared normal.

43. At point 0.22 time stamp on the recording, there is clear evidence of convective activity closely adjacent to the aircraft; this was attributable to the Dust Devils. The aircraft headed toward a point approximately 200 metres to the north (right) of the convective activity.

44, Between time stamp 0.22 to 0.27 on the recording, there is indication that the aircraft is reacting to the convective activity; the report maker commented that the height of the manoeuvring observed was extremely low and not conducted in accordance with Civil Aviation Regulation (CAR) 157 or Civil Aviation Order (CAO) 95.32 paragraphs 7.1 (b), 8.1 and 8.2,

45. Review of the ground based footage, filmed by ARV cameraman Pham Trung Dung, also

provided evidence of convective turbulence and evidence that this was communicated to

30 Mr Barnfield is also a Licensed Aircraft Maintenance Engineer.

31 Vu’s camera was significantly damaged in the impact with terrain and it is believed that not all of the footage he shot was recoverable.

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lan by ground operators. Ian is recorded acknowledging and understanding the nature of the communication. Mr Barnfield commented that the flight path at the time of this communication was consistent with circuit joining requirements, although the aircraft

‘was substantially lower than regulatory and recommended heights.*”

a

. At time stamp 00.40 on the ground based footage there is an indication of additional power being applied which Mr Barnfield reported would be consistent with required

actions to maintain height.

47. Between time stamp 01.02 and 01.06, Mr Barnfield reports that there is movement of the aircraft that could be consistent with an unbalanced turn. However, he states that it was not significant and could be related to convective (rising) air under the left wing of the

aircraft.

48. Between time stamp 01.08 and 01.14, Ian’s aircraft moved out of frame but engine sounds can still be heard. Mr Barnfield states that the engine pitch and tone remains constant during this period.

49. At time stamp 01.14, Ian’s weight shift microlight trike comes back into frame at approximately tree height. According to Mr Barnfield’s analysis, the aircraft ‘rolled and pitched (possibly inverted) then impacted with the ground. Audio indicates no significant

change in engine tone or pitch at impact.’

50. Consequent upon reviewing the recovered aerial footage filmed by Vu and the ground footage filmed by Pham Trung Dung, Mr Barnfield reported that it was only moments after Ian received the radio communication about the convective turbulence when ‘the aircraft was observed in a nose down high angle of attached altitude that was non-

recoverable from the height the aircraft was operating.’™ Conduct of my investigation

51. The investigation and the preparation of the Coronial Brief was undertaken by Leading Senior Constable (LSC) Janis McMillan on my behalf.

• RAAus Accident Consultation Report dated 13 October 2016 — Coronial Brief @ p 159.

33 RAAus Accident Consultation Report dated 13 October 2016 — Coronial Brief @ p 159.

34 RAAus Accident Consultation Report dated 13 October 2016 — Coronial Brief @ p 161.

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INQUEST into the deaths of Ian COOK and Quoc Huong VU

52. I was assisted by LSC King Taylor of the.Police Coronial Support Unit.

Issues Investigated at the Inquest

53.1 specifically limited the scope of my Inquest to seek clarification on a number of issues,

including: a. The original arrangement between Mr McLean and Mr Williams to host the

Amazing Race Vietnam; b. Pre-event planning by Mr McLean; and c. How the aircraft collision into terrain may have occurred.

Viva voce evidence at the Inquest

54, Viva voce evidence was obtained from the following witnesses: e Chief Flight Instructor at Yarrawonga Flight School and Yarrawonga Acrodrome Manager Peter McLean

e Safety Marshal Lawrence Thompson

The arrangement between Mr Williams and Mr Mclean

55. Mr McLean stated that Mr Williams was an acquaintance and a businessman from Sydney who would bring Vietnamese business people to Yarrawonga to show them the area.

Mr McLean would fly some of these business people in his aircraft around the local area.

56. Mr Williams and Mr McLean arranged for the Yarrawonga Aerodrome to host ARV contestants and allow them the opportunity to fly by a couple of telephone calls which occurred a few days before 13 March 2016.35 Mr McLean and Mr Williams discussed that all the contestants would be doing was a circuit and Mr McLean would make it look like

they were flying the aircraft.

57. The flight was ‘just one small portion’ of what the contestants had planned for that day ‘so they were very time critical on what they were doing.’ There were no details

provided or confirmed in writing and no written agreement between the two men. Mr

5 Transcript of Proceedings (T) @ p 42.

35° @ p42.

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McLean said that a few days’ notice was plenty of time for him to organise the event at

the Aerodrome.

Mr McLean stated that all of his plans for the event revolved around him being the only pilot available on the day for the ARV contestants. His senior instructor, another pilot,

was not available to be at the Aerodrome in Yarrawonga for the event. Mr Mclean stated:

.. the whole basis of this thing was to be done around myself flying four contestants, four six-minute flights and that was it. There was no — there was no idea of taking a second cameraman up. We didn’t have the aircraft, we didn’t have the pilots

available for that”

Mr McLean said that, after the fatal incident, he had a conversation with Mr Williams which confirmed his belief that ARV had been told he would be the only pilot available to

them.®

During the Inquest, it was not entirely clear how Mr Williams came to be asking Mr McLean to host the ARV event at the Yarrawonga Aerodrome. Consequently, I indicated at the close of the viva voce evidence that I would endeavour to obtain a

statement from Mr Williams.

Pre-event planning

Mr McLean stated that the first thing he attended to in preparation of the event was his ‘Threat Error Management System’ where he would ‘look at the threats, the errors that

could be made and how to manage it all.”

Mr McLean said he had checked the weather forecast for 13 March 2016 and it looked reasonable. He knew it was not going to be a very heavy day at the Airfield; ‘Zt was just a normal day’.** He had asked a ‘few friends if they could help out with just managing the

cameramen’ as he did not want people wandering around on the Aerodrome.

Mr McLean had asked ‘Laurie, Ingo and Jan’*’ and a few others turned up on the day so

he gave ‘each of them tasks to look after and make sure that nobody went past certain

7 7 @p 52.

8 T @ p47.

» T@p43.

°° T@p44.

4t “T aurie” is Lawrence Thompson, “Ingo” is Ingo Schweda and “Ian” is Ian Cook.

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areas or did certain things.’ He gave each volunteer a personal briefing. He did not hold a joint meeting.“ Mr McLean said that the four contestant flights was a very simple operation,” technically they were not doing any flying as he had control of the aircraft at

all times.

In preparation for the day, Mr McLean had placed barricades in front of his hangar to stop the ARV contestants and the group of people accompanying them, from straying onto the taxiing pathway or into a live propeller. He had also taken one of the cameramen for a flight earlier in the day” so he could get footage of the airport, the local area and where

the contestants were going to be doing their circuit.

Mr Thompson knew both Jan and Mr McLean well. He often shared motel rooms with Jan when going on flying trips and Mr McLean had taught him to fly. Mr Thompson first heard of the ARV event on either the Friday prior to the event or the Saturday morning.

Mr McLean had asked him if he was interested and he responded that he was more than happy to volunteer. Mr Thompson said he did not really know what the plan for the day was except that there were four ARV contestants for the Amazing Race and that they were to take turns” flying at the Aerodrome. There was not a group discussion with the other

volunteers.

Mr Thompson believed that Mr McLean just spoke to each volunteer individually and he did not see any written plan or risk assessment.*° Mr McLean told Mr Thompson that the ARV wanted a cameraman out near the runway. He asked Mr Thompson to take care of the cameraman and ensure they did not get too close to the runway. Mr Thompson agreed.

to take on this responsibility as a Safety Marshal at the ARV event. On the day, he

T@p43.

T @ p 66, 76.

T@p44.

T@p45.

T@p4s.

T @p 46, 67.

8T @p10.

®T@pis.

©T@pls.

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‘escorted the cameraman! out to the runway and made sure that he did not go any closer

than ten metres whilst the aircraft was taking off or coming into land.’

Mr Thompson believed that each of the contestants would, in the space of approximately six to eight minutes, take off, fly a circuit and come in and land the aircraft while Mr McLean sat behind the contestant with his hands in reach of the controls ‘just to make

sure everything went smoothly.’*

Mr McLean began to brief the first contestant on safety issues, the controls and their role during the flight when one of the ARV crew insisted that another aircraft be available for a cameraman, Vu, to film the contestants flying. Mr McLean responded that this was not possible as he did not have another qualified pilot to undertake that task. Ian however

volunteered and went to retrieve his weight shift microlight trike soon afterward.

As Vu got into the back of Jan’s aircraft, Mr Thompson spoke to both Ian and Vu, advising Jan that he should not take any risks and telling Vu to get his camera strap

secured around his shoulder as he did not want the camera to fall out of the aircraft.

Mr Thompson did not know if Jan had the necessary qualifications to take up the cameraman but was mindful that Mr McLean had stated to the ARV crew that he did not have anyone else available. He said that lan was ‘the kind of bloke that if anybody needed a hand with their trike he was always in there to help them... (he) couldn't do enough for

people.’*

How the aircraft collision into terrain may have occurred

=

Ian took off with Vu just prior to Mr McLean. There was no conversation between Ian and Mr McLean prior to take-off although radio contact was possible between the two pilots.

Mr McLean stated that there was no need. While both aircraft were in the air, Mr McLean radioed Ian to ask him where he was as he could not see his aircraft. Jan responded that he

was on Mr McLean’s left.

