DOVEY AVIATION CONSULTING LIMITED v THE ATTORNEY GENERAL OF NEW ZEALAND [2021] NZHC 429

DOVEY AVIATION CONSULTING LIMITED v THE ATTORNEY GENERAL OF NEW ZEALAND [2021]NZHC 429 [9 March 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2018-485-972[2021] NZHC 429BETWEEN DOVEY AVIATION CONSULTINGLIMITEDPlaintiffAND THE ATTORNEY GENERAL OF NEWZEALANDFirst DefendantJAMES PATRICK RANKINSecond DefendantWARBIRDS OVER WANAKAAIRSHOWS LIMITEDThird DefendantEDWARD RICHARD MILES TAYLORFourth DefendantCHRISTOPHER CHARLES LEEFifth DefendantRONALD JOHN DAVID LAMONTSixth DefendantALLEN VICTOR HOGANSeventh DefendantHearing: 6 – 24 July 2020Counsel: C S Chapman for PlaintiffJ A MacGillivray and F W Biggs for First and Second DefendantsM S Anderson, J C Dymock and C L Barclay for Third to SeventhDefendantsJudgment: 9 March 2021JUDGMENT OF MALLON JIntroduction [1]Background facts [12]Uncontrolled airfields [12]Temporary Restricted Area [14]Airshow authorisation [16]The landing plate [19]The Airshow Organiser [23]The Display Director [26]The Military Display Director [28]The Assistant Display Director [31]Planning the display programme [33]Approval to display at a show [36]The written pilot briefing [39]Daily pilot briefings [43]The flying programme [44]Passive control of displays [48]The Tower and ADD support [55]The pre-positioning of the cherry pickers [59]The issue [59]Alleged duty [60]The evidence [64]Findings [81]Breach of duty [88]The substitution [103]The issue [103]Alleged duty [104]The evidence [110]Findings [133]Breach of duty [163]The pilot briefing on the centre grass [166]The issues [166]Alleged duty [168]The evidence [170]Findings [193]Breach of duty [219]What did "available" mean [223]The issue [223]Alleged duty [224]A default runway [229]The designated runways [235]Available at the pilot's discretion [267]A last-minute decision [272]Breach of duty [282]The choice of landing vector [287]The issue [287]Alleged duty [288]Landing preferences [291]Does the approved routine include the landing surface [297]Did the practice give rise to an expectation about the landing [305]Formation discipline [324]What if the leader has not advised the Tower [348]Discussion with ADD [353]Breach of duty [357]The radio call [362]The issue [362]Alleged duty [363]The evidence [367]Findings [384]Contributory negligence [429]Breach of duty [430]Mr Dovey's landing approach [432]The issue [432]Alleged pilot negligence [433]Civil Aviation Act [435]The evidence [439]Findings [477]Breach of pilot's duty [497]Summary of breaches [501]Intervening cause/contributory negligence [504]Quantum [511]Result [522]Appendix one – abbreviationsAppendix two – landing plateAppendix three – expertsIntroduction[1] The Warbirds over Wanaka airshow (WoW) is a popular event that takes placebiennially at Easter at the Wanaka Aerodrome. The show, which takes place over twodays, involves flying displays as well as ground activities. It showcases vintagemilitary aircraft as well as a large contingent of more contemporary civilian andNew Zealand Defence Force (NZDF) aircraft. The show was founded in 1988 bySir Tim Wallis but a charitable trust was set up to take over the running of the event inaround 2006. With participants, event personnel and crowds who pay to watch theshow, there are around 55,000 people at the airfield during the show. It is a majorevent for the area, with an estimated economic impact in excess of $20 million everytwo years.[2] The opening display at the 2018 event involved two Yak-3M aircraft. AYak-3M is a World War II military aircraft from the Russian theatre. The display wasto simulate a surprise airfield attack with two aircraft sweeping low over the airfieldat speed accompanied by pyrotechnics causing loud explosions and smoke and flames.The pair were to fly in formation and were to land on the airfield in front of the crowdsat the end of the display.[3] Mr Dovey was the pilot of the second of the Yaks. The display proceededwithout incident until the landing roll out, when the starboard wing of Mr Dovey'splane struck a cherry picker. This was one of two cherry pickers that, unbeknownst toMr Dovey, had been parked in the middle of the airfield in preparation for a laterdisplay. Fortunately, Mr Dovey was unharmed. However, his aircraft, which he ownsthrough his company (Dovey Aviation Consulting Ltd), sustained major damage. Thisclaim seeks to recover the costs of repairing his aircraft. Mr Dovey contends theorganisers of the event and those with responsibility in its operation were negligent.He contends there were a series of failures in the organisation and operation of theshow that led to the accident.[4] These alleged failures concern:(a) the early pre-positioning of the two cherry pickers in the middle of thecentre grass area, which was contrary to the risk assessment submittedto the Civil Aviation Authority (CAA) as part of its authorisationprocess, and the ambiguity in the published display programme aboutthe timing of the set-up for this display;(b) the late decision to open the show with the Yak-3M display insubstitution for the scheduled display (involving a USAF F-16 that hadbecome unavailable) without an adequate risk assessment of thatsubstitution;(c) the late decision by the organisers to make the centre grass available fortakeoff and landing without alerting pilots to the presence of the cherrypickers or having them cleared from the centre grass; and(d) the failure by those in the Tower, from which flight display directionwas provided, to respond to Mr Dovey's radio call that signalled hisintention to land on the centre grass, or to ensure adequate radioreception to enable that call to be clearly heard.[5] The defendants are in two groups. The first group relates to the RoyalNew Zealand Air Force's (RNZAF) involvement in the airshow:(a) the Attorney-General (the first defendant), representing the Ministry ofDefence, which is responsible for the acts and omissions of its officers(in this case, the second defendant); and(b) Squadron Leader (S/L) James Rankin (the second defendant), anRNZAF officer, who was the Military Display Director (MDD) in theTower at the time of the accident and was involved in the decision tomove the cherry pickers to the middle of the centre grass.[6] The second group are the WoW defendants:(a) the organiser of the event, Warbirds Over Wanaka Airshows Limited(WoW Ltd) (the third defendant);(b) Edward Taylor (the fourth defendant), the General Manager of WoWLtd, who had responsibility for overseeing the planning of the show andits operation;(c) Christopher Lee (the fifth defendant), the Flight Display Director(FDD) (also referred to as the Display Director (DD)), who wasinvolved in making the centre grass available and in approving thesubstitution of the Yak-3Ms for the opening display, and who was alsoin the Tower at the time of the accident;(d) John Lamont (the sixth defendant), the Flying Display Planner (FDP),who was involved in the decision to substitute the Yak-3Ms for theopening display; and(e) Allen Hogan (the seventh defendant), the Assistant Display Director(ADD), who checked the runways prior to the commencement of theshow and was also in the Tower at the time of the accident.[7] Although the claim was brought against individuals as well as the entities withresponsibility for them, Mr Dovey through his counsel advised during closingsubmissions that he was content for the Court to determine the liability of theAttorney-General and WoW Ltd only.1 I proceed accordingly.[8] The defendants largely do not challenge that S/L Rankin and the WoWdefendants owed a duty of care to Mr Dovey. They do take issue with the scope ofthat duty as alleged. They say they acted with reasonable care in putting in place thesubstituted display, opening up the centre grass, and in providing display directionfrom the Tower. They say that Mr Dovey was responsible for the accident principallybecause:2(a) Mr Dovey should have followed his leader and landed on the sealedrunway, as practised and briefed, and should not have landed on thecentre grass without express permission to do so, which they say he didnot have;(b) Mr Dovey did not respond to radio calls that indicated the Towerexpected him to land on the seal and did not ensure that his radio callalerting the Tower to his intention to land on the centre grass had beenheard; and(c) Mr Dovey used a landing technique that meant he could not check thelanding area was clear in breach of his responsibility as pilot-in-command and did not alert the defendants to his inability to dischargethis responsibility.1 It was accepted that the Attorney-General and WoW Ltd have responsibility for any liability of theindividuals and determining individual responsibility and entering judgment for that responsibilitywould serve no useful purpose in the circumstances. This is without prejudice to the parties'respective position on costs.2 The WoW defendants raise additional issues but, as will be discussed, these were without meritand irrelevant.[9] The defendants say that at the most their actions provided no more than anopportunity for the accident to happen and Mr Dovey's actions were the effective andproximate cause. Alternatively, they say Mr Dovey was contributorily negligent to theextent that most of the loss should be apportioned to him. The WoW defendants alsocontest the measure of loss to be adopted.[10] The plaintiff raises a further issue about whether display direction at an airshowamounts to providing an "air traffic service" (ATS) in breach of the Civil AviationRules (CAR). In the end, this was not pressed. I consider the plaintiff was right notto press it because this civil claim for damages is not the appropriate vehicle for theissue to be considered and, as the plaintiff accepts, it does not require resolution in thiscontext. The issue is one for the Civil Aviation Authority (CAA) in the first instanceand, potentially, judicial review or declaratory relief in an appropriate context withinput from the CAA.3 I do not consider the issue further.[11] Attached as Appendix one is a list of abbreviations used in this judgment.Background factsUncontrolled airfields[12] The airspace at airfields or aerodromes around New Zealand may be controlledor uncontrolled. A controlled airspace means that an "air traffic control service"(ATCS) is provided to control flights in the defined dimensions of the airspace.4 Anuncontrolled airspace does not have an ATCS. It may, but is not required to have,another form of ATS, for example an "aerodrome flight information service" (AFIS).5An AFIS provides advice and information but does not control the pilot. Movementin an uncontrolled airspace, including takeoff and landing, are at the pilot's discretion.There are rules the pilot is required to follow for the safe operation of their aircraft inthe airspace.63 The plaintiff did not claim that the CAA breached a tortious statutory duty owed to it.4 Civil Aviation Act 1990, s 2. A controlled flight is any flight that is provided with or required byrules made under the Act to make use of an ATCS.5 Section 2.6 Uncontrolled airspace in New Zealand is classified as Class G airspace. Civil Aviation Rules(CAR) Part 91 and the Aeronautical Information Publication (discussed below) specify rules thatthe pilot must follow for the safe operation of an aircraft in Class G airspace.[13] The Wanaka Aerodrome is an uncontrolled airfield. In common with themajority of uncontrolled airfields, ordinarily it does not have any ATS. It is operatedby the Queenstown Airport Corporation Ltd (QAC). Pursuant to arrangements withQAC, WoW Ltd operated the airport from midnight on Wednesday 28 March 2018until midnight on Monday 2 April 2018 for the WoW 2018 event.Temporary Restricted Area[14] The Director of Civil Aviation may specify that an airspace is a RestrictedArea.7 The Director specifies the type of activities for which a restricted area isdesignated and the administering authority responsible for the restricted activity. Themajor airshows in New Zealand are provided with a Temporary Restricted Area. Pilotsoperating in a restricted area must have the approval of the administering authority tooperate in the area and comply with conditions promulgated by the Director orimposed by the administering authority for operation within the area.8[15] The Wanaka Aerodrome was designated as a Temporary Restricted Area forthe WoW show and WoW Ltd was the administering authority for that area. Duringthe hours of the show and the practice for the show (which takes place on the precedingtwo days), the airfield was not available to aircraft without the permission of WoWLtd except in the event of an emergency. Outside the show and practice days, WoWLtd contracted with Airways Corporation of New Zealand (Airways) to provide anAFIS during certain hours. This provided information to pilots, for example, aboutmovements and obstructions on the airfield. WoW Ltd arranged to provide this servicebecause the airfield was busy before and after the show days with arriving anddeparting aircraft.Airshow authorisation[16] The CAR provide that an airshow of the size and nature of WoW cannot beheld unless the organiser holds an authorisation issued by the Director of the CAA.9To obtain an authorisation, the organiser must submit an event plan at least 90 days7 CAR, Part 71.153.8 CAR, 91.129.9 CAR, 91.703.before the start of the event.10 To assist organisers and those responsible for anairshow, the CAA has published an Advisory Circular, AC91-1. Amongst other things,this sets out the exceptions to the normal operating flight rules that apply at the show,and the matters an event plan will need to address. It also recommends that theorganiser apply for an authorisation at least 180 days before the event.[17] The WoW event plan for the 2018 airshow (the WoW 2018 Exposition) was adetailed document, comprising 56 pages including appendices. It provided the CAAwith information about how the organisers intended to ensure the safe operation ofaircraft and the safety of public spectators and participating crews. Amongst otherthings, it included:(a) The responsibilities of key personnel, including the Airshow Organiser(Mr Taylor), the DD (Mr Lee), the ADD (Mr Hogan), and the MDD(S/L Rankin), and the role of the Flying Display Committee (FDC).(b) A risk assessment undertaken by the Airshow Organiser, EventManager and DD in conjunction with the FDC.[18] The WoW 2018 Exposition was reviewed by the CAA and amendments weremade during the review process. The CAA issued its authorisation for WoW 2018 on15 March 2018. The conditions of approval included that the DD was to be Mr Leeand that the event be conducted in accordance with AC91-1.The landing plate[19] Aerodromes or airfields that are available for public use are published in theAeronautical Information Publication (AIP).11 Ninety days prior to an airshow, an AIPSupplement is issued by the CAA. This is provided and available to all pilots currentlyflying in New Zealand.12 Amongst other details, the AIP Supplement for WoW 2018advised pilots of the Temporary Restricted Period (running from 29 March to 2 April10 CAR, 91.703.11 The AIP is published by Aeropath on contract to the CAA. Amendments are issued in two-monthlycycles.12 Aeropath mailed the AIP Supplement to all holders of AIP documents, that is to pilots currentlyflying in New Zealand. The AIP Supplement was also available online for download.2018), the practice and airshow days and times, the times at which Airways wouldprovide an AFIS, the radio ground and display frequencies.[20] The AIP Supplement also includes the name of the aerodrome (for example,NZWF in the case of Wanaka), the aerodrome designator and "the landing plate". Thelanding plate includes a diagram of the airfield and information about the availablerunways (as prepared by the aerodrome operator), amongst other things. Thepublished landing plate for the Wanaka Aerodrome at the time of the WoW 2018 eventis attached as Appendix two. This landing plate, without the "notes", was includedin the WoW 2018 Exposition.13[21] Runways are referred to by number (the runway designator) derived from themagnetic bearing of the runway.14 As shown on the NZWF landing plate, WanakaAerodrome has two runways that run parallel to the airfield buildings, with thedesignator numbers 11 and 29 at either end. The runway is referred to by the directionin which the aircraft is travelling (on takeoff or landing). For example, "it is a 29 day"means that the aircraft will be travelling from the 29 end (located at the southeast endof the airfield), heading towards the 11 end (at the northwest end).[22] If there is more than one runway with the same designator at the airfield, theywill be referred to by their surface type. At Wanaka, the runway closest to the airfieldbuildings is a sealed runway. The other one is grass. So at Wanaka the runways maybe referred to, for example, as "29 seal" or "29 grass". The 11/29 grass runway wasestablished in May 2016. At the trial this was referred to as "the northern grass". Priorto May 2016, the grass runway in use ran alongside the seal runway in between theseal and the northern grass runways. At the trial this was referred to as "the centregrass".The Airshow Organiser[23] The WoW 2018 Exposition described the role of the Airshow Organiser asfollows:13 The notes refer to the matters listed 1 to 8 under the diagram. As will be seen, this is consistentwith the WoW having authority to use any vector for the show as it considers appropriate.14 This means that pilots can align themselves with the runway using their compasses.The Airshow Organiser is responsible for the overall organisation and conductof all Warbirds Over Wanaka 2018 activities. This includes co-ordinat[ing]planning, supervision of safety, site evaluation, community consultation andrisk assessment.The Airshow Organiser is also specifically responsible for:(a) the appointment of additional personnel and ensuring those personnelare aware of their responsibilities(b) general arrangement of the flying and ground display programme(c) the site and control of spectator areas and vehicle parking(d) co-ordination of pyrotechnics and/or other special effects(e) establishment of an emergency plan(f) liaison with other authorities such as the police, local authorities,emergency and first aid services, and defence, where defence aircraftare participating.[24] The WoW 2018 Exposition provided for the Airshow Organiser to delegateauthority to the Event Manager for all airshow operations and personnel.[25] The AC91-1 also referred to the Airshow Organiser. As Mr Taylor put it:A. I'm satisfied in the processes and systems we have in place and thepersonnel there to carry it out. I note in the [AC91-1] under "event organiser",it says, "The organiser will co-ordinate planning supervision of safety siteevaluation, community consultation and risk assessment. Some particularaspects of an aviation event such as air traffic services, provision of emergencyservices and supervision of the flying display should be allocated to peoplewith the appropriate expertise, qualifications and licences."Q. Yes.A. So that's what I do.The Display Director[26] In any airshow like WoW, the DD has a key role. The WoW 2018 Expositionset out the DD's responsibilities as follows:The Flying Display Director is responsible to the Airshow Organiser for -(a) providing the Airshow Organiser, Event Manager and flying displaycommittee with aviation advice and specialist guidance relevant to theplanning and safe conduct of an aviation event(b) supervision of compliance with civil aviation rules(c) ensuring adequate communications are established between allagencies associated with the Airshow, such as emergency services,police, special effects, ground activities, spectator security, safetyobservers and flying display participants which will includesecondary communication links or radio frequencies for use inemergencies or essential control(d) ensuring display routines are approved(e) ensuring all pilots submit a completed display pilot certification form(f) airshow briefings, including Airshow procedures and flyingprogramme(g) ensuring safe conduct of the flying display(h) ensuring minimum display heights, maximum speeds and displaylines are observed(i) general flying discipline(j) approving and co-ordinating any modifications to the flying programcaused by weather, aircraft unserviceability or other factor.[27] Approving the program and display routines, conducting airshow briefings,providing display direction and other aspects of the role are discussed in more detaillater.The Military Display Director[28] The RNZAF is involved in air display events to promote and demonstrate theNZDF's skills and capabilities and to foster relationships with the public and thecivilian aviation community. S/L Rankin's role in WoW 2018 included creating aprogramme of events for the military aircraft and vehicles and acting as the MDD.[29] The WoW 2018 Exposition provided that:(a) military aircraft participating at the show were to be controlled by anMDD who would assume responsibility for the airspace during anymilitary aircraft display;(b) the MDD was also responsible for ensuring military pilots had thenecessary experience and training;(c) no civil aircraft was to operate during the period of any military aircraftdisplay unless approved by the MDD; and(d) the DD was to ensure that the MDD and the military display pilotsattended the display briefing each day or were provided with a writtencopy of the briefing, as well as verbal updates if the pilots were notbased at the airfield.[30] Similarly, NZDF rules required that the MDD be the active display directorwhenever military aircraft were operating within the Restricted Area, even if they werenot actually displaying at the time.The Assistant Display Director[31] The WoW 2018 Exposition stated that, because WOW is a reasonably complexaviation event, an ADD would be appointed to "assist and work alongside the DisplayDirector to help ensure the safety of the event". The only specific task assigned to theADD in the WoW 2018 Exposition was to carry out "a main runway inspection each day to check for foreign objects or hazards prior to Flight Information Servicecoming on duty".[32] Mr Hogan was appointed to the ADD role. His job description under his WoWcontract listed some other responsibilities. Essentially, he attended to any tasksassigned to him by Mr Lee or S/L Rankin. This included taking the roll call at thedaily pilot briefings and setting up the PowerPoint presentation for Mr Lee. Mr Hoganwas also tasked with communicating with all ground crew operations from the Tower.Planning the display programme[33] The WoW 2018 Exposition provided that an FDC was to be established toassist the DD with planning and conducting the event. Mr Taylor, Mr Lee, Mr Lamontand Mr Hogan, amongst others, were members of the FDC for WoW 2018.[34] One of the first tasks of the FDC and the DD was to discuss which aircraftWoW 2018 would like to feature and to set about securing aircraft for the show indiscussions with private owners, the RNZAF and other regional forces. Mr Lamont,as FDP, took the lead on this.15 Mr Lamont reported to the DD and the FDC, who hadfinal sign off. Once aircraft and pilots were identified, secured and approved by theFDC to display at the show, contracts were entered into by WoW Ltd with each displaypilot.[35] Mr Dovey had flown at previous WoW airshows.16 He had flown with GraemeFrew, who also owned a Yak, at WoW 2014 and elsewhere.17 In around March 2018it was decided to again offer Mr Dovey a place in the show flying a "pairs" routinewith Mr Frew, who had already been offered a place in the show.18 Mr Dovey wasalso to take part in a fly past and mock air attack which was to be the finale of theshow. WoW Ltd and Mr Dovey entered into a contract on 8 March 2018. Mr Doveyreceived the written pilot briefing (discussed below) on 18 March 2018. He receivedhis Low Level Display Approval (LLDA) on 23 March 2018.19Approval to display at a show[36] As set out above, the DD is the person who authorises every display for theshow. At WoW 2018 the process began with Mr Lamont approving the proposedroutine submitted by participating pilots when putting together the programme. On25 March 2018 Mr Frew emailed Mr Lamont with the proposed elements of the routinefor the pairs display with Mr Dovey. It was an aerobatic tail chase routine, not in closeformation, and was "pretty much" what Mr Frew and Mr Dovey had flown previously.15 The FDP was not a specified role in the WoW 2018 Exposition.16 Since purchasing the Yak in December 2005, Mr Dovey had displayed this aircraft at the 2006,2008, 2010, 2012, and 2014 WoW shows.17 At the WoW 2014 show, Mr Dovey and Mr Frew flew a pairs formation display. Mr Dovey andMr Frew also flew their Yaks as a pairs formation at the Omaka airshows in 2013 and 2015.18 The background to how this came about was covered in the evidence but, as I discuss later, wasnot relevant. It had the flavour of unfairly seeking to discredit Mr Dovey's discipline in displayflying on a disputed matter that bore no similarity to the events at issue here. WoW Ltd must havebeen satisfied that Mr Dovey's skills and discipline were satisfactory when they decided to offerhim a place in the programme and that is the basis on which I proceed.19 The CAR have minimum heights below which pilots cannot fly. The minimum level is lower ataviation shows but pilots need to have a LLDA. The LLDA applies for one year and therefore hasto be issued or renewed each year. David Brown, an expert witness called by the defendants, hasauthority to issue or renew LLDAs for all New Zealand display and competition aerobatic pilots.He may renew an LLDA on the advice of another appropriate person. For example, in Mr Dovey'scase, he did so on the advice of Mr Lamont, who observed Mr Dovey flying his Yak for thepurposes of approving his LLDA on 23 March 2018. In accordance with the procedure,Mr Lamont approved the LLDA and it was formally issued by Mr Brown on 31 March 2018.Mr Lamont advised by email that the routine was approved. He included the displayin the afternoon of the show programme.[37] The next stage of approval was the practice days that preceded the show. Thepractice days were on Thursday 29 March and Friday 30 March 2018. Thosedisplaying in the show performed their routine observed by Mr Lee so that he couldmake sure the routines were safe and met the needs of the airshow plan. It alsoprovided the opportunity for any issues to be addressed with the pilots and Mr Lamont.Mr Lamont did not watch all the practices but did talk to all the pilots to ensure theywere able to fly their routine.[38] The practices were not a full dress rehearsal of the show in that the practicetimes were not in the same order as the show day programme. For example, Mr Doveyand Mr Frew practised their pairs display at around 11 am on the Friday, when on theflying programme they were not scheduled to do that display until 2.58 pm.The written pilot briefing[39] The WoW 2018 Exposition provided that pilots and other display personnelwould receive a written briefing setting out the procedures and safety requirements forthe event. The WoW 2018 written pilot briefing was distributed to participating pilotsmany days before the show. It was reissued to them when they physically registeredat Wanaka for the event.[40] Amongst other details it: advised the pilots that their attendance at the dailybriefings during the event was mandatory; set out the proposed programme for theshow (in outline form), noting that it might vary in content and sequence;20 andattached the AIP landing plate for the airfield (complete with the notes).[41] On the topic of changes to the display routine it stated:The Flying Display Director must approve any changes to a display routine.Any approval will be assessed on the applicant's ability to demonstrate recentdisplay experience on type and advice from similar type display qualifiedpilots. Spontaneous or "ad lib" displays are prohibited.20 For example, the programme included in the written pilot briefing stated at 10.15 am "SportsAircraft Display". It included no other detail about this display.[42] On radio communications it advised pilots that:All participating aircraft must have VHF communication with "WanakaDisplay" during the period of the flying displays and display practice. Duringthis period, frequency 120.1 MHz will be used for ground movements andjoining communications. Frequency 118.9 MHz will be used exclusively forall circuit and display communications. Pilots will remain on frequency120.1 MHz until instructed to change to 118.9 MHz.The Display Director will brief pilots of aircraft with no radios on what isexpected of them during their display.Daily pilot briefings[43] The WoW 2018 Exposition also provided for the DD to conduct a "dailybriefing of all participating display pilots, [the] military display director, specialeffects personnel and any ground display personnel who are supporting the flyingdisplay prior to the flying display each day". At WoW 2018 Mr Lee conducted thedaily briefing each morning on the practice days and the two show days.The flying programme[44] The WoW 2018 Exposition stated that the detail of the flying programme wasto be provided to the CAA within 30 days before the event and "the final approvedprogramme, participating aircraft and pilots [was to] be submitted as soon aspracticable prior to the event". The FDC and the DD were required to review thecapability and limitations of the activities within the programme.[45] To prepare the programme Mr Lamont needed to consider what the displayinvolved, the pilot's capabilities, the time required for each display and how a displaycould be integrated with the surrounding displays. His aim was to provide anentertaining and interesting show, and to tell a story about the history of the moresignificant Warbird aircraft. He also aimed to design a programme that providednon-stop action for six hours with a variety of aeroplanes. The mainstay of WoW wasWWII aircraft. The military usually had at least one hour and then there werehelicopters, gliders, light sport aircraft and a range of other things to be included tokeep the crowd entertained and engaged.[46] Mr Lamont produced a movement schedule (the flying programme) which setout the sequence of events and their timings. This included the display start time butalso other events necessary for that display. For example, the programme for the firstfive events on the Saturday morning of the show, before the news was received thatthe F-16 (item 3) was unavailable, was as follows:Item Time on Duration Event Remarks9 0 20 Airshow briefing1 9 55 0 Chipmunk T/O Hold Hold at Mt Barker2 9 58 2 NH-90 T/O and hovertaxi down crowd line –Sir Tim WallisVacate for localscenic, landing A/R3 10 0 5 F-16 Strafes Airfield – 2passesPyros4 10 05 10 LSA set up and AircraftTaxi into positionPosition duringTiger/Chipmunkdisplay5 10 05 10.15 Dancing DeHavillands-Tiger and ChipmunkdisplayTiger commencesfrom T/O6 10 15 15 Light Sport AircraftDisplay- PaintballGunnery[47] The programme continued in this vein with 97 items and concluded at 4.05 pmwith the completion of the show. The bolded items were the displays and thenon-bolded items were about activities associated with upcoming displays. It wasproduced on the morning of each show day and released to the participants at themorning pilot briefings.Passive control of displays[48] The AIP Supplement advised that ATS was not provided when displaypractices and the airshow were in progress. The WoW 2018 Exposition provided thatthe DD would provide "passive control" during these periods. This term, which iscommonly used to describe the control provided by display directors at airshows, isseemingly intended to distinguish the direction from an ATCS, which can only beprovided by qualified air traffic controllers in an appropriately designated airspace.[49] Passive control was provided in discharge of the DD's responsibilities for"ensuring safe conduct of the flying display" and the requirement that the restrictedairspace could be entered only with the approval of the DD. The AC91-1 did notprovide specific guidance about how this passive control of the display was to beexercised. An NZASA Guide to Air Show Display Director, which is recognised as acode of practice and indicator of best practice, did not do so either.21[50] However, the evidence from the various witnesses about what passive controlinvolves was largely consistent. As S/L Rankin put it, the DD approved aircraft fordisplay but did not control them. This approval included "co-ordinating the takeoffslots, holding areas (if required) and landing slots to minimise the time taken betweenone display and the next, and to keep an orderly flow of activity". Individual pilotsremained responsible for their own separation from other aircraft. All operationsremained at the pilot's discretion and onus.[51] As S/L Rankin explained, a DD could make only two decisions for the pilot –whether he could enter the control zone (meaning takeoff) and to "knock it off" if thedisplay was unsafe. Also, if the DD was aware of a hazard, he (or she) would have aresponsibility to stop the display.[52] S/L Rankin further explained that when an aircraft was holding, the displaydirector would give approval to commence the display.22 This meant "proceed, yes,I'm happy for you to do it". Approval would be given when the DD knew that theairspace was clear. In other words, "there will be nothing within that bit of airspacefor the duration of the display. Go for it". S/L Rankin explained that such approvalwas given because: I'm the administering authority for that bit of airspace. CAA has actuallyeffectively said, "Hey, everybody, that chunk of airspace now belongs toWarbirds over Wanaka and they decide who operates in that area." What theyactually do though is at the discretion of the pilot. An approval to a displaymeans that, "I have sanitised the airspace you need to do your display."21 This Guide provides a range of other guidance to the display director in the discharge of his or herresponsibilities. For example, the items that should be addressed in the daily verbal briefing. Itdoes not discuss the content or scope of the "passive control" provided.22 Sometimes this was referred to as "clearance" but the correct term is "approval" (to distinguishthe role and responsibility from that of an air traffic controller).[53] Similar evidence from the WoW defendants included the following:(a) Mr Lee said the DD assisted pilots if they requested it, but they operatedat their discretion. He described the role as choreographing aircraft towork closely together. He said the DD did not control the pilots andthe burden was on the pilots to operate safely. The DD would provideguidance on aircraft movements – for example telling them if a displaywas delayed or there was an adjustment to airshow timings, and if anaircraft or formation needed to hold clear of the airfield or sit on theground until their slot became available.(b) Mr Hogan said a "passive control" service meant that the pilots had theresponsibility for ensuring their operations are conducted safely. Thedisplay director could approve the pilot's movements but could not"control" the pilot. It was not an air traffic control service. He agreedthat there was an obligation to warn display pilots of hazards when theyare landing on a runway or a vector that was available to them to use.Mr Hogan said each display was timed to allow planes to takeoff andland, either at the end of their display or in between another display.(c) Mr Lamont said that once the display is set in motion, in the absence ofa hazard or emergency, the pilots fly through the display that they havebriefed and when they have finished the display they will land (unlessthey are landing elsewhere or at a later time).(d) David Brown, an expert witness called by the defendants, said thatwhen a pilot is ready to display at their allocated time and the airspaceover the airfield is clear of other aircraft, the DD will advise the pilotthat they can commence their display (saying, for example, " displayapproved" or "display at your discretion"). After this, the DD may notmake another radio call, particularly if the pilot is landing after theirdisplay, because the landing would be part of the approval from the DDto operate in the restricted area. He agreed that it was incumbent ondisplay directors to alert a pilot who is landing to obstructions on anactive runway.[54] Mr Dovey said he understood "passive control" to mean that the displaydirectors generally confined their approvals and instructions to taxiing, takeoff andstarting displays. Clearance to display was clearance to land.23 If a hazard was on therunway, the DD would inform the pilot. He said that, by a DD's silence, landingapproval is implied. Similarly, Mervyn Falconer, an expert witness called by theplaintiff, said landing was approved when the Yaks were given approval to commencetheir display. Keith Skilling, another expert witness called by the plaintiff, said"clearance to display is clearance to land" where the display concludes with landingat the airfield.The Tower and ADD support[55] At WoW 2018 passive control by the DD was provided from the Tower. TheTower was a mobile control tower facility owned by Airways Corporation.24 At WoW2018 it was located immediately north of the terminal taxiway and provided anunobstructed view of the runways.[56] The Tower included the equipment for the two radio frequencies (referred toin the WoW 2018 Exposition, the AIP Supplement and the written pilot briefing) thatwere used for coordinating the show and providing display direction. As set out inthose documents, one of those radio frequencies was for ground movements andjoining communications and the other was exclusively for circuit and displaycommunications.[57] In the Tower, Mr Hogan was tasked with communicating with all groundoperations. For ease of reference, in case the DD required it, Mr Hogan maintained a23 Unlike an air traffic controller, where a pilot does not land without clearance from the controllerto do so, a DD's role does not involve providing specific approval or clearance to land.24 It is used around the country where a mobile facility is required because there is not a functioningtower building. It is effectively a modified shipping container that is movable by truck. It hadseating for up to four people. It is fitted with two air-ground radios (with speakers and headsets),an ATIS transmitter (which broadcasts an automated message detailing airfield conditions),weather equipment and landlines and computer connections to the Airways network. It haspanoramic windows with relatively unobstructed views in all lateral directions."record board" of aircraft in the air, those next to takeoff, and those in holding patterns.Mr Hogan also took any landline calls. He watched takeoffs and landings to supportthe DD when he was able to while performing his other duties. He explained:Wherever possible I keep an eye on things but I don't sit on the shoulder ofthe display director monitoring his every move, I mean, I'd never get my jobdone in that situation.[58] S/L Rankin was asked about Mr Hogan's responsibilities:Q. It [Mr Hogan's job description] reads like this, "He is responsible to thedisplay director, Mr Lee, for provision of an air traffic advisory service to allaircraft during the display and practice periods." A. I don't like the term "air traffic advisory". He's normally running theground frequency at displays. So when you said, "advisory," the normaladvice will be along the lines of we're running five minutes early, five minuteslate, the QFE which is the altimeter setting, like your hectopascals on yourweather map. He does that sort of thing. So he's advising aircraft of how theshow is going and will occasionally be asked by the display director, ... if youcould get those guys to taxi there or if you could get them to change to thisfrequency. He's not providing an air traffic information service, and advisoryservice [is] probably as good a terminology as any.The pre-positioning of the cherry pickersThe issue[59] This issue concerns how the cherry pickers came to be on the centre grass andwhether the defendants have responsibility for it.Alleged duty[60] The duties of care alleged against the defendants are particularised inconsiderable detail and are put in various and somewhat overlapping ways. As aspectsof the pleaded duties are accepted by the defendants, I focus on those aspects and anyof the particularised duties that appear to have most relevance to this topic.25[61] The RNZAF defendants accept that S/L Rankin owed a duty to provide acompetent display direction service, to provide passive control, to be alert to hazards25 I have taken the same approach for all of the topics discussed that are said to give rise to duties tothe plaintiff.and to maintain situational awareness. They resist that this duty was a legal obligationto inform pilots of hazards, but S/L Rankin says as a matter of fact he would alert apilot to a hazard that he was aware would be likely to affect them. S/L Rankin alsoaccepted he had a duty to keep designated/active runways clear for takeoff and landingand says that the centre grass was not a designated or active runway. S/L Rankin sayshe acted with reasonable care in arranging to have the cherry pickers moved from theirposition close to a designated runway.[62] With reference to the pleaded duties that potentially relate to thepre-positioning of the cherry pickers, WoW Ltd accepts that it, through the DD'sresponsibilities, owed a duty to exercise reasonable care to:(a) approve all operations in the restricted area;(b) be kept informed of any risks, hazards or conditions that might affectthe safe conduct of WoW 2018;(c) identify, evaluate and remove hazards, or at least minimise hazards, asfar as practicable;(d) ensure that the flying programme unambiguously prescribed when andhow the airside ground movements affecting active runways or vectorswere to occur;(e) consider the risk and safety implications of any modifications to theflying programme;(f) approve and coordinate any modifications to the flying programme;(g) refuse to approve any amendment to the flying programme unless oruntil he was satisfied that there were no adverse risk or safetyimplications to the proposed change;(h) ensure that active runways or vectors remained clear of obstructions atall times during a display;(i) close any runway or vector that was hazardous to aircraft operations;and(j) be alert to any hazard or display aircraft.