Cook v Aircare Moree Pty Ltd

High Court of Australia|2007-05-09|Before: Mr P

Introduction

Mr Cook was injured at work in the early hours of 28 December 2000 when he received an electric shock from a 22,000-volt electric conductor. The conductor, a wire cable, had been strung over a cotton field on a property near Moree, but had been dislodged from one of its supporting poles when struck by an aircraft conducting aerial spraying. Mr Cook's employer, NorthPower, was the responsible authority, and it dispatched Mr Cook and another linesman, Mr Buddee, to deal with the situation. NorthPower has become Country Energy.

After arrival at the site at about 6.45am, Mr Cook and Mr Buddee agreed that Mr Buddee would drive to a 'links' site, some 7 kilometres back along the line, to isolate the line by opening the links and de-energising the line. Whilst Mr Buddee was away, Mr Cook approached the conductor, before it was de-energised, with a view to assessing what repairs might be required and in the course of so doing he received an electric shock from the conductor.

Mr Cook claims damages in respect of his injuries and their consequences. He alleges negligence on the part of each of Aircare Moree and NorthPower, and says that Aircare Moree and ACQ Pty Limited are strictly liable under the Damage by Aircraft Act 1999 (Commonwealth).

The defendants deny any liability. Alternatively, they allege contributory negligence. The first and second defendants have also raised a defence of voluntary assumption of risk (volenti non fit injuria).

The matters for determination are: · Whether any defendant was negligent. · Whether any defendant is liable under the Damage by Aircraft Act 1999 (Cth). · Whether Mr Cook voluntarily assumed the risk. · Whether Mr Cook was guilty of any contributory negligence. · The apportionment of responsibility between the defendants. · Mr Cook's entitlement to damages.

The accident on 28 December 2000 7. A 22,000-volt electric conductor, 6mm in diameter, had been slung between two supporting poles over Field 19 of the property 'Milo'. At its lowest point it was about 6.2 metres above the ground. During the course of carrying out aerial spraying of the cotton field, the AT 400 Air Tractor aircraft collided with the conductor. The conductor was thereby dislodged from one of its supporting poles, causing it to drop. It remained suspended, swinging over the field, but at a height that at the point of Mr Cook's accident was then only 1.5 metres above the ground, at about throat level.

The pilot, Mr Stubbs, was familiar with Field 19 and its overhead wire hazard, having sprayed it some 5 days previously. On this day, he had arrived at about 5.00am and proceeded to fly around several times to "survey the field, and observe the weather conditions, hazards and the best way to approach the job". He then commenced spraying and had made some 9 runs. On about the 10th run, at around 5.30am, he collided with the conductor. The top 150mm of the tail fin was sheared off. It was still quite dark. Sunrise was not until about 6.00am.

Having been notified of the incident, NorthPower despatch called Mr Cook and Mr Buddee, at about 6.10am, and sent them out to attend to the situation. Mr Buddee arrived first, and Mr Cook soon after. After a discussion between them, it was decided to isolate the line by de-energising it from the nearest links site, No 1292, which was some 7 kilometres back up the line. Mr Buddee set off in his truck towards this links site. Mr Cook then approached the line with a view to assessing what damage had been occasioned to the conductor and the supporting pole, to determine what repair work might be required.

Mr Cook set out over the cotton field towards the conductor and some minutes later he received the electric shock, which caused his injuries.

Mr Cook has no memory of the accident. He was discovered unconscious about a metre from the conductor, lying face down with his face in the mud.

The only eyewitness as to what occurred was Mr Donald Mackay, an employee of the property owner, Milo Australian Food & Fibre Limited, and even he was some distance away. Unfortunately, Mr Mackay has since died, but he did make a statement to the WorkCover Inspector, Mr Gary Mason, on 15 January 2001 (Exhibit L at 106). Having been notified that the power line was down, Mr Mackay rang NorthPower, and then headed out to Field 19. As he approached along the road north of Field 19, he saw one NorthPower vehicle heading west (Mr Buddee) and another parked near the power pole.

Mr Mackay's statement records the subsequent events, as follows:

" I seen a NorthPower worker walking in the field. He appeared to have lost his balance, one arm went up, I don't know which one, then there was a flash and bang, a loud bang. With that he fell forward onto his face."

The statement continues: " I then turned and headed for the NorthPower Ute parked at the power pole. I then called the other NorthPower vehicle and told him that his partner was down. I ran across the field keeping away from the downed line. The injured worker was lying face down in mud. I was singing out to the other NorthPower guy to give me a hand to get him over, to get his face out of the mud. In the proceeds (sic) of doing that the other NorthPower worker said don't go near the line the power was still on. A few seconds after that he said the power is now off and he came to me in the field. We rolled him over and proceeded to resuscitate. I remember the other NorthPower worker saying to the injured person, Cookie why didn't wait you said you going to wait (sic). He said this a number of times. After that we waited until the ambulance arrived."
Having been alerted by Mr Mackay, Mr Buddee turned around and came back. He radioed to the NorthPower Control Room, situated at Coffs Harbour, and had the power turned off remotely, then went to assist Mr Mackay resuscitate Mr Cook.

