Chopper crash sparks complex debate

When is a passenger not a passenger?

Whether a former Endeavour Energy inspector, who was catastrophically injured on a power line inspection flight, was part of the crew or a passenger under the NSW Civil Aviation (Carriers’ Liability) Act (CACL Act) was the central issue in a legal debate.

The NSW Appeal Court in June overturned a trial judge’s decision Simeon Edwards was not a passenger and a $500,000 statutory personal injury damages cap under the CACL Act did not apply.

Acting Appeal Court Justice Ronald Sackville said: “This case demonstrates the astonishing complexities that can arise when several parties are alleged to have been at fault in an accident in which another person is injured. The complexities reflect, in part at least, the variety of apparently uncoordinated statutory regimes that can govern the liability of parties joined to the proceedings. The complexities can remain even if – as in this case – the plaintiff’s claims (and claims by his family members) have been resolved.”

On April 4, 2006, Mr Edwards was in a helicopter conducting an aerial power line inspection for Endeavour near Wisemans Ferry in rural north-west Sydney. Precision Helicopters Pty Ltd provided the helicopter and pilot to Endeavour under a services agreement.
During the inspection, the helicopter’s rear rotor hit a Telstra dummy wire, known as a catenary wire, that had served no useful purpose since 2000. The pilot landed the helicopter in a paddock near the power lines but, as he did so, it rolled on its side. The main rotor hit the cabin and Mr Edwards’s head as the chopper rolled. Mr Edwards was not wearing a safety helmet. He sustained serious brain injuries.

Mr Edwards sued Endeavour, Precision and Telstra Corporation Ltd for damages. His claims were settled for $16 million. Endeavour and Precision then launched separate proceedings for contribution against each other.

Endeavour also sought contribution under the NSW Workers’ Compensation Act for compensation it had paid to Mr Edwards.

Precision also sued Endeavour (in negligence and contract) and Telstra (in negligence) for damage to the helicopter and consequential loss of business.

Initially, NSW Supreme Court Justice Anthony Johnson had found Mr Edwards’s role as an observer was central to the pilot’s role because he had relied on Mr Edwards for the helicopter’s navigation and advance hazard warning.

Justice Johnson concluded Mr Edwards was part of the crew and found Endeavour was not entitled to rely on contractual indemnity against Precision.
He dismissed the claims in negligence against Telstra, finding it owed no duty of care or, if it did, that duty was not breached. He apportioned Precision’s liability at 85% and Endeavour’s at 15%.

On appeal, Justices John Basten, Robert Macfarlan and AJ Sackville allowed Endeavour’s appeal in part. They found Precision and Endeavour liable in negligence for not requiring Mr Edwards to wear a helmet. They agreed Mr Edwards was a “passenger” under s4 of the CACL Act because he was not a Precision employee and had no physical control of the flying.

They found Telstra owed a duty of care to Mr Edwards, Endeavour and Precision. They agreed an aerial power line inspection near Telstra’s wire was “reasonably foreseeable” and the risk it posed was not insignificant. Telstra should have taken reasonable care to avoid that risk, particularly because the wire served no purpose and Telstra “could and should have removed the wire entirely”.

They found Endeavour liable for failing to ask Telstra where its lines were located, before conducting the aerial inspection of its own power lines in the area. “There was some evidence suggesting Telstra maintained a database identifying the location of lines in its network. In any event, it is hardly to be supposed that Telstra, if asked, would have been unable or unwilling to identify the location of its lines, including the catenary wire. On the balance of probabilities an inquiry of Telstra would have revealed the location of the catenary wire and avoided the accident,” AJ Sackville said.

The majority judges (Justice Basten dissented) dismissed Endeavour’s claim against Precision in negligence allegedly resulting from the route its pilot had taken.

The decision left Endeavour and Telstra liable for all but $500,000 of the $16 million owed to Mr Edwards.

Justice Basten said there were several negligence findings:
(a) failure by Endeavour to ask Telstra about its lines in the area;
(b) failure by Endeavour to require Mr Edwards to wear a helmet;
(c) failure by Precision to require Mr Edwards to wear a helmet;
(d) failure by Telstra to remove the catenary wire, instead of re-erecting it when a pole collapsed;
(e) failure by Endeavour to map and consider an appropriate route plan for the branch line; and
(f) failure by Precision’s pilot to survey risks while flying in a southerly direction and undertaking the inspection on the return flight to the north.

Because Precision’s liability was strict, statutory and capped, apportionment was required on the basis Endeavour and Telstra were both negligent and their negligence was causative of Mr Edwards’s personal injuries.

“Apportionment of liability on a just and equitable basis does not provide clear standards or permit precise calculation. It involves weighing various causative factors, resulting in relevant loss,” Justice Basten said. He suggested the “correct course may be to reduce the total damages by the share to be paid by Precision and then allocate the remaining loss between Endeavour and Telstra”.

Click here for Carter Newell senior associate Shannon O’Hara’s case notes.

Click here for Sparke Helmore partner Kevin Bartlett’s case notes.

(Endeavour Energy v Precision Helicopters Pty Ltd [2015], NSWCA 169, 22/06/2015)