[63] The WoW defendants go on to say that this list is a fragmentation of the dutiesand obligations which are defined by his DD role and responsibilities. They say thatMr Lee did not breach his duty of care in relation to the pre-positioning of the cherrypickers because he was reasonably entitled to rely on S/L Rankin, the centre grass wasnot a designated or active runway and the cherry pickers had been pre-positioned at asuitable distance away from the designated and active runways. They also say thatnotice was given to Mr Dovey of a potential interference with the centre grass throughthe flying programme which referred to the LSA set-up at 10.05.The evidencea) The original plan[64] The Light Sports Aircraft (LSA) team, under Peter Clulow's management andinstruction, had displayed at the WoW 2014 and 2016 shows. The 2018 LSA displaywas to be more complicated than in the past because the pilots were going to fly theaircraft down to 50 or 60 kn and shoot balloons with paintball guns mounted on theirwings. The balloons would hang from a string between the raised tower cranes of twocherry pickers. The cherry pickers were large machines (about the size of a minibus)and orange in colour.[65] A risk assessment for this display formed part of the WoW 2018 Expositionthat was approved by the CAA. This was a detailed spreadsheet setting out the risksof each activity involved in the display and how they were to be addressed. Relevantlyfor present purposes, it contained the following:(a) Existing Controls: "Towers to be setup in the grass area between thesealed runway and grass runway and will only be erected for the displayand dismantled on completion of the display. ";(b) Actions: "Secure suitable location for the tethering towers away fromthe active runways, setup just prior to the display and dismantleimmediately after. Hard hats to be worn."[66] On the flying programme, the LSA was to "set up and Aircraft taxi intoposition" at 10.05 am and to "position during Tiger/Chipmunk display". From 10.05to 10.15 the Tiger Moth and Chipmunk were to display. At 10.15 the LSA display wasto commence.26 This meant that the LSA display had 10 minutes for its set-up.[67] The original plan was that the cherry pickers would be stored over by thepyrotechnics on the northern side of the northern grass. They would be brought outand set up on the centre grass for the display. Mr Lamont and Mr Lee's understandingwas that the cherry pickers would not be moved from the northern grass to the centregrass until 10.05 am, but would first need clearance from the DD to move into theoperational area.b) The plan changed[68] Mr Taylor's evidence was that the original plan changed following a practicethat had taken place leading up to WoW 2018 at a high-country station near Wanaka.The LSA team had realised they needed more than 10 minutes to get the cherry pickersfrom the northern grass to the centre grass and to erect the towers.[69] The defendants called evidence from Rex Smart, who was responsible fordriving one of the cherry pickers needed for the display. Mr Smart attended thehigh-country practice. He confirmed that the fastest they managed to shift the cherrypickers, erect the two crane towers and tension the cable between them, was 15 or sominutes and the programme only allowed for 10.[70] As to the WoW Friday practice at the aerodrome:(a) Mr Smart said the LSA team set up the cherry pickers on the grass areajust to the side of the sealed runway from around 7.45 am on the26 See [46] above.practice day, 30 March. He said the practice went according to planand that they lowered and moved the cherry pickers to the far side ofthe northern grass after the LSA finished their practice.(b) Mr Hogan said he saw the cherry pickers in situ for the LSA practiceduring his runway inspection and understood they had been moved intothat position from the northern boundary.(c) S/L Rankin noticed the two cherry pickers on the centre grass duringthe practice day and asked what they were for, but he did not observethe LSA practice or the movement of the cherry pickers.[71] When the LSA ground crew arrived at the airfield on the Saturday morning ofthe show, the cherry pickers were on the far side of the northern grass runway, wherethey had been stored after the practice at the airfield the day before. According toMr Smart, there was a discussion amongst the ground crew about how they were goingto make the set-up work in their allocated 10 minute slot for this.[72] A decision appears to have been made to pre-position them on the centre grassin a position close to the seal runway. Mr Smart said that he was not involved in thatdecision. It is unclear who made the decision as neither Peter Clulow (the overall LSAteam leader) nor Peter Akass (the LSA ground crew leader) were called to giveevidence.[73] There is evidence that someone, most likely Peter Akass, called the Tower at7.40 am (Airways were on duty) to ask for permission to cross the seal to go to thenorthern grass to collect the cherry pickers. Mr Smart said this would be about thetime they were moving the cherry pickers to do the initial set-up. It appears that thecherry pickers were then collected and driven to the edge of the seal. There is noevidence that permission was sought from anyone at WoW.2727 Mr Taylor's evidence about this appears to have been what he pieced together after the event: "Iwas aware that a decision had been made to bring them out earlier, but I don't remember when orwhy I wasn't asked permission to do that" and "Your Honour, for me this is all hindsight. I wasnot involved in this process ".[74] S/L Rankin arrived at the airfield at around 7 am. He first visited the office toadvise that the opening display (a USAF F-16 fighter aircraft which was to do twohigh speed passes across the field) was looking doubtful because of the weather. Hethen visited the Tower. On his way to the Tower (which must have been sometimeafter 7.40 am) S/L Rankin saw that the cherry pickers were on the centre grass in aposition close to the sealed runway.[75] The positioning of the cherry pickers close to the seal runway was unsuitablefrom S/L Rankin's perspective because of the expected arrival of an RNZAF King Airaircraft. He asked the Airways staff in the Tower to contact the LSA display organisersto have them moved. Contrary to a submission made on his behalf in closing that hedid not say where they to be moved to, his evidence was that he suggested that theybe moved to the middle of the centre grass.28 S/L Rankin's explanation for this at trialwas that the centre grass was not a "designated" runway and it would keep the cherrypickers at a safe distance from both the sealed runway and the northern grass runway.[76] Consistent with this instruction from S/L Rankin to Airways, Mr Smart saidthat he was in the rear of Mr Akass' vehicle when Mr Akass had a conversation withsomeone who he understood to be a CAA person (someone official, wearing a yellowvest and holding a radio) on the verge of the sealed runway. It was discussed that thecherry pickers were to be moved to the mid-point between the seal and the northerngrass runways. Mr Smart said it was around 8.30 am when they moved the cherrypickers to this midway point.[77] At some point after giving the instruction for the cherry pickers to be movedand before the pilot briefing at 9 am, S/L Rankin told Mr Lee the cherry pickers werein the wrong place and he had arranged to have them moved. He did not tell Mr Leewhere he arranged to have them moved to and nor did he wait to see where they weremoved to. Mr Lee confirmed that S/L Rankin had told him about this. He did not askS/L Rankin where they had been moved to exactly, but assumed they were near thetaxiway (taxiway Bravo) leading to where the RNZAF aircraft would be parked.29 He28 He described this as the "old holding point". It was about two-thirds up the centre grass and bythe tyres that usually funnelled traffic across taxiway B to the northern grass.29 This taxiway is perpendicular to the sealed runway, going from the terminal side to around themidpoint of the sealed runway.trusted S/L Rankin with getting the cherry pickers moved. He said he also had aconversation with Mr Clulow but left it to him to liaise with S/L Rankin.[78] Mr Lamont was not told, and was otherwise not made aware, that the cherrypickers had been pre-positioned on the centre grass.[79] Mr Hogan arrived at the airfield at around 7.30 am on the Saturday of the show.He commenced his runway inspection around 10 minutes later. The purpose of theinspection was to ensure the surfaces of the runway areas was serviceable. He carriedout his inspection travelling in a vehicle at around 10-15 km/h. He began at thethreshold of the 11/29 seal runway, travelling along its length in both directions. Hethen went along the centre grass in both directions.30 Lastly, Mr Hogan went up anddown the northern grass runway. He said this took him 10 to 15 minutes but agreed itcould have been 20 to 30 minutes.[80] Mr Hogan recalled seeing the cherry pickers on the northern boundary. Thismust have been at the start of his inspection because, as noted earlier, at 7.40 ampermission was sought from Airways to cross the seal to move the cherry pickers fromthe northern boundary. He did not remember seeing the cherry pickers being movedfrom this position, although the timing of the Airways call and S/L Rankin's evidencesuggests that they would have been in the process of being moved during Mr Hogan'sinspection. Mr Hogan was prepared to concede the cherry pickers must have been onthe centre grass by the time he finished, but he does not remember that.31Findingsa) Pre-positioning contrary to the approved WoW 2018 Exposition[81] There was a suggestion advanced by counsel for the WoW defendants that "setup" in the approved WoW 2018 Exposition meant raising the cherry picker towercranes, and that the cherry pickers could be pre-positioned on the centre grass (withthe towers down) at any time before the display. I do not accept this suggestion.30 As discussed later, tyres demarcating the taxiway across the centre grass had been removed duringthe previous afternoon, although Mr Hogan was not aware of the reason for this.31 Mr Hogan generally and genuinely had difficulty recalling specifics about WoW 2018 and theaccident.[82] Mr Lamont said the intention was for the cherry pickers to be rolled out to thecentre grass area at 10.05 am and the towers raised during the 10-minute period. Hesaid this was what was meant by "LSA set up" in the flying display programme.Mr Lamont was referred to Mr Taylor's response to the CAA draft report after theaccident in which it was said that it had always been planned that the cherry pickerswould be pre-positioned. Mr Lamont said that this was not his understanding.[83] I accept Mr Lamont's evidence. He was the person who prepared theprogramme and he was a thoughtful and careful witness who did not seek to shy awayfrom matters that could count against the defendants. Further, his evidence wassupported by Mr Lee. Mr Lee also expected that the cherry pickers would not beginto be moved from the northern grass into their position on the centre grass until10.05 am and not without first being cleared by the DD to move into the operationalarea. He "certainly didn't know [the cherry pickers] were go[ing to] be pre-positionedon the centre grass".32[84] Mr Lamont accepted that clear instructions in the flying programme orelsewhere as to when the cherry pickers were to move from the northern ground couldbe said to be a relevant factor in avoiding the accident. However, I consider the flyingprogramme was sufficiently clear, as was the WoW 2018 Exposition. The error cameabout because the allocated time slot for set-up was insufficient. The error was bythose involved in the decision to pre-position the cherry pickers contrary to the WoW2018 Exposition and the flying programme. The initial error appears to have beenmade by someone in the LSA team when they were pre-positioned close to the sealrunway. S/L Rankin noticed this hazard and took steps to address it. The issue iswhether he and anyone else aware of this acted with reasonable care in doing so andbreached a duty to the plaintiff by not taking reasonable care.b) Risk assessment needed[85] The CAA authorised WoW 2018 on the information provided to it, whichincluded the risk assessment for the LSA display. The pre-positioning of the cherry32 The cherry pickers would be driven clear of the airfield after the LSA display and before theHarvard display.pickers changed what had been authorised. I consider that the cherry pickers shouldnot have been pre-positioned on the centre grass without a proper risk assessment ofthat change. A risk assessment about whether the cherry pickers could bepre-positioned should have at least included whether that would conflict with theflying programme. However, no proper risk assessment took place.[86] S/L Rankin's concern was to move the cherry pickers from where they were ahazard to RNZAF aircraft. He appears not to have contemplated that any aircraftwould be landing on the centre grass prior to the completion of the LSA display. Idiscuss later why that was.[87] Mr Lamont was not made aware that the plan had been changed. Had the LSAasked him whether they could move the cranes on the airfield earlier than 10.05 am,he would have considered that in light of other movements on the airfield. He did notassess the risk of the early pre-positioning because he was not aware of it. The sameapplies to Mr Lee. Mr Hogan appears not to have noticed that the cherry pickers hadbeen pre-positioned, but it was not his responsibility to address the risk that thispotentially created.Breach of dutya) S/L Rankin[88] I conclude errors were made relating to the early pre-positioning of the cherrypickers. The first error was that of S/L Rankin. His focus was on the safety of RNZAFaircraft. He should not have directed the cherry pickers to be moved to the middle ofthe centre grass without first checking whether this would constitute a hazard for other(non-RNZAF) aircraft.[89] I accept that S/L Rankin's responsibilities were confined to military aircraftand only civilian aircraft to the extent that they would be flying at the same time asmilitary aircraft when he would be the acting DD. S/L Rankin was therefore notrequired to check the WoW 2018 Exposition risk assessment and the flying programmeto see where the cherry pickers were meant to be stored (that is, the northern grassuntil 10.05 am) or to conduct a risk assessment if they were to be pre-positioned in adifferent location.[90] However, S/L Rankin took it upon himself to direct that the cherry pickers bemoved and to suggest that they be moved to the middle of the centre grass. He did nottell Mr Lee where he had moved them to. Rather than suggesting a new location, heshould have informed Mr Lee of the hazard so that Mr Lee could make the appropriatedecision in light of his knowledge of the WoW 2018 Exposition and the flyingprogramme, and as the person responsible for ensuring the safe conduct of the flyingdisplay and for approving and coordinating any modifications to it caused by anyfactor.[91] I consider S/L Rankin owed a duty of care to Mr Dovey (as a display pilot whowould be flying when the cherry pickers were stationed on the centre grass) and hiscompany (as the owner of the aircraft Mr Dovey would be flying during that display).33I consider that, as part of his duty to be alert to hazards, this duty encompassed notdirecting that hazards be moved within the operational area without first askingMr Lee where they were to go, or checking with him whether they would constitute ahazard for other aircraft if they were pre-positioned on the centre grass.[92] The legal duty was resisted by the RNZAF defendants on the basis that thiswas an uncontrolled airfield in which the MDD, when on duty, provided passivecontrol only. However, this submission was not strongly advanced and wasinconsistent with S/L Rankin's acknowledgement that he would in fact advise displaypilots of hazards and the WoW defendants' acceptance of a duty. Counsel for thedefendants located no relevant authority concerning the existence of a duty of care bythose involved in conducting airshows or with responsibilities for the safe conduct ofairshows. They referred to the accepted approach to novel duties of care in which theCourt considers foreseeability of harm, proximity of relationship and policyconsiderations.3433 Hereafter, I will refer to a duty of care to the plaintiff because any duty in this case isindistinguishable from any such duty to Mr Dovey.34 North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 [The Grange].[93] Counsel for the plaintiff located Nichols v Simmonds.35 This involved a mid-aircollision of two light aircraft as they were coming in to land at a Western Australianairport that was designated as a "secondary control zone". Under the regulatoryregime in that state, an ATCS was provided. That service had functions that included"the prevention of collisions between aircraft, and on the manoeuvring area betweenaircraft and obstructions" and "expediting and maintaining an orderly flow of airtraffic".[94] It was found that the accident occurred because the respective pilots of theaircraft had failed to keep a proper lookout, and the air traffic controller on duty hadmistakenly thought the two aircraft were not at risk of colliding and had looked awayat the critical time when the accident could have been avoided.[95] A duty of care owed by the air traffic controller was resisted. This was on thebasis that in a secondary control zone pilots operate pursuant to a Visual Flight Guidewhich requires pilots to keep a good lookout and to maintain a safe separation fromthe aircraft. The Visual Flight Guide also advised pilots that the ATCS provided wasnot sufficiently precise or reliable to enable an ATCS to individually direct aircraftflight paths to the degree applicable in a "primary control zone". Pilots were alsowarned that they should not rely upon an ATCS alerting them to a possible collisionhazard. The Court at first instance, upheld on appeal, held that the pilots'responsibilities did not relieve the air traffic controller of a duty of care. That dutywas to take reasonable care to give all instructions and advice that may be necessaryto promote the safety of aircraft within their area of responsibility. This was consistentwith their functions.[96] An airshow with passive control is not identical to the secondary control zonein that case. It nevertheless provides a helpful analogy in considering the duty of carethat arises in the airshow context. When an airshow is in progress, the airspace isrestricted. To ensure safety, the DD authorises who can enter the airspace. Moregenerally, the airshow is authorised on the basis of various responsibilities to whichthe airshow organiser commits.35 Nichols v Simmonds [1975] WAR 1.[97] Passive control does not mean all responsibility rests on the pilots. Mr Doveyparticipated in the display on the basis that there was a DD whose responsibilitiesincluded the safety of the flying programme. That included being alert to hazards.The MDD was to be the DD for Mr Dovey's display and he took it upon himself todirect that the cherry pickers be moved. I consider harm to Mr Dovey or his aircraftwas reasonably foreseeable if S/L Rankin acted without reasonable care in directingthat potential hazards be moved, there was a proximate relationship between the MDDand Mr Dovey in the circumstances and policy reasons to negate that duty are absent.[98] I consider that S/L Rankin failed to exercise reasonable care by directing thatthe cherry pickers be moved, without checking with Mr Lee where they were to go ortelling Mr Lee that he had suggested they be moved to the centre grass.b) WoW defendants[99] The other error was that of Mr Lee. Having learned from S/L Rankin that hehad found the cherry pickers in a position he regarded to be a hazard and had directedthat they be moved, Mr Lee should have asked S/L Rankin where he had moved themto. S/L Rankin was not the person responsible for ensuring the safe conduct of theflying display and for approving and coordinating any modifications to it caused byany factor. Mr Lee was not entitled to assume that S/L Rankin was fully apprised ofthe civilian details of the WoW 2018 Exposition or the flying programme given hismore limited, military-focussed, role.[100] Moreover, the flying programme did not specify where the cherry pickers wereto be stored, so it could not be assumed that S/L Rankin would be aware of the planthrough that document. Furthermore, the cherry pickers had been moved underS/L Rankin's instructions at the same time that Mr Lamont was organising a changeto the opening display of that programme, and when Mr Lee was proposing to advisepilots that the centre grass would be available following Mr Hogan's inspection of therunway surfaces. Mr Lee was not entitled to assume that S/L Rankin would have takenthis all into account when those processes were still in train and he was not directlyinvolved in them.[101] I consider that Mr Lee owed a duty of care to the plaintiff. I consider that dutyencompassed being alert to any hazard in the operational area and ensuring thatchanges were not made to the flying programme without a proper risk assessment ofthat change. Those duties are consistent with the role of the DD, the responsibilitieshe assumed with that role, and the reliance display pilots and owners of display aircraftcould reasonably expect to place on him in that role.[102] In failing to ask S/L Rankin where the cherry pickers had been moved to,Mr Lee was not able to satisfy himself that the cherry pickers had been moved to aposition where they would not constitute a hazard to the display pilots. He had alsoinadvertently allowed a change to the flying programme, namely the time at which thecherry pickers were to be moved from the northern grass for the display, withoutconducting a risk assessment. In these ways, he failed to exercise reasonable care, inbreach of his duty to the plaintiff. WoW Ltd accepts it is liable for Mr Lee's actions.The substitutionThe issue[103] This issue concerns the decision to have Mr Frew and Mr Dovey carry out theopening display in substitution for the F-16.Alleged dutya) S/L Rankin[104] The plaintiff alleges that S/L Rankin owed a duty to care to refuse to approvethe Yak-3M opening display during a period of military aircraft display unless a riskassessment was first undertaken. The plaintiff alleges S/L Rankin breached that dutyby failing to identify the potential conflict of the display with the cherry pickerspre-positioned on the centre grass where he had arranged for them to be moved.[105] The RNZAF defendants submit that this misunderstands the MDD role in thecontext of a civil airshow. They submit that the MDD was entitled to rely on the riskassessment of a civilian display and the pilot that occurred before he was advised ofthe substitution. They submit that S/L Rankin was entitled to assume that the pilotsand WoW had considered the safety implications of the substitution and were satisfiedit was safe. They say that S/L Rankin's responsibility was only to decide whether topermit the opening display at the same time as a military display. They say there is nosuggestion that there was any such incompatibility and therefore no basis for theallegation that S/L Rankin acted without reasonable care in this respect.b) WoW defendants[106] The plaintiff alleges the WoW defendants owed a duty of care in a range ofways relevant to this issue. The plaintiff alleges the WoW defendants breached thatduty by making a late change to the flying display programme and failing toadequately consider the risk implications of that change. The plaintiff also alleges thatthe WoW defendants presented S/L Rankin with a fait accompli when S/L Rankinshould not have been put in that position.[107] The WoW defendants accept a duty of care in some of the ways pleaded. Mostrelevantly for present purposes, they accept that:(a) Mr Lee had a duty of care to consider the risk and safety implicationsof any modifications to the flying programme and to refuse to approveany amendment unless he was satisfied that there were no adverse riskor safety implications.(b) Mr Lamont had a duty of care to not make ad hoc changes to the flyingprogramme on the spur of the moment, to consider the risk and safetyimplications of any changes to the flying programme, not to proposeany change unless he was satisfied that there were no adverse risk orsafety implications, and to take action to avoid or mitigate any risks orhazards that might arise out of a proposed change.[108] The WoW defendants say there was no breach of any of these duties. They saythe substitution of the opening display was not a spur of the moment one and the riskswere considered. It was a simple substitution and an abbreviation of what the pilotshad practised the previous day, Mr Lamont was satisfied the pilots had the skill andexperience to carry it out, and the pilots were comfortable with what was proposed.They say the centre grass was not a designated or an active runway and so there wasno undertaking that it would be free from obstructions. They also say the pilots oughtto have known that the centre grass was going to be obstructed because the flyingprogramme had the cherry pickers being set up at 10.05 am, which was a minute priorto the crash.[109] To the extent that the allegations and responses concern the availability of thecentre grass, that is considered later. Under this heading, I focus on whether it wasopen to WoW to make last-minute changes and whether the risk assessment of thechange to the programme was carried out with reasonable care.The evidencea) The original plan[110] As shown in the flying programme, the plan was that the show would start withan RNZAF NH-90 helicopter flying across the airfield with the show's founder,Sir Tim Wallis, on board to wave to the crowd. After that, WoW 2018 was to openwith a USAF F-16 fighter aircraft doing two high speed passes across the field. TheF-16 was also to do a full display later in the day. It was to be the highlight of theWoW 2018 show.b) The change[111] Mr Lamont says he learned from S/L Rankin at about 8 am on the Saturday ofthe show that the F-16 opening display could not occur.36 This was because of anadverse weather event at the Christchurch airport, from where the F-16 was to take offand later to land. Mr Lamont believed he mentioned to S/L Rankin they might be ableto substitute "a couple of fighters".37 He did not think he specifically mentioned theYaks to S/L Rankin at this time, but this was what he had in mind. WoW alwayslooked to start off the show with a bang, with high speed passes and pyrotechnicsgoing off.36 This timing broadly fits with S/L Rankin's evidence about when he arrived at the airfield andlearned about the problem with the F-16.37 This had also been contemplated earlier as a previous version of the programme, dated 24 March2018, referred to "fighters" to start the show but, by the time of the event, the programme said itwas the USAF F-16.[112] Mr Dovey received a telephone call from Mr Lamont on the Saturday morningat about 8.20 am. Mr Lamont asked him if he would open the show with Mr Frewbecause the F-16 was unavailable. Mr Lamont was proposing a high speed pass,followed by a wingover, returning back for a buzz and break landing.38 This was tosimulate a surprise airfield attack with two aircraft sweeping low over the airfield atspeed, accompanied by pyrotechnics causing loud explosions, smoke and flames.[113] Mr Dovey accepted the invitation. He had flown the opening sequence inprevious airshows and the buzz and break was a standard procedure for returning tothe airfield used during Mr Dovey's time with the RNZAF. Mr Lamont telephonedMr Frew at about 8.30 am with the same request. Mr Frew was also comfortable withwhat was proposed and accepted the invitation.[114] Mr Lamont said he was satisfied by the time the pilot briefing started at 9 amthat Mr Dovey and Mr Frew could do the display, provided they left the briefing alittle early so they could get ready. Mr Lamont advised S/L Rankin and Mr Lee of thesubstitution shortly before the pilot briefing commenced. Mr Lamont confirmed thatS/L Rankin would be DD for this opening event because the RNZAF NH-90 helicopterwould be operating at that time. Mr Hogan was not involved in the substitutiondecision and does not remember when he learned of it. Mr Taylor was informed atsome point that the Yaks were being substituted for the F-16.c) Changes not unusual[115] The evidence was that WoW endeavoured to put on a continuous show toentertain the crowd. If an issue meant that a display could not proceed as planned,Mr Lamont and Mr Lee would look to see what changes could be made to theprogramme.[116] The evidence was that substitutions to flying programmes were madefrequently at airshows. Such changes could occur after the programme had been38 The buzz and break was originally used by fighter squadrons in WWII. If attacked by enemyaircraft close to one's own airfield, aircraft could fly to the airfield in combat formation at speed.Once at the field, the leader would close the throttle, pull up into a steep climbing turn, losingspeed, and then continue down the base leg and around into finals for landing. The buzz and breaklanding procedure enabled a formation to land multiple aircraft in the quickest time possible.released to the participants at the morning of the briefing. This might arise, forexample, if there were pilot health or aircraft serviceability issues, or if there was awind change meaning that the takeoff would move from a "29 day" to an "11 day"(with resulting changes in aircraft movement), or if they lost a session due to rain.[117] For example:(a) Mr Lamont said that after the programme had been released to theparticipants at the morning briefing, minor changes might be made atthe request of the crews or the Display Director.(b) Mr Lee said that a substitution of the kind that occurred here wasnormal in an airshow because weather conditions and aircraftserviceability issues arise. He said that if a basic decision of this kindcould not be made, then the whole programme would come to a halt.(c) Mr Taylor said "you don't just have empty space for 10 minutes" andhe had not been involved with any airshow where the programme hadnot changed.(d) S/L Rankin said that, in his experience, changes in display programmeswere very common for reasons such as weather, aircraft serviceabilityor delays with aircraft starting.(e) Mr Skilling said he would not have had a concern about the openingdisplay substitution from a pilot or display director perspective. Thissort of change was "bread and butter" in the airshow business.(f) Mr Brown said that, to keep the show moving and to maximise thedisplay activity that occurs for spectators, the DD might change thesequence of events from that published on the programme.d) The risk assessment[118] When Mr Lamont put together a programme of events, part of his role involvedconsidering the risks. He also considered the risks when a change to the programmewas made. He prepared a written brief for some scenarios but in his view it was notpossible to do this for every scenario that might play out. Mr Lamont reported toMr Lee as the person with responsibility for approving and coordinating anymodifications to the flying programme caused by weather, aircraft unserviceability orother factor.[119] Mr Lamont assessed the risk of replacing the F-16 with the two Yaks for theopening sequence and was comfortable with it. He regarded the substitution as a"pretty straightforward" one and the Yaks display a relatively simple one. Both pilotshad done this display at airshows before and had the experience to carry it out. Hesaw no conflicts with the sequence of displays to follow.[120] His assessment was informal in the sense that it was not recorded in writingand did not follow any written checklist or protocol for assessing the risk of asubstitution to the programme. He described it as a mental process of going throughthe change. Part of assessing the risk was to talk to the pilots to discuss whether theyfelt comfortable to do it and would have sufficient time to prepare without feelingrushed.[121] He was asked what else he took into account. He said:There were no other major issues around that. It was a simple substitution aswe've said a number of times that happened throughout an air show andsometimes these substitutions mean aircraft have to taxi at different times andthat becomes a fair part of the display director's input into moving thingsaround to change the order. I knew that the Tiger Moth and the Chipmunk hadbeen scheduled in. It wasn't going to be an impact on their display. I couldn'tsee any further safety issues that I needed to address.[122] Mr Lee said the substitution caused him no problem. The components of theopening display were all identical to parts of the Yak sequence on the practice day thatthe pilots had performed perfectly well. He considered it to be a "verystraightforward" display. He said it was "completely impracticable" to be carrying outrisk assessments on the day, by which he meant the written risk analysis set out inAC91-1. It was put to him that this had the flavour of expediency about it. He agreed"it does because time starts to become an issue". It was put to him that safety shouldcome before pleasing the crowd. Mr Lee said "[s]afety is the first consideration. all the decisions we make are about safety".[123] The substitution meant a civilian display would be occurring when the NH-90was operating. Mr Lamont confirmed to S/L Rankin that he would be the DD for thisopening event because of this. S/L Rankin said he was not concerned whenMr Lamont told him that the Yaks pair would now open the event. It was a simpledisplay and he had been on duty many times as a display director when a similardisplay had opened previous events.[124] S/L Rankin said he carried out a risk analysis of this change. He consideredissues of separation from other aircraft both holding and displaying, any problems withground movement of other aircraft, and any potential differences with timing causedby the substitution. From his perspective the task as MDD was simpler because he nolonger needed to coordinate the F-16 arrival from Christchurch. He considered thatthe Yaks would be taxiing at the same time as the NH-90 helicopter would be operatingat the threshold of runway 29 and he discussed with the NH-90 crew how that mightaffect their departure and holding area. S/L Rankin said he made some notes aboutthe opening display substitution on the back of the written pilot briefing when hearrived at the briefing at about 8.45 am but he no longer has those notes.[125] S/L Rankin knew the cherry pickers were on the centre grass, knew that Mr Leeintended to make the centre grass available and accepted he was aware that Mr Doveysometimes landed on the grass. He disagreed this was an accident waiting to happenbecause "we had a runway available for him to take off and land on" and if he did notuse it "on his head be it". It was put to him that a proper risk assessment would haveled him to conclude there was a risk that Mr Dovey would land on the grass and collidewith the cherry pickers. He replied that there was a very simple mitigation and thatwas for Mr Dovey to land on the runway.[126] S/L Rankin resisted the suggestion that his risk assessment was last-minute.The F-16 opening the show was itself confirmed about a week before the show. Beforethat, it was going to be fighters of some kind.39 Because of that, he said he had alreadybeen thinking about how it was going to work with the NH-90. The cross-examinationproceeded:Q. That meant that the substitution of the Yaks was actually no different as faras you were concerned from the risk assessment that you'd undertaken earlierwhen the programme provided for fighters to open the air show.A. Two fighters, it doesn't make any difference.Q. It doesn't make any difference. So in fact by the time John Lamontconfirmed to you that the two Yaks would open the air show, you consideredyou'd done all the risk assessment necessary because you'd actually thoughtabout it for the previous scenario in [an earlier version of the flyingprogramme]?A. Yes.[127] The cross-examination returned to this topic later:Q. And that meant that there wasn't much risk analysis to undertake becauseindeed fighters would be strafing the airfield, the two Yaks instead of whateverelse was in mind?A. It wasn't a completely new event to the thinking, yeah, correct.Q. Right, I understand. So there wasn't much risk assessment that you had toundertake when you were informed that the Yaks would be substituted becauseyou'd done that work already?A. Correct.[128] For his part, Mr Taylor relied on those that WoW had appointed for theirexpertise to make decisions of this kind. He was asked whether it was hisresponsibility to have procedures in place to make sure that a risk analysis was carriedout. He replied:A. I mean a risk analysis can be one thing to one person and another to another.We don't have a committee that sits down and goes through a manual everytime there's a change in the programme. We have professional people who Ihave the highest regard for who are in these positions to make these calls andto have their own risk analysis like John Lamont did with that change bringingArthur and Graeme in and he makes that decision based on expertise and30 years of air show knowledge flying at air shows around the world.39 As per the 24 March 2018 version of the flying programme.Q. And so you're just happy to let them get on with it?A. I trust them to deliver.Q. Thank you.A. If we had a committee meeting every time there was a change, we wouldn'thave an air show.e) The expert evidence[129] Mr Skilling was asked about the risk assessment he would make for thesubstitution that was made to the opening display. He said that, as a display director,he would "have a quick look at the issues particularly with the programming and seewhat was coming on afterwards and what was coming on before and so on" but hewould not go deeper into it than that.[130] Mr Falconer said that airshow protocol and best practice cautions againstlast-minute changes to the display programme. This was because last-minute changesmade it difficult for there to be any in-depth review of the changes and any riskimplications from those changes. He said there were pressing demands on the DDteam on show day and it might not be possible for the team to work through the riskand safety implications of a change. He said the prudent course was to leave the slotvacant rather than running the risk of overlooking something in yielding to the pressureto give the crowd its money's worth.[131] Mr Falconer said the substitution, made at short notice, changed the dynamicsof the opening display because it involved a takeoff and landing at the Wanaka airport,whereas the original opening display did not. He considered a proper risk assessmentwould have involved a collective assessment by the FDP, the DD and the MDD, inconsultation with the pilots. This was particularly important because the openingdisplay was going to be controlled by the MDD, whose understanding (or "mentalmodel") may have differed from that of the FDP and the DD.[132] Mr Brown said that what thought should be given to a programme changedepended on what the change was and the surrounding circumstances. He said somechanges were more significant than others and the running of an airshow relied on theDD having the experience to assess that. He went on to explain: Is this a big change or a small change? Is it an easy substitution? And ifwe went back to that flying programme then if the C-130 wasn't quite readyto take off then the display director might just say, "Okay, we'll hold you onthe ground and the Roaring Forties can do their display," and you might callup the Roaring Forties and say, "Are you all going to land on the grass? Areyou okay if the Herc lines up on the seal?" and he'd, you know, massage theprogramme that way and that would be a pretty minor change to how thingsare going. If, say, the Roaring Forties had a problem with an aeroplane andsaid, "We need a couple of hours to fix the aeroplane," and so then he'd lookat the programme and say, "Well I can bring the Yak formation from theafternoon down the morning," but then that's a much more significant changeand he would have to look at the knock-on effects and actually that wouldn'twork because a lot of the Harvard pilots in the Roaring Forties were actuallygoing to be in that afternoon display, so, you know, it's a much moresignificant change. the display director needs to have that sort of experienceto know. I would go further to say that they would be doing a risk assessment ofevery change essentially but some of the risk assessments would be muchsmaller or require a lot less in terms of the assessment than what others would.Findingsa) A preliminary point about the experts[133] A feature of this case was the depth of experience and expertise of the factwitnesses involved in the accident as well as the evidence from independent expertscalled by the parties. Attached as Appendix three is a summary of the experience ofthe witnesses.[134] The defendants objected to the independence of Mr Skilling and the expertiseof Mr Falconer and contended that Mr Brown was the only independent expert withthe relevant expertise. I do not accept this submission. I also reject the submissionthat the plaintiff's expert evidence bordered on advocacy. I thought quite the reversewith Mr Falconer. It was evident he felt uncomfortable at times when giving hisevidence. This was not because he was uncertain or unclear about what should havehappened but rather because it implicitly and explicitly criticised aspects of WoWwhen it was evident he had respect for that show and those involved in it and had muchrespect for Mr Brown and his evidence. I was impressed with the way all threeindependent experts gave their evidence. They all had the necessary experience andexpertise to give the expert evidence they did. They were open and straightforward,did not purport to give evidence beyond their expertise, and gave their evidence in away that provided assistance to me.[135] I assess the evidence of the experts in the light of their particular skills andexperience, and taking into account that:(a) Mr Skilling is a friend of Mr Dovey, he has extensive aerobatic displayexperience in a range of aircrafts including a Yak-3M, and his displaydirection experience is less extensive and less recent than, for example,Mr Lee and S/L Rankin.(b) Mr Falconer has extensive experience as a pilot across a number ofaircraft types but has limited experience in formation flying and noexperience as a formation display pilot. He has held the equivalentposition to Mr Lee at the 2019 Warbirds over Wairarapa show, has beenin the display direction team at that show on several occasions and islisted as a CAA-approved FDD in the NZASA Display Director Guide.