. Mr Thompson said that he observed two Dust Devils over the Aerodrome at around the

time of the incident. He estimated that they were approximately two metres in diameter

51 Pham Trung Dung.

27 @plo.

BT @p 12.

34 T @ pp 13-14.

5 T@pis.

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and probably a couple of hundred metres tall°* or around 300 feet high.*’ As best as he could recollect, the Dust Devils were side-by-side and approximately 50 to 80 metres

apart. Jan avoided them by flying in the back of them and flying downwind.*

As Ian flew to avoid the Dust Devils, Mr McLean landed his aircraft. Mr Thompson radioed Ian and asked if he also intended to land and Ian responded in the affirmative.

When this exchange occurred, Mr Thompson said ‘he (Ian) joined downwind and haifway to two-thirds of the way down the runway, he’s done a hard left hand turn, flung straight onto the top of me and the ground camera crew and then he has done another left

hand turn, upwind, to the west’. °°

Mr Thompson said he had. not seen Ian fly like that before. He was clearly concerned about what he was observing at the time and while giving his viva voce evidence he attempted to describe and demonstrate that the wind was dipping the aircraft from side to

side.

During the Inquest, Mr Thompson expressed a theory” that Vu may have moved from one side of the weight shift microlight trike to the other, resulting in the corresponding side of the aircraft dipping with the weight of his camera. He also suggested that, if the camera was held out to the side of the aircraft, the imbalance the device created may have caused the pilot to over-correct as the camera was brought back into the cabin.“ He speculated that, from the position of the aircraft flying low over the hangars, the cameraman could have been attempting to film the contestant in Mr McLean’s aircraft as it was taxiing back to the hangar.

Mr McLean had not heard the conversation between Mr Thompson and Ian about thé presence of a Dust Devil® and elaborated on his first statement about the weather

conditions for flying:

% T@pi6.

58 T@pl ° T@pp

19-20.

20-21 — Mr Thompson informed me that he had done his own experiment (after the fatal incident) by merely

placing one arm out the side of his aircraft and noting how easily the aircraft shifted in the direction to the outside

imbalance.

6! Mr Thompson later agreed that from his experience he could say that this type of aircraft is easily unbalanced or can be more difficult to keep balanced — T @ p37.

@ T @p 56.

‘17 of 31

The difference with that particular day with those dust devils, they were very hard to see and that’s why I really wanted people on the ground because I

needed eyes. From the air you couldn’t see them. From the ground you can.®

77. Mr McLean further stated that, when he saw Tan fly over the Aerodrome, he noticed that Ian ‘was moving his bar probably a little more than normal ...and I put that down to

maybe a bit of thermal activity.’“

78. Mr Mclean did not see Jan’s aircraft collide with the terrain. Despite talking to people

after the incident, he had ‘no idea what occurred’. ©

79. During the Inquest, Mr Thompson and Mr McLean referred to the over representation of weight shift microlight trikes in fatalities.

80. Mr Thompson said that:

Whenever there's been a fatal accident and there's been an AirBorne aircraft with the arrow wing on it...different pilois you sit around with and talk about and they seem to think that there is an issue with it and they stall if you get too low on air speed. But as I said before, I'm not an aeronautical engineer but most of the recent fatalities have been in that particular aircraft, the

combination that I know of.

81. Mr McLean also explained the risk of incipient spin when operating weight shift microlight trikes:

...my personal opinion it's a design flaw with the AirBorne Arrow. I had many

people ring me in the early days of the Arrow who were scared of the wing.”

82. Mr McLean agreed with Counsel Assisting that the arrow wing type of aircraft being

flown by Ian, can become unstable when flown at low speed.@

83. The Inquest was adjourned sine die.

8 T@p 47.

54 T @ p 68.

5 T@p 58, 60, 63.

6 T @p27.

TT @ 62.

8 T @p53.

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Statement from William Williams

84. On 22 December 2017, I received a statement from Mr William Williams (Mr Williams).

Mr Williams stated that he had known Mr McLean for at least eight years. During that time, he had taken Vietnamese visitors to Yarrawonga Airport for Trial Instructional

Flights on several occasions.

Mr Williams said that he had previously lived in Vietnam and that he was friends with Mr Binh, the Director of the ARV. Mr Williams said that Mr Binh asked him about activities that the ARV contestants could undertake. Mr Williams conveyed to Mr Binh that the ARV contestants could travel to Yarrawonga to do an instructional flight with Mr McLean. Although he could not be definitive, Mr Williams believed that he discussed

the idea with Mr McLean approximately one week before the event.

There was no written agreement between Mr Mclean and the ARV. According to

Mr Williams, Mr McLean was not to receive payment from the ARV.

Mr Williams believed that senior members of the ARV arrived in Yarrawonga approximately three days prior to the contestants and production team. During this time, the ARV Senior members had a meeting with Mr McLean to discuss the format for the

flying and arrangements for filming at that time.

Mr Williams was not present at the meeting but was informed that it was successful. He stated that Mr McLean and the ARV senior members agreed that one person from each pair of contestants would go on a flight.

On 13 March 2016, Mr Williams arrived at the Yarrawonga Aerodrome ahead of the ARV contestants and production team. He departed Aerodrome when filming began in order to

attend the Mulwala Waiter Ski Park. The ARV contestants were scheduled to go to the Ski Park after their flights. Mr Williams was at the Ski Park when he received notification of

the aircraft crash.

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POST INQUEST INVESTIGATION Coroners Prevention Unit Research

Request for Assistance

90. With the aim of providing certainty to the anecdotal evidence of Mr Thompson and Mr McLean, I requested the Coroners Prevention Unit (CPU)® undertake research on my

behalf to inform me and support my Findings.

=

. 1 requested that the CPU provide me with data to determine whether weight shift microlight trikes were over represented in fatal aircraft collisions. I also requested that the CPU provide me with data to examine, in further detail, the anecdotal evidence that AirBorne brand aircraft are involved in a disproportionately high number of Australian

weight shift microlight trike fatalities.

92. I also requested that the CPU provide me with details of any previous recommendations made by Coroners in relation to these type of aircraft and whether there have been any changes to the manufacturing or any improvements to the design of weight shift

microlight trikes as a consequence of investigations into fatalities associated with them.

CPU Report 93, On 29 June 2018, the CPU provided me with a copy of their final Report. I have appended the CPU's written advice to this Finding; the following is a brief overview of what was

found.

94. The CPU's first step in assisting me, was to conduct a national search for fatal aircraft collisions involving weight shift microlight trikes which occurred in Australia between 2000 and the present. The CPU searched across Coroners Court of Victoria internal databases, the National Coroners Information System (NCIS) and the Australian Transport Safety Bureau (ATSB) National Aviation Occurrence Database, and identified 26 such fatal collisions. AirBorne brand weight shift microlight trikes were involved in 20

(76.9%) of these 26 fatal collisions.

95. While the CPU search indicated AirBorne brand aircraft were involved in a substantial

majority of Australian fatal weight shift microlight trike collisions, the CPU advised it

6 The Coroners Prevention Unit (CPU) was established in 2008 to strengthen the prevention role of the coroner. The unit assists the coroner with research and formulation of prevention recommendations, as well as assisting in monitoring and evaluating the cffectiveness of the recommendations.

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97,

was not possible to conclude they were disproportionately represented: this would require further information not available to the general public, such as the composition by brand of the Australian weight shift microlight trike fleet, and the annual logged hours of flying time by weight shift microlight trike brand.

At my direction, the CPU wrote to the ATSB; the organisation legislatively responsible for investigating civil aviation incidents. I also directed the CPU to write to the Hang Gliding Federation of Australia (HGFA) and RAAus to seek their assistance in interpreting the collision statistics. HGFA and RAAus are the two self-administering organisations to which the Civil Aviation Safety Authority [CASA] has delegated responsibility for administering regulation of weight shift microlight trikes and

investigating incidents involving these aircraft.

The ATSB response, signed by Chief Executive Officer Greg Hood, was lengthy but unfortunately of limited utility. Mr Hood indicated that the ATSB gathers a range of data on aircraft accidents and incidents, however does not have data enabling it to establish whether AirBorne brand aircraft were disproportionately involved in weight shift

controlled aircraft accidents in Australia.

The HGFA and RAAus responses, from Chief Operating Officer Brett Coupland and Chief Executive Officer Michael Linke respectively, were far more helpful. Both advised that the AirBorne brand aircraft account for the clear majority of registered weight shift controlled aircraft in Australia, and their representation among fatal collisions is likely a reflection of this. Both concluded that their organisations have no concerns about the relative safety of AirBorne brand aircraft; nor did they believe weight shift controlled aircraft are involved in disproportionately more accidents and incidents than other aircraft types.

Finally, I asked the CPU to review the Coronial findings - where available - in the 26 fatal weight shift microlight trike collisions, to identify any comments or recommendations that

might be relevant to my consideration of the issues in the deaths of Ian Cook and Vu.

Among the Coronial material identified, a recurring theme was Coroners' concerns with how investigations into light and microlight aircraft collisions are undertaken, and particularly the issues inherent in the ATSB delegating such investigations to selfadministering organisations that do not always have the expertise and funding and

equipment to conduct proper investigations.

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I noted with interest a Queensland finding into a 2005 death, where the Coroner recommended that: ‘[...] the ATSB identify and investigate all fatalities and serious accidents involving the AirBorne Edge aircraft. There is sufficient nexus between the

incidents to warrant a review of the AirBorne Edge aircraft.’

