In our case note published on 4 February 2026 (see here), we reported on the decision in the New South Wales Supreme Court in O'Driscoll v Encore Aviation Pty Ltd in relation to compensation for the pilot and owner of a helicopter following a maintenance-related crash.

That decision was appealed (Encore Aviation Pty Ltd v O'Driscoll Aviation Pty Ltd & Anor [2026] NSWCA 227) in particular in relation to issues regarding the finding that there was a visible crack in the exhaust diffuser when the helicopter was inspected, and in relation to the apportionment of liability between the licensed aircraft maintenance engineer (LAME), employed by Encore Aviation and the pilot O'Driscoll.

At trial liability was apportioned equally between those parties. 

Justice Leeming delivered the leading judgment on appeal with which Justices Stern and Price agreed. 

The appeal court concluded that there was no error in the finding that there was a visible crack on the exhaust diffuser of the Bell Garlick UH-1H helicopter when it was inspected on the morning of the accident and that it did not develop during the 90 minutes of operation on that day of the accident. It was further found that both the pilot O'Driscoll and Mr Harris, the LAME supplied by Encore had inspected the helicopter prior to the crash. 

Following an examination of the evidence and the reasoning of the trial judge, the appeal court found that there was no reason to upset the finding that the crack was apparent and visible on inspection and that both O'Driscoll and Harris had inspected the helicopter on the morning of the flight. 

However, in considering the apportion of liability between Encore Aviation and O'Driscoll, it was noted that Harris was a LAME whose conduct was to be assessed according to the standard of a reasonably competent LAME, whereas O'Driscoll was a pilot who had never been trained as a LAME. Each used different equipment for inspection. 

The court concluded that the appropriate standard of care should be delivered by reference to the "special skill" identified by the person. 

When O'Driscoll had arrived at the airfield, Harris was already conducting the daily inspection and so, when O'Driscoll conducted his own inspection, he did so in the knowledge that a LAME had already inspected and assessed the risks. 

In the circumstances, the appeal court applied greater responsibility to Encore Aviation and found it liable for 60% and O'Driscoll Aviation and O'Driscoll should be liable to bear 40% of the loss. 

An appeal in relation to the trial judge's findings on assessment of damages was unsuccessful. 

The decision is interesting for its comments in relation to the standard of care to be applied in assessing negligence and the relevance of special skills of those involved in inspection.

For advice on aviation liability, maintenance obligations or the implications of this decision, please contact a member of our Transport & Logistics team.