In brief - All parties found to have contributed to crash
A recent decision in the NSW Supreme Court in Stephenson v Parkes Shire Council & Ors  NSWSC 1758 highlights the duty of care of those involved in procuring or providing aviation services and sheds light on how courts determine what constitutes a "passenger" and the intention of the Civil Aviation (Carriers' Liability) Act in regard to nervous shock claims.
Helicopter hits power line and explodes killing all occupants
On 2 February 2006, a helicopter operated by South West Helicopters Pty Ltd took off from the Parkes aerodrome to conduct an aerial survey for the purpose of determining the presence of noxious weeds in an area for which the Parkes Shire Council was responsible.
South West was a company that conducted helicopter operations and was authorised to conduct charter and aerial work operations. In addition to the pilot (Mr Shane Thrupp), two employees of the council, Mr Ian Stephenson and Mr Malcolm Buerckner, were on board the helicopter.
While the helicopter was in the vicinity of a region known as "The Dungeons", it struck an overhead power line (owned by Essential Energy) and exploded. Sadly, all three occupants of the helicopter were killed in the accident.
Various proceedings were commenced in the Supreme Court of NSW by:
- Mr Stephenson's wife and children against the council and South West for damages arising from Mr Stephenson's death
- South West and a related entity against Country Energy (the predecessor of Essential Energy) for damages in respect of the loss of the helicopter and lost profits
- The council against South West for amounts paid pursuant to the NSW workers' compensation legislation
Liability and negligence of parties determined in court proceedings
The proceedings were heard and determined together and a number of issues arose with respect to the liability of the various parties to the proceedings that were ultimately determined in the judgment of Bellew J dated 19 December 2014, including:
- Whether each of the council, South West and Essential Energy were negligent and caused the various losses arising from the crash pursuant to the terms of the Civil Liability Act 2002 (NSW);
- Whether the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Liability Act") applied by operation of the Civil Aviation (Carriers' Liability) Act 1967 (NSW) ("the NSW Act") to the claims made by the Stephenson family members against South West.
Parkes Shire Council failed to assess risk and respond appropriately
Bellew J had little difficulty in concluding that the council owed a duty of care, among other matters, to avoid exposing its employees (including Mr Stephenson) to unnecessary risk or injury.
The court held that an assessment of risk and an appropriate response was fundamental to that duty, in circumstances where the council had commissioned an aerial survey which would involve low level flying with the attendant risk of wire strike.
The court considered what would have been an appropriate response to the identified risk and concluded that the following measures should have been implemented but were not:
- the conduct of a proper risk assessment in relation to the aerial survey
- the imposition of a flight altitude threshold of 500 feet (Mr Thrupp had descended to a height of approximately 120 feet prior to the crash)
- the provision to the pilot of information available to the council regarding the presence of overhead wires in the area
On the basis of the council's failure to implement the measures described above, Bellew J found the council to have been negligent and that the council's negligence was a cause of the accident.
South West Helicopters pilot breached fundamental principle of good airmanship
Bellew J concluded that South West owed a duty of care to the persons on board the helicopter, including Mr Stephenson.
The court held that South West breached that duty of care by failing to brief the pilot properly to address the boundaries of the area which were the subject of the survey and to identify any hazards or obstacles. The court also found that in descending to a height of approximately 120 feet, the pilot breached one of the fundamental principles of good airmanship and in so doing, breached his duty of care to Mr Stephenson.
The court was of the view that had a proper assessment of the risks been conducted by South West and then a proper briefing of the pilot carried out, the presence of the overhead wires would have been brought to the pilot's attention, putting him on notice not to descend to the level to which he did.
Accordingly, the court concluded that South West's breaches of duty were a cause of the accident.
Essential Energy owed duty of care to helicopter operators
South West made a claim against Essential Energy in respect of the loss of the helicopter and lost profits. Essential Energy's main argument was that it did not owe a duty of care to South West.
Bellew J rejected Essential Energy's argument on the basis that the following matters gave rise to a duty of care owed by Essential Energy to South West:
- The area in which the survey was conducted was fire prone and this was a factor that ought to have put Essential Energy on notice that low level flying for the purpose of fire control (with the attendant risk of wire strike) would be likely
- The nature of the harm flowing from a wire strike incident would be serious "...if not catastrophic" (at ).
- The wire struck by the helicopter was difficult to see and was located adjacent to a roadway which was likely to be used by pilots to assist with navigating the area.
The court held that Essential Energy failed to place markers on the wire such that they would have been visible from a distance of 300 metres and that this failure was a cause of the accident.