Further Submissions

At my direction, the CPU provided AirBorne Aircraft WindSports Pty Ltd with a copy of the Report. I requested that AirBorne inform me of any identification of safety concerns

and correspondent actions taken in relation to the Arrow microlight aircraft.

I also provided the Report to parties to the Inquest: Mrs Cook and Shine Lawyers on behalf of Nghi Tam Ta. I informed them that I hoped to finalise the investigation, subject

to the content of any written submissions.

I requested that written submissions be provided by close of business on 6 August 2018.

AirBorne Aircraft

On 2 August 2018, AirBormme Director Rick Duncan provided me with a four page document in response to the issues raised in the CPU Report. The following constitutés a summary of the issues addressed.

Mr Duncan stated that the HGFA and RAAus did not indicate an issue with AirBorne microlight aircraft. Mr Duncan wrote, as HGFA and RAAus are the relevant investigating bodies, ‘we must assume that the accident investigators, with all information on hand have no safety concerns with the Airborne Arrow and Airborne aircraft in general’.

Mr Duncan stated that comments about AirBorne aircraft which did not come from the HGFA or RAAus investigators were unlikely to be based on sufficient information to ‘make a negative judgement’.

AirBorne’s Director endorsed the HGFA’s statement that a pilot should receive instructor familiarisation flights before piloting any high-performance Weightshift microlight wing.”

Mr Duncan strongly agreed with RAAus’ intention to standardise training methods:

• QLD COR 2005 2594, 1 Please see page | of Attachment B (10 of 12) of the Coroners Prevention Unit Report.

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. RAAus has a specific project in place working with [HGFA]. The focus of this project is to standardise the training provided by RAAus and HGFA Chief Flying Instructors by ensuring practical training is delivered and managed between the two

organisations.” Mrs Cook

110. On 6 August 2018, Mrs Cook thanked me for the opportunity to review the CPU Report.

At that time, she did not wish to make any submissions. Mrs Cook requested that the

Court continue to keep her abreast of the progression of this matter.

Shine Lawyers on behalf of Nchi Tam Ta

111. On 6 August 2018, Mr Janson of Shine Lawyers responded to the request for any further submissions on behalf of his client Nghi Tam Ta. Mr Janson requested that 1 consider specific comments made by Chief Operating Officer of Hang Gliding Federation of Australia (HGF A) Mr Brett Coupland in response to the letter from CPU:

We have had discussions with Jill Bailey (Recreational Aviation Australia), David Cookman and Peter McLean (both HGFA Weightshift Microlight Chief Pilot

Instructors) about possible concerns with the Arrow wing.

The overwhelming consensus was that the Arrow wing is a high performance wing, tuned for high speed. All were of the opinion that pilots have not been maintaining a sufficient speed for this wing, whilst in the circuit and as such there is a possibility of

Stalling or spinning the wing, when turning onto base or final.

112. In submissions, Mr Janson requested that I consider the comments made by Mr Coupland

in his letter to the Court’ when making a determination about the cause of the aircraft

collision.

® Please see page 2 of Attachment C (12 of 12) of the Coroners Prevention Unit Report.

% Please see page 2 of Attachment B (Page 9 of 12) of the Coroners Prevention Unit Report.

™ Please see Attachment B of the Coroners Prevention Unit Report.

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COMMENTS

Pursuant to section 67(3) of the Coroners Act 2008, I make the following comments connected

with the death:

At the outset of the Inquest, | was concerned that the arrangement between Yarrawonga CFT and Aerodrome Manager Mr McLean and Mr Williams remained unclear. I considered that the arrangement for the ARV event was relevant to the immediate surrounding circumstances of Ian and Vu’s death. Additionally, I considered that such an arrangement may have been relevant to the regulatory or statutory body which ought to investigate the aircraft collision. For example, WorkSafe may appropriately investigate where it is

identified that an injury or death occurred in a workplace.

. At the adjournment of the Inquest, I still had insufficient information regarding the

arrangement between ARV, Mr McLean and Mr Williams. Despite the opportunity to provide verbal and written evidence, Mr McLean expressed little detail about how

Mr Williams came to arrange the ARV event in Yarrawonga.

. Mr Williams stated that, in the context of his long-standing relationship with Mr McLean,

he introduced Mr Binh to the possibility of holding an ARV event at Yarrawonga Aerodrome. Mr McLean, Mr Williams and Mr Binh indicated that Mr McLean did not receive any monetary nor other compensation for-organising or facilitating any aspect of

the event.

. It was evident during the Inquest that the deaths of Ian and Vu were deeply distressing to

Mr McLean. However, this does not explain his inability to provide clarity about the nature the arrangement between himself, Mr Williams and the ARV. If I had been unable to contact Mr Williams for a statement, I would have had deficient information about the

nature of their arrangement.

. Mr McLean’s evidence was that he arranged to meet the flight requirements of the ARV

and to do so under certain time restraints. He maintained that he had taken all necessary

steps to ensure the safety of the contestants and of the production crew of the ARV.

. It was impossible to get further, definitive information about the nature of the arrangement

between ARV and Mr McLean. However, the available evidence seems to corroborate the fact that Mr Me Lean was not paid or otherwise compensated for the arrangement of the event at Yarrawonga Airport on 13 March 2016. It is not apparent whether a commercial

arrangement would have led to more formal and structured event management.

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7. It is difficult to conceive of the informal nature of the arrangement between ARV and Mr McLean given the number of contestants, crew and airport personnel engaged in a high-risk activity which required the input of qualified individuals with technical skill. It would be reasonable to expect that an event of this type would be carefully organised in a formal arrangement with terms of agreement. It would be reasonable to expect that the

safety of all involved would comprise part of those terms.

8. I have considered whether the informal nature of ARV and Mr McLean’s arrangements represent a missed opportunity to prevent the deaths of Jan and Vu. However, I am unable to definitely determine the same. Mr McLean stated that, as a qualified pilot, lan was

entitled to arrange a private flight with Vu.

The RAAus Investigation Report provided a factual chronology in the early stages of my investigation. The Report suggested, convincingly, that mechanical failure or fault did not cause or contribute to the collision. Additionally, although environmental factors may have played a role in the course of events, it is evident that Ian was aware of the “Dust Devils”

immediately prior the collision and at the commencement of operations that day.

10. Ian flew his weight shift microlight trike at below-regulation height when joining the circuit, apparently to land his aircraft. This was uncharacteristic and seems to have prompted those who knew him to believe that Vu’s actions may have led to the behaviour: by moving about in the aircraft with the weight of his camera, likely unaware of the danger this may pose; or, by requesting certain angles and positions over the Aerodrome, to film

particular footage.

11, These conclusions are mere speculation by those deeply affected by the collision and the

deaths of Ian and Vu. There is no evidence to support that any of these events occurred.

12. Submissions on behalf of Nghi Tam Ta have endorsed a response to the CPU Report which states that failure to maintain sufficient speed when landing is the most likely technical

cause of the collision.

13. A pilot in command has the ultimate responsibility for decision-making in relation to their aircraft. On the balance of the evidence available to me at this time, pilot error directly

contributed to the incident.

14. During the Inquest, witnesses raised the notion that weight shift microlight aircraft are

over-represented in aircraft fatalities and should be investigated. The CPU Report was

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unable to identify the precise proportion of weight shift microlight trikes in aircraft

collisions resulting in fatalities.

When given the opportunity to comment, the HGFA and RAAus indicated that they had no concern about the relative safety of this type of aircraft nor AirBorne brand aircraft.

However, the HGFA and RAAus were supportive of more pilot training, particularly where the pilot seeks to operate weight shift microlight high-performance wings.

The expressed concerns about the relative safety of a particular aircraft and identifying the need for more training in order to fly that aircraft are comparable concepts. In raising these concems about the safety of weight shift microlight trikes, I do not intend to imply that an experienced pilot who has trained and continues to tram to a requisite competency and

recency could not operate it.

The ATSB was able to ascertain the rate of weight shift microlight trike collisions and fatalities in comparison with other general aviation aircraft. However, they did not have information to determine the proportion of the collisions and fatalities to each recreational aircraft being operated within the relevant period. Therefore, the comparative likelihood of collision and incident remains unclear and the information provided to me was not meaningful to the questions I posed. I am concerned that the funded investigator does not

have this information available.

Despite the lack of meaningful data available and anecdotal evidence to the contrary, HGFA asserted that they had no concerns about the comparative safety of weight shift microlight trikes generally. HGFA were able to indicate that ‘around 90% of weightshift aircraft’ are AirBorne brand and AirBorne did not represent a disproportionate number of

weight shift microlight trike accidents nor incidents.

RAAus’ response to CPU indicated that it was inappropriate to compare the proportionality of weight shift microlight trike fatalities and other recreational aircraft fatalities. RAAus stated that the ‘lack of rigid structure around the pilot’ compared to three axis aircraft was analogous to a motorcycle compared to a car. T was not provided with any statistical data in relation to the proportionality of weight shift microlight trike fatalities and other recreational aircraft fatalities. 1 was, once again, informed that the number of registered AirBome weightshift microlight trikes and number of accidents and incidents involving the

same brand were proportionate.

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20. A review of weightshift microlight trikes and the training and recency requirements to operate it seems necessary in light of: previous Coronial Recommendations; ATSB, HGFA

and RAAus responses to the CPU data; anecdotal evidence presented at Inquest.