I am satisfied that Mr Cook never actually came into contact with the conductor as the evidence is that if he had done so, that would probably have resulted in his death. More probably than not, what occurred was a phenomenon known as 'flashover', whereby electricity passed across a charged ionised field, or corona effect, around the live conductor. Some part of Mr Cook's body must have penetrated this ionised electric field resulting in electricity crossing the air gap to his body, and then to the ground. Such a flashover had an increased propensity to occur in conditions of humidity such as prevailed at this site, where the cotton crop and surrounding grain grasses were saturated. Mr Cook had travelled across the muddy field over wet cotton bushes to reach the point where he was injured.

The extent of such an ionised field was not likely to exceed 60mm, thus it is probable that some part of Mr Cook's body came within 60mm of the conductor.

The training Mr Cook had received dictated that he was to maintain certain minimum 'clearances' from live conductors, the distance varying according to the voltage. In the case of this conductor, which was carrying 22,000 volts, the required minimum clearance was one metre. Somehow, Mr Cook, or some part of his body, must have breached that minimum requirement.

There is no evidence that Mr Cook voluntarily placed himself or any part of his body inside the proscribed one metre clearance, nor can such an inference be drawn. It is more probable that he lost his balance in the muddy conditions and breached the clearance as a consequence of stumbling or falling, from a distance in excess of one metre. I am satisfied that by reason of his training and experience, Mr Cook would not have risked breaching the required clearance.

There were several methods available for isolating, or de-energising, the conductor. The first was by manual isolation at the links site No 1292, just as Mr Buddee had set off to do. This method would only have affected a minimal number of customers downstream, mostly rural homesteads. Or, the line could have been isolated at the zone substation at Ashley village, which was further upstream. This could have been done either manually, or by remote control from Port Macquarie, just as occurred when Mr Buddee radioed the Control Room after Mr Cook's accident. Isolation at Ashley would have affected 200 plus customers.

But the evidence was motley as to which method was to be used when, as was the evidence as to training of linesmen when working in the field. Linesmen were trained to maintain clearances from live conductors in all circumstances. They were also trained to isolate and earth conductors before actually working on them. There was also a system for completion of a written risk assessment to be completed before starting work, but this was only to be finalised after isolation and earthing. Less clear, however, were the requirements involved in approaching live conductors and assessing risk prior to isolation, other than the clearance rule. And missing altogether was evidence as to the criteria to be applied as to when to isolate to a live conductor and in what circumstances.

All Mr Cook and Mr Buddee were told was that the line had been hit. But the line was in fact dislodged, and hanging at about neck height. There was evidence, from Mr Cartwright, that at some point it had been swinging across the field. There were people in the vicinity, from Aircare Moree and from Milo, some of whom were 'ducking under the line'. Even Mr Mackay had to be warned by Mr Buddee not to go near the line till the power was turned off.

Was Aircare Moree negligent? 23. The General Manager/Chief Pilot of Aircare Moree, Mr Lindsay Keenan, wrote to the Civil Aviation Authority on 29 December 2000. He didn't seem to be in much doubt as to why the accident occurred. In the letter he stated: " The pilot, Tod Stubbs was flying a company owned AT 400 and encountered the wire on about the tenth spray run on field 19 at "Milo'…Tod had sprayed the same field some 5 days previously and was familiar with the hazard and was confident the hazard was acceptable. He has been counselled by me as to the need to maintain concentration and height when working under wires." 24. Yet Aircare Moree submitted that the pilot was not negligent. It conceded in written submissions, that the pilot may have 'inadvertently…pulled on his controls just sufficiently enough to increase the aircraft's altitude by 150mm.' It argued that the pilot's duty was to exercise reasonable care, not perfect care, and that there was no expert evidence that the pilot operated the aircraft other than 'in accordance with the usual practice of competent pilots'.

Aircare Moree submitted, further, that in the absence of such expert evidence, it would be speculative to infer negligence on the pilot's part, and that no adverse inference can be drawn from the failure to call the pilot. I disagree. In my view, the risk of injury from a collision with the conductor, which he knew was there, in the particular circumstances, where visibility was poor, if not still dark, was clearly foreseeable and it was incumbent on Aircare Moree to either explain or contradict the case thrown up against it in respect of the pilot in the course of the evidence, by calling either the pilot or its Chief Pilot, Mr Keenan: Schellenberg v Tunnel Holdings Pty Ltd [1999] 200 CLR 121.

Finally, Aircare Moree submitted that no causal connection was established between any conduct on its part, or for which it was responsible, and the injuries sustained by Mr Cook. There was an absence of causation, because of the conduct of Mr Cook in not staying clear of the live conductor until it was isolated and de-energised, or because of the want of care by his employer. The acts and omissions of Mr Cook, or of NorthPower, (or a combination of both, acted as an interruption to the chain of causation (novus actus interveniens).