(c) Mr Brown has significant experience as a pilot, and in formation flyingand display flying (but not in a Yak), in training pilots and with warbirdsthrough his involvement with NZ Warbirds as Chief Flying Instructor.He is also listed as a CAA-approved FDD in the NZASA DisplayDirector Guide amongst other things. He was a careful, measured andthoughtful witness.b) A significant change[136] As noted earlier, the WoW 2018 Exposition provided that the detail of theflying programme was to be provided to the CAA within 30 days before the event and"the final approved programme, participating aircraft and pilots [was to] be submittedas soon as practicable prior to the event".[137] I infer that the purpose of this was to provide the CAA with some assurancethat the programme had been put together with due care and attention to safety withappropriate measures to address identified risks. There seems little point in providingthis assurance to the CAA as part of its authorisation procedure if WoW was then ableto make a significant change to the programme on the day of the show in atime-compressed manner when the same care and attention to risks might not be ableto be given.[138] The WoW 2018 Exposition also provided that the DD was responsible forapproving and coordinating any modifications to the flying programme. It thereforecontemplated that some changes could be made after it was submitted to the CAA. Inmy view, given the authorisation procedure just discussed, this enabled only changesthat were able to be risk-assessed with the same care and attention as they would havereceived if they were part of the approved programme submitted to the CAA. Iconsider that, on the day of the show, when there would be limited time that could bedevoted to that risk assessment, only minor changes would likely be in that category.[139] Here the WoW defendants regarded the opening display as a simplesubstitution and approached their risk assessment accordingly. However, I acceptMr Brown's evidence that bringing forward the Yak formation from the afternoon tothe morning was a more significant change than other changes that a DD might haveto deal with during the course of a show and that was because of its potential forknock-on effects.[140] In this case it was not simply the bringing forward of a routine to an earlier slot(as I discuss later). It contained some of the elements of the display that would takeplace later, but it was now a mock attack of the airfield to provide an exciting openingdisplay. More significantly, as Mr Falconer said, it changed the dynamics of the timeslot because the Yaks would be taking off from the airfield to commence the displayand landing on the airfield at the end of it, whereas the F-16 would not have done so.It also meant that the MDD would now be the DD in the tower for a civilian display,when he had planned for only military aircraft displaying at this time. I do not acceptthat any risk assessment he might have carried out on the earlier version of the flyingprogramme was of much or any assistance because of the generalised description ofthat possible opening event. I consider this meant the substitution was not as simpleas the WoW defendants regarded it to be.[141] I agree with Mr Falconer that the prudent course would have been to leave theopening display slot vacant because of the risk that something would be overlookedin putting in place a substitution. His evidence about this accords with common sense.Time was compressed. It was around 8 am when S/L Rankin learned the F-16 wasunavailable and it was at 9.52 am that S/L Rankin cleared the Yaks for takeoff for theopening display. S/L Rankin, Mr Lamont and Mr Lee had various tasks to attend to inthat time frame. As it transpired this compressed time meant that things wereoverlooked.[142] An airshow of this kind involves a degree of risk. It is important that thoserisks are appropriately considered and addressed. Time-compressed changes made onthe morning of the show risked undermining the careful process involved in obtainingCAA authorisation, which was intended to ensure a safe show. The desire to providean entertaining show complete with an exciting opening display was understandable,but it could not override the need for a proper risk assessment.c) Risk assessment[143] The defendants accept that the substitution required a risk assessment.Mr Lamont's risk assessment took into account the events before and after the openingdisplay. The prior event (the NH-90) meant that S/L Rankin would still be the DD forthe opening display. He identified no issue with the subsequent events either. Thisinvolved the LSA display getting set up while the Tiger Moth and Chipmunk aircraftentertained the crowd with their displays. However, in considering these matters hewas unaware that the cherry pickers for the LSA display had been pre-positioned onthe centre grass.[144] The pre-positioning of the cherry pickers on the centre grass, although contraryto what had been planned, was unlikely to present a hazard if the opening display hadproceeded as planned. That was because the F-16 was not landing on the airfield andthe Chipmunk and the Tiger Moth were to take off from the 29 seal (at 9.51 am and10.05 am respectively).4040 The Chipmunk was to hold at Mt Barker to be ready to display with the Tiger Moth at 10.05 am.As Mr Taylor pointed out, the pilot of the Tiger Moth had been in contact on the groundcommunications with Mr Clulow about when he would be erecting the cranes.[145] The pre-positioning of the cherry pickers on the centre grass was, however, apotential hazard if either or both of the Yaks intended to land on the grass. Mr Lamontwas aware that grass was a preferred landing surface for a Yak doing a three-pointtouchdown (indeed it was his own preference for that style of landing).41 I am satisfiedthat Mr Lamont would have considered the cherry pickers on the centre grass as apotential hazard if he had been aware of this. He was clear that the cherry pickerswere not meant to have been moved from their position on the northern side of theairfield until 10.05 am.[146] Mr Lee gave evidence that there were limitations attaching to the centre grassavailability (discussed later). Counsel for the WoW defendants submitted that theselimitations meant the cherry pickers were not a potential hazard. Despite this evidenceand submissions, I am also satisfied that Mr Lee, like Mr Lamont, would haveconsidered that the cherry pickers were a potential hazard on the centre grass if he hadbeen aware of their location when he approved the substituted opening display andwhen he advised at the pilot briefing that the centre grass was available.[147] In my view, the most reliable evidence of Mr Lee's view about this is what hesaid to Mr Taylor in an email dated 20 November 2018 when WoW was preparing aresponse to the CAA following receipt of its report on the accident. In this emailMr Lee said:Interesting thing mental models!Mine was of the cherry pickers being completely clear of any manoeuvringareas. ie no factor!If I had known they were to be sitting mid grass, then I would have briefedaccordingly. And I'm a bit disappointed that someone at the briefing didn'tbring it up.Hindsight is a wonderful thing!![148] This confirms that Mr Lee would have regarded the cherry pickers as apotential hazard when pre-positioned on the centre grass. It also sets out what hewould have done about it had he been informed about this. That is, he would haveadvised the pilots of that at the briefing. I accept he would have done so. He wanted41 The different kinds of landing are discussed later.that area to be available. Only the day before he had personally moved the tyres fromthe centre grass so that it would be available for takeoff and landing.[149] Had he known that the cherry pickers were on the centre grass and told thepilots at the briefing of this, it might have prompted a discussion with Mr Frew andMr Dovey about their landing intentions and whether the cherry pickers in that positionpresented any problem from their perspective, in which case there might have beentime to move them back to where they were meant to be stored. Even without such adiscussion, Mr Lee might have told the pilots at the briefing that he would be directingthat the cherry pickers be put back to where they were meant to be. This would avoidhaving an unnecessary stationary object on the manoeuvring area and a potentialhazard (for example, in the event of an emergency). But even if it was decided toleave the cherry pickers on the centre grass position, Mr Dovey would have been awareof the presence of the cherry pickers before he began the display and so would knowto land on the seal.42 All of these options would have addressed the risk of the cherrypickers to the opening display.[150] The WoW defendants say that the centre grass was never going to be availableto Mr Dovey during the opening display and Mr Dovey should have known that. Thisis because the LSA display was scheduled to be set up at 10.05 am and the crashoccurred after this, at 10.06 am. However, I do not accept the WoW defendants'submission that this meant the pre-positioning of the cherry pickers on the centre grasspresented no additional hazard to the opening display. I accept the evidence ofMr Brown that the cherry pickers would not have been given permission to cross anyavailable runways while being moved from where they were meant to be stored, whilethe opening display pilots were preparing to land. This is confirmed by the evidenceof the Tower directing the Tiger Moth to "hold short of the runway" because the "Yaksin the break to land".43[151] Further, the flying programme provided to Mr Dovey did not alert him to thehazard. It referred to "LSA set up" but did not say that this involved the movement ofcherry pickers onto any runway or manoeuvring area. I agree with Mr Skilling that it42 The northern grass being his least preferred option because of its uneven surface.43 The radio calls are discussed later.was the responsibility of those arranging the change to the programme to consider the"before" and "after" implications of the change.44 Mr Lamont and Mr Lee were thepersonnel with the detailed knowledge of the before and after movements. Mr Lamontreported to Mr Lee, who had the responsibility for the safe conduct of the flyingdisplay and approving and coordinating any modifications to the programme.[152] As well as the fact that the opening display would now involve landing on theairfield, I agree with Mr Falconer that a further complication that needed to be part ofthe risk assessment was that S/L Rankin would be the DD for a civilian display. Thispresented an additional risk that needed to be taken into account.[153] I do not accept that S/L Rankin was presented with a fait accompli. I have nodoubt that, with S/L Rankin's assertive and confident personality (evident in thewitness box), his extensive experience, and the respect the WoW defendants had forhim, he would have said he was uncomfortable with what was proposed if he was, andthe WoW defendants would have listened to him. S/L Rankin carried out his own riskassessment and was comfortable with the proposal.[154] However, S/L Rankin's risk assessment was focussed on how the openingdisplay would work with the military aircraft rather than with the civilian aspects ofthe display. That was consistent with his duties. He did not have the sameunderstanding of the civilian parts of the flying programme as that of Mr Lamont andMr Lee, yet he was now to be the DD of that civilian display. Mr Lamont, Mr Lee andS/L Rankin saw no issue about this because they regarded the opening display asreasonably straightforward and because of S/L Rankin's considerable experience indisplay direction.[155] The problem was that there was no discussion by any of them with Mr Frewand Mr Dovey about the runway on which they intended to land. As discussed later,S/L Rankin assumed they would land on the seal. Because S/L Rankin did not considerthat Mr Dovey would land on the centre grass, his risk assessment did not identify the44 Mr Skilling said the DD would have a "quick look" at this. In my view more than that was requiredbut I regard this as partly Mr Skilling's practical manner of expression and I did not take him tomean that no deeper look would be necessary if potential issues were apparent. If he did meanthat, then I do not agree with him on this point.cherry pickers as a potential hazard even though he was the person who knew wherethey were now pre-positioned.[156] As Mr Falconer said, a collective risk assessment would have provided theopportunity for any misunderstandings to be cleared up. For example, if there hadbeen a collective discussion before the pilot briefing involving Mr Lamont, Mr Lee,S/L Rankin, Mr Frew and Mr Dovey about the potential risks of the opening display,it seems likely that Mr Lee would have advised the two pilots he was intending toadvise everyone at the pilot briefing that the centre grass was going to be available.Mr Dovey might have indicated that he might wish to land on the centre grass. Thatin turn would likely have triggered S/L Rankin to advise Mr Lee and the pilots that hehad just directed the cherry pickers to be moved to middle of the centre grass.[157] The result was that none of those involved in carrying out that risk assessmentidentified the potential hazard of the cherry pickers. The WoW defendants were notaware that the cherry pickers had been pre-positioned. S/L Rankin did not considerthe possibility that the pilots of the opening display might wish to land on the centregrass. Important elements of a risk assessment were therefore missed.[158] In my view the informal nature of the risk assessment was a factor in allowingthat to happen. Such informality, for anything other than a minor change to theprogramme, was inherently risky. Neither WoW Ltd nor S/L Rankin had a writtenchecklist or protocol against which to assess the intended change. Such writtendocumentation could have assisted in ensuring matters were not overlooked.[159] For example, Mr Lamont and Mr Lee's risk assessment was focussed on therelative simplicity of the display and the experience of the pilots to carry it out.However, a checklist of other things to be considered could have assisted to ensureimportant issues were not overlooked.45 Additionally, the WoW processes left itunclear whether the MDD was expected to carry out his own full risk assessment ofthe substitution or consider the risks only with regard to military aircraft. A written45 For example, any changes to takeoff and landings, any implications for this for before and afteraspects of the flying programme, and changes to DD responsibilities could be part of such achecklist.protocol could have clarified this and provided for a collective risk assessment whena change involved the MDD's duties.[160] Mr Brown accepted that carrying out a written risk assessment for programmechanges might impose a discipline on the process but would not necessarily make theshow any safer and would be impracticable. The impracticality he discussed was thatof a DD having to make a written risk assessment in the middle of a show. He saidthe DD would have to stop the show while he carried it out. It may be that for thesafety of the show this is what should happen if a significant change is proposed. Awritten protocol or checklist might, however, enable the DD to make the assessmentin nearly as timely a fashion as a purely mental assessment, but with the added comfortthat all relevant factors had been addressed and signed off.[161] I note that the draft WoW 2020 Exposition proposed the following:46DD, ADD, and Display Planner to meet just prior to the event to confirm theflying programme. Any last minute changes require a formal written riskassessment approved by all.[162] The defendants objected to this evidence because of its draft nature. Idetermined that its draft status did not make the evidence inadmissible. I accept thatits draft status means that WoW Ltd ultimately may have decided against a change likethis. However, it does reflect my own view that some greater formality than occurredin this case was necessary for the safety of the show and WoW Ltd should have had amore formal system in place.Breach of dutya) S/L Rankin[163] I consider that S/L Rankin did not breach a duty of care to the plaintiff in hisrisk assessment of the substitution. His duty was to assess the implications of whatwas proposed in relation to the military display. He was entitled to rely on Mr Lamontand Mr Lee's experience and familiarity with the flying programme.46 The WoW 2020 Exposition was not finalised and WoW 2020 did not proceed because of theCoronavirus Pandemic.b) WoW defendants[164] I consider that the relevant WoW defendants, acting with reasonable care in thedischarge of their duty to display pilots and their aircraft, should not have substituteda new opening display on the morning of the show (even though it may have comprisedelements of a display to be flown later in the show) less than two hours before it wasto start. I consider that this created a risk that the safety implications of that changewould not be adequately considered. I consider that WoW Ltd should have had formalprocedures in place identifying the nature of the changes that could be made on theday of the show and the risk assessment procedure that was to be followed for suchchanges.[165] The risk that the safety implications were not adequately consideredeventuated. There were too many things happening that needed to be collectivelyconsidered by those involved – the opening up of the centre grass, the opening displaynow involving landings, and the MDD acting as DD in relation to a civilian display.The result was that S/L Rankin did not realise the significance of his having had thecherry pickers moved to the middle of the centre grass and S/L Rankin's falseassumption that Mr Dovey would land on the seal was not corrected.The pilot briefing on the centre grassThe issues[166] In previous years, the runways available for takeoff and landing at the showwere the sealed runway located closest to the airfield buildings and the adjacent grass(the centre grass). Leading up to the 2018 show, it was intended that the availablerunways would be the seal runway and a new runway established in May 2016(referred to as the northern grass). At the pilot briefing on the Saturday morning beforethe WoW 2018 show commenced, Mr Lee advised that the centre grass was"available".[167] The principal issues about this are what "available" meant and whether it wasappropriate to make the centre grass available at this stage. These are discussed in thenext section. In this section I consider some preliminary factual issues about whetherany pilot at this briefing asked for permission to land on the centre grass and whetherS/L Rankin was present for this part of the pilot briefing. I also discuss whether anyduty of care was breached by S/L Rankin because of his absence or inattention duringthe briefing.Alleged duty[168] The plaintiff alleges that S/L Rankin owed a duty to attend and remain at thepilot briefing, and to arrange to be briefed on the material that was delivered duringhis absence. The plaintiff alleges S/L Rankin breached this duty because he absentedhimself and did not arrange an adequate substitute briefing. The plaintiff also allegesthat S/L Rankin owed a duty to warn display pilots of any hazard that might affecttheir aircraft and this included the cherry pickers. The plaintiff says S/L Rankinbreached this duty by failing to alert the pilots to the cherry pickers.[169] The RNZAF defendants submit that S/L Rankin did not owe a duty to theplaintiff to remain throughout the briefing or to arrange a further briefing if that wasnot possible. They accept that there may be circumstances where doing so isappropriate. They submit that S/L Rankin was not absent when the centre grass wasbriefed as available and he took reasonable steps to inform himself of what he hadmissed. Their position about a duty to alert Mr Dovey to hazards has been addressedearlier.The evidencea) Background to making the centre grass available[170] Mr Lamont's recollection is that he first started thinking about opening up thecentre grass when John Romain, a pilot with a Messerschmitt 109, raised this withhim. As Mr Lamont put it, the Messerschmitt 109 is a particularly tricky aeroplane toland on the seal.47 The surface of the northern grass was not considered by pilots tobe as good as the grass closer to the seal that had been available at previous WoW47 Mr Brown had heard it said anecdotally that "there were more pilots killed landing the[Messerschmitt] 109 in the Second World War than what there was in combat".shows. Mr Romain was looking to have the centre grass made available for landingso that he would have a better landing surface.[171] The possibility of opening up the centre grass was discussed with QAC onWednesday 28 March or Thursday 29 March.48 As Mr Lamont recalled it, he was outon the airfield with Mr Lee. They approached Ralph Fegan, the QAC assistantmanager for the Wanaka airport, and asked him about it. The response from Mr Feganwas to "fill your boots". In other words, it was a matter for WoW, as they had the useof the airfield.[172] When WoW took over the operation of the airfield, there were tyres obstructingthe centre grass. These were white painted marker tyres which marked a taxiway fromtaxiway B across the centre grass to the northern grass.49 Opening up the centre grassmeant moving these tyres. Mr Lee recalled that Mr Romain's request was relayed byMr Lamont to him. Mr Lee understood that Mr Romain was asking why it had takenso long to move the tyres. Mr Lee thought that Mr Romain had spoken to him aboutthis as well at some later point (discussed later).[173] The other reason for opening up the centre grass was the Harvard display. Thisdisplay involved 11 Harvard aircraft flying in formation with Mr Brown as leader. TheHarvards are light tail-wheeled aircraft, which meant a grass runway was the preferredlanding surface. It was intended that the Harvards would land in stream (one after theother and on the same landing strip) and "in trail" (one behind the other) on thenorthern grass runway at the conclusion of their display.[174] When landing in trail the required minimum separation is 500 m.50 Some ofthe pilots in the formation who practice less frequently than some of the others (suchas those in the Roaring 40s Harvard Formation Aerobatic Team who regularly practicetogether) tend to extend the 500 m separation to ensure they do not end up with less48 A QAC email to the CAA around a month after the show said it was on the Wednesday. Mr Lamontthought it was probably on the Thursday.49 There was another set of tyres marking a taxiway from the southern area to the northern grass foraircraft taxiing from the skydiving hanger.50 NZWA Formation SOPs at 2.12. Mr Brown explained that this is because of the reduced forwardvisibility from tailwheel aircraft on the ground. He said that if two aircraft are landing atapproximately the same speed and they are 500 m apart there is almost zero chance that thefollowing aircraft will run into the front aircraft.than 500 m. If separation is less than 500 m, pilots would need to "go around", whichcan result in quite a long period of repetition for spectators at the show while the pilotsattempt to land again.[175] During the Friday practice day, Mr Lee asked Mr Brown if it was possible toshorten the period taken to land the 11 Harvards. This could be achieved if theHarvards landed "left and right". This is a stream landing (one after the other on thesame runway), where the aircraft stagger their landings on opposite sides of therunway, one landing left and the next right, followed by another landing left and thenext right and so on. This requires a runway width of 45 metres or greater.51[176] If the Harvards were to land left and right it would be necessary to use the sealrunway. Mr Brown's preference was for the Harvards to all land on the grass. Therewas a possibility of crosswinds during the afternoon shows and Mr Brown did notwant to put additional pressure on the pilots by having them land on the seal.Mr Brown said that if the centre grass could be made available then they could landleft and right and reduce the time for the landing sequence. Mr Lee said he wouldinvestigate the option and come back to Mr Brown.[177] If this conversation took place after the Harvard practice scheduled at 2.50 pm,then it probably took place around 3.30 pm. If that was the case, Mr Lee had alreadydecided to make the centre grass available and, by that time on the Friday, the tyres onthat bit of grass had probably been removed.[178] Mr Lee's evidence was that he was "flabbergasted" to see there were tyresobstructing that piece of grass when he arrived at the airfield in preparation for theWoW 2018 event.52 He wanted to have the centre grass available for the airshow forseveral reasons. It would provide more flexibility for taxiing. This was particularlythe case if they were to have an "11 day" (that is, aircraft taxiing from the 11 end ofthe runway) for the show. It would avoid the problems with taxiing aircraft down tothe western edge of the airfield. It would also help mitigate some safety issues during51 NZWA Formation SOPs at 2.12.52 Mr Lee said in answer to interrogatories that his concern arose on the Thursday when he walkedover most of the airfield in preparation for the event.the show. So, having the centre grass available was desirable from Mr Lee'sperspective quite apart from the requests that Mr Romain and Mr Brown had made. Itwas the right thing to do.[179] Mr Lee recalled that he advised at the pilot briefing on the Friday morning thathe was intending to make the centre grass available but the tyres were still there. Hedid not remember anyone asking questions about this at that time. Others did not recallwhether this was mentioned at the practice or were not asked about it in their evidence.Nothing turns on this.[180] Mr Lee also said that Mr Lamont came to him at some stage on the Friday andsaid that "they're putting some pressure on us to get rid of these tyres to open up thatgrass". Mr Lee had delegated the task of removing the tyres to someone but this hadnot yet occurred. Mr Lee ended up removing them himself on the Friday afternoon.He loaded them onto a wagon and took them off the airfield.[181] Mr Lee could not remember, but he thought it was likely that Mr Romain wouldhave used the centre grass for this practice on the Friday after the tyres were removed.John Romain's practice was timed for 2.10 pm and if Mr Lee's recollection about hispractice is correct, that would suggest the tyres were removed before 2.10 pm.Precisely when the tyres were removed is not ultimately of consequence, other thanthat it suggests the main issue for Mr Brown and the Harvards was probably whetherthe surface of the centre grass was suitable for landing, rather than its availability.[182] S/L Rankin was in the Tower when he saw the tyres being removed on theFriday. At some stage during that day Mr Lee discussed with him that the tyres hadbeen removed. This may have been when they were both in the Tower for the practicedisplays, although they were in each other's company several times on the Friday.Mr Lee believed he told S/L Rankin he removed the tyres to remove an obstacle fortaxiing aircraft and to make it available if it was required for the Harvards or any otheraircraft or formations that requested to use it. He thought he had mentioned theHarvards because he had discussed this earlier with Mr Brown. For his part,S/L Rankin said he understood it was being made available for taxiing, and takeoff orlandings "if so required".53[183] Mr Hogan was not involved in the decision to open up the grass. However, asdiscussed earlier, his runway inspection on the Saturday included an inspection up anddown the length of the centre grass, so it appears he understood it was potentially tobe used by at least some aircraft in some way. After his runway inspection, he advisedMr Lee and Ms Deans (the Event Manager) that the runways were all serviceable andin good condition.b) The video of the pilot briefing[184] The pilot briefing on the Saturday was scheduled to commence at 9 am. Someof the pilot briefing was recorded on video. It was time-stamped as beginning at8.58 am and finishing at 9.26 am, with some jumps over the parts the camera operatordid not record. The time-stamp appears to have been approximately one minute and23 seconds ahead of NZ daylight time.54[185] From the time stamped 8.59 am, after calling attention to those assembled andwelcoming them, Mr Lee commenced with a weather briefing and then some otherpreliminary matters.55[186] At the time stamped 9.03 in the video, Mr Hogan took a roll call. Amongst theassembled attendees, Mr Romain, S/L Rankin, Mr Lamont, Mr Frew, Mr Dovey,Mr Brown and Mr Skilling were all present.56 Mr Clulow also attended.53 As will be discussed shortly, S/L Rankin's evidence was that the seal runway would be the defaultrunway and he expected that any pilot planning to use the centre grass would need to advise of hisintention to do so.54 This is based on a comparison of the "road block" radio call at 10.06.03 and the time stamp on thevideo of the crash which is at 10.07.26.55 This included checking with the pilots that the children that had been spamming the radiofrequency in the previous two days had not caused anyone any difficulties.56 Mr Dovey and Mr Frew were seated in the front row and Mr Brown in the second row toMr Hogan's right. Mr Lamont was seated in the front row to Mr Hogan's left. S/L Rankin wasseated towards the rear.[187] From 9.08, Mr Lee turned to his PowerPoints that were projected onto a largescreen.57 The first slide was the landing plate. Mr Lee used his pointer to indicate thearea of the landing plate he was discussing as he said the following: here's our apron area, your aircraft park, holding point for 29, aah, the grassrunway on the southern side. Aah, we did, we've now managed to move thosetyres that were blocking, you know, this area here so really right up to aboutto the edge of 11. There is an "X" about that position there. So we've got thatbit of grass now available as well. Its, aah, clear.[188] The position he pointed to as "that bit of grass now available as well" and as"clear" was the centre grass. Mr Lee also pointed to where the pyrotechnics would belocated and mentioned that this would be discussed a bit later on by someone else.Then there was the following exchange:Mr Brown: "What's the surface like on that other bit of grass do you know?"Mr Lee: "Its fine, particularly for like a Harvard its fine".Mr Brown: "So we could actually land left or right on grass?"Mr Lee: "You can, yes".[189] This exchange was in the context of their earlier discussions on the practiceday, although there was no mention of this during the briefing.[190] The video then jumped from 9.09.11 to 9.10.26, when Mr Lee pointed out somemarkers at the edge of the northern grass runway and discussed speeds and displaylines until 9.11.20. The video then jumped to 9.18, when a Mr Gallagher gave thepyrotechnic briefing.[191] The video continued until 9.20 and then jumped to 9.23. From 9.23,Mr Lamont discussed some closing matters, including the change to the opening, as57 Mr Lee's PowerPoint presentations covered the following topics: the landing plate; the displaylines; aircraft operating procedures (display lines and minimum display heights for variousdisplays); "important" points concerning distances from the spectator line and public enclosure,that pilots "must not deviate from the planned display routine with spontaneous or ad lib displays!"and no passengers were to be carried at any time; disciplinary actions that could follow dependingon the severity of the breach; overshoot procedures; emergency procedures; the airfield, withlocations of various aspects of the airshow shown; the radio frequencies; ground operationinstructions; holding points; the pyrotechnics area; and the fuel facility.well as the need for everyone to be aware of what was before and after their displayso that they would be ready to go and the show could keep to schedule.[192] There was a roughly 20 second jump around 9.25 and then Mr Lee concludedthe briefing.Findingsa) Was anything else said about the centre grass[193] S/L Rankin gave evidence that immediately after Mr Brown asked about thecentre grass (as recorded in the video), Mr Romain stepped up and said he wanted todo the same thing. This was not in his brief of evidence. Later on in his evidence, hesaid it may not have been straight after Mr Brown but "I do recall it". It was put tohim that this was not in the video. S/L Rankin said he understood there was a gap inthe video so "perhaps it occurred in that time".[194] Mr Lee, who gave evidence after S/L Rankin, also said that Mr Romain spokeup at the briefing or immediately after it to request use of the centre grass. He alsohad not mentioned this in his brief of evidence. He said he put two and two togetherafter watching the video of the briefing in preparation for giving his evidence at thetrial. He noticed there was a gap of about one and a half minutes soon after thediscussion with Mr Brown about the runway. He thought the conversation about thecentre grass had not finished then so he thought this was probably when Mr Romainraised it. He thought this was why S/L Rankin knew that Mr Romain was intendingto land on the centre grass.[195] This was the first suggestion that Mr Romain had stood up at the pilot briefing.It was not put to Mr Dovey or Mr Frew, who gave evidence prior to S/L Rankin andMr Lee. Mr Lamont, who also gave evidence before S/L Rankin and Mr Lee, was notasked about this either. Mr Hogan, who gave evidence after S/L Rankin, had norecollection of Mr Romain asking for permission to use the centre grass at the pilotbriefing. Mr Brown, who gave evidence last, was not aware of any such request,although he considered he would not necessarily have remembered it even if it hadbeen made. Mr Skilling, who gave evidence after S/L Rankin and Mr Lee, said thatMr Romain did not stand up at the pilot briefing to seek permission to use the centregrass. Mr Skilling knew Mr Romain because he had flown with him regularly in NewZealand and in Europe. Mr Skilling said he would "most certainly" have rememberedif Mr Romain had asked questions about using the centre grass at the briefing. Therewas no evidence from Mr Romain himself at trial.[196] I consider S/L Rankin's and Mr Lee's evidence on this point to be unreliable.It had the air of ex post facto reconstruction about it, with their memories affected bywishful thinking as to what must have happened rather than what did. I emphasisethat this did not involve any dishonesty by either of them. Rather it is simply amemory reliability issue. Their evidence fitted the defence position that "available"was "simply an intimation to pilots to contact [Mr Lee] if they wished to use the centregrass" as articulated in Mr Lee's written brief of evidence. S/L Rankin accepted therewas nothing in the video or the transcript that could have prompted his memory thatMr Romain had spoken up at the briefing. There was no other plausible reason whyS/L Rankin and Mr Lee would suddenly recall Mr Romain seeking permission duringthe pilot briefing when they had not recalled it to include it in their brief. Mr Skilling'sevidence, which I accept, is that this did not happen.b) Was S/L Rankin present when the centre grass was made available[197] S/L Rankin arrived at the pilot briefing at around 8.45 am. Although not shownin the video, S/L Rankin left the briefing at one point to take a call from "theAustralians" (the Royal Australian Air Force (RAAF)). He regarded the call to beurgent and that is why he decided to take the call and leave the briefing. By hisestimate, he was gone for five to ten minutes. There is an issue about when this was.He was certainly back by the end of the meeting because, at the end of the briefing, hecan be heard on the video recording asking the RNZAF pilots to join him down theback of the room.[198] S/L Rankin's recollection about what part of the briefing he missed has variedover time. In November 2018, as part of its investigation of the accident, the CAAprovided S/L Rankin with an opportunity to comment on its draft report. In response,S/L Rankin said:Good report. Did you get a copy of my own report to the WoW organisersabout the incident?If so, you would have seen that I was not present in the briefing room whenthe FDD advised that all the grass was available for takeoff and landing (I leftthe room briefly to answer a phone call from the RAAF Hawk pilots atQueenstown). A nice hole in the Swiss Cheese.[199] Next, S/L Rankin swore answers to interrogatories on 9 July 2019. In these,he said he did not remember whether he was present when Mr Lee briefed that thecentre grass was available. He also said that he did not recall the exact time he left thebriefing, but it was "likely around 10-15 minutes after [the] briefing started".S/L Rankin could not recall the exact subject being dealt with when he left the meetingbut "the roll call and preliminaries (organiser welcome, weather) had been completed".He was unsure of the exact time he returned but the phone call took around five to tenminutes. He could not recall the subject or the presenter of the brief at the time whenhe returned.[200] In his brief of evidence dated 25 May 2020 and confirmed at the trial, andconsistent with his interrogatories, S/L Rankin said he left about 10 or 15 minutes intothe briefing to take a call from the RAAF Hawk crew and he thought the call tookabout five to ten minutes. He went on to say that, when he returned, he asked theperson next to him whether he had missed anything. He could no longer recall whothat person was but the answer he received was along the lines of "no, same asyesterday, just talking about pyros". S/L Rankin said he believed he was present whenMr Lee said the centre grass was available. He said it gave him no concern becausehe was already aware this had been the intention following his discussion with Mr Leeon the previous day when the tyres were removed.[201] S/L Rankin rationalised the discrepancy between what he said to the CAA andwhat he said in his brief on the basis that he had not heard Mr Lee say that the centregrass could be used at any time without approval. He had subsequently seen the videoof the briefing and read the transcript. Having done so, he recalled that he was presentwhen Mr Brown queried the availability of the centre grass for landing left and right.He asserted that he was confident that he was present during all discussions about thecentre grass.[202] Counsel for S/L Rankin submitted that I should prefer his recollection at trialto his earlier recollection because the video provided a unique opportunity andpowerful way for S/L Rankin to refresh his memory. I accept it is possible that viewingthe video refreshed his memory in a reliable way. It is, however, also possible that itdid so in an unreliable way. It is possible that S/L Rankin now believes he was presentfor that part of the discussion but his memory about that has been unreliably alteredby the video and the circumstances of this case. That possibility is somewhatsupported by my finding that S/L Rankin's memory that Mr Romain sought permissionto land on the centre grass was unreliable.[203] Ordinarily, recollections that are more likely to be reliable are those that awitness had closer to the events being recalled. Here, that was recorded inS/L Rankin's email to the CAA. It is possible that S/L Rankin thought he must havemissed another part of the discussion about the centre grass where it had apparentlybeen made clear, as he understood from the CAA after the accident, that it had beenmade available at any time "without approval". He had not heard any such statement.[204] However, I consider the more likely explanation for his email to the CAA wasthat he was absent when Mr Lee advised the centre grass was available. Otherwise,S/L Rankin could be expected to have said to the CAA that, while he heard Mr Leesay it was available, his understanding of this was that any pilot wishing to use it wouldneed approval from the DD.[205] Moreover, if S/L Rankin was present when Mr Lee said the centre grass was"available" and "clear", he might have thought to mention that it was not clear at themoment because he had just arranged for the cherry pickers to be moved onto themiddle of the centre grass.[206] Finally, S/L Rankin was unable to be precise about when he left the briefingand when he returned. He had not looked at his watch during this period. ByS/L Rankin's estimate, he left 10 or 15 minutes into the briefing. But his recollectionat the time of the interrogatories was also that he left after the roll call and preliminaries(organiser welcome, weather) had been completed. That was all completed by9.08.40 am (by the video time stamp, or just after 9.07 NZ Daylight time). SoS/L Rankin may simply be wrong in his recollection that he left 10 or 15 minutes intothe briefing given that he has no reliable record of that.[207] Similarly, there was no reliable record of the period for which he was absent.S/L Rankin's recollection was that the call took five to ten minutes and the discussionabout the centre grass was complete and the pyrotechnics briefing was underway.Mr Lee briefed that the centre grass was available at 9.08.40 am (on the video time)and the pyrotechnics briefing commenced 10 minutes later at 9.18 am (on the videotime). If S/L Rankin was in fact absent for a little longer than ten minutes, then it ispossible that he missed Mr Lee briefing that the centre grass was available andreturned for the pyrotechnics briefing.[208] While it is not possible to be certain about this, I conclude on the balance ofprobabilities that S/L Rankin missed this part of the briefing. His response to the CAAat the time matters were fresh is the best indicator of what probably happened. It helpsexplain why he did not mention that the cherry pickers had just been moved to thatarea. Even if I am wrong about this, I consider that S/L Rankin either was payinginsufficient attention to this part of the briefing, or he simply assumed that no onewould be landing on the centre grass prior to the LSA display or gave it no thought atall, because otherwise he would have mentioned the cherry pickers.c) Was S/L Rankin's attendance mandatory[209] The WoW 2018 Exposition provided that the MDD was to attend the pilotbriefing. This was consistent with CAA AC91-1 which provided:The aviation event organiser will have allocated time in the flying program forthe military aircraft display. The flying display director will ensure themilitary display director and the military display pilots attend the displaybriefing each day or are provided with a written copy of the briefing, as wellas verbal updates if the pilots are not based at the aviation eventaerodrome/location.