21. In a public response to previous Coronial Recommendations,” then Minister for Infrastructure and Transport the Honourable Darren Chester MP informed me that the ATSB were instructed to prioritise investigations that have the potential to deliver the best safety outcomes for the travelling public’. He further informed me that the ATSB assists relevant sport and recreational aviation associations where resources permit. Such assistance may include aircraft accident and incident investigation training, as well as disseminating publications which include safety information and messages for pilots.

Mr Chester MP stated that the 2017 Budget increased ATSB’s funding over five years by

an additional 12 million dollars.

22. Coronial investigations have repeatedly highlighted under-resourcing as a key issue for organisations delegated the ATSB’s legislative duty to investigate civil aviation incidents.” These concerns have been raised again during the Coronial investigation into the deaths of Ian and Vu, as meaningful data about possible trends in aircraft fatalities was not able to be

obtained or recognised.

® Linked cases in relation to the Kinglake Gyrocopter Crash: COR 2013 5897 and COR 2013 5898.

%6 Civil aviation incidents arc any incidents that do not invelye military aircraft.

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RECOMMENDATIONS

Pursuant to section 72(2) of the Coroners Act 2008, | make the following recommendation(s)

connected with the death:

L.

In the interests of public health and safety and with the aim of preventing like deaths, Trecommend that the Australian Transport Safety Bureau undertake an investigation to determine the proportion of weight shift microlight trikes involved in accidents and

incidents compared to other recreational aircraft; and

In the interests of public health and safety and with the aim of preventing like deaths, Irecommend that the Australian Transport Safety Bureau provide the results of their investigation to the Civil Aviation Safety Authority so that they may consider the viability

of stronger recency requirements for pilots operating weight shift microlight trikes.

In the interests of public health and safety and with the aim of preventing like deaths, I recommend that the Secretary of the Department of Infrastructure, Regional Development and Cities consider implementing measures to ensure increased available resources for organisations delegated the Australian Transport Safety Bureau’s legislative responsibility

to investigate civil aviation incidents.

In the interests of public health and safety and with the aim of preventing like deaths, I recommend that the Secretary of the Department of Infrastructure, Regional Development and Cities consider implementing measures to ensure the Australian Transport Safety

Bureau directly investigates ail civil aviation incidents resulting in fatality.

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FINDINGS

I find that the identity of the deceased is Ian Cook bom 3 January 1956 and his death

occurred on 13 March 2016 at Yarrawonga in the vicinity of Yarrawonga Airport.

AND I further find that the death of Ian Cook, pilot of aircraft Airborne Edge Trike XT912 Registration 32-8112 occurred at the same time as his passenger, Quoc Huong Vu, when his

aircraft crashed into terrain.

I find that the deaths of Ian Cook and Quoc Huong Vu occurred in the context of an event

being held at the Yarrawonga Airport for the Amazing Race Vietnam.

AND I find that Amazing Race Vietnam representatives and Mr McLean organised the event

by way of an informal arrangement without terms of agreement enshrined in a contract.

AND I find that I am unable to be definitive in relation to the nature of the agreement and

any causal relationship to the aircraft collision into terrain.

The weight of the evidence supports findings that environmental factors contributed to the cause of the incident to the extent that the presence of convective turbulence adversely influenced Jan Cook’s ability to control his aircraft at a time where I find that it was likely

he was flying too low in the presence of these environmental factors.

AND I further find that it is also likely that Jan Cook failed to maintain sufficient speed when attempting to land his aircraft and that this contributing factor is the most likely cause of the collision into terrain.

Consequentially, I find that Ian Cook, pilot of aircraft Airborne Edge Trike XT912 Registration 32-8112, contributed to his own death and to the death of Quoc Huong Vu.

. [accept and adopt the medical cause of death as ascribed by Dr Matthew Lynch and I find

that Ian Cook died from injuries sustained in a light plane incident.

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To enable compliance with section 73(1) of the Coroners Act 2008 (Vic), I direct that the Findings

will be published on the internet.

I direct that a copy of this Finding be provided to the following:

Aukje Cook

Nghi Tam Ta (by their legal representative)

Dang Vu (by their legal representative)

Hai Vu (by their legal representative)

AirBorne WindSports Pty Ltd Chief Executive Officer Rick Duncan

Recreational Aviation Australia Chief Executive Officer Michael Linke

Hang Gliding Federation of Australia General and Operations Manager Brett Coupland Australian Transport Safety Bureau Chief Commissioner Greg Hood

Civil Aviation Safety Authority Chief Executive Officer and Director of Aviation Safety Shane Carmody

Department of Infrastructure, Regional Development and Cities Secretary Steven Kennedy (PSM) Leading Senior Constable Janis McMillan

Signature:

AUDREY JAMIESON CORONER Date: 23 October 2018

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Coroners Court of Victoria

COR 2016 1157

CORONIAL INVESTIGATION INTO THE DEATH OF IAN COOK

ANNEXURE ONE CPU REPORT

Coroners Court of Victoria

Coroners Prevention Unit Advice

Attention: Coroner Audrey Jamieson

From: Jeremy Dwyer

Date: 29 June 2018

Re: Fatal crash risk for weight-shift microlight trike aircraft Case: 20161157 - lan COOK

20161158 - Quoc Huong VU Keywords: weight shift microlight trike, light sport aircraft

1. Background 1.1 Coroner's referral

Coroner Audrey Jamieson is investigating the 13 March 2016 deaths of pilot ian Cook and passenger Quoc Huong Vu. Briefly, the deaths occurred when the Airborne XT-912 Arrow aircraft lan Cook was piloting (a weight shift microlight trike} collided with the ground at Yarrawonga Airfield in Victoria.

Coroner Jamieson heard evidence at inquest regarding the context and circumstances of the fatal collision. This included evidence that the type of aircraft involved in the collision has also been involved in other fatal callisions and these were related to known design issues with the aircraft. Following the inquest hearing, Coroner Jamieson requested that the CPU provide advice on the following:

• Whether any empirical evidence supports the anecdotal concern that weight shift microlight trikes in general - and Airborne-model aircraft in particular - are over-represented among fatal aircraft collisions.

• Whether there have been any Coronial recommendations in Victoria or other jurisdictions regarding to this type of aircraft.

1.2 Inquest evidence regarding Airborne aircraft At the inquest hearing on 14 November 2017, witness Lawrence Thompson stated (p.27 of the transcript, lines 19-26) that:

Whenever there's been a fatal accident and there's been an Airborne aircraft with the arrow wing on it, um, different pilots you sit around with and talk about and they seem to think that there is an issue with it and they stall if you get too flow on air speed. But as | said before, I'm not an aeronautical engineer but most of the recent fatalities have been in that particular aircraft, the combination, that i know of.

Witness Peter McLean also asserted that the type of aircraft involved in the fatal crash can become unstable at iow speed (p.53 lines 28-31), and explained (page 62 lines 22-25) about the risk of incipient spin when operating it:

20161157 and 20161158 COURTS IN CONFIDENCE 1/14

Urn, my personal opinion it's a design flaw with the Airborne Arrow. | had many people ring me in the early days of the Arrow who were scared of the wing.

He also made reference to "resonance built up in the wing" having led to a number of Airborne Arrow aircraft “flipping” (page 72 lines 5-7).

1.3 Terminology

The terminology used to describe aircraft such as the Airborne XT-912 Arrow can be somewhat confusing, and appears to be applied inconsistently even by the bodies responsible for regulating these aircraft, including the Civil Aviation Safety Authority {CASA),’ the Australian Transport Safety Bureau (ATSB],? Recreational Aviation Australia (RAAus)]? and the Hang Gliding Federation of Australia (HGFA).* Crossreferencing between material from these organisations, the CPU has adopted the following terms for this memorandum:

• Light sport aircraft, a general umbrella term used by CASA to designate “small, simple to operate, low performance aircraft’.> Criteria for being a light sport aircraft include maximum seating capacity of two people. must be propellerdriven if powered, and maximum take-off weight of 600kg. The term “light sport aircraft” can be thought of as encompassing those powered aircraft idiomatically described as “ultralight” and “microlight", as well as balloons and gliders and other unpowered aircraft. CASA also uses the term “light recreational aircraft’, which appears to be a synonym for “light sport aircraft’.

• Weight shift microlight, a type of light sport aircraft driven by a propeller, where the pilot steers the aircraft by shifting his or her weight with respect to the wing (rather than using three-axis control]. The Airborne XT-912 Arrow is a weight shift microlight aircraft. In some CASA material, a weight shift microlight is referred to as a “weight shift controlled aeroplane”.®

• Trike, a type of light sport aircraft with its base confiqured like a tricycle; that is, with one wheel at the front and two wheels at the rear. The Airborne XT-912 Arrow is a weight shift microlight trike.

1 CASA is responsible for regulating civil aviation in Australia.

2 The ATSB is responsible for investigating civil aviation incidents including collisions in Australia, although it does not investigate all such incidents because of resourcing issues.

3. CASA sets the regulations for ali civil aviation in Australia, but for sports aviation, the regulations are applied and enforced by partner organisations known as “selfadministering organisations” or “Recreational Aviation Administration Organisations” (RAAQs}. CASA does not define “sports aviation” very clearly, perhaps because it encompasses so many activities; these include flying for enjoyment, in competitions, for parachuting, and so on, usually using small and simple aircraft. RA-Aus is one such selfadministering organisation; it is responsible for training and certifying pilots and flying instructors to operate certain types of light sport aircraft, and registering these aircraft.

