Consideration of the negligence issue
169The plaintiff has submitted that proof of the breach question is established by the fact that Mr Harrold flew in the restricted military area. In contrast, the defendant has submitted that the actions of Mr Harrold should be judged against what a reasonable man would have done in the circumstances in response to foresight of the risk of striking the wire, and in that regard, it was submitted that Mr Harold had discharged that obligation notwithstanding the occurrence of the wire strike.
170The experts were in agreement that until the point of descent of the aircraft near Broke, where dense cloud was encountered, no criticisms of Mr Harrold's flying or navigation of the helicopter reasonably arose. It was obviously appropriate for Mr Harrold to adhere to VFR cautions, and not enter cloud so as to obscure his view of the ground.
171The experts variously stated that to enter such cloud would have been significantly or extremely dangerous. Without disagreement from the other experts, Mr Townsend identified research revealing the statistical prospect of someone flying through cloud in such circumstances and hitting the ground as involving about 37 seconds: T306.45.
172Mr Harrold clearly foresaw the risk and contraindication of flying through cloud, and appropriately changed his flight plan near Broke in order to avoid cloud.
173In my view, Mr Harrold's decision at that point to turn left after the descent near Broke, and to then track east towards Cessnock, should not be lightly second guessed by experts, especially where he was the one who had the responsibility for making the required judgments on safety.
174In contrast to the area of cloud Mr Harrold was concerned about, he saw a brighter area of navigable sky to the east: T182.5. When he tracked the aircraft to the east, at all times he had 800m of clear visibility ahead: T178.41. He was in sky that had occasional cloud and mist at his level of flight beneath the cloud base, but he could generally see ahead for 800m T189.4 - T189.26. This was VFR compliant flying.
175There was criticism of Mr Harrold from within the expert evidence to the effect that at that point, because he was at risk of flying over restricted military airspace if he continued on that course, he should have sought to land as soon as practicable to avoid this, and in order to allow the weather to pass, or turn back, or consider asking the military authorities in command of that restricted airspace for a clearance to fly over if not land in the restricted area.
176In my view, for the reasons that follow, those criticisms go well beyond the response of what would be expected of a reasonable person faced with the dilemma with which Mr Harrold was confronted at that time. In my view, those criticisms involve a counsel of perfection and rely for their support, on an inappropriate hindsight analysis which paid insufficient regard to the reasonable prospective judgments Mr Harrold was required to make at the time he was confronted with the problematic circumstances.
177That much was conceded by one of the experts called by the plaintiff, in agreeing that Mr Harrold's decision to track east to where, in Mr Harrold's perception at that time, the sky was brighter, was a reasonable judgment call for him to make, if that was his only reasonable choice, where, if turning back or turning right (and away from a track that led to the restricted area) were not available options: Mr Nest, T 323.11.
178 In my view, turning left or east near Broke, and away from the dense cloud to track to the east was Mr Harrold's only reasonable choice in the circumstances. As Mr Harrold surveyed his situation, he was aware that the weather, namely cloud, was closing in behind him. In my view, this made the option of a forward tracking flight further to the east a reasonable one for him to adopt.
179In those circumstances, the alternative of looking for a landing area near Broke was understandably contra-indicated where this entailed the known and foreseeable prospect of landing in an area that was prone to unpredictable explosions at ground level, without warning, in association with mining activity in that locality. In this regard, I accept as entirely reasonable, the opinion of Mr Townsend, which supported Mr Harrold's decision not to land in the vicinity of Broke rather than track further east.
180Mr Harrold made a judgment that the option of making a return flight to Scone or its environs was not appropriate at that time, having regard to uncertain weather and fuel issues. In my view, on the evidence, that was a reasonable judgment call available for him to make at the time, where there was dense cloud cover, and it was not readily apparent to him, without beforehand regaining altitude above that cloud cover, that he would be able to retrace his course towards Scone without detour, and without compromising his fuel reserves for a safe flight.
181In my view, the expert opinions to the effect that at that time, Mr Harrold should have sought to turn back towards Scone are based on perspectives as to the prevailing circumstances that were very different to the pressures under which Mr Harrold was operating at the time. In my view, the criticisms that emerge from those perspectives have only become available through the more leisurely considerations revealed through the opportunity of hindsight analysis, rather than through a prospective analysis of the kind that confronted Mr Harrold at the time.