[210] Mr Lee said in answer to interrogatories that the MDD's presence at the pilotbriefing was required, he would be concerned if the MDD did not attend the briefing,and he would have summonsed his deputy or arranged for a separate briefing had hebeen aware that he was not present. Mr Lee also said that he did not see the MDDleave the briefing. Mr Lee confirmed this in his evidence but said that it wasacceptable for the MDD to leave the briefing, providing he satisfied himself that hehad caught up on everything. S/L Rankin's view was that there was no obligation onhim to attend the briefing, providing he ensured he was properly briefed on what hadoccurred.[211] I consider that S/L Rankin was expected to be present for the entire briefing. Iaccept, however, that there might be emergencies or other circumstances that makethis difficult and impracticable. It seems to have been necessary for S/L Rankin totake the phone call when he did. S/L Rankin said the Australians needed to knowwhether they needed to change their fuel state based on the weather conditionsaffecting their route and that this was urgent. He already knew they were tight on fuel.However, while it might have been necessary for S/L Rankin to leave the briefing, itwas important that he was properly briefed on what he had missed.d) Was S/L Rankin sufficiently briefed on what he had missed[212] It was accepted by S/L Rankin and Mr Lee that it was necessary for S/L Rankinto be adequately briefed on the part of the Saturday pilot briefing he had missed.S/L Rankin's evidence was that, when he returned to the briefing, he asked the personnext to him what he had missed and he was told that it was "no, same as yesterday,just talking about pyros" or words to that effect.[213] S/L Rankin said that after the briefing he went to the Tower and "topped upanything that [he] may have missed by talking to Mr Hogan" when he got there. Hisevidence was that Mr Hogan said he had not missed anything from the briefing. Healso obtained confirmation that Mr Frew and Mr Dovey had landed on the seal on thepractice day. He also discussed with Mr Hogan that the cherry pickers were on thecentre grass and why they were there.[214] Mr Hogan was unable to recall what he discussed with S/L Rankin in theTower. He was therefore unable to assist with whether anything had been discussedabout the pilot briefing. He was able to confirm that he had observed the Yaks landon the seal during the Friday practice and accepted he most likely had told S/L Rankinthis.[215] Mr Lee said it was sufficient from his perspective if S/L Rankin had satisfiedhimself that he had caught up. He said it would be sufficient for S/L Rankin to ask theperson next to him what he had missed, depending on who that person was and whatpart of the briefing S/L Rankin had missed. He said the pyrotechnics briefing wasonly minimally relevant to the display director. He said that everyone in the briefingwere professional aviators and S/L Rankin had been in the display business a longtime. In Mr Lee's view, because S/L Rankin had satisfied himself as to what he hadmissed from the briefing, any further conversation with Mr Hogan about this in theTower was irrelevant.[216] S/L Rankin's method of finding out what he had missed might have beensatisfactory depending on who he was sitting next to, and whether the person knewwhen S/L Rankin was leaving and that S/L Rankin would be asking him to brief himon anything he had missed. There is a gap in the evidence about this becauseS/L Rankin could not remember who it was that he asked. Given the importance ofthe daily briefing and S/L Rankin's responsibilities as MDD, S/L Rankin's method ofcatching up on what he had missed was haphazard and potentially risky.[217] A more careful approach would have at least involved telling the person besidehim (depending on who that was) that he needed to leave and asking them to keep anote of anything said in the briefing while he was absent. S/L Rankin did not suggesthe had done this. S/L Rankin's top-up from Mr Hogan was similarly haphazard andrisky for similar reasons. Mr Hogan was not to know what part S/L Rankin hadmissed, nor what S/L Rankin already knew about the centre grass from Mr Lee andthe practice day briefing.[218] This was confirmed by the evidence of Mr Brown in the following exchangeduring cross-examination:Q. what's your reaction to Mr Rankin's methodology for getting a top-uphere? Would you say that that's satisfactory or would you criticise it as beinginadequate?A. It's certainly not ideal but it – if it was his deputy that was sitting besidehim, which we don't know, so –Q. Well I think we can assume that if it was Squadron Leader Nelson hewouldn't have said in his evidence that he can now not recall who was sittingnext to him, is that fair?A. Yeah, sure. No, all – yes, yeah, it is.Q. Yes, so I think we can assume that it was just some random display pilotrather than the deputy flying display director, deputy military display director.So on that assumption do you not think that Jim Rankin's attempt to top upthe briefing was unsatisfactory, unprofessional?A. It would probably have been better for him to talk to Chris Lee about it, butit does also depend on what he missed. If he missed an explanation of thepyros they're probably not relevant to what he was doing anywhere.Q. Well that's not right, is it? He was display director when the Yaks wereflying and the pyros were being fired. So I don't think you can say that missingthe pyros didn't matter. Do you agree with that?A. Then I guess he did need to know what the pyros were doing. The pyrobriefings aren't generally that exciting, well that interesting butQ. Well they're certainly relevant for someone who's display director at thetime that the pyros are being fired.A. Yes, it would be useful for him to know. He would need to know theprocedure that they were going to use, the radio procedure.Q. And then in the tower which is, I don't know, half an hour later he asksAllen Hogan who in his evidence said he didn't see Jim Rankin disappear andre-appear, again if he'd missed anything. Now how is Allen Hogan going tohave the faintest idea when Jim Rankin was absent to be able to answer thatquestion?A. Well I don't know either because, as I say, I was at the front of the briefingroom and I don't know when he left or what he missed.Q. All right, so I'm asking your expert evidence here rather than yourrecollection of what happened. Do you accept from me that if he didn't seehim leave or return Mr Hogan would have had no idea at what stage Mr Rankinleft the briefing and what he'd missed?A. Yes, that'd sound reasonable, yes.Q. Yes, so asking Allen Hogan, "What have I missed?" is even probably moreuseless than asking the guy I was sitting next to. Is that fair?A. Yes, in those circumstances, yes.Breach of dutya) S/L Rankin[219] I consider that S/L Rankin owed a duty to the plaintiff to be properly briefedon any part of the pilot briefing he had missed that was potentially relevant toMr Dovey's display in respect of which he was to be the DD. I consider this dutyarose out of his assumption of the DD role and the reliance that Mr Dovey was entitledto place on him to perform that role, including that he would be alert to potentialhazards and inform Mr Dovey of any potential hazards of which he was aware.[220] I consider that S/L Rankin breached this duty because he was absent when thecentre grass was briefed as available and he did not arrange an adequate substitutebriefing. His method of finding out what he had missed by speaking to the personnext to him was unsatisfactory. S/L Rankin has not adduced evidence about this toestablish he acted with reasonable care. His discussion with Mr Hogan was similarlyunsatisfactory and was not shown to be a substitute briefing arranged by S/L Rankinwith reasonable care. Mr Hogan's role as part of the DD team was a limited one.Mr Hogan was not to know what S/L Rankin had missed, nor whether S/L Rankin wasaware that the centre grass was available as a result of his discussions with Mr Leeand the practice day briefing. This meant he failed to alert those present at the pilotbriefing that the cherry pickers were now in the middle of the centre grass.[221] If, contrary to my finding, S/L Rankin was present when the centre grass wasbriefed as available, then I consider he acted without reasonable care in failing to alertthose present at the pilot briefing that the cherry pickers were now on the centre grassand so that bit of grass was currently obstructed.b) the WoW defendants[222] For completeness, I consider that the WoW defendants were entitled to rely onS/L Rankin, with their knowledge of his experience and responsibilities, to arrange anadequate briefing of anything he had missed. I note that the 2020 draft Expositionincluded the following addition from the 2018 Exposition: "attendance check,including if anyone leaves the briefing (sought out and briefed again) ". This wouldbe a better approach going forward, but its absence in the 2018 Exposition does notgive rise to liability for the WoW defendants on this topic.What did "available" meanThe issue[223] The next issue concerns what was meant (and what those present were entitledto take as the meaning) when Mr Lee briefed that "we've got that bit available as well.It's clear".Alleged duty[224] The plaintiff alleges that S/L Rankin owed a duty of care to the plaintiff toensure the safe conduct of display routines, to ensure that active runways or vectorsremained clear of obstructions at all times during displays, to close any vector orrunway that was hazardous to aircraft operations, to alert pilots to any obstruction onthe runway or vector that was available for the display pilot to use, and to alertMr Dovey to the presence of the cherry pickers.[225] The plaintiff alleges an array of duties owed by the WoW defendants that areof potential relevance to the briefing of the centre grass as "available" and "clear".The duties of most relevance are the ones that the WoW defendants accept. These arethat the DD had a duty to keep himself informed of risks and hazards that might affectthe safe conduct of the airshow, not to give unqualified clearance to pilots to use thecentre grass at the pilot briefing, to ensure that active runways or vectors remainedclear of obstructions at all times during a display and to close any runway or vectorthat was hazardous to aircraft operations. The WoW defendants submit that the properscope of these duties is determined by the role of a DD at an airshow.[226] The plaintiff submits that when Mr Lee briefed the centre grass as availableand clear it became an active runway, that is, a runway available for pilots to land on.It says that S/L Rankin wrongly proceeded on the assumption that it would only beused if permission was obtained from the DD and that the seal was the "default"runway. It says that, if permission was necessary, it was incumbent on the DD to makethat, or any other qualification as to its use, clear.[227] The plaintiff also says that Mr Lee should not have made the centre grassavailable without having positive confirmation that it was free of obstacles. It saysthe WoW defendants failed to properly consider the implications of making the centregrass available because the decision was made at the last minute, without theopportunity for proper planning. It also says it was necessary for the WoW defendantsto revisit airside effects when making additional areas available and this did nothappen.[228] The defendants contend that Mr Lee did not say that the centre grass wasavailable for takeoff and landing without permission. They say that Mr Dovey shouldhave sought clarification from Mr Lee, and permission to use the centre grass, if it washis intention to use it. They say that is what Mr Brown and Mr Romain did. Thedefendants support this contention on the basis that there is a convention at all NewZealand airshows that pilots will takeoff and land on the designated runways and thereis an expectation by display directors that pilots will do so, absent exceptionalcircumstances. S/L Rankin went further and said the seal runway was the "default"runway.A default runway[229] Relevant to S/L Rankin's interpretation of what making the centre grassavailable meant, was his evidence about there being a default runway. He gaveevidence that it was "such [an] accepted aviation practice that I think everyone almosttakes it for granted" at airshows that if there was a seal runway at the airfield, as therewas at Wanaka, then this was the "default" runway. He said that if someone wantedto land on a grass runway they would advise him of their intention to do so. Otherwise,he expected the pilot to land on the default runway. He said that:I reiterate every display that I can recall every pilot who has not landed on theseal has advised me of such so I think we can surmise that it's a fairlycommonly held belief in the pilot community.[230] Later in his evidence, he again reiterated this point and referred to his"experience over 20-plus years" in support of it. He was asked if Mr Skilling wouldbe aware of this default runway practice. S/L Rankin said that he would and herecalled an occasion when Mr Skilling had advised him at a show that he was goingto land on the grass rather than the seal because there had been a wind change.[231] He explained that this practice was necessary to enable him to coordinate thedisplays and their timing. For example, his intention was for the Yaks to land on theseal and to turn left onto the southern grass at the far end of the runway. The TigerMoth would then be cleared immediately to take off from the seal. He said if one ofthe Yaks landed on the centre grass, then he had a problem. He would either have tomake the second Yak wait on the centre grass until the Tiger Moth had taken off, or hewould have to delay the Tiger Moth's takeoff while the Yak taxied across the seal toget to the southern grass. Either option would delay the programme by a minute and,if that happened all the time, "suddenly your display is running half an hour, an hourlate, and that is not acceptable, it can't be allowed to happen".[232] Mr Skilling disagreed with the concept of the seal as a default runway. In hisview, this concept, and a requirement to notify the display director if intending to landon the grass runway, was "totally wrong". He said that in 35 years of display flyinghe had never heard of the term "default runway". He said the display routine does notinclude a runway option and it is up to the display pilot to choose an available runway.If there are two runways available, grass or seal, the pilot takes the runway that is mostsuitable for his (or her) aircraft and conditions on the day.[233] Mr Falconer said that for the Wings over Wairarapa airshow there is a seal anda grass runway and from the DD's perspective neither had priority over the other. Theyare both available for the pilot to choose to land on depending on their aircraft typeand preference. If they are briefed as available there is no distinction between them.[234] I conclude that there was not an established practice, which pilots at an airshowwould be expected to know of and adhere to, that they were to land on the seal as thedefault runway unless they advised the DD otherwise. If there was such a concept,then Mr Skilling would have known of it and Mr Falconer would have applied it atWairarapa. No other witness supported the default runway concept. I put this conceptaside when considering what "available" and "clear" meant.The designated runways[235] A similar concept to a default runway was that airfields had designatedrunways. These were the runways published on the AIP landing plate. For Wanaka,these were the seal and the northern grass. Mr Brown's view was that permission wasneeded from the DD if a pilot wished to land on a vector other than one of thedesignated runways.[236] Mr Brown explained that during the display hours of an airshow, if the airshoworganiser has operational control over the whole airfield, then he has absolutediscretion over what airside areas he can make available to display pilots for takeoffand landing. Nevertheless, he considered that approval to land on the centre grass wasnecessary because the designated runways remained those on the landing plate. Hedescribed it as a convention to use designated runways unless there was a good reasonnot to.[237] Mr Brown considered that he had obtained permission for the Harvardformation to land on a vector other than the designated runways at the pilot briefingon the Saturday morning. His view was that any other pilot at the briefing wanting touse the centre grass as an alternative should have advised the DD of their intention andreceived approval to do so. He said he took Mr Lee's response of "you can, yes" tohis question of whether they could land "left and right" as approval from the DD tocarry out this landing manoeuvre. He said that if Mr Dovey wanted to land on thecentre grass he too should have sought approval from the DD to do so.[238] Mr Lee had a similar view. He said the briefing materials showed the landingareas. He said that making the centre grass "available" did not mean permission touse it was granted. He said it was like a motel. It might be available but you stillneeded to book it. He considered that "available" meant a pilot still had to contacthim if they wished to use it. He thought this would have been known to everyone atthe briefing.[239] Mr Lee regarded his response of "Yes" to Mr Brown's question about landingleft or right as granting permission to him. I have found that, contrary to S/L Rankin'sand Mr Lee's evidence about this, Mr Romain did not get permission to land on thecentre grass at the briefing. However, Mr Lee said Mr Romain "would have also gotclearance to land" on the centre grass from the Tower during his display. He said hedid not know if he did get this clearance but he was "reasonably sure" he would havebecause this was "just a normal process normal pilots doing normal airmanshippractices". Mr Lee also said that later in the event, other aircraft were given approvalto use the centre grass and this was generally given on the basis of it being clear ofobstructions and fitting with the overall plan.[240] In Mr Lee's view, this meant that, even though the cherry pickers were notmeant to be pre-positioned on the centre grass, that should have been manageablebecause display pilots would not have been given approval to use the centre grass. Ashe put it:So you know, at 10.05, you know, we could have put all those light aircraftonto that grass. So it's being used by someone else at the time, someone elseinvolved in the air show. We haven't closed it. It's just no[t] available at thatpoint. It can't be used because it's blocked either with aeroplanes or withcherry pickers or whatever it might be. So take away the cherry pickers, justforget that for a moment, because the LSA people could have taken their stuffout if they'd been allowed to do it in a more simple way. They would have justsimply been given clearance to cross the runway onto the grass and they wouldhave waited for the Yaks to land and then they would have set up for theirdisplay. So in that particular instance, the Yaks would have been expected toland on the runway and the grass of course was being used by other air showitems.[241] Mr Lee's view was supported by S/L Rankin. Regarding his conversation withMr Lee on the practice day, S/L Rankin said that Mr Lee "did not say (and nor did Iunderstand him to suggest) that by removing the tyres the centre grass was beingopened for display pilots to land on without seeking express approval to do so". Hesaid "it was not my understanding that it would be made available to all and sundry".He said he took from this conversation that it would be available "but not as adesignated runway".[242] S/L Rankin said he interpreted Mr Brown's discussion with Mr Lee at theSaturday pilot briefing as a request for approval to use the centre grass rather than aquestion about the condition of the surface. S/L Rankin's "very clear understanding"was that the centre grass would be used by the LSA, the Harvards (to get their aircrafton the ground in a prompt manner) and by Mr Romain because of the peculiar landingcharacteristics of the Messerschmitt 109. He said it was implied in the briefing thatpermission was required.[243] As already discussed, I have found that S/L Rankin was probably not presentat the Saturday pilot briefing when Mr Lee advised that the centre grass was available.I therefore treat S/L Rankin's evidence about his interpretation of what was said at thebriefing as being based on his understanding from his discussions with Mr Lee on theFriday, and an ex post facto interpretation of what was meant on the Saturday in thelight of the Friday discussions and his view about default and designated runways.[244] It is apparent from Mr Lee's and S/L Rankin's evidence, however, thatpermission to land on the centre grass could be obtained by radio during the display.Mr Lee thought Mr Romain would have done just that. Similarly, S/L Rankin said heexpected a pilot wanting to use the centre grass to advise the display director, either atthe pilot briefing or by radio well ahead of doing so.[245] It was evident from S/L Rankin's evidence, however, that all that was reallyrequired was advance notice to the DD of a pilot's intention. He said, while permissionfor two groups of pilots had been given to land on the centre grass at the briefing,"people might have subsequently said, even on the radio, 'Hey, I'm going to land onthe grass', that would be fine". He said his "expectation" was that any pilot intendingto land on the centre grass "would seek approval and/or just advise in advance thatthat was their intention".[246] S/L Rankin also accepted that pilots at the Saturday briefing may not haveinterpreted Mr Brown's questions of Mr Lee as a request for permission if they hadnot been part of the discussions on the practice day about its use:Q. But as a person who was not party to any of those previous conversations,as a person who was apparently sitting there listening to this question andanswer from Mr Brown and answered by Mr Lee, would you not come to thesame conclusion as Mr Lamont, namely that this was not a request forpermission to use the grass area?A. Yes.[247] I consider that this was Mr Lee's view in reality as well. It was not that priorpermission was necessary because of any recognised convention about designatedrunways. Rather, it was that a DD needed notice of a pilot's landing intentions so thatthey could provide the necessary passive control of the displays and alert pilots tohazards or take steps to remove them.[248] This comes closer to Mr Lamont's view. Mr Lamont said that WoW is notlimited to the layout of the airfield shown on the plate because it has control of theairfield for practice and display periods. He said it was well known that the grassimmediately to the north of the seal runway (that is, a part of the centre grass) was thebest bit of grass and was used as the grass runway until the northern grass was openedup.[249] In response to the suggestion in the defence case that Mr Romain gotpermission to use centre grass, Mr Lamont said he did not see it that way. Rather, hewanted a better landing area and that was made available to him. Getting a betterlanding area was the main driver for opening it up. Mr Lamont regarded Mr Brown'squestion about landing left and right as a question about the suitability of the surface,not a request for permission to land on that surface. He explained that the centre grasswas not a maintained surface so the grass was "stubble" and there could be rabbitholes.[250] He considered the implication of Mr Lee's briefing was that it was available ata pilot's discretion. He said that if pilots left the meeting understanding the centregrass was available to use at their discretion, he still would have expected them to tellthe DD that they were intending to land on the centre grass if that was their intention.He said "that's just the way the system works". The DD and pilots are all workingtogether and the DD "can't do his job unless he knows what's going on". For example,as is discussed later, the MDD held the Tiger Moth clear of the seal because that waswhere he understood the Yaks were going to land. However, Mr Lamont also acceptedthat once the centre grass had been made available at the briefing, the DD shouldprobably have alerted the pilots to the cherry pickers on the centre grass.[251] Mr Skilling was an attendee at the Saturday briefing. Mr Skilling regarded thelanding plate as showing the "designated runways" for civil uses, but in an airshow,once the display director briefed an area as available, then it was available.[252] He explained:Q. So you know between the 2016 and 2018 show that the northern grassbecame the designated grass runway at Wanaka, don't you?A. For civil use, yes.Q. For civil use, right. So before that, when you talked about landing on thegrass at Wanaka, you wouldn't be talking about that northern grass area. You'dbe talking about what people are calling in this case the centre grass, correct?A. Well all the grass. That includes the northern grass, as you're calling it now,the 29/11 northern grass since 2016 became the civil requirement, but for theair show, the whole of the grass was available and I just call it the grass.[253] He "strongly disagree[d]" with the suggestion of Mr Brown that pilots neededpermission if they wished to use the centre grass that had been briefed as available. Inaccordance with "normal airshow briefing protocol", he regarded Mr Lee as havinggiven all pilots permission to use it. He said the thought that every pilot would haveto ask for specific permission from Mr Lee before they could use the grass was "justnot how airshow briefings work" and was not how the pilots at the briefing wouldhave understood it.[254] It was put to Mr Skilling that making the centre grass available did not mean itwas available at all times. Mr Skilling's response was:That's never the case. I mean, if Chris [Lee] said, "All of the grass isavailable," that means all available. Now, obviously lots of times it's not goingto be available when aircraft are taking off or landing or crossing or blockedso he's not gonna say to us at the briefing, "They'll be occasions when theaerodrome won't be available because it will be blocked or people taxiing," Imean, it just doesn't, it doesn't work that way.[255] It was put to Mr Skilling that there might be, for example, re-enactments onthe airfield while a display was taking off or landing. Mr Skilling said "[y]es, butthat's full[y] briefed". He said the DD would tell the pilot that the grass was blockedand if it turns out that something is obstructing an active runway on which an aircraftis going to land, he will advise the aircraft to go around immediately. In other words,in Mr Skilling's view it was not the case that Mr Dovey needed to anticipate that thecentre grass might not be available to him to land on and that he therefore needed toseek permission before landing on it. Mr Skilling's view was that the centre grass wasavailable and, if it was not available from time to time, the display pilots at that timewould be informed of that.[256] Mr Skilling's evidence is therefore consistent with Mr Lamont's. Permissionwas not needed. The centre grass was available to pilots at their discretion. The DDwould advise the pilot if the centre grass would be obstructed at any time because ofother movements authorised by the DD. I consider this was what Mr Hogan meantwhen he was asked about his understanding of Mr Lee's briefing and said:Oh, it meant that depending on the situation at any one point in time that youcould use it but it's subject to not having something in the way of you whenyou're going to take-off or land [257] Mr Falconer said that his understanding of what Mr Lee had said was that thefull width of the grass was available as an active runway. Once the full width of thegrass was announced as available, pilots of aircraft could be expected to choose toland on the centre grass. He said:A. Well it's always dependent on the wind, but on the normal day in Masterton,they'd be landing towards the east on what they call the zero 6 runway. We'refortunate like Wanaka that we have availability on both the sealed and a grassrunway. At the briefing, we would state which runways were available andunless there was some restriction or conditions about the use of either runway,they would be available for use according to the pilot's choice.[258] He considered that, if Mr Lee had intended something else, then he should havespelled it out. About the position at Wairarapa, he explained:Q. Yes, are there any circumstances in which one of them is barred and theother ones open?A. Only if obviously aircraft are on the runways or are taxiing across therunways. There is the odd time when they will be obviously unavailable tolanding on but that's all part of the display programme and the flight displaydirector team coordinating it.[259] Mr Falconer considered that the effect of what Mr Lee had said was that"subject to any alert from the Display Director in the tower, a pilot was entitled to landon any part of the full width of grass just as he/she was entitled to land on the seal".He said that if there were limits to this or permission was needed then this should havebeen made clear. He said: it is paramount that the pilot briefing clearly states what runways are inuse, any likely, potential or temporary hazards, limiting any misunderstanding,so the FDD has confidence that what has been briefed will be complied with.[260] Mr Skilling and Mr Falconer's opinion about what "available" meant was howMr Dovey understood it. He left the briefing understanding that Mr Lee had made thecentre grass available for takeoff and landing, as had been the case in previous years,so that it was now an active runway.58 He understood that all the grass area was nowavailable for landing without restriction. Mr Dovey said it was not necessary forMr Lee to say that the centre grass "was now an active runway". It was his view thatthis is how most pilots in the room would have understood it. As he said, this was abriefing by an experienced pilot to other experienced pilots.[261] Mr Dovey knew nothing about the discussions between Mr Brown and Mr Leeon the practice days about opening up the centre grass. The oral briefing on theSaturday morning made no mention of any obstructions on the centre grass orrestrictions as to its use. He understood Mr Brown's questions to be about thecondition and suitability of the surface of the centre grass for an aircraft like theHarvard. Mr Dovey said that, if it was intended by Mr Brown or understood by Mr Leeto be a request for permission to use the full width of the grass to land, "then that iscertainly not how I understood it".[262] Mr Dovey considered it was not necessary for Mr Lee to say that the centregrass would be kept free of obstructions during the show. He said that during anyairshow there can be temporary obstructions from transiting aircraft, people andvehicles, but airfield operators never intentionally obstruct an active runway and theywould close the runway, notify pilots of an obstruction and have it removed.59 This58 He was present when Mr Lee said the centre grass was available. Mr Dovey had permission fromMr Lamont to leave the briefing when the pyrotechnics briefing began. This was because heneeded time to prepare his aircraft. Mr Frew was able to stay for the pyrotechnic part of thebriefing because he had someone else who could get his aircraft ready for him and was in a positionto brief Mr Dovey on any matters arising from that part of the briefing.59 See, for example, the transmission at 19:50:25, which equates to 8.50.25 am NZDT. Airways toZK-TSM: "Tango Sierra Mike caution between the seal runway and the grass you're landing on,at the midpoint there are two cranes just sitting in the middle there".was his understanding about the centre grass as well once it had been briefed asavailable.[263] Similarly, Mr Frew, who was present for the entire briefing, said that he leftthe briefing with the understanding that the full width of the grass was available tohim if he chose to use it. He certainly did not understand from what was conveyed atthe briefing that it was available only to pilots who asked to use it or were givenpermission to use it. As it had been briefed as available, it was his view that it was anactive runway and it should not have been obstructed.[264] I conclude that permission was not necessary to land on the centre grass justbecause it was not a designated runway. I reject the related suggestion of a conventionthat, in circumstances where an airshow organiser makes another landing vectoravailable, pilots were still expected to land on a designated runway unless there wasgood reason not to do so. Mr Lamont, Mr Skilling, Mr Dovey and Mr Frew did nothave that understanding. They are all experienced pilots who could be expected toknow of this convention if it was one that was generally established and accepted inthe context of a civilian airshow.[265] Mr Falconer was also not aware of such a practice. The defendants sought todiminish his display direction experience. But the reality is that he had been in thedisplay direction team at Wings over Wairarapa for several years and was the DD atits 2019 airshow. If the convention was generally established and accepted in thecontext of civilian airshows, he could be expected to know of it from this experience.[266] Lastly, the defendants called no other display pilot attendees (of which therewere many), to support the evidence of Mr Brown, Mr Lee or S/L Rankin thatpermission was needed to land on the centre grass because it was not a designatedrunway, a default runway or for some other reason. If the briefing was ambiguoussuch that pilots should have sought clarification about its availability, I would haveexpected there to have been evidence from other pilot attendees to support this.Available at the pilot's discretion[267] It follows that I accept the evidence of Mr Lamont, Mr Skilling, Mr Falconer,Mr Dovey and Mr Frew, that the effect of Mr Lee's briefing was that the centre grasswas available as a landing vector to display pilots at their option. It also follows thatMr Dovey did not need to seek clarification about whether it was available to him.Pilots wishing to choose this vector would need to take into account that it was not amaintained surface, as the designated runways were, but Mr Hogan had inspected therunway and Mr Lee had confirmed that the surface was "fine, particularly for like aHarvard its fine".[268] Briefing the centre grass as available meant that pilots could effectively choosebetween three landing vectors – the seal, the centre grass and the northern grass.Another way of looking at it was that a pilot had the choice between the seal and thegrass, and the grass included any part of the grass from the edge of the seal to the farside of the northern grass runway.[269] That did not mean the centre grass would be clear of obstructions at all times.As Mr Skilling said, "that's never the case". But as is the case whenever any knownobstruction was on a runway available for takeoff and landing, the DD would advisedisplay pilots of it. Mr Lamont agreed that the DD should have mentioned the cherrypickers if he had been aware of it.[270] In reaching this view I have taken into account that the defendants criticisedthe independence of Mr Skilling and that Mr Dovey and Mr Frew were involved inthe accident and so were not necessarily impartial. However, I found Mr Skilling tobe a straightforward witness who gave his evidence as he saw it based on his extensiveexperience. Mr Frew also came across as a straightforward witness who answeredquestions directly and without unnecessary flourishes or attempts at persuasion.Mr Dovey struck me as a careful and thoughtful man, who would not have suddenlydecided to land on a vector unless he was clear that it had been made available to pilotsfor landing. Moreover, Mr Lamont, who was an impressive witness, agreed with themon this issue.[271] It is a different question whether the pilots were expected to advise the DD oftheir intentions. S/L Rankin, Mr Lee and Mr Lamont all thought they were. I discussthis later.A last-minute decision[272] Although it was accepted that WoW could make the centre grass available as alanding vector, the plaintiff says the decision was made too close to the opening of thedisplay without an adequate opportunity for risks to be properly considered andaddressed.[273] It was put to Mr Lamont that this was a last-minute decision to activate thecentre grass area. Mr Lamont said "well, it wasn't planned earlier on, yes, so I s'poseit was a late change, yes". He explained that it had not really come to their attentionuntil right at the start of the show that people were concerned about the condition ofthe northern grass.[274] The draft 2020 Exposition proposed including the centre grass as a publishedlanding area "in light of what we now know" and because the QAC had not beenmaintaining the northern grass. It was put to Mr Lamont that, if the centre grass hadbeen planned as a landing area ahead of time for the WoW 2018 show, the accidentwould not have happened. Mr Lamont accepted "it probably wouldn't have, no".Mr Hogan also said that, if it had been thought about ahead of time, it would havebeen possible to include the centre grass in the Exposition. He accepted that"possibly" would have avoided the accident.[275] Mr Lee did not know why the FDC had not considered having the centre grassavailable earlier. His involvement in that committee was more programme thanairfield-focussed. He considered it was not necessary to do a formal risk assessmentbefore opening up the centre grass.[276] Mr Taylor was not aware that the centre grass had been opened up. However,he would not have expected to be informed about this because he saw it as anoperational matter for the Flying Display team. Mr Taylor said Mr Lee and Mr Lamonthad the delegated responsibility to run the flying displays. It was a matter for themwhether to open up the centre grass. He had faith in them and he did not think it wouldbe a good idea for him, as someone without aviation knowledge, to be second-guessingthem. He elaborated: it's 30 years old and our systems and processes have been continuallyimproved. It's a dynamic event and we're making tweaks to the air showmanagement processes all the time. Things change all the time. New healthand safety regulations, new aviation regulations so, as I said, no two air showsare the same. All our documentation is completely reviewed and updated interms of safety, in terms of all aspects, that's not just in the air. That's on theground. It's, you know, we have, you know, with 55,000 people, we have ahuge responsibility in terms of making sure everyone is as safe as possible andwe go out of our way and I implicitly believe in the expertise of the guys thatI have running my fly and display programme.[277] I consider the decision to open up the centre grass was made for good reasons,as Mr Lee explained. While it was relatively last-minute, it was under considerationfrom the Wednesday or the Thursday and the grass was subject to Mr Hogan's dailyrunway inspections and the tyres being removed. The pilots had advance notice thatWoW were looking to open the centre grass when it was mentioned at the Fridaybriefing before the practices. The MDD had advance notice of this on the Fridaythrough seeing the tyres being removed and his discussion with Mr Lee. He wouldhave been aware that it had been made available if he had not missed that part of theSaturday briefing, or been properly briefed on it (or had paid it sufficient attention ifhe was in fact present).[278] The problem arose because the MDD did not understand that the centre grasswas available for landing at the pilot's discretion. This could have been avoided ifMr Lee and S/L Rankin had discussed the implications of this. While Mr Lee had toldS/L Rankin on the practice day that he was intending to make it available for takeoffand landing, this seems to have been a brief mention without discussion. Theimpression I was left with was that they each respected the other for their experienceand assumed rather than explicitly confirmed they were each on the same page aboutwhat this would mean.[279] Even if they were on the same page about what it meant, a discussion of theimplications for the display would have assisted in clearing up any issues that mightarise from that. In other words, there should have been a joint risk assessment(involving Mr Lee, Mr Lamont and S/L Rankin) about the late opening displaysubstitution and the late decision to open up the centre grass.[280] Had that occurred on the Friday in relation to the centre grass, it seems likelythat S/L Rankin would have not suggested that the cherry pickers be moved to themiddle of the centre grass the next morning. Had the joint risk assessment occurredafter Mr Lamont had discussed with Mr Dovey and Mr Frew the possibility of doingthe opening display, it seems likely that S/L Rankin would have mentioned that he hadjust asked for the cherry pickers to be moved to the middle of the centre grass. Eitherway, a risk assessment would likely have identified that pre-positioning the cherrypickers on the centre grass was a hazard. That would have ensured the cherry pickerswere not on the centre grass, or if they were to be pre-positioned there, that Mr Leeadvised the pilots at the briefing that the centre grass was not available until after theLSA display.[281] I consider that Mr Taylor was entitled to rely on his experts, but writtenprotocols for risk assessments of proposed significant changes (which opening up thecentre grass was) would likely have assisted his experts in deciding what changes theycould safely make. The alternative to proper risk assessments of late changes was toplan for the availability of the centre grass at an earlier stage. It could have beenconsidered earlier and included in the WoW 2018 Exposition.Breach of dutya) S/L Rankin[282] The RNZAF defendants submit that S/L Rankin acted with reasonable carebecause his understanding of the availability of the centre grass was a reasonable one.I do not accept this submission. As discussed, S/L Rankin advanced the notion of adefault runway that no other witness supported. As also discussed, S/L Rankinaccepted that the centre grass was available to anyone who advised of their intentionto use it, subject to there being no obstructions on the vector at that time. He did notconnect the dots that this potentially included the opening display and the cherrypickers he had directed be moved had now become a hazard.