4 The HGFA is also a self-administering organisation and has similar responsibilities to RAAus.

5 Civil Aviation Safety Authority, “Light sport aircraft certificate of airworthiness", Advisory Circular AC 21-41(0), September 2005, p.2.

6 = See for example Civil Aviation Safety Authority, “Civil Aviation Order 95.32 (Exemption from the provisions of the Civil Aviation Regulations 1988 — weight shift controffed aeroplanes and powered parachutes} Instrument 2015”, 13 August 2015.

20161157 and 20161158 COURTS IN CONFIDENCE 2/14

• Fixed wing microlight, a type of light sport aircraft driven by a propeller, where the pilot steers the aircraft using three-axis control (rudders and ailerons and elevators).

• Gyroplane, a type of light sport aircraft where thrust is provided by a propeller and lift is generated by an unpowered rotor that freely rotates in response to the forward thrust as air moves over the rotor disc. Gyroplanes (also known as gyrocopters) can look fike helicopters, but a helicopter’s rotor is driven by an engine whereas the gyrocopter’s rotor is not. Helicopters can ascend vertically and hover but a gyroplane cannot.

2. Fatal incidents involving weight shift microlight trikes in Australia

In preparing .to address Coroner Jamieson’s questions, the CPU used a range of databases to identify all fatal collisions in Australia involving weight shift microlight trikes. A “collision” was defined as an incident where a weight shift microlight trike struck anything else: the ground, a tree, a power line, a building, another aircraft, or soon. Nor-collision deaths were excluded; for example where a person was struck by a propeller while the aircraft was grounded.

The following is an overview of the CPU's case identification strategy, issues encountered, and the results of the database searches.

2.1 Search of National Aviation Occurrence Database (NAOD)

Section 18 of the 7ransport Safety Investigation Act 7003 (Cwthj requires aircraft incidents resulting in death to be reported to the ATSB. The ATSB maintains the NAOD, which is accessible via http://www.atsb.gov.au/avdata/naod/ and contains information on ail aircraft accidents and incidents reported to the ATSB between 1 July 2003 and the present.

On 11 June 2018, the CPU searched the NAOD to identify alf Australian aircraft occurrences meeting the following criteria:

• Date range = 1 July 2003 to 31 December 2017

• Aircraft and Airspace: Aircraft Type = Powered Weight Shift

• Injury Level = Fatal

According to initial search results, there were 37 fatal aviation occurrences involving powered weight shift aircraft in Australia between 1 January 2000 to 31 December 2017, in which 44 deaths occurred. When the CPU reviewed descriptions of the fatal occurrences, the aircraft involved were established to be as follows:

• 19 fatal occurrences involved weight shift microlight trikes.

• Nine involved unpowered hang-gliders.

• Four involved powered paragliders.

• Four involved unpowered paragliders.

• One involved a powered parachute.

2.2 Search of National Coronial Information System (NCIS)

The NCIS is an online database accessible via <https;//www.ncis.org.au/>, which contains coded information and text-searchable Coronial dacuments (findings, police reports, autopsy and toxicology reports} for deaths investigated by Coroners in Australia. NCIS data spans deaths reported between 1 July 2000 and the present for all Australian Coronial jurisdictions except Queensiand {available data for Queensland spans from t January 2001). The CPU understands that a death resulting

20161157 and 20161158 COURTS IN CONFIDENCE 3/14

from an aircraft collision would be required to be reported to the Coroner in every Australian Coronial jurisdiction.

The CPU was able to search and access NCIS information for all Victorian Coronial matters both open and closed; however access restrictions meant that the CPU could only search and access closed case information from other Australian Coronial jurisdictions.

Three separate searches were executed using the NCIS Query Design screen to try to identify relevant deaths caused by weight shift microlight trike collisions. In each search the case status was specified as “Closed” (for all jurisdictions except Victoria, where there was no need to specify case status) and intent type on completion as “Unintentional”. The parameters of the three searches were:

• Object or Substance Producing Injury Category 1 = “Aircraft Or Means Of Air Transport", Category 2 = “Powered Aircraft or Means of Air Transport”, Category 3 = “Ultralight Powered Aircraft”.

• Report type = “Finding”, Text in Reports = “weight shift” or “weight-shift’ or “microlight” or “micro-light” or “ultralight” or “ultratight” or “trike”.

• Report type = “Finding”, Text in Reports = “Airborne” and “Arrow”.

The search results, when combined, yielded a total of 175 unique cases. The Coronial documents for each were reviewed to establish whether it met the inclusion criteria.

The CPU confirmed that 19 deaths across 16 fatal incidents were the result of weight shift microlight trike collisions. The remaining 156 deaths comprised: ‘

• 78 deaths resulting from collisions involving known light sport aircraft that were not weight shift microlight trikes (they were mainly gyroplanes and fixed wing microlights).

• 27 deaths resulting from collisions involving light sport aircraft where there was insufficient evidence to establish whether they were weight shift microlight trikes or another type of light sport aircraft.

• 26 deaths resulting from collisions involving aircraft that were positively confirmed not to be light sport aircraft.

• 25 deaths resulting from collisions involving aircraft where there was insufficient evidence to establish whether they were light sport aircraft.

2.3 Search of CPU Database

The CPU maintains an internal database [‘the CPU database’) that stores coded information about all deaths of deaths reported to and investigated by Victorian Coroners between 1 January 2000 and the present.

On 5 February 2018, the CPU searched its database to identify all deaths between 1 January 2000 and 5 February 2018 where the deceased's intent was classified as unintentional and the incident type was Classified as involving an aircraft. This search yielded 157 deaths, the circumstances of which were reviewed to establish whether each met the inclusion criteria. Through this review process the CPU identified 10 relevant deaths which occurred in eight fatal incidents; however there were further deaths where the CPU could not confirm the aircraft type involved.

2.4 Reconciliation between data sources

The CPU first reconciled the results of the CPU database search with the Victorian results of the NCIS search to produce a list of relevant Victorian cases; the process was straightforward and does not require further description here.

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The CPU then set about reconciling the NCIS and NAOD data to produce a master list of Australian fatal crashes involving weight shift microlight trikes. The reconciliation involved matching two pieces of information - date and location of fatal incident — that were commen to both datasets. Where a fatal incident identified in one dataset could not be matched with a corresponding fatal incident in the other dataset, the CPU conducted further searches with expanded parameters as required. For example:

• For a death identified on the NCIS where there was no immediately obvious NAOD match, the CPU searched the NAOD for ali fatal incidents regardless of coded aircraft type which occurred within two months either side of the death, and reviewed these to identify any likely match.

• For a fatal incident identified on the NAOD where there was no immediately obvious NCIS match, the CPU searched the NCIS for all deaths involving Aircraft Or Means Of Air Transport regardiess of aircraft type which occurred within two months either side of the fatal incident, and reviewed these to identify any likely match.

in theory, there should have been perfect concordance between the NCIS and NAOD data, as legislation requires that a fatal incident causally connected to an aircraft collision must be reported both to the ATSB and to the Coroner in the jurisdiction where it occurred. However, in practice the reconciliation process revealed some discrepancies between the data. Leaving aside the fatal incidents that occurred before 1 July 2003 (when ATSB data collection began):

• There were three deaths identified on the NCIS for which no NAOD fatal incident match could be found. The CPU was uncertain as to the explanation for this.

• There were four fatal incidents identified on the NAOD for which no corresponding deaths could be found on the NCIS. A potential explanation might be that the deaths were still under investigation (none were in Victoria) and therefore the CPU could not access information about them.

2.5 Results

The CPU identified 26 fatal incidents, seven of which involved two deaths each {including the incident in which lan Cook and Quac Huong Vu died}. Table 1 shows the year and state of each incident, and the type of weight shift microlight trike as described in the Coronial material and/or any other corroborating material (such as ATSB reports) that the CPU could access. Airborne brand weight shift microlight trikes were involved in 20 of the 26 fatal incidents.

Table 1: Fatal incidents resulting from weight shift microlight trike collisions, Australia 2000-2017.

Incident Year State Deaths Weight shift microlight trike

| 2000 Victoria One Pegasus

2 2001 Victoria One Airborne Edge X 582

3 2001 Northern Territory One Pegasus

4 2002 Victoria One Not specified

5 2003 New South Wales Two Airborne Edge

6 2004 New South Wales One Airborne Australia Trike

7 2005 Northern Territory One Airborne Edge X

8 2005 Queensland One Airborne Wind Sports Edge Weight

{Table 1 continued over page}

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(Table 1 continued from previous page)

incident Year State Deaths Weight shift microlight trike 92007 Queensland Two Solar W/ings Q2 :

10 2008 Victoria One Airborne Australia Edge

1 2009 New South Wales One Airborne Australia Trike

12 2009 Victoria One Airborne Edge Trike

13 2009 Northern Territory One Redback

14 2009 Western Australia One Airborne Edge

15 2009 Victoria Two Pipistrel Spider

16 2010 New South Wales One Airborne Windsports Edge X

17 2011 Tasmania One Airborne Edge X Classic

18 2011 New South Wales One Airborne XT 912

19 2012 New South Wales Two Airborne Australia Edge

20 2012 New South Wales One Airborne Australia Edge

21 2013 Northern Territory One Airborne Edge X

22 2014 Victoria One Airborne Australia Trike

23 2015 New South Wales Two Airborne Australia Edge

24 2015 New South Wafles One Airborne Australia Edge

25 2016 Victoria Two Airborne Edge

26 2016 Queensland Two Airborne XT 912

Appendix 1 to this memorandum contains an expanded version of Table 1 that includes the dates of each incident and (where known) the NCIS and NAOD reference numbers.