It was not required of Mr Cook to show that the precise manner by which his injury was sustained was reasonably foreseeable. It is sufficient that an injury to a class of persons, of which he was one, might reasonably have been foreseen as a consequence of a sequence of events following the unreasonable conduct of the pilot. That there was a danger to all persons in the vicinity, or who might approach a live conductor brought down by a collision, such as linesmen from NorthPower, was undoubtedly foreseeable.

For these reasons, I find that the pilot employed by Aircare Moree was negligent in flying in conditions of poor visibility, under a live conductor, which at its lowest was 6.2 metres above the ground, and in so doing failed to avoid colliding with the conductor. This was not an outcome of inadvertence, but was conduct fraught with foreseeable risk, including that of loss of concentration and misjudgement. The pilot's negligence was causative of the injuries sustained by Mr Cook, and the chain of causation was not broken by any supervening conduct either on the part of Mr Cook, or his employer, NorthPower.

Are Aircare Moree and ACQ liable under the Damage by Aircraft Act 1999? 29. The Damage by Aircraft Act 1999 (Cth) provides:

(1) This section applies if a person or property, in or on land or water suffers personal injury, loss of life, material loss, damage or destruction caused by: (a) an impact with an aircraft that is in flight…; or (b) an impact with part of an aircraft that was damaged or destroyed while in flight; or (c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or (d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

(2) If this section applies, the following people are jointly and severally liable…: (a) the operator of the aircraft immediately before the impact happened; (b) the owner of the aircraft immediately before the impact happened; …..

11 Recovery of damages without proof of intention, negligence etc.

Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants.

These sections provide for a regime of strict liability in respect of certain injury or damage caused by either an impact, or something that is a result of an impact, which occurs whilst the aircraft is in flight.

The aircraft here was involved in an impact with the conductor, whilst in flight. It is not disputed that Aircare Moree was the operator, and that ACQ Pty Limited was the owner of the aircraft immediately prior to the impact, or that Mr Cook suffered personal injury. What is in dispute is that his injuries were caused by an impact specified in s 10. It was submitted that subsections (a), (b) or (c) would only apply if the aircraft, or part of it, or something falling from it, struck the plaintiff, and that upon its proper construction, subsection (d) is confined to situations where one of those three objects in turn strikes an object that then strikes the plaintiff, e.g. a part of an aircraft falls onto a roof, which then falls onto and strikes the plaintiff, or a fire caused resulting from a crashed aircraft. Reliance for such an interpretation was placed on the second reading speech.

In my view, however, there was an impact of the type contemplated by s 10(d), and an uninterrupted causal relationship between that impact and the injuries. Mr Cook, whilst on land, suffered personal injury caused by 'something' that was a result of the impact of the aircraft, in flight, with the conductor. That 'something' was the dislodgement of the conductor from a supporting pole, which created the foreseeable risk of injury to persons in the vicinity, or who might approach the live conductor, such as linesmen from NorthPower.

For these reasons, I find that Aircare Moree and ACQ Pty Limited are jointly and severally liable to Mr Cook for the injuries he sustained, and that damages are recoverable by him against them, without proof of intention, negligence or default, as if his injuries had been caused by their wilful acts, negligence or default.

The question then arises as to whether or not a defence of contributory negligence is available to Aircare Moree and ACQ Pty Limited under the statute.

Aircare Moree and ACQ Pty Limited contend that apportionment, for contributory negligence, of any damages to which Mr Cook is entitled, is available as provided for in s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), by reason of s 5A of the Civil Liability Act 2002 (NSW).

Determination of this question involves the exercise of federal jurisdiction, and I am required first to identify the applicable law in accordance with s 79 and s 80 of the Judiciary Act 1903 (Cth): Hamilton v Merck and Co Inc [2006] NSWCA 55 at [6]. In my view the applicable law is the common law of Australia, as modified by the law of New South Wales: Blunden v The Commonwealth of Australia [2003] 218 CLR 330. The use of the words 'as if' in s 11 of the Damage by Aircraft Act 1999 (Cth) make it clear that it was not intended to provide a complete legislative scheme which 'covers the field', but merely to modify the common law in respect of the recovery of damages for personal injury.

It follows that the Civil Liability Act 2002 (NSW) applies to Mr Cook's claim and the recoverability of damages from Aircare Moree and ACQ Pty Limited.

This does not, however, of itself render the defence of contributory negligence available. The determination of that question requires a consideration of the wording of s 11 of the Damage by Aircraft Act 1999 (Cth). In this respect I agree with the supplementary written submissions of Aircare Moree and ACQ Pty Limited (paragraph 5) that the cause of action is not for breach of statutory duty, rather it arises by the application of the statute. This is an important distinction.