[283] I consider that S/L Rankin breached his duty of care to the plaintiff, as the DDfor the opening display, by failing to discuss with Mr Lee whether there were anylimitations on to whom the centre grass would be available and whether his recentdirection to move the cherry pickers had become a hazard. Acting with reasonablecare, he would have identified that hazard.b) WoW defendants[284] I consider the relevant WoW defendants breached a duty of care to the plaintiffby briefing the centre grass as available without qualification, without an adequate riskassessment of the implications of this and without involving S/L Rankin in thisassessment. This was a product of early planning for the WoW 2018 event notidentifying that the centre grass might be made available, the absence of writtenprotocols for risk assessments of any significant changes made close to or on the dayof the show, and a misplaced reliance on conventions or understandings about airshowpractice that were not generally known by participants as applicable.[285] I consider that with reasonable care, the hazard presented by the cherry pickersbeing pre-positioned on the centre grass would have been identified before the pilotswere told that the centre grass was available without qualification.c) Contributory negligence[286] I consider Mr Dovey was not negligent in failing to seek clarification about theavailability of the centre grass to him. In common with the understanding it seemsthat most pilots present had, Mr Dovey was entitled to walk away with theunderstanding that it was a landing vector available to him.The choice of landing vectorThe issue[287] I accept Mr Lee and Mr Lamont's evidence referred to above that a show worksbest if a DD knows the vector on which a pilot will land. The question is whether thiswas required or expected and if so in what circumstances, and what the responsibilitiesof the DD on duty are in this respect.Alleged duty[288] The plaintiff alleges that S/L Rankin had a duty to provide a competent displaydirection service, ensure the safe conduct of displays, monitor the safety of the displaysand to alert display pilots to any obstruction on a runway or vector available for thepilot to use. The plaintiff submits S/L Rankin breached this duty by assuming that thepilots would land on the seal when there was not a proper basis for making thatassumption.[289] The RNZAF defendants submit that the duties are framed too broadly and thenature of passive control must be kept in mind. They say that a DD never givesinstructions to display pilots as to where to land and nor do they give clearances toland. They say that, absent the formation clearly signalling the landing intentions,S/L Rankin was reasonably entitled to expect that Mr Dovey would land on the seal.This was because of the convention that pilots land on designated runways unless thereis a good reason not to do so (which I have already discussed and rejected), theconvention that formation pilots follow their leader, and the ADD's briefing in theTower that the opening display would be taking off and landing in stream on the seal.[290] Similar duties are alleged in relation to Mr Lee. The relevant alleged breachesmainly relate to matters that are discussed under other headings because Mr Lee wasnot the DD for the opening display. However, the plaintiff also submits that WoW Ltdhad a duty to have proper systems in place to avoid risks that might affect the safeconduct of WoW 2018. WoW submits it did act with proper care in organising andmanaging the show. It says that Mr Dovey made a last-minute decision to land on thegrass departing from what was approved on the practice day, from a convention thatpilots will land on the same runway as they have landed on the practice day, and fromthe convention that formation members follow their leader.Landing preferences[291] Before discussing the conventions relied on by the defendants, I note that theevidence was clear that different pilots have different runway preferences dependingon their aircraft and the type of landing they wish to do. For example, the typicalpreference for landing a Harvard is a grass vector.[292] The Yak-3M is technically a light aircraft but its landing speed is about 50 knhigher than most light aircraft. It is a tail-wheel aircraft. Mr Dovey has always landedthe Yak 3 in the "three point attitude" at touchdown. This is where all three wheelstouch the runway at the same time. The advantages of this type of landing are a shorterlanding distance and the locked tail wheel assists with maintaining directional controlfrom earlier in the rollout, reducing the risk of a ground loop (that is, a suddenmovement of the aircraft in a circular direction, likely to cause damage).60[293] Mr Frew's preferred landing is a "wheeler". This means that the main wheels(at the front) touch first and the aircraft remains horizontal until it has slowed to aspeed at which there is no longer enough lift over the elevators to maintain thatattitude. At that point the aircraft assumes a tail-down attitude and the tail wheeltouches the ground. The wheeler landing has a higher speed at touchdown than thethree- point landing but retains better visibility of the runway until the aircraft assumesthe tail-down attitude. Mr Frew's Yak is better suited to the wheeler landing thanMr Dovey's Yak because it has better braking power.61[294] Mr Dovey's preferred vector is the grass for his aircraft and the three-pointlanding he uses. In previous WoW shows, in accordance with his preference,Mr Dovey landed on the centre grass. He considered the northern grass runway to bean unsuitable landing vector for the Yak because of its condition and the Yak's landingspeed. Mr Frew prefers to land on the seal because "it is usually a smoother surfaceand because there should be minimal risk of stone damage to the fuselage". Theevidence did not directly address whether, when they flew a pairs routine at WoW2014, Mr Frew had landed on the seal when he would have been following Mr Doveybut Mr Dovey did say he had never seen him land on a grass runway.[295] At the WoW 2018 practice Mr Frew and Mr Dovey commenced their displaytaking off from the seal. They completed the air display as per the routine in Mr Frew'semail and as approved by Mr Lamont. They landed on the seal. Mr Frew did a wheeler60 The tail wheel is locked into alignment with the fore and aft axis, which keeps the aircraft straightduring the rest of the roll out. Once the aircraft has slowed to taxiing speed, the tail wheel isunlocked to enable the aircraft to be manoeuvred.61 Mr Frew has had disc brakes fitted in his Yak (as opposed to drum brakes, which have lesserbraking power).landing and Mr Dovey did a three-point landing as per their respective preferences.Mr Lee watched the practice. Mr Lamont and S/L Rankin did not.62[296] Although Mr Dovey preferred a grass vector, when faced with a choicebetween the seal and the northern grass runway, his preference was the seal. He hadlanded on the northern grass runway at Wanaka on one occasion and found the surfacetoo rough.63Does the approved routine include the landing surface[297] It is accepted that deviations from approved routines were not permitted. Thatis not is disputed. As set out above, the written pilot briefing stated that the DD "mustapprove any changes to a display routine" and that "[s]pontaneous or 'ad lib' displaysare prohibited". Similarly, Mr Lee's PowerPoint slides for the daily pilot briefingstated that pilots "must not deviate from the planned display routine with spontaneousor ad lib displays!".[298] The WoW defendants say that the approved routine includes the landing (alsoreferred to as "the recovery"). They say that this means a pilot cannot deviate fromthe landing as approved on the practice day without express approval from the DD.They say that Mr Frew and Mr Dovey's opening display was an abbreviation of thedisplay they were scheduled to fly later in the day. They say that the routine wasbrought forward in time and did not constitute a new display. They say that this meantMr Dovey was required to land on the seal because this was what had been practicedand approved by Mr Lee on the practice day.[299] I reject the submission that the approved and practiced routine included thelanding. Mr Frew and Mr Dovey's approved routine for the show was set out inMr Frew's email of 25 March 2018. This email described the routine as follows:Our routine is:A curving canopy pass downwind pulling up into a wingover.62 S/L Rankin attended the Friday briefing but did not watch the Yak practice display. He wasbriefing the military display on the lakefront at this point. The Yak display was not relevant tohim at that point because he was not scheduled to be the Display Director for that display.63 Mr Dovey kept his Yak at Wanaka so landed there at times other than display events.Cuban 8Barrel Roll into wingoverAileron rollDerry turnPull up at crowd centre to loopRoll on down line to position forLow passComplete5 mins.[300] There is no mention in that email of where the pair would land. Consistentwith this, Mr Frew said the landing part of a display is not discussed with the FDP.Similarly, Mr Dovey said the routine is the manoeuvres agreed between the pilot orthe leader of the formation and the DD. He said the approved routine never includesreference to the landing. What the DD will and needs to know is whether the pilotswill be landing immediately after their display, or whether they are to go into holdingpatterns and return when they are involved in later displays.[301] Mr Lamont agreed that the approved routine did not include any mention ofthe landing. He agreed with the proposition that the process of getting an aircraftairborne and into a holding position ready for a display and the method of returningthe aircraft to the ground was not normally part of the display routine. They were theindividual pilot's responsibility, operating under any verbal approvals from the DDwhen needed.64 The exception to this was where the takeoff or landing was exciting,outlandish, or involved something special and was intended to be part of the routine.[302] Mr Brown's view was to similar effect:Q. Well we've heard in evidence [that] Mr Lamont asked Mr Dovey andMr Frew to fly as the opening display and did you hear any mention in thatevidence of instructions as to how to land?A. No I didn't.64 This proposition, accepted by Mr Lamont, came from a letter written by the WoW defendants'solicitors acting on instructions. Counsel for the WoW defendants objected to the letter claimingprivilege. However, the letter does not attract privilege. It simply set out the WoW defendants'position on various matters in response to the plaintiff's counsel contention that there wereshortcomings in the pleading particulars provided by the WoW defendants.Q. And you wouldn't expect those instructions to be given by Mr Lamontwhen asking Mr Frew and Mr Dovey to fly the opening display, would you?A. No, not normally.Q. No. Unless there was something special that he wanted them to do by wayof landing. He'd just leave it to them to sort out the landing betweenthemselves?A. Yes.Q. So just coming back to your paragraph 61 then, do you accept that landingsomewhere of your own choosing is not a change to the routine?A. Well no, it wouldn't be in this case because it's not specified.Q. No.A. But if your routine specified what you were going to do for landing, thenyou should stick with that.[303] S/L Rankin said that there was an expectation that what a person did in thepractice would be what they would do in the display. He said something liketwo-thirds of all displays finished with the aircraft landing, so the landing was anintegral part of the display. He said the landing was part of the Yaks' opening display.It was put to him that this differed from Mr Lamont's view. S/L Rankin said "[i]n thatcase I disagree with Mr Lamont". Similarly, Mr Lee said that he expected the Yaks toland on the seal, as they had done on the practice day. It was his view that, if theywished to change their routine, with one landing on the seal and the other on the grass,then he should have been consulted by the formation leader. (He also advanced thesuggestion, not supported by any other evidence, that displays normally landed on thesurface from which they had taken off and that he had relied on this also.)[304] However, neither S/L Rankin and Mr Lee's evidence as a whole went as far assaying that landing on one surface on the practice day and landing on another on theday was a "deviation" as contemplated in the briefings. I accept the plaintiff's positionthat the prohibition on deviation related to manoeuvres once the aircraft was airborne- the display component as approved by Mr Lamont initially in planning the show, andthen by Mr Lee at the practice. This meant that Mr Dovey was not in breach of therules established by the pilot briefings in landing on the centre grass for the openingdisplay when he had landed on the seal on the practice day.Did the practice give rise to an expectation about the landing[305] A related question is whether the choice of landing surface on the practice daygave rise to an expectation about where Mr Dovey would land for the opening display.At its highest, S/L Rankin's and Mr Lee's evidence was couched in terms of anexpectation or convention. However, what might have been expectation or convention(to which I will return) was clouded by the fact that, at short notice, Mr Dovey andMr Frew had been asked to do an opening display. This was to be a pairs (loose)formation with the elements (a high speed pass, followed by a wingover, returningback for a buzz and break and landing) agreed orally. It was not discussed withMr Lamont or anyone else where the pair were to land.[306] It was generally agreed that the approved and practised routine contained someof the same elements as the agreed opening display. For example, S/L Rankin said "itwas the start and finish of the display practised on Friday" and gave a music analogyof playing the first and last verse. Mr Lee said the substituted opening sequence was"identical to parts of the Yak sequence on practice day and raised no concerns withme". Mr Dovey said the opening display was a "very simplified version" of thepractised routine. Mr Frew said it was an "[e]xtremely simplified" version of theapproved routine practised on the Friday. Mr Skilling agreed with the proposition thatthe opening display was the same as the practiced display with elements missing.[307] S/L Rankin apparently assumed the pair would land on the same runway asthey had done during their practice. He sought to justify this assumption on the basisthat the opening display was the start and finish of the display practised on the Fridaywith the middle part removed. He said he was aware of the content of the practicedisplay because he asked Mr Hogan about it in the Tower. He said:I would expect that what they flew the day before in practice is what theywould do the next day. Unless they wish to change their routine in some waythere is an expectation, took off on the runway, land on the runway. Exactlythe same as the day before.[308] Mr Lee also said that he expected the Yaks to land on the seal because they haddone so on the practice day. He said that if they wished to change their routine, withone landing on the seal and the other on the grass, then he should have been consultedby the formation leader. This is because there can be other aircraft, vehicles orequipment on the grass at any given time getting ready for their display or from a priordisplay. He said that if he had known Mr Dovey was going to land on the grass itwould have been manageable.[309] However, having common elements or being a simplified version of theapproved and practised routine did not make it the same routine. Mr Frew's view wasthat the opening display was not the same display that had been approved for later inthe show. He said it was "a completely separate event, it was the opening of the airshow". He described it as:A very simple display which incorporated elements of what we did in ournormal display but there was no aerobatic function to it. It was purely to flypast the airfield while the pyrotechnics went up to announce the opening ofthe show and then the position so that we could efficiently land.[310] He accepted that a DD would expect a display to be carried out in the sameway as it had been in practice but said "we weren't flying our display. We weren'tchanging routine, we were flying a completely different display".[311] Mr Lamont accepted that the opening display was not the display that was setout in Mr Frew's 25 March 2018 email for his approval. It was a new display agreedorally and, in giving Mr Frew and Mr Dovey instructions on what he would like themto do, he made no mention of their landings.[312] Mr Brown's evidence was to similar effect:Q. But it's probably better to think of Mr Lamont's instructions as a discreteopening display that he specified rather than try to take a blue pencil to whatwas practised the previous day, isn't it?A. Yes, it's certainly what was described as the opening display is not what'sthere on the screen [the description of the routine set out in the 25 March 2018email].[313] I consider that the practice on Friday did not entitle S/L Rankin to assume,without further and proper enquires, that the Yaks would land on the seal after theopening display because that is what they had done at the practice. The openingdisplay was not the approved display that had been practised even though it had someof the same elements. It was a new display that Mr Lee and Mr Lamont were satisfiedthe pair would be able to carry out because of their experience and ability and becausethere had been no issues with their practice.[314] Quite apart from whether the opening display could properly be regarded ashaving been practised, I am not satisfied that there was a convention that a pilot landson the same runway as in their practice, or at least one that is sufficiently well-knownthat it entitled a DD to rely upon it without further enquiry. Even if display pilots oftenlanded on the same runway as on the practice day, other factors on the day might makeanother runway or vector preferable for the pilot. One of those factors might bewhether another runway or vector has been made available.[315] Mr Dovey disagreed that it was reasonable for the DD and the MDD to expecthim to land on the same runway as he had during the practice because the choice ofrunway is at the pilot's discretion and depends on the runways that have been briefedas available. When they practised on the Friday the centre grass was not available, butit became an available choice for the Saturday.[316] Mr Frew said that, as leader, he had the choice of seal or grass for landing. Hisexpectation was that the airfield was fully useable. He chose the seal because, allthings being equal, that was his preference. Mr Frew said he had no expectation thatMr Dovey would land on the seal because he had landed on the seal in practice. Hesaid "no two landings are the same". It was a matter for Mr Dovey.[317] Mr Skilling supported the evidence of Mr Dovey and Mr Frew. He said hispreference with a warbird aircraft is to land on the grass and that is the surface theywere designed to land on. He explained:Q. Yes. So in this case we know that on the practice day, the 29 centre grasswas not available because it was still obstructed by those marker tyres. If youhad landed on the seal in practice because you didn't like the northern grassand the centre grass wasn't available, what would you think was available toyou on the display day for your landing?A. Well it depends on the aeroplane but, you know, if I was flying a Yak 3 andon the practice day the centre grass was [un]available, I'd have to use the [seal]runway because I do know that the northern grass is very bouncy for thosesort of aeroplanes. On the next day, if the grass was available I'd take it bychoice 100%.Q. Have you ever been approached by a flying display director when you'vechanged your landing area from practice day to display day andreprimanded for doing that?A. Never.Q. Have you ever been reprimanded for landing on the grass and been toldthat you should've landed on the seal as a default without making a radio call?A. Never.[318] Mr Falconer supported Mr Dovey, Mr Frew and Mr Skilling. His evidence onthis point was as follows:Q. And you've heard suggested in evidence that if you land on the seal or thegrass in practice, you must land on the same runway after your display. Didyou hear that?A. I did.Q. And your experience at Wings Over Wairarapa, is that something as flyingdisplay director that you would expect?A. No, it's not something we would expect or make conditional really. It'sagain – the pilots are flying the aircraft and it's their prerogative to [choose]which runway is more suitable for their aircraft and the prevailing weatherconditions.Q. Just for clarification, do you have a practice day at Wings Over Wairarapaas was explained in evidence where the pilots demonstrate to the flying displaydirector the display they're going to fly?A. We do. We really mirror what Warbirds over Wanaka Air Show is in somany different ways and on the practice day, it's an opportunity obviously forthe display pilots to practice their display, you know, routine and also a chancefor the display direction team to observe their performance.Q. Do you, for example, make any notes during your observation of thepractice displays?A. We would from time to time if something occurred that we thought neededto be a prompt for either bringing up in the pilot's briefing or for futureconsiderations.Q. Would you as a matter of course note the runway or grass that the pilotlanded on?A. Not to that extent. Again, as I say, it's really a pilot's choice. We brief therunways that are available and it's for the pilots to decide on the day accordingto the aircraft preferences, they use whatever runway they prefer.Q. Well just bearing those answers in mind, it's been suggested, hasn't it, thatchoosing a different runway to land, to use to land on the practice day to theone that you ultimately use on – I'll put that the other way round, choosing adifferent landing on the display day to the runway that you used on the practiceday as a change to display routine which requires formal notification to theflying display director, is that something that you recognise from your time asflying display director at Wings over Wairarapa?A. No, again, we brief the runways that are available the day of the air showand it's, again, for the pilots to choose which runway they prefer.[319] Mr Brown's evidence was based on his view that the designated runways wereto be used unless permission to land on the centre grass had been obtained. Heaccepted that if others understood the centre grass was available, then they would beentitled to be confident that the area would be kept clear for their landing. He alsoaccepted the DD and MDD cannot close their minds to the possibility that a pilot mightchoose to land on either of the designated runways and, in this case, the seal and thenorthern grass runway were kept clear for the Yaks' landing. He qualified this bysaying that while "good communication" on the part of the DD and the pilots was"key", the display pilot still had the responsibility to check the runway before landing(discussed later).[320] Mr Lamont said that, because the landing is not part of the routine, that is areason why the pilots should talk to the DD about where they are going to land. Hesaid "the pilots can choose to land elsewhere but I think his expectation would be forthem to land on the runway". In other words, communication was important but apilot is free to land on a runway that is briefed as available even if there is anexpectation about which runway the pilot is likely to use.[321] I consider that S/L Rankin made an assumption that he was not reasonablyentitled to make about the surface on which Mr Dovey would land for the openingdisplay based on what occurred on the practice day. The pair had practiced theirintended display for later in the show. They had not practised the opening display andhad been given no instruction about where they were required to land. Moreover, afterthe practice the centre grass had been briefed as available. S/L Rankin might haveexpected that Mr Dovey would land on the seal, but he ought not to have assumed thatthis is what would occur because it was open to Mr Dovey to land elsewhere.[322] If it was important for the safe running of the airshow that for the openingdisplay Mr Dovey was to land on the seal, then that should have been made clear tohim. It was not. None of the documentation specified that pilots were required orexpected to land on the same surface as they had done in practice. If that was anexpectation that could be altered only with communication to the DD (or the MDD ifon duty as DD), then the WoW documentation or the DD when briefing pilots (or both)should have made that clear. Absent that, display pilots could reasonably assume theyhad the choice of any vector that was briefed as available.[323] It is less clear to me that Mr Lee made the same assumption as S/L Rankin,despite his evidence that landing on the centre grass was a change in the practisedroutine. Mr Lee was not going to be the display director in the Tower for the openingdisplay and he was not aware the cherry pickers were on the centre grass when hebriefed it as available. He was informed of the proposed opening display shortlybefore the pilot briefing commenced. It is not clear that he actually turned his mindto where the pair would land. I consider that his evidence on this point was ex postfacto rationalisation for how the accident occurred at an airshow at which he was thedisplay director responsible for safety. However, if he did make the same assumptionas S/L Rankin, and if he did so because of the practice, then, as with S/L Rankin, itwas not an assumption that he was reasonably entitled to make. At best it gave rise toan expectation but pilots remained free to land on any runway that had been briefed asavailable.Formation disciplinea) The leader[324] In pairs displays prior to WoW 2018, Mr Dovey was the leader and Mr Frewwas the number two. Mr Frew took the role of the leader for WoW 2018 as, at somestage, it was going to be time "to hand over the mantle" (with Mr Frew being youngerthan Mr Dovey) and this seemed like as good a time as any. The formation leader setsthe display, and is responsible for radio communications, the briefing before and afterthe display, the safety of the flight and operating within the low level display limits.b) The briefing[325] Mr Brown gave a description of the thorough briefing that he did for the displayinvolving the 11 Harvards. There is no real dispute that the detail of the briefingappropriate for the Yak-3M pairs displays (the approved routine for later in the showand the opening display routine) was not of the same order. For example, S/L Rankinsaid about Mr Brown's briefing:Well this is an excellent briefing and it's required because there's an awful lotof airplanes in the formation, and before you get airborne there must be noconfusion in anybody minds what's going to happen. For a two-ship display Iwouldn't do anything like this.[326] Mr Frew's evidence was that in his briefing with Mr Dovey on the practice daythey discussed their preparation time, when they were going to be in the aircraft, theirstart time, the takeoff sequence, where they were going to position themselves, whatradio frequencies they would be on and when they would change them, and the spacingthey were going to employ. They walked through the manoeuvres on the ground– thepilots walk around following each other – so they knew exactly what was to happenin the display and the recovery.65[327] They also discussed that they would be landing in stream. Mr Frew confirmedthis included discussing where they would be landing and separation on landing. Thatdiscussion was initiated by Mr Dovey. As leader, Mr Frew was required to roll furtherto give the number two aircraft space. As a courtesy, Mr Dovey reminded Mr Frew tokeep rolling because Mr Dovey could not stop as quickly.66 Mr Frew confirmed thatthis was because they would be landing single file on the seal and explained that thiswas "known as a stream landing so he would be landing after me on the seal".Mr Dovey's evidence was that they did not discuss which runway they would belanding on because this was up to the individual pilot to determine.[328] I take from this evidence that a "stream" landing was briefed for the practiceand they both understood they were each likely to land on the seal, but this was not set65 The recovery is the arrival, landing and taxiing in.66 As mentioned, this was because Mr Frew's hydraulic disc braking system in his aircraft is moreeffective than Mr Dovey's air-powered drum brakes.in stone because things could change in the air. The centre grass would not have comeup for discussion because it was not available yet.67[329] Mr Frew also carried out a briefing for the opening display on the Saturday.This briefing was carried out once he got to the aircraft park after Mr Lee's pilotbriefing had concluded. Mr Frew briefed Mr Dovey on the pyrotechnics briefing hehad missed.68 They also discussed where they would hold while awaiting their run.Mr Frew said he discussed the start, taxi, takeoff, the mission, the recovery and landingin stream. Mr Frew said they were quite pressed for time because they needed to getready for the display.69[330] Mr Dovey said that they did not discuss what runway they would be landingon because it was up to the individual pilot to make that decision. He said thatMr Frew might have chosen the grass, and if he had done so, then Mr Dovey mighthave considered landing on the seal. It seems that one of Mr Dovey's concerns wasthe limited visibility he would have of Mr Frew's aircraft on finals. He said this waswhy he had asked him to roll out to the end of the runway.[331] Mr Frew agreed with Mr Dovey that it was up to the individual pilot to decidewhere to land. Although he expected Mr Dovey to land on the seal behind him, hewas not concerned when he chose to land on the centre grass. He said it was up toMr Dovey and it may have been because he was concerned about their separation. Atanother part of his evidence he said that he could easily have elected to land on thecentre grass. He accepted that if an aircraft could not safely land behind the leaderthey had the option of aborting and going around but said "when you have the optionof not doing that and safely landing, why would you delay the issue by commencinga go around?".67 Their practice was at 11 am and the tyres had not been removed at this stage.68 As noted earlier, Mr Dovey had permission to leave the briefing before the pyrotechnics briefingto enable him to warm up his aircraft and to carry out his checks. Mr Frew had someone who couldwarm up his aircraft for him.69 The pilot briefing ended at around 9.30 am. According to a report from Mr Frew shortly after theaccident, Mr Frew met with the pyrotechnics guy after the pilot briefing so it would likely havebeen after 9.30 am by the time Mr Frew was at the parking area and briefing Mr Dovey. TheTower cleared them to taxi to the holding point off from the seal runway 29 for takeoff at 9.52 amand for display at 9.53.52.[332] I take it from this evidence that both Mr Frew and Mr Dovey knew thatMr Frew was likely to land on the seal. Mr Frew anticipated Mr Dovey would landbehind him on the seal because he had briefed a stream landing. However, they eachunderstood that either or both of them could elect to land on a different vector. At theconclusion of the opening display Mr Frew landed on the seal. Mr Dovey made thedecision to land on the centre grass when he was on the base turn and proceeded to doso.c) Formation discipline to follow the leader[333] The defendants say that they were reasonably entitled to assume that Mr Doveywould land on the seal because a stream landing had been briefed by Mr Frew as theleader of the formation pair. A stream landing involves following your leader andlanding on the same runway. In Mr Lee's words, it was the "height of ill-discipline"for Mr Dovey to land on the centre grass when his leader had landed on the seal.[334] Mr Lee further explained:I'd go back to this discipline of unity within the formation and the formationleader being in charge, and the formation leader advising agencies what theformation is doing. That's all part of responsibility of being a formation leader,and disciplines within the formation. So you just don't break, even though theywere landing in stream they're still part of a formation. It is a technique to landa formation. So you don't have to be sitting side by side like that. So to actuallyjust to break off and [choose] somewhere else to land without actually lettingthe formation leader know that that was what your intention was is extremelybad practice and if you did that in the air force you [would] be severelyreprimanded.[335] Mr Lee said the expectation in formation flying is that the number two willland behind the lead unless otherwise advised. He said "if the formation was choosingto do something other than land all in the same bit of real estate, then I would expectto be notified" and that, if he was notified, there would be no problem.[336] Mr Brown agreed with Mr Lee. His evidence on this point was as follows:Q. Mr Lee said it was the height of ill discipline to not land in the streamwhen you're flying formation and he was referring specifically to Mr Doveywhen he made that comment. Is that something you would agree with?A. Yes, formation flying is very disciplined and it needs to be disciplined.That's why we go through briefs. Now, it's not to say that sometimes someonemay land somewhere different but if that, and I have seen it happen, and I'vehad it happen with my own formations where someone in the formation hasrealised fairly late that they were too close and so they've switched it, if wewere landing on the grass they've switched the seal. But in that case, in thatsituation they have to take responsibility for, you know, that the runway isclear and it will be raised in the debrief that they didn't conform with the, youknow, the formation discipline.[337] He said the formation leader in the debrief would ask the pilot what happened.The pilot might say "I got too close" and the formation leader might discuss with thepilot the need to sort that out for the next time. Mr Brown went on to explain that thisis part of the training for civilian pilots learning to fly in formation and this trainingwas based on the RNZAF procedures with which Mr Dovey and Mr Frew would havebeen familiar. He also explained that there is no problem or lack of discipline if thebriefing is that the formation will land on different vectors. He said that if there wassufficient time between the briefing and the display, as team leader he would informthe DD of this. Otherwise, he would communicate this to the tower during the display.[338] Mr Hogan's evidence on this point was as follows:Q. You were asked about what formed your impression that the Yak wascleared to land on the seal. Can you tell us about the circumstances that led atthe time to your view that the Yak was to land on the seal?A. I guess the fact that the whole display had commenced on the runway andthat I just assumed that he was going to return behind his leader and his leaderlanded ahead of him and it was a formation display and therefore I assumedthat he would follow his leader and land behind him on the runway but heobviously didn't.Q. You say formation leader would land behind on the runway –A. No, the formation leader landed on the runway therefore I assumed that thesecond aircraft would also follow his lead. I mean, there's tonnes of room ona runway. He had plenty ahead of him and it was a formation display and,yeah, they're just – that was what I thought.Q. We've heard evidence that the Yak was following in stream?A. Affirm.Q. What's your understanding of formation and landing in formation?A. Well if I was following stream like that, I would have landed behind theleader, that's what – I would have still been in stream at that stage very looselybut [there] would have been [no] reason at all for me if I was flying that tohave landed on the grass.Q. Was there anything else that led to your impression that the Yak was goingto land on the seal?A. No, I can't think of anything else, no.[339] S/L Rankin did not explicitly discuss this. However, it is implied from thefollowing evidence that he expected Mr Dovey to follow his leader:At this point I was watching the Yak formation's landing approach. The Yakleader was clearly on track to land on the sealed runway (which is what I wasexpecting, given our communications). I could see that Yak 2 was followinghis leader's path which confirmed my understanding that he was going to landon the sealed runway behind his leader. The separation between the aircraftwas standard, which told me there was plenty of room for both Yaks to landon the seal.I did a gear check on the Yaks and confirmed their landing gear was down. Ithen watched the Yak leader land on the sealed runway. The second Yaklooked to be approaching to land on the seal as well, some 20-30 secondsbehind the leader, again an entirely standard and safe separation.[340] Later in his evidence he explained that he last saw the second Yak on the baseturn and it appeared to be following the same flight path as his leader.[341] As discussed earlier, Mr Lamont considered that the landing was not part ofthe approved display. He considered this was a reason why the display pilots shouldtalk to the display director about where they are going to land. Mr Lamont went on toexplain that he did not think the daily pilot briefing was the time for Mr Frew andMr Dovey to discuss where they were going to land. Rather, he would have expectedthem to have made a call to the tower as to their landing. Normally the number onewould make a call. If that was done, and the number two was landing in stream(behind and on the same runway), then the number two did not need to make a call butnormally does. Mr Lamont went on to say: so in the absence of Mr Frew giving a call, that was a little unusual andthen, of course, Mr Dovey did make a call which wasn't heard so, you know,that's where the things went wrong.[342] Mr Skilling agreed with Mr Brown that the briefing between the pilots flyingin formation should discuss where they were going to land. If they briefed that theywere going to land in stream on the seal then this is what they would do, subject toany problem that might arise and require a different landing. He agreed that if thishappened it would be good practice for the pilot to communicate the change to theformation leader. He said the leader would not necessarily pass on such a change tothe DD because it was not necessarily relevant. If the change was because of an enginefailure, however, then the leader would probably say "[n]umber 3 [or whichever it is]has had an engine failure".[343] Mr Skilling said that the pilot briefing for the opening display would requirevery little. If it had been him as the leader he would have said "'Well we're taking offand we'll hold here and we'll only do one break wherever buzz and break and land in trail'. That's the sort of thing, 'Are you happy with that number 2', and the answerwould have been yes or no".[344] I accept that the discipline of landing in formation flying is to land in stream,meaning one after the other on the same runway. However, I do not accept that thisdiscipline necessarily applied at a display show such that a DD could proceed on thatexpectation without confirmation from the leader about this. It was not directly put toMr Dovey that the formation discipline of landing in stream on the same runwayapplied at a civilian display show and that landing on the centre grass when Mr Frewhad landed on the seal was the height of ill-discipline. However, it was clear fromMr Dovey's evidence, supported by Mr Frew, that their view was that it did not.[345] As Mr Brown said, there would be no problem with a display having pilotslanding on different surfaces provided it was briefed and communicated to the DD.Mr Skilling did not agree that it necessarily had to be communicated. Mr Dovey andMr Frew considered the number two always retained a discretion to choose whateversurface was appropriate to them. They had flown at many airshows and there was nosuggestion they had been disciplined, or were aware of anyone else being disciplined,for landing on a different surface than the leader.[346] The defendants submit that the discipline of a stream landing also helps toavoid accidents if the leader ends up in a ground loop. However, allowing a pilot at adisplay to land on the surface most suitable to their aircraft and flying preferences alsohelps to ensure safety. That may explain why there is no evidence of disciplinaryaction being taken by a DD (as compared with the debrief by the formation leader thatMr Brown discussed) where pilots have elected a different surface to their leader. Iflanding in stream was an essential requirement unless the DD is advised otherwise,then that ought to have been made clear to Mr Dovey. In reality, it was not an essentialrequirement. It was manageable by ensuring that active runways were kept clear forlandings, as I discuss next.[347] I conclude that it was open to Mr Dovey to choose to land on the grass whenMr Frew landed on the seal. Ideally, he would have discussed with Mr Frew at thebriefing that he might elect to land on the centre grass and Mr Frew would havecommunicated that to the DD after the briefing, but they were time-compressedthrough no fault of their own. However, even if they had done so, they would havebeen free to make a different decision during the display. That is why Mr Lamont andMr Lee expected Mr Frew would make a call to the Tower advising them of theformation's landing intentions. That did not happen. Mr Dovey made a call on thebase leg advising of his intentions, which Mr Frew heard but the Tower did not. Thisis discussed later.What if the leader has not advised the Tower[348] WoW Ltd or relevant personnel did not advise pilots that they were required toadvise the DD of the vector on which they intended to land. Apart from conventionsthat were not universally understood, relevant WoW personnel relied on anunderstanding that this would usually involve the formation leader advising thelanding intentions of the formation during the display. However, this did not alwayshappen and experienced pilots understood they remained free to land on any vectorbriefed as available in the exercise of their discretion. This raises the question of whata DD should do when, for whatever reason, they do not know a pilot's landingintentions.