3. Risk of fatal collision

While Airborne brand aircraft accounted for the majority of fatal weight shift microlight trike collisions, evaluating the relative risk of their involvement compared to other brands requires further information, for example:

• Data about the composition by brand of the Australian weight shift microlight trike fleet over time, would enable the CPU to establish how Airborne aircraft are represented in fatal collisions compared to their representation in the Australian fleet.

• Data about annual fogged time in flight by weight shift microlight trike brand would enable the CPU to compare Airborne and other brand aircraft involvement in fatal collisions per 100,000 flying hours.

For the more general question of weight shift microlight trike involvement versus involvement of other types of aircraft in fatal collisions, similar data on frequency of fatal collisions, Australian aircraft fleet composition and logged flight time by aircraft type would be required.

The CPU does not have access to data such as that described immediately above, which would enable it to answer Coroner Jamieson’s questions about whether weight shift microlight trikes in general - and Airborne-model aircraft in particular - are overrepresented among fatal aircraft collision. Therefore, at the direction of Coroner Jamieson, the CPU wrote to the ATSB (the organisation legislatively responsible for investigating civil aviation incidents) as well as the HGFA and RA-Aus (the two sel-administering organisations to which CASA has delegated responsibility for administering regulation of weight shift microlight trikes and investigating

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incidents involving these aircraft], to seek their assistance. The following questions were asked of all three organisations:

• Does your organisation hold data on the types of aircraft involved in the accidents and incidents it investigates?

• — If your organisation holds such data, does the data confirm or refute either of the following: {a) that weight shift controlled aircraft generally are involved in disproportionately more accidents and incidents that other types of aircraft; and/or (b) that Airborne brand aircraft are involved in disproportionately more accidents and incidents that other weight shift contralled aircraft?

• Does your organisation hold any concerns about weight shift controlled aircraft generally, or Airborne brand aircraft specifically, being | involved in disproportionately more accidents and incidents than other aircraft?

The following is a brief summary of the three organisations’ responses to these three questions; copies of the complete responses have been provided together with this memorandum.

3.1 Response of ATSB

The ATSB response was dated 10 May 2018 and was signed by Chief Commissioner and Chief Executive Officer Greg Hood (Attachment A).

Greg Hood confirmed that the ATSB gathers a range of data on aircraft accidents and incidents. He directed the CPU to an ATSB publication titled Aviation Occurrence Statistics 2007 to 2016 {ATSB document reference AR-2017-104 dated 15 January 2018}, which summarised this data for a 10-year period. Greg Hood specifically directed the CPU to sections of this document showing that recreational aviation entailed higher accident rates than general aviation or air transport operations, but that weight shift aircraft had the lowest accident rates among recreational aircraft.

Greg Hood indicated that the ATSB did not have data to establish whether Airborne brand aircraft were disproportionately involved in weight shift controlled aircraft accidents. He attached a spreadsheet of occurrences involving Airborne aircraft extracted from the NAOD, however this spreadsheet does not assist in addressing Coroner Jamieson’s questions.

The CPU has included this spreadsheet in Attachment A, however has not included the ATSB Aviation Occurrence Statistics: 2007 to 2016 because it is a publicly available document’ and is lengthy (87 pages).

3.2 Response of HGFA

The HGFA response was provided on 16 April 2018 and was signed by Chief Operating Officer and Operations Manager Brett Coupland {Attachment B).

Brett Coupland indicated that the HGFA holds data on the aircraft accidents and incidents it investigates. This data does not support a conciusion that weight shift controlled aircraft generally are involved in disproportionately more accidents and incidents than other aircraft types; nor that Airborne brand aircraft are involved in disproportionately more accidents and incidents that other weight shift controlled aircraft. In addressing this second point, he noted that approximately 90% of alf weight shift controlled aircraft registered in Australia are Airborne aircraft.

7 Australian Transport Safety Bureau, Avation’ Occurrence Statistics 2007 to 2016, 15 January 2018, <https:/Amww.atsb.gov.au/publications/20 17/ar-2017-104/>, accessed 27 June 2018.

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Brett Coupland further described the resuits of consuitation he undertook with representatives of HGFA and RAAus about potential concerns with the Airborne Arrow wing. He wrote:

The overwhelming consensus was that the Arrow wing is a high performance wing, tuned for high speed. Ali were of the opinion that pilots have not been maintaining a sufficient speed for this wing, whilst in the circuit and as such there is a possibility of stalling or spinning the wing, when turning onto base or final.

We believe that a pilot should receive some familiarization flights, with an instructor before flying any high performance Weightshiit Microlight wing.

3.3 Response of RAAus

The RAAus response was provided on 17 April 2018 and was signed by Chief Executive Officer Michael Linke {Attachment C).

Michael Linke indicated that RAAUs maintains an Occurrence Management System that contains data on aircraft accidents and incidents. Regarding the question of whether weight shift controlled aircraft generaily are involved in disproportionately more accidents and incidents than other types of aircraft, Michael Linke explained that he did not believe it is appropriate to compare accident rates between weight shift and three axis aircraft because the two types of aircraft are used differently and present different risks of injury and death in accident.

Michael Linke stated that according to the data held by RAAus, 18 weight shift accidents and incidents occurred within a sample period, and 16 of these involved Airborne aircraft. He wrote that this is consistent with the proportion of Airborne brand aircraft registered in the RAAus fleet; they account for 78% of all registered weight shift aircraft. Michael Linke advised in conciusion that. the RAAus has no concerns about weight shift aircraft generally, or Airborne aircraft in particular.

4. Coronial recommendations and comments on weight shift microlights

Among the 26 fatal incidents involving powered weight shift microlight trikes which were identified in Section 2 of this memorandum, the CPU was able to access Coronial material via the NCIS for 15 fatal incidents. The CPU reviewed these 15 findings (or sets of findings in multi-death fatalities) to establish whether any Coroner had made comments or recommendations regarding weight shift microlight trikes.

The following were identified.

4. lan e@ OLD.2005.2594

Coroner Thomas Braes investigated this death, which occurred when the wing tip of an Airborne Wind Sports Edge weight shift controlled microlight trike separated from the aircraft during flight leading to a crash which killed the pilot.

Coroner Braes considered a large number of issues in his investigation {including inquest) into the death; his finding is a substantial 108 pages in length. Of potential relevance to Coroner Jamieson’s investigation, Coroner Braes considered at length the issue that the ATSB does not involve all fatal aircraft crashes, and instead relies on seif-administering organisatians such as the RAAus and HGFA to conduct most investigations particularly of light and microlight aircraft. He expressed a concern that these organisations are not as weil equipped and skilled as the ATSB for this investigative work, and that they are generally under-resourced:

Unfortunately it appears to me that the attitude that the recreation aviation industry is less deserving of resources permeates throughout the system so

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that regulatory vacuums exist in the areas of regulation, inspection, investigation, and enforcement. [p.62]

Coroner Braes commented:

Where an incident occurs that invoives the crash of an aircraft it would seem sensible that ali regulators and investigators be involved and that either a joint preliminary investigation be undertaken or that a lead investigator be appointed to conduct the immediate inquiry with a view of then determining whether or not other investigators and/or regulators would become invoived in the inquiry. A formal identifiable approach to such matters should be in place. so that tragedies such as [the deceased's} death and those of many others in the recreation aviation industry do nat go unnoticed even when there may be threads of commonality and concern which link them. [p.69]

Coroner Braes’s other major concern was with the number of fatal incident involving Airborne Edge aircraft. He described several such incidents, and with reference to evidence before him at inquest, he noted that:

It is apparent [...] that there have been a number of concerns about the Edge aircraft and generally about the way that the recreation aviation industry has.been controlled. [p.7 1]

He further wrote:

it is my recommendation that CASA review the registration of the AirBorne Edge aircraft and that the ATSB identify and investigate all fatalities and serious accidents involving the AirBorne Edge aircraft. There is sufficient nexus between the incidents to warrant a review of the AirBorne Edge aircraft. [p.72]

Coroner Braes’ finding contained 58 formal recammendations, the most relevant of which are the following:

1. CASA should endorse only one delegate to regulate weightshift aviation.

4. CASA should review the operations and funding arrangements of all RAAO’s ta ensure the level of funding is commensurate with their activities and the responsibilities delegated to them.

5. CASA should review the operation of RA-AUS and HGFA to determine the extent of their respective authority and to standardise procedures.

6. CASA should review the suitability of the AirBorne Edge weight shift aircraft for registration under CAO 95.32.

7. If the recreation aviation industry is to continue to have numerous delegated authorities those organisations and CASA should develop policies for pilot training, aircraft maintenance, the transfer of aircraft, the licensing of flying instructors and inspectors, the regulation of airports, aircraft landing areas, flight training facilities and all other aspects of the recreation aviation industry which are common to the delegated authorities to ensure certainty within the sector and a high level of safety consciousness.

23. ATSB should investigate all aircraft crashes resulting in death.

26. | repeat the recommendation made by Coroner Morahan on 28th February 2002 in the inquest held at the Coroners Court at Cessnock concerning the death of Gordon Clifton that: “| recommend that the

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Civil Aviation Safety Authority of Australia and Air Transport Safety Board consider whether it is an appropriate time for their organisation to become more involved in the operation of ultra light aircraft in Australia”.