It was submitted that Mr Cook's claim is, in substance, a claim for damages for harm resulting from negligence, so that contributory negligence may be raised whether the claim is brought in tort, in contract, under statute or otherwise: Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [166] - [167]. The formulation of the cause of action by reference to the substance of the claim, as required by Booksan Pty Ltd v Wehbe must, however, be subject to the wording of the federal statute in question. Section 5A of the Civil Liability Act 2002 (NSW) speaks in terms of a cause of action in negligence. Here, Mr Cook's claim is not a claim in negligence. True, it is a claim for damages, but it arises by operation of the federal statute, not as a claim in tort. The statute specifically provides for the recovery of damages without proof of negligence. That liability is strict. The proposition might be tested by asking, rhetorically, whether a defence of contributory negligence would be available to reduce the damages if there were no evidence of negligence on the part of Aircare Moree. Absent the statute, Mr Cook does not even have a claim against ACQ Pty Limited, in negligence or otherwise.

In my view, therefore, in the absence of any express provision in the Damage by Aircraft Act 1999 (Cth), as there was in the predecessor statute, the Civil Aviation (Damage by Aircraft) Act 1958 (Cth), a defence of contributory negligence is not available in respect of the liability of Aircare Moree and ACQ Pty Limited to Mr Cook, arising under the statute, for the injuries he sustained.

Did Mr Cook voluntarily assume the risk? 41. A defence of voluntary assumption of risk is not available to the employer, NorthPower. I do not need to decide whether such a defence is available, as a matter of law, to Aircare Moree and ACQ Pty Limited.

Aircare Moree and ACQ Pty Limited contend that Mr Cook's claim for damages against them is defeated because he voluntarily assumed the risk of the injuries sustained by him. They submit that Mr Cook was a highly qualified tradesman, accustomed and trained to deal with the very danger that caused his injuries. The danger was obvious to him. There were safe, practicable alternatives available to him: either to await isolation and de-energisation of the conductor, or, to remain a sufficient distance from the conductor such that even if he were to overbalance and fall, no part of his body would come within one metre of the conductor. In these circumstances, the three elements required to establish the defence have been proved: Carey v Lake Macquarie City Council[2007] NSWCA 4 at [85]:

That the plaintiff perceived the existence of the danger;
That he or she fully appreciated it;
That he or she freely and voluntarily agreed to accept the risk.

The relevant principles are discussed in The Law of Torts, 9th Edition, John G Fleming, at pages 338ff. To successfully make out a defence of voluntary assumption of risk (volenti non fit injuria) a defendant is required to establish, expressly or by necessary implication, that the plaintiff absolved the defendant from its ordinary duty to take care. An implication cannot be imputed to a plaintiff merely because he encountered a known hazard. Rather, it is required to be shown that he consented to bear any loss in the event of an accident, and thus waived his legal rights. Where there has been only a miscalculation of the risk, without a full appreciation of the danger, that is insufficient to establish the defence.

Mr Cook did not consciously or deliberately confront the danger of electrocution. The most that the evidence establishes is that he may have miscalculated the risk and the distance between him and the conductor, even in the event of stumbling or falling. In my view, Aircare Moree and ACQ Pty Limited did not establish that Mr Cook fully appreciated the risk or that he voluntarily and freely agreed to accept it, such as to consent to bear the consequences of the accident.

For these reasons, I find that Mr Cook did not voluntarily assume the risk of the injuries sustained by him. That defence, assuming it is available as a matter of law, fails on the facts.

Was NorthPower negligent? 46. The employer, NorthPower, also contended that it was not negligent. It submitted that there was no breach of the duty of care to Mr Cook, who was fully trained, instructed and equipped to deal with the risk he was required to confront, and none of the allegations of negligence made against it were proved.

First, the case against it based on the absence of markers has no merit. Given the prevailing conditions of poor visibility, if not darkness, markers would not have been visible in any event. Anyway, the pilot was aware of the presence of the conductor.

Secondly, the case based on the failure to remotely isolate the line prior to the arrival of Mr Buddee and Mr Cook was not established. This was not a situation that called for remote isolation, such as where there was imminent danger to persons, livestock or property. The reaction of NorthPower to the downed line was reasonable and proportionate to the circumstances. Professor Stillman, the expert called on behalf of Mr Cook, conceded as much: (T 156.35-157.19). Isolating the line from Port Macquarie would have been an overreaction, affecting over 200 customers and their respective electrical requirements such as agricultural operations and personal use of appliances, and even machinery required for medical purposes. There were no circumstances reported to NorthPower that justified such extreme action. It was sufficient to do what it did, namely to send out two experienced linesmen to assess and address the situation.

Thirdly, the case based on any failure to inform Mr Cook and Mr Buddee, prior to their arrival at the site, of the state of the line and the ground problems, must similarly fail. In this regard, the question of when the hazard risk form was to be filled out was not a significant issue, as Mr Cook conceded that the risk assessment process commenced from the moment he arrived at the site: (T 30.11ff).

Fourthly, the case based on inadequate training is unsustainable, and there was no evidence that any additional training would have made any difference. The wet and muddy condition of the field was obvious. Mr Cook knew about the risk of flashover. He knew that humid conditions and the presence of water increased the propensity for flashover to occur. He was also aware of the required minimum clearance of one metre.