Nature of aerial work means two-year time bar on claims not applicable under the Carriers' Liability Act
An interesting issue dealt with in the judgment was the question of whether the claims were governed by the Carriers' Liability Act. The issue arose in the context of a defence raised by South West to the effect that the claims were subject to a two-year time bar in the Carriers' Liability Act (the two-year period having expired prior to the commencement of the proceedings).
Bellew J considered the case of Edwards & Ors v Endeavour Energy & Ors (No. 4)  NSWSC 1899 (which also involved a helicopter wire strike accident) and concluded that, as the helicopter was being used for an aerial weed survey as opposed to the carriage of passengers or cargo, the work fell outside the provisions of the NSW Act and hence outside the operation of the Carriers' Liability Act.
Referring to the judgment in Edwards, Bellew said (at ):
...The aerial survey being conducted by South West involved low level flying which was being conducted pursuant to its Air Operator's Certificate. Even if Mr Stephenson was properly regarded as a passenger (and... it is my view that [sic] was not) the helicopter was being used for an aerial weed survey, not for the carriage of passengers or cargo. It was not, therefore, engaged in commercial transport operations as defined.
Definition of "passenger" considered but rejected by court
Having determined that the work that was undertaken by South West fell outside the terms of the NSW Act and, therefore, the Carriers' Liability Act, Bellew J went on to consider the question of whether Mr Stephenson was a "passenger" within the meaning of the NSW Act. In doing so he considered the following authorities on the point:
- Fellowes (or Herd) v Clyde Helicopters  AC 534, in which the respondents were operating a helicopter for police in (among other matters) surveillance operations which collided with a block of flats. The court held that because the deceased officer was on board the helicopter for the purpose of carrying out his police duties and had no responsibility for the operation of the helicopter, he was properly regarded as a passenger.
- Disley v Levine t/as Airtrak Levine Paragliding  EWCA Civ 1087, in which the plaintiff was injured in a paragliding accident while receiving instruction from the defendant. Referring to the decision in Fellowes, Henry LJ noted that it cannot be said that the plaintiff "contributed nothing to the flight." While the plaintiff watched the defendant demonstrate various manoeuvres she (at ):
...did not practice controlling the glider, or play any part in its operation during the flight. However, the flight could not have taken place without the contribution she made with her legs both on take-off and landing. But over and above that, she was not on the flight as a passenger, nor on the flight under a contract of carriage, but on the flight as a pilot under instruction, and so as one of the crew.
- Edwards, in which Johnson J, referring to the decisions in Fellowes and Disley, in concluding that the plaintiff was not a passenger on a flight, said (at ):
...Mr Edwards discharged functions including assisting the pilot with navigation of the aircraft, both by directing him to the power lines which he was to fly near to, and by looking out for, and warning of hazards which he was to avoid. In these ways, Mr Edwards was so closely involved in the conduct of the flight, that the conclusion ought be reached that he was a member of the crew, and not a mere passenger. If Mr Edwards had not been present to act as 'observer', the low-level aerial surveillance flight could not have taken place at all.
Having considered the authorities, Bellew J concluded (at ) that:
In my view, the same applies to Mr Stephenson. It was part of Mr Stephenson's role to act as an observer, and to direct Mr Thrupp to particular areas which were required to be inspected for the presence of noxious weeds. His presence on the flight was essential to the conduct of the survey. He was not a passenger being conveyed from one place to another.
The role of section 36 of Carriers' Liability Act
A final issue that was determined in the matter was whether claims for nervous shock were caught by the Carriers' Liability Act.
In this regard, Bellew J followed the majority judgment in South Pacific Air Motive Pty Ltd & Anor v Magnus  FCA 1107, in which it was concluded that the Carriers' Liability Act was not intended to constitute a complete code in respect of non-passengers who suffer loss or damage and that section 36 of the Carriers' Liability Act (which essentially provides that the remedies under that Act are in substitution of common law or other remedies) was not "...intended to preclude claims by non-passengers seeking damages for nervous shock under the general law." (at )
Consider precautions when procuring or providing aviation services
The judgment in Stephenson provides some insight into the types of precautions that employers, air operators and others involved with procuring or providing aviation services can be expected to take with respect to aerial survey and other aviation work.
It also demonstrates that whether a person is a "passenger" or not for the purpose of the Carriers' Liability Act (and the NSW Act) will depend upon a close analysis of the facts of the carriage, including the degree of control or instruction the person has with respect to the operation or navigation of the aircraft.
Finally, it expresses support for the majority decision in Magnus as good law (effectively rejecting the dissenting judgment in that case) regarding nervous shock claims.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.