55. CASA and the ATSB should investigate ail known AirBorne Edge microlight crashes to determine whether there is an engineering or design fauit in the wing and if thought necessary to require the manufacturer to recall all of the airframes still in use for inspection and alteration.

4.2 Victorian case VIC.2009.3764

Coroner John Olle investigated this death, which resulted from an Airborne Edge weight shift microlight trike collision. The death was investigated by RAAus, and in his finding Coroner Olle noted the issue that:

[...] CASA has given RAAOs responsibility for the regulation of recreational aviation without commensurate power to enforce their requlations.

Therefore, there are few if any consequences for breaching the RAAO manuals. [p.3]

He further noted concerns had been expressed that:

Recreational aviation continues to be a low priarity for CASA and the ATSB despite a high number of deaths and an almost incomprehensible legal framework; and despite the high number of deaths in the recreational aviation industry, there is a lack of quality data and information to inform change and therefore the need for change is not being recognised and potential lessons are not learned. Therefore even relatively low-cost, high reward solutions are not pursued. [p.3]

Coroner Olle sought responses fram CASA, the ATSB, RAAus and HGFA regarding these concerns, and outlined their responses in his finding. Coroner Olle did not make any recommendations.

4.3 Northern Territory case NT.2013.241

Coroner Greg Cavanagh investigated this death, which occurred when the pilot Stalled his Airborne Edge XT-912 aircraft and crashed. Coroner Cavanagh did not make any recommendations, but noted generally that: :

Ultralight accidents and/or deaths are unfortunately not rare. The structure of an ultralight is such that if contro! is lost it is difficult to recover and there is not a great deal of protection for the pilot and/or any passenger. This danger is significantly increased the lower the altitude at the time that control is lost. [p.28]

5. Other potentially relevant Coronial recommendations and comments

in the course of reviewing Coronial findings nationally on the NCIS for the case identification process described in section 2.2 of this memorandum, the CPU identified recommendations that were not made specifically with respect to weight shift microlight aircraft, but were more generally relevant to safety of light sport aircraft. These recommendations are outlined below.

5.1 New South Wales case NSW.2001.2175

The death occurred as the result of a collision involving an unspecified ultralight aircraft. A representative of the Australian Ultralight Federation attended the scene to assist with the investigation. Coroner Michael Morahan subsequently held an inquest

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into the death. Unfortunately, details are not available regarding what was examined at inquest. Coroner Morahan recommended:

| recommend that the Civil Aviation Safety Authority of Australia and Air Transport Safety Board consider whether it is an appropriate time for their organisation to become more involved in the operation of Ultra Light Aircraft in Australia. [p. 1]

5.2 Queensland case OLD.2004.3597

The deceased was the pilot of a gyrocopter. in the finding, Coroner John Costello considered a range of issues relevant to how light sport aircraft deaths more broadly are investigated.

Coroner Costello was concerned that the death occurred while the pilot was engaged in paid employment and therefore should have been investigated by the Civil Aviation Safety Authority (CASA), however it was investigated by the relevant Recreational Aviation Administration Organisation (RAAQ} for gyrocopters instead, which was the Australian Sports Rotorcraft Association (ASRA]. Coroner Costello noted that ASRA was paid only around $15,000 to $20,000 per year for the functions it performed on behaif of CASA, and commented:

It might be observed that if CASA was required to take back the role currently performed by ASRA, in reality a consideration long overdue, it would cost multiples of the sum involved. It is ttue CASA has to contend with major issues with respect to (for example) passenger aircraft. On the other hand, it might be further observed that the commercial use of gyroplanes is a fact of life. Throughout Australia, there are hundreds of these craft operating on some basis. No basis was advanced for how the subject annual sum was derived at, or how it is allocated, State by State.

[p.4] Coroner Costelio made a number of recommendations, including the following:

That the reimbursement for functions carried out by ASRA on behalf of CASA under the Deed of Agreement that exists between the two organisations is totally inadequate to allow ASRA to properly administer the operations of gyroplanes within Australia. A minimum of $250,000 per annum is required to administer and ultimately regulate gyroplanes in both Sport and Recreation, and Aerial Work operations. [p.4]

5.3 Queensland case OLD.2011.967

The deceased was the pilot of a gyrocopter and was struck by its propeller blades during an engine test. Investigating Coroner John Lock noted that the ATSB did not investigate the death, despite having “primary legislative responsibility” for investigating aircraft incidents in Australia. CASA also did not investigate. Instead, the investigation was conducted by the relevant Recreational Aviation Administration Organisation (RAAQ) for gyrocopters, which was the Australian Sports Rotorcraft Association (ASRA}. The reasons ATSB and CASA gave for not investigating included resource constraints and the lack of a broader safety issue requiring scrutiny.

Coroner Lock expressed concern about the overall quality of the investigation into the death, and recommended:

1. CASA should review its expectations of what ASRA can achieve within the limited resources provided to them, with a view to either increasing their resources or taking back some of the responsibilities.

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2. if resources are increased the Federal Government should ensure CASA is funded so that ASRA's funding can be increased by not decreasing the funding to other RAAOs. [p.31]

5.4 Victorian cases VIC.2013.5633 and VIC.2013.5634

The light sports aircraft involved in these two deaths was a gyroplane. Investigating Coroner Audrey Jamieson examined a number of issues in the finding, including the relationship between CASA and the various RAAOs who investigate fatal crashes of light recreational aircraft. An issue in the case was the sub-optimal quality of the regulatory activities undertaken by ASRA, the RAAO for gyroplanes. Coroner Jamieson noted:

A recurring theme has related to ASRA's status as an almost entirely voluntary organisation, with limited funds to wield at improving operations to better ensure the compliance of its members. Additionally, the ATSB appears to have altbut relinquished its responsibility to investigate fatal incidents involving gyroplanes, and ASRA has stepped in - without any dedicated investigation funding - to assist police in this regard, despite having no obligation to do so under its Deed of Agreement with CASA, or indeed in its own constitution.

| note that the panel of an Aviation Safety Requiation Review, released in May 2014 as part of a ministerial review of aviation safety regulation, observed that there was minimal investigation by the ATSB of accidents in the sports and recreational sectors, due to resource limitations. With the growth in activity of sport and recreational aviation in Australia, the panel recommended that ‘The ATSB investigates as many fatal accidents in the sport and recreational aviation sector as its resources will allow’ [p.53]

Coroner Jamieson recommended, inter alia:

With the aim of preventing like deaths and improving the oversight of sporting aviation in Australia, | recommend that the Commonwealth Minister for Infrastructure and Transport commission a review of the funding made available to recreational aviation administration organisations through the Civil Aviation Safety Authority. [p.56]

.5 Victorian cases VIC.2016.1601 and VIC. 2016.1602

Coroner Phillip Byrne investigated these two deaths, which occurred in a fixed wing ultralight aircraft crash. The pilot in the death held a restricted licence as a flying instructor, and was engaged in flying activities contrary to the restrictions imposed.

One issue Coroner Byrne considered was how the relationship between CASA and RAAus and other RAAQs in achieving outcomes such as ensuring compliance with regulatory requirements and restrictions in light sport aircraft operation. Coroner Byrne concluded that:

In the final analysis, it would appear the reality is that no structured investigation of compliance is undertaken. Presumably, the assumption is that those whose operations are restricted will comply. [p.8]

Coroner Byrne commented:

! am satisfied RAAus has a strong commitment to the safety of its members and the public at large as demonstrated by a number of initiatives introduced designed to enhance its.commitment to safety. However, like most operations, funding is a perennial issue. in his report [the RAAus investigator] took the opportunity to discuss the issue of funding which he described as “the primary difficulty faced by RAAus" in seeking to fulfil its obligations under the arrangements with CASA. | must say that | was

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somewhat surprised to note that annual government funding of RAAus is a mere $100,000; on. any view a "shoestring budget" compared with that of

CASA.

[..] While again | make no formal recommendation on the issue of funding, when one considers the resources RAAus expends on investigations such as this, if the Australian Transport Safety Bureau (ATSB) received additional funding it could perhaps direct additional funding to RAAus who undertake investigations that may otherwise require input from ATSB. [p.9]

6. Further information

if any further information is required, or clarification regarding the contents of this memorandum, the CPU will be pleased to assist.

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Attachments Page 1 of 12

Attachments

Fatal crash risk for weight-shift microlight trike aircraft

Re: investigation into the deaths of Jan Cook COR 2016 1157 and Quoc Huong Vu COR 2016 1158

Material Pages

Letter dated 10 May 2018 from Greg Hood, Chief Executive Officer, Australian 2-8 Transport Safety Bureau (includes data attachment)

Letter received on 16 April 2018 from Brett Coupland, Chief Operating Officer and 9-10 Operations Manager, Hang Gliding Federation of Australia

Letter dated 17 April 2018 from Michael Linke, Chief Executive Officer, Recreational 11-12 Aviation Australia

Attachment A Page 2 of 12 Ba

Chief Commissioner

Our reference: ATSB 18/1 — €C2018/53 Contact: Patrick Hornby, 02 6274 8136

10 May 2018

Mr Jeremy Dwyer

Senior Case Investigator Coroners Prevention Unit Coroners Court of Victoria

Via email: jeremy.dwyer @coronerscourt.vic.gov.au

Dear Mr Dwyer

Thank you for your letter of 26 March 2018 in relation to the inquest into the deaths of Mr lan Cook and Mr Quoc Huong Vu. Responses to each of your questions are provided below:

1. Does the ATSB hold data on the types of aircraft involved in the accidents and incidents it investigates?

The ATSB maintains an occurrence database of all the accidents and incidents notified to the ATSB. It should be noted that the ATSB does not investigate all occurrences, In 2016-17 the ATSB received 17,046 aviation notifications of which 5,482 were classified as occurrences. The ATSB initiated 38 complex investigation and 113 short investigations.