Finally, NorthPower submitted, Mr Cook was an experienced linesman who had reached the pinnacle of his trade, being a Grade 6 Linesman, familiar with what was required. As such he was acutely aware of the need to stay away, by at least one metre, of the energised conductor. There was absolutely no reason for Mr Cook to approach the line, which was visible from five to ten metres away (T 66.2), before it was isolated and he should have waited, just as he and Mr Buddee had agreed: (Exhibit L, page 108).

The evidence established, however, that after the conductor was dislodged, it was swinging about across the field: (T 196.29). It was difficult to see in the particular conditions; there were people in the vicinity who were 'ducking under the downed conductor; and even Mr Mackay had to be warned away by Mr Buddee. Mr Cartwright rang Mr Mackay, who in turn rang NorthPower to inform it the line was down. There was no evidence as to what NorthPower was or was not otherwise aware. The risk of harm from the energised line swaying across the field at head height was clearly foreseeable. In my view it would not have been a disproportionate response for NorthPower to have remotely isolated the conductor from Port Macquarie, until the arrival of the two linesmen it dispatched to assess the situation. The line, or some part of it, was always going to need to be isolated. Any relative increase in time out or customers affected by remote isolation was in my view the required, proportionate, response to the danger.

The training received by Mr Cook as to maintaining clearances was ambiguous. On the one hand he was acutely aware of the requirement to maintain a minimum clearance of one metre before working on a line until it was isolated and earthed. On the other hand there was no clear procedure by which he had been trained to keep well clear of the line before carrying out an assessment of the work required. Nor had he been trained as to how the clearance was to be calculated or observed. In adverse conditions, such as were present here, not very much was required for that one metre clearance to be compromised. Inadvertence, through fatigue, tripping or falling, or misjudgement in conditions of poor visibility, were all reasonably foreseeable concomitants of establishing, through training and instruction, a safe clearance, and how to apply it. The requirement should have been to require linesmen in these circumstances to stay well clear of the line until isolated, sufficiently far away to take account of inadvertence: (Exhibit L, page 45, paragraph 31.

For these reasons, I find that NorthPower breached its duty of care to Mr Cook, through failing to remotely isolate the live conductor prior to his arrival at the site, and the inadequate training and instruction provided to him in respect of keeping a sufficient distance from the line until it was in fact isolated. I am, therefore, satisfied, that Mr Cook's injuries were sustained by reason of negligence on the part of NorthPower (now known as Country Energy).

Should Mr Cook's damages be reduced for contributory negligence? 55. It was contended on behalf of Mr Cook that he was not guilty of contributory negligence. He was merely performing the duties of his position in conformity with a system of work created by his employer. It was not suggested that he should not have entered the field at all before the power was turned off. To the extent that he breached the one metre clearance, this was the result not of any failure to take reasonable care for his own safety, but the consequence of his inadvertently stumbling or falling.

Having regard to his experience, his knowledge of the risks associated with live conductors, the propensity for flashover (particularly in wet or humid conditions), the requirements as to maintaining a minimum clearance, the risk of falling posed by the muddy conditions, and the difficulty in assessing how far away the conductor was, particularly in conditions of poor visibility, I am satisfied that Mr Cook failed to take reasonable care for his own safety. Clearly he came too close to the live conductor, which posed a risk of injury of which he was well aware. His fellow employees, Mr Buddee and Mr Skaines, both agreed that in the circumstances the one metre clearance was to be regarded as a minimum: (T 215).

I find, therefore that Mr Cook was guilty of contributory negligence such that the damages recoverable from NorthPower ought to be reduced to such extent as is just and equitable having regard to his share of responsibility for his injuries.

Taking into account the relative culpability of NorthPower in comparison to that of Mr Cook, in my view the apportionment of responsibility to Mr Cook must be substantial. I agree with the submissions of NorthPower that the culpability of Mr Cook was exacerbated by his failure to heed the warning of Mr Cartwright (T 196.34ff), and by not abiding by his arrangement with Mr Buddee to wait till the conductor was isolated (Exhibit L, page 108).

Nevertheless, I am not satisfied that the relative culpability of Mr Cook was to the same extent as that of NorthPower, in whose power it lay to avoid this accident altogether, in particular by remotely isolating the line. I think that it is just and equitable that the extent to which Mr Cook's recoverable damages against NorthPower are to be reduced should be assessed at 40%.

The apportionment of responsibility between the defendants 60. There are cross-claims seeking indemnity or contribution as between the defendants which seek apportionment of responsibility between them: s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW). NorthPower (now known as Country Energy) further relies on s 151Z of the Workers Compensation Act 1987 (NSW), to which I shall come later in these reasons.

As a preliminary issue, NorthPower (now known as Country Energy) contended that there can be no contribution by it in respect of any liability accruing to Aircare Moree and ACQ Pty Limited under the Damage by Aircraft Act 1999 (Cth), as it is not a joint tortfeasor because 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW) provides for contribution only as between tortfeasors in circumstances where damage was suffered by any person as a result of a tort.

