Families Review Legal Options in Wake of Copter Crash

Cougar Flight 491 hit the North Atlantic with brutal force on March 12, killing all but one of the 18 occupants.  The disaster has gripped the sympathy and imagination of the entire Province of Newfoundland and Labrador.

The shock and trauma of the sudden death of loved ones eases with time, the funerals if not the grieving are over, and some families of the occupants of Cougar Flight 491 may be turning their minds to financial issues.  They may be in for a shock of another kind when they make contact with the Workplace Health, Safety and Compensation Board.  The amount of annual earnings which the Board insures is limited to $49,295.  All the offshore workers on Flight 491 earned more than this amount, and many earned considerably more, even several times more.  Their traumatized families may find out that the level of benefit they are entitled to is capped at half or one-third the rate of their loved one’s earnings. 

The general rule is that workers injured or killed in the course of employment are barred from pursuing legal rights against any worker or employer covered by the Workplace Health, Safety and Compensation Act.  However the statutory bar against suit probably would not arise against Flight 491 families for two reasons.  The first is that information coming out over the last two weeks points to potential fault or negligence on the part of the manufacturer Sikorsky Aircraft Corporation, which is based in the United States.  Sikorsky is not an employer under the Newfoundland and Labrador statute, and thus no bar to suit would arise.  The second reason is that the Act itself provides that the bar against suit does not apply where the worker is injured or killed while taking “transportation in respect of which public liability insurance is required to be carried”.  Regulations under the Aeronautics Act require helicopter companies to carry such insurance.  In this second situation, the worker who is injured, or his or her family in a fatality, is required to make an election within three months of the injury or fatality as to whether to claim compensation or to bring an action.

Whether legal action is an option which families of Cougar Flight 491 workers find attractive depends on their values, their individual circumstances, and whether they have a good case to pursue in the courts.  Grief sometimes turns to anger.  Often, the victims of a terrible event which should have been avoided, are more concerned with deterrence or ensuring the same thing doesn’t happen to someone else, than they are concerned with compensation; I know this from the Breast Cancer Testing Class Action.

Attention has focused on the possibility that an oil filter assembly leak destroyed the aircraft’s main gearbox and stopped the rotor blades.  As to the possible existence of a good case, an interview with Sheldon Peddle, president of the CEP Local, on CBC radio yesterday morning, is suggestive.  Among the circumstances which raise safety questions are the following:

·         In July 2008 near Broome, Australia a Sikorsky S-92 was travelling from offshore and had to make an emergency 8 minute descent to land, after a similar gearbox problem developed.

·         There have been other events involving main gearbox problems causing emergency landings.

·         Sikorsky gave operators a year to replace main gearbox components, which may not be reasonable when the consequences of failure are potentially catastrophic.

·         The FAR 29 certification under which the Sikorsky S92A operates requires a 30-minute dry run capability.

·         The Transportation and Safety Board also confirmed yesterday that titanium gearbox fittings that were the subject of a global emergency-airworthiness directive this week were broken before the impact, not because of it.

With the 30-minute dry run capability in mind, it is revealing to look at the chronology of events for the Cougar helicopter as compiled by the Transportation Safety Board of Canada and released yesterday.  Flight 491 departed St. John’s at 11:48, and recorded rapid loss of main gearbox oil pressure at 12:15.  The pilot executed an immediate right turn and issued a mayday call.  At this point they were 53 nautical miles from St. John’s.  Two minutes later, the main gearbox oil pressure reached 0 PSI.  At 12:18, they had altered course slightly for nearest landfall at Cape Spear, which then was 42 miles away, and were traveling at an altitude of 800 feet.  By 12:26 the helicopter crashed into the sea with enormous force.

The first point to note is that being 27 minutes from St. John’s when it turned back, the helicopter had about enough time to return to St. John’s airport under the 30-minute dry run standard.  Perhaps more importantly, with the change of course to Cape Spear, the helicopter would have been about 27 miles from shore when catastrophic failure caused the gearbox to seize.  Ditching occurred only 11 minutes from the time the helicopter began to turn around.  Under the 30-minute dry run standard, and at the recorded speed of 133 knots, the helicopter should have been able to cover another 45 miles, adequate range to travel the 27 miles remaining to safe landfall at Cape Spear.

None of this proves that the helicopter crashed due to the fault or negligence of Sikorsky or anyone else, and much remains to know.  But it does amount to grounds for the families to consult trusted advisors, keep their options open, and learn more.