[349] Mr Lamont said that most pilots would say where they were going to land.However, if they had not, and the seal and the centre grass were in operation at WoW2016, he accepted the display director would have to assume they could land on either.And in that case, if one of the runways was obstructed, the display director would beobligated to caution the pilot. The cross-examination continued:Q. Yes, why was the fact that the northern grass was on the plate in 2018whereas the centre grass was on the plate in 2016 make a difference?A. I'm not trying to be evasive, I'm just trying to – I guess it probablywouldn't.Q. No. Because you've told us earlier that that plate doesn't govern how theflying display director uses the airfield.A. That's correct.[350] Mr Lee considered the formation was obliged to inform the Tower of theirlanding intentions. He said that if they did not do so "[w]ell then, definitely there isan obligation on the pilot to make sure that the choice of landing is clear if he takesthat responsibility himself". However, in the following exchange, he also acceptedthat a DD would ask the formation where they were intending to land if the DD didnot know:Q. And if it wasn't a formation, a solo display of the Spitfire, for example,Spitfire take-off on the seal?A. Yes.Q. And pretty much guarantee that he would want to land on the grass?A. Right and from my experience the pilot would say, "Spitfire so and so iscomplete, display complete and positioning for the grass."Q. There's no requirement for any authority or permission, or approval for theSpitfire to land on the grass?A. So, again, if you're talking a display, well there would need to be someknowledge or exchange of information about that. We just don't work – we'renot even obliged to keep all landing areas clear, but the recommendation isthat one, at least one landing space is kept clear at all times. Only one.Q. But you can instruct the others?A. So with the right sort of communications, you can deal with those issues.Q. But if you obstructed any runway that was otherwise active, you wouldalways warn an approaching aircraft just in case, wouldn't you?A. If – you might've – not always, no, because you might've been pre-briefedwhat was happening.Q. If you'd been pre-briefed that the approaching aircraft was definitely goingto land on the seal, then you wouldn't even alert the approaching aircraft tothe presence of an obstruction on the adjacent grass?A. You might do.Q. You might do, right. If you hadn't been pre-briefed, that would mean thatyou couldn't with any certainty assume that the approaching aircraft wouldland on the grass or the seal, you could choose either if you hadn't been pre-briefed, is that not the case?A. You would, again, with an exchange with the tower or display people, yep,you can put in your preference and make a request.Q. You could but the question that I was asking you was if there hadn't beena pre-briefing and also if there hadn't been any particular communication,correct me if I'm wrong, the position is that there is actually no obligation tocommunicate with the tower about landing is there?A. Well then definitely there is an obligation on the pilot to make sure that thechoice of landing area is clear if he takes that responsibility himself.Q. Isn't there also an obligation on the part of the flying display director if hedoesn't have any certainty where the pilot's going to land to ensure thatanywhere that the pilot could legally land is kept clear or if it's not to alert thepilot that it's obstructed?A. If you didn't know where someone was going to land, first of all you wouldask them, "Are you for the grass or for the seal, or centre grass," or whateverit might be, if you didn't know and that would clear that up.Q. So if you didn't know, you would have an obligation to ask?A. Yes, if you didn't know.Q. And if you didn't know and you didn't ask, you'd have an obligation tokeep clear or alert the pilot to the [obstruction], is that where we've got to?A. If you didn't know and you didn't ask, you're really dumbing down asituation here really. I can't think of that being other than hypothetical becauseyou may as well not be in the tower then.[351] I accept Mr Lamont and Mr Lee's evidence. They did expect each displayformation to inform the Tower of their landing intentions. If that did not happen thenthe DD would ask the formation. Even when the DD knew where the formation wasintending to land, the DD would advise the pilots of obstructions on other vectorswhere a pilot could potentially land.[352] That makes sense. A pilot might need to make a last-minute decision to altertheir landing choice because of separation issues, a ground loop or other issue with thenumber one, an aircraft issue or a sudden wind shift. They might be able to go aroundwhen such issues happen but, as Mr Frew said, why would you go around if there wasanother vector you could land on. It should have been manageable for the MDD, forMr Dovey to make his decision on the base leg to land on the grass for whatever reasonhe wished to do so as an experienced pilot in the situation as he saw it. The MDDsimply needed to ask the formation where they intended to land and to alert theformation of any obstacles on any of the vectors briefed as available.70Discussion with ADD[353] S/L Rankin said that he discussed with Mr Hogan where the formation wouldbe landing. Mr Hogan did not have that information because he was not involved inthe decision and risk assessment to substitute the F-16 with the Yaks. Moreover, MrHogan was there to assist the DD and MDD but his responsibilities were limited. Hecarried out the runway inspections, set up the PowerPoint for the pilot briefing andwas primarily in the Tower for the ground communications. There was no evidentialbasis for S/L Rankin to be reasonably entitled to assume that Mr Hogan would knowwhere the Yaks were intending to land.[354] In fact, the discussion between S/L Rankin and Mr Hogan was about thepractice. Mr Hogan was able to say that the Yaks had landed on the seal in the practice.S/L Rankin proceeded on the wrong assumption that this would mean that they wouldalso land on the seal for the opening display. S/L Rankin was not reasonably entitledto make this assumption without more information. He should have checked withMr Lamont and Mr Lee where the opening display was intending to land. He shouldhave confirmed the landing intentions with the formation when he was in the Tower.Failing that, he should have advised the formation of any obstruction on any of thevectors briefed as available.70 For completeness, I note that neither S/L Rankin nor Mr Hogan watched Mr Dovey land afterchecking his gear was down. S/L Rankin accepted that if he had, at some point he would haverealised that Mr Dovey was for the centre grass and there would have been time for him to instructMr Dovey to go around. However, there was no evidence to support an obligation on a DD to dothis when there is a range of duties on the DD who is providing passive control only. Trackingeach display pilot as they land might be something for DDs to consider in the future but Iappreciate they cannot guarantee they will be able to do this given other events that could alsogive rise to hazards at the same time.[355] Indeed, I am sure he would have advised Mr Frew and Mr Dovey of the cherrypickers if he had understood that the centre grass was an available vector. Inresponding to the CAA's report on the accident, he said:My understanding was that the seal and designated grass runway were stillthe only surfaces to be used for takeoff and landing, but that the entire grassarea was available for manoeuvre (not just the usual grass taxiways, whosetyre edges had been removed the previous day). So the possibility that Yak 2could be landing on the grass adjacent to the seal runway was not an optionI'd considered.From the Tower he certainly appeared to be following Yak 1 to the seal. TheYak 2 radio call was just an unintelligible burst of static.I was the one who got the cherry pickers moved. I was quite aware of, andhappy with them there, since they were in the same location as aircraft couldhave been holding when the seal was in use. When clearing the NH90helicopter to depart I had warned him about the cherry pickers, so they werewell and truly in my mental model. The missing bit was someone landing onthe centre grass area.(emphasis added)[356] The problem was not that Mr Dovey landed on a different runway than he hadwhen he practised his approved routine. The problem was that S/L Rankin did notrealise that the centre grass had become an available vector on which display pilotsmight elect to land.Breach of dutya) S/L Rankin[357] I have found that none of the conventions S/L Rankin purported to rely onshould have been relied on in the circumstances. I have also found that S/L Rankinwas not reasonably entitled to rely on his discussion with the ADD. He should haveasked Mr Lamont, Mr Lee and the formation. That did not happen and he thereforeassumed, without a reasonable basis for doing so, that they would land on the seal.[358] Absent that, and had he been acting with reasonable care, I consider thatS/L Rankin had a duty to the plaintiff to advise him of any obstruction on any of theavailable landing vectors. The plaintiff was involved in a demanding activity takingplace over a short time span requiring considerable concentration and was entitled torely on the DD to advise him of this. As Mr Lee said, "if [the DD] didn't know [thelanding intentions] and [the DD] didn't ask you may as well not be in the towerthen". I consider that S/L Rankin breached this duty.b) WoW defendants[359] I consider that WoW Ltd failed to have in place systems that ensured that pilotsunderstood any practices they expected pilots to follow. The conventions to land onthe same vector as in practice, or to always follow the leader onto the same vector, orthat the formation must advise the DD of its landing intentions were not universallyunderstood by experienced pilots as applicable. If WoW Ltd relied on these for thesafe running of the show, then that should have been stipulated.[360] However, I do not find that WoW Ltd or relevant WoW defendants breached aduty of care in this respect. That is because they did not rely on these conventions inreality. They were able to manage the safe running of the show by the Tower askingthe formation where it would land and by advising the pilots of any obstructions onany vectors briefed as available. What was necessary was for relevant WoW personnelto have in place a process to ensure that the MDD had the same understanding as theydid about where pilots could land.c) Contributory negligence[361] I consider that Mr Dovey was not negligent in his choice of landing vector. Hedid not depart from any convention he reasonably knew he had to comply with whenselecting his landing vector. If he was expected to comply with any such convention,then it was incumbent on WoW Ltd or relevant WoW personnel to make that clear tohim prior to his display.The radio callThe issue[362] This issue concerns whether Mr Dovey's radio call was in the appropriate form,whether it was or should have been heard in the Tower, and whether Mr Dovey shouldhave repeated the call when there was no response or the Tower should have asked forthe call to be repeated.Alleged duty[363] The plaintiff alleges that S/L Rankin owed the plaintiff a duty to listen to, attendto and understand radio calls from display pilots (particularly calls intended to conveythe pilot's position and intentions to the Tower), and to seek clarification of any radiocalls that he did not hear or did not fully understand. The plaintiff alleges S/L Rankinbreached this duty because Mr Dovey's call was able to be recognised as a call likelyto be from him and S/L Rankin should have responded "say again" if he could not hearthe content of the call.[364] The RNZAF defendants accept that as part of S/L Rankin's obligation toprovide competent display direction, he was required to be attentive to radio calls.They submit that there is no duty to "understand" calls because some calls can be heardand some cannot. They submit that when a call is recognisable as a radio call but itscontent is unclear, the DD should not ask for the call to be repeated. This risksunnecessarily cluttering the display frequency. They submit the onus is on the pilot torepeat the call if two-way contact is intended or required. They submit that if that isrequired, the pilot should make a "directed" call to the Tower. They submit thatS/L Rankin did not hear the call and the plaintiff has failed to show that he wasnegligent in that.[365] The plaintiff makes the same allegations in relation to Mr Lee because he wasin the Tower when Mr Dovey made his call. WoW says that Mr Lee was not the DDon duty and was therefore not fully engaged with what was going on, Mr Lee did nothear the call, it was in non-standard form and that Mr Dovey should have made adirected call to the Tower if he was deviating from the agreed plan to land on the seal.[366] The plaintiff also alleges that WoW Ltd and Mr Taylor owed a duty to theplaintiff to ensure that radio communication transmission and reception were at alltimes of "readable" quality and to have in place measures, systems and procedures forthe safe conduct of the show. The plaintiff alleges this was breached because many ofthe radio calls were of poor quality and barely readable but the pilots were not warnedof this as they should have been.The evidencea) The call on base leg[367] To carry out the display, there were the following stages: aircraft checks andwarm up and taxiing to the holding area; takeoff and holding at the briefed holdingposition; high speed run from the west to "attack" the airfield in the pyrotechnics area;wingover to the east (a 180 degree turn via a big looping manoeuvre); buzz and break(to position the aircraft for landing); downwind leg; base leg; finals for landing; andlanding and rollout.71[368] Mr Dovey made a radio call on the display frequency at 10.04.49, on the baseleg, advising: "Yak number 2, base, greens, grass". There was no response to this callfrom the Tower. Mr Dovey proceeded to land on the centre grass in accordance withthis advised intention.b) The other radio calls[369] Relevant to the issues about the radio call is an understanding of some of theother communications taking place during the flight. The transcript of those calls usesCoordinated Universal Time (UTC).72 The relevant calls took place between 20.44and 21.06 (when "roadblock" was called), which converts to NZDT 9.44 am to10.06 am.[370] The transcript of radio calls shows that between 20.44.04 and 20.44.16,Mr Frew and Mr Hogan made the following communications on the ground displayfrequency:20.44.04: Yak 3 to Ground: "Wanaka Display, Yak 3 formation"20.44.08: Ground to Yak 3: "Yak 3, Wanaka Tower"71 The display legs can be thought of as a rectangle, with the downwind leg down the long side ofthe rectangle and the base leg on the short side, and finals on the (upwind) other long side of therectangle.72 The transcript was prepared by Airways as part of the investigation into the accident.20:44:10: Yak 3 to Ground: "Ah, we've started, we'll be taxiing in ah, ah,[sounds like 'five'?] minutes for take-off at five two"20.44.16: Ground to Yak: "That's approved, report holding at the holding pointclear of the runway."[371] On the display frequency between 20.52.08 and 20.52.58 there were radiocommunications between the Tower and the pyrotechnics team. Then there werecommunications clearing the Yaks for takeoff:20.53.44: Yak 3 to Tower: "And, Wanaka [or possibly 'Warbirds'] Display Yak3 is ready, we'll hold at Mt Iron ah two thousand five hundred feet AGL"20.53.52: Tower to Yak 3: "Yak 3 formation, cleared take off"20:53:55: Yak 3 to Tower: "Yak 3"[372] After takeoff, the Yak pair were holding west of the airfield. At this time therewere a number of communications between the Tower and the NH-90, which includedadvice to the NH-90 that the Yaks were holding at Mt Iron for a strafing run and aChipmunk was holding immediately south of the field for display.[373] While the Yaks were holding, the Tower communicated with them, alertingthem to the traffic as follows:20:57:49: Tower to Yak 3: " Yaks Director"20:57:53: Yak 3 to Tower: "Director Yaks"20:57:55: Tower to Yak 3: "Ok, just so you're aware of the traffic, so you'recoming in, your first pass will be west to [east] from Mt Iron is that correct?"20:58:00: Yak 3 to Tower: "Affirmative, one pass only and then a ah, ah,wingover to a buzz and break."20:58:06: Tower to Yak 3: "That's understood thanks, your traffic theChipmunk holding to the south. You'll have the Warrior [NH-90] doing thehover taxi up the line, once he's reached the end of the crowd line we'll clearyou in. The Warrior will be then breaking left to hold immediately to thenorthwest of the airfield, so just make sure you're ah, ah, south, I say againnorth of the runway when you reach the runway threshold."20:58:29: Yak 3 to Tower: "Yep understood we'll be doing that. And give usa ah two minute warning please."20:58:36: Tower to Yak 3: "Roger understood "[374] There were then communications between the Tower and the NH-90 and thepyrotechnics and a radio check made by the Yak 3 (Mr Frew) to the Tower, which theTower confirmed was "loud and clear".[375] The Yaks were then cleared to commence their strafing run. From that timeuntil the "roadblock" call that followed Mr Dovey's aircraft hitting the cherry pickerthere were the following communications:21:01:27: Tower to Yaks: "Yaks commence your run now"21:01:30: Yak 3 to Tower: "Yaks rolling. Power up."21:01:54: Yak 3 to Tower: "Yaks, the Warrior has vacated to the south, you arecleared for the run"21:01:58: Tower to Yak 3: "Run now"21.02:00: Tower to Yak 3: "Be advised there'll be a number of light aircraftjust crossing the runway to ah get to the other side."21.03.01: Pyros to Tower: "Display Pyros, Pyros clear"21.03.13: CYC to Tower: "Ah display Tiger Moth Charlie Yankee Charlielistening out"21.03.15 Tower to CYC: "Tiger roger, are you able to take off from therunway?"21.03.19: CYC to Tower: "Ah we're going to take off from the sealed runwayyeah."21.03.21: Tower to CYC: "Ok, that's fine thank you. Just hold short of therunway meantime, Yaks in the break to land."21.03.26: CYC to Tower: "Roger"21.04.28: Tower to Chipmunk: "Chipmunk you on one one eight nine?"21.04.30: Chipmunk to Tower: One one eight nine, Chipmunk"21:04:32: Tower to Chipmunk: "OK, Yaks turning a right base to land on theah seal. With the second aircraft in sight you are cleared to display"21:04:39: Chipmunk to Tower: "Cleared display, I'm after the tiger does hisfirst bit."21:04:43: Tower to Chipmunk: "Ah, OK, that' s not gonna work then. Alright,thank you. Just ah hold your position."21:04:49: Yak 2 to Tower: "Yak number 2, base, greens, grass"21:05:20: Tower to Tiger Moth: "And Tiger Moth, behind the second Yak, ifyou could line up runway 29 please."21:05:24: Tiger Moth to Tower: "Line up 29 Tiger Moth."21:05:36: Tower to Yak 3: "And Yaks after landing, if you could vacate leftonto the southern grass please."21:05:41: Yak 3 to Tower: "Ah Yak 3 left on the southern grass"21:06:03: Tower broadcast: "Road block, Road Block."[376] It is not in dispute that the formation leader is responsible for thecommunications with the Tower. Mr Frew is "Yak 3" in this transcript. Thecommunications show Mr Frew and the Tower establishing communication on theground and display frequencies. Mr Dovey is "Yak 2" and the only communicationhe made was his base call at 21:04:49.[377] It is also not in dispute that radio calls can take the form of directed or broadcastcalls. Directed calls are where the communication is to a specific person on thefrequency. For example, the communications at 21.04.28 to the Chipmunk and21.03.13 from the Tiger Moth to the Tower. Broadcast calls provide information toanyone in the circuit. It is not in dispute that Mr Dovey's call at 21:04:49 is a broadcastcall and that ordinarily a broadcast call does not require a response from the DD oranyone in the circuit, unless there is or might be a problem or hazard regarding whatthey are doing.c) Calls on base or finals[378] The evidence is that it is a relatively common practice for display pilots tomake a "base" call. Mr Skilling explained that it was introduced by New ZealandWarbirds because some years ago they had pilots who were trained on planes with afixed undercarriage (landing gear) who were forgetting to put their undercarriagedown in Warbird aircraft. He said it is a "totally standard" call to make. It does notrequire a response from the DD.[379] Mr Brown said that when he is formation leader, he makes a call when he is onthe brake manoeuvre (for example the buzz and break to land, or the brake and level).This call advises that he is on the break to land on whatever runway he is intending toland on. He said he trains pilots to do this. The call is for two reasons. The first is togive the DD a heads up on what he will be doing or a reminder of that. The second isto help the other pilots to make the switch from display flying to landing mode, bearingin mind that display flying in formation is a demanding exercise.[380] Mr Brown said that he also makes a call on finals. A typical call on finalswould be "Harvard Red 1 is on finals, runway 24, gear down". This call does notrequire any acknowledgement. It is a memory jog for the pilot to help them rememberto put their wheels down. The following Harvards would each make a similar call.[381] Mr Brown said these calls are set out in the New Zealand Warbirds AssociationSOPs (Standard Operating Procedures). He said that all display pilots are members ofthe Association. He said the reason for having standard procedures was so that pilotscan go from, say, a Harvard formation to a Yak formation and both formations shouldbe using the same procedures. However, although he advises of the runway as leader,the SOPs do not specify that the pilot must advise what runway they are landing onwhen they are making their calls.[382] Mr Brown went on to explain that, regardless of the SOPs, a pilot does notneed to make a radio call because it is still an uncontrolled airfield. A radio call is notrequired by the rules of the airfield or the WoW show. It is good practice to advise theTower of your landing intention on the break to land, but a pilot can land whereverthey like. The pilot then takes on the responsibility for doing so.[383] Mr Lamont said that a radio call from the number two is not necessary if theformation is landing in stream. The leader will make the call about the intentions ofthe formation. That said, most times the number two and all following aircraft in theformation normally give a call.Findingsa) The content of Mr Dovey's call[384] Mr Dovey's call was a broadcast call. It was made on base. It advised hisposition in the circuit (base), confirmed his undercarriage gear was down (greens –referring to the green lights on his dashboard that light up when the landing gear isdown) and the runway on which he was landing (the grass).[385] While Mr Brown suggested that "grass" meant "the northern grass", this waslinked to his view that the available vectors were the designated runways unlessspecific permission was sought from the Tower to land on the centre grass. Once thecentre grass was available, the full width of the grass (that is, including the northerngrass) was available and the best and smoothest bit of grass was that closest to the seal.This was how Mr Skilling viewed it. It was all the "grass" runway. Mr Frew said thatif he was intending to land on the centre grass he would say "grass".[386] Further, Mr Dovey said his position as he came in would indicate to those inthe Tower that he was aiming for the grass close to the seal (the centre grass) ratherthan the northern grass. Absent that call, S/L Rankin and Mr Lee said that from theTower, when Mr Dovey was on finals, it looked like Mr Dovey was for the seal. This,however, was based on the fact that it was difficult to determine whether an aircraftwas for the seal or the grass closest to the seal on finals, but when combined with otherfactors (the number one Yak had landed on the seal and the expectation the numbertwo would follow the number one), visually Mr Dovey's position appeared to confirmthat he was for the seal.[387] S/L Rankin, however, acknowledged that if he had known Mr Dovey wasintending to land on the grass, his position would have indicated it was the grassclosest to the seal rather than the northern grass. I agree. I consider the "grass" callprovided sufficient content, combined with Mr Dovey's position, to indicate to theMDD (if heard) that Mr Dovey was intending to land on the centre grass.[388] It was put to Mr Dovey in cross-examination that it was an antiquated call.Mr Dovey did not agree. He said he had been making the call since the 1960s andevery experienced pilot would understand it. That was confirmed by both theplaintiff's and defendants' witnesses. For example:(a) Mr Frew described it as a "standard military call". It was not thelanguage he would use but he would not criticise anyone who did. Hesaid it was clear from that call that Mr Dovey was not intending to landon the seal.(b) Mr Lee described the call as "non-standard" and likely to be understoodonly by other pilots who had been in aviation during the 1970s orearlier. He accepted that the call would have been understood byeverybody in the Tower, including him, if they had heard it, as they hadall been in aviation for a long time.(c) Mr Skilling said he did not know why Mr Lee described the call as non-standard and dated. He said "we still use that to this day and it wasused every day at Wanaka" and elsewhere.(d) Mr Falconer said pilots use different terminology, but he wouldcertainly have understood Mr Dovey's call and it was probably "a fairlystandard type of call that would be expected at most unattendedaerodromes".(e) Mr Brown said the reference to "greens" is not generally used thesedays. That is because it refers to the lights for the undercarriage gearand many aeroplanes now have indicators for this rather than lights. Hesaid that a number of recreational pilots would not have seen anaeroplane with lights. He accepted that experienced pilots wouldunderstand the "greens" terminology and those in the DD team fell intothat category.[389] The allegedly antiquated language of the call is therefore of no consequence.b) Was the call heard[390] It is not in dispute that it can be difficult to hear the content of radio calls. Forexample, the transcriber of the radio calls initially had difficulty transcribing severalof the radio calls, including that of Mr Dovey.[391] Radio calls may be described as "readable" and "audible". Audible means thatthere is sound that is recognisable as a radio call. Readable means that the call can beunderstood. As Mr Brown said, it "obviously helped" with understanding a radio callif the listener was familiar with listening to them.[392] S/L Rankin said he did not hear the radio call.73 When the audio of the callwas played to him in Court, he accepted that there "was definitely something goingon". He considered its audibility was about 70 per cent of the audibility of theChipmunk call that preceded it, which was also played to him in Court. He acceptedthat when listening to the recording in the Court it was apparent that it was a radio callfrom a Yak. He said that hearing the audio in the Court was not the same as how itwould have been heard in the Tower. He said the audio was a tape recording of theraw feed from the radio and it did not account for the speaker or the ambient noisewithin the Tower.[393] S/L Rankin was challenged on this. The plaintiff's position was that the callwas there to be heard (that is, it was audible), the MDD should have realised it waslikely to be from the second Yak because of its position on base, and that thereforeS/L Rankin should have asked for the call to have been repeated. S/L Rankinmaintained that he did not hear the call. He said that if he had heard it, and while therewas no requirement that he do so, he would have requested that the call be repeated.He also said there was a convention that an aircraft making a call like this shouldrepeat the call if there was no response.[394] Mr Hogan confirmed S/L Rankin's evidence to some degree. He did not hearthe radio call. He said that what could be heard in Court did not replicate what couldbe heard in the Tower on the day. He considered that if the MDD had heard the calland understood it to be a call to the Tower then he would have had an obligation torespond to it.73 He referred to the CAA investigation which concluded that the communication was not audible inthe Tower. The parties did not rely on the opinions reached by the CAA in its investigation,accepting they were hearsay and inadmissible opinion evidence based on the evidence before it(although the plaintiff provided Rogers v Hoyle [2013] EWHC 1409 for a contrary view). I havenot read the CAA report for this reason. The statements witnesses made to the CAA during theinvestigation were not hearsay and were relevant as prior consistent or inconsistent statements andwere correctly relied on by the plaintiff.[395] However, Mr Lee's evidence was that he did hear a radio call being made. Hehe had just arrived in the Tower. While he did not hear what the content of the callwas, he assumed it was an aeroplane making a base call. He said he probably heardsomething about base, as that fitted with what was happening at the time. Mr Lee'sevidence fits with the evidence that pilots often make a base call. In contrast with thatevidence, S/L Rankin said he did not expect a radio call advising him of the runwaythe Yaks would be landing on. This was because he regarded the seal as the defaultrunway. Unless he was told otherwise, his expectation was that they would be landingon the seal.[396] I consider that, although Mr Lee heard something of the call, he did not actnegligently by failing to ask that the call be repeated. Mr Brown's evidence is that theSOP for the base call is not about the runway choice. It is about whether the landinggear is down. Mr Brown accepted that if he were the DD he might have asked for thecall to be repeated (if he had heard it) in case it had relevant information for the DDand the safety of the show, but he was not definite about this because of the usualnature of a base call.[397] Regardless of what a DD should or might do on hearing such a call, Mr Leewas not the DD on duty for the Yaks display. He had just arrived back in the Tower.He not unreasonably thought Mr Dovey was making a standard base call with norelevant information for the MDD other than that his landing gear was down. Forexample, he was not to know that Mr Frew had not advised the DD in the break toland, or at some point prior to Mr Dovey's base call, of the landing intentions of theformation.[398] I consider that it does not follow that, if Mr Lee was able to make out that itwas likely to be a base call from Mr Dovey, then S/L Rankin ought to have been ableto do so as well. S/L Rankin told the CAA that he heard an "unintelligible burst ofstatic". I accept that listening to the call in the courtroom was unlikely to entirelyreplicate how it would have been heard in the Tower. I accept his evidence that, if hehad heard something he recognised as a base call, then he would have asked for it tobe repeated. It follows that I accept he did not recognise the burst of static as a radiocall from Mr Dovey which might contain information about his landing intentions.[399] The problem was that S/L Rankin had a mindset that Mr Dovey would belanding on the seal. As he said to the CAA, it did not enter his mind that Mr Doveymight land on the centre grass. He was therefore not listening out for calls advisingof landing intentions. As he said, he expected to know in advance (and he wronglyassumed that he did have advance knowledge that the Yaks were for the seal).[400] Had he thought about it, like Mr Lee, he might have considered the possibilitythat this could be a base call from Mr Dovey. Whilst as active DD he should havebeen alert to radio calls, it does not mean he was negligent in failing to connect thedots as Mr Lee apparently did. He would not necessarily have expected to hear a basecall from Mr Dovey because Mr Frew had not made a base call. This would havefitted with S/L Rankin's mental model that he already knew where they were landing.The radio call was at best readable with difficulty by someone who was alert, had atrained ear and could work out what the burst of static probably was. S/L Rankin, asthe active DD, had several things to focus on in the Tower. He provided passivecontrol (alert to hazards) rather than clearance to land. I consider S/L Rankin's failureto recognise the "burst of static" as a radio call from Mr Dovey was not negligent andthe problems lay elsewhere.c) Mr Dovey's radio[401] The defendants suggested that the reason why Mr Dovey's call was unreadablewas because of a problem with his radio. Mr Dovey disagreed with this suggestion.His radio was subject to regular checks as part of the recertification process and therehad never been an issue with his radio in these checks.[402] Mr Hogan said that there were often problems with hearing what is said onradio transmissions from WWII aircraft. Mr Brown agreed. He said that could be thecase even though the radio had passed all its checks. Mr Hogan and Mr Brown agreedthere were many reasons why that might be. For example, old wiring, the interfacebetween helmets and headsets, old antennae, interference and signal issues. While Iaccept Mr Hogan's and Mr Brown's evidence about this, it was not evidence that therewas in fact a problem with Mr Dovey's radio or associated equipment, much less thatMr Dovey knew there was.[403] It was suggested that there was evidence in the form of earlier communicationsbetween Mr Dovey and Mr Frew (while they were holding at Mt Iron) about therebeing a "good nor'wester" to which Mr Frew responded "say again". But Mr Frew'sevidence was that he had no difficulty with communicating with Mr Dovey by radioduring the display and that he heard Mr Dovey's base call, and there are other instancesof "say again" in the transcripts between other parties.74[404] Moreover, Mr Dovey's base call could be heard, albeit with some difficulty,when played in the Court. The audio recording confirms that the aircraft was able totransmit the call. That there was noise in the Tower that made its readability moredifficult is not Mr Dovey's fault. Indeed, the audio recording of other calls to theTower indicated that calls from other aircraft were also barely readable.d) The Tower reception[405] There was evidence that there had been problems with radio reception at theWanaka airfield over the years. Mr Taylor acknowledged this. Mr Taylor acceptedthat radio communication between the Tower and display aircraft was essential forsafety. He said that is why they contracted for Airways to bring the Tower to Wanaka.It was the best equipment they could obtain and it was expensive (it cost $45,000 tohave it there). Mr Brown confirmed that Airways is used all around the country andit has pretty reliable radios.[406] Mr Taylor went on to say that the mountains posed some unique problemswhich could really only be overcome by putting an aerial on the top of a mountain.Mr Taylor said that would be prohibitively expensive even if a resource consent wasgranted for that to occur.[407] Mr Taylor was asked whether pilots displaying at WoW ought to have beenalerted to the possibility that calls might not be heard. Mr Taylor said that the pilots74 Mr Brown said that, although it is not written down anywhere, as formation leader, if he had heardMr Dovey's call, he would have communicated that with the Tower because it was a landingsurface different from Mr Frew's. He said this could have been done even though Mr Frew wason finals at the time. However, to Mr Frew it was not a deviation from their plan because heconsidered it was open to Mr Dovey to choose to land on any runway briefed as available.were all professionals and they would be aware of this. However, the evidenceestablished that was not the case. For example:(a) Mr Dovey said he had no knowledge of any problems with radiotransmission at past WoW events; and(b) when Mr Brown heard the base calls from his Harvard formation hewas surprised at their poor quality.[408] It was suggested that it was somehow relevant that Mr Dovey knew that therehad been troublemakers making calls on the frequency pretending to be aeroplanes.This was not relevant to whether Mr Dovey should have known his call might not beheard. Mr Hogan accepted that these calls may have been both audible and readablebut in any event there was no suggestion that there were any such calls whileMr Dovey was displaying.[409] The draft WoW 2020 Exposition proposed that there be mandatory radiochecks for each aircraft. That seems to me to be a simple solution to the difficultiesthat WoW has had with the readability of transmissions so that pilots and the DD wouldknow if there were likely to be issues. That was not in place for WoW 2018.[410] I conclude that Mr Dovey did not know his base call was not and would not beheard. I consider that if WoW Ltd and relevant WoW personnel expected pilots toadvise them of their landing intentions when they were displaying, then they shouldhave alerted pilots to the possibility that their radio transmission would not be heard.e) A follow up call absent a response from the Tower[411] The defendants contend that Mr Dovey should have re-transmitted his base callwhen he did not get a response. To make out that contention, it is necessary to establishthat something had arisen which meant that something other than the usual base callwas appropriate. This is because the evidence was that base calls of this kind arebroadcast calls and broadcast calls do not normally require a response.[412] For example:(a) Mr Dovey said he was not expecting a response to his call. This wasbecause it was a "passive control" airshow environment rather than acontrolled airspace with air traffic control. Clearance to display wasclearance to land. He said he did not need to make a call but in hisexperience the number two in a formation will often announce theirposition on base. The call provided information to the DD and othersin the airspace (for example, the Chipmunk and the Warrior) of hisposition. Because he was not expecting a response, it was not necessaryto repeat his call when there was no response.(b) Mr Frew agreed that Mr Dovey's base call did not require a responsefrom the Tower. He said that, if he had made the call, then he wouldnot have been concerned that there was no reply from the Tower. Andhe said he would not have "gone around" because there was no reply toit.(c) Mr Skilling said that a broadcast call in an airshow is made "toeverybody around you so they can understand what's going on withwhat you are doing". His response to whether you would expect aresponse was "[a]bsolutely not, no, unless there was something wrong,you know, unless, 'I see you landing on the grass, Yak, it's blocked. Goround,' or whatever, you know".(d) Mr Falconer said Mr Dovey's call was a broadcast call, providinginformation or a "heads up" about Mr Dovey's intended landing. Hesaid because it was a broadcast there was no requirement to establishcontact and no response was to be expected.(e) Mr Lee said there was no requirement for Mr Dovey to get a landingclearance and therefore no requirement to acknowledge his call. Hesaid the Tower cannot be saying "say again" to every call. It was amatter of judgment and in this case the call appeared to be a base call(by which he meant the kind that Mr Brown referred to).[413] For the defendants to establish that Mr Dovey should have sought a response,it was necessary for them to show that the circumstances required a directed call.Mr Lee thought they did because he considered Mr Dovey's decision to land on thecentre grass to be a deviation from the practice and the discipline in formation flyingof following your leader. He therefore considered that Mr Dovey's radio call was"completely ineffective" if his intention was to let the Tower know that he was landingon the grass. He considered that a "more effective" radio call would have been:"Display, Yak 2 base, request centre grass". He said this would have conformed tostandard practice.75 He said the prefix of "display" would have provided an additionalalert to the DD that the call was from a displaying aircraft, rather than someone"chatting on the management frequency" and "request" would highlight that it was adeviation from the anticipated plan and that the DD was required to make a judgmentabout that request.[414] Mr Hogan's evidence was to similar effect. He said the centre grass wasavailable at the pilot's discretion. By this he meant "you have an obligation to ensurethat where you're going to land is safe, I mean, you don't just close your eyes andland". Mr Hogan considered that landing on the grass was a deviation from whatMr Dovey had previously done and they should have been alerted to the fact that hewas landing on the grass. He said:A. Well having made the call which he obviously felt that he had to make, andhaving received no response to it, he should have been aware that we didn'tknow we hadn't received the instruction. He should have repeated it.Q. The hypothetical was that a radio call had been made but it wasoverlooked in the Tower. In those circumstances –A. Well the hypothetical pilot in that case should have re-transmitted the calltoo.Q. Now where do we find that obligation to re-transmit?A. It's standard radio practice.Q. Do we find it in AC91-9?75 It was accepted by Mr Lee that the "unattended radio procedures" did not apply to the display. Hesaid it would be good if everyone did apply them. He said that Mr Dovey had complied with themby making a base call, Mr Frew did not. He said Mr Frew did not make a downwind call either.He said the AC91-9 emphasised the use of standard radio calls and it emphasised establishingcontact before you give your message. So you would say "Display Yak 2" to commence the call.But this was where the pilot was wishing to make a directed call to receive a response.A. AC91-9 doesn't have anything to do with making radio calls. It doesn'tdelineate how your standard – when you land a flying aeroplane and you getyourself a radio licence to use the radio, and while you're learning to fly, youare taught to make the right kinds of calls and how to make the right kind ofcalls. And if you make a – it's general practice that if you make a call andthere's no response to it, then you assume from that point of view that yourcall has not been heard. Well I would make it again.Q. Well there are different types of radio calls, aren't there? There are radiocalls that require a response and radio calls that are just for information.A. That's correct but that call on the base leg like that when you've deviatedfrom what you had done previously is not just an alert call to people aroundyou. You are trying to alert the people on the ground that there is a changeand you would expect to get a response to that. I would as a pilot anyway.