Insights

In brief - Claimants fail to establish negligence despite extensive factual and expert evidence

Two recent court decisions have involved analysis of the principles of negligence and their application to claims arising from helicopter accidents.

Claim for economic loss after helicopter strikes power line

This decision of the NSW Court of Appeal handed down on 12 March 2014 in the case AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd [2014] NSWCA 46 concerned a claim for economic loss in the form of diminution in the resale value of a helicopter and loss of profits during the period in which it could not be used or hired whilst undergoing repairs arising from an accident which occurred on 29 January 2009, when the helicopter struck an overhead power line during a flight from Scone to Sydney.

AV8 Air Charter Pty Ltd owned the Eurocopter EC 120B helicopter which it chartered to Sydney Helicopters Pty Ltd, although formal documentation had not been signed at the time of the accident.

The helicopter had descended below cloud level in deteriorating weather conditions when it struck the power line in a valley in restricted military air space near Singleton Army Base in NSW. The presence of the power line was not indicated on the navigation chart available to the pilot.

Aside from issues regarding the quantum of the claim, issues before the court were whether the pilot had been negligent and, if so, whether liability should be apportioned under the Civil Liability Act 2002 (NSW).

Pilot had little option but to take the route he did

The trial judge at first instance had made findings to the effect that the deteriorating weather conditions and increase in cloud gave the pilot little option but to make the choice of route which he did.

It was maintained in the appeal that the pilot had been negligent in flying in restricted air space in contravention of the Civil Aviation Regulation (CAR) 140 and in flying below a safe altitude and at a height lower than 500 feet above the highest point of terrain within a radius of 300 metres of a point on the terrain vertically below the aircraft, in contravention of CAR 157.

Court of Appeal agrees that pilot's course was due to deteriorating weather

Following analysis of the evidence in relation to the accident given at the trial, the Court of Appeal judges found that there was ample evidence to support the trial judge's conclusions that the pilot took the course which he did as the weather was closing in on him. The pilot himself gave evidence to that effect and there was then no need further to define or analyse what "closing in" meant.

While there was a challenge to the judge's findings that at the time of the wire strike the helicopter was approximately 500 feet above ground level, nothing turned on that issue. Availability of fuel was also taken into account by the pilot in his decision-making, notwithstanding that he still had plenty of fuel left at the time of the accident.

Reasonable person's response to foresight of risk

In considering the issue of negligence, Hoeben JA noted that the correct approach was that in Vairy v Wyong Shire Council [2005] 223 CLR 422, that:

The inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event to judge what the reasonable person would have done to avoid what is now known to have occurred.

Breach of Civil Aviation Regulations not necessarily negligence

Discounting the joint expert reports, it was noted by the Court of Appeal that the experts had approached the breach of the CARs as though they constituted particulars of negligence so that any breach of regulation would constitute a negligent act. It was noted that that approach had been rejected by the High Court in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] 240 CLR 1.

The appeal judges noted the general principles of negligence set out in the Civil Liability Act. They noted that the trial judge did not define the relevant "risk of harm" which Hoeben JA in the Court of Appeal considered to be "the possibility of a helicopter coming in contact with an unmarked obstruction which was not recorded on any map and which was virtually invisible from the air".

Breaches of regulations due to unavoidable causes

The trial judge had concluded that there had not been a breach of CAR 140 or 157 and he noted that section 30 of the Civil Aviation Act created a specific defence in relation to each regulation if the breach were established to have been due to "extreme weather conditions or other unavoidable cause".

Based on his findings as to the prevailing weather conditions, the trial judge considered that even if "extreme weather conditions" were not encountered, the breach was the result of an "other unavoidable cause".

The judge's findings were upheld.

Appellant argues that breach of regulations constitutes breach of contract

The appellant had also argued that there was an implied term in the business relationship between the parties that the helicopter would be handled in a manner which complied with the regulations and a breach of the regulation would constitute a breach of contract. But in circumstances where it was not found that there was a breach of regulation, this attack on the trial judge's findings fell away.

Trial judge found to have erred in apportioning liability

Finally there was some analysis of the proportionate liability issues. On the assumption that liability was found against the operator of the helicopter, the trial judge apportioned liability as to 80% against Air Services Australia and Energy Australia and 20% against the operator.

The Court of Appeal considered that the trial judge erred in this regard because the operator on the first day of the trial had abandoned any apportionment claim against Air Services Australia. Accordingly, the only question which should have been considered was whether any liability should be found against Energy Australia as the entity responsible for the erection and maintenance of the power line.

