For close to six hours, two Lutsel K'e residents waited for rescue after Air Tindi flight AT200 crashed into a cliff 40 kilometres outside the community in 2011, killing the pilot and one passenger.
Six years later, a civil claim filed by dependants of the passenger who died has reached an undisclosed settlement as of January, but two Lutsel K'e residents severely injured in the wreckage are awaiting resolution to their $8-million claim, court documents show.
The crash killed pilot Matthew Bromley, and passenger Timothy Harris who worked for the NWT Power Corporation. Survivors Sheldon Catholique and Bernice Marlowe are claiming damages of $5.5-million and $2.5-million respectively from Air Tindi Ltd. and the estate of Matthew Bromley for negligence and injuries resulting from the crash.
In a letter dated January 24, counsel for both parties agreed to enter case management to resolve the claim through a mini trial or settlement conference.
No representative from Air Tindi could be made available for comment. Since the crash, Air Tindi instituted a revised drug and alcohol policy as well as a new policy on flights in poor weather.
The aviation investigation report from the Transportation Safety Board of Canada cited a litany of factors that could have caused the fatal accident.
However, the report highlighted two key causes and contributing factors – the flight operated at low altitude in low visibility using visual flight rules, which prevented the pilot from seeing and avoiding terrain. The second factor was the pilot's use of cannabis, which were found in levels “sufficient to have caused impairment in pilot performance and decision-making on the accident flight.”
The plane's landing gear hit a cliff, and the cargo pod rolled 500 ft. down the eastern side of Pehtei Peninsula.
In a 2013 statement of defence, Air Tindi and the estate of Matthew Bromley denied “each and every allegation contained in the Statement of Claim,” including any negligence outlined. It also does not “admit that the plaintiffs suffered the damages” described in the claim.
The defence further argues that Marlowe and Catholique caused and contributed to their own damages by “failing to make use of a properly fastened seat belt and shoulder harness.”
Following the crash, Catholique was awarded a Governor General Medal of Bravery for rescuing Bernice Marlowe. Badly injured, Catholique pulled Marlowe from the wreckage to relative safety. After the flight failed to arrive on schedule at 11:45 a.m., emergency crews were dispatched and located the plane at 2:20 p.m. The crew hiked to the wreckage, arriving at 3:30 p.m. More than six hours after the initial crash, both survivors were medevaced to Yellowknife.
Catholique and Marlowe are seeking damages for headaches, concussions, PTSD, anxiety and depression, neurocognitive dysfunction, bruises and lacerations and injuries to their lumbar, thoracic and cervical spine. Each plaintiff names additional injuries, including a dislocated elbow, fractured hips and pelvis, internal organ injuries and multiple fractures.
Both plaintiffs argue they have experienced pain and suffering, loss of enjoyment of life, past and future loss of income, out of pocket expenses and property damage.
Transport Canada's report cited that no flight plan, nor a company flight itinerary and operational flight plan were filed by the pilot in accordance with the company's rules.
Bromley's femoral blood contained 50.1 nanograms per millilitre – approximately 10 times the threshold for possible impairment.
Officials considered confirmation by retesting, but a small quantity of femoral blood precluded further testing. Postmortem redistribution of cannabinoids can “alter the presence of cannabinoids in tissues and fluids,” the report states, noting that the redistribution makes it difficult to establish precise timelines for when someone has last used cannabis.
Transport Canada's accident report states the plane left Yellowknife with 760 pounds of fuel – sufficient for flying under visual flight rules, but not under Instrument Flight Rules, which are used where maintaining visual landmarks is not possible due to weather conditions. The flight had sufficient time to refuel in Yellowknife, but did not.
When the flight left Yellowknife, conditions for flight with visual flight rules were “marginal.”
Bromley also had “limited experience in single-pilot IFR operations,” the report said. “This may have led to reluctance to file an IFR flight plan on the accident flight, and the decision to remain visual in marginal VFR weather conditions.”
The report finally states, “it is possible that the pilot, under the influence of cannabis, avoided the higher workload of IFR flight ... choosing to remain visual for the trip to Lutsel K'e.”