In accordance with the Minister's Statement of Expectations for the ATSB, the ATSB gives the greatest priority to investigating occurrences that will deliver the best safety outcomes to the travelling public. Where there is a self-administering organisation such as a recreational aviation body that is oversighting the operation, the ATSB does not generally investigate.

A public version of the ATSB’s occurrence database is accessible online at: hito:/Awww.atsb.gov.au/avdata/

62 Northbourne Ave PO Box 967 Web www.atsb.gov.au Canberra ACT 2601 Civic Square Twitter @ATSBinfo Australia ACT 2608 Australia

ABN 55 061 156 887

Attachment A Page 3 of 12

If the ATSB holds such data, does the data confirm or refute either of the following: (a) that welght shift controlled aircraft generally are involved in disproportionately more accidents and incidents that other types of aircraft; and/or (b) that Airborne brand aircraft are involved in disproportionately more accidents and incidents that other weight shift controlled aircraft?

The ATSB publication ‘Aviation Occurrence Statistics: 2007 to 2016’ (AR-2017-104) (attached) provides information relevant to your queries. Figure 7, Table 25 and Figure 23 provide relevant statistical information.

With respect to the question about whether weight shift controlled aircraft generally are involved in disproportionately more accidents and incidents than other types of aircraft, the ATSB advises at page 11 of its publication:

Recreational aviation operation types had notably higher accident rates when compared to general aviation or air transport operations, While RAAus registered aeroplanes had the highest accident rate, general aviation, aerial agriculture and private/business and sport flights had higher accident rates than recreational gyrocopters and weight shift aircraft.

At page 46 of the publication the ATSB advises:

Weight shift activity, as reported by the HGFA and RAAus, increased by around 20 per cent over this period. On average, weight shift aircraft had the lowest accident rates of all types of recreational flying.

The ATSB is unable to comment on whether Airborne brand aircraft are involved in disproportionately more accidents and incidents than other weight shift controlled aircraft. The ATSB does not have a dataset with the hours flown by various makes

and models in order to be able to make the comparison.

To assist with statistical information on Airborne aircraft in the ATSB’s database, t have attached an excel spreadsheet with the occurrence data from 2005 to present.

Further searches can be done on the ATSB’s public database at

http: ,atsb.gov

3. Does the ATSB have any concerns about weight shift controlled aircraft generally, or

Airborne brand aircraft specifically, being involved in disproportionately more accidents and incidents than other aircraft?

As per the ATSB Aviation Occurrence Statistics publication, recreational aircraft (non VH- registered), including weight-shift aircraft, are among the riskier types of operations based on accident rates and fatal accident rates. This is recognised by the fact that the types of flying they are allowed to conduct is limited. The Civil Aviation Safety Authority and the recreational aviation authorities would be better placed to explain these restrictions and how they manage the risk.

Attachment A Page 4 of 12

I trust this response assists with the inquest. If you have any further questions, the ATSB’s Manager Legal and Governance, Mr Patrick Hornby, will make himself available to respond.

Mr Hormby’s number is (02) 6274 8136 and his email Patrick. Hornby @atsb.gov.au.

Chief Commissioner and Chief Executive Officer

A achments —~ aviation Occurrence Statistics: 2007 to 2016 (AR-2017-104)

Airborne Aircraft Occurrence Statistics 2005 to 2018.

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Attachment B Page 9 of 12

// Hang Gliding Federation of Australia

www.hgfa.asn.au

21 / 54 Commercial Place., Keilor East, Victoria 3033 Ph: (03) 9336 7155 Fax: (03) 9336 7177 email: office@hafa.asn.au

ABN: 15 276 389 269

Jeremy Dwyer

Senior Case Investigator

Coroners Prevention Unit.

<Via email: jeremy.dwyer@courts.vic.gov.au>

Dear Jeremy

Re: Coronial investigation into deaths of Ian Cook (20161157) and Quoc Huong Vu (20161158)

In response to the questions posed:

1/. Does the HGF A hold data on the types of aircraft involved in the accidents and incidents it investigates?

Yes.

2/. If the HGF A holds such data, does the data confirm or refute either of the following:

(a) that weight shift controlled aircraft generally are involved in disproportionately more accidents’ and incidents that other types of aircraft; and/or (b) that Airborne brand aircraft are involved in disproportionately more accidents and incidents that other weight shift controlled aircraft?

(a) No

(b) Yes. For the simple reason that around 90% of the weightshift aircraft registered in Australia, with the HGFA, are Airborne aircraft.

3/. Does the HGFA hold any concerns about weight shift controled aircraft generally, or Airborne brand aircraft specifically, being involved in disproportionately more accidents and incidents than other aircraft?

No.

Attachment B Page 10 of 12

‘Hang Gliding Federation of Australia

www.hgofa.asn.au

21 / 54 Commercial Place., Keilor East, Victoria 3033 Ph: (03) 9336 7155 Fax: (03) 9336 7177 email: office@hafa.asn.au

ABN: 15 276 389 269

We have checked the data available on HGFA registered Weightshift Microlight aircraft accidents and could not find a disproportionate indication of problems with Airborne aircraft, in particular with the Arrow wing.

We have had discussions with Jill Bailey (Recreational Aviation Australia), David Cookman and Peter McLean (both HGFA Weightshift Microlight Chief Flight Instructors) about possible concerns with the Arrow wing.

The overwhelming consensus was that the Arrow wing is a high performance wing, tuned for high speed. All were of the opinion that pilots have not been: maintaining a sufficient speed for this wing, whilst in the circuit and as such there is a possibility of stalling or spinning the wing, when turning onto base or final.

We believe that a pilot should receive some familiarization flights, with an instructor before flying any high performance Weightshift Microlight wing.

Note: For the purpose of answering the above questions, I/we have assumed that you have been specifically referring to Weightshift Microlight aircraft and have excluded Hang Gliders and Paragliders, which are also deemed to be weightshift aircraft.

Regards,

VA

Brett Coupland COO & Operations Manager Hang Gliding Federation of Australia.

Attachment ~~. Page 11 of 12

=~“

RECREATIONAL AVIATION AUSTRALIA ee Recreational Aviation Australia U3/1 Pirie Street PO Box 1265 ACN 40 070 931 645 Fyshwick ACT 2609 Tel: 02 6280 4700 17 April 2018 Fax: 02 6280 4775 WWW.1ad.ash.au Facebook: www.facebook.com/RecAviation Jeremy Dwyer

Senior Case Investigator

Coroners Prevention Unit

Coroners Court of Victoria

Via email: jeremy.dwyer@coronerscourt.vic.gov.au

Dear Jeremy,

| write in response to the letter from you dated 26 March 2018 requesting further information regarding the Coranial investigation into the deaths of lan Cook and Quoc Huong Vu. The information provided within this letter is based on 30 months of Occurrence Management System data between the dates of 1 October 2015 to 1 April 2018.

In response to your questions:

Does RAAus hold data on the types of aircraft involved in the accidents and incidents it . investigates?

Yes. The RAAus Occurrence Management System is a reporting system used to report,

investigate and analyse accident and incident data.

If RAAus holds such data, does the data confirm or refute either of the following: that weight shift controlled aircraft generally are involved in disproportionately more accidents and incidents than other types of aircraft;

Weightshift aircraft are flown in different flight regimes to that of 3 axis aircraft. The sport evolved from historical non-powered hang gliding. As a result, pilots flying weightshift aircraft are actually best compared to the difference between driving a car and riding a motorcycle. Some people prefer bikes, others cars. Within the RAAus community, some prefer 3 axis aircraft while others enjoy the open cockpit nature of weight shift aircraft.

As such the lack of rigid structure around the pilot in a weight shift aircraft can result in a higher injury or death rate in the event of an accident.

lt would be more accurate to say, weightshift aircraft accidents may result in a higher risk of injury or death due to the lack of crash protection inherent in the design of the aircraft. A risk known to all those who operate them, similar to motorcycles.

It is therefore not appropriate nor meaningful to compare the accident rates between RAAus 3 axis and weightshift aircraft.

and/or

Attachment C Page 12 of 12

that Airborne brand aircraft are involved in disproportionately more accidents and incidents than other weight shift controlled aircraft?

No.

RAAus has 236 weightshift aircraft registered of which 185 are Airborne aircraft. Our total aircraft fleet comprises some 3,250 aircraft. Airborne products account for 78% of all registered weightshiit aircraft within our fleet.

Within the sample period there were 18 weightshift accidents and incidents of which 16 were Airborne branded. RAAus considers this accident and incident.rate in weightshift aircraft proportionate to the total number of Airborne weightshift aircraft registered.

The data does not support the assertion that Airbarne aircraft are disproportionately involved in more accidents.

Does RAAus hold any concerns about weight shift controlled aircraft generally, or Airborne brand aircraft? No, Although, RAAus is on a continuous pathway of improvement for all types of aircraft. As an example, RAAus has a specific project in place working with the Hang Gliding Federation of Australia [HGFA). The focus of this project is to standardise the training provided by RAAus and HGFA Chief Flying Instructors by ensuring practical training is delivered and managed between the two organisations.

Yours Sincerely

7 a

Michael Linke

CEO