The Department of Defence was aware of the risk a piece of technology posed to pilots but failed to adequately minimise the hazard before four soldiers died in a helicopter crash, freshly unsealed documents allege.
Captain Danniel Lyon, Lieutenant Maxwell Nugent, Warrant Officer Class 2 Joseph “Phillip” Laycock and Corporal Alexander Naggs were killed after their MRH-90 Taipan helicopter plummeted into the ocean off Queensland’s Whitsunday coast during a defence training exercise in July 2023.
The contents of a federal work safety investigation, released by order of the Senate, allege defence committed serious breaches of workplace safety laws, in relation to fatigue.
Captain Danniel Lyon, Corporal Alexander Naggs, Lieutenant Max Nugent and Warrant Officer Class Two Joseph Laycock were killed in the crash. (Supplied: ADF)
Defence was aware of the “substantial” risk of fatigue but failed to implement tools to minimise the hazard, the investigation says.
The allegations were first reported by the ABC in July.
Comcare was required to table its brief of evidence and final report after a motion for its release was put forward by One Nation’s Malcolm Roberts and passed in the Senate.
It was publicly released today.
Documents allege Defence ‘failed’ to minimise risk
It alleges defence committed category 1 and category 2 offences under the Workplace Health and Safety Act, and recklessly exposed members to a risk of death or serious injury by knowing the risk of fatigue on its members and failing to adequately respond.
A category 1 offence carries a maximum penalty of up to $3 million for a corporation.
For a category 2 offence, that maximum penalty is $1.5 million.
The documents also allege defence was aware of issued associated with helmet-mounted night-vision devices, known as TopOwl 5.10.
A separate Inspector General of the Australian Defence Force inquiry heard the helmets had a tendency to display serious inconsistencies in relation to an aircraft’s position in relation to the earth when compared with actual readings.
The documents allege the Department of Defence was aware of the risk its helmet-mounted night vision devices TopOwl posed to pilots. (Supplied: Bradley Richardson)
The IGADF inquiry also heard test pilots opined it posed an “unacceptable” risk to pilot safety; fearing if the technology was released, someone would die.
The Comcare report states defence was aware of an attitude discrepancy issue, but despite the known flaw, “did not follow their own system, DASR, for service release of this upgrade into use and failed to minimise the risk of this hazard.”
“The flight conditions at the time of the incident, regarding alleged fatigue of the aircrews and the demanding workload of flying at night, at low level, and in formation, in particular, set the conditions for Department of Defence workers to be exposed to this known risk.”
A defence report into the tragedy found the pilot’s quick thinking might have prevented further loss of life. (ABC News)
A defence investigation, released in May, concluded it was highly likely pilot spatial disorientation was the cause of the crash, and stated it was “very unlikely” that TopOwl contributed to the loss of spatial orientation.
It comes after Commonwealth Director of Public Prosecutions (CDPP) made the decision not to lay charges, citing a lack of evidence.
Maxwell Nugent’s father Daniel says he was shocked that the Commonwealth Director of Public Prosecutions decided against prosecuting. (Supplied)
Decision not to prosecute ‘lacked courage’Â
Daniel Nugent, the father of Maxwell Nugent, said he thought the decision not to prosecute “lacked courage”.
“The information [in Comcare’s report] , I’m shocked that the CDPP baulked at it and didn’t want to take on the challenge or the fight.”
“Every parent that sends their son and daughter to go off and join the defence force would want to believe that the defence force, particularly in peace time, is doing everything possible to protect their safety.”
Defence support services:The Defence all-hours Support Line is a confidential telephone and online service for ADF members and their families 1800 628 036Open Arms provides 24-hour free and confidential counselling and support for current and former ADF members and their families 1800 011 046Soldier On is a national support services provider for Defence personnel, contemporary veterans, and their families. Contact during office hours 1300 620 380
Fatigue and the TopOwl helmets have been examined at a separate inquiry into the crash.
A sleep expert told the IGADF inquiry that all of the four men on board the ill-fated Taipan aircraft were likely experiencing hazardous levels of fatigue, as a result of disruptive work patterns, burnout and rough sleeping conditions during the defence training exercise.
The IGADF inquiry heard the crew were sleeping next to an active fire station and operational airport, in hot tents, while trying to switch their body clocks to night-flying mode.
The Senate last week voted down a motion to release all documents relating to the fatal crash, but on Monday published Comcare’s investigation. (Supplied: ADF)
“The effects of fatigue were identified as insidious; the person may be unaware of the extent of performance degradation and that fatigue may exacerbate the effects of coexisting operational stresses such as noise and heat,” the Comcare report stated.
But investigators determined that the Department of Defence did not follow one reasonably practicable measure to minimise the risk of fatigue.
Comcare’s report and brief of evidence was required to be released, but the brief of evidence was withheld, with Minister for Employment, Amanda Rishworth writing to senator Murray Watt and stating that its release would disclose legal advice and operational aspects of defence activity.
Last week, the Senate knocked back a separate motion which called for the release documents relating to the Commonwealth Director of Public Prosecutions’ decision not to prosecute.
The government fought the motion, stating it would see confidential legal advice published.
A spokesperson said the Department of Defence “is unreservedly committed to supporting the conduct of thorough and independent investigations to determine what happened, and to identify actions to prevent all aviation accidents and incidents”.
“As these investigations are ongoing, it would not be appropriate to comment further,” the spokesperson said.Â
The CDPP has been contacted for comment.