[415] Mr Hogan was asked what would happen if a pilot changed their mind aboutwhere they were going to land perhaps because they found they were too close to theaircraft in front:Q. In those circumstances, it's not necessary for any radio calls to be madebefore the pilot takes the decision to land on some other part of the –A. No, I disagree. He probably would alert the display director in thatsituation.Q. But it's not necessary for him to do so.A. I guess it's not written down that he should do it, but it is normal practiceto do that. It's important that everybody is kept in the picture.[416] However, I have not accepted there was any relevant deviation from thepractice nor any requirement to land on the same vector as the leader for this openingdisplay. It may have been good practice to advise the DD of your landing intentionsbut a broadcast call was sufficient for that purpose, especially absent any knowledgethat the broadcast call would not be heard in the Tower.[417] Mr Brown thought it should have been a directed call because his view wasthat specific permission was needed to land on the centre grass. I have not acceptedthis. That point aside, Mr Brown accepted it was a reasonable call to make in thefollowing exchange with Mr Dovey's counsel:Q. Well you're an expert witness, you said something earlier about it was alldone in a bit of a hurry. Is that not a fair point? If they didn't have time to carryout a meticulous brief then the reason for that would be because they wereasked only half an hour before the briefing and then they were occupied in thebriefing and then they were getting their aircraft ready.A. Well I think I actually said that their focus at that stage should have beenon preparing their aeroplanes and getting airborne and briefing or whatever,and not actually going and communicating with the display director.Q. I'll come back to what they were required to do later on in my cross-examination, but just before we leave the topic and so we have it clear in ourminds what your position is, I'm suggesting you should accept that the radiocall from Arthur Dovey was what he was required to do in terms of hismembership of a two ship formation to let the leader know where he would belanding and that in fact he did communicate that to the leader in fact.A. Yes, I guess that could be the case if the leader was the only one who neededto know that.Q. But anybody else who needed to know that should have been able to hearit on the radio, should have been able to hear it on the radio?A. Well there's an assumption being made that they can but we know inhindsight that they didn't and so –Q. Yes, with hindsight. With hindsight but there would have been no reasonfor Mr Dovey to think that his communication to the tower which was in clearline of sight five to 10 kilometres away from his position, less perhaps. Inordinary circumstances, a VHF radio transmission will carry that sort ofdistance, won't it?A. Yes, it would. He wasn't even that far away. He'd be lucky to be a bit morethan a kilometre away.Q. And of course the tower is supplied by Airways. This is not some piece ofamateur kit with crystals or something antediluvian like that that you mightget at an air show which is run on a shoestring and organised at the spur of themoment. This is sophisticated Airways equipment. Why on earth wouldArthur Dovey think for a moment that his communication wouldn't be heard?A. Well yes, I don't know is the answer because – and if he was making thecall to inform the display director, my question would be was he expecting ananswer from the display director or an acknowledgement? But it does – theway he's made the call, it's a broadcast call, not a directed call. So –Q. And that's fair enough isn't it, because he is telling everybody tune[d] tothe frequency he wants to tell Graeme Frew, he wants to tell the tower, hewants to tell any aircraft that might be thinking of taxiing in the vicinity andis on that frequency, which they should be, if they have started to move on to[an] active runway. So isn't a broadcast call the right thing to do?A. Yes, it's a reasonable call to make.[418] I accept the logic of this cross-examination and Mr Brown's acceptance thatMr Dovey acted reasonably in making a broadcast call. He reasonably did not knowhis call would not be heard and he was not required to make a further call when hereceived no acknowledgement of his call. Rather, he was entitled to expect that theTower was aware that he was intending to land on the centre grass and, if there was ahazard on the centre grass, he would be alerted to it.f) Response to other Tower calls[419] S/L Rankin contends that one of the reasons he was entitled to assume that theformation would land on the seal was the radio calls he made to the Tiger Moth andChipmunk at 21.03.21 and 21.04.32, which indicated that he understood the Yakswould be landing on the seal. He said neither Yak corrected him and that was "theirmistake", not his.[420] It was put to S/L Rankin that there was no need for the Yaks to respond to thesecalls because the Tiger Moth was holding clear of the seal and the grass and so itsmovements would not affect the Yaks. Similarly, the call to the Chipmunk was notgoing to conflict with the Yaks because the Chipmunk was also holding outside thedisplay airspace and was waiting for clearance to display.[421] S/L Rankin said it mattered to the DD because it showed that the DD had anincorrect mental model. He also said that his call to the Yak to turn left onto thesouthern grass after landing only made sense if they were landing on the seal. He saidit would be a different call if he was asking them to turn left from the centre grassacross the seal to the southern grass. He said he would have expected at least one ofthe two Yaks to correct him. Mr Lee supported S/L Rankin about this.[422] Mr Dovey said he heard the Tower make the call to the Chipmunk at 21.04.32.He said the call was not directed to the Yaks and consequently was of no concern tothe Yak formation. He said it was not the pilot's job to correct a DD on a call that wasnot directed to the pilot unless there was some significant danger. He also said the callat 21.02.00 (which alerted the Yaks to the light aircraft crossing the runway to get tothe other side), also relied on by the defendants as requiring a correction from the Yakformation, was not particularly relevant because it was non-specific as to the runwayand it was obvious that the DD would not leave them on the runway because thatwould be an obstruction.[423] Mr Frew agreed with Mr Dovey that calls not directed to someone in theairspace did not need to be acknowledged. He did not now recall whether he heardthe Tower calls to the Tiger Moth and the Chipmunk. He was "busy trying to land theaeroplane" so if a call was not directed to him he would not necessarily have heard it.He agreed with Mr Dovey that the calls from the MDD did not need to be corrected:Q. And you understand that Mr Dovey was landing on the seal as well?A. I didn't have an expectation either way, to be perfectly honest, sir.Q. Do you think if you had known that Mr Dovey was not landing on the sealyou might have corrected the display director here?A. No because our expectation was that the airfield was fully useable, and hemade a base call really.Q. But this is before the base call?A. Yes, yes. The aircraft that he's talking to, to keep clear of the runway, areto the south of the runway which makes them automatically clear of the grassarea, so they were never an issue for us as far as, you know, an obstructiongoes.[424] Mr Frew accepted he heard the call at 21.02.00 (advising the Yaks of the lightaircraft crossing the runway). He had acknowledged this by way of a "double click".76Mr Frew used this because he had "just put the power up" and was "getting very busy".Although he heard the call, he had "no visibility" on where the LSA were parked, hadno knowledge of where they were crossing from or to. Mr Frew said that, althoughthe straight line run was relatively simple, it still required them to set up the distancerelative to the pyrotechnics and the crowd and with the aeroplane at high speed "you'revery focussed on what you're doing as simple as it may seem".[425] Mr Frew was asked if the logical implication of the transmission was thepossibility of aircraft or other movement on the centre grass. He said:To be honest, sir, [I] would not have connected the dots because of what wewere doing at the time. That transmission was made just as we were runningin to start the air show so I must admit, I have a limited cognitive ability whenI'm busy with things like this, so I honestly can't say that I connected the dotson where those aeroplanes were going, but I fully expected the airfield to beusable when I needed it.76 This is a way of acknowledging that a transmission has been heard and understood when the pilotis focussed on other things, achieved by tapping the transmit button twice.[426] Mr Hogan agreed that there was nothing in the calls (relied on by S/L Rankinas requiring the Yaks to alert him of their intentions) that would have concerned theYaks from their perspective because they did not indicate any conflict between theTiger Moth or the Chipmunk and the Yaks.[427] The defendants submitted that Mr Skilling's evidence supported S/L Rankinon this. Mr Skilling's evidence was that "you still pay 100% [attention]" to a calldirected to another aircraft "because it can give you an indication of what's going onaround you". However, Mr Skilling did not go as far as to say that you wouldnecessarily hear and understand all calls directed to another aircraft while you weredisplaying, nor that you would correct a DD during your display as to a call directedto another aircraft. Indeed, he was asked what he would do if a broadcast from adisplay director indicated he had a misapprehension about what he was intending todo. He said that if it was not creating a hazard then you could ignore it. If it was goingto create a hazard then you would obviously point it out.[428] For the reasons Mr Frew and Mr Dovey gave, the calls (in so far as they wereunderstood while they were in the course of their display) did not indicate any conflictwith their intentions. Further, the calls to the Tiger Moth and Chipmunk at 21.03.21and 21.04.32 preceded Mr Dovey's broadcast call at 21.04.49 advising his intentions,and the subsequent call at 21.05.36 to the Yak to vacate to the south still applied albeitthat Mr Dovey might also need to cross the seal. I therefore conclude that S/L Rankinwas not entitled to assume that his calls to other aircraft would be corrected by theYaks formation if they were not intending to land on the seal. I also conclude thatMr Dovey did not fail to exercise reasonable care by not ensuring that S/L Rankin'smistaken assumption was corrected by a directed or follow up call from Mr Dovey.Contributory negligence[429] I conclude Mr Dovey made an appropriate, non-negligent, broadcast advisingof his intention to land on the centre grass. I consider that his call of "grass", togetherwith his position on finals, indicated that he would be landing on the part of the grassclosest to the seal. It was not necessary for him to say "centre grass". He was notnegligent in failing to repeat the call when it was not responded to. Nor was henegligent in failing to make a directed call.Breach of duty[430] I also conclude that neither S/L Rankin nor Mr Lee were negligent in failing toask Mr Dovey to repeat the call. S/L Rankin simply did not hear something that herecognised as a radio call from Mr Dovey, and Mr Lee heard enough to make himthink it was a base call from Mr Dovey but made reasonable assumptions about itscontent in the circumstances. It was not Mr Hogan's job to communicate on thedisplay frequency, so he was not negligent in failing to hear or respond to it.[431] I consider that, if WoW Ltd or relevant personnel expected pilots to informthem of their runway choice by a radio call during the display, then it was necessaryto know whether the radio call of the displaying aircraft could be heard. The Towerdid this by establishing contact with the leader. The leader was ordinarily the oneexpected to contact the Tower on behalf of the formation and here the leader did hearMr Dovey's call. In these circumstances I consider that WoW Ltd or relevant WoWpersonnel were not negligent in their provision of facilities to receive radio calls. Thatsaid, the WoW 2020 Exposition proposal for radio checks with each aircraft seems asensible additional precaution WoW Ltd could take for improved safety going forward.Mr Dovey's landing approachThe issue[432] This issue concerns Mr Dovey's landing technique which meant he could notscan the length of the runway before he landed, and whether he should have adopteda different landing technique or informed the DD he could not scan the runway.Alleged pilot negligence[433] This issue primarily concerns the defendants' contention that Mr Dovey wassolely or mainly responsible for the accident. The defendants submit a pilot incommand has a non-delegable duty to be responsible for the safe operation of his orher aircraft, which applies from when the aircraft moves until it comes to rest. Theysay that this includes a duty to check the runway before landing and, if that is notpossible, to put in place some other arrangement so that the non-delegable duty can bedischarged.[434] The plaintiff submits that, in the context of a display in a warbird aircraft wherethere is a display director providing passive control, the pilot is entitled to expect tobe alerted by the DD team to hazards on runways that are briefed as available. Thisdischarges the pilot's responsibility for the safe operation of the aircraft.Civil Aviation Act[435] Section 13 of the Civil Aviation Act 1990 provides:13 Duties of pilot-in-commandThe pilot-in-command of an aircraft shall—(a) be responsible for the safe operation of the aircraft in flight,the safety and well-being of all passengers and crew, and thesafety of cargo carried; and[436] Rule 91.201 of the of the Civil Aviation Rules provides:91.201 Safety of aircraftA pilot-in-command of an aircraft must—(2) during the flight, ensure the safe operation of the aircraft andthe safety of its occupants; and[437] Part 1 of the Civil Aviation Rules defines "flight time" as:Flight time means—(1) for an aircraft other than a balloon, the total time from the moment anaircraft first moves for the purpose of flight until the moment it comesto rest at the end of the flight including any associated push back,taxiing and subsequent holding time; [438] The defendants say that s 13, reinforced by r 91.201, placed an obligation onMr Dovey to ensure that it was safe to land. As it was put in Vertical FlightManagement Limited v Airwork (NZ) Limited, in the context of a mid-air collision notin an airshow context, "there can be no doubt both under the Act and at common lawthat both pilots were under an obligation to keep a proper look out".77The evidencea) Mr Dovey's description[439] To understand the circumstances of a landing after a display such as this, it ishelpful to have an understanding of performing the display from the pilot'sperspective.[440] Mr Dovey described his warm up and his takeoff (at 9.52 am). He describedthat after holding in loose echelon with Mr Frew at Mount Iron and upon receiving theclearance from the Tower to commence their run (at 10.01.27 and 10.01.54) the Yaksapproached the airfield with their speed increasing to 550 km/h. They were at 100 feetabove ground level and he was concentrating on maintaining a good look out. Thepyrotechnics were set off as they flew past the airfield, generating flashes and smoke.[441] He observed Mr Frew starting to climb after passing the airfield and turn rightfor the wingover left. Mr Dovey closed to line astern (100 m from Mr Frew) and notedthe height at the top of the wingover was 2,700 feet above ground level. Theydescended to between 200 to 300 feet above ground level for the "buzz", flying in theopposite direction to the strafing run. For this pass, Mr Dovey's speed was around540 km/h and his separation was about 200 m from Mr Frew, who was to his right.Mr Dovey watched Mr Frew "break" and a few seconds later broke after him bypulling up in a climbing right turn.[442] Mr Dovey levelled behind Mr Frew, at 1,200 feet above ground level and at370 km/h, and watched his speed decrease through 300 km/h. During the downwind77 Vertical Flight Management Ltd v Airwork (NZ) Limited HC Auckland CP370/95, 6 November1997 at 22. This statement was not challenged on appeal: Airwork (NZ) Ltd v Vertical FlightManagement Ltd [1999] 1 NZLR 641 at 6.leg, with the significant speed change, changes of elevator trim and power settings arenecessary, as well as landing checks. Mr Dovey selected "gear down", checked hehad three green lights and the mechanical gear down indicators, checked his brakesand his fuel. By this time, Mr Frew had turned for the base leg. Mr Dovey turnedonto the base leg behind Mr Frew. He made his base call, "Yak number 2, base, greens,grass" (at 10.04.49) at the first opportunity.[443] As he turned for finals, Mr Dovey noted the pyrotechnics' smoke (set off duringthe earlier high speed pass in the display) was still drifting over the field and wascoming from a more northerly direction. He positioned to the right of Mr Frew onfinals so he could see the threshold of the 29 seal runway and the aircraft ahead and toreduce any wake turbulence from Mr Frew's aircraft. He put the aircraft into a noseup attitude. He landed on the centre grass.[444] At the point of the rollout where he was about to put on the brakes tocompletely slow in order to turn left and vacate the field, Mr Dovey felt his aircraftshudder down the right side. His initial reaction was that his right undercarriage musthave failed. When the aircraft stopped, he turned off the battery, selected magnetosand fuel mixture off. He removed his parachute harness straps, his seatbelt straps andradio lead, and opened the canopy to quickly vacate the aircraft because of the risk offire. He looked behind him and saw the two cherry pickers on the centre grass andrealised he had hit one or both them. He was very angry that he had not been warnedabout their presence there.b) Sight of the runway[445] The cherry pickers were large and orange in colour and, as you would expect,are ordinarily easily visible from the air. Mr Dovey explained why he had not seenthe cherry pickers before commencing the display and during it. The airfield was notobservable while he walked from the pilot briefing to his Yak 3 at the aircraft park.Similarly, the view of the airfield from the aircraft park was obscured by the Tower,the tents, display equipment and the grandstands.[446] On the runway his attention was focussed on the task at hand, which wasgetting ready for warm up and takeoff, carrying out the manoeuvres and keeping hisleader in sight. Mr Dovey explained that intense concentration was needed duringformation flying to watch and follow the leader to avoid accidents. This is made moredifficult by the camouflaged wartime paint scheme on the aircraft. If the number twoloses sight of the number one it is very difficult to find them again. As Mr Dovey putit, "[n]o one wants to lose sight of his leader only to find him flying a few feetunderneath your propeller tips on finals".[447] Mr Dovey said:I certainly glanced at the centre runway. I glanced at the airfield on base turnand I could see that the threshold was clear. I could see the threshold of thesealed runway was clear. There was smoke drifting over the field. I didn't lookbeyond the threshold of the field because that was my aiming point. If it was possible in the Yak I would have looked at the runway ahead butthe view is restricted with the nose-up attitude by the nose being in the roadand that's why I was looking to the left to gauge my flight path to achievethe touchdown point abeam the runway sealed threshold.[448] He further explained:I did not scan the grass runway for obstructions but it is unrealistic to expecta display pilot of a high performance aircraft to do so while at the same timeflying a fast and demanding formation display safely. My primary obligationas number 2 in the formation display was to maintain my distance and bearingfrom my leader; so for the duration of the display from the time of takeoff myeyes had to be on my leader. The need to keep the leader in sight at all timesis paramount and the cardinal rule for formation flying, including landings. I calculate that the time the cherry pickers would have been visible from theshort downwind leg after completion of my landing checks would have beenonly 5 seconds and to see them would have required me to have turned myhead some 120 degrees to the right or more and concentrate on scanning theground. The overcast conditions, the flat lighting and the smoke from thepyros would have made it difficult and time consuming for me to pick out anyobstructions on the grass vector. To have attempted that would have certainlycompromised my ability to keep ZK-VVS in sight and maintain separation ata critical point in the sequence. That would have been a recipe for an incidentor worse.[449] It is accepted that Mr Dovey would have been concentrating on executing thedisplay and keeping his number one in sight for most of the display. It is not surprisingthat he did not see the cherry pickers while doing so. The defendants say that finalsprovides the opportunity to check the landing area is clear. The defendants say thatMr Dovey ought to have been able to scan the length of the runway when on finals ifhe had adopted an appropriate landing technique and, if he had done so, he would haveseen the cherry pickers.c) Other factors[450] The evidence traversed whether the weather or the pyrotechnics may havemade seeing the cherry pickers more difficult.78 However, the closing submissions forMr Dovey did not submit that either of these things likely obscured the visibility ofthe cherry pickers. It is possible they did not help, but I consider they are better viewedas environmental factors relevant to the demands of keeping the number one in sight.If Mr Dovey should have scanned the runway, the grey sky and the drifting smoke didnot excuse that.d) Mr Dovey's landing technique[451] A video of Mr Brown coming in to land at Tauranga airfield in a Harvard wasplayed at the trial. The video was interesting in that it showed that Mr Brown hadgood visibility of the length of the airfield as he was coming in to land in a three-pointattitude. However, this did not replicate Mr Dovey's likely visibility of the runway inthe Yak when he came in to land in the WoW 2018 opening sequence.[452] As Mr Skilling explained, this was because:(a) the speed of the Harvard would be probably half the speed of that ofthe Yak – across the threshold the Harvard would be around 60 kn andthe Yak would be about 105 kn;(b) the Yak would have far less visibility out the front than a Harvard, withits much higher and longer nose; and78 Mr Smart said it was a fine day. However, the more reliable evidence came from the video of theMr Frew and Mr Dovey's display. That video shows a grey sky that was in the process of clearingafter the morning rain. Mr Frew said the visibility was good. It was clear, there were no issueswith the sun at that time of the day and there were no fog or flat light issues. Having viewed thevideo footage of the Yaks landing, Mr Lee's view was that visibility was not a factor. By the timeMr Dovey was on finals, the video indicates that there was some smoke, but not a great deal,drifting across the runway.(c) as was typical for a Harvard approach, it was lower in the glide slopethan a Yak would be, and this also assisted in being able to see wellover the nose of the Harvard than is possible in one of the bigger fighteraircraft.[453] The appropriate landing approach and the resulting visibility needs to beconsidered with reference to the Yak. The normal attitude of the Yak at rest on threewheels is 12 degrees nose up. The aircraft nose extends some three metres ahead ofthe cockpit. This precludes the pilot from seeing directly in front of the aircraft whilston the ground in a 35 degree radius.79 There is also a loss of vision on the approachto landing from when the Yak 3 goes into the flared position.80[454] With a three-point landing the aircraft approaches the runway at its landingspeed (195 km/h (105 kn) minimum in the Yak 3) with an attitude of six to eightdegrees nose up, then flares to 12 to 14 degrees for the landing on all three wheelstogether at the same time. Mr Dovey explained that his technique in the Yak 3 is to beat close to his finals speed (200 km/h) soon after the turn from the base leg to finalsand for the attitude of his Yak 3 to be six to eight degrees nose up at that speed. Thisis referred to as a "stabilised" approach. It is impossible to see the runway from thatposition.[455] Mr Dovey accepted there were other landing styles that might give bettervisibility. He was shown the video footage of Mr Brown landing a Harvard at theTauranga airport. The cross-examination proceeded as follows:Q. You'd accept that that would give you the best visibility to approach alanding?A. Possibly if you were wanting to fly that sort of approach.Q. To give you the clearest view down the runway?A. If that's what you desire.Q. Well, it's important to see down the runway and ensure you're landingsafely, isn't it?79 Centred on the aircraft's fore and aft axis (17.5 degrees either side of the axis).80 As the aircraft approaches the threshold it moves into landing mode, which is commonly calledthe flare for a tail aircraft. The nose of the aircraft rises as part of the flare.A. I don't fly that approach and that's not a Yak-3 aircraft.Q. So you fly an approach with your attitude much higher up in the nose asyou go through in defiance?A. That's correct.Q. Which restricts your field of vision.A. That's a consequence of flying the approach which I fly.Q. You could equally, with the separation that you had on the day of thelanding, have flown a much higher approach with a lower attitude.A. One of the things which you acquire with experience is that you do thingswhich you are trained to do and I was trained to fly tail-wheel aircraft to landin a three-point attitude. At the time in the air force when you came from baseturn to finals the speed on the base turn in a Harvard was 90 knots and then itwas progressively reduced until about 65 knots over the fence. A Harvard is arelatively slow basic training aircraft. The Yak is a relatively high-performance Warbird, albeit tail-wheel. The reason why I slow to the approachspeed immediately after the base turn is because that is the technique which istaught by both Boeing and Airbus and operated by all airline pilots throughouttheir career. In fact in Air New Zealand the aircraft has to be stabilised in thefinal approach attitude, flaps down, stabilised when I was with Air NewZealand by 800 feet, and then you flew a constant attitude, hopefully constantspeed, constant angle of attack to touchdown. I know from my auditing inKorean Airlines that that's exactly the same as Airbus procedures. Now everyexperienced pilot, airline pilot in the world flies that procedure automaticallybecause that's adopted by all airlines around the world. In other words, youdon't slow up on finals. You have to be at your approach speed some distanceout. I gather that distance now in Air New Zealand is 1500 feet and if you'renot stabilised at 1500 feet you're required to go around. That is why I adoptthe attitude and the constant speed from lining up on finals into touchdown.That guarantees, it's the best guarantee for consistent touchdowns at theappropriate distance.[456] Mr Frew's wheeler approach has a landing at a higher approach speed, with ahigher, and therefore faster, angle of attack. It was put to Mr Dovey that he could havecome in at a higher angle of attack, as Mr Frew had done. Mr Dovey's response was:Yeah, that's his method of landing.It's a question of aircraft technique. My technique is my technique adjustedfor my experience over many years of operation and I've never had anaccident until the 31st of March. So it confirms to me that my technique isappropriate and satisfactory.[457] It was put to Mr Dovey that a higher and faster angle of attack would lessenthe chance of wake turbulence, which Mr Dovey had indicated he was concernedabout. Mr Dovey replied:It's generally recognised that Warbird aircraft of my vintage and speed, and Iwould say that the Yak 3 approach speed is 105 knots, something like aHarvard lands at 65 knots, a Spitfire probably 70 knots, some other aircraftland about that speed and I'm not sure about the P40, I imagine it's 70 to 75knots, the stalling speed of a Yak is considerably higher than those otheraircraft. The Vampire is 105 knots. I've spent more than 500 hours flyingVampires. So the speed at which you fly is determined by the aircraftcharacteristics at being a safe speed above the stall. So World War II aircraftof my vintage generally are considered to require 800 metres of landingdistance. Less than 800 metres it requires an exact point on the touchdown andrelatively good braking. My aircraft was built in Czechoslovakia sometimeafter the Second World War and it only has drum brakes which are like, if youcan recall, your early cars. The braking was not as effective as the modern carswith disc brakes. Mr Frew's aircraft has disc brakes so it's capable of muchbetter braking capability than mine.[458] It was put to Mr Dovey that he would have better visibility if he opted to goslower and slightly yaw the aircraft.81 He responded:Yaw in the aircraft would pretty much guarantee that you – the thing is youare only just above the stall. Yawing aircraft is [an] extrem[e] manoeuvrewhich could introduce an incipient stall which would probably be fatal at thatstage. So you cannot and would not and I would expect no experienced pilotwould ever do that on finals.[459] Mr Frew agreed with Mr Dovey that once the pilot is in the nose up attitude itwas not good airmanship to try yawing the nose with the rudder in order to see aheadof the aircraft. He also agreed that, at that point in the flight, the aircraft is close to thestall speed and yawing the nose could cause a stall. He said that a successful recoveryfrom a stall was unlikely when at the finals height of a few hundred feet. He said thatyawing on rollout would also pretty much guarantee a ground loop. Mr Skilling agreedwith this.[460] Defence witnesses were critical of Mr Dovey's approach. Mr Lamont hasflown Mr Dovey's Yak 3 in and out of the Wanaka airfield. He had completed fourhours flying in the Yak 3 but had never done a public display flight in it. He consideredit to be relatively straightforward to fly in comparison with some other WWIIaircraft.82 He regarded the visibility of the Yak 3 in flight to be adequate and he hadnever had an issue with the ability to see obstructions on the runway on the approach81 A yaw involves using the rudder to move the nose of the aircraft sideways on the horizontal axis.82 Mr Lamont described the Yak as easier to land than the Spitfire, Corsair or the Kittyhawk forexample. He considered the Polikarpovs to be the trickiest because of their limited visibility anddirectional stability during landing.to land. He considered any suitably qualified pilot would be able to scan the landingzone for static obstructions similar in size and colour to the cherry pickers beforecompleting their approach. He trained pilots from their first flight to check the runwayis clear and it was no different when landing after a formation flight in a WWII aircraft.[461] Mr Lamont said that there was no prescribed angle that you must maintain forthe final approach for a WWII aircraft, in contrast with airliners. Typically, a WWIIaircraft approached the runway at a steeper angle than airliners. He said pilots weretrained to complete the base turn leg at 500 feet above the ground for the final approachto the threshold. If Mr Lamont were landing Mr Dovey's Yak-3M he would try tomaintain the same angle of attack all the way down. This kind of approach wouldenable the pilot to have visibility of the runway. If the pilot had misjudged it and hadended down too low, one option was to make an adjustment by "using the rudder toslightly yaw the aircraft which allows you to see along in front of the nose". But,generally speaking, you should not have to do that "and there's only one aeroplaneI've flown that you cannot see at all in front once you're on the final approach andthat's a Polikarpov".83[462] He explained the attitude of the aircraft (the nose up or down position): If the aircraft's flying along what we call [straight and] level, it will bebasically in a level attitude give or take a degree or two. As the aircraft slowsdown and the pilot lowers [flaps] to allow it to fly safely at a lower speed, itwill normally have a higher nose attitude to generate more lift flying level. The steeper the approach angle, the less the nose-up attitude because he'll haveless power on and it will be much easier to see down the grass runway. Ifyou're on a very flat approach, you require a lot of power to maintain what isbasically level flight almost and the nose will be higher, will be much moredifficult to see down the landing strip and you place yourself in a very difficultposition should you have a power loss, engine power loss, you haven't got anyoptions on where to go [463] Mr Lamont was asked about Mr Dovey's approach technique. He said:Well, it's legitimate in law I s'pose, but it's not a technique I would advocateto anyone flying a relatively light-weight piston engine aircraft and certainlynot a World War 2 aircraft.83 That aircraft has a very large round engine in front, close to the pilot, which blocks the pilot'sangle of vision in front.Well, it's not my style and I don't know of anybody else who uses that sametechnique. you use the best technique for the aeroplane you are flying and when you'reback on speed using more power, you then are reducing your options in termsof recovering from a loss of power.[464] Mr Lamont said that, if he was doing a check ride with someone in a Harvardand they used that technique, he would definitely take steps to correct their technique.He did not know Mr Dovey had used this technique when he assessed him for thepurposes of his LLDA, as this can be difficult to tell from the ground. He said that, ifhe had seen it, he would certainly have commented on it.[465] As to Mr Dovey's touchdown, he said that it looked fine from what he saw onthe video. It was quite fast but acceptable. He described it as: a reasonably acceptable touch down, and I mean the ground's a little rough.The aircraft was in about the right attitude. It skipped a little bit, but I meanhe's entertaining the crowd as well. I mean I'm not going to comment anyfurther than that really.[466] Mr Lamont is a highly skilled pilot with significant experience in flyingwarbirds. Mr Brown has not flown a Yak but he does have significant experience intraining pilots and in display flying and flying tail draggers. In common withMr Lamont, his view was that it was not a safe flying technique to raise the nose toohigh initially on finals so that the runway could not be seen. He also agreed withMr Lamont that there were other potential issues from reducing the speed to thelanding speed in the way that Mr Dovey's technique involved.[467] However, Mr Skilling, with all his skill and experience, had a different viewfrom that of Mr Lamont and Mr Brown. Mr Skilling said that in the Yak 3 he wouldfly a stabilised approach. He explained:Well that's the approach I would take, a stabilised approach. I mean there'stwo ways, stabilised or reducing speed. Now the Yak 3 as I've alreadymentioned crosses the fence very fast compared to the likes of a Spitfire or aCorsair or certainly a Harvard and because you're going fast, you want to beable to stop and it's got very poor brakes. They have, the Yak 1 has got discbrakes but this particular Yak that we're talking had drum brakes which aren'tvery efficient. So you don't want to be going fast at the threshold, so I wouldbe setting up back two or 300 feet at my threshold speed, not trying to get itreduced as I cross the threshold. I would be stabilised preferably about200 feet on speed to cross the fence and that's how I'd be landing that sort ofaeroplane.[468] Mr Skilling was asked whether, if a pilot had the option in a Warbird of flyingan approach style that enabled the pilot to check the runway was clear and the optionof another approach with less visibility, then good airmanship would be to choose thefirst approach style. He responded "no, not at all". He said there were good reasonsto choose between one approach or another. This was particularly the case when flyingin formation, when the number two is concentrating a lot on the aeroplane in front anddoes not want to "make a mess" of his landing.[469] He was asked about Mr Lamont's evidence that if Mr Dovey flew this approachin a Harvard he would tell him to use a different approach in the future. Mr Skillingconsidered there were different considerations for flying finals in a Harvard than in aYak. Referring to the constant angle of attack approach described by Mr Lamont,Mr Skilling said:That's how we were taught to fly the Harvard. It's an exercise in learning howto fly the Harvard and learning how to land the Harvard. And in general whenyou come around the base and line up onto the runway at 500 feet or so, andwe would reduce speed to cross the threshold at the approach speed. We callit the "last look", across the fence. That's a good technique in a Harvard andso it's a technique I use in a Harvard as well but the Harvard is verymanoeuvrable, it's got good stopping power and so on and so forth. But theYak is going much faster and I want to set up early, so I want to get the speedback to where I feel comfortable early.[470] Mr Skilling was asked about the suggestion of yawing if visibility wasrestricted. He said the necessary yaw would be close to 15 degrees and there wouldbe safety considerations:I mean you're not far above the stall coming into land and any yaw willincrease the stall speed and particularly the Yak with a very small wing. Ifyou put any yaw on in short finals, you know, you'll be dead. It would happenso quickly. [471] Mr Skilling explained how the stall would occur. He said he had seen a goodfriend of his killed doing just that in a Messerschmitt 109. He said:A. The taildragger pilot spends all his time preventing yaw. The last thing youwant to do is allow any yaw to happen. The dynamics of the aeroplane,without going into the – it really wants to yaw the whole time. If you let theaeroplane start to yaw and it gets away from you, it will do what we call aground loop and there's a saying in aviation that you've either ground loopedor you're going to, so any yaw at all is very, very rapidly corrected with rudder.Q. Right, so this is on the rollout we're talking about?A. On the rollout, you'll know there's no way, and the tailwheel's lockedanyway. You're on a three-point latitude holding the stick back so you'regetting good braking and so on and, no, you would never, ever intentionallyyaw an aeroplane.Q. On rollout.A. On rollout. At the very critical stage at the end if you saw an obstruction,you could try and yaw away from it, but I mean, you know, not, never, ever.[472] Mr Skilling said that each kind of aircraft has its own technique and each pilotwould have his own technique and generally none of them are wrong. He said that, aslong as the pilot made the threshold at the right speed, the right height and the rightattitude, the technique to get there did not matter. He said that with a three-pointattitude, the pilot will want to have the nose very high to avoid stalling the aeroplane.[473] Mr Skilling was shown the video of Mr Frew and Mr Dovey in finals andlanding. He said that Mr Frew's landing was normal for a wheeler approach. Heconsidered Mr Dovey's landing to be normal and his approach looked about right forwhat he was trying to achieve. He was asked to comment on the fact that Mr Dovey'sangle of approach was lower than that of Mr Frew. He said he would expect it to be.He explained:Because he's doing a three-point landing and he wants to set the aeroplane up.Mr Frew's doing a wheeler arrival. He'll come in a bit steeper. If you want todo a three-point landing you've got to set yourself up in the three-point attitudein my opinion in this sort of aeroplane further out.[474] Mr Skilling explained that a wheeler approach is a much faster approach andthe pilot is flying the aeroplane onto the seal. With a three-point landing, a pilot wouldwant to be just above the stalling speed (which in a Yak 3 would be about 85 or 90 kn).He said that from the position of the photographer on the ground, it was possible tosee that Mr Dovey's aircraft was at a lower altitude with a higher nose attitude. Hesaid that from this, and the position of the aeroplane, it should have been obvious toan experienced flying display director that Mr Dovey was going to land in a three-point attitude and would be landing on the grass. He was asked if he had any commenton the fact that Mr Frew landed much closer to the "piano keys" (white painted stripesat the threshold of the sealed runway) than Mr Dovey did. Mr Skilling said "No.That's just the way it was. It was a good landing" (referring to Mr Dovey). He wasasked what the consequence of Mr Dovey being "so low" in his approach was.Mr Skilling replied that the consequence was "a good landing".[475] Mr Frew had watched the video of Mr Dovey's landing. He considered it waswell-executed. He agreed that once Mr Dovey was in finals and set the nose-upattitude required for three-point landings, his visibility was lost. He said from thatpoint Mr Dovey "manoeuvres the aircraft with reference to things that he can see tothe left or the right; such as the threshold of 29 seal". He said this was completelynormal and the degree of visibility that is lost depends on the aircraft – aircraft suchas the Yak 3, which have a large inline engine in a long nose, have the greatest loss offorward visibility.