For the same reasons as I articulated above in respect of the non-availability to Aircare Moree and ACQ Pty Limited of a defence of contributory negligence, to the effect that the claim by Mr Cook against those defendants under the Damage by Aircraft Act 1999 (Cth) arises by operation of the federal statute and not in tort, there is no basis for any apportionment of that liability between the defendants.

It follows that the cross-claim by Aircare Moree and ACQ Pty Limited against NorthPower (now known as Country Energy) must fail. But so must the cross-claim by NorthPower (now known as Country Energy) against ACQ Pty Limited.

As to the contribution that NorthPower (now known as Country Energy) should recover from Aircare Moree, having regard to their respective responsibility for the damage, as joint tortfeasors, I take into account the following: It was the negligence of the pilot that created the risk of danger in the first place. His culpability in flying under a low-hanging live conductor in conditions of visibility that were fraught with risk was significant. On the other hand, NorthPower (now known as Country Energy) could and should have obviated the consequent risk by immediately isolating the conductor remotely from Port Macquarie. Having regard to these matters in particular, I find that it is just and equitable that the amount of the contribution should be 50%.

Damages 65. I come, then, to damages. It is not disputed that Mr Cook suffered horrendous injuries and that the consequences have been dire. As to the calculation of the recoverable damages, the areas of dispute are in fact quite limited and I will deal with these few points of difference below. The non-disputed calculations as the heads of damage are set out below in the Table of Damages.

Mr Cook was born on 11 January 1968 and is now 39. He was born and raised in Moree, where he still lives with his wife, Cynthia, to whom he has been married for some 10 years. He left school after Year 10. After various jobs he commenced work with NorthPower (now known as Country Energy) in 1995, and has worked for that employer ever since. At the time of his accident on 28 December 2000 he had progressed to being a Grade 6 Linesman. Since the accident he has worked in various roles, but is now an Asset Inspector.

As a result of the accident he received terrible electrical burns to his feet and scalp (Exhibit J) and had a cardiac arrest. He was, fortunately, revived by Mr Buddee and Mr Mackay, but subsequently had a fitting episode. He was first taken to Moree Hospital, but quickly transferred by helicopter to Tamworth Base Hospital. His condition was monitored closely, particularly in relation to his heart, when he developed cardiac arrhythmia requiring intubation and stabilisation. A few days later, on 3 January 2001, he was transferred by air ambulance to the Concord Hospital Burns Unit, and came under the care of Dr Peter Haertsch. However, shortly after admission his condition deteriorated when he developed diplopia, and had problems speaking and breathing. He apparently underwent severe demyelination of the cranial nerves and spinal column, and was transferred to intensive care, where he was induced into a coma.

In hospital he was treated for various problems, including the burns, the throat problems and renal impairment. There was also a craniotomy for removal of sequestrum and the insertion of an implant in the skull.

He underwent a series of throat procedures, followed by a tracheostomy. He also underwent debridement of his burn wounds and extensive grafting procedures.

During the time he was in a coma, although he could not speak, he could hear and feel. In one episode he was subjected to a procedure to his spine, involving lumbar puncture, which caused him excruciating pain. But he was not able to tell the doctors, as he was only partly conscious. In another episode he overheard a doctor telling his wife that he was unlikely to recover and would spend the rest of his life on a ventilator. This caused him considerable distress.

Despite his problems, he recovered sufficiently to be discharged after only 90 days, in April 2001.

After returning home he made a good physical recovery insofar as movement and limb function was concerned, such that he in fact returned to work in October 2001, on a part time basis, on light duties, not involving line work. By December he was working a full day, albeit on light work in the office.

In July 2002 he progressed to the position of Project Design Manager, but ultimately he decided he could not cope with that job, and he then became an Asset Manager, in which position he remains today. This involves some physical exertion, such as drilling and walking on uneven ground, but there are no time pressures, and he copes. It is, however, an outdoor job, which he prefers. Nevertheless, he has not and never will return to the work of a linesman, which he enjoyed. He has suffered a loss of earnings and a significant diminution of his future earning capacity.

He is left with a mild cognitive disorder, involving dysfunction of the frontal lobe. His ongoing problems include difficulty with walking, prolonged standing and driving, problems with balance, shortness of breath, problems with concentration and memory, severe scarring to the burn sites and graft donor areas, burning sensations in the feet and cramping, pain and itchiness in the scalp area. He lacks energy and is easily tired.

Towards the end of 2001 he developed a depressive condition, secondary to the cognitive disorder. He did have periods of suicidal ideation but this has abated. He does, however, continue to lack confidence, and can be moody and irritable. His socialising and involvement with friends has decreased. He is introspective and withdrawn. He takes medication for his depression.

Overall, however, he has had a remarkable recovery and is getting on with his life within the limitations to which he is now permanently subjected. He exercises regularly. He receives ongoing support from his wife, both by way of care and emotional support.