182This is so where expert evidence conceded that Mr Harrold was in a better position than the experts for the purpose of making judgments concerning the significance of weather observations, including the perceptions of depth, and including the perception that the weather was closing in, as Mr Harrold described: T309.1 - T310.26.
183As Mr Davies acknowledged, and which I accept, at T281.39, with the weather moving in from behind from west to east, a series of doors were in effect being closed to Mr Harrold, which removed the option for him to turn back to avoid those adverse conditions.
184In this regard, I consider that the trained observations of the pilot in command, Mr Harrold, should be afforded greater weight than the lay observations of Mr Paradice, and the non-dynamic perspectives of the experts engaged in the after-the-event analysis. In my view, that consideration takes on greater weight and importance in the analysis when regard is had to paragraph [70] of the statement of Mr Hodge, to the effect that he would have made the same decisions as Mr Harrold on account of the weather.
185Whilst it is true that as Mr Harrold continued to fly closer to the point of the wire strike, he must have considered that there was a good chance he was inside the restricted military area, nevertheless he was in that position for a good reason, in that he was seeking to avoid flying through cloud, which was also contraindicated: T165.22. This much is evident from his close proximity to the mountain range, or Mt Broken Back, which he could see, both visually, and on the VNC map he had consulted. In taking that course, he avoided flying to the north, making it more likely that he would be flying in restricted airspace: T166.25. I find that he did so not to court risk or fate, but in order to adopt the safest option in the circumstances.
186Mr Harrold had earlier considered other options, such as tracking south in order to fly between the cloud and the mountain range and which would have necessarily taken him further into the restricted area. He rejected these options as being unsafe: T166.33; T166.50. In my view, under the pressure of the moment, that judgment is not reasonably open to the hindsight-based criticisms relied upon by the plaintiff in these proceedings.
187Mr Harrold had to make a balanced judgment forced upon him by deteriorating cloud conditions where the cloud was moving in behind him from west to east at an uncertain speed, which he was not in a position to accurately gauge. He was obviously near the border of the restricted area. The obviously foreseeable danger of being in that position was the potential exposure of the aircraft to the risk of possible damage from exploding ordinance from the firing range within the Singleton Army Base. That said, it was less likely that such firing would take place on the margins of the border of that area compared to an area that was further within the restricted area and therefore away from the boundary.
188Realistically, Mr Harrold's choices were to keep flying out of the valley below the cloud that had developed there, as he had attempted to do, or to hover and circle in an orbit until another option might have presented itself, such as a clearing of the cloud, or the availability of permission to overfly the restricted area or land in it after permission to do so had been sought and granted.
189From a practical perspective, and taking a commonsense view of the situation, other than to keep flying out of the valley, the other options were not realistic at the time, given that cloud was closing in from behind.
190The hovering and orbiting option was inherently problematic where cloud was moving in from behind. That course was risk-laden because to orbit the aircraft in that way would apparently have involved an air speed of under 40 knots, which would have made the helicopter noticeably more sensitive and difficult to fly on a small turning radius, and it would have required an orbit of a few hundred metres: T326.23 - T326.36.
191In my view, this would have been problematic in an additional way because of the real prospect of visibility being compromised due to cloud closing in from behind. The further difficulty with orbiting in those circumstances was that orbiting in the restricted area for as long as it took to obtain clearance from the military hierarchy, could have needlessly exposed the aircraft to the possible risk of damage from live firing from within the firing range on the Army Base: T327.22 - T327.30.
192The assumption Mr Tyler made to support a suggested orbiting course presumed a continuation of VMC or visibility remaining for at least 800m ahead. In my view, that assumption was untenable on the evidence of Mr Harrold, which I accept, concerning the cloud closing in from behind in a west to east direction, as this would have involved him periodically orbiting into the direction of the cloud mass closing in from behind. That option was therefore unsafe, and Mr Harrold rightly rejected it.
