The Cessna 185 owned by Jason Deer of Wakefield, near Nelson, which was destroyed by a fire in 2021. A civil case brought by Deer in the Nelson District Court has been dismissed. Image / TopSouthMedia
Ferguson was one of two specialists working on the aircraft in a hangar on a property south of Nelson, when a spark ignited fuel vapour around where he was working.
He was engulfed in flames and ran from the hangar with the sleeve of his overalls on fire.
The plane was pushed out of the hangar as desperate attempts were made to put out the fire, but it kept reigniting and was ultimately destroyed.
Special Cessna
The aircraft was recorded as having been the 17th of its type built worldwide and the first Cessna 185 introduced to New Zealand in 1961.
It was initially used to carry passengers and newspapers from Nelson to the West Coast.
It was later an air ambulance and then put to use in parachute operations and in aerial spraying.
Deer had owned the aircraft since 2015. He told TopSouthMedia in 2021 he had received condolence messages over the loss from around the country.
He then lodged legal action against South Pacific Avionics Ltd (SPAL) as the employer of a second aviation engineer, Ryan Ryder, who had also been working on the aircraft that day in May 2021.
Deer sought a negligence claim against the loss of the aircraft, assessed as being worth $315,000 plus interest and costs.
SPAL then lodged a contributory claim against Deer and a third partythird-party claim against Ferguson and his company, Ferguson Aero Ltd, which it alleged was vicariously liable for Ferguson’s acts.
However, a judge has now dismissed the case heard recently in the Nelson District Court.
Judge Kevin Kelly said in a reserved decision in April it was because he was not satisfied SPAL’s employee was negligent in the ways argued by Deer.
In light of this, he also dismissed the firm’s claim against Deer, plus the third-party claim against Ferguson and his company.
SPAL also declined to comment on the outcome when approached by NZME, while Deer was still assessing the decision and had no comment.
Judge Kelly noted Deer had already been paid out the insured value of the aircraft, but the court understood that his insurer was exercising its rights to seek reimbursement from a third party.
Routine maintenance
On May 18, 2021, the plane was in a hangar at Malibu Park Airfield near Wakefield, south of Nelson, for routine maintenance, having been flown there by Deer.
After the aircraft had been stripped down by Ferguson, Deer phoned Ryder and asked him to carry out a two-yearly avionics inspection and install a piece of electronic equipment.
Ryder arrived that afternoon and began setting up as Ferguson was working in the front engine bay of the aircraft.
The Cessna 185 owned by Jason Deer of Wakefield (left), pictured next to Robin Langslow and Ben Carmine. The historic light aircraft was destroyed in a blaze in 2021. Photo / TopSouthMedia
Ryder applied a ground power unit (GPU) to the aircraft, which gave rise to the key factual dispute in the case, about whether he asked if it was safe to do so before plugging in the unit, and whether he received an affirmative reply, Judge Kelly said.
Shortly after the unit was plugged in, a spark ignited fuel vapour around where Ferguson was working, causing the fire.
Judge Kelly said it appeared that, to everyone’s surprise, there was a spark caused when Ferguson bumped the alternator wires while capping a fuel line about 10 minutes after power had been applied to the aircraft.
Deer was nearby and able to push the plane outside to save the building and another aircraft in it.
After calling emergency services, he joined others in trying to douse the inferno but by the time the fire service arrived all that was left was a burning tyre, the Waimea Weekly reported at the time.
In his statement of claim, Deer said SPAL owed him a duty of care to ensure that proper fire safety protocols were followed and that good safety practises were implemented.
Deer claimed that in breach of this duty of care, Ryder connected an external power source while Ferguson was working on the fuel system.
Allegations denied; duty of care accepted
SPAL denied the allegations but accepted it had a duty to exercise reasonable care and skill when carrying out work, which extended to mitigating risks of causing a fire.
Ferguson, for the third parties, also accepted they owed a duty of reasonable care and skill, but he denied aspects of what was alleged in how matters played out in the 10 minutes leading up to the fire.
However, Judge Kelly was ultimately swayed more in favour of Ryder’s evidence.
Ryder said in cross-examination that it was standard procedure to request verbal confirmation before connecting a GPU and that he had done this every time that he had worked on an aircraft in circumstances where others were also working on or about the aircraft.
By contrast, Judge Kelly described Ferguson’s explanation as “hindsight reasoning”.
Jason Deer’s Cessna 185 was destroyed by fire while undergoing maintenance in a hangar at Malibu Airstrip in Wakefield, near Nelson. Photo / Tracy Neal
Ultimately, he was not persuaded that it had been established, even with expert evidence, that under no circumstances should Ryder have connected an external power source to the aircraft when Ferguson was working on, or about to work on, the fuel system.
He said the evidence showed Ferguson knew Ryder would need power for the task.
“For the reasons stated, I am not satisfied that Mr Ryder was negligent in the ways pleaded by Mr Deer.
“Mr Deer’s claim against SPAL in negligence is dismissed.”
Judge Kelly added there was therefore no basis for SPAL’s contributory claim against Deer or SPAL’s third-party claim against Ferguson or his company.
He said because SPAL had been successful in defending Deer’s claim, it was, on the face of it, entitled to costs.
He encouraged the parties to agree on costs among themselves.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.