The prognosis for improvement of the cognitive disorder is guarded. On the other hand the prognosis for the improvement his depressive disorder is positive. He requires no further treatment except, possibly, for his throat, which is perhaps the worst of his ongoing disabilities. The prognosis in respect of his upper tracheal stenosis is for little improvement, with a possibility of long-term deterioration. Future operative treatment may be required. This will involve either a repeat of the micro laryngoscopy, or the possible resection of the stenosis. This latter operation would require a week of hospitalisation, and expenses in the order of $20,000, and possible loss of earnings.

Damages recoverable from the employer, NorthPower 78. Total damages in an amount of $433,860.00 are claimed as against NorthPower (now known as Country Energy), assessed in accordance with s 151G of the Workers Compensation Act 1987 (NSW). NorthPower does not dispute the calculations giving rise to this figure, as set out in the Table of Damages below. This leaves net damages of $321,655.85.

I note that it was agreed, for the purposes of s 151N(2) of the Workers Compensation Act 1987 (NSW), that the amount that would have been payable by way of a commutation of weekly payments of compensation is $95,000.00. It follows that the section does not apply, in that the damages for impairment of Mr Cook's earning capacity are not reduced because of contributory negligence below that amount.

There will, therefore, be a verdict for Mr Cook against NorthPower (now known as Country Energy) that takes into account a 40% reduction of damages for contributory negligence.

Damages recoverable from Aircare Moree and ACQ Pty Limited 81. Total Damages in an amount of $974,511.00 are claimed as against Aircare Moree and ACQ Pty Limited assessed under the Civil Liability Act 2002 (NSW), or if that Act does not apply, an amount of $1,082,433.00 assessed under the common law: see the Plaintiff's Schedule of Damages. Aircare Moree and ACQ Pty Limited dispute the calculations in respect of only two heads of damage claimed against them. The first relates to non-economic loss (general damages). The second relates to the calculation of interest on past non-economic loss.

It was contended for Mr Cook that damages for non-economic loss should be assessed, under the Civil Liability Act 2002 (NSW), by reference to 50% of a most extreme case, for which the prescribed maximum amount is $427,000.00. In my view, 50% is a little high. It was contended for Aircare Moree and ACQ Pty Limited that those damages should be assessed by reference to 20% of a most extreme case. In my view, 20% is manifestly too low. If that Act does not apply, Mr Cook asks for an award under the common law of $250,000.00. Aircare Moree and ACQ Pty Limited say such an award is too high. I agree.

Having regard to all the matters set out under the heading Damages above, in my view the assessments for non-economic loss should be as follows: Under the Civil Liability Act 2002 (NSW), the severity of Mr Cook's non-economic loss as a proportion of a most extreme case is determined as 45%, an amount of $192,150.00. Under the common law, the general damages are assessed at $200,000.00.

It was submitted for Aircare Moree and ACQ Pty Limited that 50% of any award for non-economic loss is referable to the past and that the applicable rate of interest under the Civil Liability Act 2002 (NSW) is 2%, and not 4% as claimed by the plaintiff. In my view the greater proportion of Mr Cook's award for non-economic loss under the common law should be attributed to the future.

I assess the percentage of the award as to the past at 40%. I agree that the rate of interest should be 2%. I therefore award interest on past non-economic loss under the common law in an amount of $10,000.00.

Table of Damages 86. The Table of Damages is set out below: Heads of Damages Workers Civil Liability Act Common law Comp Act Non-economic loss $192,150.00 Nil $ 200,000.00 (The maximum amount under s 16(2) of the Act is $427,000) (45% of a most extreme case) Interest on non-economic loss

(Calculated on past non-economic Nil Nil $ 10,000.00 loss at 40%, at the rate of 2% over 6.25 years) Past economic loss $ 104,233.00 $ 104,233.00 $ 104,233.00 Interest on past economic loss Nil $ 5,866.00 $ 6,524.00 (At common law the rate is 6%) Past superannuation $ 12,350.00 $ 12,350.00 $ 12,350.00 Tax (Fox v Wood) $ 35,684.00 $ 35,684.00 $ 35,684.00 Future economic loss $ 252,098.00 $ 281,756.00 $ 303,402.00

($377 per week to age 65: 26 years) (5% multiplier (786.7), adjusted by 5% (s 13) (5% multiplier, discounted by 15% for vicissitudes) (3% multiplier (846.8), discounted by 15%) Future superannuation $ 29,495.00 $ 32,965.00 $ 35,498.00 Out-of-pocket expenses Nil $ 262,457.00 $ 262,457.00 Future treatment

($20,000 deferred for 5 years $ 25,680.00 $ 25,680.00 (0.784), plus a cushion for future Nil reviews and medication) Total $ 433,860.00 $ 953,141.00 $ 995,828.00

Contribution as between the defendants 87. At the hearing on 9 May 2007 counsel for the first and second defendants submitted that the issue of contribution should be revisited and brought to my attention a number of additional authorities not previously referred to in submissions. I made determinations in my preliminary Reasons for Judgment delivered on 20 April 2007 in respect of the application of s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW). Nothing in the further submissions persuades me to change my view. The consideration of any entitlement to contribution available to Aircare Moree and ACQ Pty Limited against NorthPower is to be undertaken having regard to their liability under the statute, which is not a tortious liability. Relief under s 5(1)(c) only avails to a tortfeasor. Relief under s 5(1)(c) avails against someone who is liable, in respect of the same damage, whether as a joint tortfeasor or otherwise. The 'or otherwise' only applies to the person from whom contribution is sought, and not vice versa.

