Lawyers acting for the partner of helicopter pilot Captain Dave Traill have made a remarkable plea that the blame for the Clutha disaster should not be laid entirely at his door. In written submissions to the FAI, the Crown has recommended to Sheriff Principal Craig Turnbull that he endorse the conclusions of an earlier Air Accident Investigation Branch (AAIB) report that concluded the crash resulted entirely from pilot error.
The FAI has heard that the Eurocopter EC135 fleet operated by Bond – now Babcock – had experienced numerous issues with faulty fuel sensors and inaccurate fuel readings. That fleet included the Police Scotland aircraft, registration G-SPAO, that crashed that fateful night on 29 November 2013.
Shelagh McCall QC and her colleague, advocate David Adams, representing Dr Lucy Thomas, Captain Traill's former partner, have submitted an alternative scenario to that of the Crown.
They state: 'There can be no doubt that following the engine flameouts, Captain Traill made significant efforts to save the aircraft and its occupants. He had overcome the worst of any initial stress response and was taking the appropriate actions... On two occasions, Captain Traill recovered the rotor speed. He carried out a flare manoeuvre – a sign that he was again trying to recover the rapidly decreasing rotor speed or that he was trying to cushion the landing... Captain Traill was an extremely accomplished and experienced pilot yet he was unable successfully to complete an autorotation landing. It was acknowledged by the test pilot for the manufacturer that, where there is fuel starvation in both engines at the height at which G-SPAO was and without an open area in front of it, the aircraft was doomed. In reality, it is highly improbable that any pilot could have successfully landed G-SPAO at night, in an urban environment, from a height of approximately 500-600 feet within a time frame of less than 10 seconds.'
Much of the AAIB conclusion is based on the apparent evidence that the pilot had received five yellow or red low fuel warnings during the latter stages of the flight. These were accompanied by audible warning 'gongs'. Captain Traill had acknowledged each warning, but rather than taking steps to land immediately, he and his crew – two experienced police observers – had undertaken three further search or surveillance operations in North Lanarkshire – over Bothwell, Uddingston and Bargeddie – before heading towards the Glasgow base.
The police observers had continued with their duties, operating the search camera equipment and taking notes. Despite being trained to raise issues with the pilot in the event of any concern, neither officer made any contact with police control. Some lawyers argued that this indicated that the crew may not have been perturbed by the warnings, for whatever reason.
Captain Traill, who served with the Royal Air Force and had vast experience of helicopters, was described in court by various witnesses as highly professional and not a man to take unnecessary risks.
Dr Thomas' representatives continued: 'On the accident flight, there may have been a number of reasons to treat the low fuel warnings with scepticism... Because of the lack of recovered data, it is not known whether a fuel caution appeared on the CAD (the cockpit display) before the low fuel warnings. The inquiry has heard of examples both in flight and in testing of the fuel system, where the amber fuel caution has not illuminated prior to the low fuel warning... If it did not, that may have been a factor in causing Captain Traill to be sceptical about the low fuel warnings.'
They argued that manufacturers Airbus had acknowledged that a low fuel warning could illuminate without the pilot receiving an earlier fuel caution, following an incident involving an air ambulance operated by Bond at Barton, near Manchester.
The lawyers argued that Airbus had known of problems involving fuel sensors and cockpit displays, as stated in evidence during the FAI: 'There has been a history of anomalous fuel indications with the EC135 over many years. Some of these anomalies remain unexplained,' says their submission. 'The fuel indication system on EC135s fitted with sensors of the type in G-SPAO was, and remains, unreliable in low fuel states.'
A written submission for Airbus argued that the cause of the crash should be blamed on pilot error. Counsel acting for the manufacturer picked out evidence by Captain Andy Rooney, formerly chief pilot at Bond. 'He was the only pilot before the inquiry who postulated that one option on receipt of a low fuel warning, if a pilot were in doubt about its veracity, would be simply to fly on in the face of unresolved conflict and confusion on the matter. Fortunately, his evidence in this regard stood out as a remarkable outlier, with no independent or support, or even echo, in the rest of the evidence,' said Airbus representatives, led by Roddy Dunlop QC.
The position set out by Dr Thomas's legal team was backed by Gordon Jackson QC, acting for the family of crash victim Gary Arthur.
Meanwhile, the Crown has two weeks to submit an explanation for the lengthy delay to the start of the inquiry, more than five years after the crash.
Several grieving families have complained about the delay, as well as a lack of information relating to the inquiry, and to the cause of the crash itself.
Donald Findlay QC, acting for Mary Kavanagh whose partner was killed inside the Clutha, said that the delay was 'unacceptable and unconscionable', pointing out that the AAIB report was published in October 2015, less than two years after the crash but three and a half years before the FAI could begin.
He stated: 'The families of those who died, and those who survived but were injured, have been kept waiting for this length of time and, so far, no explanation for the delay is known to have been forthcoming... The delay militates against the interests of the people who matter most, namely those who died, their families and those who were injured. This group of people have hardly featured in the inquiry... No evidence has been led about the precise circumstances in which they as individuals came to die. No evidence has been led to explain why they died while others survived. No evidence has been led from the emergency services to explain what was done to try to save them, if anything.'
The Kavanagh submission invites Sheriff Turnbull to comment on these points when he reaches his conclusion over the coming weeks.
Ten people died and 31 were injured when the Police Scotland helicopter crashed into the Clutha roof. Captain Traill, 51, and police observers Tony Collins, 43, and Kirsty Nelis, 36, died in the cockpit. Those customers who died were Gary Arthur, 48; Joe Cusker, 59; Colin Gibson, 33; Robert Jenkins, 61; John McGarrigle, 57; Samuel McGhee, 56; and Mark O'Prey, 44.