The Court of Appeal found that not only did Energy Australia owe a duty to pilots such as that of the helicopter which collided with the power line, but that the duty was breached in this case. Liability was apportioned as to 60% against Energy Australia on the basis of the available evidence.

Quantum of any liability

Finally, in relation to the quantum of the claim, the real issue between the parties was the diminution in value of the repaired helicopter and the claim for lost profits. While the difference between the parties in relation to the claim for lost profits was small, the trial judge had assessed the diminution in value of the repaired helicopter at $50,000, whereas the claim made by the aircraft owner was between $400 and $600,000.

The Court of Appeal assessed diminution in value at 10% of the purchase price, i.e. US$135,000. In relation to the reduction in profits, the figure claimed by the appellant was $67,968 and the trial judge had awarded $20,000. On appeal $55,000 was allowed for the loss of profits.

However, the findings of the Court of Appeal on the apportionment and damages were academic, as the attack by the appellant on the factual findings on liability was not made out. Accordingly, the appeal was dismissed with costs awarded in favour of the respondent Sydney Helicopters Pty Ltd.

Helicopter hits ground and catches fire after failure of drive system

The decision of Justice Lyons in the Supreme Court of Queensland in the case McDermott and others v Robinson Helicopter Company [2014] QSC 34 concerned serious injury sustained by Mr McDermott in a helicopter accident on 30 May 2004, when the Robinson R22 Mariner II helicopter (in which he was a passenger) hit the ground and caught fire whilst it was being used to inspect fence lines on a large cattle property.

Prior to the collision with the ground, there was a large bang and a massive vibration in the helicopter. Despite attempts to keep the helicopter under control, it hit the ground and bounced forward. Mr McDermott was trapped by his harness and unable to escape the fire immediately. He subsequently escaped and went for help, leaving the pilot Mr Norton beside a creek. Mr Norton did not survive.

Allegations of negligence

The plaintiffs alleged the accident was caused by the negligence and breach of duty on the part of Robinson in failing to exercise reasonable care to ensure the Maintenance Manual provided an adequate inspection procedure to detect fatigue cracking.

It was common ground at the trial that the accident occurred because the forward flexplate (which formed part of the drive system by which torque is transferred from the engine to the rotor shaft) failed. It failed at the location of one of the bolts connecting the main rotor gearbox yolk to the flexplate.

A metallurgist gave expert evidence to the effect that the failure originated from a lack of clamping force in one of the bolts and that two cracks had developed. The plaintiffs had pleaded that the cause of the accident was a mechanical defect in that the bolted joint of which the faulty bolt formed part, had been assembled incorrectly and that the bolt was not correctly tensioned.

The allegations of negligence were denied by Robinson.

After extensive analysis of the evidence, Justice Lyons found that the instruction in the maintenance manual was sufficient to identify risk of failure resulting from inadequate torque in a bolted joint and was not satisfied that Robinson was negligent.

Plaintiffs' claim for compensation for supply of defective goods

The plaintiffs also brought claims for compensation for breach of obligations under the Trade Practices Act 1974 and, in particular, in relation to the supply of defective goods.

Having concluded that the effect of the instructions and the maintenance manual required a licensed aircraft maintenance engineer to carry out a 100 hourly inspection, to examine the condition of the torque stripe for the bolt and that compliance with the maintenance manual procedures was sufficient to prevent the accident, it followed that the McDermotts had failed to establish the existence of a defect in the supplied goods.

Accordingly the conclusions reached by the trial judge were that the instructions in the maintenance manual relating to the inspection of the flexplate were adequate to address the risk of failure and that the aircraft manufacturer Robinson had taken reasonable care to address that risk and that neither the helicopter nor the maintenance manual had a "defect" for the purposes of the Trade Practices Act claim.

In the circumstances the plaintiffs' claim failed.

Wisdom in hindsight not a basis for establishing negligence

In both these cases, the claimants failed to establish negligence on the part of the defendant, despite extensive factual and expert evidence and, in the case of the McDermott claim, a hearing which occupied some weeks.

The caution for claimants is that one needs to be wary of looking backwards from the accident scene to reach the conclusion that the accident must have occurred through some negligence on the part of the helicopter operator or aircraft manufacturer.

Rather one needs to put oneself in the shoes of the manufacturer or pilot and look forward in considering how a reasonable pilot or manufacturer in the same situation should be expected to have acted.

In short, be careful not simply to "be wise after the event", as that is not a proper test or approach to adopt in considering the issue of negligence.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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