193Mr Tyler and Mr Nest both conceded, obviously in hindsight, but whilst analysing prospectively, that when the pilot was required to make a judgment as to the safest course to take in the minute or so before the wire strike, a factor he had to weigh in the equation was the cloud conditions to the north, where that judgment was also dictated by the height of the cloud: T330.24 - T331.4.
194In my view, these considerations justified Mr Harrold not orbiting the aircraft at that time, and the arguments suggesting the contrary are in my view, only enlivened by inappropriate hindsight considerations, which have no part to play in this liability analysis.
195In my view, the other identified option of calling an emergency and seeking an urgent authorisation to overfly the restricted area, or to land there, was an unrealistic one in the circumstances that faced Mr Harrold at the time. His own experience was that obtaining permission in such circumstances could take something of the order of up to 20 minutes: T189.46. That view was supported by the preponderance of the expert evidence, which was that such a clearance could take anything from a few minutes to up to an hour to obtain: T324.43.
196With the cloud closing in from behind, Mr Harrold did not have that luxury of time at his disposal in order to maintain an orbit in the face of cloud closing in from behind whilst waiting for an uncertain period of time for permission to either overfly or to land. In those circumstances, he had to choose the best and the safest course open to him at the time, as would have been expected of a reasonable person in his position, in that situation.
197In that regard, at T189.28 - T189.38, Mr Harrold explained his reasons for not seeking authorisation to overfly the restricted area, as follows:
"Q. You didn't at any time seek a clearance to overfly a restricted area, did you?
A. No, I didn't.
Q. You didn't ever consider seeking a clearance, did you?
A. At the time I was concerned about moving on from that area as best I could and I was just looking at the best option to get myself out of an area that was deteriorating, as far as I was concerned. And that gave me the - you know, I tracked to the south to the range and I didn't consider asking for a clearance. It could have taken some time to get one. So, yeah, that's why I didn't consider it."
198In rejecting the alternative choices that were propounded by the plaintiff in this litigation, Mr Harrold consulted his VNC map. When he did so, he saw a way clear to the east towards Cessnock, which he reasonably expected would extract the aircraft from the difficult weather conditions he had encountered.
199The flight map that he consulted, which was the latest edition at the time, made no reference to the presence of aboveground obstacles for his chosen course in the form of overhead powerlines. The description of the terrain below was of heavy forest. Mr Harrold agreed that he had seen signs of a clearing or easement through the patchy clouds ahead to his left as he tracked east: T152.12. He was not alerted to the presence of the tower for that powerline because that tower was unfortunately concealed within the low-lying cloud cover on Mt Broken Back.
200Mr Harrold was aiming to keep to the south whilst tracking east, and so the indication of an easement on the ground, as a navigational feature, was to the left of his intended course close to Mt Broken Back: T156.9; T173.29; T173.49. In those circumstances, the cloud concealed tower from which the powerline had been mounted or strung, served to mislead him as he plotted his course to get clear of the area.
201In those circumstances, Mr Harrold's view of the easement to the north, or to his left, was obscured by mist or cloud in places. In those circumstances, he chose his best course, as follows, as he stated, at T174.24 - T175.3:
"Q. So what you saw, to the extent that it was below your altitude, what was to the north was mist?
A. Mist cloud, mist cloud, it was obscuring my unimpeded vision of the north, of the Dochra or restricted airspace.
Q. You had also a view of the road that's on the VNC map at that point didn't you?
A. No, I didn't see the road.
Q. Didn't see any road?
A. No.
Q. What is it that led you to fly as close as you did to the escarpment rather than say 500 metres to the north?
A. Because that would have meant I would have had to descended a bit further to the north and I was trying
Q. Why?
A. Well because it's a cloud over the top of, it descended down to the north. So I chose what I considered to be the safest route, which was maintaining my altitude and remaining clear of cloud.
Q. Very close to the escarpment?
A. No, I, on reflection, and I, in my first statement I had a distance of 50 metres and with subsequent time and discussion with my solicitor as well we ran a little test at the office and I was in their office and I looked at the buildings across the street and I was able to just confirm straightaway that I was a lot further than 50 metres out from the cliff and that's, that was just the, a way of trying to get my mind back into the situation as to what I saw at the time."