[476] The defendants sought to diminish Mr Dovey's currency, ability andexperience, but I was not impressed by this. Mr Dovey had flown his Yak at nineprevious airshows and had passed all necessary approvals to display at this airshow.He had never had an accident before, whether in his Yak or in his years flyingcommercial planes. The WoW defendants referred to an incident at a previous showwhen Mr Dovey allegedly breached display lines. Mr Dovey disputed this. WoW alsosaid that Mr Dovey had breached display lines at Omaka. This was not put to him incross-examination and in answers to interrogatories he said he was aware of theallegation but no evidence was presented. More significantly, these alleged incidentswere not seen by WoW as sufficiently serious to disqualify him from participating atWoW 2018. Indeed he was considered sufficiently experienced and skilled to be askedto do the opening display at short notice. Further, alleged breaches of display lines arequite different to a deficient landing technique. It was not relevant to a pilot's skillsand ability to utilise an appropriate landing technique suitable for their aircraft.Findingsa) An appropriate technique[477] I accept Mr Dovey's, Mr Frew's and Mr Skilling's evidence about Mr Dovey'sdecision to use a stabilised approach. For the reasons they gave, I consider he wasacting professionally and skilfully in using this approach. I accept that a pilot shoulduse a technique that they are experienced in and that is suitable for their particularaircraft. A higher angle of attack was not appropriate because of the brakes onMr Dovey's aircraft. A yaw was dangerous. A stabilised approach was suitable forthe aircraft and was in line with Mr Dovey's years of experience generally and hisparticular experience with his aircraft.[478] The defendants make the point that Mr Dovey's stabilised approach differedfrom Mr Skilling's because Mr Skilling adopted it at 200 ft whereas Mr Dovey did soat 500 ft. Mr Brown explained that Mr Skilling should be able to see the runway overthe nose at 500 ft with his approach. He said that, when Mr Skilling is at 200 ft: you're five to 10 seconds away from touching down. So if he's got ahigh nose attitude at that stage you still can be quite comfortable in the factthat the runway would be clear in front of you because it's unlikely anything'sgoing to happen in the next five seconds, or you'd be pretty unlucky if it did. But you've still got that first 300 feet on finals where you should be ableto see what's going on out the front.[479] In other words, Mr Skilling's approach as compared with Mr Dovey's gavehim visibility of the runway for a matter of seconds between 500 and 200 ft. It wasnot put to Mr Dovey that he could have executed a stabilised approach later on finalsto provide him with that few seconds of visibility. Nor was Mr Skilling asked whetherMr Dovey should have adopted his stabilised approach later. I conclude thatMr Dovey executed his finals and landing with reasonable care. It has not been provenotherwise.b) A pilot's responsibility at an airshow[480] The next issue is whether Mr Dovey discharged his duty to be responsible forthe safe operation of his flight notwithstanding his inability to scan the runway.Mr Dovey said he was relying on those in the Tower, who had a clear line of sight ofthe runways, to warn him if there was anything obstructing the centre grass. If thedisplay directors had mentioned any obstructions he would not have landed there. Heregarded his obligation to check the runway to have been discharged by the displaydirector's obligation to keep an active runway clear for landing.[481] He was asked if he should have alerted WoW to the fact that he would not beable to check the runway was clear before landing. He replied:I would say that the Spitfire, the Messerschmitt-109, the Corsair, the Mustang,the Buchon, any aircraft, World War II vintage, [tail-wheeled], would havebeen in the same position on finals had they chosen to do a three-point landing.I'm unaware of any pilot making any comment to Warbirds over Wanakaregarding that situation.[482] Mr Skilling said that display pilots should always check that the landing areais clear of obstructions. However, the display pilot is occupied by a whole host ofdisplay safety priorities. For this reason, there should be no distractions to the displaypilot: no itinerant traffic, no radio interference, and no obstructions. The DD watchesto ensure this. Mr Skilling said this is why there are display rules and the airspace isclosed except to the display pilots. He said: 'Clear to display' means the whole area is clear and it['s] 'yours'. So, evenif a display pilot only glances at the landing area during approach, and that isgenerally all one gets in a formation, unless an obstruction is glaringlyobvious, it won't be seen.[483] In cross-examination, Mr Skilling was asked further about a pilot'sresponsibility to check the landing area is clear:A. You'd agree with me, wouldn't you, that part of your responsibility for thesafe operation of your aircraft is to check that your landing area is clear beforelanding?A. Correct.Q. And do you agree with me that that check should be carried out for the lasttime on finals?A. Yes.Q. And by the time you get to finals I'm right aren't I that you've completedall your other prelanding checks?A. Correct.Q. You can concentrate on lining up with your desired landing area andchecking it's clear?A. Correct.Q. Do you agree with me that a 20 to 30 second approach on finals is sufficienttime for an experienced pilot to check that the landing area is clear?A. If you can see the landing area.Q. If you can see the landing area.A. If you're not in a Warbird.[484] Mr Skilling explained that he had flown the Polikarpov dozens of times on thesame runway and from 200 ft on finals it is impossible to see the airfield, let alone thelanding area, over the nose. He said he always had somebody in a truck on a radiositting at the cross runway at Wanaka to advise him if it was still clear. This was amethod of discharging his obligation as a pilot to check the runway was clear. He wasnot asked if this was when displaying or when he was landing the Polikarpov outsidethe WoW show hours. Nevertheless, and although the Polikarpov is not the same as aYak, his point was that "in some of these aeroplanes not only can you not see therunway, you can't see the airfield" and that was the simple reality of display flying inthem.[485] He further explained:Q. And your evidence is that if you do a straight approach in a Warbird whereyou lose sight on finals then you just take a leap of faith do you?A. Well that's all you can do.Q. Do you agree that if you can't be satisfied as a pilot in command that yourlanding area is clear you should discontinue your approach even if on shortfinals and go around?A. Well I've just explained it. You do lose sight of your landing area on shortfinals in a Warbird, and most of them are the same. So that there's nothing youcan do. You've made your calls, you've checked prior, there's nothing else youcan do.[486] Mr Skilling said there was only a minimal chance that either Mr Frew orMr Dovey would have had the opportunity to see the cherry pickers during theirdisplay. He said it was the responsibility of the display organisers to keep the landingarea clear and, if not, to advise the pilots accordingly. Mr Skilling was asked whetherthe number two could to some extent rely on his leader to check the runway. He said"[n]o, the runway will be clear because the flying control director has told me it'sclear". Mr Skilling also explained that once the number two aeroplane is in the landingattitude the pilot cannot see the number one. He said:Q. How do you suppose Arthur Dovey achieved that safe landing if he couldn'tsee Mr Frew land in front of him on the seal?A. Well that's a standard procedure. If you are landing behind somebody onthe seal, the number 1 aircraft will be well in front hopefully and he'll be offto one side hopefully, and that would normally be briefed if you're landing inline astern. However, once you are in the landing attitude probably from 200feet or something, you're not going to be able to see what's in front of you, soyou're hoping, I mean, it's the way it is, you can't see him so if he ground loopsor has a brake failure and goes off one side, there's a good chance you mighthit him and that's the risk you take with the Warbirds.Q. So you rely primarily on adequate separation?A. Fore and aft, correct, but if he has a problem on the runway, hopefully he'llcall it for me and I can vacate the runway before I hit him.[487] Mr Frew said that different aeroplanes fly different slopes and speeds. Heagreed that in any aircraft he would satisfy himself that he could land on a runway tothe best of his ability, although with Air New Zealand he has an air traffic serviceclearing him to land. However, his view was that, because the entire grass was briefedas available, he and Mr Dovey were entitled to expect that it would be unobstructed.[488] Mr Frew said:I didn't see the cherry pickers before I saw that Arthur had collided with them.Obviously, they should never have been left there. The entire grass had beenannounced as available at the briefing and so was an active runway that shouldnot have been obstructed.I could easily have elected to land on the grass and if I had done so I think thatit is entirely possible that, like Arthur, I would have collided with the cherrypickers.[489] Mr Frew was asked about whether, if he had been intending to land on thenorthern grass, he would have revisited that when he heard the radio calls about thelight aircraft crossing to the other side. He said:You would hope so but I can't say that I would've categorically done thatbecause, again, I would expect those vectors to be kept clear for me.[490] There was also the following exchange:Q. But as a pilot coming in to land, you can see the runway as you come in toland?A. Correct.Q. And you are scanning the runway to ensure there's no obstructions on therunway when you're coming in to land?A. That is correct.Q. And you're satisfying yourself that the runway is clear before you makethat commitment to land?A. To the best of my abilities, yes, but I have said before, I never saw thosecherry pickers and I –Q. Because you weren't landing on grass. You were landing on the runway?A. They were right next to the sealed runway, I never saw them.Q. Yes, but you were landing on the sealed 29 –A. I was.Q. – so in your mind when you're landing is looking at where you're landing,correct?A. Trying to – yes. Put the aeroplane where I want it on the runway, yes.[491] Mr Brown's view was that a pilot cannot land if they have not checked therunway is unobstructed. That contravenes the safe operation of the aeroplane. Theapproach needs to involve checking the runway, and if that cannot be done then thepilot would have to "go around". Mr Brown went on to explain that the pilot shouldcarry out some manoeuvres that allow them to check the runway. Referring back toMr Skilling's approach, in response to questions from the Court, Mr Brown said:A. that's similar I think to what Keith Skilling was saying was how hewould set up the Yak 3 to the, back at his threshold speed at 200 feet ratherthan at 500 feet because that means that between 500 feet and 200 feet he'sactually able to see the runway and he's progressively then raising his nose,but from that 200 feet to touchdown, you're talking five to 10 seconds so it'sa lot less likely that something is going to appear there in five seconds sort ofthing whereas if you've done a whole circuit of a minute and a half withoutand not being able to see the runway at all down the final approach then you'vejust increased that time, you've given enough time for something to happenthere.Q. But the effect of Mr Skilling's evidence is that you do what you can butyou may still have a runway that isn't fully clear and you do have to trust thatnothing happens, everyone's done their job, it's going to be okay.A. Yes –Q. And you say, "Well I wouldn't take that risk. I wouldn't be in that plane but–A. Well no, I do take that risk. I'm continually assessing and watching tomake sure it's clear and if I get to the flare and it's clear, then I'm happy that Ican flare and then carry on down the runway. Now, once I've got the tail downon the runway, if someone was to drive out on the runway, well then I'd hitthem because you can't see out the front and I'm not going to –Q. And whose fault then is that? Yours or the person who crossed the –A. It would be the person that went out on the runway under the rules, but thatdoesn't help if you're sitting in a flaming wreck.Q. No, but that answer does assume that there are circumstances in which thepilot checking the runway isn't the final responsibility, so they have to do it atsome point but other factors are also relevant to the cause of a crash?A. Yes and there are, you know, rules are there, rules on right of way so anaircraft landing always has right of way over an aircraft [on] the ground [492] On Mr Brown's view, Mr Dovey erred in not checking the runway beyond thethreshold at all. He accepts, however, that a pilot may not be able to maintain visibilityall the way to touchdown. On Mr Skilling's evidence, the opportunity to check therunway adequately can be limited with many warbird aircrafts, including the Yak.[493] My assessment of the evidence is that the pilot does their best to check therunway but displaying in a warbird where passive control is provided is not like anairliner coming into land at a controlled airport or flying any plane (a warbirdincluded) into an uncontrolled airfield without any air traffic service. Airshowsinvolving warbirds involve special risks. That is why they are carried out inTemporary Restricted Areas. That is why an Airshow Organiser must submit a planfor the CAA's approval. That is why passive control is provided by a DD. Thedemands and challenges of formation display flying in warbirds, including thatvisibility of the runway may be restricted, in the context in which airshows arepermitted by the CAA, mean that the pilot is entitled to expect that the DD will alertthem of any obvious obstruction. The pilot takes the risk of the unexpected. Theyshould not have to take the risk that the DD will not do what is expected of him forthe safe operation of the show.[494] I therefore consider that the criticism of Mr Dovey at its best is that he shouldhave told his number one or the DD that he would not be able to check the runwaywas clear and he would therefore need to be warned of any obvious obstruction on therunway. Had he done so, the DD would have said "of course" because it was acceptedby all the witnesses that a DD would warn display pilots of obvious obstructions onthe available runways. On the question of hazards, the defendants' witnesses only partcompany with the plaintiff's witnesses on whether the centre grass was available toMr Dovey. As Mr Brown said:Q. And your sub-paragraph (g), "If any display director had been aware ofMr Dovey's intention to land on the centre grass area, they would haveimmediately advised him of the obstruction." If the correct meaning of"Mr Lee's briefing" was that the full width of the grass was available to landon, then any display director who understood that would have immediatelyadvised of an aircraft coming into land of the obstruction, even if he wasunaware of where the aircraft lands.A.Well yes, as I said before, these are experienced guys and you know, theyweren't, the cherry pickers weren't that far away from them and they've allsaid they could see them. So you know, I couldn't even think why theywouldn't tell him if they knew where he was going to land.Q. Oh, where he might land? If they knew where he might land they wouldalso tell him.A. Yes.[495] The need to rely on the DD for this seems essential for the safe running of adisplay show. It is clear that the demands of display flying are very high, even forthese highly trained and skilled pilots. That inattentional blindness can occur isrecognised by the fact that pilots are trained in skills that seek to minimise the effectsof inattentional blindness. Mr Brown accepted that inattentional blindness could arisein the following exchange:Q. You have some material on inattentional blindness at paragraph 162 and163. The notion of inattentional blindness relies upon influences on the pilotsmental state which might result in the pilot expecting or not expectingsomething and as a result, omitting to see something that is actually there, isthat the basic approach to this inattentional blindness?A. Well yes, it's part of it but it also – the way I understand the definition is itdoes rely on the fact that the individual is diverted, their attention is divertedto something else and such as when an observer engages in an intentionallydemanding task elsewhere and this is where I sort of relate back to thepossibility of lack of currency and the comments I made there, whether thefocus was too much on the formation and the actual flying the aeroplane tothe detriment of other things, where other things have been perhaps load-shed-ed or not been carried out.Q. Well I've put to you that that's speculation, so I won't go through that again.But what I'm suggesting to you is that it may have a different label but it's arelated topic that if you are assured that something is so from someone whoyou trust, then you are likely to proceed on that assumption, aren't you, andtherefore fail to see something that you would not expect based on what youhad been told by the person you trust?A. It is potentially a similar thing where you're making an assumption.Q. Yes.A. Sorry, can you ask the question again?Q. If somebody you trust assures you that a future state of facts will apply,then you are likely to approach that state of facts with that assurance in yourmind and as a result of that, you may not see something which is there becauseit flatly contradicts what you've been assured of.A. Yes, that is possible but I don't think relying on someone else automaticallyabsolves you of your own responsibilities.Q. All right, I understand that point but then I'm going to just put another partof the picture to you. If that assurance is in accordance with your ownexpectation and experience, that assurance is going to be even more influentialin your mind, isn't it? In other words the person giving the assurance sayssomething that entirely accords with your own expectation that those twothings tend to reinforce each other.A. Yes, they could do.[496] Although accepting that inattentional blindness could be factor in not seeing ahazard, Mr Brown reiterated that he was quite clear that the responsibility remainedwith the pilot in command. However, the fact remains that, even if Mr Dovey hadflown the stabilised approach in the way that Mr Skilling would have (which was notcriticised), it remains possible that he would not have seen the cherry pickers in thosefew seconds. A pilot takes risks when display flying, but one of those should not bethat there will be a large stationary object on an available runway.Breach of pilot's duty[497] I conclude that Mr Dovey's landing technique was adopted with reasonablecare. It meant he was not able to discharge his obligation under s 13 of the CivilAviation Act by checking his runway was clear. He was able only to check thethreshold was clear and used other methods of airmanship to position himself on therunway.[498] I consider an airshow provides its own context to how the obligation under s 13can be discharged. I accept that pilots flying warbirds at airshows will often havelimited visibility of the runway. The pilot is required to check the runway if they canbut the safe operation of the aircraft may require the pilot to focus on separation and asafe touchdown, relying on the DD to alert them to hazards. It is accepted that a DDwill do so. It is understandable in these circumstances that Mr Dovey relied on this inadopting the technique that he did.[499] However, in view of the fairly universal evidence that a pilot-in-commandmust do what they can to check the runway, I accept that Mr Dovey should haveinformed the DD that he would not be able to check the runway was clear if he hadtime to do so. Had he done so that might have triggered a discussion about the vectoron which he intended to land. But it was more likely that it would not have becauseof the time-compressed way the opening display was put into place, the fact that thelanding vector had not been discussed with Mr Lamont, Mr Lee and S/L Rankin whenthe substitution was made and S/L Rankin's various assumptions about the runway onwhich Mr Dovey would land.[500] I conclude that Mr Dovey was not negligent in adopting the landing techniquehe did. In discharge of s 13, if he had the opportunity to do so, he should have alertedthe DD to the fact that he would not be able to check the runway and would have torely on the DD to alert him to hazards, but I am not satisfied that, had he done so, theaccident would have been avoided.Summary of breaches[501] I have found that S/L Rankin breached a duty of care to the plaintiff by:(a) directing that the cherry pickers be moved to the middle of the centregrass without first checking with Mr Lee whether this would constitutea hazard for other (non-RNZAF) aircraft and without informing Mr Leewhere he had asked for them to be moved to;(b) failing to arrange an adequate substitute briefing for the part of the pilotbriefing that he missed (or, alternatively, failing to pay sufficientattention at the pilot briefing) and, as a result, failing to alert thosepresent at the pilot briefing that the cherry pickers were presently in themiddle of the centre grass;(c) failing to discuss with Mr Lee whether there were any limitations onthe availability of the centre grass (and whether the cherry pickers inthe middle of the centre grass was a hazard); and(d) relying on assumptions and conventions or practices about whereMr Dovey would land, when there was no sufficient basis to do so andthe proper approach was to ask the DD and the formation where theyintended to land or to ensure that all of the available vectors were keptclear.[502] I have found that relevant WoW Ltd personnel breached a duty of care to theplaintiff by:(a) Mr Lee not checking with S/L Rankin where the cherry pickers hadbeen moved to and thereby allowing a change to the flying programmewithout an appropriate risk assessment;(b) substituting the F-16 opening display with a new opening display whenthere was insufficient time to carry out a proper risk assessment and inWoW Ltd not having formal procedures in place for assessing the risksof proposed late changes to the flying programme;(c) briefing the centre grass as available on the morning of the showwithout qualification, without an adequate risk assessment of theimplications of this and including S/L Rankin in such an assessmentand without formal processes for such assessments; and(d) ensuring the MDD had the same understanding as relevant WoWpersonnel about determining where the pilots would land and thevectors that were to be kept clear when the MDD was the acting DDfor a civilian display.[503] I have found that Mr Dovey should have advised the DD that he would not beable to see the runway on landing.Intervening cause/contributory negligence[504] The defendants submit that if S/L Rankin breached any duty of care toMr Dovey, all causal potency of that breach was removed by Mr Dovey's negligence.Primarily this was because Mr Dovey chose to land on a landing surface that he hadnot checked was clear. They also say that this negligence involved:(a) making a last-minute decision to depart from the briefing with Mr Frewof a stream landing;(b) making a last-minute decision to depart from good display discipline tofollow the leader;(c) choosing to land on a surface which he knew was not expected by theDD;(d) receiving no acknowledgement of his base call but going ahead andlanding on the centre grass without checking and being able to check(as a result of a poor approach) that this was clear and safe to land on.[505] The WoW defendants also say that Mr Dovey was negligent because his "lackof currency meant that he made errors during the flight and had not made the transitionfrom display formation flying to the approach and landing".[506] The RNZAF defendants say that if Mr Dovey had landed on the seal, as hecould and should have done, the cherry pickers were of no danger to him. They saythat the allegations against S/L Rankin amount to him either creating a circumstancewhich allowed the accident to take place or omitting to do things that might haveaverted the accident. They say that this amounts to saying that S/L Rankin might haveprevented Mr Dovey from doing what he should not have done.[507] Similarly, the WoW defendants say that Mr Dovey's actions came last in timeand should be judged as the real cause of the harm. They say their actions had ceasedto be an operating factor and should be regarded as a mere matter of history in creatingthe conditions necessary for the damage to happen.[508] I have found that Mr Dovey could have discharged his obligation under s 13by informing the DD of his limited visibility of the runway and his need to rely on theDD to keep the landing vectors clear. However, there was limited opportunity to doso because of the time-compressed way in which the opening display was substitutedand display pilots were reasonably entitled to expect the DD to alert them to stationaryobjects on available landing vectors that would constitute a potential hazard. I havealso found that even if Mr Dovey had told the DD or MDD of his limited visibilitybeyond the threshold, this was unlikely to have prevented the accident because of theMDD's assumptions that Mr Dovey would land on the seal and his misunderstandingabout the availability of the centre grass. I have found the other matters relied on bythe defendants are not made out on the facts.[509] For completeness, had I found Mr Dovey to be negligent in adopting atechnique that meant he could not scan the whole of the runway, I would not havefound that to be an intervening cause. The defendants relied on cases involvingobstructions on roads. I agree with the plaintiff that Nichols v Simmonds and VerticalFlight Management Limited v Airwork (NZ) Limited are more relevant. In both ofthose cases the pilots involved in the collisions failed to keep a proper lookout. Inthese cases the individual pilots' responsibility was assessed at 30 per cent and 33 percent respectively.[510] In this case, had any of the alleged negligence been made out, I would haveconsidered a lesser percentage than this (no more than 15 per cent) to have been theappropriate apportionment. This is because there were a number of errors by thedefendants (commonly referred to as "holes in the swiss cheese") that allowed theaccident to happen. This distinguishes those cases from the present. Further, in thecontext of warbird airshows like this, if the procedures that are intended to ensure thesafety of the show are inadequate, the risk of an accident is particularly high.Mr Dovey was entitled to expect that any expectations the DD on duty would berelying on as to the choice of landing vector would be made clear to him and that hewould be alerted to hazards.Quantum[511] The plaintiff seeks damages for the cost of repairing its Yak. The plaintiffcalled evidence from Callum Smith to prove the quantum of these costs. Mr Smith isa licensed aircraft maintenance engineer with 28 years' experience. He is the ownerof a business at Wanaka that specialises in structural repair and the restoration ofaircraft.[512] Mr Smith gave evidence of the damage caused by the aircraft hitting the cherrypicker. The initial impact caused damage to all three blades of the propeller on theright wing that struck the cherry picker. The aircraft then ground looped and the rightundercarriage collapsed at the end of the ground loop. The propeller struck the groundafter the undercarriage collapsed.[513] Mr Smith also gave evidence of the repairs required and the estimated cost ofthose repairs. He prepared an initial estimate a month after the incident. He providedan updated assessment six weeks before trial. This estimate was for NZD616,500 plusGST.[514] He was cross-examined about the costs of repairs as against the value of theYak once repaired. An advertisement and price list for a Yak was put to him in cross-examination. It was suggested to him that this showed that Mr Dovey could purchasea replacement for USD450,000. Mr Smith considered the advertised Yak was notnecessarily comparable because Mr Dovey's was a particularly nice one. He said therewas a Yak 9 currently for sale for USD695,000 and this was a "very similar aircraft".He said there can be "a very large difference in the price depending on the conditionof the aircraft".[515] He was also cross-examined about the value of the Yak if sold as a wreck. Hesaid he would be speculating, but guessed that it would probably be aroundUSD150,000 to 200,000, and also that "it'd be a very limited market of people whowould look at purchasing the aircraft in its current condition."[516] The RNZAF defendants do not challenge the claim for damages for theestimated costs of repairs.[517] The WoW defendants accept that the evidence has proven the estimated costsof repairs. The WoW defendants submit, however, that damages should not beawarded in this amount. The say that reinstatement is only the appropriate measurewhen that is fair to the parties. They say that it is fair only if two necessaryprerequisites are met. The first is that the plaintiff must be intending to reinstate andsecond it must be reasonable to do so. They say that if a suitable replacement isavailable in the market for less than the cost of repair, damages will be limited to thereplacement cost.[518] The WoW defendants say that the aircraft has been warehoused for two yearsand no steps, sourcing of parts or repairs of the aircraft have been undertaken. Theysay Mr Dovey has given no indication to the repair agent that his intention is to repairthe aircraft rather than sell it as a wreck. They say that Mr Dovey will receive awindfall if the plaintiff is awarded the cost of repair. They say that if he does notintend to repair the aircraft the measure of damages is the value of a new Yak(USD450,000) less the wreck value (USD150,000) plus travel, due diligence andlanding costs for the new Yak (which the WoW defendants say would beUSD50,000). They say that this would mean Mr Dovey's loss was USD350,000which at the exchange rates at the time of the trial would equate to NZD496,665. Thiscontrasts with the much higher claim for the costs of the repairs.[519] There are several difficulties with the WoW defendants' submissions aboutthis. First, Mr Dovey said that repairs had not been started because his company didnot have the funds to do so at present. He was not challenged on this. Nor was it putto Mr Dovey that he might be intending not to repair the Yak or that he could sell thewreck and purchase a new Yak. Secondly, the WoW defendants have failed to proveby a wide margin that selling the wreck and purchasing a new Yak would be more costeffective than repairing it. Mr Smith was not convinced on the limited material put tohim that the Yak advertised for USD450,000 was comparable to Mr Dovey's. He wasspeculating about the value of the wreck and, even assuming his speculation might beclose to accurate, he guessed a figure of between USD150,000 to 200,000 and theWoW defendants' calculations are based on the lowest figure in that range. Thirdly,Mr Smith's evidence is that the market is limited. In those circumstances, the marketvalue loss is normally indicated by the cost of the repair.84[520] If the WoW defendants wished to advance a different measure of damages thanthat which was pleaded and on which the plaintiff adduced evidence, it was up to themto adduce expert evidence to prove that different measure. Instead they submit that ahearing on quantum should be ordered. I decline to do so. The time to adduceevidence was at trial. The WoW defendants elected not to call evidence at trial on thispoint.[521] As to the time at which damages should be assessed, the defendants did notsuggest they should be calculated at the time the damage was sustained. Although thatis the general rule, this is flexible and the appropriate date will generally be the datewhen the repairs could first reasonably be undertaken.85 In this case, Mr Dovey didnot have the resources to repair the aircraft, the cost of repair is substantial and the84 Stephen Todd Todd on Torts (8th ed, Thomson Reuters, New Zealand, 2019) at 25.2.08; Rt HonSir Peter Blanchard (ed) Civil Remedies in New Zealand (online ed, 2011) at 51.2.8.1; Gardiner vMetcalf [1994] 2 NZLR 8 (CA) at 13; Coles v Hetherton [2013] EWCA Civ 1704, [2015] 1 WLR160 at [27]; Pargiter v Alexander (1995) 5 Tas R 158 (TASSC) at 164; Badham v Williams [1968]NZLR 728 (SC); and Stirling v Poulgrain [1980] 2 NZLR 402 (CA) at 424.85 Todd on Torts, at 59.25.2.08(6) and Dodd Properties (Kent) Ltd v Canterbury City Council [1980]1 All ER 928.defendants denied liability. I consider in these circumstances Mr Smith's estimate sixweeks prior to trial represents an appropriate date. I order damages in the sum ofNZD616,500 plus GST.Result[522] Judgment is entered for the plaintiff in the sum of NZD616,500 plus GST andinterest against the first and third defendants. I have not apportioned this as betweenthe first and third defendants because cross-notices were not filed and I was not askedto do so. However, leave is reserved for the parties to apply for that apportionment ifnecessary.[523] I formally reserve costs but note the general principle that costs follow theevent and the High Court Rules set out how this principle should operate. Leave isreserved for the parties to make brief submissions on costs, should that be necessary.[524] The parties have six weeks from the date of this judgment to revert to me onapportionment and/or costs issues, should that be necessary.Mallon JAppendix one – abbreviationsAC91-1 CAA Advisory Circular 91-1ADD Assistant Display DirectorAFIS Aerodrome Flight Information ServiceAIP Aeronautical Information PublicationATCS Air Traffic Control ServiceATS Air Traffic ServiceCAA Civil Aviation AuthorityCAR Civil Aviation RulesDD Display Director (see FDD)FDC Flying Display CommitteeFDD Flight Display Director or flight display directionFDP Flying Display PlannerLLDA Low Level Display ApprovalLSA Light Sports AircraftMDD Military Display DirectorNZASA New Zealand Airshow AssociationNZDF New Zealand Defence ForceNZWF Wanaka AerodromeQAC Queenstown Airport CorporationRAAF Royal Australian Air ForceRNZAF Royal New Zealand Air ForceS/L Squadron LeaderUSAF United States Air ForceWoW Ltd Warbirds Over Wanaka Airshows LimitedWoW Warbirds over Wanaka airshowAppendix two – landing plateAppendix three – expertsMilitary Civilian AirshowsMr Dovey Was part of the RNZAFbetween 1964 and 1969,achieving the rank ofFlight Lieutenant. Heflew in formation foroperations and aerobaticdisplays. He also flewwith the RAF, RAAFand the USAFinternationally.Between 1970 and 2005, he flew with variousinternational airlines and was a traininginstructor and held regulatory roles. He was aflight instructor and then Chief StandardsCaptain for Air New Zealand. He was alsoCouncil Chairman of the NZ Airline Pilots'Association, which included involvement inthe Erebus Inquiry.Total of 25,180 hours flying logged as ofMay 2020.Has flown his Yak-3M in the 2006, 2008, 2010, 2012,and 2014 WoW airshows and the 2007, 2011, 2013,and 2015 Omaka airshows.Mr Frew Was part of the RNZAFbetween 1986 and 1994,mainly flying transportaircraft, and he achievedthe rank of FlightLieutenant.Since 1995, he has been a pilot for Air NewZealand.Total of 19,200 hours flying as of April 2019.Has flown in airshows since 2001 at Wanaka, Omaka,Tauranga and Wairarapa.He flew pairs displays with Mr Dovey at Wanaka in2014 and 2018 and Omaka in 2013 and 2015.Mr Falconer Between 1968 and 2000, he flew as acommercial and private pilot in New Zealandand overseas. He was also involved in testingand inspecting for Airways Corporation.From 2000 to 2013, he was Manager of theFixed Wing Division of the General AviationGroup in the CAA and was involved ininspecting and auditing. He also issuedAviation Event Approvals.From 2013 to the present, he has been anaviation consultant.Total flight time of over 15,000 hours loggedas of May 2020.Approved as an FDD by the NZASA.Has been involved in the display team at Wings overWairarapa events since 2001, as Display Director in2019 and Display Direction Co-ordinator (equivalentof ADD) at the other nine events.Mr Skilling From 1966 to 1978, hewas part of the RNZAF,mainly flying transportaircraft, and achievedthe rank of SquadronLeader.Between 1978 and 2012, he was an Air NewZealand pilot and instructor.In 1979 he became a foundation member ofNZ Warbirds. He led the Roaring FortiesHarvard aerobatic team. He has flown inmany Warbird aircraft types such as such asthe Yak 3, Mosquito, Spitfire, Hurricane,Lavochkin La9, Me 109, P51 Mustang,Polikarpov I-16, Corsair, Kittyhawk, Harvardand various other WWI and WWII types. Hehas been a test pilot for most of these types.Total flight time of 25,000 logged as of June2020.Has flown in every WoW airshow and has flown inmost major airshows in New Zealand since 1984 andin Europe since 1994 (with five years in the BreitlingFighters Display Team).Currently on the English display flying controlcommittee at the Imperial War Museum at Duxford.He was listed as a CAA-approved display director inthe NZASA Display Director Guide, but removed hisname from that list a couple of years ago.S/L Rankin He has been with theRNZAF from 1978 tothe present, primarily asa flight instructor. Hehas been thecommander of theRNZAF Central FlyingSchool twice. He hasdeployed in NZDFoperations three times.He achieved the rank ofWing Commanderseveral times, butremains as SquadronLeader to continue as anactive pilot.Has flown as a display pilot (including in civilianaircraft) since the late 1980s, with four years leadingthe RNZAF Red Checkers aerobatic team.He is a display examiner and trainer for NZ Warbirdsand has worked part-time for the CAA as a SafetyEducator.He has been the RNZAF's principle display organiserand director since the 1990s, including more than 20events per year, including all the major airshows. He islisted as a CAA-approved display director in theNZASA Display Director Guide. He designed theRNZAF course for display pilots and directors.Military Civilian AirshowsMr Taylor He joined WoW in 2012 and has overseen airshowsevery two years since.He is the General Manager and looks after the runningof WoW Ltd and the WoW Charitable CommunityTrust.Mr Lee He was part of theRNZAF from 1973 to1987, achieving the rankof Squadron Leader. Hewas a flying instructorand Training FlightCommander. He alsoserved as an instructorpilot for the USAFbetween 1982 and 1984.From 1987 to the present, he has been withAir New Zealand, including as a FlightExaminer, Captain and Flight Instructor.Has been a display director since the 1980s, for theRNZAF and for various New Zealand airshowsincluding WoW shows in the 1990s, 2016 and 2018.He was a display pilot in the A4 Skyhawk,Strikemaster and Harvard at many airshows.He was Deputy Chief Flying instructor for NZWarbirds.Mr Lamont He was part of theRNZAF from 1965 to1975, serving as a flyinginstructor from 1967 to1969, and achieving therank of FlightLieutenant. He was amember of the RNZAFRed Checkers aerobaticsteam.He was an airline pilot with National AirwaysCorporation and Air New Zealand between1975 and 2005, holding positions as AirlineTraining Captain and Instructor.He received a QSM in the Queen's BirthdayHonours for services to aviation.He has been part of NZ Warbirds since 1984. Hejoined the Roaring Forties in 1987 (and was leaderfrom 1991 to 1996) and flew in the first WoW show in1988. He has flown in many airshows internationallyin Australia, America and Europe. He has flown manytypes of Warbird aircraft, including the F4U Corsair,P40, Spitfire, Hurricane, Mustang, Sea Fury,Lavochkin La9, Polikarpov I-16 and I-153 and Yak 3.He carried out the post-restoration test flying in MrDovey's Yak.He is an approved NZ Warbirds instructor anddelegated LLDA approver.Mr Hogan He started flying in 1963 and worked as acommercial pilot, with 4,000 hours ofexperience. He was an Air Traffic Controllerfor seven years. He has held Chief FlyingInstructor positions in various organisationsHis experience includes instructing, aerial topdressing, aerobatics and display flying, aswell as company flying in Australia andcharter flying in New Zealand.He represented New Zealand in the 1978World Aerobatics Competitions.He is listed as a CAA-approved assistant displaydirector in the NZASA Display Director Guide.Mr Brown He was part of theRNZAF between 1978and 1990. He achievedthe highest category ofinstructor rating. Heflew in a number offormation and low-levelaerobatic displays inNew Zealand.From 1990 to 2018, he worked for CathayPacific Airways Ltd as international pilotHe is currently a self-employed contractor,specialising in aviation.He is the Standards and Training Manager forWarbirds Ltd. He is on the board of NZASAas a representative of NZ Warbirds and ledthe drafting of the NZASA DD manual. He ison the board of the International Formationand Safety Training organisation. He is oneof three check pilots in New Zealand and socan assess formation pilots for competencyand upgrades.Has logged 23,900 hours of flying time as ofMay 2020. He has logged 1,970 hours offlight instruction from ab-initio to low-levelaerobatics, including formation and displayflying.He joined NZ Warbirds in 1995 and began volunteerinstructing for them in 2002.In 2006 he was appointed Deputy Chief FlyingInstructor for NZ Warbirds and assisted in updatingmany of NZ Warbirds' training courses for aerobatics,formation and display flying.In 2011 he was appointed Chief Flying Instructor forWarbirds and still holds this position. He has oversightof all Warbirds' training programmes and he issuesvarious authorisations (including Aviation EventAuthorisations) and runs courses.He has displayed in a variety of aircraft types at almostevery New Zealand airshow since 2007. He joined theRoaring Forties Harvard Aerobatic Team in 2009 andbecame team leader in 2018.He is listed as a CAA-approved display director in theNZASA Display Director Guide and last acted as a DDfor the NZ Warbirds Armistice Day Open Day in 2017.NZ Warbirds and NZASA gave him responsibility fortraining DDs and ADDs.