The wording of s 151Z of the Workers Compensation Act 1987 (NSW) is different, such that it might be argued that the 'or otherwise' applies to both the person claiming contribution and the person from whom contribution is claimed. There must, however, be a right to contribution. Section 151Z does not create the right to contribution; it merely operates to adjust the amount of any contribution, if contribution is in fact recoverable. I will come to s 151Z below.

Counsel for the first and second defendants further submitted, at the hearing on 9 May 2007, that contribution is available to Aircare Moree and ACQ Pty Limited against NorthPower under the general law, independently of statute. That was never pleaded, and not raised at the trial. I am not satisfied that any appropriate basis was established for the exercise of the discretion to re-open the case to explore this issue: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303.

Section 151Z of the Workers Compensation Act 1987 (NSW) 90. Section 151Z of the Workers Compensation Act 1987 (NSW) requires certain adjustments to the recoverable damages where there is a right of contribution from the employer. In the present proceedings, neither Aircare nor ACQ Pty Limited has any right to contribution from the employer, therefore the damages that may be recovered against them are not liable to be reduced: s 151Z(2)(c). Likewise, there is no work to be done under s 151Z(2)(d). Therefore, s 151Z of the Workers Compensation Act 1987 (NSW) has no application in these proceedings.

Summary 91. The pilot employed by Aircare Moree Pty Limited was guilty of negligence, for which Aircare Moree Pty Limited is vicariously liable to Mr Cook.

Aircare Moree Pty Limited and ACQ Pty Limited are jointly and severally liable to Mr Cook under the Damage by Aircraft Act 1999 (Cth).

A defence of contributory negligence is not available to Aircare Moree Pty Limited and ACQ Pty Limited in respect of that liability. Contribution is not available to that liability from NorthPower (now known as Country Energy) under s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW).

Mr Cook did not voluntarily assume the risk and the defence of volenti non fit injuria was not proved by Aircare Moree Pty Limited and ACQ Pty Limited.

NorthPower (now known as Country Energy) was guilty of negligence and is liable to Mr Cook.

Mr Cook was guilty of contributory negligence for which it is just and equitable that the damages recoverable by him against NorthPower (now known as Country Energy) should be reduced by 40%.

It is just and equitable that there should be a contribution of 50% by Aircare Moree Pty Limited to the liability of NorthPower (now known as Country Energy) under s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW).

Total damages are as set out in the Table of Damages above.

Section 151Z of the Workers Compensation Act 1987 (NSW) has no application in these proceedings.

Disposition 100. For these reasons I enter the following verdicts: · For the plaintiff against Aircare Moree Pty Limited and ACQ Pty Limited for $953,141.00. · For the plaintiff against Country Energy for $260,316.00. · For Country Energy on its cross-claim against Aircare Moree Pty Limited for $130,158.00. · For ACQ Pty Limited on the cross-claim brought by Country Energy. · For Country Energy on the cross-claim brought by Aircare Moree Pty Limited. · For Country Energy on the cross-claim brought by ACQ Pty Limited.

Notes:

On 20 April 2007 I delivered preliminary Reasons for Judgment in which I made all relevant findings except for the application of 151Z of the Workers Compensation Act 1987 (NSW). I deferred the entry of verdicts and judgments pending further submissions on that issue. That occurred on 9 May 2007. These final Reasons for Judgment incorporate those preliminary Reasons for Judgment, as corrected by agreement between the parties as to some typographical errors, and add some additional reasons in respect of the issue relating to contribution between the defendants, and reasons relating to the application of s 151Z of the Workers Compensation Act 1987 (NSW).
Special costs orders were made on 14 May 2007 having regard to an offer of settlement made by the plaintiff on 16 November 2006.
The judgments have been stayed pending appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Aircraft Act 1999(Cth)

Law Reform Miscellaneous Provisions Act 1946(NSW)

Under the Civil Liability Act 2002(NSW)

Set aside by Appeal : Decision partly confirmed by High Court [2009] HCA 28

CITATION: Cook v Aircare Moree Pty Ltd [2007] NSWDC 164 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [166] - [167] CASES CITED: Blunden v The Commonwealth of Australia [2003] 218 CLR 330 Carey v Lake Macquarie City Council [2007] NSWCA 4 at [85] Hamilton v Merck and Co Inc [2006] NSWCA 55 Schellenberg v Tunnel Holdings Pty Ltd [1999] 200 CLR 121

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